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2014 Supreme(Ker) 40

High Court of Kerala
THE HONOURABLE MR. JUSTICE K.M. JOSEPH & THE HONOURABLE MR. JUSTICE A. HARIPRASAD, JJ.
A.K. Roopa
Versus
State of Kerala rep. by Secretary To General Education Department & Others
WA. No. 448 of 2013 IN WP (C). 29025 of 2011
Decided on: 23-01-2014

Advocates Appeared:
For the Appellant:P.K. Suresh Kumar, Senior Advocate, R.K. Muraleedharan, Advocate.
For the Respondents:R1 to R4, C.R. Syamkumar, Sr. Government Pleader, R5, V.A. Muhammed, K.E. Hamza, R6, Dr. George Abraham, Advocates.

Headnote:

Constitution of India - Article 136 - Writ Appeal - Kerala Education Act, 1958 - Sections 6 and 7 - Kerala Education Rules, 1959 - Chap.III Rule 5A - Appellant, despite having M.A.(English) and B.Ed. qualification, had to seek an appointment as Peon - Appellant had worked in the same school as a teacher during leave vacancies - Fourth respondent rejected the proposal to appoint the appellant as Peon - Held, No change of management of any aided school involving change of ownership shall be effected except with the previous permission of the 2nd respondent - In view of the above provision, the law stated by the learned Single Judge cannot be said to be legally sound - Writ Appeal allowed.

Judgment :

Hariprasad, J.

1. The fundamental questions raised in this Writ Appeal are the following:

i. Whether Manager of an aided school, functioning under the Kerala Education Act, 1958 and Kerala Education Rules, 1959 (hereinafter “KE Act and KER” respectively), can contract out his powers and duties under the KE Act and KER to an intending purchaser of the management and ownership of the school?

ii. If such an agreement is executed by the Manager with another, whether the terms therein can override the provisions of KE Act and KER?

Of course, there are other issues raised in this case. But they are only ancillary to the above mentioned questions.

2. Prayers made in the amended writ petition are the following:

“i) issue a Writ of Certiorari or any other appropriate writ order or direction quashing Ext.P9 order dated 26.09.2011 of the 1st respondent and Ext.P6 order of the 4th respondent to the extent of granting transfer of management of EVUP School Tuneri with effect from 24.03.2008 onwards instead of 24.09.2009 onwards;

And

ii) issue a Writ of Mandamus or any other appropriate writ order or direction directing the 4th respondent to approve the appointment of the petitioner as peon in EVUP School, Tuneri with effect from 24.03.2008 with all consequential benefits; And

iii) issue such other orders as this Hon'ble Court may deem fit to grant.

iv) Issue a Writ of Certiorari or any other appropriate order or direction quashing Ext.P21 order issued by the 1st respondent dated 10.01.2013.”

3. Relevant facts, in brief, are the following: Appellant, despite having M.A.(English) and B.Ed. as educational qualifications, had to seek an appointment as Peon in EVUP School, Tuneri. Ext.P1 is the appointment order dated 27.07.2009 issued by the Manager of the school. Previously the appellant had worked as Teacher in the same school during leave vacancies. Appellant was appointed as Peon in the vacancy of one Sujith Kunhiparambath, who had been promoted as Assistant Teacher with effect from 27.07.2009. And at that time, Meenakshy, the previous Manager, was the approved Manager of the school. 4th respondent rejected the proposal to appoint the appellant as Peon for the reason that Meenakshy herself requested not to approve the appointments made by her. 5th respondent (present Manager) also informed the 4th respondent not to approve the appointments made by Meenakshy. Appellant understood that the 4th respondent rejected the proposal to appoint her on the basis of an agreement executed between Meenakshy and 5th respondent for change of management involving change of ownership of the school. Appellant would contend that the reason stated by the 4th respondent for rejecting the proposal for approval of her appointment is illegal. An appeal was preferred before the 3rd respondent against that order and it was disposed by two orders, Exts.P3 and P4. Meanwhile, 5th respondent took steps to terminate the services of the appellant. She approached this Court by filing W.P.(C) No.6648 of 2010, which culminated in Ext.P7 judgment. This Court directed the appellant that she should approach the Government in revision and till the disposal of the revision, she was permitted to continue in service. Thereafter, Ext.P8 revision was filed by her before the Government. Consistent contention raised by the appellant is that Meenakshy functioned as Manager till Ext.P6 order passed by the 4th respondent. All her actions as approved Manager have been ratified by the 4th respondent. It is the further contention of the appellant that Meenakshy, the approved Manager, after seeking prior permission of the authority for the change of management involving change of ownership by letter dated 24.03.2008, promoted K.P.Kamalam as Headmistress, and Sujith Kunhiparambath as Teacher and appointed Teachers, viz., Minija P.K., Deepa P.P., Bindhu K., and Sheeja C.M. These facts are evident from Ext.P8 series letters of appointment. All these appointments by the previous Manager have been a










































































































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