The court held that a suspended employee cannot be appointed to a position, emphasizing the need for reconsideration of legal grounds not previously addressed.

JUDGMENT :

N.NAGARESH, J.

The petitioner, Headmistress of the School managed by the 5^th respondent, has filed the writ petition to set aside Exts.P2 and P3 and to declare that Ext.P1 appointment of the petitioner as HM from 01.06.2020 is legal, valid and sustainable.

2. The petitioner states that she being the seniormost fully qualified Rule 43 claimant, was appointed as Headmistress from 01.06.2020 onwards against a retirement vacancy. By Ext.P2 order dated 23.03.2021, the District Educational Officer declined approval to the appointment of the petitioner stating that the appointment was made overlooking the seniority of the 6^th respondent.

3. The Manager preferred an appeal before the Deputy Director pointing out that disciplinary proceedings are pending against the 6^th respondent. The Deputy Director, as per Ext.P3 order dated 31.03.2022 rejected the appeal filed by the Manager. The petitioner states that the Manager has filed Ext.P4 revision appeal against Ext.P3.

4. The petitioner states that she is fully qualified to be appointed as Headmistress. Though the 6^th respondent is senior to the petitioner as per the approved seniority list, he is facing disciplinary proceedings. Therefore, he could not have been promoted as Headmaster. The petitioner points out that the allegation against the 6^th respondent is serious, of subjecting minor girl students to unwelcome physical contact. He is accused in Crime No.1286/2019.

5. The Manager has preferred Ext.P4 revision petition. The claim of the petitioner was rejected as per Ext.P7 order dated 23.05.2024. In Ext.P7, the Government ordered to grant approval to the 6^th respondent as HM notionally from 20.08.2020. The DDE has passed Ext.P8. The petitioner thereupon moved the Government filing Ext.P9 petition under Rule 92 Chapter XIVA KER. No orders are passed thereon.

6. The counsel for the petitioner would argue that as on 01.04.2020, the date of occurrence of vacancy of HM, the 6^th respondent was facing disciplinary action. He was under suspension, though he was reinstated on 14.09.2021 with retrospective effect from 27.03.2020. He was acquitted in criminal case only for the reason that the prosecution failed to produce the date of counselling session and by granting benefit of doubt. The acquittal is not a honourable acquittal.

7. The 4^th respondent-DEO resisted the writ petition filing counter affidavit. The 4^th respondent stated that approval to the appointment of the petitioner as Headmistress was declined for the reason that the petitioner was appointed overlooking the seniority of the 6^th respondent, a fully qualified hand. The appeal submitted by the Manager was also rejected by the Deputy Director of Education. After the period of suspension, the 6^th respondent was reinstated with retrospective effect.

8. The 4^th respondent further submitted that as per judgment dated 12.08.2020 in W.P.(C) No.10386/2020, W.A. No.760/2020 and W.P.(C) No.10875/2020, the 6^th respondent was reinstated on 20.08.2020. In compliance of the judgment, the DEO visited the School and an enquiry and hearing were conducted. Thereafter, the 6^th respondent was reinstated. The appointment of the 6^th respondent was approved notionally with effect from 20.08.2020. In the circumstances, the appointment of the petitioner cannot be approved.

9. The 6^th respondent also filed a counter affidavit. The 6^th respondent stated that he had filed W.P.(C) No.20457/2023 challenging Exts.P2 and P3 orders. This Court disposed of the writ petition directing to consider the petition submitted by the Manager and the petitioner. It was thereafter that the 6^th respondent was appointed as Headmaster. The writ petition is therefore only to be dismissed, urged the 6^th respondent.

10. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 to 4 and the respective counsel appearing for respondents 5 and 6.

11. The 6^th respondent was suspended from service on 04.09.2019. The suspension was ra