Kerala High Court
P.A. Lilly Amma vs State Of Kerala, Represented By ... on 24 June, 2002
Equivalent citations: [2003(96)FLR671]
Author: M. Ramachandran
Bench: M. Ramachandran
JUDGMENT M. Ramachandran, J.
1. Petitioner has filed this original petition, though after her retirement, challenging Ext. P5 which came into life after her retirement. An application for approval of her appointment as Headmistress in St. Kuriakose U.P. School, Melpadom, which is under the control of 6th respondent, for the period from 1.6.1989 to 31.5.1989 had been rejected by the Government. It appears that though original petition had been filed earlier, the matter was not finally decided and was relegated for appropriate proceedings. But the Government by order dated 1.5.1996, took a view that the approval was liable to be rejected pointing out that the appointment was made on 4.6.1990 with retrospective effect which is impermissible.
2. Now the facts could be started. The petitioner had commenced her service from 1.7.1961 as Upper Primary School Assistant. The Manager of the school had passed away on 8.4.1988. Due to the rift among the committee members who were in charge of the affairs of the school, it was not possible to appoint a Manager right in earnest. In the meanwhile, the Headmaster of the School had retired on 31.5.1989. The petitioner being the senior most teacher and otherwise qualified for appointment had been given charge of the Headmaster, and recognised by the Department as such for all routine purposes. The newly appointed Manager had recognized the position and appointed her with the date from which the vacancy arose. This is now picturised as irregular. The petitioner had retired from service on 31.5.1989.
3. The averments in the Statement filed by the third respondent, the Deputy Director of Education, Alappuzha, show that the church committee had elected one Sri. K.O. Mathew as the manager w.e.f. 2.2.1990. The said appointment was declined by the Assistant Educational Officer, Harippad, for the reason that the person so selected as Manager was a public sector employee. On 11.12.1992 Government permitted the said person to function as manager for a period of three years from 25.2.1990. Thus the appointment of the Manager was on tender hooks for quite sometime.
4. As pointed out earlier, the Government had found that the appointment is objectionable since it was with retrospective effect. Nevertheless it is not mentioned as to why appointment was not approved from 4.6.1990 at least. The orders have resulted in denial of the petitioner's eligibility for higher emoluments.
5. It is not disputed that the petitioner had been discharging the duties on an Headmistress from 1.6.1989 onwards. Only because of absence of a Manager she was not formally appointed as could have been expected in the normal course. It is also an admitted fact that the petitioner was the senior most eligible person to be appointed as the Headmistress. It was not due to any lapse on her part that her appointment was delayed. It was essential that there should be a person discharging duties of a Headmaster. It is not uncommon or unnatural for the Manager who had been appointed on a later date to effect the appointment of a Headmistress with retrospective effect. Though it might have been on a date before his assumption of charge, the person entitled for appointment thereby was not getting any unmerrited benefit. What is done by the Manager is only appointing the petitioner as Headmistress, taking note of the circumstances that the petitioner was discharging the duties of the Headmistress from 1.6.1989. The petitioner's counsel, T.S. John, as well as the Government Pleader submitted that the rules did not envisage such a contingency. Reference to Rule 7, 8A and Rule 41 had been adverted to. Under Section 11 of the K.E. Act, the prerogative of the appointment rests with the Manager and he has to intimate the fact of appointment within a time frame for approval. This has been done.
6. Retrospectivity is not a term defined or dealt with in the Act. Here it is regularisation of a transaction, which if made at the appropriate time would never have been treated as one objectionable. It cannot be bad, as it only recognises vested rights. Resort to such proceedings might be necessary even in executive or administrative actions.
7. In such circumstances, I do not find any illegality in the appointment of the Headmistress with retrospective affect from 1.6.1989. The establishment of the Educational Agency was there. The Manager was not nominated in the vacancy, but it was not a vacuum. For the fault of others, the petitioner need not suffer, especially when the petitioner was discharging the duties of the Headmistress from 1.6.1989. By not examining the possibility of the approval at least prospectively again an injustice is committed. I quash Ext. P5. There shall be a direction to the appropriate authorities to approve the appointment of the petitioner w.e.f. 1.6.1989 and grant her monetary benefits that might arise from such recognition, within six months from today.
The original petition is disposed of as above. No order as to costs.