Kerala High Court
Anilkumar T vs State Of Kerala on 21 May, 2010
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
TUESDAY, THE 24TH DAY OF MARCH 2015/3RD CHAITHRA, 1937
WP(C).No. 3871 of 2010 (H)
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PETITIONER(S) :
--------------------------
ANILKUMAR T., AGED 35 YEARS,
S/O.THANKAPPAN, ANIL BHAVAN, PRAYAR P.O.,
NOW RESIDING AT NANDANAM, KAPPIL EAST P.O., ALAPPUZHA.
BY ADVS.SRI.LEO GEORGE
SRI.K.P.SUJESH KUMAR
SRI.K.N.SASIDHARAN NAIR
RESPONDENT(S) :
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1. STATE OF KERALA, REPRESENTED BY
THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM.
3. THE DIRECTOR OF PUBLIC INSTRUCTION,
THIRUVANANTHAPURAM.
4. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM.
5. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM.
6. MANAGER, S.V.H.S.S., CLAPPANA, KOLLAM.
* ADDITIONAL R7 IMPLEADED
7. DEEPTHI SIVARAJAN, UPSA,
S.V.H.S.S, CLAPPANA, KOLLAM.
* ADDITIONAL R7 IS IMPLEADED AS PER ORDER DATED 21.05.2010 IN
I.A.NO.6068 OF 2010.
R1 TO R5 BY SR.GOVERNMENT PLEADER SRI.ABDUL KHADIR
R6 BY ADVS. SRI.A.N.RAJAN BABU
SRI.P.GOPALAKRISHNAN (MVA)
SRI.A.R.EASWAR LAL
ADDL.R7 BY ADV. SMT.S.KARTHIKA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-03-2015,
ALONG WITH W.P.(C).NO.15453 OF 2010 AND W.P.(C).NO.17983 OF 2011,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
WP(C).No. 3871 of 2010 (H)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER
DATED 27.11.2006.
EXHIBIT P2: TRUE COPY OF THE ORDER OF APPOINTMENT ISSUED TO
SRI.J.HARILAL DATED 05.06.2006.
EXHIBIT P3: TRUE COPY OF ORDER PASSED BY THE FOURTH RESPONDENT
DATED 19.07.2005.
EXHIBIT P4: TRUE COPY OF THE ORDER OF THE FIFTH RESPONDENT,
DATED 25.05.2007.
EXHIBIT P5: TRUE COPY OF THE ORDER PASSED BY THE FOURTH RESPONDENT
DATED 06.03.2008.
EXHIBIT P6: TRUE COPY OF THE REVISION PETITION FILED BY SRI.J.HARILAL
BEFORE THE THIRD RESPONDENT DATED 14.02.2008.
EXHIBIT P7: TRUE COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT
DATED 03.09.2008.
EXHIBIT P8: TRUE COPY OF THE REVISION PETITION PREFERRED BY
THE PETITIONER BEFORE THE GOVERNMENT AGAINST EXHIBIT P7
ORDER DATED 23.09.2008.
EXHIBIT P9: TRUE COPY OF THE ORDER PASSED BY THE GOVERNMENT ON
EXHIBIT P8 REVISION PETITION DATED 02.01.2010.
EXHIBIT P10: TRUE COPY OF THE ORDER PASSED BY THE FOURTH RESPONDENT
DATED 30.12.2008.
EXHIBIT P11: TRUE COPY OF THE INFORMATION FURNISHED TO THE PETITIONER
BY THE HEADMISTRESS OF THE SCHOOL UNDER THE RIGHT TO
INFORMATION ACT DATED 16.11.2009.
RESPONDENT(S)' EXHIBITS
-----------------------------------------
EXHIBIT R6(A): TRUE COPY OF THE ORDER NO.B4-11863-03-KDIS
DATED 30.12.2003.
EXHIBIT R6(B): TRUE COPY OF THE REVISION PETITION WITH ENDORSEMENT
OF THE INTERIM ORDER.
EXHIBIT R6(C): TRUE COPY OF THE JUDGMENT DATED 20.12.2006 DISPOSED
OFF W.P.(C).NO.33871/05.
EXHIBIT R6(D): TRUE COPY OF THE JUDGMENT IN O.S.NO.354 OF 2005
DATED 28.02.2007.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
K.SURENDRA MOHAN, J.
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W.P.(C).Nos.3871 & 15453 of 2010 &
W.P.(C) No.17983 of 2011
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Dated this the 24th day of March, 2015
JUDGMENT
The petitioner in W.P.(C) No.3871 of 2010 was appointed as an Upper Primary School Assistant (UPSA for short) in Shanmukha Vilasom Higher Secondary School, Clappana of which the Manager is the sixth respondent. His appointment order is Ext.P1. He was appointed to a regular vacancy of UPSA, that had arisen on promotion of one Sri.J.Harilal as High School Assistant (HSA for short) as per Ext.P2 order. One Sri.K.Sidharthan was the Manager of the School at that time. The appointment of the petitioner was not approved on the ground that the appointment of Sri.K.Sidharthan, the Manager, was held to be invalid by the Munsiff's Court, Karunagappally. Ext.P4 is the order of the District Educational Officer, Kollam (DEO for short), rejecting the petitioner's appointment. The petitioner had challenged Ext.P4 in appeal before the fourth respondent Deputy Director of Education, Kollam. However, by Ext.P5 order Ext.P4 was 2 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 confirmed. The petitioner thereupon challenged the said order in revision before the third respondent Director of Public Instruction. By Ext.P7 order, the revision was also rejected. Thereafter, the petitioner preferred a further revision to the Government. By Ext.P9 order, the Government found that, though the petitioner was appointed by the Manager whose appointment had been invalidated by the Munsiff's Court, Karunagappally the said aspect would not affect the validity of the petitioner's appointment. However, since there was no established vacancy to which the petitioner could have been appointed, approval to the petitioner's appointment was rejected. The petitioner has filed W.P.(C) No.3871 of 2010 challenging Exts.P4, P5, P7 and P9 orders.
2. The former Manager of the School, Sri.A.R.Unnikrishnan, had challenged the claim of Sri.K.Sidharthan, to continue as the Manager of the School, in O.S.No.354 of 2005 before the Munsiff's Court, Karunagappally. The said suit was decreed on 3 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 28.2.2007 holding that the claim of Sri.K.Sidharthan was unsustainable. Pursuant thereto, Sri.A.R.Unnikrishnan took over as Manager of the School. Thereafter, he terminated the petitioner from service on 30.6.2007. The petitioner has been kept out of service ever since.
3. In the above circumstances, as per order dated 2.6.2008, the additional seventh respondent herein was appointed as UPSA to the regular vacancy that was created by the promotion of Sri.J.Harilal as HSA. The said order has been produced as Ext.P5 in W.P.(C) No.15453 of 2010 filed by the additional seventh respondent. The said writ petition has been filed challenging the action of the authorities in not approving the appointment of the additional seventh respondent in W.P.(C) No.3871 of 2010.
4. W.P(C) No.17983 of 2011 has been filed challenging Exts.P3 and P3(a) orders passed by the Personal Assistant of the District Educational Officer, Kollam, granting approval to the appointment of one Smt.Chandini K.Sasi who was appointed to a 4 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 vacancy created by the promotion of one Smt.S.Girija as Headmistress of the School. It is alleged that, the fifth respondent in W.P.(C) No.3871 of 2010 who has passed the said order is the brother-in-law of the fourth respondent in W.P.(C) No.17983 of 2011 and that the approval, Exts.P3 and P3(a), have been issued out of turn to favour the fourth respondent. It is also alleged that steps were afoot to approve the appointment of the fourth respondent in W.P.(C) No.17983 of 2011 as UPSA in the resultant vacancy also out of Ext.P2 order in W.P.(C) No.17983 of 2011. Such approval according to the petitioner in W.P.(C) Nos.15453 of 2010 and 17983 of 2011 adversely affect her seniority basis.
5. Since the issues that arise for consideration are common and interconnected, these writ petitions are considered and disposed of together. W.P.(C) No.3871 of 2010 is treated as the leading case, for the reason that, the decision in the said case would determine the fate of the other writ petitions also. 5 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011
6. A few further facts are necessary to be taken note of before the issues are considered. As already noticed above, Sri.A.R.Unnikrishnan was functioning as the Manager of the School having been elected on 11.12.2003 by the Educational Agency. His term was for a period of three years, that was due to expire only on 11.12.2006. However, Sri.K.Sidharthan alleged that he had been removed from office by the Managing Committee. He submitted a representation before the DEO, Kollam on 1.6.2005 informing the said authority that he had been elected as the the Manager of the School. Sri.A.R.Unnikrishnan contended that, he had not been removed and that no meeting of the Managing Committee was even held as claimed. He had therefore challenged the validity of the resolution that was produced, by filing O.S.No.354 of 2005 before the Munsiff's Court, Karunagappally. However, the appointment of Sri.K.Sidharthan as Manager was approved by the DEO on 19.7.2005. The said order was challenged by 6 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 Sri.A.R.Unnikrishnan in appeal. Pursuant to a direction issued by this Court, the appeal was considered by the Government. The Government confirmed the approval granted by the DEO to the appointment of Sri.K.Sidharthan as per order dated 30.11.2005. Sri.A.R.Unnikrishnan along with another person challenged the said order before this Court in W.P.(C) No.33871 of 2005, a copy of the judgment in the said writ petition has been produced as Ext.R6(c) along with the counter affidavit of the sixth respondent. Though this Court considered the sustainability of the order passed by the Government approving the appointment of Sri.K.Sidharthan, this Court declined to interfere with the same. However, the writ petition was disposed of by this Court directing that the parties shall abide by the decision of the Munsiff's Court in O.S.No.354 of 2005 that was pending before the Munsiff's Court, Karunagappally. The resultant position therefore was that, Sri.K.Sidharthan continued to function as the approved Manager of the School with effect from 19.7.2005 to 28.2.2007 on which 7 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 date, O.S.No.354 of 2005 was decreed in favour of Sri.A.R.Unnikrishnan. The petitioner in this case was appointed by the School Manager on 27.11.2006. It is not in dispute that at the relevant point of time Sri.K.Sidharthan was the approved Manager of the School. At the same time, it is worth taking note of that as per the decree of the Munsiff's Court, Karunagappally in O.S.No.354 of 2005, the claim of Sri.K.Sidharthan to be the Manager of the School has been completely found against. It is in the above background that, the validity of the appointment of the petitioner in this case has to be considered.
7. According to Sri.Leo George, who appears for the petitioner, the petitioner was appointed as UPSA to a regular vacancy that had arisen consequent to promotion granted to Sri.J.Harilal as HSA. The vacancy, to which Sri.J.Harilal was promoted, had arisen due to the retirement of one Sri.Balakrishnan. Therefore, it was a vacancy that had arisen in the natural course of events, that required to be filled up in the 8 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 official discharge of the duties of the Manager. Sri.K.Sidharthan having been functioning as the approved Manager at the relevant point of time, his action in having appointed the petitioner cannot be found fault with. No objection has been raised nor a claim put forward by any other person against the appointment of the said person by Sri.K.Sidharthan as stated above. He had worked from 27.11.2006 to 30.6.2007 as UPSA for which he has not been paid salary also. After Sri.A.R.Unnikrishnan took over as the Manager of the School, following the judgment of the Munsiff's Court, Karunagappally in O.S.No.354 of 2005, he was terminated from service on 30.6.2007. Such termination according to the petitioner is also unsustainable and liable to be set aside. The fact that Sri.A.R.Unnikrishnan who had resumed office as Manager was not in favour of the appointment made by Sri.K.Sidharthan is not a valid ground for termination of the petitioner from service, according to the learned counsel for the petitioner. It is contended that, this is a fit case in which the 9 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 de facto doctrine applies and therefore, the counsel seeks the issue of appropriate orders setting aside the impugned proceedings and restoring to the petitioner what has been lost, not only by the refusal to grant approval to his appointment, that was valid, but also by terminating him from service on 30.6.2007.
8. The contentions of the counsel for the petitioner are opposed by the counsel for the additional seventh respondent as well as the sixth respondent Manager. According to Sri.A.N.Rajan Babu who appears for the sixth respondent, the Munsiff's Court has in the judgment (Ext.R6(d)) found that, Sri.K.Sidharthan had no right to claim to be the Manager of the School. For the above reason, it has been held that Sri.A.R.Unnikrishnan was entitled to continue as the Manager of the School. Therefore, Sri.K.Sidharthan was only an usurper whose acts had no legal validity. The appointments made by him were invalid. It was for the said reason that, the appointment of the petitioner was 10 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 cancelled by him after he resumed office as the Manager of the School. According to the learned counsel, the petitioner could therefore raise no claim, on the basis of an appointment order that was void and of no consequence at all. The counsel also points that, the de facto doctrine does not have any application to the facts of the present case. This is a case in which, the usurper had raised a claim which had absolutely no foundation on facts. In cases where the said doctrine was applied, the situation was totally different. Those were only cases where there was some infirmity in the meeting that was held or in the election conducted. In the present case, no meeting was even held. If any approval is granted to the acts of a usurper as in the present case, that would only be putting a premium on his illegal acts as well as a cloak of legality on acts that were per se illegal. It was for the said reason that, the petitioner in this case was terminated, according to the counsel. It is pointed out that, in the present case approval to the petitioner's appointment had been 11 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 rejected by the authorities. Therefore the petitioner has no right to make any claim on the basis of his appointment as per Ext.P1.
9. Adv.M.R.Anison appears for the additional seventh respondent, who is the petitioner in WP(C) Nos.15453 of 2010 and 17383 of 2011. According to the petitioner's counsel, the additional seventh respondent had been appointed on 27.9.2006 as HSA to a leave vacancy for a period of four years. Her appointment was also by Sri.K.Sidharthan. However, her appointment was cancelled by Ext.P2 proceedings (in W.P.(C) No.15453 of 2010) dated 4.7.2007 by Sri.A.R.Unnikrishnan, after he resumed the office as the Manager of the School. The additional seventh respondent thus went out of service. However, by Ext.P3 proceedings dated 6.3.2008 in W.P.(C) No.15453 of 2010, the petitioner's (petitioner in W.P.(C) No.15453 of 2010) appointment was approved by the Deputy Director of Education. However, the Manager Sri.A.R.Unnikrishnan challenged the same in revision before the Director of Public Instruction. Ext.R4(e) in 12 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 the said writ petition is the order on the said revision. As per the said order, the order passed by the DEO, directing the additional seventh respondent's appointment to be approved, has been set aside, for the reason that she has forfeited her claim on the basis of the said appointment. It was thereafter that she was appointed as a UPSA. According to the learned counsel, the petitioner in W.P.(C) No.3871 of 2010 has not been in service since 30.6.2007. His initial appointment was not approved for the reason that, no vacancy to which he could have been appointed, had been established. He was terminated on 30.6.2007 by the approved Manager Sri.A.R.Unnikrishnan. The said proceedings had not been challenged before any forum by the petitioner. Subsequently, Sri.J.Harilal's promotion was approved by the Educational Authorities. It is to the said vacancy that the additional seventh respondent was appointed. The said appointment has been approved with effect from 2.6.2008 by the proceedings of the DEO, Kollam dated 11.4.2012. The said 13 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 proceedings have also not been challenged by the petitioner. Therefore, according to the learned counsel for the additional seventh respondent the petitioner is not entitled to any of the reliefs, sought for in this writ petition.
10. Adv.Sri.A.N.Rajan Babu, counsel for the sixth respondent Manager further points out that the petitioner was appointed by the Manager in violation of an undertaking given to this Court by the counsel for the then Manager Sri.K.Sidharthan. According to the counsel, after W.P.(C) No.33871 of 2005 was heard and judgment was reserved, when preparations were made to appoint the petitioner, the matter was mentioned to this Court. The writ petition was posted for being "spoken to" and heard again and at that time, this Court was assured by the counsel for the Manager that no fresh appointments were being made as alleged and that only special classes were being arranged by the Parent Teachers Association through teachers after regular classes. It was after the said assurance was given to this Court 14 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 on 7.11.2006, that the petitioner was appointed on 27.11.2006. Therefore, according to the learned counsel, the appointment itself was illegal.
11. A separate counter affidavit has been filed by the Government in W.P.(C) Nos.3871 of 2010 and 15453 of 2010. According to the learned Government Pleader, the promotion of Sri.J.Harilal as HSA had not been approved, for the reason that the promotion was made by a person, whose appointment as Manager was later on invalidated by the Munsiff's Court. Since, the promotion of Sri.J.Harilal had not been approved, there was no resultant vacancy available, to which the petitioner could have been appointed. It was for the said reason that, approval to his appointment was refused, in the first case. Subsequently, the promotion of Sri. J.Harilal was approved, but, by that time the petitioner had been terminated from service and the additional seventh respondent had been appointed to the said vacancy. After hearing all parties, the appointment of the said person has 15 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 been approved. Therefore, the petitioner is not entitled to any of the reliefs claimed.
12. Heard. As already noticed above, Sri.A.R.Unnikrishnan, who was elected as the Manager of the School on 11.7.2003 was entitled to be in office till 11.10.2006. It was in the above circumstances that Sri.K.Sidharthan approached the Educational Authority claiming that Sri.A.R.Unnikrishnan had been removed and that he had been appointed as the Manager. The said appointment was approved on 19.7.2005. The said approval was challenged in appeal, unsuccessfully by Sri.A.R.Unnikrishnan. The Government by order dated 30.11.2005 confirmed the order of the DEO. Thus Sri.K.Sidharthan continued to be the approved Manager of the School. Though Sri.A.R.Unnikrishnan, had challenged the order of the Government, before this Court in W.P.(C) No.33871 of 2005, as per Ext.R4(c) judgment this Court declined to interfere with the order that was under challenge and left the parties to abide by the outcome of O.S.No.354 of 2005 16 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 that was pending before the Munsiff's Court, Karunagappally. Consequently, Sri.K.Sidharthan who had taken over as the Manager of the School continued to function as the approved Manager during the pendency of the proceedings referred to above. The Munsiff's Court concluded the disputes finally by judgment dated 28.2.2007 which is produced as Ext.R4(d) in W.P.(C) No.15453 of 2010. Accordingly, it has been directed in Ext.R4(d), that Sri.A.R.Unnikrishnan was entitled to continue as the Manager of the School, till he was duly removed from the Manager's post. It was declared that Sri.K.Sidharthan, was not the validly appointed Manager of the said School. A prohibitory injunction restraining Sri.K.Sidharthan from interfering with the management of the School was also granted. It was thereafter that, Sri.A.R.Unnikrishnan resumed charge as the Manager of the School. In view of the adjudication of the issues by the Munsiff's Court in Ext.R4(d), there cannot be any doubt that Sri.K.Sidharthan was only an usurper to the post of Manager of 17 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 the School. At the same time, the fact that he had functioned as the Manager of the School from 19.7.2005, the date on which his appointment was approved by the DEO, up to 28.2.2007, for a period of about two years. It is not in dispute that, the petitioner was appointed during the period that Sri.K.Sidharthan was continuing as the approved Manager of the School. Therefore the contentions of the counsel for the petitioner is that, this is a fit case in which the acts performed by Sri.K.Sidharthan are held to be valid applying the principle of defacto doctrine. However, the said contention cannot be accepted for more reasons than one.
13. Though Sri.J.Harilal had been granted promotion by Sri.K.Sidharthan as HSA, his promotion was not approved by the Educational Authorities. True, the appointment was not approved, for the reason that, Sri.K.Sidharthan's appointment as Manager had been set aside by the Munsiff's Court. The appointment of the petitioner herein is a fresh appointment given to an outsider. The right of the Manager to make the said appointment would 18 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 have arisen only on the vacancy to make such appointment being established. In the present case, by the denial of approval to the promotion of Sri.J.Harilal, it has to be held that the vacancy to which the petitioner could have been appointed had not been established. Added to the above, is the fact that, after this Court had completed the final hearing in W.P.(C) No.33871 of 2005 and connected cases and reserved judgment on 25.9.2006, the matter was posted again for being "spoken to", on being mentioned by the counsel for Sri.A.R.Unnikrishnan, alleging that, Sri.K.Sidharthan was about to make fresh appointments to the School. This Court has referred the said allegations in paragraph 9 of Ext.R4(c) judgment. This Court has also recorded the assurance of the counsel for the Manager that no fresh appointments were being made, as alleged. According to Sri.K.Sidharthan, only special classes were being arranged by the Parent Teachers Association through teachers, after the regular classes. In view of the dispute raised by the counsel regarding 19 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 the above aspects, I called for the Judges Papers of W.P.(C) No.19251 of 2006 and examined them. The papers show that the case had been posted for being spoken to on 7.11.2006. Therefore, the assurance of the counsel for the then Manager, Sri.K.Sidharthan, is seen to have been given to this Court on 7.11.2006. Ext.R4(c) judgment is seen to have been pronounced on 20.12.2006. The petitioner's appointment on 27.11.2006 was made during the period from 7.11.2006 to 20.12.2006, when the assurance of the learned counsel was continuing. It is clear from the above that, the submission of the counsel that, no fresh appointments were being made was false. Therefore, I find merit in the contention of the counsel for the sixth respondent Manager that the petitioner's appointment was devoid of bona fides. It is therefore evident that, the petitioner was appointed obviously taking advantage of the situation in which Sri.K.Sidharthan was permitted to continue to function as the Manager of the School. As already noticed above, the petitioner's appointment was also 20 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 not approved by the Educational Authorities. It is also necessary to note that after Sri.A.R.Unnikrishnan resumed charge as Manager of the School, the petitioner was terminated from service on 30.6.2007 and that he has been out of service, till date. The proceedings of the Manager terminating his service have not been challenged by him. The above being the position, I am not satisfied that any interference with the impugned proceedings in this case is called for.
14. The counsel for the petitioner has placed reliance on the decisions regarding de facto doctrine to contend that, Sri.K.Sidharthan having been the approved Manager at the relevant point of time, his action enjoyed protection and therefore the petitioner's appointment was proper. However, in the present case, since the appointment of the petitioner was made to a vacancy that was not established, in violation of the assurance given to this Court as noted in Ext.R4(c) judgment, the petitioner is not entitled to the benefit of the dicta on which 21 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 reliance is placed.
15. The claim of the additional seventh respondent in this case is that, she was initially appointed by Sri.K.Sidharthan to a leave vacancy for a period of four years from 28.9.2006. However, her appointment was cancelled on 4.7.2007 by Sri.A.R.Unnikrishnan who resumed charge as the Manager of the School. Though the petitioner had challenged the proceedings, rejecting approval to her appointment to the leave vacancy and though the Deputy Director of Education had directed her appointment to be approved, she has later on forgone all her claims in respect of the said post. Therefore, she is not claiming any rights in respect of the said appointment. Thereafter, she has been appointed as UPSA in the vacancy created by the promotion of Sri.J.Harilal as HSA on 2.6.2008. The said appointment has now been approved by Order No.B4/6248/2008/K.Dis dated 11.4.2012, a copy of which has been handed over to me by the counsel for the Manager, across the Bar. I notice from the above 22 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 order that the same has been passed after hearing the petitioner as well as the additional seventh respondent and the Manager, pursuant to a direction issued by this Court in W.P.(C) No.21659 of 2008 filed by the petitioner herein. As per the said order, approval to the petitioner's appointment has been rejected and the additional seventh respondent's appointment has been approved. It is not in dispute that, the petitioner has not challenged the said order before any authority. Therefore, it has to be held that the claim of the additional seventh respondent is justified, in the circumstances. In W.P.(C) No.17983 of 2011, the only objection is that, the impugned proceedings, Exts.P3 and Ext.P3(a), are likely to cause prejudice to the service of the petitioner. The said position can be remedied, by issuing appropriate directions to the Educational Authorities. In the result, these writ petitions are ordered as follows:
1. W.P.(C) No.3871 of 2010 is dismissed.
2. W.P(C) 15453 of 2010 is allowed with a direction to the 23 W.P.(C).Nos.3871 & 15453 of 2010 & W.P.(C) No.17983 of 2011 third respondent to grant approval to the appointment of the petitioner from 2.6.2008.
3. W.P.(C) No.17983 of 2011 is disposed of, directing that the impugned orders, Exts.P3 and P3(a), shall not be given effect to in a manner affecting the seniority or other service conditions of the petitioner.
K.SURENDRA MOHAN, JUDGE.
rkc.