MANAGER v. STATE OF KERALA

the senior most teacher Smt.K.P. Ramani expressed her inability to take up the Headmistress post, to meet the administrative exigency, the petitioner was compelled to give charge of Headmistress post to next senior UPSA Smt.P.Rakhi is the submission. The UPSA vacancy which arose consequent on promotion of Smt.Rakhi as Headmistress was filled up by appointing Smt. M.R. Shiny from 02.06.2003. Smt.Shiny availed maternity leave with effect from 18.11.2003 to 31.03.2004. That UPSA leave vacancy was filled up by appointing Smt.Jisha from

18.11.2003 to 31.03.2004. While working in that post, WP(C).No.16409/2015 3 Smt.Jisha left the school on 19.01.2004, consequent on her appointment in Government School. Thus the remaining portion of maternity leave vacancy period of Smt.Shiny was filled up by appointing Smt. Kavitha.L with effect from 22.01.2004 to 31.03.2004. But, it is submitted that, at the instance of Smt.Ramani, the D.P.I, by order dated 21.07.2004 directed the petitioner to appoint Smt.Ramani as Headmistress. Based on that direction, the petitioner passed an order appointing Smt.Ramani as Headmistress with effect from 24.07.2004 is the submission. But the appointment of Jisha, Shiny and Kavitha were not approved by the Educational Authorities. Subsequently they challenged the same before this Court by filing W.P.(C). No.13947/2006. This Court allowed the writ petition by Ext.P2 judgment, quashing those rejection orders, and further directing the 1st respondent to reconsider the matter, as if there were vacancies to accommodate those teachers with effect from 02.06.2003. The 1st respondent again rejected the request for approval WP(C).No.16409/2015 4 of those teachers, stating the very same reason. Therefore, the petitioner filed Contempt of Court Case (Civil) No.1468/2014. While so, the 1st respondent issued a revised order on 21.01.2015 as evident by Ext.P4, directing to approve the appointment of those teachers with effect from 02.06.2003, on condition that, salary to be paid to the Headmistress and teachers from

02.06.2003 to 24.07.2007, has to be recovered from the Manager. This writ petition is filed challenging Ext.P4, to the extent of directing recovery of salary due to those teachers from the Manager and also to approve the appointment of those teachers with effect from

02.06.2003.

2. Heard the learned counsel for the petitioner and the learned Government Pleader.

3. It is an admitted fact that Ext.P2 judgment became final. Ext.P2 is filed by the petitioner herein and the teachers namely, Shiny, Jisha and Kavitha. That writ petition was disposed of with following directions: WP(C).No.16409/2015 5 “5. Admittedly, the vacancy of Headmaster arose on 01.05.2003. The Manager was duty bound to appoint either Rakhi or Remani to the post of Headmistress with effect from 01.05.2003. Mistakenly, the Manager appointed Rakhi, which was not approved. But, when Remani's appointment was approved, that should have been with effect from

01.05.2003, since the vacancy arose with effect from that date. Therefore if the eligible person was appointed as Headmistress on the date when the vacancy arose, certainly there would have been a vacancy for the 2 nd petitioner. That being so, because of mistakes of somebody else in not appointing the eligible person, the petitioners 2 to 4 should not suffer. If the Manager had done everything correctly, the vacancy of Headmistress would have been filled up with effect from

02.05.2003 and consequently, there would have been a vacancy for accommodating the second petitioner with effect from 02.05.2003 and therefore, the appointment of 2 nd petitioner with effect from 02.06.2003 could not have been faulted.

6. In the above circumstances, I am of opinion that the Government should take a fresh look into the whole aspect in accordance with the findings entered herein above. For that purpose, Ext.P2 to P5, P7,P8,P10 and P11 are hereby quashed. The first respondent is directed to WP(C).No.16409/2015 6 reconsider the entire issue in accordance with the above findings and pass a fresh order as expeditiously as possible at any rate within three months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. Orders as directed above shall be passed along with revision petition filed by the Manager against the order of the Director, Public Instructions. No.G2/56474/2004/DPI/KDis. dated 12.07.2004, after hearing all parties concerned.”

4. Based on Ext.P2, Ext.P3 order was passed originally by the Government. Subsequently, when the contempt case was filed, Ext.P4 order was passed. In Ext.P4 it is stated that there was laxity on the part of the Manager that led to the creation of the situation and hence there were irregular appointment to the Post of HM for the period from 01.05.2003 to 23.07.2004. Therefore, the Assistant Educational Officer was directed to approve the appointment of the teachers from 02.06.2003 to

23.07.2004 subject to the condition that the loss sustained by the State exchequer in this regard from 02.06.2003 to WP(C).No.16409/2015 7

23.07.2004 is to be recovered from the Manager by invoking the provisions under Rule 7 Chapter III KER. But the irregular appointment was aware to this Court when Ext.P2 judgment was delivered. In Ext.P2, there was no direction to take steps to recover the amount from the Manager. Admittedly Ext.P2 became final. If that be the case, the Government cannot pass an order like Ext.P4 directing recovery from the Manager for the loss sustained by the State exchequer from 02.06.2003 to 23.07.2004. When this Court, as per Ext.P2 judgment, in effect condoned the mistake of the Manager, who is the 1 st petitioner in that writ petition, the Government cannot pass an order beyond the directions issued in Ext.P2 judgment. Therefore, I am of the considered opinion that the writ petition is to be allowed. Therefore, this writ petition is allowed with following directions:

2. Ext.P3 is quashed. Ext.P4 is quashed to the extent of WP(C).No.16409/2015 8 directing to recover the salary due to the teachers and Headmistress for the period from 02.06.2003 to

24.07.2004 from the Manager/ petitioner by invoking the provisions under Rule 7 Chapter III KER. JV sd/- P.V.KUNHIKRISHNAN JUDGE WP(C).No.16409/2015 9 APPENDIX OF WP(C) 16409/2015 PETITIONER EXHIBITS EXHIBIT-P1-TRUE COPY OF THE ORDER BEARINGNOL 47182/B1/05/G.EDN. DATED 28/10/2005 ISSUED BY THE IST RESPONDENT. EXHIBIT-P2-TRUE COPY OF THE JUDGMENT DATED 07/06/2013 IN W.P(C) 13947/2006 EXHIBIT-P3-TRUE COPY OF THE ORDER BEARING G.O(RT) NO. 4638/2013/G.EDN. DAQTED 01/11/2013 ISSUED BY THE IST RESPONDENT. EXHIBIT-P4-TRUE COPY OF THE ORDER BEARING G.O(RT) 320/2015/G.EDN.D ATED 21/01/2015 ISSUED BY THE IST RESPONDENT.