K.K. PRABHAKARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner in O. P. No. 684 of 1980 is a High School Assistant who has got qualified service in schools under the SNDP Yogam Corporate Management from 10-6-1957. The SNDP High School, Adimali was taken over by the SNDP Yogam Corporate Management with effect from 4-2-1976. In 1973 the post of Headmaster of the SNDP High School, Adimali fell vacant. The 5th respondent, who was working as a High School Assistant in another school, applied for the post. He was appointed on inter management transfer. The petitioner's case is that he also applied for the post and that he was fully qualified for the post of Headmaster of a High School at that time. The 3rd respondent District Educational Officer, Idikki 'provisionally approved' the appointment of the 5th respondent as Headmaster. The 5th respondent was working as a High School Assistant from 1962. He passed B. Ed. in 1965. He was test qualified at the time of the inter management transfer. The 3rd respondent District Educational Officer later cancelled the provisional approval of the appointment of the 5th respondent. The 5th respondent challenged that order in O. P. No. 190 of 1976. By an interim order this Court allowed the 5th respondent to continue in the service of the school though hot as a Headmaster. The then Manager of the SNDP High School, Adimali filed an appeal against the cancellation order of the D. E. O. before the 2nd respondent Director of Public Instruction. The 2nd respondent Director of Public Instruction allowed the 5th respondent to continue as teacher in charge till he completed 12 years of service. Subsequently the Government cancelled that order. This was challenged by the 5th respondent in O. P. No. 2620 of 1976. Both the original petitions were disposed of by this Court on 4-2-1977 with a direction to the Government to pass fresh orders. Before this, the school was taken over by the SNDP Yogam Corporate Management on 4-2-1976. In pursuance of the direction of this Court the Government passed an order on 30-6-1977 directing the approval of the 5th respondent as under qualified Headmaster with effect from 14-7-1975 and as a qualified Headmaster from the date when he completed 12 years of graduate service. The petitioner challenged the above order before this Court in OP No. 3517 of 1977. This Court by Ext. P1 judgment dated 23-10-1978 set aside that order with a direction to the Government to pass fresh orders with notice to all interested parties. The 5th respondent challenged Ext. P1 judgment in a writ appeal. The writ appeal was dismissed. It was thereafter that the 1st respondent State passed Ext. P2 order impugned in this original petition directing the approval of the appointment of the 5th respondent as teacher in charge till he completed 12 years of graduate service and thereafter as Headmaster in relaxation of the rules in exercise of their powers under R.3 Chap.1 of the K. E. R. The petitioner challenges the above order Ext. P2 in this original petition.

(2.) A counter affidavit has been filed on behalf of the first respondent State. In the counter affidavit it is stated. The inter management transfer of the 5th respondent was allowed by the 3rd respondent District Educational Officer after obtaining a declaration from him to the effect that he would not raise any complaint in the event of the transfer and posting being found untenable and if he is ordered to be relieved. The transfer was provisionally approved at the risk of the teacher. The petitioner has got service from 18-6-1957. The declaration submitted by the 5th respondent cannot be said to be valid since there is no provision to approve the appointment of an aided school ' teacher after obtaining such a declaration. If the 5th respondent is retained as an H. S. A., in the SNDP Yogam High School from 14-7-1975 another High School Assistant will have to be retrenched from service and that will cause undue hardship to that teacher. In this case, the Government exercised the powers vested in them under R.3 Chap.1, K. E. R. The petitioner had no preferential claim over the 5th respondent on 14-7-1975.

(3.) The 5th respondent has also filed a counter affidavit. Along with the counter affidavit Exts. R1 to R4 were also produced. In the counter affidavit it is stated: Ext. P 2 order is not at all liable to be quashed by this Court on any of the grounds raised by the petitioner. Even today the petitioner has not acquired the Account Test qualification. By Ext. R1 order dated 3-7-1975 the 3rd respondent D. E. O, accorded sanction for the 5th respondent's appointment as Headmaster on a provisional basis and on 14-7-1975 the 5th respondent joined duty in pursuance of Ext. R1. The 5th respondent's appointment was 'rejected with effect from the date of joining the post' by the 3rd respondent D. E. O. as per Ext. R2 order dated 18-12-1975. O. P. No. 190 and 2620 of 1976 were disposed of by this Court by Ext. R3 judgment dated 4-2-1977 and it was in pursuance of the directions in Ext. R3 judgment that the 1st respondent State issued proceedings dated 30-6-1977 approving the appointment of the 5th respondent as an under qualified Headmaster in relaxation of the rules. That order was challenged by the petitioner in O. P. No. 3517 of 1977 and this Court by Ext. P1 judgment set aside that order and directed the 1st respondent to consider the matter afresh and pass orders. The 5th respondent also submitted Ext. R4 representation before the first respondent. It was thereafter that the impugned order Ext. P2 was passed by the 1st respondent. On 4-2-1976 when the Adimali High School merged with the S. N. D. P. Yogam Corporate Management the petitioner was not at all qualified for being considered as Headmaster of the school.