HENRY GOMEZ Vs. GOVT OF KERALA

JUDGEMENT

(1.) Writ Appeals 222/93 and 376/93 arise out of O.P.No.6999/88. Petitioner in the O.P. is the appellant in Writ Appeal No.222/93. Respondents 5 and 6 therein namely the Manager of the School and the teacher who was appointed by the Manager as the Headmaster are the appellants in Writ Appeal No. 376/93. The Manager and its appointee, Headmaster, filed O.P.No.6787/88. In that O.P., the petitioner in O.P. 6999 of 1988 was the third respondent. This original petition was disposed of by the learned Judge along with O.P.No.6999/88 by a common judgment. Petitioners in O.P.6787/88 have preferred Writ Appeal No.288/93 and the third respondent Writ Appeal 258/93. Since same issues arise in these appeals arising out of two original petitions disposed of jointly, we consider it advantageous to dispose of these appeals by a common judgment.

(2.) The short facts necessary for the disposal of these appeals are as follows: The post of Headmaster in St. Joseph's High School, Trivandrum became vacant with effect from 2-5-87. The management appointed Fr.Ephrem Thomas as the Headmaster. He was not qualified to be appointed as Headmaster of the school on 2-5-87. Sri. Henry Gomez, a High School Assistant working in the school, was the seniormost teacher in the school qualified to be appointed as Headmaster. Appointment of Fr. Ephrem Thomas was not approved by the District Educational Officer. Against this order, the management and Fr. Ephrem Thomas went in appeal before the Deputy Director of Education. By order dated 2-2-88, that appeal was dismissed. The issue was taken up in second appeal before the Director of Public Instruction. While the appeal was pending, Fr.Ephrem became qualified with effect from 4-6-87 for being appointed as Headmaster. Taking note of this fact, the Director by order dated 23-5-88, allowed the second appeal and ordered the District Educational Officer to approve the appointment of Fr.Ephrem Thomas with effect from the date on which he became qualified for promotion to the post of Headmaster. Management thereupon issued an appointment order in favour of Fr.Ephrem Thomas posting him as Headmaster with effect from 4-6-87. Consequently the District Educational Officer approved the appointment of Fr.Ephrem Thomas as Headmaster with effect from 4-6-87. Aggrieved by the said developments, Sri.Henry Gomez preferred a revision petition before the Government questioning the appointment of Fr.Ephrem Thomas as Headmaster and the approval granted to him with effect from 4-6-87. During the pendency of that revision petition, Sri.Henry Gomez retired from the service on superannuation on 14-7-88. The revision petition was disposed of by Government by G.O.(MS)No. 129/88/G.Edn. dated 12-8-88 holding that Sri.Henry Gomez will be deemed to have been promoted as Headmaster with effect from 2-5-87, that he will not be entitled to Headmaster's pay and that his pension will be fixed as if he had been paid as Headmaster between 2-5-87 and 14-7-88. It was further ordered that Sri.Henry Gomez will not be eligible to claim that he should continue as Headmaster till the close of the academic year 1988-89 in order to avoid disruption in the middle of the year that may be caused because of his re-induction in the middle of the academic year. Henry Gomez questioned this order of the Government by filing O.P.6999/88 on the ground that he was entitled to be paid the arrears of salary for the period for which he has been found entitled to hold the post of Headmaster. Since the appointment of Fr .Ephrem Thomas with effect from 4-6-87 was interfered with by the Government, the management and Fr .Ephrem Thomas approached this court by filing O.P.No.6787/88.

(3.) While disposing of the original petitions by a common judgment, the learned single Judge took the view that Government was wrong in appointing Sri.Henry Gomez as Headmaster of the school with effect from 2-5-87 because it is the privilege of the management which is entitled to the protection under Art.30(1) of the Constitution of India. Management was thereupon directed to appoint Headmaster as on 2-5-87 from among the teachers who were then qualified to hold the post. While doing so, it was ordered that the management should consider the claims of Sri.Henry Gomez for the post. This decision is under challenge in these appeals.