MANAGER M M L P SCHOOL Vs. SAJITHA

JUDGEMENT

(1.) These writ appeals, though arise from three writ petitions and relate to two different aided schools, were heard together, accepting the suggestion of the learned counsel appearing for all parties in in that regard, in view of the identity of the questions of law arising for decision. It is pointed out at the Bar that there is conflict on issues of law and also on the approach adopted by the two learned single Judges in appreciating the relevant judicial precedents and applying them while rendering the judgments under appeal.

(2.) This appeal is by the Manager of an aided Upper Primary School and Smt.K.U.Rukiya Beevi, a teacher in that school. Smt.Ishoo Bai M. retired as Headmistress of that school on 31.3.2008. Smt.P.K.Rabiya was appointed as Headmistress with effect from 1.4.2008. She thereafter relinquished her claim as Headmistress on 6.5.2008. The Manager appointed Smt.K.U.Rukiya Beevi as the Headmistress. It is not in dispute that Smt.V.B.Sajitha, who instituted the writ petition from which this appeal arises, is senior to Smt.K.U.Rukiya Beevi. The Assistant Educational Officer refused to approve the appointment of Smt.K.U.Rukiya Beevi as Headmistress as she was junior to Smt.V.B.Sajitha. That decision of the AEO dated 20.5.2008 is Ext.P2 in the writ petition. Manager filed a revision against that decision of the AEO. Going by the revisional order, the Additional Director of Public Instruction had noticed that the reason for the AEO's refusal to approve the appointment of Smt.K.U.Rukiya Beevi was the preferential claim of Smt.V.B.Sajitha on ground of seniority. However, the Addl.DPI, in his wisdom, did not choose to issue notice or afford opportunity of hearing to Smt.V.B.Sajitha in relation to that revision. By that time, it appears that Government had issued a Government Order on 29.9.2008 stating that having examined the matter in detail, Government are "pleased to grant Minority Status" to the educational institution. Addl.DPI's decision comes on 27.1.2009 stating that the approval of appointment of Smt.K.U.Rukiya Beevi as Headmistress with effect from 7.5.2008 onwards deserves consideration in view of the minority status of the establishment. This decision was challenged by Smt.V.B.Sajitha in the writ petition.

(3.) Besides other issues, arguments were advanced before the learned single Judge on the question as to whether the Full Bench decision of this Court in Kurian Lizy v. State of Kerala, 2006 4 KerLT 264 governed the field while the Manager appointed Smt.K.U.Rukiya Beevi with effect from 7.5.2008. The controversy raised was based on the sequencing of the decision of the Hon'ble Supreme Court of India in Secretary, Malankara Syrian Catholic College v. T.Jose & others, 2007 1 SCC 386and the decisions of this Court in Manager, S.S.H.S.School v. Lijin,2007 3 KerLT 663 and M.D.P.S.U.P.School v. Paulose, 2010 2 KerLT 29 . In its nutshell, the issue projected before the learned single Judge was as to whether the declaration of law by the Full Bench in Kurian Lizy stood watered down by the ratio of Secretary, Malankara Syrian Catholic College as noted in Lijin and whether the later declaration of the Full Bench in Paulose overruling Lijin's case saves those appointments made by minority educational institutions between 25.7.2007, the date of pronouncement of Lijin and 18.3.2010, the date on which the Full Bench delivered its decision in Paulose. The learned single Judge found against the argument on behalf of the Manager that all appointments made between the dates of the decisions in Lijin's case and Paulose's case must be deemed to have been done validly. Making reference to the decision of the Supreme Court in Asst. Commissioner, Income Tax, Rajkot v.Saurashtra Kutch Stock Exchange Ltd.,2008 KHC 5282and the decision of this Court in Kerala Agro-Industries Corporation Ltd. v. Amminikutty Amma,1997 KHC 480, the learned single Judge held that in view of the declaration of law in Paulose, the decision of the Full Bench in Kurian Lizy is to be taken as the declaration that continued to run notwithstanding a contrary expression by the Division Bench in Lijin. According to the learned single Judge, that apart, the question has to be decided applying the correct law since the issue relating to the appointment of Smt.K.U.Rukiya Beevi by the Manager was challenged by the petitioner and is live all along. It was held that the Manager had not been able to satisfy the learned single Judge with any material whatsoever that a fair procedure as laid down in Kurian Lizy was adopted before selecting Smt.K.U.Rukiya Beevi for appointment as Headmistress.