P. G. MADHAVAN Vs. P. K. SANTHAKUMARI AMMA

JUDGEMENT

(1.) This Writ Appeal is by the third respondent in O. P. No. 7370 of 1993 filed by the first respondent herein as the petitioner.

(2.) The essential facts of the case necessary for arriving at a decision are thus; Two aided schools, one a High School without any primary section attached to it and another, an Upper Primary School, were established by one Shri Govindan. While the Upper Primary School was established in 1931, the High School was established in 1948. Admittedly the two Schools were managed by Govindan till his death. After the death of Govindan ownership of the Schools with all their assets stood vested in his widow Gowri and children including the appellant in this appeal. On the basis of a registered agreement entered into between all the coowners dated 20-7-1966 Gowri became the Manager of both the Schools. While so, the first respondent was appointed as an upper Primary School Assistant in the U.P. School on 22-8-1973. Even at the time of appointment first respondent was admittedly qualified to be appointed as HSA (Natural Science). Later first respondent was thrown out of the School due to fall in division and was working as a protected teacher in other Government Schools during the period from 1-6-1980 to 24-11-1991. On 25-11-1991 she rejoined service in the U.P. School in question from where she was thrown out of service. Meanwhile as per proceedings of the Director of Public Instruction, Trivandrum dated 16-5-1984 the management and ownership right in respect of the U.P. School with all its assets as a going concern was permitted to be changed in favour of Smt. Anitha Vasanth, grand daughter of Smt. Gowri after complying with all the requirements of R.5A of Chap.3 of the Kerala Education Rules (for short "the KER"). Ext. R4(c) is the copy of the order of the DPI sanctioning change of management with change of ownership as well. It is relevant to note that at the time of change of management Gowri has produced a consent statement with the signature of all the then teaching and non teaching staff members of the U.P. School. First respondent was at the relevant time not a member of the staff of the U.P. School since she was working in other schools as a protected teacher. She was not a signatory to the consent statement also. But obviously on the basis of a representation made by the first respondent to the authorities to take appropriate action to preserve her right to be appointed in a vacancy of HSA (Natural Science) in the High School under the management of Gowri, the authorities seems to have insisted and obtained before sanctioning the change of management, a document in writing styled as an 'affidavit' wherein Gowri has stated as follows:

(3.) After referring in detail to the pleadings, evidence in the case and the respective contentions put forward by the learned counsel for the parties, the learned Single Judge has allowed the O. P. considering mainly two important, aspects of the case. The first aspect considered was whether the High School and the U. P. School are under the same educational agency. On this aspect the learned Judge found that the educational agency for both the institutions is the same. Such a conclusion was reached mainly relying upon Ext. P11 judgment in O. P. No. 305 of 1976 dated 30-5-1978 and on the basis of the files' produced in the case on behalf of respondents 1 and 2, in the O. P. The second aspect considered by the learned Judge was whether the first respondent was having a right to be appointed as HSA (Natural Science) in the High School even assuming that the U. P. School is under a different educational agency. On the above aspect also the decision taken by the learned Judge was in favour of the first respondent. It was found relying upon the decision reported in Rajendran v. State of Kerala ( 1993 (1) KLT 893 ) that the first respondent has a right to be appointed as HSA (Natural Science) in the High School under the management of the appellant in the retirement vacancy which arose on 31-3-1993. In coming to such a conclusion strong reliance was placed on Ext. P2 undertaking given by Gowri who was acting as the Manager of the two schools at the time when the undertaking was given and the U.P. School was transferred to her, grand daughter, Anitha Vasanth, Learned Judge held that the appellant, present Manager, is bound by the said undertaking and there is nothing in the KER in the decision reported in John v. Director of Public Instruction ILR 1975 (2) Ker. 604 which was strongly relied upon by the learned counsel for the appellant before the learned Judge which would militate against, insisting on the successor Manager honouring the commitment made by his mother Gowri when she sought the transfer of management of the U.P. School in favour of Anitha Vasanth. Ultimately the learned Judge concluded by observing that in the face of Ext. P2 and the benefit derived thereby Gowri by being enabled to transfer the management of the U.P. School to Anitha Vasanth I am of the view that Gowri and her successors including the present Manager are bound by the undertaking contained in Ext. P2. In this view of the matter the learned Judge held that first respondent is entitled to be appointed as. HSA (Natural Science) in the High School against the vacancy that arose on 31-3-1993. The learned Judge accordingly granted a declaration to that effect in favour of the first respondent as per the impugned judgment.