PRASEETHA Vs. DEO

JUDGEMENT

(1.) THE petitioner who is a member of a tharwad by name Sooryachira Variam, challenges the action of the first respondent, who is ExOfficio Manager of S.V.S.M.U.P. School, Pudussery, belonging to the said tharwad, in appointing the fourth respondent as U.P.S.A. in the vacancy which arose on account of the retirement of one Mr. P.K. Jayaram senior U.P.S.A. of that school on 31-3-2004, overlooking the claim of the petitioner. The petitioner relies mostly on Ext. P1, which is an order passed by the Munsiff Court, Palakkad, in the final decree application in a suit for partition between the members of the family. According to the petitioner, Ext. P1 has. attained finality and the same binds all the members of the Sooryachira Variam which constitutes the educational agency of the school and are entitled to manage the school. According to the petitioner, under Ext. P1 the school building, compound, the furniture of the school and the right to manage the school is retained as a common property of the members of the family. According to the petitioner, provisions have been made by the court in Para.15 of Ext. P1 regarding the school and she highlights Clause.10 of Para.15 which quoted as follows

(2.) ACCORDING to the petitioner, after Ext. P1 was passed, the Management of the School was being conducted strictly in terms of Para.15 of Ext. P1 till 19-2-1992 when further disputes arose regarding the management of the School. The petitioner submits that in the wake of the disputes, the Government under Ext. P2 order took over the management of the school and the first respondent - D.E.O. was appointed as Ex. Officio Manager for a period of 5 years till such time as the disputes regarding the managership of the school is settled. After the expiry of five years, when the Government noticed that the disputes were not settled, the Government passed Ext. P3 order continuing the appointment of the D.E.O. as Ex. Officio Manager until further orders. According to the petitioner, Ext. P1 order, particularly Clause.10 of Para.15 of Ext. P1 shall bind the D.E.O. the first respondent also. To show that the petitioner is a member of Sooryachira Variam, she relies on Ext. P4 family meeting notice and also on the list of members of Sooryachira Variam prepared by the D.E.O. According to the petitioner, from amongst the members of this family she was the only person who applied for appointment to the vacancy which arose on account of the retirement of Sri. P. K. Jayaram. Ext. P5 is a copy of the application submitted by the petitioner. Respondents 3 and 4 also applied for the same post. But, according to the petitioner, they are not members of the Sooryachira Variam family and she has a preferential claim above respondents 3 and 4 and, therefore, she filed Ext. P6 representation before the first respondent seeking issuance of appointment order. The petitioner conceded that respondents 3 and 4 had earlier worked in the L.P. School of the family in leave vacancies and for that reason they are having claims under R.51A of Chap.14A of K.E.R. But the 51A claims of these respondents, according to the petitioner, can only be for appointment as L.P.S.A. and will never be for appointment as U.P.S.A. When the petitioner noticed that no action was taken on Ext. P6, she issued lawyer notice to the first respondent as Ext. P7. The petitioner's grievance is that overlooking the preferential claim of the petitioner, the first respondent appointed fourth respondent as U.P.S.A. and the 3rd respondent as L.P.S.A. Exts. P8 and P9 respectively are the appointments orders. It is challenging Exts. P8 and P9 on grounds A to D and the writ petition memorandum, the petitioner has filed the writ petition seeking the following reliefs. i) Call for the originals of the records leading to Exhibits P8 and P9. ii) Issue a writ of certiorari or any other appropriate writ, order or direction quashing the originals of Exhibits P8 and P9. iii) Issue a writ of mandamus or any other appropriate writs, orders or directions directing the 1st respondent to appoint the petitioner in the vacancy of U.P.S.A. in the S.V.S.M.U.P. School arising upon the retirement of P.K. Jayaram U.P.S.A. iv) Declare that the petitioner is entitled to preference over respondents 3 and 4 in the matter of appointment to the vacancy of U.P.S.A. in the S.V.M.U.P. School arising on the retirement of P.K. Jayaram and other reliefs.

(3.) THE fifth respondent, Smt. C.V. Sasikalaprabha has produced the appointment order (Ext.R4(a)) issued to her at the time of her appointment as Assistant Teacher in a leave vacancy in the school from 18-6-1997 till 12-9-1997.claiming that the said appointment was approved by the Department. Thereafter, she has produced Exts. R4(b) and R4(c) - further appointments received by her against subsequent leave vacancies in the school. Thereafter, though the fourth respondent was shifted to a regular vacancy which arose due to the death of an incumbent, with effect from 29-11-1999 under Ext. R4(d), there was a division fall in the school and she has been accommodated in a leave vacancy with effect from 15-7-2002. According to her, she was continuing in the very same school and was shifted and appointed to the retirement vacancy of Shri. P.K. Jayaram, Assistant Teacher with effect from 2-6-2004. Ext. P8 is the appointment order so issued to her and the same is issued strictly in accordance with the provisions of the K.E.R. and in terms of the Rules framed as per Ext. P1, it is contended. The 5th respondent has a further claim that she is also a member of the Sooryachira Variam family. It is contended in the counter affidavit that the basic premise on which the writ petition has been filed is that, her claim as a member of the Sooryachira Variam family, has not been considered by the authorities below and the premises is a wrong one. It is further contended that this court in the Judgment in O.P.No.2554/1993 held that the daughter in law of one Krishnan Kutty Warriar, who was the 22nd defendant in Ext. P1, was entitled to get preference in the matter of appointment as per Clause.10 of Para.15 of Ext. Pl. Accordingly, she contends that, since she is the daughter in law of the 21st defendant in Ext. P1, she is also entitled for preferential claims. As regards the request of the petitioner that the vacancy in question should be filled up by appointing the petitioner the 4th respondent contends that under R.43 of Chap.14A of K.E.R. she is entitled for promotion. In this context she relies on the judgment of the Supreme Court in Latha v. State of Kerala (2003 (1) KLT 949). It is pointed out that the present petitioner is a graduate with B.Ed. and, therefore, she cannot claim the post of L.P.S.A. at all.