HARILAL J. Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) THIS writ petition is filed by the petitioner who was originally appointed as an Upper Primary School Assistant (hereinafter referred to as "UPSA" for short) with effect from 1.6.1999. His appointment was also approved by the respondents. While the petitioner was continuing in service one Sri. N. Balakrishanan HSA (Malayalam) retired from service on 31.5.2006. The petitioner being the senior most qualified UPSA was promoted to the resultant vacancy with effect from 5.6.2006, as per Ext. P1 order. The petitioner thereupon took charge as HSA and has been working as such, ever since. The petitioner's complaint is that, though he was promoted as HSA, his appointment was not approved by the educational authorities. The petitioner's appointment was not approved for the reason that, one Sri. K. Sidharthan who was the approved Manager at that time, was not a validly appointed Manager of the School. His appointment was found to be invalid by the Munsiff's Court, Karunagappalli in its judgment dated 28.2.2007 in O.S. No. 354 of 2005. The approval to the petitioner's appointment was rejected according to him only on 4.6.2007, after the lapse of one year. Aggrieved by the rejection of the approval, the petitioner had filed a revision before the second respondent. However, the said revision was also rejected. Thereafter, the petitioner approached the Government by preferring a revision petition which was also rejected by Ext. P4.

(2.) IN Ext. P4, it has been stated that the petitioner had stated that he was withdrawing the revision petition and that he would not claim salary from 5.6.2006 to 31.5.2007. However, according to the petitioner, he had made the statement under a mistaken impression that, the infirmity in the appointment of the Manager, who had appointed him, would invalidate his appointment. In view of the fact that, his appointment was protected by the defacto doctrine accepted by this Court as well as the Supreme Court, it is contended that it is just and necessary that his appointment is approved with effect from 5.6.2006. A counter affidavit has been filed by the fifth respondent contesting the statements made by the petitioner. According to Sri. A.N. Rajan Babu who appears for the fifth respondent, since Sri. K. Sidharthan was a usurper, as held by the Munsiff's Court in the judgment in O.S. No. 354 of 2005, which is produced as Ext. R5(d), the appointments made by the said person can have no legal sanctity or validity. Therefore, the promotion granted to the petitioner has been rightly rejected by the educational authorities. Thereafter, the petitioner had forgone his claim before the Director of Public Instruction and had accepted his promotion from a subsequent date. Therefore it is contended, that the petitioner is not entitled to any further relief.

(3.) ACCORDING to the counsel for the petitioner, Sri. M.V. Thampan, there is no dispute regarding the fact that, the vacancy to which the petitioner was promoted, was established on 5.6.2006. The petitioner was a claimant under rule 43 of Chapter XIV A of the Kerala Education Rules. There was no other person staking a claim to his promotion. Therefore, his promotion could only be described as the conferring of a service benefit that was legitimately due to a teacher who was already working in the School. The fact that the promotion was given by the Manager, who was found later to have been incompetent to be the Manager cannot affect the claim of the petitioner. Reliance is placed on the decision of a Division Bench of this Court in Padmanabhan Nambiar v. Government of Kerala, (1997 (2) KLT 725) to contend that such actions are legitimised by the defacto doctrine.