SAJI JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner challenges the action of the 2nd respondent - Director of VHSC in not granting approval to the petitioner's appointment as Vocational Teacher in Domestic Nursing made as per Ext.P -6 appointment order dated 31.3.2015. The petitioner was initially appointed as Vocational Teacher in the 3rd respondent -School as referred to in Ext.P -3 after following the regular selection procedure prescribed in the Rules for regular selection and appointment of Vocational Teacher and this happened to be in a 5 year leave vacancy. It is not in dispute that the initial appointment was duly approved by the competent among the official respondents as per Ext.P -4. Later, the regular incumbent, who availed leave, to which leave vacancy, the petitioner was appointed as referred to in Ext.P -3, had again extended her leave and the petitioner was again appointed for yet another period of 5 years and the said appointment was also approved as per Ext.P -4. Later, the aforementioned regular teaching incumbent had submitted her resignation and the said resignation was accepted by the 2nd respondent a sper Ext.P -5. Incidentally, it is pertinent to note that there was a dispute regarding the managership of the 3rd respondent -Aided VHSC School and the claim of one faction was upheld by the Division Bench of this Court in Ext.P -1 judgment dated 2.9.2014. The defeated faction took up the management dispute by filing S.L.P before the Apex Court which led to Ext.P -2 order dated 18.9.2014 of the Apex Court in which it was ordered to maintain status quo in the matter. Thereupon, a person who claimed to be the manager had objected to the action of the 3rd respondent -Principal in accepting the resignation of the regular teaching incumbent and this objection was overruled by the 2nd respondent -Director of VHSC as per Ext.P -8 proceedings dated 18.6.2015 and has held that the Government has already issued instructions as per Government Letter No.35626/SCI/10/G.Edn dated 3.7.2010 that such management disputes shall not affect the teachers and students of the school and had directed that the approval of appointment of such Teachers in the schools which are facing management disputes and that the teachers in such school cannot suffer on account of such disputes over managership. Accordingly, the 2nd respondent repelled the contention of the person who claimed to be the manager of the school holding that the acceptance of the resignation of the regular incumbent is valid and proper, otherwise it will affect the teacher and students who are to be taught by an alternate teacher. In the said regular vacancy that has occurred due to the acceptance of resignation of earlier regular incumbent the petitioner was given appointment by the 3rd respondent as per Ext.P -6 dated 31.3.2015 and the same was forwarded to the 2nd respondent -Director for necessary approval so as to enable the petitioner to get the salary. However, the 2nd respondent -Director has not taken any decision on the same due to the pending management dispute and more so, particularly on the fact that the said appointment of the petitioner was not signed by the manager of the school. It is the stand of the petitioner that since there is management dispute there is none who can sign as manager of the school and the Division Bench ruling of this Court in Jayasree v. Director, Higher Secondary Education reported in 2009 (2) KLT 352 in para 6 has clearly held that an Aided Higher Secondary School Teacher, who secured temporary appointment by following the prescribed rules for regular selection and appointment of such teachers are entitled to be absorbed and appointed by importing the principles laid down as discernible from Rule 51A of Chapter XIVA of the KER though Chapter XXXII has not expressly adopted the said provision in Chapter XIVA KER. It is in the light of these facts and circumstances that the petitioner has filed the instant Writ Petition seeking the following prayers:

(2.) The 2nd respondent has filed a counter affidavit dated 10.12.2015 inter alia stating that Ext.P -6 appointment order is not proper inasmuch as it is not signed by the Manager of the School which facing management dispute and that the approval of appointment of the petitioner is pending consideration before the Government and the Government will take a considered decision, etc. There is no dispute by the official respondents in the claim made by the petitioner that she was duly selected and appointed in earlier two 5 year period leave vacancy totalling to 10 years as evident from Exts.P -3 and P -4 and the said appointments were made after following regular selection procedure prescribed in the rules which regulates the manner and method of regular selection and appointment of HSST/VHS Teachers. Therefore, prima facie going by the said averments of the petitioner she has the legal right to be appointed in the regular vacancy going by the legal principles laid down in the case Jayasree v. Director Higher Secondary Education reported in 2009 (2) KLT 352 para 6 which reads as follows:

(3.) Moreover it is even considered by the 2nd respondent - Director in Ext.P -8 that the Government has issued strict instructions as per the Government Letter No.35626/SCI/10/G.Edn dated 3.7.2010 that such managements disputes shall not mar the future of the students and teachers and other staff of the school and that the day to day affairs in the school shall not be affected in view of the dispute of managership of the rival claims in that regard. It is also to be noted in this context, the Apex court has issued Ext.P -2 order dated 17.09.2014 in S.L.P.Nos.25733 -25736/2014 wherein S.L.P. has been admitted and notice has been issued and it is reported therein that the matters could be disposed at the admission stage after service of notice. It is also ordered therein that until the disposal of the S.L.P., status quo as it exists today shall be maintained. Taking into consideration all aspects of the matter, this Court is not inclined to allow the main prayers in the petition for directing the official respondents to grant approval of the appointment of the petitioner as per Ext.P -6. At the same time, prima facie, the petitioner has made out a strong case that preferential right to be appointed as a regular teacher which led to Ext.P -6 appointment order on the basis of the ruling in Jayasree's case (supra) para 6. In that view of the matter, taking into consideration the crucial aspects of the matter that the school is mainly established for the welfare of the students and taking into account the fact that the students require a teacher, it is ordered in the interest of justice that the 2nd respondent will examine the papers and records in connection with Ext.P -6 appointment given in favour of the petitioner as well as looking into the papers in relation to previous approvals granted to her as per Exts.P3 and P -4 and whether the petitioner's case is covered by the ruling of the Division Bench of this Court in Jayasree v. Director of HSE reported in 2009 (2) KLT 352 para 6 and if it is found that the case is otherwise covered by the said ruling, then the 2nd respondent will issue necessary orders to ensure that the petitioner is disbursed the pay and allowances for the post in question for which period she actually worked and she should also continue to get the salary. However, it is made clear that the approval of appointment of the petitioner need not be considered now and the said issue may be deferred until further orders, either till the outcome of Ext.P -2 S.L.P proceedings or until further appropriate orders are obtained in those proceedings. It is made clear that the question of approval may be decided only later as noted hereinabove and directions are issued in this judgment only in relation to the limited issue as to whether the petitioner is entitled atleast for the salary for the period she actually worked as otherwise such teaching incumbents appointed in such schools would have to bear serious injustice and injury. Necessary orders in that regard shall be rendered by the 2nd respondent -Director without much delay. The petitioner is at liberty to file a representation in that regard along with a certified copy of this judgment before the 2nd respondent, within a period of one week from the date of receipt of a copy of this judgment. A decision shall be rendered by the 2nd respondent as directed above, within a period of six weeks from the date of submission of such representation along with a certified copy of this judgment. The petitioner shall also be granted a reasonable opportunity of being heard. With these observations and directions, this Writ Petition (Civil) stands finally disposed of.