Nayana.M vs State Of Kerala

Kerala High Court

Nayana.M vs State Of Kerala on 21 May, 2024

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
          THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                      WP(C) NO. 15164 OF 2024
PETITIONER/S:

           NAYANA.M
           AGED 26 YEARS
           W/O SURJITH. N.P, MANGHAT HOUSE, PANDAMANGALAM
           KOTTAKKAL P.O MALAPPURAM NOW WORKING AS LPST CUPS,
           CHEMBRA CHEMBRA P.O, PALAKKAD, PIN - 679304

           BY ADV U.BALAGANGADHARAN



RESPONDENT/S:

      1      STATE OF KERALA
             THE SECRETARY TO GOVERNMENT GENERAL EDUCATION
             DEPARTMENT, GOVERNMENT SECRETARIAT (ANNEX)
             THIRUVANANTHAPURAM PIN 695001., PIN - 695001

      2      DIRECTOR OF GENERAL EDUCATION
             JAGATHY, THIRUVANANTHAPURAM, PIN - 695014

      3      DEPUTY DIRECTOR OF EDUCATION
             CIVIL STATION , ROBINSON ROAD PALAKKAD, PIN -
             678001

      4      ASSISTANT EDUCATIONAL OFFICER
             PATTAMBI, PALAKKAD, PIN - 679303

      5      EX-OFFICIO MANAGER & ASSISTANT EDUCATIONAL OFFICER
             CUP SCHOOL, CHEMPRA PATTAMBI, PALAKKAD., PIN -
             679304


OTHER PRESENT:

           ADV SAROJINI K G -GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   21.05.2024,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.C No. 15164 of 2024

                                       2

                               JUDGMENT

The petitioner was appointed as LPST in the 5th respondent school with effect from 01.06.2022. Ext.P1 is the appointment order issued by the Manager named C.Krishnadasan. The appointment of the Manager was approved as per Ext.P4, which is dated 28.11.2019. However, there were some disputes with regard to the management of the school which ultimately culminated in Ext.P8 order passed by the Government wherein, the appointment of the said Krishnadasan as the Manager was set aside. The said order was passed on 12.11.2023. The grievance of the petitioner is that, consequent to the rejection of approval of the said Krishnadasan as the Manager, the approval of the appointment of the petitioner is being denied, as the Ext.P1 appointment order was issued by the said Krishnadasan. The writ petition was submitted by the petitioner in such circumstances seeking the following reliefs.

"1. Issue writ in the nature of mandamus commanding the 4th respondent to approve the appointment of the petitioner as LPST from 01.6.2022 with all consequential benefits including pay and allowances.

2. Declare that the appointment of the petitioner is liable to be W.P.C No. 15164 of 2024 3 approved as LPST from 01.6.2022 with all consequential benefits including pay and allowances.

3. Such other reliefs that the Hon'ble Court deem fit and proper in the facts and circumstances of the case.

4. Dispense with the production of English Translation of Vernacular documents produced as Exhibits in this Writ Petition."

2. Heard, Sri.Balagangadharan, the learned counsel for the petitioner and Smt. Sri.Sarojini K.G the learned Government Pleader.

3. The specif contention raised by the learned counsel for the petitioner is that, as on the date of issuance of Ext.P1 appointment order, the said Krishnadasan was duly appointed as the Manager as his appointment stood approved by virtue of Ext.P4 order passed by the competent authority. The said approval of the appointment of the said Krishnadasan was set aside only as per Ext.P8 which is dated 12.11.2023. Therefore, the learned counsel contends that, in the light of the defacto doctrine, Ext.P1 has to be treated as a document which was issued by a competent person in this regard. Reliance was also placed on by a Division Bench of this Court in Manager, W.P.C No. 15164 of 2024 4 St.Mary's H.S v. Beji Abraham [2002 (1) KLT 406].

4. After considering all the relevant aspects and hearing the learned counsel for the petitioner as well as the learned Government Pleader, I find some force in the contention put forward by the learned counsel for the petitioner. It is to be noted that, there cannot be any doubt as to the competence of the Manager, to issue Ext.P1 appointment order, as on 01.06.2022 as he was duly appointed as Manager. As rightly pointed out by the learned counsel for the petitioner in Beji Abraham's, the Division Bench of this Court considered a similar situation, and the following observations were made:

"De facto doctrine saves the acts of the officers de facto performed within the scope of their assumed official authority. Whatever defects there may be in the nature of their appointment it is based upon the principle of public policy and necessity. Such a doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual whose interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. Aforementioned doctrine was applied by a Full Bench of this Court in P.S.Menon v. State of Kerala (AIR 1970 Kerala 165) and held as follows. "The doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers W.P.C No. 15164 of 2024 5 are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid."

In the light of the legal opposition set out by the Division Bench of this Court, the petitioner is entitled to be protected with reference to the appointment as evidenced by Ext.P1. However, since the decision on Ext.P1 has not been so far taken by the 4 th respondent, it is only proper that a decision in this regard be taken as expeditiously as possible irrespective of the fact that by virtue of Ext.P8, the appointment of the Manager who issued Ext.P1 was set aside. Accordingly, the 4 th respondent is directed to take a decision on Ext.P5, in the light of the observations made in this judgment and also the observations made by this Court in Beji Abraham's case (supra) by treating Ext.P1 as the one issued by a competent person. A decision in this regard shall be taken within a period of one month from the date of receipt of a copy of this judgment after hearing the petitioner and the affected parties.

Sd/-

ZIYAD RAHMAN A.A. JUDGE rpk W.P.C No. 15164 of 2024 6 APPENDIX OF WP(C) 15164/2024 PETITIONER EXHIBITS Exhibit P 1 A TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT DATED 01.6.2022 Exhibit P 2 A TRUE COPY OF THE CERTIFICATE IN DIPLOMA IN ELEMENTARY EDUCATION ISSUED TO THE PETITIONER BY THE GENERAL EDUCATION DEPARTMENT DATED 24.6.2022 Exhibit P 3 A TRUE COPY OF THE K TET CERTIFICATE ISSUED TO THE PETITIONER BY THE GENERAL EDUCATION DEPARTMENT DATED 17.3.2021 Exhibit P 4 A TRUE COPY OF THE ORDER NO.K.DIS./C/1091/2018 DATED 28.11.2019 ISSUED BY THE 4TH RESPONDENT Exhibit P 5 A TRUE COPY OF THE ORDER NO.C/29222/2022 DATED 26.12.2023 ISSUED BY THE 4TH RESPONDENT Exhibit P 6 A TRUE COPY OF THE CIRCULAR DATED 03.2.2024 OF THE 2ND RESPONDENT Exhibit P 7 A TRUE COPY OF THE JUDGEMENT DATED 12.10.2023 IN WA 1218/2023 Exhibit P 8 A TRUE COPY OF THE G.O. [RT ] NO.7012/2023/GEDN DATED 12.11.2023 Exhibit P 9 A TRUE COPY OF THE G.O.[ RT] NO.

7289/2023/GEDN DATED 20.11.2023 Exhibit P 10 A TRUE COPY OF THE ORDER OF HON'BLE APPEX COURT IN SLP 28204-28205/2023 DATED 03.01.2024