P.K.Nalini vs P.K.Gopi @ K.Gopi
2021 Latest Caselaw 17636 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
           Friday, the 27th day of August 2021 / 5th Bhadra, 1943
                     IA.NO.3/2021 IN RSA NO. 7 OF 2015

               AS 82/2008 OF PRINCIPAL SUB COURT,THALASSERY

             OS.323/2005 OF THE MUNSIFF COURT, KUTHUPARAMBA.

PETITIONER/APPELLANT:

     P.K.NALINI,KUTTIKATTIL, KUTHUPARAMBA AMSOM, MOORIYAD DESOM, KANNUR
     DISTRICT.

RESPONDENTS/RESPONDENTS:

  1. THE ASSISTANT EDUCATIONAL OFFICER, KUTHUPARAMBA P.O., KANNUR
     DISTRICT-670 643..
  2. THE DISTRICT EDUCATIONAL OFFICER ,THALASSERY, KANNUR DISTRICT-670
     101.
  3. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM-695001.
  4. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695001
  5. STATE OF KERALA ,REPRESENTED BY DISTRICT COLLECTOR, KANNUR-670001.
  6. SARASWATHI, W/O.LATE P.K.GOPI @ K.GOPI, ARUN NIVAS, KUTHUPARAMBA,
     MOORIYAD DESOM, P.O.MOORIYAD, THALASSERY TALUK, KANNUR
     DISTRICT-670643
  7. SAJITHA, D/O.LATE P.K.GOPI @ K.GOPI, ARUN NIVAS, KUTHUPARAMBA,
     MOORIYAD DESOM, P.O.MOORIYAD, THALASSERY TALUK, KANNUR
     DISTRICT-670643
  8. SAJILA, D/O.LATE P.K.GOPI @ K.GOPI, ARUN NIVAS, KUTHUPARAMBA,
     MOORIYAD DESOM, P.O.MOORIYAD, THALASSERY TALUK, KANNUR DISTRICT.
  9. ARUN, S/O.LATE P.K.GOPI @ K.GOPI, ARUN NIVAS, KUTHUPARAMBA, MOORIYAD
     DESOM, P.O.MOORIYAD, THALASSERY TALUK, KANNUR DISTRICT-670643
 10. (ADDITIONAL RESPONDENTS R11 TO R16 IN RSA SOUGHT TO BE
     IMPLEADED)P.K.LAKSHMI, AGED 81 YEARS, D/O.KORAN GURUKKAL,
     KUTHUPARAMBA AMSOM,MOORIYAD DESOM, KOOTHUPARAMBA P.O., THALASSERY
     TALUK, KANNUR DISTRICT-670 643.
 11. P.K.SARADA,AGED 76 YEARS, D/O.KORAN GURUKKAL, PALAYULLATHIL
     HOUSE,KUTHUPARAMBA AMSOM,MOORIYAD DESOM, KOOTHUPARAMBA P.O.,
     THALASSERY TALUK, KANNUR DISTRICT-670 643.
 12. P.K.RADHAM, D/O.KORAN GURUKKAL, KUTHUPARAMBA AMSOM,MOORIYAD DESOM,
     KOOTHUPARAMBA P.O., THALASSERY TALUK, KANNUR DISTRICT-670 643.
 13. P.K.NARAYANI, D/O.KORAN GURUKKAL, PRANAVAM HOUSE, KUTHUPARAMBA
     AMSOM,MOORIYAD DESOM, KOOTHUPARAMBA P.O., THALASSERY TALUK, KANNUR
     DISTRICT-670 643.
 14. P.K.PADMANABHAN, D/O.KORAN GURUKKAL, BHAVYA NIVAS, KUTHUPARAMBA
     AMSOM,MOORIYAD DESOM, KOOTHUPARAMBA P.O., THALASSERY TALUK, KANNUR
     DISTRICT-670 643.
 15. P.K.PADMINI, D/O.KORAN GURUKKAL, KUTHUPARAMBA AMSOM,MOORIYAD DESOM,
     KOOTHUPARAMBA P.O., THALASSERY TALUK, KANNUR DISTRICT-670643.
      Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to pass an order to
clarify the order dated 19.10.2020 in IA.No.5/2020 in the above Appeal, to
the effect of permitting the petitioner/appellant to make permanent
appointments, in the four permanent vacancies arose on account of the
retirement.
     This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI.S.SREEKUMAR, Senior Advocate along with SMT.MINI.V.A.,
SRI.C.P.PEETHAMBARAN, Advocates for the petitioner and of SRI.G.SREEKUMAR
(CHELUR),Advocate for respondent R6 in IA (R7 in RSA), SRI.M.P.PRABHAKARAN
(PALAKKAD), Advocate for respondents R6 to R9 in IA (R7 to R10 in RSA),
SRI.K.V.PAVITHRAN, M.P.JAYANADAN,Advocates for the respondents R10 to R15
in IA (Addl R11 to R16 in RSA) the court passed the following:
                       N.ANIL KUMAR,J.
                 ------------------------------
       I.A.NO.3 OF 2021 IN RSA NO.7/2015
            -------------------------------
       Dated this the 27th day of August,2021

                             ORDER

This is an application seeking

clarification of the order dated 19.10.2020

in I.A.No.5/2020 in the above appeal to the

effect of permitting the petitioner/appellant

to make permanent appointments in the four

vacancies arose on account of the retirement.

2. The sum and substance of the

application is to make permanent appointments

in the four permanent vacancies arose on

account of the retirement at the Mooriyad

Central U.P.School. The plaint schedule

property is a school building of Mooriyad

Central U.P.School and its right of

management.

I.A.NO.3 OF 2021 IN RSA NO.7/2015

..2..

3. The appellant herein is the appellant

in A.S.No.82/2008 on the file of Sub Court,

Thalassery and the first defendant in O.S.No.

323/2005 on the file of the Munsiff's Court,

Kuthuparamba. The suit was decreed in favour

of the plaintiff declaring that the right of

management of the Mooriyad Central Upper

Primary School as per the registered Will

dated 15.4.1955 executed by deceased Koran

Gurukkal is vested with the plaintiff on the

death of Bachi @ Janaki and that the first

defendant has no authority as per the

provisions contained in the Will regarding

management of the said school continuing in

the post as the Manager of the school from the

date of death of Kottayi Bachi @ Janaki and

defendants 2 to 6 are further directed to I.A.NO.3 OF 2021 IN RSA NO.7/2015

..3..

approve plaintiff as the Manager of the said

school after de-approving the transfer of

management of the school in favour of the

first defendant. The judgment and decree was

carried in appeal by the first defendant. The

appeal was dismissed confirming the judgment

and decree of the trial court. Hence, this

second appeal has been preferred.

4. The above appeal has been admitted by

this Court on 12.8.2015 and an interim order

was passed staying the operation of the

appellate decree as well as the decree of the

trial court. While granting interim order,

this Court directed that no new appointment

shall be made in the school in question

without the prior permission of this Court.

Subsequently, by order in I.A.No.1387/2016 I.A.NO.3 OF 2021 IN RSA NO.7/2015

..4..

dated 8.7.2016, the appellant was permitted to

make appointment of teachers subject to the

provisions contained in the KER. Later,

I.A.No.5/2020 was filed seeking to make

further appointments to the existing

vacancies. By order dated 19.10.2020, this

Court permitted the appellant to make

appointment to the existing vacancies

provisionally.

5. Heard Sri.S.Sreekumar, the learned

Senior counsel appearing for the petitioner/

appellant and Sri.Sreekumar(Chelur) for the

contesting respondents.

6. Learned Senior counsel submitted that

all the vacancies are in the permanent vacancy

and have to be approved by the first

respondent. It was further submitted that I.A.NO.3 OF 2021 IN RSA NO.7/2015

..5..

there are no provisions in the Kerala

Education Act and Rules framed thereunder to

make appointments provisionally. Hence, the

learned Senior counsel for the petitioner/

appellant submitted that an opportunity may be

given to appoint suitable persons in the

existing four vacancies as permanent

vacancies.

7. It has come out in evidence that both

the trial court and the first appellate court

concurrently held against the appellant/first

defendant. It is true that the appeal was

admitted and stay was granted. The subject

matter is an aided school where it is no doubt

that vacancies are filled up after receiving

donations from the appointees. Selection

process was not done on merits. It is purely I.A.NO.3 OF 2021 IN RSA NO.7/2015

..6..

within the discretion of the Manager to

appoint suitable persons as teachers in the

school.

8. In view of the fact that the trial

court and the appellate court concurrently

held against the petitioner/the appellant, it

is not just and proper to give him a blanket

order to appoint requisite candidates as

teachers in the permanent cadre. It is

submitted that unless permanency is given,

they cannot be appointed. The learned

Government Pleader, on instructions, also

submits that it is not within the realm of the

educational authorities to appoint the

teachers temporarily. However, the right of

the first defendant to continue as the Manager

of the school is under challenge. I.A.NO.3 OF 2021 IN RSA NO.7/2015

..7..

9. The subject matter is pending before

this Court. Under the circumstances, it is

not just and proper to fill up the vacancies

permanently. The petitioner is permitted to

make appointments subject to the rider that

the appointments, if any, made during the

pendency of the appeal shall be subject to the

outcome of this appeal. Before making such

appointments, the appellant/first defendant

shall intimate the appointees regarding the

order of this Court and shall obtain their

consent to continue in the school subject to

the result of the appeal. In case the

decision goes against the appellant, the

appointment made shall stand cancelled. It is

not just and proper to permit the appellant/

the first defendant to fill up four vacancies I.A.NO.3 OF 2021 IN RSA NO.7/2015

..8..

as prayed for, during the pendency of the

proceedings without taking necessary steps to

protect the interest of the contesting

respondents during the pendency of the

proceedings.

In the result, the I.A.is disposed of

as hereinbelow. The petitioner/the first

defendant/the appellant is permitted to make

appointments in the four vacancies arose on

account of retirement subject to the result of

this appeal with due intimations to the

appointees as stated hereinabove.

Sd/-

N.ANIL KUMAR, JUDGE MBS/

27-08-2021 /True Copy/ Assistant Registrar