The Manager, Mahatma Gandhi ... vs Ambili S
2023 Latest Caselaw 5928 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
   THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                               &
        THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
 WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
                     WA NO. 974 OF 2023
  AGAINST THE ORDER/JUDGMENT IN WP(C) 25580/2018 OF HIGH
                        COURT OF KERALA
APPELLANT/PETITIONER:



          THE MANAGER,
          MAHATMA GANDHI MEMORIAL HIGH SCHOOL,
          POOZHANAD, THIRUVANANTHAPURAM DISTRICT-695 125.,
          BY ADVS.
          NISHA GEORGE
          GEORGE POONTHOTTAM (SR.)
          A.L.NAVANEETH KRISHNAN


RESPONDENTS:



    1     AMBILI S.
          W/O. JAYAPRASAD B.S., AGED 38 YEARS,
          HIGH SCHOOL ASSISTANT, PHYSICAL SCIENCE,
          MAHATMA GANDHI MEMORIAL HIGH SCHOOL,
          POOZHANAD, THIRUVANANTHAPURAM DISTRICT-695 125.,
    2     STATE OF KERALA
          REPRESENTED BY THE SECRETARY,
          DEPARTMENT OF GENERAL
          EDUCATION,THIRUVANANTHAPURAM-695 001.,
    3     THE DIRECTOR OF PUBLIC INSTRUCTIONS
          [NOW RE-NAMED AS DIRECTOR OF GENERAL EDUCATION]
 WA No.974 of 2023
                                        2

              JAGATHI, THIRUVANANTHAPURAM-695 014.
      4       THE DISTRICT EDUCATIONAL OFFICER
              ALUMMOODU,
              NEYYATTINKARA,
              THIRUVANANTHAPURAM-695 121., PIN - 695121
              BY ADV R.K.MURALEEDHARAN
              BY SR.GP. SMT.VINITHA.B



       THIS    WRIT       APPEAL   HAVING     COME   UP    FOR    ADMISSION   ON
24.05.2023,         THE    COURT   ON   THE     SAME      DAY    DELIVERED    THE
FOLLOWING:
 WA No.974 of 2023
                                     3




 A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ
                ......................................................
                          WA No.974 of 2023
             ................................................................
              Dated this the 24th day of May, 2023


                                ORDER

A.K.Jayasankaran Nambiar.J

This writ appeal is preferred by the Manager of the Mahatma

Gandhi Memorial High School, aggrieved by an interim order dated

16.3.2023 passed by a learned single Judge in WP(C)No.25580 of 2018. It

would appear that, by the impugned interim order the learned single Judge

modified an earlier interim order that was passed in the writ petition, and

directed the Government to approve the appointment of the first

respondent teacher and disburse the salary payable to her for the period

she was discharging her functions as a teacher of the school in question.

The appellant is aggrieved by the said interim order since according to him

the inter se managerial dispute between him and his brother one Suseelan,

who expired during the pendency of these proceedings, presently leans in

his favour on account of the order passed by the Government in a revision

preferred by him against an unfavourable order of the DPI, and the

decision of this court to not interdict the said order in the writ petition WA No.974 of 2023

preferred against the same. The learned counsel points out that the

impugned interim order of the learned single Judge has the effect of

directing an approval of the appointment of the 1st respondent by late

Suseelan and payment of salary to her and even if ultimately the appellant

succeeds in the writ petition, the Government will look to him for

recovering the salary paid to the first respondent during the pendency of

these proceedings.

2. We have heard, Sri.Navaneeth Krishnan, the learned counsel

for the appellant and Sri. R.K.Muraleedharan, the learned counsel for the

first respondent. We have also heard the learned Government Pleader for

the official respondents of the State.

3. On a consideration of the rival submissions, we are of the view

that we need not interfere with the interim order passed by the learned

single Judge that is impugned in this writ appeal. Notwithstanding the

contention of the learned counsel for the appellant that, based on the

orders passed by the Government as well as by this Court, the right to

manage the school in question vests in the appellant as of now, we are of

the view that the first respondent teacher cannot be denied the benefit of

salary for the period during which she actually worked as a teacher in the

school. This would be so, since going by the defacto doctrine that would

apply in the instant case, even assuming that her initial appointment was

irregular or illegal, she would nevertheless be entitled to the salary for the

period that she has actually discharged her duties as a teacher in the WA No.974 of 2023

school, since her appointment would be seen as valid till such time it is

declared otherwise by a court of competent jurisdiction. We also note that

the directions to approve the appointment of the first respondent and to

pay salary to her for the period she functions as a teacher in the school is

provisional and subject to the final outcome of the writ petition. We see no

prejudice caused to the appellant herein on account of the directions so

issued by the learned single Judge in the impugned order. We are

therefore of the view that the impugned order does not call for any

interference. This appeal is accordingly dismissed without prejudice to the

right of the appellant to raise all his contentions on merit before the

learned single Judge at the time of disposal of the writ petition.

Sd/-A.K. JAYASANKARAN NAMBIAR, JUDGE

Sd/- MOHAMMED NIAS C.P., JUDGE

dlk/24.5.2023 WA No.974 of 2023

APPENDIX OF WA 974/2023

PETITIONER'S ANNEXURES

Annexure-1 TRUE COPY OF THE ORDER DATED 31.03.2023 IN R.P. NO. 397/2023 IN W.P.(C) NO.

25580 OF 2018 PASSED BY THIS HON'BLE COURT