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
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,
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
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
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
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
