Deena Domini vs State Of Kerala

Mohammed Nias C.P., J

The petitioner was appointed as Lower Primary School Assistant (LPSA) in the Aided Lower Primary School, Vellanikkara, Thrissur, in the leave

vacancy of Smt.K. Bindu., who entered on leave from 1-10-2003 to 30-09-2008. Petitioner is aggrieved by Exts. P4 and P5 to the extent it did not

approve the petitioner's appointment and further holding that she shall only be paid salary for 404 days she worked at Rs. 150/- as daily

wages. Thus, claiming that the petitioner's appointment is  to be approved at a scale of pay, this Writ Petition is filed.

Petitioner had approached this Court earlier through W.P. C. No. 7911 of 2009 wherein this Court directed to consider the revision filed by the

petitioner impugning the orders refusing approval of her appointment along with the revision filed by on Sajitha.P.S. the 6th respondent therein, who

also worked as LPSA from 20-6-2005 to 30-09-2008 on the same leave vacancy. This Court held that since the petitioner and Smt. Sajitha

P.S. were rival claimants, the claims will have to be reckoned for the period they had actually worked. It is to be noticed that the petitioner had

worked from 5-6-2006 to 30-6-2008 till she was ousted from service on account of the division fall in the academic year 2004-2005. The

petitioner's appointment by Ext. P4 order is not in dispute and that it was against a leave vacancy is also not in dispute. The solitary reason put forth in

the orders of the educational authorities as well as in the counter affidavit filed before this Court is that the school in question being a staff

management school, the resolution of the management is mandatory for the approval of the appointment made and in the absence of the same, the

educational authorities could not have given approval for the appointment. It was also pointed out that Sajitha P.S., the 6th respondent in the earlier

petition was appointed from 20-06-2005 to 30-09-2008 as aforesaid, her appointment was also rejected by the Educational Officer. It is pointed

out by the learned counsel for the petitioner and the learned Government Pleader that Smt. Sajitha P.S. has abandoned her claim obviously on getting

a fresh appointment. A counter affidavit has been filed on behalf of the first respondent re-iterating the contentions in Exts. P4 and P5. It is stated that

the petitioner was not an approved teacher and she is not even entitled to get salary as daily wages and it was only out of humanitarian consideration

that she was disbursed the salary for the period she worked on daily wage basis.

Heard the learned counsel for the petitioner Sri. V. Varghese and the learned Government Pleader Sri. Faizal K. 4. It is the common Â

case of the parties that through Ext. P1, the petitioner was appointed from 20-6-2005 to 30-09-2008 on a time scale of pay of Rs. 6680 -10790. It

is also not in dispute that the said appointment was to a long term leave vacancy and that she had actually worked till she was ousted on account of

the division fall. Resultantly, the learned counsel for the petitioner submits that since the petitioner's was a case of regular appointment on a scale of

pay, there was no justification for limiting the petitioner's salary to daily wages. The reason put forth mainly for want of resolution in terms of Ext. P10

Government Order cannot be put forth a a reason for denying the benefits due to the petitioner. The dispute among the members of the management

cannot be held against the claims of the petitioner who has no control over the disputes among the managing body.

The learned counsel also relies on the judgments in Manager, St. Mary's H.S. v. Beji Abraham [2002 (1) KLT 406] and State of Kerala and Others

Sneha Cheriyan and Another [2013 (1) KLT 755]. First among the judgment is cited for the proposition of de facto doctrine where as the second one

is for buttressing his contention that the appointment being a regular one on a leave vacancy, the restrictions in Exts. P4 and P5 cannot be sustained.

The learned Government Pleader, on the other hand, submits that the conditions in Ext. P10 Government Order is mandatory and a resolution is

required in staff management schools and the same being absent, the petitioner's appointment cannot be approved.

On a consideration of the rival contentions, I am of the firm view that the petitioner is bound to succeed. In as much as the petitioner's appointment

was against a clear vacancy in which she worked pursuant to the appointment as per Ext. P2, the petitioner cannot be denied the benefits for the

period she admittedly worked citing procedural lapses like not producing the resolution of the staff management committee for her appointment. The

petitioner cannot be penalised for this as it is beyond her control to produce the resolution. The petitioner cannot be legally asked to do what is

impossible to be performed from her side.

This Hon'ble Court in the decision mentioned in Beji Abraham's case (supra) has held even if the appointment of the is subsequently found to be

illegal and irregular, the same cannot take away the rights of the appointees. As far as the appointees are concerned, they are appointed by approved

Manager. They are not concerned with the dispute with regard to the management of the School. The de facto doctrine save the acts of the officers

de facto performed within the scope of their assumed official authority. The Hon'ble Supreme Court in Sneha Cherian's case (supra) has clearly held

that the Manager of an aided school can appoint teachers in vacancies occurred due to death, retirement, promotion, resignation, long-term leave etc.

provided they are established vacancies and the approval can be granted subject to the conditions under R. 49 of Chapter 14A of the KER. The said

decision also held that the Manager can make appointments in school even if the duration of which is less than one academic year but on daily wage

basis and if the duration of vacancy exceeds one academic year that can be filled up on scale of pay basis. These judgments are in support of the

contentions of the petitioner.

Exts. P4 and P5 to the extent it denied the approval of the appointment of the petitioner and also allowances to her from the period from 5-6-2006

to 30-6-2008 in the time scale of pay of Rs. 6680-10790 is quashed. The 2nd respondent is directed to pass fresh orders in the light of the above

directions within a period of two months from the date of receipt of a copy of this judgment.

In the result, this Writ Petition is allowed.