The Manager, Kvup School Pangodu P.O., Thiruvananthapuram vs Sreeja J.T. and Others

C.N. Ramachandran Nair, J.—The two connected Writ Appeals are filed, one by the Manager of the School and the other by the Peon, who is appointed in 2009 and whose appointment is approved on 04/01/2011, challenging the judgment of the learned Single Judge directing that the appellant in W.A. No. 1230/2012 to be substituted by the 1st respondent. We have heard separate counsel appearing for the appellants in both the Writ Appeals and also learned counsel appearing for the 1st respondent and also learned Government Pleader for the remaining respondents. Facts of the case are as follows. Based on the claim of the 1st respondent as a person, who served as a Peon in leave vacancy for some time, and her further claim on compassionate ground based on death of her father while in the service of the School, she was appointed as a Peon on 22/07/2004. Even though the 1st respondent joined the School on 05/08/2004, she disappeared from the next day giving a letter to the Manager to grant her study leave to take up B. Ed course. Instead of granting leave, the authorities initiated disciplinary proceedings against the 1st respondent for unauthorized absence. In spite of initiation of disciplinary proceedings for unauthorized absence, which virtually means that the Manager declined leave to the 1st respondent, she did not care to save her job by discontinuing her studies. On the other hand, she kept away from service and ultimately pursued her studies. However, when dismissal order was issued on 29/09/2005, she challenged it by filing Writ Petition. In between, the Manager of the School appointed two persons successively as Peons, both of whom after serving for some time got promoted as Teachers, the last appointee, namely the appellant in W.A. No. 1230/2012, was appointed as Peon on 01/06/2009 and he was confirmed on 04/01/2011. Even though Writ Petition filed was pending in this Court from 2005 onwards, no interim order was obtained against the successive appointments made in the post claimed by the 1st respondent and therefore all such appointments were confirmed. However, the WP(C) was disposed of by the learned Single Judge on 21/05/2012 upholding the claim of the 1st respondent that the disciplinary proceedings initiated were not in accordance with the statutory provisions and thereby declaring all appointments made for the post that fell vacant in 2004, as illegal. The next direction issued is to replace the present Peon, who is already confirmed in service which happened after 8 years the 1st respondent abandoned her job as Peon after serving the School for one day.

After hearing separate counsel for the appellants, learned counsel for the 1st respondent and also learned Government Pleader, we are unable to uphold the judgment of the learned Single Judge, which in our view is thoroughly unrealistic because subsequent developments defeated the claim of the 1st respondent, is our feeling. On going through the judgment, what we notice is that the learned Single Judge has only found illegality in the procedure adopted in the enquiry and in the final termination order. However, on merits, the 1st respondent could not defend her action of abandoning the job on the following day after joining service while on probation. So much so, the only inference possible is irrespective of the consequences that follow the 1st respondent wanted to pursue her studies and she, in fact, completed B. Ed and has probably become eligible to be appointed as a Teacher in the School. In our view, disciplinary proceedings or termination probably arises only when somebody in regular service is absent unauthorisedly, after being confirmed in service. If a person during probation abandoned the job or post without getting leave approved, it is a case of abandonment of job or at least failure to successfully complete probation, which entitles the Management to release such person from service and proceed to appoint another person, more so when the Peon''s post is a single post which necessarily has to be filled up by a person willing to serve. However, since leave is permissible even during probation and since the experience of the School is that every Peon joining would have B. Ed. and later became Teacher of the School, we feel the 1st respondent also could be given an opportunity but without affecting the person who is presently serving as regular Peon after confirmation, who is the appellant in W.A. No. 1230/2012. Therefore, without going into the merits of the findings of the learned Single Judge, which are on procedural irregularity, we feel these Writ Appeals can be disposed of with direction to the Management, i.e. the appellant in W.A. No. 1145/2012, to fill up the next Peon''s post with the 1st respondent, who is free to seek promotion in accordance with law as and when Teacher''s post arises. We also make it clear that if Teacher''s post falls vacant and by virtue of 51A claim the 1st respondent has, and if 51A has priority over appointment of Teachers from the Teacher''s Bank, then the Manager should consider 1st respondent''s claim with reference to the relevant Rule based on meritorious service rendered before 2004. In fact, since the Manager is not allowed to make appointments on account of the availability of Teachers in the Teacher''s Bank, we feel the AEO himself can direct the Manager for appointment of the 1st respondent as Teacher in the next arising vacancy.

These Writ Appeals are disposed of modifying the judgment of the learned Single Judge as above.