Jalaja K.K. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944** ## **WP(C) NO. 6568 OF 2011** ## **PETITIONER:** JALAJA.K.K, L.P.S.A., K.C.M.U.P.SCHOOL, KURUVATTUR,, PALAKKAD DISTRICT. BY ADVS. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,, GENERAL EDUCATION DEPARTMENT, GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001. 2 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM. PIN-695 001. 3 THE DEPUTY DIRECTOR OF EDUCATION PALAKKAD. PIN-678 001. 4 THE ASSISTANT EDUCATIONAL OFFICER SHORNUR, PALAKKAD DISTRICT. PIN-679 121. 5 THE MANAGER K.C.M.U.P.SCHOOL KURUVATTUR, PALAKKAD DISTRICT. PIN-679 121. BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** SRI.K.M.FAISAL, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 6568 of 2011 2 ## **P.V.KUNHIKRISHNAN, J** **-------------------------------------------------------W.P. (C) No. 6568 of 2011 --------------------------------------------------------Dated this the 16[th] day of November, 2022** ## **JUDGMENT** The petitioner was first appointed as L.P.S.A in K.C.M.U.P. School, Karuvattur by the 5[th] respondent Management as per Ext.P1 order. The appointment of the petitioner vide Ext.P1 was approved by the 4[th] respondent, A.E.O., as per order dated 29.10.1999 with effect from 10.07.1999. It is the case of the petitioner that, thereafter, the petitioner is having continuous service in the school. During the academic year 2002-2003, the 4[th] respondent issued a staff fixation order in respect of K.C.M.U.P.School, Karuvattur as per order dated 15.03.2003. Ext.P2 is the staff fixation order. While issuing Ext.P2 order, the 4[th] respondent abolished one post of L.P.S.A. 2. It is the case of the petitioner that, the petitioner having continuous service from 10.07.1999, was entitled to be continued in service by applying 1:40 teacher-student ratio. At the time when Ext.P2 order was issued, one of the L.P.S.A's in the school, namely W.P.(C) NO. 6568 of 2011 3 Smt.M.Bhageerathi, was on leave without allowance from 23.06.2002 to 22.06.2004. Hence, as per Ext.P2 order, the 4[th] respondent instead of giving protection to the petitioner by applying 1:40 teacher-student ratio, allowed the petitioner to continue in the leave vacancy of Smt.M.Bhageerathi. The said fact is stated in Ext.P2. 3. According to the petitioner she was entitled for protection by applying the 1:40 ratio and the action of the 4[th] respondent in allowing her to continue in the leave vacancy instead of granting her protection was illegal. In the above circumstances, the 5[th] respondent Manager filed an appeal before the 3[rd] respondent. But, the said appeal was dismissed by the 3[rd] respondent as per Ext.P3 order. According to the petitioner, the action of 4[th] respondent in allowing the petitioner to continue in the leave vacancy of Smt.M.Bhageerathi at the time of allowing her junior,Smt.N.S.Raji, to continue on protection giving the benefit of teacher-student ratio was absolutely illegal. Smt.M.Bhageerathi whose leave vacancy the petitioner was allowed to continue, re-join the duty on 22.06.2006. It is the case of the petitioner that, the 4[th] respondent legally bound to give protection to the petitioner by applying the benefit of 1:40 teacher -student ratio. However, during the academic year 2006-2007 when the 4th respondent issued a staff fixation order as per Ext.P4, the 4[th] W.P.(C) NO. 6568 of 2011 4 respondent retrenched the petitioner from service and allowed Smt.M.Bhageerathi to re-join duty. It is the case of the the petitioner that, Ext.P4 order,to the extent it retrenched the petitioner, was illegal and unsustainable. 4. Challenging Ext.P4 staff fixation order a revision was filed by the Manager before the 2[nd] respondent. The 2[nd] respondent dismissed the said revision as per Ext.P5 order. Challenging Ext.P5 order the Manager filed a revision petition before the Government. The said revision was allowed by the Government as per Ext.P6 order, the Government held that the petitioner was entitled for protection by applying the 1:40 teacher-student ratio from 22.06.2006 onwards, the date on which Smt.M.Bhageerathi re-joined duty. It is the case of the petitioner that while giving the said direction, in the last sentence of Ext.P6 order, it is mistakenly directed by the Government that , the petitioner shall be given approval as L.P.S.A and allowed to continue in service by applying 1:40 teacher- student ratio during academic year 2007-08 onwards, instead of stating 2006-07. Hence, in order to correct the above mistake in Ext.P6 order the Manager filed a representation before the Government. It is the case of the petitioner that, instead of correcting the mistake in Ext.P6 order the Government cancelled Ext.P6 order in total, as per Ext.P7. W.P.(C) NO. 6568 of 2011 5 5. It is the case of the petitioner that as per Exts. P8 to P11 the direction of the Government to allow the petitioner to continue in service without retrenchment by applying the reduced teacherstudent ratio of 1:40 was in the academic year 2002-2003. It is contented that 4[th] respondent declined to grant the said benefit since there was a leave vacancy available in the school and therefore the petitioner could not have been accommodated in said vacancy. Thus the petitioner continued without retrenchment in the said vacancy. The petitioner also relies Exts.p12 and p14 to show that there are 4 vacancies of L.P.S.A and the petitioner can be accommodated in one of the vacancies. Hence this writ petition. 6. Heard counsel for the petitioner and the Government Pleader. 7. The counsel for the petitioner submitted that, the Government has no authority to issue Ext.p7 order, which amounts to review of Ext P6 order. The counsel relied, the Full Bench decision of this court in _**Anil Kumar P vs. State of Kerala and others [2009 3KHC 596]**_ in which this court considered the similar provisions in the Kerala Education Rules 1959 (for short 'KER'). The Full Bench considered Chapter XIV A in Rule 92 of the KER and Ext.P6 order was passed as per Chapter XXIII Rule 12F of KER. The W.P.(C) NO. 6568 of 2011 6 counsel submitted that the wordings in these provisions are same and therefore, the dictum laid down by the Full Bench in _**Anilkumar's case**_ (supra) is directly applicable in this case also. Moreover, there is no review power given to the Government in the KER and unless it is expressly provided the Government has no authority to review the order. 8. The counsel also submitted that Rule 93 of Chapter XIV A gives power to the Government to review the order only if, it is an original order of the Government. But, here is a case where the order is passed in a revision filed under Chapter XXIII Rule 12F. Therefore Rule 93 chapter XIV A is not applicable. The Government Pleader on the other hand submitted that there is nothing to interfere with Ext.P7 order. The Government pleader submitted that, when the Government passed the order based on factual situation and there is nothing to interfere with the same. 9. This court considered the contention of the petitioner and the Government Pleader. It will be better to extract Rule 12F of Chapter XXIII of the KER. _Rule 12F:- “not withstanding any thing contains in this Chapter, the Government may at any time on their own motion or otherwise, after calling for the record of the case revise any order passed by the Director of Public_ W.P.(C) NO. 6568 of 2011 7 _Instructions.”_ 10. Admittedly, Ext.P6 order is passed by the Government invoking the power under Section 12F of the Chapter XXIII of KER. It will be beneficial to extract Chapter XIV A Rule 92(1) of KER. _**92. Revision :-** [(1) Notwithstanding anything contained in these rules the Government may on their own motion or otherwise, after calling for the records of the case, revise any order passed by a subordinate authority [in respect of matters contained in this Chapter] which is made or is appealable under these Rules:-_ _(a) confirm modify or set aside the order;_ _(b) impose any penalty or set aside, reduce confirm or enhance the penalty imposed by the order;_ _(c) remit the case to the authority which made the order or to any other authority directing such further action or enquiry as they consider proper in the circumstances of the case or_ _(d) pass such other order as they deem fit;_ _Provided that-_ _(i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty provided that such representation shall be based only on the evidence adduced during the enquiry;_ _(ii) if the Government propose to impose any of the penalties specified in items (iv) to (viii) of Rule 65 on a case_ W.P.(C) NO. 6568 of 2011 8 _where an inquiry be held and thereafter on consideration of the proceedings of such inquiry and after given the person concerned an opportunity of making any representation which he may wish to make against such penalty pass such orders as they deem fit._ _[_ _**Explanation** :-For the purpose of this proviso and sub rule (2) the person concerned shall include the Manager of a School whose orders are sought to be revised by the Government]_ 11. A perusal of the same will show that the wordings of these Rules are one and the same. The Full Bench in Anil Kumar's case (supra) observed like this: " _Going by the facts of the case, we feel that Ext.P6 order is ab initio void. The Government have no power to entertain a review petition under Rule 93 against an order passed in revision under Rule 92 of Chapter XIV A of the KER. If that be so it is unnecessary to consider the points referred to the Full Bench._ " 12. The same dictum is applicable as far as the order passed under Rule 12F of Chapter XXIII KER is concerned. After invoking the powers under Rule 12F of Chapter XXIII KER, Ext.P6 order is passed. Thereafter, the Government has no jurisdiction to review that order especially because there is no power of review is given to the Government as per KER. The power of review given to the W.P.(C) NO. 6568 of 2011 9 Government is only against the original order passed by the Government as per Rule 93 Chapter XIV A. In the light of the same, according to me, Ext.P7 is to be set aside and Ext.P6 order is to be restored. Consequential order based on the Manager's representation is to be passed by the Government in the light of Ext.P12 and P14. Therefore, this writ petition is allowed in the following manner:- i) Ext.P7 is set aside and Ext.P6 order is restored. ii) The Government is directed to make appropriate correction in Ext.P6 by adding 2006-2007 in the concluding Paragraph of Ext.P6 in the light of Ext.P12 and P14. iii) The above exercise shall be completed by the Government, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of copy of this judgment. Sd/- **JUDGE** **P.V.KUNHIKRISHNAN** TR W.P.(C) NO. 6568 of 2011 10 ## **APPENDIX OF W.P(C) 6568/2011** PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 10.07.1999 OF THE PETITIONER - EXHIBIT P2 THE TRUE COPY OF THE STAFF FIXATION ORDER DT.15.03.2003 ISSUED BY THE 4TH RESPONDENT - EXHIBIT P3 TRUE COPY OF THE ORDER DATED 26.09.2003 ISSUED BY THE 3RD RESPONDENT - EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER DT. 19.07.2006 ISSUED BY THE 4TH RESPONDENT - EXHIBIT P5 TRUE COPY OF THEORDER DT.18.04.2007 ISSUED BY THE 2ND RESPONDENT - EXHIBIT P6 TRUE COPY OF THE ORDER, G.O. DT. 17.02.2010 ISSUED BY THE GOVERNMENT - EXHIBIT P7 TRUE COPY OF THE ORDER, G.O. DT. 09.12.2010 ISSUED BY THE GOVERNMENT - EXHIBIT P8 TRUE COPY OF THE ORDER, G.O. DT. 20.06.1997 ISSUED BY THE GOVERNMENT - EXHIBIT P9 TRUE COPY OF THE ORDER, G.O. DT. 10.11.1998 ISSUED BY THE GOVERNMENT - EXHIBIT P10 TRUE COPY OF THE CIRCULAR DATED 24.03.1999 ISSUED BY THE GOVERNMENT - EXHIBIT P11 TRUE COPY OF THE CIRCULAR DATED 27.01.2005 ISSUED BY THE GOVERNMENT |W.P.(C) NO. 6568 of 2011|11| |---|---| |EXHIBIT P12|TRUE PHOTOCOPY OF THE STAFF FIXATION| ||ORDER (REVISED) DATED 15.01.2007 ISSUED| ||BY THE 4TH RESPONDENT AEO| |EXHIBIT P13|TRUE PHOTOCOPY OF THE APPOINTMENT ORDER| ||DATED 08.06.1998 OF SMT.V.K. USHA.| |EXHIBIT P14|TRUE PHOTOCOPY OF THE STAFF LIST OF THE| ||5TH RESPONDENT SCHOOL FOR THE ACADEMIC| ||YEAR 2006-2007|