Jaseela P.K. and A. Ranjith v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** **WA. No.2028 of 2015** **AGAINST THE JUDGMENT IN WPC NO.27917/2009 OF THE HIGH COURT OF KERALA DATED 20-08-2015** ## **APPELLANTS/PETITIONERS:** **1 JASEELA P.K., LPSA, AMLP SCHOOL, THIRUTHIKKUNDU, MALAPPURAM DISTRICT.** - **2 A.RANJITH, LPSA, AMLP SCHOOL, THIRUTHIKKUNDU, MALAPPURAM DISTRICT.** **BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SRI.T.S.SHYAM PRASANTH** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS TRIVANDRUM-695 014.** - **3 THE ASSISTANT EDUCATIONAL OFFICER EDAPPAL, MALAPPURAM DISTRICT-679 576.** - **4 THE MANAGER AMLP SCHOOL, THIRUTHIKKUNDU, MALAPPURAM DISTRICT-679 576.** **SMT.RAJI T. BHASKAR, GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** WA. No.2028 of 2015 2 ## **JUDGMENT** **K. Vinod Chandran, J.** **The appeal impugn the order of the learned Single Judge, who, though set aside Ext.P15, directed fresh consideration, by invocation of powers under Rule 8A of Chapter XIV-A of the Kerala Educational Rules, 1959 [for brevity, 'the KER'].** **2. The brief facts required for consideration of the appeal are that the 1[st] petitioner was appointed in a promotion vacancy on 02.06.2004 and the 2[nd] petitioner in a retirement vacancy on the very same date. Both were appointed as LPSA's. Their appointments were approved on 25.08.2004, as is seen from Exts.P1 & P2 orders produced in the writ petition. While they were so being continued, on 30.05.2005, the Assistant Educational Officer** WA. No.2028 of 2015 3 **[AEO], without any notice, issued Ext.P3 order to the Headmaster, directing that the salary bill of the petitioners shall not be drawn hereafter. This was based on a Circular issued at Ext.P4 by the Director of Public Instructions [DPI], which directed that the approval of appointments in Schools constituted after 1979 shall not be granted, unless one protected teacher is appointed.** **3. The School was constituted in 1979 and was also obliged to appoint one protected teacher, which obligation was not complied with, so much is admitted. Though the said fact is admitted, the question arises as to whether the Education Department had taken sufficient steps to ensure that such an appointment of protected teacher was made. We will refer to that a little later.** **4. Continuing with the narration of** WA. No.2028 of 2015 4 **facts, Ext.P3 order was challenged by the appellants herein before this Court. A learned Single Judge, by Ext.P6, set aside Ext.P3 order and directed reconsideration by the AEO. A review was taken and later an appeal, by the State. In the appeal, by Ext.P8, the Division Bench found that there could be no reconsideration of Ext.P3, since the appointment itself is approved by the AEO. It was held that it is for the higher authorities, if at all, to revoke such appointments, if the law permits, after due notice to the parties. The direction of the AEO was hence interfered with and it was made clear that the quashing of Ext.P3 would not stand in the way of the Educational Authorities taking any action in accordance with law, after due notice to the parties.** **5. Admittedly, an order was passed at Ext.P9 with due notice to the parties. Ext.P9** WA. No.2028 of 2015 5 **was necessitated, since the AEO had again requested the DPI to cancel the appointments, that had already been approved in respect of the appellants. The DPI, after consideration, found that there is no circumstance existing for cancellation of approval of appointment of the appellants, but directed that the AEO shall obtain an undertaking in the form of an agreement, from the Manager, that they would appoint a protected teacher to the future vacancy arising. The AEO is said to have issued Ext.P10 regularising the appointments made by the Manager. It is also noticed from Ext.P1 that the Manager had executed the agreement as stipulated in Ext.P9. We pause here to notice that there was no requirement for an order in the nature of Ext.P10, because when the DPI on the request of the AEO, refused to interfere with the approvals granted by Exts.P1 & P2,** WA. No.2028 of 2015 6 **those orders would hold the field and there was absolutely no necessity for a future regularisation.** **6. Be that as it may, after more than two years, the DPI issued a notice at Ext.P11, again on a request made by the AEO. We should say that it is not a mere request and it is in fact an instigation by the AEO, who had been relentlessly attempting to get cancelled the approvals obtained by the appellants. The matter was heard and Ext.P15 order was passed. The grounds on which Ext.P15 order was passed are that there was an audit report against the regularisation of the appellants and the regularisation was carried out on a misinterpretation of the judgment of the Division Bench.** **7. The learned Single Judge found that the procedure by which Ext.P11 was issued and** WA. No.2028 of 2015 7 **Ext.P15 was passed was strange and that it is in total violation of the principles of natural justice. Ext.P11 did not put the appellants to notice of the grounds on which a review was attempted. It was also found that the review was in the nature of a** _**suo motu**_ **review, which was not permissible. However, the learned Single Judge then referred to Rule 8A of Chapter XIVA of the KER to find that the DPI has the power to correct or review any orders passed by a lower authority. Hence, the DPI was directed to issue fresh notice explaining the circumstances under which Rule 8A is to be invoked and directed fresh consideration of the entire matter. The appellants would contend that there is no question of invocation of Rule 8A as directed by the learned Single Judge to interfere with Ext.P10, since Ext.P10 is not the order, which approves their appointments. The approvals are** WA. No.2028 of 2015 8 **granted by Exts.P1 & P2, which was attempted to be cancelled at the behest of the AEO, which, at an earlier point of time, was addressed by the DPI and the cancellation found to be not warranted.** **8. We fully agree with the learned Counsel for the appellants. In this context, we again notice that the appointments made of the appellants were approved by Exts.P1 & P2 orders, long back in August, 2004. If at all there was no protected teacher appointed as per the existing GO's, then the approval ought not to have been granted. Having granted the approval, definitely the DPI has the power under Rule 8A to interfere with the same. That was not done for long and the AEO attempted a review of the order of approval by merely restricting the drawing up of salary bills. The AEO was found to have no such powers and this Court had quashed** WA. No.2028 of 2015 9 **the said order at Ext.P3. The Division Bench of this Court had left the remedy in so far as invoking Rule 8A by directing the Educational Authorities to proceed in accordance with law. As we noticed, there was a specific request made by the AEO, which was declined by Ext.P9; the consideration being possible only under Rule 8A. It is trite that the DPI having passed an order refusing to invoke Rule 8A, cannot review its own orders on identical set of facts. There is no power provided under the statute for such a** _**suo motu**_ **review of the DPI's own orders.** **9. We also find that the grounds on which Ext.P15 order has been passed are not sustainable. One of the grounds as indicated from Ext.P15 is that there was an audit objection to the approval. A mere audit objection to an approval cannot lead to statutory orders being set aside. The orders** WA. No.2028 of 2015 10 **passed by statutory authorities under the KER, if allowed to be interfered with on the basis of audit objections, there would be absolute mayhem and chaos. The audit objections have to be answered in the proper perspective and if there is a delinquency found on the part of the statutory authority appropriate action has to be taken on that count against the delinquent officer. There can be no interference as such caused to the statutory orders, unless in accordance with the procedure provided under the statute merely on the ground of an objection raised by the audit party.** **10. The other ground raised is that the High Court judgment was misinterpreted. The misinterpretation, according to Ext.P15, is for reason of Ext.P9 having assumed that the High Court directed approval while the judgment indicates direction only to disburse the salary.** WA. No.2028 of 2015 11 **In this context, we have to notice that there was no direction to approve the appellants, since the approvals have already been made as per Exts.P1 & P2. Then again disbursal of salary would not have been directed, unless there was an approval found for the appointments. In fact the Division Bench, in Ext.P8, specifically said so:** _**“Petitioners appointment as per Exts.P1 and P2 were duly approved by the Educational Authority. So far the said approval is not revoked. Therefore, as on today, they are approved teachers entitled for salary.”**_ **Hence there is absolutely no misinterpretation of the judgment also.** **11. On merits, as to the approvals not being entitled for reason of a protected teacher having not been appointed, we have to refer to the judgment of a Division Bench of this Court** WA. No.2028 of 2015 12 **in** _**State of Kerala v. Nadeera [2013 (2) KLT 88]**_ **. Therein, the Division Bench was referring to a Circular dated 01.02.2006, wherein a ratio of 1:1 was prescribed for appointment of protected teachers. The State had taken a contention that the list of protected teachers were published in the Notice Board of the concerned Educational Officers. The Division Bench found that such a publication would not enable the Managers to appoint the protected teachers from the list prepared by the educational authorities. It was specifically found that, up to 2009, the prescription in the GO's was to make appointments from the list provided by the educational authorities. The list as found by the Division Bench had to be forwarded to the particular Managers and not merely published in the Notice Board of the Educational Officer. From 2009, the GO's took a different stand, of** WA. No.2028 of 2015 13 **the Managers being obliged to obtain the list of protected teachers; upon which it was incumbent upon the Manager to make a request to the AEO for the list and consequential appointment. We are here concerned with 2002, clearly covered by** _**Nadeera .**_ **We also notice that the learned Single Judge has noticed the specific contention of the educational authorities that here too the list was published in the Notice Board of the AEO. This is not in consonance with the declaration made in** _**Nadeera**_ **[supra]. Hence, even going by** _**Nadeera**_ **, the Department cannot have any objection with respect to the appointment and the approval could not have been declined for reason of a protected teacher having not been appointed; since the Education Department never had a case that a list was provided to the Manager. Hence on merits also, we find that there could be no interference caused to the** WA. No.2028 of 2015 14 ## **approval of appointments.** **12. In such circumstances, we do not find any reason for a fresh consideration, nor is it statutorily permissible. We set aside the judgment of the learned Single Judge. We also set aside Ext.P15 order passed by the DPI.** **The writ appeal is allowed. The parties** **are left to suffer their respective costs.** **Sd/-** **K. VINOD CHANDRAN, JUDGE.** **Sd/-** **V.G. ARUN, JUDGE.** **sp/13/03/19** **//True Copy//** **P.A. To Judge**