K.V. Varkey v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930** **OP.No. 18591 of 2000(L)** **----------------------------------** **PETITIONER:** - **-------------------** **K.V.VARKEY, HIGH SCHOOL ASSISTANT, ST. JOSEPH'S HIGH SCHOOL, KALLODY, EDAVAKA -P.O., WAYANAD - 670 645.** **BY SRI.S.EASWARAN.** **RESPONDENTS:** - **-----------------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM.** **3. THE DISTRICT EDUCATIONAL OFFICER, WAYANAD.** **4. THE CORPORATE MANAGER, THE CORPORATE EDUCATIONAL AGENCY, DIOCESE OF MANANTHAVADY, BISHOP HOUSE, MANANTHAVADY - 670 645.** **5. SR. ANNAMMA - M.D., HEADMISTRESS, ASSUMPTION GIRLS HIGH SCHOOL, S. BATTERY.** **R1 TO R3 BY GOVT. PLEADER SRI. M.R. SABU, ADV. SRI. GRASHIOUS KURIAKOSE. R4 BY ADV. SMT.P.M.INDU,** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P. NO. 18591/2000-L:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE JUDGMENT DTD. 22ND OCT., 1997 IN O.P.NO.5138/91-J.** ## **EXT.P.2: COPY OF THE REPRESENTATION DTD. 18/02/1998 SUBMITTED BY THE PETITIONER BEFORE THE R.4.** **EXT.P.3: COPY OF THE REPRESENTATION DTD. 15/06/1998 SUBMITTED BY THE PETITIONER BEFORE THE R.3.** **EXT.P.4: COPY OF THE PROCEEDINGS NO.B6/3752/98 DTD. 27/07/1996 ISSUED BY THE R.3.** ## **EXT.P.5: COPY OF THE PROCEEDINGS ORDER NO.EM (1)/7075/99/K. DIS. DTD. 03/03/1999 OF THE R.2.** **EXT.P.6: COPY OF THE G.O. (RT).NO.310/2000/G. EDN. DTD. 21/01/2000 ISSUED BY THE R.1.** **EXT.P.7: COPY OF THE REVIEW PETITION DTD. 15/02/2000 SUBMITTED BY THE R.4. BEFORE THE HON'BLE MINISTER FOR EDUCATION OF THE R.1.** **EXT.P.8: COPY OF THE G.O. RT. NO. 2433/2000/G. EDN. DTD. 14/06/2000 ISSUED BY THE R.1.** **EXT.P.9: COPY OF THE PROCEEDINGS DTD. 01/06/1999 ALONG WITH THE ENDORSEMENT NO.B6/3999/2000/K. DIS. DTD. 04/07/2000 OF THE R.3.** **EXT.P.10: COPY OF THE PROCEEDINGS DTD. 02/05/2000 ISSUED BY THE R.4.** ## **RESPONDENTS' EXHIBITS:** **EXT.R4.A: COPY OF THE G.O. (MS).21/82/G. EDN. DT. 15/02/82.** **EXT.R4.B: COPY OF THE ORDER NO. EM2-84872/92/K.DIS.DT. 05/01/93 OF THE R.2. EXT.R4.C: COPY OF THE ORDER NO. K.DIS/83/7999/92 DT. 17/02/93 OF THE R.3. EXT.R4.D: COPY OF THE APPOINTMENT ORDER DT. 06/2000 ISSUED TO THE R.5. EXT.R4.E: COPY OF THE APPOINTMENT ORDER DT. 04/07/2000 ISSUED TO THE R.5.** ## **//TRUE COPY//** **P.S. TO JUDGE.** **prv.** S. Siri Jagan, J. **==> picture [255 x 51] intentionally omitted <==** **==> picture [102 x 12] intentionally omitted <==** A High School Assistant of St. Joseph's High School, Kallody is the petitioner herein. He is challenging Ext. P8 order of the Government, whereby an earlier order, Ext. P6 passed by the Government themselves has been reviewed purportedly in exercise of the powers under Rule 93 of the Kerala Education Rules. The facts necessary for the disposal of the original petition are as follows: 2. The petitioner and the 5[th] respondent are teachers of schools under the same educational agency. Going by the seniority position of the teachers of the High Schools under the said educational agency of which the 4[th] respondent is the corporate manager, the petitioner is admittedly senior to the 5[th] respondent. But, when a vacancy of Headmaster arose on 18-2-1998, the 5[th] respondent was preferred to the petitioner. Appointment order of the 5[th] respondent was forwarded to the District Educational Officer for approval along with the declaration by the 4[th] respondent to the effect that there is no other senior claimant in the school to be promoted as Headmaster. That appointment was refused to be approved by the DEO on the ground that there were other senior teachers in the school eligible to be promoted to the post of Headmaster. Ext. P4 is the order of the DEO refusing to approve the appointment of the 5[th] respondent. An appeal was filed by the 4[th] respondent before the Director of Public Instruction, wherein a contention was raised by the 4[th] respondent to the effect that the school is a minority institution and therefore the seniority between the teachers is not relevant for the purpose of promotion. By Ext. P5 order, the Director of Public Instruction rejected the claim of the 4[th] respondent specifically on the ground that the 4[th] respondent has not produced any evidence to the effect that the school is a minority institution. The 4[th] respondent approached O.P. No. 18591/2000 -: 2 :- the Government in revision under Rule 92 of Chapter XIV A of the Kerala Education Rules, against the appellate order Ext. P5 of the Director of Public Instruction. The petitioner also appears to have filed a petition in the matter. Both were heard together and by Ext. P6 order, the Government rejected the contention of the 4[th] respondent again on the ground that the 4[th] respondent has not produced any proof to show that the institution is a minority institution. Accordingly, the request of the 4[th] respondent to approve the appointment of the 5[th] respondent as Headmaster of the school was rejected. 3. Subsequently, the 4[th] respondent filed Ext. P7 petition styling as a review petition under Rule 93 of Chapter XIV-A of KER before the Minister for Education of the Government of Kerala. That review petition was entertained by the 1[st] respondent and upholding the contention of the 4[th] respondent that the institution is a minority institution, accorded sanction to approve the appointment of the 5[th] respondent as Headmaster of the school. The petitioner is challenging Ext. P8 order in this original petition. 4. Earlier, the petitioner had obtained interim orders of stay of Ext. P8 order. But, during the pendency of the original petition, the petitioner retired from service on 30-6-2001. The 4[th] respondent moved C.M.P.No. 46608/2001 seeking to vacate the stay since the petitioner had retired from service. In that C.M.P., this Court passed the following order on 15-10-2001: “As per Ext. P2 dated 18-2-1998, the petitioner has stated a claim for being appointed as headmaster. Thereafter, as per Ext. P9, 5[th] respondent was appointed as Headmistress. This Court by order dt. 11-7-2000 in C.M.P.No.32092/2000 issued an order of injunction initially for a period of one month, which was extended from time to time. In the meanwhile, the petitioner retired on 30-6-2001, it is submitted. Thus the claim of the O.P. No. 18591/2000 -: 3 :- petitioner is for the post of headmaster for the period between 18.2.1998 and 30.6.2001. Now the petitioner retired from service, there is no purpose in continuing the injunction. Therefore, I vacate the order dated 11.7.2000 in C.M.P.No.32092/2000. But, it is clear that in case, it is found that the petitioner was entitled to be appointed as headmaster for the period from February 1998 to June, 2001, he will be entitled for the mandatory benefits attached to the post of headmaster. It is also made clear that in which case, the benefits drawn by the 5[th] respondent during the relevant disputed period as headmistress will have to be adjusted. There will be a direction to the Ist, IInd and IIIrd respondents to file counter affidavits, if any, within a period of two months.” The petitioner would contend that in view of the above circumstances, Ext. P8 is liable to be quashed and Ext. P6 order should be directed to be implemented, on implementation of which the petitioner should be deemed to have been promoted in the place of the 5[th] respondent with consequential monetary benefits as directed in the interim order dated 15-10-2001. 5. The contention of the petitioner is that Ext. P8 is passed without jurisdiction in so far as a review under Rule 93 would lie only against original order of the Government and Ext. P6 order is not an original order of the Government, but only an order in appeal passed by the Director of Public Instruction. 6. A counter affidavit has been filed by the 4[th] respondent as also the 1[st] respondent supporting Ext. P8 order. The 4[th] respondent would contend that now that the 4[th] respondent has proved to the satisfaction of the 1[st] respondent that the institution is a minority institution, there is no point in now considering the question of eligibility of the petitioner for promotion in so far as even if the appointment of the 5[th] respondent is not liable to be approved, which alone has been decided in Ext. P6, the petitioner is not entitled to automatic substitution in the place of the 5[th] respondent in so far as O.P. No. 18591/2000 -: 4 :- even thereafter, the 4[th] respondent can claim minority rights when the question of promotion of the petitioner to that post is being considered. He further submits that even assuming that the Government cannot validly review Ext. P6 order under Rule 93 of Chapter XIV-A of the KER, this Court should not interfere with Ext. P8 order in so far as the result of setting aside Ext. P8 order would be to resurrect Ext. P6 order, which is an illegal order in view of the fact that the 4[th] respondent's institution is in fact a minority institution. In support of his contention, the 4[th] respondent relies on two decisions in **Rameshan** v. **Jayavally** , 2007 (2) KLT 325 and **Roshan Deen** v. **Preeti Lal** , AIR 2002 SC 33. The 4[th] respondent also raises a contention that the Government has power under Rule 93 to review the orders passed under Rule 92 even if it is not an original order. According to the 4[th] respondent, original order only means that the order which has not been appealed against. 7. I have considered the rival contentions in detail. 8. First, I shall consider the question as to whether the Government has powers to review Ext. P6 order in exercise of their powers under Rule 93 of Chapter XIV-A of Kerala Education Rules. Rule 93 of Chapter XIV-A of K.E.R reads thus: “ **93. Review only of original orders** :- Government shall on application of the party, review the original orders. There shall be only one review and application for review shall be made within a period of two months from the date of the order.” Under Rule 93, the Government has powers only to review original orders. That would necessarily mean original orders of the Government itself as distinct from appellate orders. There is no dispute before me that Ext. P6 order has been passed in a revision ## O.P. No. 18591/2000 -: 5 :- filed under Rule 92 against Ext. P5 appellate order, which was passed in an appeal filed against Ext. P4 order of the D.E.O., which is the original order. Therefore, Ext. P6 can never be treated as an original order against which a review would lie under Rule 93. This issue has been settled by a Division Bench decision of this Court in **Rameshan** v. **Jayavally** , 2007 (2) KLT 325. That being so, going by the judgment in **Rameshan's case** (supra) Ext. P8 is clearly without jurisdiction. 9. Learned counsel for the 4[th] respondent would submit that despite the decision in **Rameshan's case** (supra), that decision itself would be sufficient for this Court to refuse to interfere with Ext. P8. He points out that in **Rameshan's case** itself, this Court had refused to interfere with an identical order on the ground that when the result of interfering with that order would be to bring into force a patently illegal order, this Court need not interfere with such an order even though it is without jurisdiction. The 4[th] respondent also relies on the following observation in **Roshan Deen's case** (supra): “ . . . . . . . Time and again, this Court has reminded that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it. {Vide State of Uttar Pradesh v. District Judge, Unnao and others, (AIR 1984 SC 1401)}. The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law.” 10. The observations in those two cases would be applicable only if by quashing Ext. P8 order, an illegality would be protected, which would be an injustice. In this case, admittedly, the petitioner is O.P. No. 18591/2000 -: 6 :- senior to the 5[th] respondent. Therefore, except for the contention of the 4[th] respondent that the institution is a minority institution, on all other counts, admittedly, the petitioner ought to have been preferred to the 5[th] respondent for promotion as Headmaster. The 4[th] respondent has not cared to produce any material whatsoever before the District Educational Officer, Director of Public Instruction or the Government in the first instance to prove that it is a minority institution. It is invoking the jurisdiction under Rule 93 that they sought to prove the same. As on the date of passing Exts. P4, P5 and P6 orders, there is absolutely no material before any of the three authorities to show that the institution is a minority institution. That being so as on the date when Ext. P6 order was passed, the same was valid and proper. I also do not think that any injustice would be caused on implementation of Ext. P6 order. I am not satisfied that Ext. P6 order would be an order patently illegal or causing injustice to anybody. I am also not satisfied that neither the school nor the students of the school would have been put to suffer on implementation of Ext. P6 order. It is not as if the 5[th] respondent was demonstrably superior in merit to the petitioner. Therefore, I am not inclined to entertain the contentions of the 4[th] respondent in this regard. Once it is found that Ext. P8 order is without jurisdiction, naturally Ext. P6 order, which has been passed with jurisdiction, has to be implemented. 11. Counsel for the 4[th] respondent raised another contention. Even assuming that Ext. P6 is valid, that does not automatically mean that the petitioner is entitled to be promoted in the place of the 5[th] respondent whose appointment has been refused to be approved by Ext. P6 order. In other words, what the 4[th] respondent wants to canvass is that apart from denying monetary benefits to the 5[th] O.P. No. 18591/2000 -: 7 :- respondent as Headmaster, Ext. P6 order is of no other consequences. I am not inclined to agree. On revival of Ext. P6 order, naturally the promotions have to be reviewed in the facts and circumstances available as on the date of appointment of the 5[th] respondent ,which has been refused to be approved by Exts.P4 to P6 orders. Exts.P4 to P6 orders have been passed on the specific ground that there was a senior qualified hand available who has to be preferred to the 5[th] respondent. Admittedly that senior qualified hand is the petitioner herein. Therefore, once Ext. P6 is upheld, the natural consequence is that the petitioner is eligible to be substituted in the place of the 5[th] respondent. Physically, that is not possible at this point of time, since the petitioner has already retired from service. But, petitioner's rights have been saved by this Court by the order in C.M.P.No. 46608/2001, which is an order passed in the petition filed by the 4[th] respondent himself. It is not disputed before me that the 5[th] respondent continued in the post uninterruptedly at least till the petitioner retired from service. Therefore, if the petitioner had been given his rightful promotion as headmaster in place of the 5[th] respondent, the petitioner would have continued to hold the post till his retirement. That being so, the petitioner is entitled to monetary benefits as a Headmaster for the period from 18-2-1998 and 30-6-2001, that is, from the date when the 5[th] respondent was promoted till the date when the petitioner retired from service. Accordingly, the original petition is disposed of with the following directions: The 4[th] respondent is directed to issue an appointment order promoting the petitioner to the post of Headmaster in the vacancy held by the 5[th] respondent throughout till the retirement of the petitioner, ie. for the period from 18-2-1998 to 30-6-2001 and forward the same to the 3[rd] respondent. The 3[rd] respondent shall approve the O.P. No. 18591/2000 -: 8 :- same and take appropriate steps to see that the arrears of monetary benefits due to the petitioner on such promotion is paid to the petitioner. If, as a result of such payment, the Government is to incur any additional monetary liability, that would be recovered from the 4[th] respondent. The 4[th] respondent shall forward the appointment order as directed above within two weeks from the date of receipt of a copy of this judgment and the 3[rd] respondent shall approve such appointment and disburse the monetary benefits arising therefrom to the petitioner within one month from the date of receipt of the appointment order from the 4[th] respondent. S. Siri Jagan, Judge. Tds/