Nisha Renjan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **WP(C).No.6322 OF 2016(M)** ## **PETITIONER/S:** **NISHA RENJAN, AGED 26 YEARS, ASSISTANT TEACHER, ST.CLARE ORAL SCHOOL FOR THE DEAF, MANICKAMANGALAM P.O., KALADY, ERNAKULAM DISTRICT.** **BY ADVS. SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.P.A.RINUSA** ## **RESPONDENT/S:** **1 STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DISTRICT EDUCATIONAL OFFICER, ALUVA-683 101.** - **3 SR.ANNIE VALLIPADAM, MANAGER, ST.CLARE ORAL SCHOOL FOR THE DEAF, MANICKAMANGALAM P.O., KALADY, ERNAKULAM DISTRICT-683 574.** - **4 HEADMISTRESS, ST.CLARE ORAL SCHOOL FOR THE DEAF, MANICKAMANGALAM P.O., KALADY, ERNAKULAM DISTRICT-683 574.** **BY ADVS.** **R1-2 - SRI. JESTIN MATHEW, GOVERNMENT PLEADER R3-4 - SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-11-2019, THE COURT ON 26-11-2019 DELIVERED THE FOLLOWING:** **W.P.(C)No.6322 of 2016** **2** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P15 order passed by the State Government, holding that petitioner is not entitled to get the benefits of Rules 43, 51A and 51B of the Kerala Education Rules, and the request of the petitioner to appoint her overlooking the Rules cannot be sustained, and thereupon, the order of the Director of Public Instruction was set aside, also holding that the action taken by the Manager of the school, withdrawing the proposal put forth to approve the appointment of the petitioner was in order. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner has been working as Assistant Teacher in St. Clare Oral School for the Deaf, Kalady, Ernakulam District, on daily wage basis from 01.07.2010 to 31.03.2011, and in a regular vacancy from 01.06.2011 to 18.06.2013. The 3[rd] respondent is the Manager of the school and the 4[th] respondent is the Headmistress. On change of personal of the Manager of the school at the beginning of the Academic Year 2013-2014, the new Manager refused to take any steps to comply with the repeated directions issued by the educational authorities to approve petitioner's appointment in the ## **W.P.(C)No.6322 of 2016** ## **3** permanent vacancy with effect from 01.06.2011 onwards. Thereupon, Ext.P3 order dated 06.03.2013 was issued by the Director of Public Instruction, whereby the District Educational Officer was directed to reconsider the matter declining approval to the petitioner. 3. In implementation of the direction issued by this Court in Ext.P8 judgment in W.P.(C) No.16927 of 2013 dated 01.08.2013 secured by the petitioner, Ext.P9 order was issued by the District Educational Officer on 18.10.2013, directing the new Manager to submit petitioner's appointment proposal for approval. However, the new Manager refused to comply with the direction. As per Ext.P13 order dated 10.02.2014, even though the District Educational Officer once again directed the new Manager to submit petitioner's appointment proposal, that order was also not implemented by the Manager. 4. Later, the Manager approached this Court by filing W.P.(C) No.31223 of 2013 to direct the Director of Public Instruction to consider Ext.P5 application submitted by the Manager seeking permission for withdrawal of appointment of the petitioner herein, evident from Ext.P10 judgment. Thereupon, the Director ## **W.P.(C)No.6322 of 2016** ## **4** of Public Instruction as per Ext.P11 order dated 01.04.2014 specifically directed the present Manager to submit petitioner's appointment proposal before the District Educational Officer, that direction was also flouted by the new Manager. But, in a revision submitted by the new Manager before the Government by an interim order, Government kept Ext.P11 order in abeyance. Thereafter, Ext.P15 final order dated 20.10.2015 is passed, allowing the revision filed by the Manager and permitted withdrawal of appointment of the petitioner. These are the basic background facts projected by the petitioner to secure the reliefs as are sought for in the writ petition. 5. The 1[st] and 2[nd] respondents have filed separate counter affidavits, justifying the stand adopted by the Government. Among other contentions, it is stated that, the petitioner was appointed against a new vacancy sanctioned as per G.O.(MS)No.338/05/G.Edn., Thiruvananthapuram dated 27.08.2005 from 01.07.2010 to 31.03.2011 on daily wage basis and the appointment was approved as per the order dated 20.12.2010 and from 01.06.2011, she was appointed in scale of pay basis. Fact remains, as per the above Government Order dated 27.08.2005, the Manager had no authority to create **W.P.(C)No.6322 of 2016 5** posts in the school, and hence the appointment from 01.06.2011 was rejected by the office of the 1[st] respondent. 6. It is also stated that, as per the staff fixation order for the year 2011-12, 6 Assistant Teacher posts were sanctioned in the school and in which 5 teachers were working and 6[th] post was vacant, in which the Manager appointed the petitioner from 01.06.2011 onwards and petitioner had approved service as daily wages teacher from 01.07.2010 to 31.03.2011. However, she is not a claimant in accordance with Rules 43, 51A and 51B of Chapter XIV-A K.E.R. It is also submitted that, the Director of Public Instruction as per order dated 06.03.2013 has remitted back the matter to the District Educational Officer, Aluva for consideration, if it was otherwise in order. Anyhow, Ext.P9 order passed by the District Educational Officer was under challenge in W.P.(C) No.31223 of 2013 filed by the Manager and it was accordingly that Ext.P10 application submitted by the Manager seeking permission to withdraw the appointment was directed to be considered. However, the Director of Public Instruction as per Ext.P11 order, directed the District Educational Officer to consider the case of the **6** ## **W.P.(C)No.6322 of 2016** petitioner and consequentially, Ext.P13 order was passed, and it was aggrieved by that order, the Manager has preferred revision before the Government and the Government allowed the revision submitted by the Manager. 7. Respondents 3 and 4 have also filed a very detailed counter affidavit, justifying their stand adopted against the petitioner seeking to withdraw the appointment. The appointment of the petitioner on daily wage basis and later against a regular vacancy are all admitted by the respondents. However, it is submitted that, the appointment of the petitioner from 01.06.2011 as per Ext.P1 was placed for approval, however, it was rejected as per Ext.P2. The 2[nd] respondent i.e., the District Educational Officer, Aluva wanted to ascertain the genuineness of the Degree certificate of the petitioner on instructions from the DPI. Accordingly, the 2[nd] respondent wrote to the University on 30.04.2012, evident from Ext.R3(a). The Manager challenged Ext.P2 before the DPI and it was accordingly that as per Ext.P3 order, the matter was remitted to consider the question of approval of the petitioner to the District Educational Officer. In the meanwhile, in the light of the change in circumstances **W.P.(C)No.6322 of 2016** **7** and other reasons, affecting the welfare of the school and the students, the educational agency decided to withdraw the appointment of the petitioner before it was approved. 8. The case projected by the respondents is that, by virtue of the judgment rendered by this Court in ' _**Vijayamma v. State of Kerala**_ ' [ILR 1973 (1) Kerala 795], the Manager, for valid reasons, can request to return the appointment before its approval. Accordingly, as per Ext.P5, the Manager applied to the 2[nd] respondent for withdrawal of Ext.P1 appointment. But the District Educational Officer on 27.06.2013 as per Ext.R3(b) communication informed the Manager that a decision on Ext.P5 is to be taken by the DPI. In view of the above contingency, the Manager immediately approached the DPI with an application similar to Ext.P5 for withdrawing the appointment of the petitioner, evident from Ext.R3(c). While so, pursuant to Ext.P8 judgment of this Court in the writ petition filed by the petitioner, in which no notice was issued to the Manager, the D.E.O issued Ext.P9 proceedings. On receipt of Ext.P9 order, petitioner has submitted Ext.R3(d) reply. Thereafter, the Manager approached this Court and secured Ext.P10 judgment. **W.P.(C)No.6322 of 2016** **8** 9. Case of the Manager is that, it was ignoring the judgment in ' _**Vijayamma**_ ' ( _supra_ ), the 2[nd] respondent passed Ext.P11 order. Anyhow, being aggrieved by the order, a revision was preferred before the Government and the Government have allowed the revision and permitted the Manager to withdraw the appointment. It is also pointed out that, immediately after Ext.P15 order of the Government, one Smt. Viji E.O. was appointed on 22.10.2015 as Assistant Teacher and the appointment and proposal was forwarded to the 2[nd] respondent on 04.11.2015, evident from Ext.R3(g). The approval of the same was declined stating that protected hand is not appointed, evident from Ext.R3(h) dated 22.07.2016. The appointment as per Ext.R3(g) was made long prior to the filing of the writ petition and the interim order of this Court. Therefore, it is contended that, the reasons stated in Ext.R3(h) makes the petitioner also ineligible for appointment, and Ext.R3(h) is now pending in appeal. The sum and substance of the contention put forth by the Manager is that, petitioner has not made out any case justifying interference in Ext.P15 order passed by the State Government. **W.P.(C)No.6322 of 2016** **9** 10. I have heard learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for the Manager and perused the pleadings and the documents on record. 11. The prime contention advanced by learned counsel for the petitioner is that, once appointment is made, the Manager has no authority to withdraw the same and further that, the Manager is duty bound to implement the instructions issued by the educational authorities. It is also pointed out that, the wilful disobedience on the part of the Manager to implement the orders of the educational authorities is unpardonable. Learned counsel in that regard has invited my attention to the judgment of this Court in ## ' _**Jayasree v. Director of Public Instruction**_ ' [2002 (2) KLT 346], wherein it was held that the Manager is bound to obey the direction issued by the Director of Public Instruction, and he cannot ignore the same saying that it is in conflict with some decisions of the High Court. 12. Learned counsel has also invited my attention to a Division Bench judgment of this Court in ' _**Balakrishnan Nair v. State of Kerala**_ ' [2008 (1) KLT 923], holding that Manager of an aided school has no **W.P.(C)No.6322 of 2016** **10** power to review and cancel appointment of a teacher as Headmaster, after appointment is approved by the Educational Officer. Therefore, it is contended that, Ext.P15 order passed by the State Government is in violation of the legal principles laid down by this Court in the afore-quoted judgments. 13. On the other hand, learned counsel appearing for the Manager has invited my attention to the judgment of this Court in ' _**Vijayamma**_ ' ( _supra_ ), and specifically invited my attention to paragraph 6, wherein it is held that, as soon as the Manager came to know that the District Educational Officer abolished the post on 18[th] August, 1977, the Manager requested for return of the 3[rd] respondent's appointment or submitted for approval to the 2[nd] respondent. Therefore, there was nothing wrong in the educational authority returning the appointment order. It was further held that, the educational authority had the power either to approve the appointment or decline to approve the appointment, and the appointment becomes effective from the date on which the teacher joined duty provided it is approved. Therefore, it is contended that, when the appointment was sought to be withdrawn by the Manager before the approval was made, ## **W.P.(C)No.6322 of 2016** ## **11** the request made by the Manager is in order and, therefore, no interference is warranted to Ext.P15 order passed by the State Government. 14. Learned Government Pleader has also advanced arguments in accordance with the counter affidavit put forth and supporting the order passed by the State Government. 15. The sole question to be considered is, whether any manner of interference is warranted to Ext.P15 order. The Government, after examining the _pros and cons_ of the contentions put forth by the respective parties, have found that petitioner is not entitled to any benefits of Rules 43, 51A and 51B of K.E.R and the appointment of the petitioner was not approved, the Manager was entitled to withdraw the appointment, and accordingly it was found that the order passed by the Director of Public Instruction, directing the District Educational Officer to take appropriate action for approval of the appointment of the petitioner was not in order. 16. I have evaluated the factual and legal circumstances put forth by the respective counsel. It is an admitted fact that the appointment of the petitioner was never approved by the educational ## **W.P.(C)No.6322 of 2016** **12** authority. Therefore, the Manager was always at liberty to seek withdrawal of appointment. It was thereupon that the application was filed by the Manager. The judgment cited for consideration by learned counsel for the petitioner in ' _**Balakrishnan Nair**_ ' ( _supra_ ) is also to the effect that once the appointment is approved by the educational officer, the Manager has no authority to review the appointment order. Paragraphs 16 and 17 of the said judgment are relevant to the context, which read thus: “ **16** . _The Apex Court has in Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji (AIR 1970 SC 1273) held that the power to review is not a inherent power and that it must be conferred by law either specifically or by necessary implication. No provision in the Kerala Education Act, 1958 or the Kerala Education Rules, 1959 was brought to our notice, empowering the manager of an aided school to review an order of appointment issued by him and approved by the educational authorities, who are on the terms of R.81A of Chap.XIVA of the K.E.R., officers superior to the manager. We are also not persuaded to agree that the manager of an aided school has any implied power to unsettle the decisions taken by the superior officers. If such an implied power is conceded to the manager of an aided school, it will lead to a situation where the manager will be able to terminate the services of a teacher without resort to disciplinary proceedings. It is evident from the scheme of Chap.XIVA of the K.E.R. that the manager of an aided school cannot revoke or cancel an appointment made by him and approved by the educational authorities. R.7 of Chap. XIVA of the K.E.R. stipulates that the appointment of a teacher shall be effective from the date on which a teacher is admitted to duty, provided the appointment is duly approved by the Educational_ **W.P.(C)No.6322 of 2016** **13** _Officer. The fifth respondent's appointment as Headmaster was duly approved. The first appellant, the educational authority of the school or the second appellant, the manager of the school cannot therefore revoke the said appointment and revert the fifth respondent to the post of Part-time Sanskrit Teacher. We therefore hold that the appellants had no jurisdiction or authority and were not competent to review the appointment of the fifth respondent as Headmaster._ _**17** . In the light of the provisions contained in R.81A of Chap.XIV of the K.E.R., the manager of an aided school who is a lower or subordinate authority to the Educational Officers and the State Government was bound to implement Ext.P5. We have no hesitation to hold that the attempt of the appellants was to overreach Ext.P5 Government order dated 24.9.1996. We also notice that Ext.P5 order dated 24.9.1996 has become final and has not been challenged till date. It was taking note of the totality of the circumstances indicated above that the State Government issued Ext.P9 order dated 12.6.1997. In view of the authoritative pronouncement of the Apex Court and of this Court in the decisions referred to above, we hold that no exception can be taken to the findings and directions in Ext.P9._ 17. So far as the judgment in ' _**Jayasree**_ ' ( _supra_ ) is concerned, it was considering the question as to whether the Managers are duty bound to obey the orders passed by the educational authorities and it was held that the directions issued by the educational authorities are bound to be implemented by the Manager. However, this is a case where the Manager has challenged the order of the Director of Public Instruction and the Government has interfered with the same and, therefore, the proposition of law laid down ## **W.P.(C)No.6322 of 2016** ## **14** in the said decision may not have much relevance to the facts and circumstances of this case. 18. Taking into account all these aspects, I am of the considered opinion that, Ext.P15 order passed by the State Government is in accordance with law, and it is also passed after providing sufficient opportunity of hearing to the petitioner as well as all other interested persons and sufficient reasons are assigned while allowing the Manager to withdraw the appointment of the petitioner. It is also clear that before the filing of this writ petition, yet another teacher was appointed by the Manager and thereupon, the interim order passed by this Court on 19.02.2016 was not implemented by the Manager consequent to want of vacancy. The said person is not a party in this writ petition. Having regard to the facts and circumstances of the case, the writ petition has no sustenance, and accordingly it is dismissed. ## **Sd/SHAJI P.CHALY** ## **JUDGE** **W.P.(C)No.6322 of 2016** **15** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 1-6-2011 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P2 A TRUE COPY OF THE REJECTION ORDER ISSUED BY THE 2ND RESPONDENT ON 08-02-2012. EXHIBIT P3 A TRUE COPY OF THE ORDER ISSUED BY THE DPI DT. 06-03-2013 ALLOWING THE APPEAL FILED BY THE MANAGER. EXHIBIT P4 A TRUE COPY OF THE COMPLAINT DT. 19-6-2013 FILED BY THE PETITIONER BEFORE THE DEO. EXHIBIT P5 A TRUE COPY OF THE LETTER DT. 17-6-2013 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE LETTER DT. 12-7-2013 AND COPY OF THE COMPLAINTS ANNEXED TO THAT LETTER BY 4TH RESPONDENT TO THE DEO. EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION DT. 12-7-2013 FILED BY THE 3RD RESPONDENT BEFORE THE DPI. EXHIBIT P8 A TRUE COPY OF THE JUDGMENT DT. 1-8-2013 IN WPC.NO.16927/2013 EXHIBIT P9 A TRUE COPY OF THE ORDER DT. 18-10-2013 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DT. 1-1-2014 IN WPC.NO.31223/2013 EXHIBIT P11 A TRUE COPY OF THE ORDER NO.M5/55945/13 DT 1-4-2014 ISSUED BY THE DPI. EXHIBIT P12 A TRUE COPY OF THE LETTER DT. 24-1-2014 BY THE DIRECTOR OF ALI YAVAR JUNG NATIONAL INSTITUTE OF HEARING IMPAIRED. EXHIBIT P13 A TRUE COPY OF THE LETTER DT. 10-2-2014 SENT BY THE DEO TO MANAGER. EXHIBIT P14 A TRUE COPY OF THE OBJECTION DT 25-10-2014 SUBMITTED BY THE PETITIONER BEFORE THE GOVT.** **W.P.(C)No.6322 of 2016** **16** **EXHIBIT P15 A TRUE COPY OF THE ORDER DT. 20-10-2015 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P16 TRUE COPY OF DIPLOMA CERTIFICATE ISSUED BY THE DIRECTOR OF NATIONAL INSTITUTE FOR THE HEARING HANDICAPPED, MUMBAI DT. 5-3-2008.** - **EXHIBIT P17 TRUE COPY OF TRAINED TEACHERS' CERTIFICATE ISSUED BY THE GOVT. OF KERALA DATED 15-10-2009.** - **EXHIBIT P18 TRUE COPY OF CERTIFICATE ISSUED BY THE CHAIR PERSON OF THE REHABILITATION COUNCIL OF INDIA DT. 9-6-2008.** - **EXHIBIT P19 TRUE COPY OF APPOINTMENT ORDER ISSUED BY THE MANAGER DT. 1-7-2010 TO THE PETITIONER.** - **EXHIBIT P20 TRUE COPY OF LETTER ISSUED BY THE THEN MANAGER DT 9-4-2012 ADDRESSED TO THE DPI.** - **EXHIBIT P21 A TRUE COPY OF LETTER DT. 23-7-2012 ISSUED BY THE DEO ADDRESSED TO THE DEPUTY DIRECTOR, ERNAKULAM.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(A) COPY OF THE COMMUNICATION NO.B5/7628/12 DATED 30.4.2012 ISSUED BY THE 2ND RESPONDENT TO THE UNIVERSITY.** - **EXHIBIT R3(B) COPY OF THE COMMUNICATION NO.B5-4134/2013 DATED 27.6.2003 ISSUED BY THE 2ND RESPONDENT TO THE MANAGER OF 3RD RESPONDENT SCHOOL.** **EXHIBIT R3(C) COPY OF THE APPLICATION VIDE NO.A2-2013 DATED 12.7.2013 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE DIRECTOR OF PUBLIC INSTRUCTIONS. EXHIBIT R3(D) COPY OF THE REPLY NO.7/2013 DATED 7.12.2013 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT R3(E) COPY OF THE REVISION PETITION DATED 1.7.2014 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT WITHOUT ENCLOSURES.** **W.P.(C)No.6322 of 2016** **17** **EXHIBIT R3(F) COPY OF THE WRITTEN ARGUMENT NOTE SUBMITTED BY THE MANAGER OF THE SCHOOL BEFORE THE 1ST RESPONDENT ON 17.12.2014 WITHOUT ENCLOSURES. EXHIBIT R3(G) COPY OF THE APPOINTMENT ORDER DATED 22.10.2015 AND PROPOSAL DATED 4.11.2015 ISSUED BY THE MANAGER OF THE SCHOOL. EXHIBIT R3(H) COPY OF THE ORDER NO.B5/6566/15 DATED 22.7.2016 OF THE 2ND RESPONDENT. EXHIBIT R3(I) COPY OF THE APPOINTMENT ORDER NO.B54857/10/D.DB DATED 20.12.2010 ISSUED BY THE MANAGER OF THE SCHOOL.**