P Muhammed Ameen v. Secretary to Government, Department of General Education, Government of Kerala, Thiruvananthapuram, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 14[TH] DAY OF JUNE 2023 / 24TH JYAISHTA, 1945** ## **WP(C) NO. 235 OF 2014** ## **PETITIONER:** P MUHAMMED AMEEN, AGED 27 YEARS, S/O.ABDURAHIMAN(LATE), HIGH SCHOOL ASSISTANT(ENGLISH), DR K.B.MENON MEMORIAL HIGHER SECONDARY SCHOOL, THRITHALA,RESIDING AT P.K.MANZIL,KAKRUKATHIRUTHY VALAVU,PONNANI, MALAPPURAM -679577. BY ADV DR.GEORGE ABRAHAM ## **RESPONDENTS:** - 1 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001. - 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695001. - 3 THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD DISTRICT-678001. - 4 THE DISTRICT EDUCATIONAL OFFICER OTTAPALAM-679101. - 5 THE MANAGER, DR.K.B.MENON MEMORIAL HIGHER SECONDARY SCHOOL, THRITHALA, PALAKKAD DISTRICT-679534. BY ADVS. SMT.NISHA BOSE, SENIOR GOVERNMENT PLEADER SRI.ARUN MATHEW VADAKKAN SRI.SANTHEEP ANKARATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 235 OF 2014 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C)No. 235 of 2014** **---------------------------------------------Dated this the 14[th] day of June, 2023** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) To call for the records leading upto Exhibit P4, P6 and P8 and quash the same to the extent that it approve the appointment of the petitioner as H.S.A. (English) only with effect from 1.6.2011 instead of 1.6.2010, by the issuance of a Writ of Certiorari or any other appropriate writ, order or direction._ _(ii) To issue a Writ of Mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 4 to approve the appointment of the petitioner as H.S.A. (English) with effect from 1.6.2010._ _(iii) To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case.”[SIC]_ WP(C) NO. 235 OF 2014 3 2. The petitioner herein was originally appointed as a Clerk in the school of the 5[th] respondent on 04.06.2007. While so, he was promoted as High School Assistant (English) by appointment order dated 01.06.2010. But his appointment was approved only with effect from 1.6.2011. Aggrieved by the orders passed by the statutory authorities, the 5[th] respondent filed a revision petition. The same is rejected as evident by Ext.P8 order. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P8 order. It will be better to extract Ext.P8 order: ## **GOVERNMENT OF KERALA** No.38410/E2/2013/G.Edn General Education (E) Department, Thiruvananthapuram, Dated: 26/7/2013. WP(C) NO. 235 OF 2014 4 From The Secretary to Government To The Manager Dr.K.B.Menon Memorial High School Trithala (P.O.) Palakkad. Sir, Sub:General Education Department - Aided - Approval of appointment of Sri. Muhammed Ameen, HSA(English) - Reg. Ref: 1. Your Revision Petition dated 27/03/2013. 2. Letter No.EMI/28259/13/DPI/K.Dis dated 20/5/2013 from the Director of Public Instruction, Thiruvananthapuram. **** Inviting attention to the reference cited I am to inform you that in light of G.O.(P)199/11/G.Edn dated 01/10/2011, approval of appointment prior to 01/06/2011 cannot be considered. Hence the Revision Petition is hereby rejected. Yours faithfully, **A. JAMES RAJ** Under Secretary, for Secretary to Government. WP(C) NO. 235 OF 2014 5 5. This is not the way in which a revision filed under Rule 92 of Chapter XIVA of KER is to be disposed of. In **Sudheer T. v. M.V.Susheela and others** [2009 (4) KLT 29], this Court considered this point and observed like this : _“So, whatever be the nature of the jurisdiction, whether it be appellate or revisional, conferred on the Government, they must take the decision, as provided under Article 166 of the Constitution of India, read with the relevant Rules of Business. In view of the above position, we overrule the decision of the Division Bench of this Court in_ _**K. P. SubairHaji v. Secretary to Government** 2007 (4) KHC 62. We are also of opinion that the view in Gullapalli's case (supra) about the principle 'he who heard must decide" is no longer good law as far as the same concerns governmental decisions, in view of the declaration of law made by the Constitution Bench in A. Sanjeevi v. State of Madras (supra) that a file dealt with by a Secretary of a Department can be called for by the Minister and he may pass any order on it or direct the officer to pass order on it in a particular manner. See para 12 of the said decision,_ WP(C) NO. 235 OF 2014 6 _wherein it was held "It is always open to a Minister to call for any file in his Ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case". In other words, principles of natural justice cannot override Article 166 of the Constitution of India and the Rules of Business framed thereunder and this view is fully supported by the interpretation given to them by the Honourable Supreme Court in A. Sanjeevi's case (supra). We are not referring to the other decisions cited by both sides, as they are not directly concerned with Governmental decisions under Article 166 of the Constitution of India read with the relevant Rules of Business of the Government of a State._ _In view of the above position, we set aside the judgment of the learned Single Judge, for having quashed Ext.P5 for violation of the principles of natural justice. The Registry shall place the Writ Petition as per the roster before the learned Single Judge for hearing and disposal of the case, in accordance with law, on merits._ _The appeal is allowed as above.”_ 6. In the light of the above dictum, I am of the considered opinion that Ext.P8 is not a speaking 7 WP(C) NO. 235 OF 2014 order and not an order in tune with Rule 92 of Chapter XIVA KER. Therefore, without expressing any opinion on merit, Ext.P8 can be set aside and the Government can be directed to reconsider the matter afresh. 7. The counsel appearing for the petitioner submitted that, while deciding the revision afresh, the Government may be directed to consider the applicability of G.O.(P)No.4/21/G.Edn dated 06.02.2021. That direction also can be given. Therefore, this writ petition is allowed in the following manner: i. Ext.P8 is set aside. ii. The 1[st] respondent is directed to reconsider the revision filed by the 5[th] respondent after giving an opportunity of hearing to the petitioner and the 5[th] respondent, as expeditiously as possible, at any rate, within a WP(C) NO. 235 OF 2014 8 period of four months from the date of receipt of a certified copy of this judgment. iii. Petitioner is also free to submit additional representation, if any, before the 1[st] respondent, within a period of three weeks from the date of receipt of a certified copy of this judgment. iv. While deciding the matter, the 1[st] respondent will also consider the applicability of G.O.(P)No.4/21/G.Edn dated 06.02.2021. v. Petitioner will produce a certified copy of this judgment along with a copy of the writ petition before the 1[st] respondent for compliance. Sd/- DM ## **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 235 OF 2014 9 ## **APPENDIX OF WP(C) 235/2014** PETITIONER EXHIBITS EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2010 ISSUED BY THE 5TH RESPONDENT EXT.P2 TRUE COPY OF THE ORDER DATED 20.6.2011 OF THE 4TH RESPONDENT EXT.P3 TRUE COPY OF THE APPEAL DAZTED 12.7.2011 SUBMITTED BY THE 5TH RESPONDENT EXT.P4 TRUE COPY OF THE ORDER DATED 13.3.2012 ISSUED BY THE 3RD RESPONDENTQ EXT.P5 TRUE COPY OF THE APPEAL DATED 19.4.2012 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT EXT.P6 TRUE COPY OF THE ORDER DATED 4.8.2012 OF THE 2ND RESPONDENT EXT.P7 TRUE COPY OF THE PETITION FILED BY THE 5TH RESPONDENT BEFORE THE IST RESPONDENT EXT.P8 TRUE COPY OF THE ORDER DATED 26.7.2018 OF THE IST RESPONDENT EXT.P9 TRUE COPY OF THE G.O.199/11/G.EDN.DATED 1.10.2011. EXT.P10 TRUE COPY OF G.O.10/10/G.EDN DATED 12.1.2010. RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE