Sindhu C v. State of Kerala and Others

WP(C) NO. 4978 OF 2015 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH PHALGUNA, 1945** ## **WP(C) NO. 4978 OF 2015** ## **PETITIONER/S:** **SINDHU C AGED 39 YEARS UPPER PRIMARY SCHOOL ASSISTANT, SREE DURGA VILASOM HIGHER SECONDARY SCHOOL, PERAMANGALAM, THRISSUR DISTRICT, PIN - 680 545.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA SRI.V.VARGHESE** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** - **2 DIRECTOR OF PUBLIC INSTRUCTION DIRECTORATE OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM, PIN - 695 014.** - **3 DEPUTY DIRECTOR OF EDUCATION THRISSUR, AYYANTHOLE P.O., THRISSUR, PIN - 680 003.** - **4 DISTRICT EDUCATIONAL OFFICER** WP(C) NO. 4978 OF 2015 2 **DISTRICT EDUCATIONAL OFFICE, TOWN HALL ROAD, THRISSUR, PIN - 680 001.** **5 MANAGER** **SREE DURGA VILASOM HIGHER SECONDARY SCHOOL, PERAMANGALAM, THRISSUR DISTRICT, PIN - 680 545.** **BY ADVS. GOVERNMENT PLEADER SRI.U.BALAGANGADHARAN** ## **OTHER PRESENT:** **SRI BIJOY CHANDRAN, SR GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 4978 OF 2015 3 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C.) No.4978 of 2015 -------------------------------------Dated this the 20[th] day of March, 2024** ## **JUDGMENT** ## The above writ petition is filed with following prayers : (i) “call for the records leading to Exts.P1, P5 and P2 and quash Exts.P1 and P5 and Ext.P2 to the extent objected to in the Writ Petition, by the issuance of a writ of certiorari or any other appropriate writ, order or direction. (ii) 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 Upper Primary School Assistant for the period from 01.06.2009 to 31.03.2010 as one made on scale of pay and disburse the full pay and allowances for the said period within a time limit to be fixed by this Hon'ble Court. and (iii) grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this Writ Petition (Civil).” [sic] 2. The petitioner was appointed as UPSA in the 5[th] WP(C) NO. 4978 OF 2015 4 respondent-school w.e.f. 01.06.2009 against the vacancy consequent on the promotion of one Smt. Dhanya C.G., as HSA(PS) against a vacancy that arose consequent on Smt.Renuka HSA(PS) proceeding on Leave Without Allowance. Approval to the said appointment was declined by the DEO, Thrissur. On appeal filed against that order, the Deputy Director of Education by Ext.P1 rejected the same. When the matter was taken up before the Director of Public Instruction, the appointment of the petitioner was directed to be approved for the period from 13.08.2009 to 31.05.2010, that too, only on daily wages. Aggrieved by Ext.P4, revision was filed before the Government. Without considering the contention of the petitioner, the revision is dismissed as per Ext.P5 is the grievance. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. A perusal of the impugned orders would show that the main reason for not approving the petitioner's appointment on regular basis WP(C) NO. 4978 OF 2015 5 from 01.06.2009 to 31.05.2010 was because the appointment of Smt.Dhanya CG as HSA (PS) was approved only from 13.08.2009. But from Ext.P3, it is clear that the appeal filed by the Manager to approve the appointment of Smt.Dhanya CG as HSA (PS) from 01.06.2009 to 31.05.2010 in SDVHSS, Peramangalam is allowed. If that is the case, I am of the considered opinion that the petitioner is also entitled approval on regular basis from 01.06.2009 onwards. The matter is to be reconsidered by the Government. Moreover, Ext.P5 is an order passed in a review petition. It is in a letter form. This is replicated by this Court in **Sudheer T.** v. **M.V. Susheela and others** [2009 (3) KHC 991] .The relevant portion of the above judgment is extracted hereunder : 21. “We have mentioned the above point to emphasise that in matters of statutory appeals and revisions before the Government, decisions are taken in accordance with the Rules of Business and communicated in the name of the Governor. The order may be signed by the Secretary / Additional Secretary / Joint Secretary / Deputy Secretary or Under Secretary, as the case may be. But the decision may or may not be one taken by WP(C) NO. 4978 OF 2015 6 the officer who signed it. In Sanjeevi's case (supra), the Apex Court has specifically upheld the power of the Minister concerned to call for any file and take a decision, even though the officers under him may be competent to deal with the said matter and also the power to issue directions to the officers regarding the disposal of a specific case and in that event the officers can take decision in that case, subject to such directions only. In some cases, the files have to be sent to the Chief Minister. In certain other matters, the Council of Ministers alone can take decisions. We have quoted the Rules of Business, wherein there is mandatory consultation with Finance Department and Law Department on certain specified matters. So, a decision, as mentioned earlier, can never be taken according to the personal opinion of the Secretary, who heard the matter. Even if the Secretary who heard the matter may entertain a particular view, the Minister can call for the file and take a different decision or direct the Secretary to take decision in a different manner. As mentioned earlier, the said power of the Minister under Art.166, is recognised by the Apex Court in Sanjeevi's case (supra). So, the provisions of Art.166 of the Constitution, as interpreted by the Apex Court and the Rules of Business framed thereunder, cannot be overridden by the principles of natural justice. It is a well settled principle of law that rules of natural justice will step in where the statutory provisions are silent. Where express statutory provisions exist excluding natural justice, the rules of natural justice cannot be brought in by a side wind. (See -- Union of India v. Tulsiram Patil, 1985 KHC 666 : AIR 1985 SC 1416 : 1985 (3) SCC 398 : WP(C) NO. 4978 OF 2015 7 1985 SCC (L&S) 672 : 1985 Lab IC 1393 : 1985 (2) LLJ 206.). If we interpret that, when an Under Secretary hears the matter, he alone can decide because he happened to hear the case, then we will be cutting at the root of the Constitutional principle of Ministerial responsibility envisaged under our Constitution. If the Secretary who heard the matter can decide according to his view, even though the Minister is maintaining a different view and even though the Minister is answerable to the Legislature, by invoking the vague principles of natural justice, we cannot sustain such an interpretation, which will subvert Constitutional democracy. So, we are of the view that, when the Government are conferred with the power of revision or appeal under a Statute, they can take that decision in accordance with their procedure. In Sardarilal v. Union of India, 1971 KHC 454 : AIR 1971 SC 1547 : 1971 (1) SCC 411 : 1971 (1) LLJ 315, the Apex Court held that when the power under Art.311(2)(c) is conferred on the President, the President shall personally take the decision. The said decision has been overruled in Samsher Singh's case (supra). In the latter case, it was held that the decision to discharge a probationer or terminate an officer in the Subordinate Judicial Service can be taken by the Government, though the Rules entrust the decision to the Governor. The power of the Government to hear an appeal is a judicial power. Still the Apex Court held that it is part of the executive power of the State. On this aspect, in Samsher Singh (supra), it was held as follows: '29. The executive power is generally described as the residue which does not fall within the legislative or judicial power. But executive power may also partake of legislative or WP(C) NO. 4978 OF 2015 8 judicial actions. All powers and functions of the President except his legislative powers as for example in Art.123, viz., ordinance making power and all powers and functions of the Governor except his legislative power as for example in Art.213 being ordinance making powers are executive powers of the Union vested in the President under Art.53(1) in one case and are executive powers of the State vested in the Governor under Art.154(1) in the other case. Clause (2) or clause (8) of Art.77 is not limited in its operation to the executive action of the Government of India under clause (1) of Art.77. Similarly, clause (2) or clause (3) of Art.166 is not limited in its operation to the executive action of the Government of the State under clause (1) of Art.166. The expression 'Business of the Government of India' in clause (3) of Art.77 and the expression 'Business of the Government of the State' in clause (3) of Art.166 includes all executive business.' 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 Art.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. Subair Haji v. Secretary to Government, 2007 (4) KHC 62 : ILR 2007 (4) Ker. 67 : 2007 (4) KLT SN 38 : 2007 (4) KLT 865 : 2007 (3) KLJ 865. 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 WP(C) NO. 4978 OF 2015 9 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, 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 Art.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 Art.166 of the Constitution of India read with the relevant Rules of Business of the Government of a State.” 5. In the light of the above facts, I am of the considered opinion that Ext.P5 is to be set aside. Therefore, this writ petition is disposed of with the following directions : 1) Ext.P5 is set aside. 2) The 1[st] respondent is directed to reconsider the matter in the light of the observation in the judgment after giving an WP(C) NO. 4978 OF 2015 10 opportunity of hearing to the petitioner and pass appropriate orders, as expeditiously as possible, at any rate, within four months from the date of receipt of a certified copy of this judgment. 3) While deciding the matter, the 1[st] respondent will consider Ext.P3 by which the appointment of Smt.Dhanya CG is approved as HSA(PS) from 01.06.2009 to 31.05.2010 ## **sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 4978 OF 2015 11 ## **APPENDIX OF WP(C) 4978/2015** ## **PETITIONER EXHIBITS** **EXT.P1: TRUE COPY OF THE ORDER NO. B3/15562/2012/K.DIS. DATED 08/03/2013 OF THE 3RD RESPONDENT.** **EXT.P2: TRUE COPY OF THE ORDER NO. EC(4)/38488/13/DPI/K.DIS. DATED 10/03/2014 OF THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION (GENERAL).** **EXT.P3: TRUE COPY OF THE ORDER NO. K.DIS.EC4/58196/2010/DPI DATED 17/08/2012 OF THE DIRECTOR OF PUBLIC INSTRUCTION.** **EXT.P4: TRUE COPY OF THE REVISION PETITION DATED 21/05/2014 FILED BY THE PETITIONER BEFORE THE GOVERNMENT.** **EXT.P5: TRUE COPY OF THE GOVERNMENT LETTER NO. 45249/B2/2014/GEDN DATED 01/01/2015.**