Kerala High Court
N.K.Viswanathan Nair vs State Of Kerala on 7 July, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 3RD DAY OF MARCH 2016/13TH PHALGUNA, 1937
WP(C).No. 27320 of 2005 (B)
PETITIONER:
N.K.VISWANATHAN NAIR,
HEADMASTER (UNDER SUSPENSION)
PALORa HIGHER SECONDARY SCHOOL, ULLIYERI P.O.
KOZHIKODE DISTRICT.
BY ADVS.SRI.KRB.KAIMAL (SR.)
SRI.B.UNNIKRISHNA KAIMAL
RESPONDENTS:
1. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT
GENERAL EDUCATION DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM.
2. DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM .
3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE.
4. THE DISTRICT EDUCATIONAL OFFICER,
THAMARASSERY, KOZHIKODE DISTRICT.
5. THE MANAGER, PALORA HIGHER SECONDARY SCHOOL
ULLIYERI P.O., KOZHIKODE DISTRICT.
ADDL.6. K.P. GOPALAN, AGED 55 YEARS, S/O. GOVINDAN PAPPU
RETIRED SENIOR ASSISTANT, PALORA HIGHER SECONDARY SCHOOL
ULLIYERI P.O., KOZHIKODE DISTRICT.
* [ADDL. 6TH RESPONDENT IMPLEADED AS PER ORDER DATED 07.07.2006 IN
I.A. NO.912 OF 2006]
BY GOVERNMENT PLEADERSMT. SUNITHA VINOD
BY ADVS. SRI.V.A.MUHAMMED
SRI.K.E.HAMZA
SRI.MATHAI.M.PAIKEDAY (SR.)
SRI.RAJESH THOMAS
SRI.K.P.SHAHUL HAMEED
SRI.P.SREEKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-03-2016,
ALONG WITH WPC. 13202/2006, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 27320 of 2005 (B)
APPENDIX
PETITIONER'S EXHIBITS :-
-----------------------------------
EXT.P1 - COPY OF THE ORDER NO.A5/639/05 DATED 22.03.2005 ISSUED
BY THE 3RD RESPONDENT.
EXT.P2 - COPY OF THE LETTER NO.A5/6391/05 DATED 30.05.2005 OF
THE 3RD RESPONDENT TO THE 5TH RESPONDENT.
EXT.P3 - COPY OF THE MEMO OF CHARGES AND STATEMENT OF
ALLEGATIONS NO.53/2005/MGR DATED 06.06.2005 ISSUED BY
THE 5TH RESPONDENT TO THE PETITIONER.
EXT.P4 - COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER
TO THE 5TH RESPONDENT DATED 08.06.2005.
EXT.P5 - COPY OF THE SHOW CAUSE NOTICE NO.53/05/MGR (2) DATED
14.06.2005 ISSUED BY THE 5TH RESPONODENT TO THE
PETITIONER.
EXT.P6 - COPY OF THE REPLY DATED 17.06.2005 SUBMITTED BY THE
PETITIONER TO THE 5TH RESPONDENT.
EXT.P7 - COPY OF THE ORDER NO.53/2005/MGR(3) DATED 20.06.2005
ISSUED BY THE 5TH RESPONDENT.
EXT.P8 - COPY OF THE ORDER NO.53/2005/MGR(4) DATED 21.06.2005
ISSUED BY THE 5TH RESPONDENT.
EXT.P9 - COPY OF THE LETTER NO.53/2005/MGR(5) DATED 21.06.2005
OF THE 5TH RESPONDENT TO THE 3RD RESPONDENT.
EXT.P10 - COPY OF THE APPOINTMENT ORDER DATED 22.06.2005
ISSUED BY THE 5TH RESPONDENT.
EXT.P11 - COPY OF THE ORDER NO.K.DIS B3-1566/2005 DATED 30.07.2005
OF THE 4TH RESPONDENT.
EXT.P12 - COPY OF THE APPEAL DATED 08.08.2005 FILED BY THE 5TH
RESPONDENT BEFORE THE 3RD RESPONDENT.
EXT.P13 - COPY OF THE ORDER NO.L.DIS-B3-2477/2005 DATED 06.08.2005
OF THE 4TH RESPONDENT.
EXT.P14 - COPY OF THE ORDER NO.A5/6391/05 DATED 03.09.2005 ISSUED
BY 3RD RESPONDENT.
[CONTD.....]
WP(C).No. 27320 of 2005 (B) 2
EXT.P15 - COPY OF THE SHOW CAUSE NOTICE NO.A5-6391/05 DATED
03.09.2005 ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER.
EXT.P16 - COPY OF THE ORDER NO.A5-6391/05 DATED 05.10.2006
ISSUED BY THE 3RD RESPONDENT.
EXT.P17 - COPY OF THE REPRESENTATION DATED NIL/10/2006
SUBMITTED BY THE APPLICANT TO THE 3RD RESPONDENT.
EXT.P18 - COPY OF THE ORDER NO.K.DIS/22714/06/B4 DATED 12.10.2006
ISSUED BY THE 3RD RESPONDENT.
EXT.P19 - COPY OF THE APPOINTMENT ORDER DATED 22.06.2005
ISSUED BY THE 5TH RESPONDENT WITH ENDORSEMENT OF
APPROVAL NO.K.DIS-B3/1674/05 DATED NIL/12/2006 BY THE
4TH RESPONDENT.
RESPONDENTS' EXHIBITS:-
---------------------------------------
EXT.R6(A) - COPY OF THE PROCEEDINGS DATED 31.05.2005 ISSUED BY
THE 5TH RESPONDENT.
EXT.R6(B) - COPY OF THE LIST OF MEMBERS IN THE MANAGING
COMMITTEE PUBLISHED IN THE SCHOOL MAGAZINE.
EXT.R6(C) - COPY OF THE PROCEEDINGS K.DIS. B3-833/05 DATED
27.07.2005 ISSUED BY THE 4TH RESPONDENT.
EXT.R6(D) - COPY OF THE PROCEEDINGS NO.B3-3525/2005 DATED
23.09.2005 ISSUED BY THE 4TH RESPONDENT.
EXT.R6(E) - COPY OF THE PROCEEDINGS NO.A5/6391/2005 DATED
15.02.2006 ISSUED BY THE 2ND RESPONDENT.
EXT.R6(F) - COPY OF SOME OF THE PAGES OF PROMOTION LIST OF
CLASS VIII AND IX ALONG WITH THE COVERING LETTER
DATED 02.05.2006 SIGNED BY THE IMPLEADING PETITIONER.
EXT.R6(G) - COPY OF THE RELEVANT EXTRACT OF THE REGISTER OF
BILLS PERTAINING TO THE MONTH OF MARCH AND
APRIL 2006.
EXT.R6(H) - COPY OF APPEAL PETITION SUBMITTED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT.
EXT.R6(I) - COPY OF THE REPRESENTATION DATED 09.05.2006 FILED BY
THE PETITIONER BEFORE THE 3RD RESPONDENT.
[CONTD.....]
WP(C).No. 27320 of 2005 (B) 3
EXT.R6(J) - COPY OF PROCEEDINGS NO.B3/1674/2005 DATED 27.05.2006
ISSUED BY THE 4TH RESPONDENT HANDING OVER THE
CHARGE FROM THE IMPLEADING PETITIONER TO
SRI. K.K. SASI NAIR.
//TRUE COPY//
P.A. TO JUDGE
sp
K. VINOD CHANDRAN, J.
----------------------------------
W.P(C). Nos.27320 of 2005-B
& 13202 of 2006-V
----------------------------------
Dated this the 3rd day of March, 2016
JUDGMENT
The respective petitioners in the two writ petitions are rival claimants to the post of Head Master, in the respondent aided school. For convenience, WP(C) No.27320 of 2005 is referred to on status of parties and for facts and documents, unless otherwise specified. The petitioner therein was directed to be suspended by the Deputy Director of Education by Ext.P1 dated 22.03.2005. The suspension was effected by the Manager as per Ext.P3 dated 06.06.2005. W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 2 The suspension was for the reason of the question paper for the subject Geography being opened long prior to the exam date. The examination was to be conducted on 21.03.2005, but the question papers were opened on 18.03.2005, in the respondent School. The petitioner, at that time a HSA, was the Deputy Chief Superintendent of the Centre and the SSLC examination had to be cancelled.
2. The Deputy Director of Education had also directed initiation of proceedings for misconduct against the petitioner by Ext.P2 dated 30.05.2005. The Manager issued a charge memo by Ext.P3 dated 06.06.2005. An enquiry was conducted; based on which report, a show-cause notice dated 14.06.2005 was issued at Ext.P5. Following up on Ext.P5, after considering W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 3 Ext.P6 objections filed by the petitioner, Ext.P7 order dated 20.06.2005 was issued, imposing the punishment of debarring from SSLC Examination for two years and barring of increment for six months, without cumulative effect.
3. The petitioner was then re-appointed as per Ext.P8 dated 21.06.2005 and the petitioner's suspension period was treated as eligible leave. The Manager also sought for the approval of his action, of imposing punishment and regularisation of suspension period from the Deputy Director, through Ext.P9 dated 21.06.2005. The petitioner joined duty on 22.06.2005. The petitioner was also appointed as a Headmaster by Ext.P10 dated 22.06.2005.The appointment of the petitioner as Headmaster was W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 4 not approved by the District Educational Officer, as is indicated at Ext.P11. The petitioners request to draw salary in the lower post of HSA till his appointment as HM was also declined by the DEO as is evidenced from Ext.P13.
4. While the petitioner was under suspension the additional 6th respondent, who was junior to the petitioner was appointed as Headmaster-in- charge, in the vacancy that arose on 31.05.2005. When the post of Headmaster arose in the School on 31.05.2005, the petitioner, who was the senior most HSA was under
suspension and the next in line was one Soumini and the 6th respondent, in that order of seniority. The 6th respondent's immediate senior relinquished her claim. The Manager by Ext.P1 W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 5 produced in WP(C) No.13202 of 2005, appointed the 6th respondent as the Headmaster-in-charge, since the other senior had relinquished her claim. The DEO refused to accept the said appointment as Teacher-in-charge on the finding that the 6th respondent was entitled to be appointed regularly to the post of Headmaster of the School. By Ext.P2 dated 27.07.2005(WP(C) No.13202 of 2006), the DEO rejected the approval of appointment as Teacher-in-charge and directed the Manager to appoint the 6th respondent as the Headmaster itself.
5. The Deputy Director of Education (DDE) issued Ext.P14 dated 03.09.2005, again suspending the petitioner from the date of his reappointment. A further show-cause was issued by the DDE dated 03.09.2005, on the very same W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 6 misconduct of leakage of question paper, as evidenced by Ext. P15. The DDE, obviously invoked the power under Rule 75A of the KER, finding the punishment imposed to be inadequate and disproportionate to the gravity of the offence. The petitioner filed the above writ petition challenging the vires of the rule and sought for a direction to consider the appeal preferred by the Manager as Ext.P12. On admission this Court stayed Ext.P14 suspension order and Ext.P15 show-cause notice, which stay continues even now.
6. The further facts are evident from WP(C) No.13202 of 2006, the documents from which are now referred to; but referring to the party status as is already done. By Ext.P3 dated 23.09.2005, the Manager was directed to appoint W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 7 the 6th respondent as the Head Master. The 6th respondent also filed Ext.P6 dated nil before the DDE to direct his appointment as HM. The Manager of the School was disqualified by Ext.P7 order dated 15.02.2006. The 6th respondent then filed WP(C) No.13202 of 2006 claiming declaration of his entitlement to the post of HM and consideration of his appeal Ext.P6 and representation Ext.P8. The 6th respondent also sought for a declaration that, the petitioner was disqualified to be appointed as HM by virtue of Rule 8(1) Chapter III of KER. The said contention was on the ground that the petitioner had been a member of the Managing Committee of the School, which disqualifies him from an appointment in the School.
W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 8
7. Reverting back to the writ petition of the petitioner,the DDE by Ext.P16, despite the show cause-notice being stayed by this Court, continued the proceedings and after hearing the petitioner; concluded the proceedings. The petitioner does not challenge it but only seeks, by way of a prayer in an IA, in which the order of the DDE is produced as Ext.P16 to finalize the proceedings for approval of his appointment as HM. Ext.P16 imposed the punishment of barring of three annual increments with cumulative effect as per the provisions in Rule 81A of Chapter XIVA KER. The petitioner's suspension was also revoked with effect from 23.09.2005, the date on which this Court stayed the operation of the suspension order, Ext.P14. By Ext.P18, the DDE also W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 9 directed the DEO to approve the appointment of the petitioner.
8. The petitioner claims that he has to be approved from a prior period, ie: from the date on which he was appointed by the Manager:22.06.2005. The 6th respondent stakes a claim to the post of Headmaster from 31.05.2005 to his date of retirement on 31.05.2006 in WP (C) No.13202 of 2006.
9. From the aforesaid facts, it is clear that the petitioner was not available in the School when the Headmaster's post arose on 31.05.2005. The petitioner had been suspended and he was also imposed with a punishment by the Manager. Immediately on his re-instatement, the petitioner was again suspended by the DDE. The petitioner was later taken back into the W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 10 school, with effect from 23.09.2005. Hence on 22.06.2005, the petitioner was on suspension and the period of suspension was treated as eligible leave. Without challenging Ext. P-16 he cannot raise any claim for approval of his appointment as HM, prior to 23.09.2005.
10. The 6th respondent in his writ petition claims that he ought to have been appointed as Headmaster with effect from 31.05.2005. To that end, the 6th respondent also places reliance on a Division Bench of this Court in Unnikrishnan v. D.E.O., Palakkad [1996 (1) KLT 501]. The decision is relied on to challenge Ext.R5(a) produced in WP(C) No.13202 of 2006, which is not challenged by the 6th respondent in his writ petition. The prayer is seen in the paper book, but no amendment is seen effected to the writ W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 11 petition. Hence there is no challenge raised against Ext.R5(a).
11. Be that as it may,Ext.R5 (a) is an order of the Government, by which the petitioner was granted an exemption, to be a member of the Managing Committee of the School under Rule 8 (1) Chapter III KER. Rule 8(1) deals with a prohibition with respect to appointment in a School of any person, who is a Manager or member or other Office bearer of the Managing Body of an educational agency. By the first proviso, it is provided that Managers or members or other Office bearers of the Managing Body working as Teachers, including Headmasters when the Rule came into force, may continue to do so.
12. A reading of the Rule would indicate W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 12 that there is no prohibition as such for a Teacher to be appointed as a Manager or member or other Office bearer of the Managing Body. The prohibition is quite the contrary, that such a person, who is a part of the Managing Body, cannot be appointed to the School. Presumably by abundant caution, the petitioner before being appointed as a member of the Managing Body, obtained an exemption from Rule 8(1)as per Ext.R5(a), produced in WP(C) No.13202 of 2006. The Government has such powers under Rule 3 of Chapter I of KER, to dispense with or relax any rule. Without the said relaxation, the prohibition would have operated in so far as the petitioner being not able to claim any further appointment to the School, even to the post of Headmaster, as has W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 13 been declared in Unnikrishnan [supra]. The petitioner, having obtained relaxation of Rule 8 Chapter III, would not be touched by the rigour of Rules, as to the prohibition from appointment.
13. The order of exemption was dated 06.06.1991 long before the present controversy arose. The petitioner,as was noticed, anticipated the difficulty and got himself exempted from the rule when he was appointed to the Managing Committee. The contention of the 6th respondent, as to the petitioners disability could be addressed, only if the order at Ext.R5
(a) is challenged. It is also to be observed that the power to dispense with and relax operation of any rule is on the satisfaction of the Government and it ill behoves this Court to W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 14 interfere under Art.226, unless the action is shown to be downright arbitrary. Definitely it cannot be interfered with on the sole ground of an admitted junior having a claim of over- taking the senior; if such exemption had not been granted.
14. The approval of appointment of the petitioner was when the 6th respondent was continuing in the School, ie. from 23.09.2005. The 6th respondent also was aware of Exts.P16 & P18 orders, since they have been produced in WP (C) No.27320 of 2005. No steps have been taken by the 6th respondent to challenge the orders approving the appointment of the petitioner, before the educational authorities or before this Court.
15. In such circumstance, the appointment of W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 15 the 6th respondent can only be deemed to be one as Teacher-in-charge between 31.05.2005 and 23.09.2005. The appointment of the petitioner as a Headmaster with effect from 23.09.2005 has acquired finality. The petitioner also having not challenged the orders at Ext.P16, no approval can be granted from a prior date. If the petitioner had a contention that the petitioner had to be appointed as Headmaster prior to the dates specified in Ext.P16, he should have either taken the statutory remedy under the KER or at least challenged the orders before this Court.
WP(C) No.27320 of 2005 is unnecessary for reason of the educational authority having passed Exts.P16 & P18 orders. Suffice it to direct the DEO to finalise the approval of the W.P(C). Nos.27320 of 2005-B & 13202 of 2006-V 16 petitioner as directed in Ext.P18. WP(C) No.13202 of 2006 would stand dismissed. No costs.
K. VINOD CHANDRAN, JUDGE.
sp/05/03/16