Kerala High Court
The Manager vs State Of Kerala on 4 April, 2011
Author: P.N. Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
MONDAY, THE 4TH DAY OF MARCH 2013/13TH PHALGUNA 1934
WP(C).No. 5902 of 2013 (K)
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PETITIONER:
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THE MANAGER
M.V.HIGHER SECONDARY SCHOOL, ARUMANOOR, POOVAR PO
THIRUVANANTHAPURAM 695 525
RESIDING AT RATNA MANDIRAM, T.B.JUNCTION
NEYYATTINKARA, THIRUVANANTHAPURAM 695 121.
BY ADVS.SRI.A.N.RAJAN BABU
SRI.P.GOPALAKRISHNAN (MVA)
SRI.A.R.EASWAR LAL
RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT
GENERAL EDUCATION(T) DEPARTMENT
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2. THE DIRECTOR HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDING, SANTHI NAGAR
THIRUVANANTHAPURAM 695 001.
3. THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION
CORPORATION BUILDING, 4TH FLOOR, PALAYAM
THIRUVANANTHAPURAM 695 033.
4. SMT.MINI.R
H.S.S.T(BOTANY), M.V.HIGHER SECONDARY SCHOOL
ARUMANOOR, POOVAR PO, THIRUVANANTHAPURAM 695 525
RESIDING AT KULIRMA HOUSE, ALUMMOOD, NEYYATTINKARA PO
THIRUVANANTHAPURAM.
R BY GOVERNMENT PLEADER SMT.M.A.FAYAZ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 5902 of 2013 (K)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RESIGNATION LETTER DATED 4/4/2011 SUBMITTED
BY THE 4TH RESPONDENT TO THE PETITIONER
EXHIBIT P2 TRUE COPY OF ORDER NO.H-117/2010-11 DATED 12/5/2011 ISSUED
BY THE PETITIONER
EXHIBIT P3 TRUE COPY OF THE LETTER SENT BY THE 4TH RESPONDENT TO THE
PETITIONER DATED 12/5/2011
EXHIBIT P3(A) TRUE COPY OF THE LETTER ALLEGATION AGAINST THE MANAGEMENT
SENT BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT DATED 15/9/2011
EXHIBIT P4 TRUE COPY OF THE LETTER NO.TRO/04/14450/HSE/2011 DATED
19/10/2011 ISSUED BY THE 3RD RESPONDENT
EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT ORDER
NO.ACD B3/36179/2011/HSE DATED 17/12/2011
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 8/2/2012 IN WP(C) NO.
2060/2012 OF THIS HON'BLE COURT
EXHIBIT P7 TRUE COPY OF G.O.(RT)NO.1287/2012/G/EDN. DATED 16/3/2012
ISSUED BY THE GENERAL EDUCATION DEPARTMENT.
EXHIBIT P8 TRUE COPY OF INTERIM ORDER IN WP(C) NO. 8047/2012 DATED
30/3/2012 OF THIS HON'BLE COURT
EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 8047/2012 DATED
11/4/2012 OF THIS HON'BLE COURT
EXHIBIT P10 TRUE COPY OF JUDGMENT IN WA NO.1374/2012 DATED 5/9/2012 OF
THIS HON'BLE COURT
EXHIBIT P11 TRUE COPY OF THE ORDER G.O.(RT)NO.6007/2012/E EDN. DATED
15/12/2012 ISSUED BY THE GENERAL EDUCATION (T) DEPARTMENT
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
Scl.
P.N. RAVINDRAN, J.
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W.P.(C) No.5902 of 2013
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Dated this the 4th day of March, 2013
JUDGMENT
Ext.P11 Government order dated 15-12-2012, whereby, after regularising the period from 19-10-2011 to 3-4-2012, during which the fourth respondent was absent from duty, as duty for all purposes except pay and allowances, the Government directed the petitioner to disburse pay and allowances during the said period to her from the maintenance grant due to the school, is under challenge in this writ petition. The brief facts of the case are as follows:
2. The petitioner is the Manager of an aided Higher Secondary School. The fourth respondent herein, a Higher Secondary School Teacher in Botany, was the Principal-in-charge of the school. On account of the reasons set out in Ext.P1, she resigned from the post of Principal-in-charge of the school. Though Ext.P1 letter is dated 4-4-2011, it is not in dispute that the date 4-
4-2011 is a mistake and it was submitted to the Manager only on 4- 5-2011. The Manager accepted it on 12-5-2011 with immediate effect and forwarded it to the Regional Deputy Director, Higher Secondary Education, Thiruvananthapuram along with a detailed W.P.(C) No.5902 of 2013 2 covering letter.
3. The fourth respondent had in the meanwhile submitted Ext.P3 letter dated 12-5-2011 to the petitioner informing him that the date 4-4-2011 occurring in Ext.P1 is a mistake, that she has resigned only from the post of Principal-in-charge and that she will be continuing as a teacher in the school. The petitioner accepted the letter of resignation, issued Ext.P2 proceedings dated 12-5-2011 and forwarded it to the Regional Deputy Director, Higher Secondary Education, Thiruvananthapuram for approval along with a letter dated 12-5-2011. Thereupon, a dispute arose between the petitioner on the one hand and the fourth respondent on the other, as regards her continuance in service. By Ext.P4 letter dated 19-10-2011, the Regional Deputy Director directed the petitioner to permit the fourth respondent to rejoin duty. He took the stand that the letter of resignation has not been attested by two other teachers. Such a direction was issued pursuant to a hearing conducted on 15-9-2011. The Manager thereupon filed W.P.(C) No.30207 of 2011 in this Court challenging Ext.P4 letter. The fourth respondent filed W.P.(C) No.30868 of 2011 in this Court seeking implementation of the direction therein. The said writ petitions were disposed of by judgment delivered on 22-11-2011, with a direction to the Director of W.P.(C) No.5902 of 2013 3 Higher Secondary Education to conduct a hearing and take a decision in the matter after considering the rival contentions.
4. Pursuant thereto, the Director of Higher Secondary Education heard the parties, considered the rival contentions and passed Ext.P5 order dated 17-12-2011. He held that the Regional Deputy Director has not approved the resignation of the fourth respondent from the post of Higher Secondary School Teacher (Botany). The appeal filed by the petitioner was accordingly rejected and he was directed to allow the fourth respondent to re-join duty as Higher Secondary School Teacher (Botany). Aggrieved thereby, the petitioner filed a revision petition before the State Government. He thereafter filed W.P.(C) No.2060 of 2012 in this Court. By Ext.P6 judgment delivered on 8-2-2012, this Court directed the Government to take up the revision petition for consideration on 22-2-2012 and pass orders thereon within one month thereafter. The Government accordingly heard the parties and passed Ext.P7 order dated 16-3-2012. The Government rejected the appeal filed by the petitioner and directed the Principal-in-charge of the school to permit the fourth respondent to enter the school and to discharge duties as Higher Secondary School Teacher (Botany) within 15 days from the date of receipt of the order, failing which they were cautioned that W.P.(C) No.5902 of 2013 4 action will be taken against them in accordance with the Kerala Education Act, 1958 and Kerala Education Rules, 1959. The Government also directed that the absence of the fourth respondent from service till the date of joining duty in the school and other related matters will be examined and decided later.
5. The petitioner thereupon filed W.P.(C) No.8047 of 2012 in this Court. The learned single Judge who admitted the writ petition declined to grant an order of stay by Ext.P8 order dated 30-3-2012. The writ petition was thereafter heard and dismissed by Ext.P9 judgment delivered on 11-4-2012, with a direction to the Government to take follow up action as regards regularisation of the period during which the fourth respondent was out of service. Though the petitioner filed W.A No.1374 of 2012, it was dismissed by Ext.P10 judgment delivered on 5-9-2012. The Government thereafter issued Ext.P11 order dated 15-12-2012, the operative portion of which reads as follows:
"As per Government Order read as first paper above, the Manager and Principal-in-Charge of the MV HSS, Arumanoor, Poovar, Thiruvananthapuram were inter alia directed to permit Smt. Mini R, HSST in Botany to enter the school and to discharge her duties as HSST within 15 days from the date of receipt of the Government Order and that the absence of Smt. Mini R. from service till the date of joining duty in the school and other related matters would be examined and decided later. The Hon'ble High Court, as per W.P.(C) No.5902 of 2013 5 judgment read as second paper above, has directed Government to take follow up action with regard to the directions contained in the Government Order read above. Further, the Regional Deputy Director of Higher Secondary Education, Thiruvananthapuram, as per the letter read as third paper above has recommended to Government to treat the period of absence of Smt. Mini R., HSST (Botany) from 19.10.2011 to 3.4.2012 as duty.
2. Government have examined the matter in detail and are pleased to order that the period of absence of Smt. Mini R, HSST (Botany), MV HSS, Arumanoor, Poovar, Thiruvananthapuram from 19.10.2011 to 03.04.2012 be treated duty for all purpose except for pay and allowances. The Manager, MV HSS, Arumanoor, Thiruvananthapuram will give pay and allowances for the above period to Smt. Mini R. as the same is treated as his personal liability, for the reasons best explained in the Government Order read as first paper above. If the manager fails to give pay and allowances as directed above, the same will be deducted from the maintenance grant due to the school and disbursed to the petitioner. The Director of Higher Secondary Education will take further necessary action. In the matter in consultation with the Director of Public Instructions/Deputy Director of Education, Thiruvananthapuram District, Educational Officer, Neyyattinkara.
3. The directions of the Hon'ble High Court read as second paper above are complied with accordingly."
6. In this writ petition, the petitioner challenges Ext.P11 Government order and seeks the following reliefs:
"i) to call for records leading upto Ext.P11.
ii) to issue a writ of certiorari quashing Exhibit P11 to the extent challenged.
iii) to declare that the Manager cannot be held personally liable for the pay and allowance of 4th respondent for the period from 17.10.2011 to 3.4.2012."W.P.(C) No.5902 of 2013 6
7. The principal contention raised in the writ petition is that before the impugned order was passed, the petitioner was not put on notice or heard. It is contended that the direction issued by the Government to recover the salary and allowances payable to the fourth respondent during the period from 19-10-2011 to 3-4-2012 from the maintenance grant is illegal and improper and that the Government erred in fixing the liability to pay salary and allowances to the fourth respondent as the personal liability of the Manager. Relying on section 9 of the Kerala Education Act, it is contended that the liability to pay salary to aided school teachers is that of the Government and that the Government are also liable to pay the maintenance grant which cannot be attached even in execution. Yet another contention raised is that the fourth respondent was absent from duty for the period from 19-4-2011 to 3-4-2012, that the petitioner was prosecuting his remedies before the competent authorities and this Court and therefore, no pecuniary liability can be fastened on him.
8. It is evident from Ext.P5 order passed by the Director of Higher Secondary Education and Ext.P7 order passed by the Government that the petitioner's stand that the fourth respondent had resigned from the post of Higher Secondary School Teacher (Botany) W.P.(C) No.5902 of 2013 7 is not tenable. The fourth respondent had in Ext.P1 letter stated in express terms that she wishes to resign from the post of Principal-in- charge of the school. She did not expressly state in Ext. P1 letter that she is resigning from the post of Higher Secondary School Teacher (Botany), the post substantively held by her. Even Ext.P2, which is a copy of the proceedings issued by the petitioner after accepting the resignation, all that it is stated that the fourth respondent has informed him that she is resigning from the post of Principal-in- charge. The first paragraph of Ext.P2 clarifies the position. The second paragraph of Ext.P2 makes it evident that after accepting the resignation of the fourth respondent from the post of the Principal-in- charge, to avoid a stalemate, another teacher was authorised to act as the Principal-in-charge on a temporary basis. By that proceedings, the petitioner also directed the fourth respondent to hand over charge to the substitute. No order relieving the fourth respondent from service was issued. The petitioner has also not passed an order accepting the resignation of the fourth respondent from the post of Higher Secondary School Teacher (Botany). However, a dispute arose when the teacher was not permitted to discharge her duty. That dispute was resolved by the Regional Deputy Director by Ext.P4 order dated 19-10-2011. He took the stand as the letter of resignation was W.P.(C) No.5902 of 2013 8 not attested by two other teachers, it cannot be accepted. The said order was confirmed by the Regional Deputy Director and by the Government. The teacher had before Ext.P1 letter of resignation from the post of Principal-in-charge was accepted, given Ext.P3 letter dated 12-5-2011 to the petitioner clarifying the position. The Director has referred these aspects in Ext.P5 and the Government have in Ext.P7 referred to these aspects. Though the petitioner challenged Exts. P5 & P7 orders in this Court, he did not succeed. They were upheld by this Court in Exs. P9 and P10 judgments. On the terms of Ext.P1 letter of resignation, I am of the considered opinion that the stand taken by the petitioner that the teacher had resigned from the post of Higher Secondary School Teacher (Botany), is plainly untenable. In such circumstances, if the Government directed that the period from the date of Ext.P4 order viz, 19-10-2011, till 4-4-2012, the date on which the fourth respondent actually rejoined duty pursuant to Ext.P8 order dated 30-3-2012, should be treated as duty for all purposes except for pay and allowances and the petitioner who had taken the untenable stand that the teacher had resigned from service should pay the salary and allowances during the said period, it cannot be said that the stand taken by the Government is arbitrary or perverse. In my opinion, the Government acted properly when it decided that the W.P.(C) No.5902 of 2013 9 petitioner should, at least for the period from 19-10-2011 to 3-4-2012, pay the salary and allowances due to the fourth respondent. In such circumstances, I am of the opinion that the failure of the Government to hear the petitioner cannot be a reason to set aside the impugned order. Even if the petitioner had been heard, the Government could have come to the same conclusion. Therefore, merely for the reason that the petitioner was not put on notice or heard, I find no grounds to entertain the writ petition. The conduct of the petitioner also disentitles him to invoke the discretionary jurisdiction of this Court under Article 226 of the Constitution of India.
I accordingly hold that there is no merit in the instant writ petition. The writ petition fails and is dismissed.
Sd/-
P.N. RAVIDRAN, Judge.
Scl.