Kerala High Court
Higher Secondary Sections Of The ... vs State Of Kerala (2001(1) Scc 15 on 11 December, 2006
Bench: K.A.Abdul Gafoor, K.R.Udayabhanu
erala Education Rules?
2. The above question has cropped up for consideration in this writ
petition in the following facts and circumstances.
3. The petitioner is a post graduate in Sociology with 50% marks.
She has obtained Bachelor's Degree in Education (B.Ed.)also. She was
appointed as a part time Higher Secondary School teacher in Sociology in
Zamorin's Higher Secondary School, Kozhikode under the management of
respondent No.2 in a leave vacancy for the period from October 25,2000 to
March 31,2001. It is the admitted position that petitioner was again
appointed in yet another short term leave vacancy. True photocopies of the
orders of appointment are on record as Exhibits P3 and P4. It is beyond
controversy that the two spells of appointment mentioned above were
approved by the competent authority.
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4. It is not in dispute that there arose a vacancy of Higher
Secondary School teacher in the school in January 2006. According to the
petitioner she had staked a claim for appointment to the above post by virtue
of two earlier spells of service in the school. It is contended by the
petitioner that she is entitled to get preference for appointment under Rule
51(A) of Chapter XIV(A) of Kerala Education Rules. Laying heavy
emphasis on Exhibit P6 circular issued by respondent No.1, the Director of
Higher Secondary Education, it is contended that the management is not
entitled to ignore or overlook the preferential claim available to the
petitioner under Rule 51(A).
5. Per contra, it is contended by the management that method of
appointment and qualifications of teaching and non teaching staff in aided
higher secondary schools have been prescribed and codified in Chapter
XXXII of Kerala Education Rules. The management is bound to follow the
procedure prescribed in the said Chapter. Rules in Chapter XXXII do not
prescribe or postulate any preferential right in favour of a Higher Secondary
School Teacher even if he/she has worked in the school in a short term
vacancy. In other words, the contention is that the provisions contained in
Rule 51(A) in Chapter XIV(A) are not applicable in the matter of
WPC 18558/2006
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appointments in a Higher Secondary School. The case of the management is
that petitioner is not entitled to get any preferential right for appointment as
a Higher Secondary School Teacher in the absence of any Rule in Chapter
32 which is akin to Rule 51(A) of Chapter XIV(A). Chapter XXXII is a self
contained code of rules prescribing the method of appointment and
qualifications of teaching and non-teaching staff in Higher Secondary
Schools. The rules do not envisage any preferential right to a teacher who
might have worked in a short term vacancy. The management had
appointed respondent No.3 by transfer from among the qualified High
School Assistants working under the Education Agency as provided under
Chapter XXXII .
6. In this context, it is necessary to refer to Rule 51(A) of
Chapter XIV(A) which reads thus.
"Rule 51(A): Qualified teachers who are relieved as per Rule
49 or 52 or on account of termination of vacancies shall have
preference for appointment to future vacancies in schools under
the same Educational Agency (or an Educational agency to
which the school may be subsequently transferred) provided
they have not been appointed in permanent vacancies in schools
WPC 18558/2006
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under any other Educational Agency)".
A perusal of the above rule undoubtedly shows that the right of a qualified
teacher who had been relieved on account of termination of vacancy to get
preference for appointment to future vacancies in the school under the same
educational agency has been protected. The contingencies under which the
above protection would be available have been delineated in the rule. It is
pertinent to note that Rule 51-A under Chapter XIV-A K.E.R. which deals
with conditions of service of aided school teachers, refers to teachers who
had been relieved either under Rule 49 or 52 or on account of termination of
vacancies. It is yet again true that at the time when Rule 51(A) was
incorporated in the statute book, a separate code of rules for appointment of
teachers in the Higher Secondary Schools was not under the contemplation
of the rule making authority. Plus two (Higher Secondary) classes were
sanctioned in schools after delinking of Pre-degree from the colleges in the
State in the year 1997. Chapter XXXII was incorporated in Kerala
Education Rules only w.e.f. November 12, 2001. There was confusion for
quite sometime in the matter of recruitment/appointment of teachers in the
Higher Secondary sections of the schools. The Government had notified the
rules in Chapter XXXII pursuant to a direction issued by the Lordship of
Supreme Court in M.M.Dolichan vs. State of Kerala (2001(1) SCC 151.
WPC 18558/2006
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During the interregnum, the Government had issued several orders and
circulars to meet the contingencies in the matter of appointment of teachers
and Principals also in relation to their service conditions. It is not necessary
to refer to those orders or circulars at this stage, since the issue involved in
this case falls in a narrow compass. Reference has been made to the above
aspect only to stress the fact that orders and circulars issued by the
Government or the Department as the case may be, had governed the field
of appointment of teachers in the Higher Secondary schools in the State till
special rules were framed. It is the settled position of law that the
Government would be empowered to issue executive orders governing
service conditions of the employees in the absence of any statutory
provision governing the field.
7. As noticed earlier, there is no rule in Chapter XXXII which is akin
to Rule 51(A) of Chapter XIV(A). It is vehemently contended by the
learned senior counsel appearing for the 3rd respondent that in the absence of
any specific rule to protect the right of a retrenched teacher, petitioner
cannot seek shelter under Rule 51(A) which has no application at all as far
as Higher Secondary School teachers are concerned.
8. Learned standing counsel submits that respondent No.1, the
Director of Higher Secondary Education, is not vested with any authority to
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issue a circular or order purporting to protect the right of a retrenched
Higher Secondary School teacher. The above contention was raised by the
learned standing counsel with specific reference to Exhibit P6 circular
issued by respondent No.1 on which the petitioner has placed heavy
reliance. In Exhibit P6, respondent No.1 had issued certain directions to the
Managers of Aided Higher Secondary Schools with regard to the
appointments to be made in the schools. One such direction or instruction
was that the Manager should furnish a declaration as regards Rule 51(A)
claimants in the school concerned. Learned counsel for the petitioner laying
heavy emphasis on the above direction in Exhibit P6, contends that a
secondary school teacher is also entitled to a preferential claim for
appointment as envisaged under Rule 51(A). But I am afraid Ext.P6
circular will not come to the aid of the petitioner particularly for the reason
that the said circular does not provide that Rule 51-A would be applicable in
the case of Higher Secondary School Teachers, even assuming that the
authority which issued the circular was vested with such power to issue such
an order. In this context, it may be noticed that Exhibit P6 was issued on
July 29,2004 long after Chapter XXXII was incorporated in the Kerala
Education Rules.
WPC 18558/2006
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9. In this context, learned counsel seeks the aid of Rule 1(h) of
chapter XXXII also which reads thus.
1(h): "Unless the context otherwise requires, words and
expressions used in this chapter, but not defined herein,
shall have the meanings assigned to them in the Kerala
Education Act, 1958 and in the foregoing chapters of
these rules."
It is contended by the learned counsel that even in the absence of a rule
similar to Rule 51(A) in Chapter XXXII, a higher Secondary school teacher
will be eligible to get a preferential right in the matter of appointment by
virtue of Rule 1(h). I am afraid the above contention is totally
misconceived.
10. There is yet another aspect of the matter. If in fact the rule
making authority wanted to give protection as envisaged in Rule 51-A to the
Higher Secondary school teachers also, who had got the benefit of approved
service for short term periods, nothing prevented the authority to
incorporate such a rule. That not having been done, petitioner may not be in
a position to contend for the position that she is entitled to get preference
for appointment to the vacancies that arose in the school.
11. In Pathanapuram Taluk Samajam Corporate Management
Schools v. Sreelatha (2006 (3) KLT 867) a Division Bench of this court
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had occasion to consider the question whether Dependants of employees
who died in harness while working in an aided school can claim the benefit
of Rule 51-B of Chapter XIV-A K.E.R., in respect of a vacancy that arose in
the Higher Secondary School Section. The Division Bench while answering
the question in the negative, held that Rule 51-B being part of conditions of
service of aided school teachers only and not in relation to the teachers in
Higher Secondary Schools, such a claim could not be entertained against a
vacancy that arose in the Higher Secondary Section. The Division Bench
further held that the provisions contained in Chapter XIV-A K.E.R.. cannot
as such be made applicable to the teachers in Higher Secondary Section.
In view of the above dictum laid down by a Division Bench of this
court, I am afraid the petitioner is not entitled to succeed in this writ
petition. Therefore, the writ petition fails. It is accordingly dismissed.
A.K.BASHEER, JUDGE
Rp
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 1121 of 2006()
1. T.M. GEORGE THOTUCHALIL,
... Petitioner
Vs
1. T.P. SHAJI, S/O. PAPPACHAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
3. JOINT REGISTRAR OF CO-OPERATIVE
4. THE ASSISTANT REGISTRAR OF
5. THE ARPOOKARA SERVICE
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent : No Appearance
The Hon'ble MR. Justice K.A.ABDUL GAFOOR
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :11/12/2006
O R D E R
K.A.ABDUL GAFOOR &
K.R. UDAYABHANU, JJ.
==============================
W.A.NOS.1121, 1123 & 1126 OF 2006
============================
DATED THIS THE 11TH DAY OF DECEMBER 2006
JUDGMENT
Abdul Gafoor,J.
All these appeals are filed by an erstwhile employee of a Co-Operative Bank, the 5th respondent in W.A.No.1121/2006. He filed W.P.C.No.37936/2003 claiming salary for the period he was kept under suspension and the period between his dismissal and subsequent reinstatement on the basis of an appellate order. He also filed yet another W.P.(C).30842/2000 challenging Ext.P20 and seeking a direction not to proceed against him by way of yet another W.A.NO.1121/2006 & CONN.CASES -2- disciplinary action. When the Bank initiated disciplinary action for the second time, he had approached the Registrar and the Government. But neither the Government nor the Registrar interfered with the same. Ext.P20 impugned in W.P.(C).No.30842/2004 is the order of the Government in that regard. His dismissal was set aside in appeal and he was reinstated in service by the Administrator of the Bank who was appointed on supersession of the elected committee. A member of the Bank challenged that reinstatement order before the Registrar invoking Rule 176 of the Kerala Co-Operative Societies Rules (for short ' the Rules') and the Registrar did not interfere. Therefore, an appeal was filed under Section 83(1)(j) of the Kerala Co- Operative Societies Act ( hereinafter referred to as 'the Act') before the Government and the W.A.NO.1121/2006 & CONN.CASES -3- Government dismissed the appeal. It was in the above circumstances that member filed W.P.(C). No.28874/2005 challenging the reinstatement order, Ext.P1, and Ext.P3 and Ext.P5 orders passed by the Registrar and the Government.
2. All these writ petitions were heard together and the learned Single Judge found that as the order of the Registrar, Ext.P1 in W.P.C.No.28874/2005 was passed by the Administrator of the then existing committee and as the supercession and consequent appointment of the Administrator was found to be not justified as per Ext.P8 in W.P.C.No.30842/2004, judgment in O.P.No.9723/2003, the entire action by the Administrator including the reinstatement was bad. The Administrator happened to pass the order of reinstatement, in the event of the Registrar, considering a petition filed by the W.A.NO.1121/2006 & CONN.CASES -4- appellant, remanding an appeal filed by the appellant to the Managing Board. Therefore, the present Managing Board shall consider the appeal afresh, the learned single Judge directed. With regard to the second disciplinary action, the learned Single Judge found that a charge sheet has already been issued to the appellant and an enquiry officer has been appointed. Therefore, it could not have been interfered with at that stage in a petition under Article 226 of the Constitution of India. It is against this common judgment, these three writ appeals have been filed by the appellant, the erstwhile Secretary of the Bank.
3. Thus the matter relates to (1) the legality or otherwise of the reinstatement ordered by the Administrator setting aside the order of dismissal passed in the first disciplinary action, (2) the W.A.NO.1121/2006 & CONN.CASES -5- legality of the continuance of the second disciplinary action and (3) if the reinstatement was justified, the entitlement for the salary during the period from the date of suspension until the date of reinstatement.
4. In order to consider these aspects, the chequered history of the case has to be born in mind. When the appellant was functioning as the Secretary of the Co-Operative Society, finding certain irregularities on his part and contemplating disciplinary action, he was placed under suspension by the President of the Bank on 30-10-1998. An enquiry was conducted and finally an order of dismissal was passed on 8-12- 2000. The appellant moved an appeal before the Managing Committee and that appeal was dismissed by the Managing Committee on 30-4- W.A.NO.1121/2006 & CONN.CASES -6- 2002. Thereupon the matter was taken up by the appellant, invoking Rule 176 of the Rules before the Joint Registrar. The Joint Registrar allowed his petition and remitted the appeal back to the Managing Board on 4-4-2003. In the meantime, the Managing Board whose president had suspended him and which had rejected his appeal against the dismissal order was superceded by the Registrar of the Co-Operative Societies exercising the power under Section 32 (1) of the Act. This was challenged before this Court in O.P.No.9273/2003 by the President of the Bank representing the members of the superceded committee. In the meantime, the Administrator took charge and based on the remand order passed by the Registrar on 4-4- 2003, Ext.P6 in W.P.(C).No.30842/2004, he considered the appeal and the appeal was allowed W.A.NO.1121/2006 & CONN.CASES -7- on 8-4-2003, setting aside the order of the dismissal and reinstating him in service rescinding the order of suspension. Ext.P7 in W.P. (C).No.30842/2004 is the order of the Administrator. The appellant joined duty on 9-4-2003 consequent on Ext.P7. It was thereafter, O.P.No.9723/2003 was filed challenging the supersession of the Managing Board. It was disposed of as per Ext.P8 judgment dated 27-8-2003 setting aside the order of the supersession and directing the Registrar to restore the superceded Managing Board to power. While passing the said judgment, this Court took note of reinstatement of the appellant in the following lines:
It had been suggested by the petitioner that the supersession was at the instance of the 7th respondent, who had been dismissed from service while functioning as the Secretary and W.A.NO.1121/2006 & CONN.CASES -8- immediately after the supersession he had been reinstated and is now functioning. But, I am sure hat the restored Committee may not take steps in retaliation, and will refrain themselves from going after the reinstated Secretary. Power has to be used with caution, and not for wrecking vengeance. Nothing is commendable by harassing an employee at the fag end of his career, and the Board should develop a sense of co-operation and trust as they are the basic features of the movement.
5. This makes it clear that this Court had taken note of these aspects and had observed that the Managing Board which had come to the power, should not take retaliatory action in relation to the reinstatement ordered by the Administrator in the meantime. This is a matter thus taken note judicially by this Court and approved with the endorsement that the Managing Board on that score should not take W.A.NO.1121/2006 & CONN.CASES -9- any further action against him. But, at the same time, it did not preclude the Managing Board if there was reason to proceed against him on any other misconduct noticed or found.
6. When this Court had thus endorsed the reinstatement in Ext.P7 order, even the Managing Board themselves nay an individual member could not have represented before the Registrar or even the Government to pass any order of reversal of such reinstatement. Therefore, irrespective of the question whether an individual member has locus standi or not to invoke Rule 176 of the Co-Operative Societies Rules to rescind a resolution regarding the disciplinary action against a member of the staff of the Bank, the challenge against Ext.P7 ought not to have succeeded before any authorities. Necessarily W.P.C.No.28874/2005 could not have W.A.NO.1121/2006 & CONN.CASES -10- produced any result in quashing Ext.P7 marked in W.P.C.No.30842/2004, which is Ext.P1 in W.P.C.No.28874/2005.
7. Thus when Ext.P7 reinstatement order endorsed in Ext.P8 judgment stands and cannot be altered there arises no question of considering the appeal again by the Managing Board as directed in the impugned judgment. While passing the impugned judgment, the learned Single Judge did not take note of the impact of Ext.P8 judgment whereby Ext.P7 reinstatement ordered by the Administrator had been tacitly approved. Necessarily the direction contained in the impugned judgment enabling the Managing Board to consider the appeal remanded as per Ext.P6 afresh cannot stand. That direction therefore stands set aside.
8. Now we will come to the second W.A.NO.1121/2006 & CONN.CASES -11- disciplinary action initiated against the appellant. The managing Board was perfectly competent notwithstanding Ext.P8 or any other judgment to proceed against the appellant on any other misconduct. That power of the Managing Board cannot be interfered with by any authority because the Managing Board had the responsibility to maintain the discipline and curb indiscipline. In all respect, the 2nd charge sheet issued against the appellant was perfectly justified. The Government and the Registrar were also justified in not interfering with the 2nd disciplinary action. Necessarily W.P.C.No.30842/2004 could not have produced a better result for the appellant. But it is a fact that before finalisation of the said disciplinary action, the appellant had retired from service on superannuation on 30-11-2004. No provision in the Act or Rules has been brought to W.A.NO.1121/2006 & CONN.CASES -12- our notice enabling the Managing Board to continue the disciplinary action against a retired employee. On retirement, the master and servant relationship stands terminated. No statutory fictitious continuance in service is allowed for the purpose of continuing the disciplinary action the Act or Rules. Therefore, there is no question of continuance of the second disciplinary action notwithstanding the competence of the Board to initiate it. The second finding in the impugned judgment also cannot work out because of the retirement of the appellant from service on superannuation.
9. The next aspect is emoluments payable to the appellant during the period he was out of service either due to suspension or due to dismissal . It is revealed from Ext.P24 that no order has been passed by any authority W.A.NO.1121/2006 & CONN.CASES -13- regularizing the period of suspension or the period during which the appellant had been out of duty. This aspect has to be considered by one or the other authority. The primary authority to consider regularisation of the period of suspension or the period between the date of dismissal and reinstatement is the appointing authority which placed him under suspension or passed the dismissal order. Necessarily the appointing authority is liable to consider these aspects. In this regard the appellant shall make a representation to the appointing authority within a period of two weeks and the appointing authority shall consider the matter after rendering an opportunity of being heard to the appellant at any rate within six weeks from the date of submitting of the representation.
W.A.NO.1121/2006 & CONN.CASES -14-
The impugned judgment is thus set aside and the appeals are allowed partly as mentioned above.
Sd/-
K.A.ABDUL GAFOOR JUDGE Sd/-
K.R.UDAYABHANU,
JUDGE
ks. TRUE COPY
P.S.TO JUDGE