IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2410 of 2007()
1. P.ANILKUMAR, HSA (SS),
... Petitioner
Vs
1. STATE OF KERALA REP.BY THE SECRETARY TO
... Respondent
2. THE DEPUTY DIRECTOR OF EDUCATION,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. RAJASREE.T.A., UPSA,
5. L.PREETHAKUMARI,
For Petitioner :SMT.S.KARTHIKA
For Respondent :SRI.GEORGE POONTHOTTAM
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice V.GIRI
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :23/07/2009
O R D E R
"C.R."
K. BALAKRISHNAN NAIR, V. GIRI & C.T. RAVIKUMAR, JJ.
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W.A. No.2410 of 2007
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Dated this, the 23rd day of July, 2009
JUDGMENT
Balakrishnan Nair, J.
Before referring to the reasons why the Writ
Appeal was referred to the Full bench, we will refer briefly to
the facts necessary for the disposal of the case. The appellant
was appointed as H.S.A.(Social Studies) in the sixth
respondent’s school on 5.6.2000. The said appointment was
approved by the competent authority. The fourth respondent
was appointed as U.P.S.A. in the Upper Primary wing of the
said school on 6.6.2001. The said appointment was approved
with effect from the said date. The said respondent was
qualified for appointment as H.S.A.(Mathematics) and also
H.S.A.(English), provided a vacancy in the latter post arose
before 19.7.2005. B.Ed. in English became an obligatory
qualification for appointment as H.S.A.(English) only from the
said date (as per Ext.P4 Government Order) and the fourth
W.A.No. 2410/2007 – 2 –
respondent was having B.Ed. in Mathematics only.
2. The Government issued Ext.P2 order dated
7.1.2002, creating a new cadre of H.S.A.(English), by
re-allocating the periods of English allocated to H.S.As. in Core
Subjects. It was also ordered therein that the existing teachers
shall not be retrenched for creation of the post of H.S.A.(English).
The Government, by Ext.P3 order dated 16.7.2003 directed that
existing H.S.A., if any, having qualification for appointment as
H.S.A.(English) shall be accommodated against the newly created
post of H.S.A.(English). By Ext.P4 dated 19.7.2005, the
Government ordered that B.Ed. in the concerned subject shall be
a mandatory qualification apart from the degree in the concerned
subject, for appointment as H.S.A. in a subject. The fourth
respondent was appointed against a maternity leave vacancy as
H.S.A.(Mathematics) during the period from 29.10.2002 to
12.3.2003. During the academic year 2004-05, one post of
H.S.A.(English) was created in the 6th respondent’s school. The
fourth respondent was appointed in that vacancy with effect from
21.7.2004. During 2006-07, there was one division fall, as
evident from Ext.P7 staff fixation order. As per the said order,
W.A.No. 2410/2007 – 3 –
the appellant was retained in the 6th respondent’s school. As a
result, there was no vacancy to accommodate the fourth
respondent in the cadre of H.S.A. and therefore, she was
reverted as U.P.S.A.. The approval of appointment of the fourth
respondent as H.S.A.(Mathematics) and H.S.A.(English) were
rejected by the D.E.O. The fourth respondent filed a revision
before the Government. The Government allowed the revision in
part and approved her appointment as H.S.A.(Mathematics) from
29.10.2002 to 12.3.2003 and allowed her to draw salary in the
post of U.P.S.A. from 21.7.2004. But, the approval of
appointment of the 4th respondent as H.S.A(English) was
rejected. The fourth respondent filed a review petition before the
Government. That review petition was allowed by Ext.P6 dated
20.12.2006, approving the appointment of the fourth respondent
as H.S.A.(English) from 21.7.2004. In obedience to that
direction, the D.E.O. by Ext.P10 order, approved the
appointment of the fourth respondent as H.S.A.(English) from
21.7.2004 to 14.7.2006. The writ petition was filed challenging
Exts.P6 and P10 orders. The learned Single Judge dismissed the
writ petition. Hence this writ appeal.
W.A.No. 2410/2007 – 4 –
3. When the Writ Appeal came up for hearing before
the Division Bench, noticing the apparent conflict between the
Division Bench decisions of this Court in Rakhee v. State of
Kerala, 2007(1) KLT 766 and the decision in Ashalatha v.
State of Kerala, 2000(1) KLT 192, the appeal was referred to
be heard by the Full Bench.
4. Learned Senior Counsel, Smt.V.P.Seemanthini
submitted that Ext.P6 order being one passed without
jurisdiction, is liable to be quashed. It is settled position in law,
that, the Government cannot review an order passed by it under
Rule 92 of Chapter XIVA of the Kerala Education Rules, (for short,
“the K.E.R.”). On the other hand, Sri.V.A.Muhammed, learned
counsel for the fourth respondent, submitted that, if Ext.P6 order
is quashed by this Court on some technical grounds, the same
will result in resurrection of an illegal order. So, this Court may
decline to interfere with Ext.P6. Sri.George Poonthottam, learned
counsel who appeared for the sixth respondent and
Sri.M.V.Thamban, learned counsel who appeared for fifth
respondent supported the above submission of the learned
counsel for the fourth respondent.
W.A.No. 2410/2007 – 5 –
5. Going by the facts of the case, we feel that Ext.P6
order is ab initio void. The Government have no power to
entertain a review petition under Rule 93 against an order passed
in revision under Rule 92 of Chapter XIV-A of the K.E.R. If that
be so, it is unnecessary to consider the point referred to the Full
Bench. This Court will not, normally, decide a question of law,
unless it is absolutely necessary for the disposal of the case. In
this case, we notice that as a result of creation of one post of
H.S.A.(English) and the steps taken for the retention of that post
in the year 2006-07, a senior hand is going to be sent out from
service. The appellant has service from 2000, whereas the fourth
respondent has service as H.S.A. only from 21.7.2004.
Therefore, if we accept the contention of the fourth respondent,
the same will cause injustice to the appellant. The learned
author, H.W.R.Wade, in his Administrative Law, speaks of
objection to granting discretion to the courts to quash or not to
quash an illegal order. Learned author in the 6th edition of the
said book, stated as follows:
“There are grave objections to giving courts
discretion to decide whether Governmental action
W.A.No. 2410/2007 – 6 –
is lawful or unlawful: the citizen is entitled to
resist unlawful action as a matter of right and to
live under rule of law and not under rule of
discretion. ‘To remit the maintenance of
Constitutional right to region of judicial discretion
is to shift the foundation of freedom from rock to
sand'”.
The above statement of law has been quoted with approval in
Bugg v. Director of Public Prosecutions [1993] QB 473 and
in R. v. Wicks, (1998) AC 92. We respectfully follow the above
principle and hold that it is not proper for us not to quash Ext.P6
order, which is found to be issued totally without jurisdiction.
6. In the result, we quash Ext.P6 order, but, it is
clarified that it will not affect the right of the fourth respondent to
challenge Ext.P5 in appropriate proceedings. But for Ext.P6, the
appellant would have got the benefit of the Note in Ext.P7 staff
fixation order for the year 2006-07 to the effect that the
appellant, though a Social Studies hand, will be accommodated in
the post of H.S.A.(English). If, as a result of the subsequent
W.A.No. 2410/2007 – 7 –
developments, the staff fixation order is revised and her position
is prejudiced, she will be free to workout her remedies against
the same. Ext.P10 being a dependant order, in view of quashing
of Ext.P6 order, the same will no longer survive. The judgment
under appeal is set aside and the Writ Appeal is allowed as
above.
Sd/-
K. Balakrishnan Nair,
Judge.
Sd/-
V. Giri,
Judge.
Sd/-
C.T. Ravikumar,
Judge.
DK.
(True copy)