P.V.R. Kutty Menon vs State Of Kerala on 1 November, 2001

Kerala High Court
P.V.R. Kutty Menon vs State Of Kerala on 1 November, 2001
Author: K A Gafoor
Bench: K A Gafoor


K.A. Abdul Gafoor, J.

1. In both there cases, the Manager of an aided school is the petitioner. A Trust is the Educational agency, Petitioner is a trustee. The previous Manager expired on 1.8.97. The petitioner assumed charge on 3-3.97.

2. I will first deal with O.P. No. 10251/1999. The 4th respondent was appointed by the then Manager on 25.7.97, against an additional vacancy anticipated in the school for which there was sufficient strength of the pupil as well as accommodation duly certified as fit. But the AEO did not sanction the additional post. It was thereafter the Manager died. An appeal is provided under Rule 12D of Chapter XXIII KER against the order declining grant of additional post. An appeal is seen filed by the Headmaster on behalf of the Manager. Much is stated about the locus standi of the Headmaster to file an appeal on behalf of the Manager especially when the petitioner has taken charge and assumed as Manager on 3.8.97. Even otherwise, the Headmaster does not have a right of appeal under Rule 12D Chapter XXIII KER. Appeal has to be filed by the Manager himself and not by any other person on behalf of the manager. The petitioner approached before the Deputy Director of Education contending that the appeal stated to be filed by the Headmaster, the 5th respondent herein, was not a duly constituted appeal. Accordingly, that appeal was rejected as per Ext. Rule 5(c). It seems that 4th respondent-teacher had taken up the matter as per Ext. P6 before the Director of Public Instruction. The DPI allowed the prayer in Ext. P6 and an additional post was sanctioned. This was impugned before the Government under Rule 12 Chapter XXIII KER, by the petitioner. That revision petition was also rejected as per Ext. P9. Exts. P7 and P9 are therefore impugned by the Manager-petitioner.

3. The main contention urged in this petition is that Ext. P7 has been passed by the Director invoking Rule 12E Chapter XXIII KER. That can only be against an appellate order passed by the Deputy Director of Education. There was no competent appeal before the Deputy Director of Education. Consequently there was no appellate order. Therefore, the Director could not have sit in revision unless there was an appellate order. This aspect has not been adverted to by the Director while passing Ext. P7. Government also did not consider the issue in the proper perspective while passing Ext. P9. That is why Exts. P7 and P9 are impugned.

4. It is correct to contend that a revisional power under Rule 12E( 1) can be exercised by the Director only against an order in appeal passed by the Deputy Director of Education under Rule 12D Chapter XXIII KER. This cannot be disputed. It is also correct to contend that there is no appellate order under Rule 12D Chapter XXIII because the Manager had not filed any appeal before the Deputy Director of Education. Under Rule 12D Chapter XXIII KER, an appeal can be preferred before the Deputy Director only by the Manager. Ext. Rule 5(c) is therefore not an appellate order, over which the Director can exercise his revisional power under Rule 12E(1) Chapter XXIII KER.

5. But it has to be borne in mind that Ext. P7 order has been passed by the Director on Ext. P6 petition filed by the 4th respondent, the teacher appointed against the additional post. The prayer in Ext. P6 is as contained in the last paragraph of the said petition filed by the 4th respondent which reads as under:

“In the above circumstances, I request that the Director of Public Instruction, may look into the matter, and pass early orders sanctioning additional post and division to the school,which was not sanctioned by the controlling officer, and rejected by the Deputy Director of Education, Palakkad, so as to get approved my appointment which was rejected by the Assistant Educational Officer, Palakkad.”

This prayer clearly shows that the 4th respondent teacher seeks for an additional post impugning the order of the AEO, seeks sanction of an additional post, and also seeks approval of appointment against that post. Necessarily, that can be taken as a petition filed invoking Rule 12E(3) Chapter XXIII KER. It can be by any person aggrieved. Certainly, when the additional post is not sanctioned, the 4th respondent is really aggrieved, because he had been appointed against that post and consequently he can not get approval to this appointment. So he can very well invoke the remedy under Rule 12E(3) Chapter XXIII KER, even if there was no appeal before the Deputy Director of Education. Under the said rule the Director has the power to revise order of any subordinate officer including the educational officer. In such circumstances, Ext. P7 cannot be stated to be without jurisdiction.

6. Moreover, availability of students to sanction an addional post is not in dispute. Availability of accommodation certified to be fit is also not in dispute. In such circumstances, the school is sanctioned to cater to the educational need of the pupils. That can be made only by sanctioning a post. That is what is done in Ext. P7. Necessarily, Ext. P7 cannot be stated to be illegal. These aspects have been dealt with in detail by the Government in Ext. P9. Therefore, I am of the view that there is nothing illegal in Exts P 7 and P 9. Therefore O.P. No. 10251/1999 fails. It is accordingly dismissed. No costs.

7. Now, I will deal with O.P. No. 13276/1999. Ext. P1 is the order issued by the predecessor in office of the petitioner on 8.7.97 appointing the 4th respondent. Admittedly, the 4th respondent in this Original Petition is a claimant under Rule 51A Chapter XIV-A KER to be appointed as UPSA. Ext. P1 appointment was against an existing vacancy.

8. Ext. P2 is an order dated 25.7.97 appointing the 5th respondent (4th respondent in O.P. No. 10251/99) as UPSA against the additional post and the appointment order was issued on 25.7.97 by the predecessor in office of the petitioner. Approval against these appointments was not granted. The matter was taken up in appeal. The appeal filed by the 5th respondent was rejected by Ext. P5 and that filed by the 4th respondent was rejected as per Ext. P6. There-upon, both of them filed revision petitions invoking Rule 8A Chapter XIV-A KER before the Director. Those revision petitions were allowed as per Ext. P9, which is impugned in this Original Petition.

9. The main contention urged against Ext. P9 is based on Ext. P4 medical certificate. This certificate reveals that Sri. A. Janardhanan Nair, the then Manager who issued the appointment orders to respondents 4 and 5 was admitted in the hospital due to heart ailment and was in I.C.U. from 7.7.97 to 9.7.97, Ext. P1 appointment order was issued to the 4th respondent during this period. The Manager was readmitted to hospital on 31,7.97 and he expired on 1.8.97. Ext. P2 order was issued to the 5th respondent just before his readmission to hospital. Therefore, these are forged documents. These aspects had been gone into in detail in Ext. P9. Of course there arises some doubt with regard to Ext. P1 appointment order appointing the 4th respondent. That does not make any difference; because, admittedly, the 4th respondent was a claimant under Rule 51A Chapter XIV-A KER who ought to have been appointed against the existing vacancy on 8.7.97 by the Manager. Even if the 4th respondent had not been appointed by the former Manager, the petitioner was bound to honour her claim under Rule 51A Chapter XIV-A KER. Therefore, appointment of such claimant cannot therefore be defeated on the ground that it might have been forged, though there is no conclusive evidence.

10. As regards the appointment order Ext. P2, issued in favour of the 5th respondent, it is admitted that it was issued on 25.7.97. At that time, the former Manager had not been hospitalised. He had been relieved from hospital on 12.7.97. Merely two weeks have elapsed until 25.7.97 in such circumstances, it cannot be taken that it was not probable that the Manager had not issued Ext. P2 order. The Director of Public Instruction has considered that aspect in Ext. P9. In such, circumstances, Ext. P9 cannot be stated to be unjustified. O.P.No. 13276/1999 also fails. Dismissed. No costs.

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