IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1459 of 2005(A)
1. R.APPUKUTTAN PILLAI, FULL TIME MENIAL,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. THE MANAGER, V.H.S.S.MUTHUKULAM,
5. SHAJI, PEON, V.H.S.S. MUTHUKULAM,
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :SMT.V.P.SEEMANDINI (SR.)
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :15/09/2009
O R D E R
K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.
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WA No.1459 OF 2005
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Dated 15th September 2009
Judgment
Balakrishnan Nair, J.
The point that arises for decision in this appeal is whether a
punishment of barring of two increments can be a disqualification for
promotion under the Kerala Education Rules (for short, KER). The
appellant is the writ petitioner. The brief facts of the case are the
following :
2. The appellant is working as a Full Time Menial in the 4th
respondent’s school. He was appointed to that post on 01.02.1991.
His appointment was approved and he was continuing in that post
since then. While so, a vacancy in the post of Clerk arose in the
school on 01.04.2000. A Peon by name C.G.Jayadas, who has got
continuous approved service in that post since 02.12.1991, was the
rightful claimant to that vacancy. It is common ground that the said
Jayadas has relinquished his claim for promotion to the post of Clerk
on 22.05.2004. The appellant is the next person to be considered for
promotion to the said vacancy of Clerk. In the meantime, disciplinary
proceedings were initiated against the appellant on the allegation of
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insubordination and he was suspended from service on 21.12.2000.
The Assistant Educational Officer enquired into the charges levelled
against the appellant and submitted a report, finding him guilty as
per Ext.R4(a). Relying on the said report, the Manager, by Ext.R4(b)
order dated 21.08.2001, imposed a punishment of barring two
increments with cumulative effect on the appellant and he was
reinstated in service on the said date. Against the punishment
imposed on him, the appellant moved the District Educational Officer
by filing two representations, one dated 24.08.2001 and the other
dated 13.12.2001. The said representations were disposed of by the
District Educational Officer by Ext.R4(c) order dated 22.09.2003
holding that the allegations against the appellant were found true and
the Manager is competent to impose penalty on him. It is also stated
in the order that because of the pendency of OP NO.28868/02 filed
by the appellant before this court, he is not interfering in the matter.
The appellant challenged Ext.R4(c) order before the Director of
Public Instructions. The said challenge was repelled and thereafter,
he moved the Government in revision. The Government also
dismissed his revision petition. Challenging those orders, the
appellant has preferred WP(C) No.9429/08 before this court, which is
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even now pending. After the relinquishment of the claim of
Mr.C.G.Jayadas, the Manager considered the claim of the appellant
for promotion and by Ext.P9 proceedings dated 11.06.2004, his claim
was rejected. The Manager took the view that the appellant cannot
be entrusted with the confidential and responsible functions of Clerk.
According to him, only a person, with utmost dedication and sincerity
to the work, can be appointed to the post of Clerk, as the person in
the said post has to do the entire ministerial work of the school and
also handle monetary transactions. The main challenge in the Writ
Petition was against Ext.P9. In fact, the Original Petition was filed,
seeking a direction to the Manager to consider his claim for
promotion. During the pendency of the OP, as per the interim order
of this court, the appellant’s claim was considered and rejected by
Ext.P9. So, the Original Petition was amended, incorporating the
challenge against that order.
3. In the Original Petition, a counter affidavit was filed by the 1st
respondent, pointing out that the action of the Manager, imposing the
punishment as per Ext.R4(b), was never ratified by the District
Educational Officer. On similar lines, the 3rd respondent DEO has
also filed a counter affidavit. The 4th respondent Manager filed a
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detailed counter affidavit, resisting the prayers in the Original
Petition.
4. The learned Single Judge heard the OP along with OP
No.39161 of 2002, which was filed by the Manager, challenging the
conflicting orders issued by the Government concerning how the post
of Clerk should be filled up. The learned Single Judge dismissed OP
No.28868/02 filed by the appellant and in view of the dismissal of that
OP, OP No.39161/02 filed by the Manager was closed. The learned
Single Judge relied on the principles underlying Rule 28(b)(ii) of KS
&SSR, to decline reliefs to the appellant. On merits also, it was held
that the view taken by the Manager that a person like the appellant
cannot be appointed as Clerk, is correct. Feeling aggrieved by the
above finding of the learned Single Judge, this appeal is filed.
5. We heard Shri.S.P.Aravindakshan Pillay, learned counsel for
the appellant and Shri.M.R.Anison, learned counsel appearing for the
4th respondent Manager. We also heard Smt.R.Bindu, learned
Government Pleader, appearing for respondents 1 to 3.
6. The learned counsel for the appellant submitted that the
provisions of the KS & SSR have no application to promotions under
the K.E.R. A punishment imposed on an employee is not a bar for
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promotion under the KER, though it may be a disqualification for the
Government servant under Rule 28(b)(ii) of the KS & SSR. The
promotions of both teaching and non-teaching staff of aided schools
are governed by Rule 43 of Chapter XIV A KER. The punishment of
barring two increments imposed on the appellant does not have the
approval of the competent authority as evident from the separate
counter affidavits filed by respondents 1 and 3 in the Original
Petition. If that be so, the said punishment should have been
ignored. Further, the enquiry report of the Assistant Educational
Officer and the order of punishment imposed on the appellant
including the orders of the superior authorities were challenged
before this court in WP(C) No.9429/08 and the said Writ Petition is
still pending. In other words, the findings of the Assistant Educational
Officer against the appellant and the order of the Manager, imposing
the punishment on him, have not become final. Therefore, the said
orders could not have been relied on by the Manager to overlook him
in the matter of promotion. So, according to seniority, the appellant
should have been preferred for promotion, it is submitted.
7. The learned counsel for the 4th respondent Manager
supported the judgment under appeal and pointed out that the view
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taken by the learned Single Judge is legal and valid.
8. Before going into the rival contentions, we will refer to the
relevant rules applicable in this case. Explanation (II) of Rule 1
Chapter XXIV (A) says that the post of Lower Division Clerk shall be
filled up by promotion of Peons, Sweepers and other staff, if they
possess the qualification prescribed for the post of Lower Division
Clerk in Sub-rule (1) of rule 2. The said explanation reads as
follows :
“The post of Lower Division Clerk shall be filled up by
promotion of Peons, Sweepers and other staff, if they possess
the qualification prescribed for the post of Lower Division Clerk
in sub-rule (1) of rule 2. If there are more than one claimant for
appointment as Clerk under these categories, preference shall
be given in the order of Peons, Sweepers and other staff. If
there are more than one claimant under a particular category,
the order of preference shall be according to the date of their
first appointment. If the date of first appointment be the same,
then preference shall be given with reference to age, the older
being given first preference.”The above explanation was introduced in the rule by amendment
dated 17.09.1982 published in the gazette dated 19.10.1982. Rule 2
(1) of Chapter XXIV(A), prescribing the qualifications of the non-
teaching staff including Lower Division Clerk, reads as follows :
“2(1) : The minimum qualifications of the non-teaching staff
shall be as follows :Category Qualifications 1. Clerks A pass in SSLC Examination conducted WA No.1459/05 7 by the Commissioner for Government Examinations, Kerala or its equivalent. 2. Attenders A pass in SSLC Examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent. 3. Peons Should be a literate 4. Other members such Good physique" as Sweepers, WatchersThe above provision was introduced in the Rules on 14.1.1993,
substituting the earlier provision. Rule 4 of Chapter XXIV (B) says
that the qualifications of the non-teaching staff shall be the same as
the qualifications prescribed for the non-teaching staff in Government
Schools. The said rule reads as follows :
“The qualifications of the non-teaching staff shall be the same
as the qualifications prescribed for the non-teaching staff in
Government Schools.”
The above rule is a general provision, which was in the statute book
eversince the introduction of Chapter XXIV (B) by amendment dated
20.02.1965, which was published in the gazette dated 23.02.1965.
Rule 7 of the said chapter provides that the various provisions in
Chapter XIV (A) including those concerning promotion, will apply
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mutatis mutandis to non-teaching staff in aided schools. Rule 7
reads as follows :
“The rules regarding appointment, probation, increment,
transfer from one educational agency to another educational
agency or transfer under the same educational agency,
discipline, maintenance of service records, confirmation,
promotion, seniority and maintenance of seniority list
contained in Chapter XIV (A) and the Conduct Rules in
Chapter XIV(C) applicable to teachers of aided schools shall
mutatis mutandis apply to the non-teaching staff in aided
schools.”
In view of the above Rule, rule 43 of Chapter XIV (A) will govern
appointment by promotion to various posts of non-teaching staff.
Rule 43 Chapter XIV (A) KER reads as follows :
“Subject to Rules 44, 45 and 51A and consideration of
efficiency, any general order that may be issued by the
Government, vacancies in any higher grade of pay shall be
filled up by promotion of qualified hands in the lower grade
according to seniority.” (emphasis supplied)Going by the above quoted rule, the vacancies in the higher grade of
pay shall be filled up by qualified hands in the lower grade, according
to seniority, but, subject to consideration of efficiency. The
contention of the appellant that even if he is suffering a punishment,
the same has to be ignored while considering his claim for promotion,
cannot be accepted. Though there is no rule identical to Rule 28(b)
(ii) of KS & SSR, we think, the words “consideration of efficiency”
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contained in Rule 43 KER, will take care of the situation. So, the
Manager can definitely look into the punishment, if any, imposed on
the appellant along with other materials to decide whether he could
be promoted to the post of LD Clerk.
9. In the case on hand, the claim of the appellant for promotion
has been rejected by the Manager, on finding that he will not make
an efficient Clerk, having regard to his past misconduct, which led to
the enquiry report Ext.R4(a) and the order of punishment Ext.R4(b).
In that view, by Ext.P9, the Manager rejected the claim of the
appellant for promotion. We notice that the learned Single Judge
has relied on the provisions of Rule 28(b)(ii) KS & SSR also, to
uphold Ext.P9. But, we feel that the provisions of KS & SSR have no
application to the promotions under the KER. Rule 4 of Chapter
XXIV (B) only speaks of qualifications for appointment. Now, the said
general provision does not have much efficacy in view of the express
provision introduced later in Chapter XXIV (A) in the form of rule 2(1),
specifying what are the qualifications for appointment to various non-
teaching posts in aided schools. But, even if the reliance made by
the learned Single Judge on the provisions of the KS & SSR is not
correct, we feel that the view taken by the learned Single Judge
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regarding the merits of the case has to be upheld. The Manager,
having regard to the punishment imposed on the appellant, decided
against promoting the appellant. This court can interfere with that
decision, if only it is shown to be a decision without jurisdiction. In the
general sense, it is within jurisdiction. Further, the view taken by the
Manager cannot be said to be perverse or one, which no man in his
senses will take. If that be so, we cannot find any jurisdictional error
in the decision of the Manager. A plausible view has been taken on
the facts and it has been affirmed by the learned Single Judge also.
The Manager cannot be asked to wait till the appellant exhausts all
avenues of challenge available to him against Exts.R4(a) and R4(b).
As of now, his challenge has been repelled by the District
Educational Officer, the Director of Public Instructions and the
Government. It is true, those orders are under challenge before this
court. But, if ultimately his challenge is upheld and Exts.R4(a) and
R4(b) are set aside, then, the very foundation of Ext.P9 will be
knocked out and the appellant will be justified in moving the Manager
as also the District Educational Officer for reconsideration of his
claim for promotion. But, as things stand now, we think, the appellant
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cannot be granted any relief. In the result, the Writ Appeal fails and it
is accordingly dismissed.
K.BALAKRISHNAN NAIR, JUDGE
P.BHAVADASAN, JUDGE
sta
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