Rt Rev Aldo Maria Patroni S J Bishop v. Kesavan — 1962 DIGILAW 108 (KER)

JUDGMENT C.A. Vaidialingam, J. 1. In this writ petition. Mr. K. P. Abraham, learned counsel for the petitioner management, challenges two orders passed by the 2nd respondent, the Regional Deputy Director of Public Instruction, Kozhikode. 2. The two orders that are challenged are Exts. P. 3 and P. 5 dated 19-1-1962 and 221962 respectively. 3. I do not propose to go into the controversy that appears to have been raging in this matter namely, regarding the right claimed by the management to appoint the 4th respondent as the Headmaster of the institution on the one hand, and the grievance of the first respondent that his claim for appointment as Headmaster of the said institution has not been recognized by the management, because, as I will indicate presently, the appeal that is stated to have been filed by the first respondent, will have to be taken up and considered by the appropriate authority in the Education Department, about which also I will be mentioning later in this order. 4. The first respondent admittedly sent, what he calls an appeal under Ext. P. 1 dated 4-7-1961, to the District Educational Officer, Kozhikode. In that he specifically refers to Rule 44 in Chapter XIV of the Kerala Education Rules, 1959. After adverting to the same, he refers to the fact that the manager of the petitioner's school, where he has been a qualified teacher for 21 years and more, has appointed the 4th respondent as acting Headmaster with effect from 2961961, in the absence on leave of the permanent Headmaster. It is also stated that the appointment of a Headmaster in an institution like that of the petitioner, shall ordinarily be according to the seniority, and the first respondent claims to be the senior most qualified hand for the post. Therefore, he states that he has got a grievance against the management, and that he is appealing against the order of the management, which is in contravention of Rule 44 in Chapter XIV of the Kerala Education Rules. Finally, he winds up Ext. P. 1 by requesting the authority concerned, namely, the District Educational Officer to register his appeal and investigate the affair, and get justice done to him. 5. There appears to have been some correspondence between the District Educational Officer and the petitioner management, because the latter sent a reply under Ext. P. 2 dated 881961 to the District Educational Officer. P. 1 by requesting the authority concerned, namely, the District Educational Officer to register his appeal and investigate the affair, and get justice done to him. 5. There appears to have been some correspondence between the District Educational Officer and the petitioner management, because the latter sent a reply under Ext. P. 2 dated 881961 to the District Educational Officer. In that reply the petitioner management refers to various matters; and in particular they emphasise that the selection and appointment of the 4th respondent as the Headmaster of the school is the most proper thing that have done in the circumstances, and that they have not violated rule 44 in Chapter XIV of the Kerala Education Rules. 6. The management then deals with the claim made by the first respondent before the Educational authorities. They also refer to the manner in which the Headmaster in this institution has been appointed by the management, and also refer to the guarantee which according to them, has been given under the Indian Constitution to persons like the petitioner management to establish and manage educational institutions of their own choice. In particular, they also state that the educational authorities, have no jurisdiction to force the management to appoint any person other than of their own choice. Ultimately, the management makes a request to the educational authorities to approve the appointment of the 4th respondent as acting Headmaster. 7. Though the appeal itself, as I mentioned earlier, was sent by the first respondent to the District Educational Officer, Kozhikode, under Ext. P.1, and though the management also gave an explanation in the said appeal to the District Educational Officer under Ext. P. 2, one of the orders under attack, namely, Ext. P. 3, has been passed not by the District Educational Officer, but by another officer, styled as the Regional Deputy Director of Public Instruction, Kozhikode, who is the 2nd respondent in these proceedings. The 2nd respondent adverts to the appeal petition of the first respondent Ext. P. 1, as well as the representation made by the management to the District Educational Officer, under Ext. P. 2. Then the Officer proceeds to state that no distinction has been made in the Kerala Education Rules between aided schools run by the missionaries and other educational agencies, in the application of the Rules, and that, as such, the rules will apply to all such institutions alike. 8. P. 2. Then the Officer proceeds to state that no distinction has been made in the Kerala Education Rules between aided schools run by the missionaries and other educational agencies, in the application of the Rules, and that, as such, the rules will apply to all such institutions alike. 8. The 2nd respondent then proceeds to consider the various view points that have bee urged by the management in Ext. P. 2 and is of the opinion that the appointment of the 4th respondent by the petitioner management as Headmaster, is against the letter and spirit of rule 44 in Chapter XIV of the Kerala Education Rules. Ultimately, Ext. P. 3 winds up with the direction to the management to appoint the first respondent, as Headmaster of the school in question, with effect from the date of which the post became vacant, and also to submit a report to the appropriate authorities within the time mentioned therein. 9. Therefore, it will be seen that actually the appeal filed by the first respondent must be considered to have been disposed of not by the authority, namely, the 3rd respondent, before whom the appeal was filed, but by the 2nd respondent, namely, the Regional Deputy Director of Public Instruction, Kozhikode. 10. On receipt of the communication Ext. P. 3, the petitioner management again sent a fairly lengthy explanatory statement under Ext. P. 4, wherein they reiterate most of the matters which have been adverted to by them in Ext. P. 2. Later on, they make a request to the 2nd respondent to reconsider the previous order Ext. P. 3 and revise the same and give approval to the action of the management. 11. Again, there is a further order, namely, Ext. P. 5, which is also under attack, dated 221962, passed by the 2nd respondent wherein the latter states that the previous order Ext. P. 3 was passed after due consideration of all aspects and that due consideration was also given to the representations that have been made by the management. The officer further states that he sees no reason to reconsider the previous order and rejects the request made by the petitioner under Ext. P. 4. 12. Finally, in Ext. P. 5 the 2nd respondent further directs the management to carry into effect the orders already passed by him. The officer further states that he sees no reason to reconsider the previous order and rejects the request made by the petitioner under Ext. P. 4. 12. Finally, in Ext. P. 5 the 2nd respondent further directs the management to carry into effect the orders already passed by him. There is also a threat that if the orders of the 2nd respondent contained in Ext. P. 3 are not carried out, within the time mentioned therein, he will be constrained to take disciplinary action for disobedience of Departmental orders, as provided in the Kerala Education Rules. 13. Mr. K. P. Abraham, learned counsel for the petitioner management urged several contentions in support of the attacks that have been levelled against the orders, Ext. P. 3 and P. 5. 14. The first contention of the learned counsel is that even assuming that the first respondent is entitled to file an appeal under Rule 44 in Chapter XIV of the Kerala Education Rules, it is provided in the said rule that a teacher, if he is aggrieved by such appointment, will have the right of appeal to the Department and that the appeal shall be preferred within one month of the date of the order appealed against. In this case, even assuming that the appeal filed by the first respondent to the District Educational Officer, Kozhikode, under Ext. P. 1, can be considered to be a competent appeal, the authority who can dispose of the appeal cannot be anybody in the Education Department. In fact the learned counsel was not even prepared to accept the position that the highest officer of the Department namely, the Director of Public Instruction, will be competent to hear the appeal. 15. According to Mr. K. P. Abraham, the large contention that is advanced by him is that the appeal itself is incompetent because there is no specific method by which the appeal has to be filed and there is no person or authority in the particular Department mentioned in Rule 44 before whom the teacher concerned can file the appeal. 16. The learned counsel further urged that, even assuming that the appeal filed under Ext. 16. The learned counsel further urged that, even assuming that the appeal filed under Ext. P. 1 to the District Educational Officer can be accepted to be maintainable, still it is that officer who alone could have disposed of it, and not the 2nd respondent, namely, the Regional Deputy Director of Public Instruction, Kozhikode, who has really disposed of the appeal by his orders Exts. P. 3 and P. 5. 17. The learned counsel further drew my attention to several other notifications that have been issued wherein there has been a delegation of the various functions of the officers of the Education Department. But according to him, there has been no direction or notification issued regarding the hearing and disposal of appeals that may be filed by aggrieved teachers under Rule 44 of Chapter XIV of the Rules. Therefore, according to the learned counsel, the appeal itself is not maintainable and the orders passed by the 2nd respondent, namely, Exts. P. 3 and P. 5, are also without jurisdiction, because that officer admittedly has no jurisdiction to pass any such orders. 18. The learned counsel for the petitioner management further urged that the management in this case has not at all violated any of the provisions of the rules when they decided to appoint the 4th respondent as the Headmaster of the School in question. In fact, the learned counsel placed considerable reliance upon the wording of Rule 44 of Chapter XIV of the Rules, wherein it is specifically stated that appointment of Headmasters shall ordinarily be according to seniority. In this case, it is the claim made by Mr. K. P. Abraham, on behalf of the petitioner management, that the management has set out their points of view, in their explanation, which will certainly show, that there has been no deviation from the ordinary rule of appointing the senior most person as the Headmaster, and on this basis the first respondent is not the senior most member on the staff of the school. That is, according to the learned counsel, there is no violation of Rule 44 in the matter of appointment of headmaster, committed by the management, and this aspect, it is the contention of the learned counsel, has not been properly appreciated by the Department. 19. That is, according to the learned counsel, there is no violation of Rule 44 in the matter of appointment of headmaster, committed by the management, and this aspect, it is the contention of the learned counsel, has not been properly appreciated by the Department. 19. No doubt, there is the other aspect pressed before me, namely, that the fundamental right guaranteed to persons like the petitioner management, in the matter of choosing and appointing the Headmaster, cannot be infringed upon by any departmental action. 20. The learned counsel, in any event urged that the orders Exts. P. 3 and P. 5 are violative of principles of natural justice inasmuch as the petitioner management was not given an opportunity to place its representations before the 2nd respondent before the latter officer passed the orders adversely rejecting the claim of the management. 21. On the other hand, Mr. K. P. Radhakrishna Menon, learned counsel appearing for the first respondent, has urged that in this case the various statements mentioned by this client will clearly show that the management have grossly violated the provisions of Rule 44 in Chapter XIV of the Kerala Education Rules. According to the learned counsel, the ordinary rule has been clearly specified and no exceptional circumstance has been made out by the management as to why there should be a deviation from the ordinary rule, which is clearly stated in Rule 44 itself. 22. The learned counsel for the first respondent controverted the claim made by the petitioner management that there is any fundamental right guaranteed in such matters. 23. Mr. Radhakrishna Menon, rather strongly urged that in this case though the statute has not clearly specified the authority in the Education Department before whom the appeal is to be filed, that expression has been defined in the rules as meaning "the Education Department of Kerala", and when there is no restriction as to the officer before whom the appeal is to be filed, the learned counsel urged that it is open to his client to invoke the jurisdiction of any of the officers in the hierarchy of officers in the Education Department. Accordingly, the learned counsel further urged that the appeal filed by his client before the District Educational Officer under Ext. P. 1, was perfectly competent and justified. 24. Accordingly, the learned counsel further urged that the appeal filed by his client before the District Educational Officer under Ext. P. 1, was perfectly competent and justified. 24. The learned counsel for the first respondent further urged that the petitioner cannot certainly be heard now to question the jurisdiction of the 2nd respondent, namely, the Regional Deputy Director of Public Instruction, either when he passed the order Ext. P. 3 or when he passed the later order Ext. P. 5. His contention on this aspect is briefly as follows: According to the learned counsel it was certainly open to the petitioner, if they have really a good point, to urge the question of jurisdiction before the Regional Deputy Director of Public Instruction, when the latter issued the order Ext. P. 3. Far from challenging the jurisdiction of the officer, it will be seen, the learned counsel urged, that the management in Ext. P. 4 makes the specific request to that officer to reconsider his previous order. As to whether the various matters mentioned as to whether the management has been able to make out a case for reconsideration of the previous order, is a totally different point. But a significant fact about Ext. P. 4, according to the learned counsel, is that the petitioner management has really submitted to the jurisdiction of the Regional Deputy Director of Public Instruction ; and, in fact, the petitioner was willing to take a chance of getting the orders reconsidered if possible and therefore the question of the jurisdiction of the Regional Deputy Director of Public Instruction, namely, the 2nd respondent, cannot certainly be allowed to be raised in these proceedings. There is good force in this contention. 25. The learned counsel for the first respondent also urged that there is no question of any violation of principles of natural justice, because from the various statements made by the management in the petition itself, they were prepared to proceed on the basis that the hierarchy of officials in the Education Department get the jurisdiction to deal with the matter; and when the Regional Deputy Director of Public Instruction passed the order Ext. P. 3, that officer had already before him a full and lengthy representation made by the petitioner management under Ext. P. 2 to the District Educational Officer as also the latter's report based upon the same. P. 3, that officer had already before him a full and lengthy representation made by the petitioner management under Ext. P. 2 to the District Educational Officer as also the latter's report based upon the same. Therefore the learned counsel urged that the plea of violation of principles of natural justice is devoid of any merit. 26. The question as to the competency of the District Educational Officer, namely, the 3rd respondent, to entertain the appeal under Ext. P. 1, as well as the jurisdiction of the 2nd respondent, namely, the Regional Deputy Director of Public Instruction, to dispose of the appeal, as he has done under Ext. P. 3 and the final order, Ext. P. 5, threatening action as against the management, are in serious controversy in these proceedings. So far as the statute itself is concerned, I am constrained to say that it does not throw much light on these aspects. No doubt, Rule 44 in Chapter X!V of the Kerala Education Rules after stating that appointment of Headmasters shall ordinarily be according to seniority and also providing that the Manager will appoint the Headmaster subject to the rules laid down in the matter, states that a teacher, if he is aggrieved by such appointment, will have the right of appeal to the Department, and that the appeal shall be preferred within one month of the date of the order appealed against. 27. There is Rule 46 in the same Chapter to the effect that confirmations and promotions made in deviation of the Rules shall be subject to the approval of the Director. 28. Under Rule 64 in the same Chapter, which deals with disputes between the teacher and the Manager, it is provided that an appeal shall lie to the District Educational Officer against the orders of the Assistant Educational Officer in regard to any dispute between the teacher and the manager that might be referred to him, and an appeal on the orders of the District Educational Officer shall lie to the Director. 29. I am informed by the learned Government Pleader that the powers to hear the appeal against the order of the District Educational Officer under Rule 64 have been delegated to Officers like the 2nd respondent in these proceedings. 29. I am informed by the learned Government Pleader that the powers to hear the appeal against the order of the District Educational Officer under Rule 64 have been delegated to Officers like the 2nd respondent in these proceedings. The said rule viz., Rule 64, also states that the appeal shall be preferred within thirty days of the receipt of the District Educational Officer's orders. 30. Rule 75, which again, deals with powers regarding imposition of penalties by the various rules referred to earlier, contains a note to the effect that Managers and Headmasters are lower or subordinate authorities for the purpose of these rules in relation to Educational Officers and the Director. 31. I am only adverting to some of these aspects, because there is no indication in Rule 44 as to which officer of the Department before whom the appeal is to be filed by the aggrieved teacher. I have already referred to the definition of the expression 'Department' which does not throw any light, and even Rule 64 which also does not at all deal with this aspect, because it deals with a special aspect namely, a dispute between the teacher and the Manager, and the rule provides an appeal to the District Educational Officer against the orders of the Assistant Educational Officers in such dispute, and an appeal has - also been provided against the orders of the District Educational Officer to the Director. 32. In this case, in view of the special provision in rule 44, it may be difficult to consider the appeal filed by the petitioner to the 2nd respondent under Ext. P. 1, to be in the nature of a complaint, which will be taken in by Rule 64. When Rule 44 certainly deals specifically with a right of appeal in the teacher and also states that the appeal should be preferred within one month of the date of receipt of the order appealed against, it would have been highly desirable if the rules had been framed in such a manner as to indicate clearly the officer in the hierarchy in the Education Department, before whom the appeal ought to be filed. As the rule now stands, the position will be that it will be open to the teacher to choose any of the officers in the hierarchy in the Education Department. In fact, Mr. As the rule now stands, the position will be that it will be open to the teacher to choose any of the officers in the hierarchy in the Education Department. In fact, Mr. Radhakrishna Menon, learned counsel appearing for the first respondent, has mentioned before me that he was prepared to accept this position. 33. There is considerable force in the contention of Mr. K. P. Abraham, learned counsel for the petitioner management that in view of no clarification being available, either in the statute or in the rules, the jurisdiction of the 2nd respondent to take up and dispose of the appeal and pass the orders like Exts. P. 3 and P. 5, is not beyond controversy. There is considerable doubt as to whether that officer can reasonably exercise the power to dispose of the appeal by virtue of the provisions contained in Rule 44 in Chapter XIV of the Education Rules. 34. Then no doubt, the question arises, as urged by Mr. K. P. Abraham, as to whether the appeal preferred by the first respondent before the 3rd respondent under Ext. P. 1, can be considered to be a valid appeal. I am prepared to accept the position, namely, the contention of Mr. Radhakrishna Menon, learned counsel for the first respondent, that when a right of appeal to the Department has been provided in Rule 44, the first respondent was perfectly competent to file the appeal before the officers of the Department, and the fact that in this case the said appeal was disposed of by the 2nd respondent when the latter received it, cannot certainly be considered to be according to the rules as they now stand that the said officer has no jurisdiction to receive the appeal. 35. Still the question arises as to whether the officer before whom the appeal was referred, namely, the District Educational Officer, and the officer who actually disposed of the appeal, namely, the Regional Deputy Director of Public Instruction can be considered to be officers who have got jurisdiction to pass the orders. In my view, it is not possible to say that the Regional Deputy Director, when he passed the order Ext. P. 3 and the further order Ext. P. 5, has really acted by virtue of any jurisdiction vested in him either under the statute or the rules. In my view, it is not possible to say that the Regional Deputy Director, when he passed the order Ext. P. 3 and the further order Ext. P. 5, has really acted by virtue of any jurisdiction vested in him either under the statute or the rules. The same difficulty would have faced the 1st respondent, if the order had been passed by the District Educational Officer also on the appeal Ext. P. 1. 36. But I am not prepared to scuttle this proceeding in such a manner, because there is also the other aspect pressed by Mr. Radhakrishna Menon, learned counsel for the first respondent, namely, that the petitioner cannot be heard to urge the question of jurisdiction of the 2nd respondent when he attacks the orders Exts. P. 3 and P. 5, as having been passed without jurisdiction The management appears to have a case that they have not violated any provision of rule 44. The first respondent also appears to have a grievance that his claims are overlooked by the management when the latter proposed the appointment of the 4th respondent as Headmaster. 37. While I am agreeing with the contention of the learned counsel for the first respondent that the appeal that was preferred by him, no doubt, to the 2nd respondent under Ext. P. 1, is also an appeal preferred to the Department, within the meaning of Rule 44, I am also accepting the contention of Mr. K. P. Abraham, learned counsel for the petitioner management, that the fact that any officer of the Education Department can proceed to entertain the appeal, by itself cannot have the jurisdiction to that officer to dispose of the appeal. No doubt, I am aware of the contention of Mr. K. P. Abraham that he is not prepared to concede the jurisdiction to dispose of the appeal in the highest officer in the Department, namely, the Director of Public Instruction. But in my view, when no other specific officer of the Department has been enumerated either in the rules or in any notification, as competent to dispose of the appeal, the power must be recognised in the highest officer of the Department, namely, the Director. Else rule 44 recognising and giving a right to an aggrieved teacher to prefer an appeal against the management's order, to the Department will be absolutely meaningless and will serve no purpose. Else rule 44 recognising and giving a right to an aggrieved teacher to prefer an appeal against the management's order, to the Department will be absolutely meaningless and will serve no purpose. The same effect will have to be given to the rule when it speaks of the Department; and, in my view, the Department must be directed by the Director of Public Instruction, who is the head of that Department. 38. Therefore, I am prepared to proceed on the basis that the Director of Public Instruction will have jurisdiction to dispose of the appeal that has been preferred by the teacher under Rule 44 of the Kerala Education Rules. 39. The position, therefore, comes to this, namely, that the appeal preferred by the first respondent under Ext. P. 1, was perfectly competent, and there is no grievance by anybody that it was not filed within 30 days of receipt of the order appealed against, as mentioned in Rule 44. But the disposal of that appeal either by the second respondent or by the third respondent cannot be considered to be within their jurisdictions. 40. Therefore, the orders Exts. P. 3 and P. 5 passed by the 2nd respondent are set aside and quashed. The appeal preferred under Ext. P. 1 by the first respondent will be taken up directly by the Director of Public Instruction and disposed of according to law. Having due regard to the contention of the petitioner that there has been no violation of rule 44 and also having regard to the contention on behalf of the first respondent that his claim for appointment has not been recognised by the management, the Director of Public Instruction will give a full opportunity to both the petitioner management as well as the first respondent, to place their respective points of view, before he takes a final decision in the matter. The Director is desired to take up and dispose of the appeal as expeditiously as possible. 41. I have already pointed out that a clarification will have to be made regarding the officer in the Education Department before whom the appeal contemplated in Rule 44 in Chapter XIV of the Kerala Education Rules, has to be instituted, as also the officer who is competent to hear and dispose of such appeal. 41. I have already pointed out that a clarification will have to be made regarding the officer in the Education Department before whom the appeal contemplated in Rule 44 in Chapter XIV of the Kerala Education Rules, has to be instituted, as also the officer who is competent to hear and dispose of such appeal. It is also desirable that provision is made giving the right to the aggrieved party to take such orders in appeal or revision, as the case may be, to the higher authorities, by naming the appropriate authorities. 42. Subject to the directions and observations made above, the writ petition is allowed. There will be no order as to costs.