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Kerala High Court · body

1970 DIGILAW 44 (KER)

M. ARJUN ELAYAD v. ASSISTANT EDUCATIONAL OFFICER

1970-02-09

V.BALAKRISHNA ERADI

body1970
Judgment :- 1. The writ petitioner is the Manager of an aided lower primary school at Melmuri in Pattambi. He has sought to quash two orders passed by the Assistant Educational Officer, Pattambi 1st respondent evidenced by Exs. P1 and P3 whereby the petitioner has been informed that the action taken by him in terminating the service of the 2nd respondent, one A. L. Devassy Kutty, who was functioning as an Assistant Teacher in the school in purporting to discharge him from service on the ground of unsatisfactory work during the period of his probation, was not valid or legal since the requisite previous approval of the Educational Officer had not been obtained as laid down in R.6 (c) of Chapter XIV (A) of the Kerala Education R.1959 and consequently calling upon the petitioner to reinstate the said teacher into service. 2. Certain facts which are not in controversy may now be mentioned. The 2nd respondent was appointed as a teacher on probation in the petitioner's school on 27-7-1967. Under R.6 (a) of Chapter XIV (A) of the Kerala Education Rules qualified teachers on their initial appointment shall be on probation for a total period of one year on duty within a continuous period of two years. When the said period of one year was about to expire in the case of the 2nd respondent, the petitioner passed orders on 24-7-1968 discharging him from service apparently on the ground of unsatisfactory work as a probationer. When this order came to the notice of the Educational Officer the petitioner was informed as per Exs. Rs. and R3 that the action so taken by him was illegal and invalid and he was called upon to reinstate the 2nd respondent to service. In the order Ex. R3 passed, by District Educational Officer, Ottapalam it was specifically directed that the period of break in service of the 2nd respondent occasioned by the irregular termination of his service from 25 71968 to 3 81968 (the date of his reinstatement consequent on the direction by the Assistant Educational Officer) should be treated as eligibly leave. In the order Ex. R3 passed, by District Educational Officer, Ottapalam it was specifically directed that the period of break in service of the 2nd respondent occasioned by the irregular termination of his service from 25 71968 to 3 81968 (the date of his reinstatement consequent on the direction by the Assistant Educational Officer) should be treated as eligibly leave. Thereafter, while the 2nd respondent was continuing in service as a teacher in the school pursuant to his reinstatement "the petitioner addressed a communication dated 23 61969 to the Assistant Educational Officer intimating the latter about his intention to terminate the probation of the 2nd respondent and to discharge him from service with effect from 23-7-1969. On 4-8-1969, the Assistant Educational Officer by his order Ex. P1 informed the petitioner that the petitioner's action in terminating the service of the teacher without obtaining the previous approval of the Educational Officer as enjoined in R.6(c) of Chapter XIV(A) of the Kerala Education Rules was not valid or legal and that the teacher should be forthwith reinstated in service, in reply to this communication the petitioner sent a representation evidenced by Ex. P2 wherein he contended that R.6(c) mentioned above does not require the Manager to obtain the previous approval of the Educational Officer before discharging a probationer from service. The petitioner also relied on the communication sent by him to the Assistant Educational Officer on 23 61969 giving intimation about his proposal to take such action against the teacher and he sought to place the blame for contravention, if any, of R.6(c) entirely on the Officer for his omission to send any reply to the petitioner either granting or declining approval, Thereafter, the 1st respondent passed the order Ex. P3 dated 17-9-1969 rejecting the petitioner's contention that previous approval was not necessary and pointing out to the petitioner that in his communication dated 23 6 1969 there was no request whatever made for the grant of the Educational Officer's approval for the proposed action. Accordingly, the petitioner was called upon to implement forthwith the direction already given in the order Ex. P1 dated 4-8-1969 and report compliance. 3. In support of the challenge against Exs. Accordingly, the petitioner was called upon to implement forthwith the direction already given in the order Ex. P1 dated 4-8-1969 and report compliance. 3. In support of the challenge against Exs. P1 and P3 the petitioner has put forward three contentions; firstly, it is urged that the view taken by 1st respondent that it was incumbent on the Manager to have obtained the previous approval of the Educational Officer before discharging from service the probationer, namely the 2nd respondent, is based on an erroneous interpretation of R.6 (c) of Chapter XIV (A) of the Kerala Education Rules, 1959. Secondly, it is contended that in case the true interpretation of R.6(c) is that the Manager has to obtain the previous approval of the Educational Officer before discharging from service a probationer on the ground of unsatisfactory work during the period of probation, the said rule must be held to be invalid since it constitutes an unreasonable restriction on the Manager's right to administer the institution owned by him. Lastly, it was argued that the school in question is one conducted for the benefit of a minority community namely Moplas and that the petitioner is entitled to protection of Art.30 of the Constitution and hence nothing contained in R.6 (c) can abridge his right to administer the institution in such manner as he deems fit. 4. The action purported to have been taken by the petitioner is admittedly in the purported exercise of the power conferred by R.6 (c) of Chapter XIV (A) which states: "If the work of the probationer is found to be unsatisfactory at any time before the expiry of the period of probation or where such period of probation is extended, the Manager may, with the approval of the Educational Officer, by order either terminate the probation and discharge him from service or in case probation has not been extended, extend the period of probation after giving him a reasonable opportunity of showing cause against the action proposed to be taken against him." Under this Rule, the Manager has to exercise the power of terminating the probation and discharge the teacher from service before the expiry of the period of probation or, in cases where such period has been extended under R.6(b), before the expiry of such extended period. In the present case, from the facts which have been already narrated earlier it would be seen that the 2nd respondent had commenced his service in the school as a probationer on 27-7-1967. The period of probation prescribed by R.6 (a) is only one year on duty. It is only long after the expiry of the said period of one year that the petitioner addressed the communication (dated 23 61969) to the Assistant Educational Officer intimating the latter about his intention to terminate the probation of the 2nd respondent and to discharge him from service. R.6(c) does not authorise any such action being taken after the expiry of the period of probation prescribed it. It is not disputed that no steps had been taken by the petitioner under R.6(b) for extending the probation of the 2nd respondent. It is therefore, clear that the action taken by the petitioner to discharge the 2nd respondent from service in purported exercise of the power under R.6(c) long after the expiry of period of probation was not valid. 5. In view of the conclusion that I have expressed above it is not necessary to consider the merits of the contentions advanced by the petitioner regarding the correct interpretation to be placed on R.6(c). However, since the matter has been fully argued before me by the learned counsel appearing on both sides I shall express my opinion on that question as well. It is true that the expression 'previous approval' has not been used in R.6(c) but having regard to the object and purpose of that Rule and the context and setting in which the provision for approval finds a place therein, it appears to me to be clear that the intention of the rule making authority is that the action specified therein can be taken by the Manager of the school only with the previous approval of the Educational Officer. It is also significant that the Wording used is that the "Manager, may, with the approval of the Educational Officer, by order either terminate the probation and discharge him from service ", in other words the Manager must be already in possession of the approval of the Educational Officer before he proceeds to pass an order either terminating the probation and discharging the probationer from service or extending the period of probation in case probation had not been previously extended. 6. 6. I am, therefore, of the view that the 1st respondent was perfectly correct in holding that the action taken by the petitioner in terminating the service of the 2nd respondent without obtaining the prior approval of the Educational Officer could not be regarded as valid. Hence, the first point raised by the learned counsel for the petitioner fails. 7. I do not find any substance in the attack made by the petitioner against the validity of R.6(c). Its provisions impose only a reasonable restriction designed to protect teachers in aided schools from arbitrary action on the part of the employer in the guise of discharge by termination of probation. Obviously this safeguard has been provided as part of a scheme for ensuring proper service conditions to the personnel employed as teaching staff of aided schools in order that there should be reasonable contentment amongst them which is a factor that would undoubtedly conduce to better efficiency on their part with resultant benefit to the students and thereby to the public. 8. Nor is there any merit in the contention based on Art.30 of the Constitution. It is seen on a reference to the original petition that the petitioner does not belong to any minority community and there is also nothing to show that the school managed by him is one established and administered by such minority. Hence Art.30 has no application at all to the present case. 9. The original petition fails and is dismissed but in the circumstances without any order as to costs.