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1987 DIGILAW 264 (KER)

MOHANAN v. EXECUTIVE OFFICER

1987-06-26

V.SIVARAMAN NAIR

body1987
Judgment :- 1. The 1st respondent-Executive Officer of Kalloorkad Panchayat in his capacity as Manager appointed the petitioner as a Part-time Sanskrit Teacher in the Panchayat Upper Primary School, Vellaramkallu. The appointment was made after calling for a list of qualified candidates from the Town Employment Exchange, Muvattupuzha. The first respondent forwarded Ext.P1 order of appointment along with Ext.R1(a) covering letter promising that the decision of the Panchayat approving the appointment would be forwarded later. The Taluk Panchayat Officer, who functions as the Panchayat, refused to approve the appointment, since he suspected some foul-play in the appointment. This is evident from Ext.R1(b). He wrote to the third respondent-Assistant Educational Officer, requesting him not to approve the appointment, since the first respondent did not comply with the requirements of R.3(2) of the Kerala Panchayat (Spread of Education). Rules. 1964. He also reported the matter to the Deputy Director of Panchayats, who conducted an enquiry into the circumstances under which the appointment was made. He sent Ext.R1(d) letter to the first respondent and the Taluk Panchayat Officer, requesting them to cancel Ext P1 appointment of the petitioner. However, the Assistant Educational Officer approved Ext. P2 appointment in Ext. P3 endorsement dated 7-1-1987 Pursuant to Ext.R1(d) communication from the Deputy Director of Panchayats, the first respondent issued Ext. P4 order, cancelling the appointment of the petitioner. That order was communicated to the Headmaster on the same day as is evident from Ext.R1(e). In Ext.R1(f) dated 10-3-1987, the Headmaster reported that Ext. P4 order was communicated to the petitioner on 17-2-1987, but the cancellation of appointment and consequent termination of service could not be given effect to in view of the provisions of Chap.14-A of the Kerala Education Rules. Petitioner challenges Ext. P4 order. The main grounds which he urged in support of his submission are (a) that Ext. P4 was issued without notice to him, and (b) that the Manager of an Aided School cannot terminate the service of a teacher whose service was approved, without the permission of the Educational Officer concerned. 2. This case discloses an unseemly conflict between two public authorities functioning under two different statutes. The first respondent may, perhaps, be right in his submission that the Manager of a Panchayat School can effect appointment of a teacher only subject to the approval of the Panchayat. 2. This case discloses an unseemly conflict between two public authorities functioning under two different statutes. The first respondent may, perhaps, be right in his submission that the Manager of a Panchayat School can effect appointment of a teacher only subject to the approval of the Panchayat. It may, perhaps, be that the appointment will not be effective, unless it is approved by the Panchayat before it is submitted for approval by the Educational Officer under R.8 of Chap.14-A of the Kerala Education Rules. Such approval need only be by a subsequent ratification is also quite a possible view of R.2(3) of the Kerala Panchayat (Spread of Education) Rules. It is beyond dispute, that there shall be an approval either prior or subsequent to the appointment. The first respondent maintains that there was no such approval by the Panchayat. According to him, approval by the Educational Officer under R.8 of Chap.14-A of the Kerala Education Rules may not have the effect of validating the order which was illegal and invalid for non-compliance with R.2(3) of the Kerala Panchayat (Spread of Education) Rules. He, therefore, submits that the first respondent was competent to issue Ext. P4 order. According to him issue of notice to the petitioner will only be an empty formality, since the invalidity of the order of appointment made without approval of the Panchayat was incapable of ratification. 3. The Government Pleader appearing for the third respondent-Assistant Educational Officer asserts that the Assistant Educational Officer endorsed approval of the appointment only after the then Manager of the school produced a copy of resolution No.1 dated 23-8-1986 of the Panchayat ratifying the appointment of the petitioner. If the Manager had committed any mistake or the appointment involved any foul-play, it was for the Panchayat Department to take action against the erring official and seek cancellation of the order of appointment, either by requesting the Assistant Educational Officer to take proceedings for such cancellation or by filing a revision under R.8A of Chap.14-A of the Kerala Education Rules. He asserts that the Taluk Panchayat Officer or the Deputy Director of Panchayats was not competent to cancel an order of appointment of a teacher once it was approved by the Educational Officer. 4. I am of the opinion that the petitioner is entitled to succeed on the first ground. Ext. P1 order of appointment was made by the Manager of the School. 4. I am of the opinion that the petitioner is entitled to succeed on the first ground. Ext. P1 order of appointment was made by the Manager of the School. Ext. P2 was issued pursuant thereto in terms of the provisions of R.7 of Chap.14-A of the Kerala Education Rules. It was approved by the Assistant Educational Officer, who is the controlling officer. Ext. P2 order of appointment became valid and effective when the Assistant Educational Officer endorsed approval in Ext. P3. The effect of that order is that the teacher cannot be relieved before the expiry of the term of appointment, without the previous approval of the Educational Officer, as provided under R.48 of Chap.14-A of the Kerala Education Rules. The Order of the Assistant Educational Officer, granting approval is subject to the revisional powers of the Director under R.8A of Chap.14-A of the Kerala Education Rules. The Taluk Panchayat Officer or the Deputy Director of Panchayats can resort to the revisional remedy under R.8A of Chap.14-A, if in their opinion, Ext.P3 approval of appointment was illegally or irregularly granted, or that Exts.P1 and P2 appointment orders were issued fraudulently. Now that Ext.P2 order of appointment and Ext.P3 endorsement approving such appointment are available with the Headmaster of the School, it shall not be difficult for the first respondent or his superiors in the Panchayat Department to take up the matter to the Director of Public Instruction under R.8A of Chap.14-A of the Kerala Education Rules. 5. If on the other hand, the respondents want to seek cancellation of Ext. PI order issued by the erstwhile Manager of the School, it is for the first respondent to give notice to the petitioner of the proposal to cancel his appointment and give him an opportunity of defending that order. Even after cancelling Ext. P1 order, the Panchayat Department may have to seek the permission of the Educational Officer to relieve the teacher under R.48 of Chap.14-A of the Kerala Education Rules. Since Ext. P4 order was issued without notice to the petitioner and without the concurrence of the Educational Officer, the only course open for me is to set aside that order. That may not however be the end of the matter. If the Panchayat Department decides to persist in their attempt to cancel Ext. P1 appointment. Ext. P4 read along with Exts. P4 order was issued without notice to the petitioner and without the concurrence of the Educational Officer, the only course open for me is to set aside that order. That may not however be the end of the matter. If the Panchayat Department decides to persist in their attempt to cancel Ext. P1 appointment. Ext. P4 read along with Exts. R1(a) to Ext.R1(d) may be treated as notice to the petitioner proposing cancellation of his appointment due to non-compliance with R.2(3) of the Kerala Panchayat (Spread of Education) Rules. Petitioner may be required to submit his explanations against the proposal for cancellation of his appointment within a period not exceeding two weeks. The first respondent, or the Taluk Panchayat Officer, holding charge of the Panchayat, may, thereafter, conduct an enquiry and pass appropriate orders, after hearing the petitioner in defence. Any order of cancellation of the appointment of the petitioner will be given effect to only subject to the provisions contained in Chap.14-A of the Kerala Education Rules. It may be relevant to note that R.2 of Kerala Panchayats (Spread of Education) Rules provides, that "a Panchayat may, subject to the provisions of the Kerala Education Act, 1958 (6 of 1958) and the rules made thereunder, establish and maintain schools for providing facilities for the spread of education within the Panchayat area". Panchayat as a Corporate Educational Agency and the Executive Officer as Manager of the Aided School have to function subject to the provisions of the Education Act and the Rules and they cannot over-reach those provisions. Any order of cancellation of appointment of the petitioner and consequent termination of his service will, therefore, be effective only subject to the provisions of the Kerala Education Rules. That does not however mean that the Assistant Educational Officer can unreasonably refuse a delay permission necessary under R.48 of Chap.14-A of the Education Rules for the proposal to relieve the petitioner. The Educational Officer will pass orders within two weeks of receipt of any proposal to relieve the teacher, if the Manager or the Educational Agency decides to cancel the appointment for good and sufficient reasons. The Original Petition is allowed as above. There will, however, be no order as to costs.