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1993 DIGILAW 454 (KER)

Abdul Hameed v. State of Kerala

1993-09-29

JAGANNADHA RAO, SREEDHARAN

body1993
Judgment :- Writ petitioner in O.P.2521/1993 is the appellant. He is the Manager of A.M.L.P. School, Padinjarckara, which is an aided Lower Primary School. He initiated disciplinary proceedings against fifth respondent, headmistress of the school. She was placed under suspension pending enquiry. Approval of the Assistant Educational Officer for continuing her suspension was sought for. The Assistant Educational Officer declined to approve the order of suspension and directed the reinstate her. Aggrieved by that order, petitioner filed a revision petition before the Government under R.92 of Chapter X1V-A of Kerala Education Rules. Government disposed of that revision petition by G.O.(RT) 168/93/GE dated 12-1-1993. Government by that order upheld the decision of the Assistant Educational Officer and directed the writ petitioner to reinstate fifth respondent as Headmistress forthwith. Aggrieved by that decision, he preferred O.P.2521/1993. Learned Single Judge by the impugned judgment dated 9-3-1993 directed the enquiry into the misconduct alleged against the fifth respondent to be conducted by the District Educational Officer, Malappuram, which should be completed within two months from the date of receipt of a copy of the judgment. In the meantime, the writ petitioner was directed to reinstate fifth respondent within a period of one week from the date of judgment. Writ petitioner has come up in appeal. 2. The learned counsel representing the appellant raised the following contentions for our consideration. They are - Deputy Secretary to Government has no power to pass an order on a revision petition filed under R.92 of Chapter XIV-A of the Kerala Education Rules; and that on the facts and circumstances of this case the Government and the learned Single Judge were wrong in directing the reinstatement of the fifth respondent pending enquiry into the misconduct alleged against her. 3. In support of the contention that a Deputy Secretary to Government cannot dispose of a revision petition filed under R.92 of Chapter XIV-A K.E.R.,reliance was placed on the decision of a learned Single Judge in Manager, Bavappara M.L.P. School v. Govt. of Kerala (1991 (1) KLT 880). That decision was based on the observations made by another learned Single Judge in the judgment in O.P.4575/1977 dated 13-3-1978. In O.P.4575/1977 the learned judge observed: "It'is seen from the counter affidavit filed on behalf of the first respondent that the revision filed by the petitioner under R.92 of Chapter XIV-A of the Kerala Education Rule was heard by a Deputy Secretary. In O.P.4575/1977 the learned judge observed: "It'is seen from the counter affidavit filed on behalf of the first respondent that the revision filed by the petitioner under R.92 of Chapter XIV-A of the Kerala Education Rule was heard by a Deputy Secretary. The revisional jurisdiction conferred on the Government under R.92 is very wide in terms and even orders passed by the Director of Public Instruction could be revised by the Government either suo motu or on an application by the concerned persons. That being the importance of the proceedings covered by R.92 of Chap.XIV-A of the K.E.R., it is only proper that while such revision petitions are filed before the Government the matter is heard and disposed of if not by the Minister, atleast by an officer of the rank and status of a Secretary to Government". These observations are seen made without reference to the Rules of Business of the -A Government of Kerala and the Kerala Government Secretariat Instructions. Rules of Business of the Government of Kerala are framed by the Governor of Kerala in exercise of the powers conferred by clauses (2) and (3) of Art.166 of the Constitution of India. As per R.22 of Part I of the said Rules, the cases coming before Government shall ordinarily be disposed of by or under the authority of the Minister in charge of the department to which the case relate. The Ministerial, by means of standing orders, give directions to subordinate officers in the department for the disposal of such cases. By means of such standing orders, the Minister is to arrange with the Secretary the matters or classes of matters which are to be brought to his personal notice. Except otherwise provided by the rules, the Secretary should submit the cases to the Minister in charge of the department. From these Rules, it is clear that the Minister in charge of thedepartment can authorise subordinate officers to dispose of cases by themselves. When the Minister gives such an authority to a subordinate officer competent as per the Business Rules, disposal of the case by that officer can never be faulted. From these Rules, it is clear that the Minister in charge of thedepartment can authorise subordinate officers to dispose of cases by themselves. When the Minister gives such an authority to a subordinate officer competent as per the Business Rules, disposal of the case by that officer can never be faulted. Rule 12of the said Rules states: - "Every order or instrument of the Government of the State shall be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or by such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument". This provision makes it clear that for the purpose of authentication, an order of the Government can be signed by any of the officers mentioned in that Rule. That will not mean that the officer who signed the order has himself passed the order. Clause (2) of Art.166 of the Constitution states that orders and other instruments made and executed in the name of the Governor shall be authenticated in the manner prescribed in the rules made by the Government and the validity of an orders authenticated shall not be called in question on the ground that it is not an order made or executed by the Governor. Ext. P8 order passed on the revision petition filed by the writ petitioner was issued by order of the Governor. It was signed by Sri.N. Karlhikcyan, Deputy Secretary to Government. His signature shall be deemed to be the proper authentication of that order. From this signature it is not to be presumed that Sri. Karthikeyan, the Deputy Secretary, had heard and disposed of the revision petition. In other words, the officer who signed the order should not be taken as the one who passed the order and depending on his rank, the order is not open in be quashed by this Court. 4. Learned Additional Advocate General-11 appearing in the case placed before us the entire file culling to Ext.P5 order. The revision petition when came up for consideration before the Government, the Minister for Education authorised Sri K. Gopalakrishnan, Additional Secretary to Government, General Education Department to hear and decide the revision petition. By virtue of that authorisation, Sri.K. Gopalakrishnan heard the parties. This fact is admitted by learned counsel appearing in the ease. The revision petition when came up for consideration before the Government, the Minister for Education authorised Sri K. Gopalakrishnan, Additional Secretary to Government, General Education Department to hear and decide the revision petition. By virtue of that authorisation, Sri.K. Gopalakrishnan heard the parties. This fact is admitted by learned counsel appearing in the ease. After hearing the parties, he came to the conclusion that the decision of the Assistant Educational Officer has to be upheld and the Manager directed to reinstate the fifth respondent as Headmistress forthwith. With this decision he placed the file before the Minister for Education. On 30-12-1992 Minister for Education endorsed the decision arrived at by Sri.K. Gopalakrishnan, the Additional Secretary to Government. Thereupon the order was issued in conformity with the provisions contained in the Rules framed under clauses (2) and (3) of Art.166 of the Constitution of India. That order was properly authenticated by the Deputy Secretary. 5. Clause 94 of the Kerala Government Secretariat Instructions reads: - "The procedure and mode of disposal of appeals and revisions which lie to Government will be as follows: - (i) Statutory appeals and revision petitions to Government will be disposed of by the Minister concerned, unless the Minister specifically delegates this power to the Special Secretary, Secretary, Additional secretary/joint Secretary or Deputy Secretary as the case may be. (ii) When a case is delegated to any of the Subordinate authority specified above forpersonal hearing of the parties involved, the power of final disposal of the mailer will also vest in that authority. Accordingly, the authority which hears a case will itself pass final orders thereon". As per this instruction, the Minister is authorised to specifically delegate the power of disposal of appeals and revisions, which lie to the Government, to any of the authorities mentioned in clause (i) quoted above. If power is delegated to such an authority, the disposal of the ease by that authority cannot be considered to be without jurisdiction, improper or illegal. By virtue of this provision, it is not correct to say that a revision petition filed under R.92 of Chapter XIV-A of K.E.R. should be disposed of only by the Minister or Secretary to Government. In O.P.4575/1977 and in Manager, Bavappara M.L.P. School v. Govt. of Kerala (1991 (1) KLT 880), it was held that as per R.92 the Minister or Secretary to Government alone should dispose of the revision. In O.P.4575/1977 and in Manager, Bavappara M.L.P. School v. Govt. of Kerala (1991 (1) KLT 880), it was held that as per R.92 the Minister or Secretary to Government alone should dispose of the revision. The attention of the learned judge in each of these cases, was not invited to the Business Rules and Secretarial Instructions. We therefore hold, with great respect, that these cases arc not correctly decided. In this view, we do not find any ground to interfere with Ext.P5 order of the Government as one passed by an incompetent authority. 6. Learned counsel representing the appellant challenges the direction given by the learned Single Judge to reinstate fifth respondent in service pending enquiry. Actually the appellant is aggrieved only by the direction to reinstate her in service. He is not against the direction given by the learned Single Judge to the District Educational Officer, Malappuram to hold the enquiry into the alleged misconduct levelled against the fifth respondent. Even so, he got all the proceedings pursuant to the learned Single Judge's decision stayed by this Court in this appeal. Sri.K.A. Abdul Gafoor, learned counsel representing the fi fill respondent, fairly conceded before us that his client is prepared to keep away from the school for a further period of one month, if the enquiry directed to be conducted by the District Educational Officer is completed within the said period. This suggestion appears to be quite reasonable. Therefore, we direct the District Educational Officer to complete the enquiry into the charges levelled by the appellant-writ petitioner against fifth respondent, C.A. Aisha Beevi, within three weeks from today. Depending on the report of the District Educational Officer, Malappuram on the charges, namely Ext.P1 memo of charges dated 22-5-1992, Smt. Aisha Beevi should be reinstated without any delay, in case she is exonerated in the enquiry. The Writ Appeal is disposed of in the above terms. Issue photo copy of the judgment to the parties on usual terms.