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2009 DIGILAW 335 (KER)

P. B. Sajith v. Deputy Direction (Education)

2009-04-02

P.N.RAVINDRAN

body2009
Judgment :- Heard Sri. S.Subhash Chand, the learned counsel appearing for the petitioner and Sri. A.J.Varghese, the learned Government Pleader appearing for respondents 1 and 2. Though the third respondent has been served, he has not entered appearance. 2. The third respondent appointed the petitioner as H.S.A. (English) in a long leave vacancy during the period from 5.6.2006 to 31.3.2010 as per Ext.P3 appointment order dated 5.6.2006. That appointment was approved by the District Educational Officer, Tirur by order passed on 1.1.2007. After such approval was granted, a regular vacancy of H.S.A. (English) arose in the school with effect from 1.4.2007 on the promotion of Sri. K.N.Haridas, H.S.A. (Mathematics) as Headmaster. When the regular vacancy of H.S.A. (Mathematics) arose, the petitioner was shifted to that vacancy and appointed in that vacancy with effect from 18.6.2007 as per Ext.P1 order dated 18.6.2007. The District Educational Officer, Tirur declined to approve the said appointment by Ext.P2 order passed on 28.7.2008. Aggrieved thereby, the petitioner filed Ext.P4 appeal before the Deputy Director of Education invoking Rule 8(4) of Chapter XIV A of the Kerala Education Rules, hereinafter referred to as the "KER" for short. He thereafter filed W.P. (C) No.30150 of 2008 in this Court seeking expeditious disposal of Ext.P4 appeal. By Ext.P5 judgment delivered on 14.10.2008, this Court directed the District Educational Officer, Tirur to consider Ext.P4 appeal and pass orders thereon expeditiously and in any event within six weeks from the date of production of a copy of the judgment, after notice to the petitioner and the Manager. It appears that after Ext.P4 appeal was filed and before Ext.P5 judgment was delivered, the Deputy Director of Education issued Ext.P7 letter dated 30.9.2008 calling upon the Manager to take appropriate action against the petitioner for having moved the Deputy Director of Education directly without filing the appeal through the appointing authority and the immediate controlling officer, namely, the District Educational Officer, Tirur. Ext.P7 is under challenge in this Writ Petition. 3. Sri. Ext.P7 is under challenge in this Writ Petition. 3. Sri. S.Subhash Chand, the learned counsel appearing for the petitioner contends that under Rule 8(5) of Chapter XIV A of the KER, a teacher aggrieved by the order passed by the District Educational Officer declining to approve his appointment has got a right of appeal to the Deputy Director of Education and that Rule 8(5) of the KER does not state that appeal should be presented through the officer who passed the impugned order or that it should be presented through the Manager. The learned counsel appearing for the petitioner submitted that even if it is treated as an appeal filed under Rule 82 of Chapter XIV A KER, the Deputy Director of Education could have only returned the appeal in terms of the first proviso to Rule 84 of the KER for proper presentation and that violation of the procedure presented in Rule 84 for submitting an appeal cannot result in departmental action. The learned counsel contended that even if Rule 84 of Chapter XIV A of the KER has been violated, the proper course for the officer would have been to return the appeal to the petitioner for proper presentation. Merely because there was irregularity in the submission of the appeal, the officer ought not have directed the Manager to initiate disciplinary action it is contended. Per contra, the learned Government Pleader appearing for the official respondents submits that the petitioner ought to have presented the appeal to the Headmaster with a request to forward it to the District Educational Officer. 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. On going through the pleadings and the materials on record and Rules 84 and 85 of Chapter XIV A of the KER, I am of the opinion that the direction issued in Ext.P7 was totally uncalled for. Rule 8(5) of Chapter XIV A of the KER entitles a teacher who is aggrieved by the order passed by the District Educational Officer declining to approve his or appointment to challenge the order before the next higher authority, namely, the Deputy Director of Education. Rule 8(5) does not stipulate that the appeal should be presented through the officer who passed the order impugned in the appeal. Rule 8(5) does not stipulate that the appeal should be presented through the officer who passed the order impugned in the appeal. The only stipulation in Rule 8(5) is that the appeal shall be filed within 15 days from the date of receipt of the order appealed against. The stipulation in Rule 84 of Chapter XIV A of the KER does not in my opinion govern such an appeal. This is evident from the fact that the period of limitation prescribed in Rule 82 of Chapter XIV A of the KER for filing an appeal governed by that rule is two months from the date on which the appellant received a copy of the order appealed against. Rule 8(5) states that no appeal shall be entertained unless it is preferred within 15 days from the date of the order appealed against. Therefore, Rules 84 and 85 cannot govern an appeal filed under Rule 8(5) of Chapter XIV A of the KER. I am therefore satisfied that Ext.P7 cannot be sustained. In the result, the Writ Petition is allowed and Ext.P7 is quashed. No costs.