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2009 DIGILAW 810 (KER)

Saji Varghese, Head Mistress v. K. Mohammedkutty

2009-08-26

K.BALAKRISHNAN NAIR, P.S.GOPINATHAN

body2009
Judgment :- Balakrishnan Nair, J. The appellant was the 5th respondent in the Writ Petition. The 1st respondent herein was the writ petitioner. The main point that arises for decision in this appeal is whether this Court can be moved for a mandamus against the Government to dispose a revision petition, which is yet to be received by it and whether in that Writ Petition, any order, granting interim relief, could be passed by this Court, against the order impugned in that Revision Petition. 2. The brief facts of the case the following: The 1st respondent is the Manager of M.I.S.M. Upper Primary School, Pengad Kundil Paramba, Kannamangalam West in Malappuram District. The appellant was the Headmistress of that school. Based on Exts.P3 and P4, the 1st respondent served Ext.P1 memo of charges on the appellant. Ext.P3 contains certain audit objections raised, based on the Deputy Director of Education's Special Audit and communicated to the Manager. The said communication says, the audit objections mentioned therein are remaining uncleared. Ext.P4 is the communication issued by the D.P.I. to the Assistant Educational Officer (A.E.O.) to take appropriate action on those audit objections. Ext.P5 is the proceedings of the Assistant Educational Officer dated 6.4.2008 dealing with certain irregularities from the part of the appellant and fixing liability on her, in relation to the matters mentioned therein. 3. Pursuant to the issuance of Ext.P1 memo of charges, the Manager suspended the appellant by Ext.P7 order dated 22.7.2009, for a period of 15 days. Motion was made before the A.E.O., for keeping her under suspension beyond 15 days. The A.E.O. conducted a preliminary enquiry on 5.8.2009 and declined sanction to keep her under suspension beyond 15 days, by Ext.P8 order dated 5.8.2009. The 1st respondent claimed, he filed Ext.P12 revision against Ext.P8 order before the Government under Rule 92 of Chapter XIVA of the Kerala Education Rules (for short "K.E.R.") on 6.8.2009. Next day, that is on 7.8.2009, he approached this Court, by filing the present Writ Petition, seeking the following reliefs: "(i) call for the records relating to Ext.P8 and quash the original of the same by the issue of a writ of certiorari or other appropriate writ or order. Next day, that is on 7.8.2009, he approached this Court, by filing the present Writ Petition, seeking the following reliefs: "(i) call for the records relating to Ext.P8 and quash the original of the same by the issue of a writ of certiorari or other appropriate writ or order. (ii) issue a writ of mandamus or other appropriate writ order or direction commanding the 1st respondent to permit the petitioner to suspend the 5th respondent beyond 15 days from 5.8.2009 and finalise the disciplinary proceedings pending against the 5th respondent. (iii) issue a writ of mandamus or other appropriate writ order or direction commanding the 1st respondent to effectively consider and pass appropriate orders upon Ext.P12 after affording an opportunity of being heard to the petitioner within a time limit and in the meantime, Ext.P8 may be kept in abeyance." 4. At the admission stage, the learned Single Judge disposed of the Writ Petition on 10.8.2009, without issuing notice to the appellant. The 1st respondent therein, State of Kerala, was directed to pass final orders on Ext.P12 revision, after affording an opportunity of being heard to both sides, within a period of four months from the date of receipt of the copy of the judgment. Meanwhile, further action pursuant to Ext.P8 was ordered to be kept in abeyance till the disposal of the revision. It was also ordered that if the 5th respondent is willing to be posted as a Teacher instead of Headmistress, the 1st respondent/writ petitioner will issue appropriate orders in that matter. Apparently, pursuant to the said judgment, the Manager issued Annexure-A order dated 20.8.2009, posting the appellant as Teacher, pending finalisation of the disciplinary action. Feeling aggrieved by the said judgment, this Writ Appeal is preferred by the appellant. It is submitted that without hearing the appellant a direction to her detriment has been issued. It is also pointed out that the 1st respondent has approached this Court even before Ext.P12 revision reached the Government. So, she prayed for allowing the appeal and dismissing the Writ Petition. 5. We heard the learned senior counsel for the appellant and also the learned counsel for the 1st respondent/writ petitioner. We considered the rival submissions made at the Bar and perused the materials on record. So, she prayed for allowing the appeal and dismissing the Writ Petition. 5. We heard the learned senior counsel for the appellant and also the learned counsel for the 1st respondent/writ petitioner. We considered the rival submissions made at the Bar and perused the materials on record. Going by the prayers in the Writ Petition, we notice that the 1st respondent has made a prayer to quash Ext.P8 and simultaneously, he has made a prayer to issue a writ of mandamus against the State Government to pass final orders on Ext.P12 revision, expeditiously. It is a settled position in law that remedy under Article 226 is not concurrent. After challenging Ext.P8 before the statutory forum, the 1st respondent cannot be permitted to challenge the very same order before this Court under Article 226 of the Constitution of India. See the Division Bench decision of this Court in Mc Dowell & Co. Ltd v. Assistant Commissioner [1985 KLT 428], Paripoornan, J., (as His Lordship then was), speaking for the Bench held as follows: "5. We heard counsel at length. Bearing in mind the principles laid down by the Supreme Court referred to above, and the other decisions mentioned hereinafter, we are of opinion the preliminary objection taken by the Advocate General is entitled to acceptance. Delivering the judgment of the Bench, in Kunjahammad Haji and others v. State of Kerala and others [1960 KLT 930) Ansari, C.J. held: "But the party complaining must not invoke the extraordinary jurisdiction of this Court, and at the same time exercise his statutory right of appeal; for, where such a right of appeal has been availed of, the appellate authority becomes vested with the legal jurisdiction of adjudicating on the complaint, and the authority should not, by our issuing certiorari, be divested of its jurisdiction of adjudication on the order, which becomes the subject-matter of appeal before it. Nor there is, in such case, overriding equity in favour of the petitioner." The Supreme Court in Jai Singh v. Union of India (AIR 1977 SC 898) observed as follows: "It has also been brought to our notice that after the dismissal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject-matter of the writ petition. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time." These decisions certainly support the arguments of the learned Advocate General, that at this stage when the appeals filed by the petitioner are pending before the 2nd respondent, we should not exercise the discretionary jurisdiction of this court under Article 226 of the Constitution of India. ...................... * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * For these reasons, we are not inclined to exercise our discretionary jurisdiction under Article 226 of the Constitution of India and to examine the validity or legality of the various assessment orders impugned, Exts.P13 to P21, which are pending in the appeals. We hold that, in so far as the appeals assailing the above assessment orders (Exts.P13 to P21) are pending before the 2nd respondent, it is not open to the petitioner to invoke the extraordinary jurisdiction of this court under Article 226 of the Constitution of India at this stage. We decline jurisdiction on this sole ground." We respectfully agree with the above legal principle laid down by the Division Bench of this Court. In view of the said legal position, the prayer to quash Ext.P8 made in the Writ Petition was not maintainable. 6. Now, we will consider the prayer for mandamus made by the 1st respondent/writ petitioner. This Court will issue a mandamus to the State to consider and pass appropriate orders on Ext.P12, if the Government have failed to hear and dispose of the same within a reasonable time limit. In this case, we notice that even before the revision reaching the Government, the Writ Petition was filed, seeking a mandamus against it to dispose of Ext.P12, expeditiously. The Government cannot be accused of the omission to discharge the statutory duty of disposing of a Revision Petition under Rule 92, even before the said revision reaches the Government. Therefore, in the absence of any failure of duty from the part of the Government, the prayer to dispose of Ext.P12 was also not maintainable. So, the learned Single Judge should have dismissed the Writ Petition. 7. Therefore, in the absence of any failure of duty from the part of the Government, the prayer to dispose of Ext.P12 was also not maintainable. So, the learned Single Judge should have dismissed the Writ Petition. 7. But, we notice that the Writ Petition was entertained and without issuing notice to the appellant, who is the affected party, not only a direction has been issued to consider and pass orders on Ext.P12, but also, a further direction was issued to keep Ext.P8 order in abeyance till the disposal of Ext.P12 Revision Petition. We notice that the 1st respondent has not moved the Government, seeking stay of Ext.P8. Government being the revisional authority, which is empowered to set aside Ext.P8, can definitely grant interim relief against it. In the absence of any motion before the Government, the 1st respondent could not have requested this Court to stay Ext.P8. If a stay application is filed before the Government and it is not considered within a reasonable time limit, the 1st respondent could have moved this Court for a direction to the Government to consider that. If that stay application is wrongly decided, then also he can move this Court to quash that order and also pray for further appropriate directions. In that event, this Court would have been justified in issuing a direction to keep in abeyance the impugned order till the disposal of the Revision Petition, provided, the writ petitioner has got a strong case. In this case, without the above jurisdictional pre-conditions subsisting, this Court directed to keep in abeyance Ext.P8. The said direction is plainly unsustainable. 8. In view of the above position, the judgment under appeal cannot be sustained. Accordingly, it is reversed and the Writ Petition is dismissed. It is declared that Annexure-1 order, being a dependent proceeding, passed based on the judgment under appeal, is unenforceable. The Writ Appeal is allowed as above.