M. Abdul Vahab v. Manager, P. T. M. UP School, Kollam
2013-03-18
P.N.RAVINDRAN
body2013
DigiLaw.ai
Judgment : 1. The issues arising in these writ petitions are inter-connected. They were therefore heard together and are being disposed of by this common judgment. The brief facts of the case are as follows:- 2. The petitioner in W.P.(C).No.20602 of 2012 was initially appointed as Upper Primary School Assistant (hereinafter referred to as "UPSA" for short) with effect from 27.6.1979 in PTM UP School, Aakkal in Kollam district. He was promoted as Headmaster of the school on completion of 15 years of service, with effect from 27.6.1994. While the petitioner was working as Headmaster of the school, he was placed under suspension by Ext.P1 order dated 20.12.2004 on various allegations of misconduct for a period of 15 days. The Assistant Educational Officer, Veliyam granted permission to the first respondent Manager to continue the suspension beyond 15 days. Later, the Manager issued Ext.P2 memo of charges dated 2.2.2005. After the petitioner submitted Ext.P3 written statement of defence, the Manager requested for a formal enquiry to be held under rule 75 of Chapter XIV A of the Kerala Education Rules. An enquiry was accordingly conducted by the Assistant Educational Officer, Veliyam who submitted Ext.P3(a) report finding the petitioner guilty of the charges levelled against him. 3. The Manager the reupon issued Ext.P4 show cause notice dated 27.6.2005 calling upon the petitioner to show cause why the punishment of compulsory retirement from service should not be imposed on him. The petitioner submitted Ext.P5 reply dated 11.7.2005 requesting the Manager to withdraw the proposal to impose a major punishment. The Manager thereafter moved the District Educational Officer, Kottarakkara for prior sanction to impose the punishment of compulsory retirement from service as required under rule 74 of Chapter XIV A of the Kerala Education Rules. By Ext.P6 order dated 1.12.2005, the District Educational Officer declined to grant permission to impose the punishment of compulsory retirement and directed the Manager to impose a lesser punishment like barring of increments or reversion to a lower post. The Assistant Educational Officer was directed to quantify the liability of the petitioner and to direct him to refund the amount thus quantified. 4. The Manager did not act as directed by the District Educational Officer in Ext.P6 order. Instead, by Ext.P7 order dated 23.12.2005 he imposed on the petitioner the punishment of compulsory retirement from service with effect from 20.12.2004, the date on which he was placed under suspension.
4. The Manager did not act as directed by the District Educational Officer in Ext.P6 order. Instead, by Ext.P7 order dated 23.12.2005 he imposed on the petitioner the punishment of compulsory retirement from service with effect from 20.12.2004, the date on which he was placed under suspension. Aggrieved thereby, the petitioner filed Ext.P8 revision petition dated 3.1.2006 before the Government. He thereafter filed W.P. (C).No.884 of 2006 in this Court seeking expeditious disposal of the said revision petition. By Ext.P10 judgment delivered on 11.1.2006, this Court disposed of the writ petition with a direction to the Government to take up the revision petition for consideration and dispose it of in accordance with law after notice to and hearing the petitioner and the Manager, within two months from the date of receipt of a copy of the judgment. The Government heard the parties on 7.4.2006 and by Ext.P11 order passed on 3.5.2006, it set aside Ext.P7 order and remitted the case back to the Manager with a direction to take a fresh decision in the matter after complying with the statutory provisions, within a month. The Government held that the action of the Manager in having issued Ext.P7 order dated 23.12.2005 imposing the punishment of compulsory retirement is in violation of rule 75 (11)(c) of Chapter XIV A of the Kerala Education Rules and hence, it is liable to be set aside. 5. Aggrieved by Ext.P11 order, the Manager filed W.P.(C) No.26816 of 2007 in this Court. An interim order of stay was passed therein. Later, the petitioner filed W.P.(C) No.26724 of 2011 in this Court seeking implementation of Ext.P11 order. The said writ petitions were heard and disposed of by Ext.P13 judgment delivered on 10.1.2012. In the meanwhile, there was a change in the Educational Agency and the Manager as a result of transfer of ownership of the school. The successor Manager, whose appointment as Manager was approved by the Director of Public Instruction as per order dated 23.6.2011, took the stand that he would abide by the direction issued by the Government in Ext.P11. Consequently this Court disposed of the writ petitions with a direction to the transferee Manager, to pass fresh orders in the matter as directed by the Government and to produce it before the Educational Officer concerned for further action.
Consequently this Court disposed of the writ petitions with a direction to the transferee Manager, to pass fresh orders in the matter as directed by the Government and to produce it before the Educational Officer concerned for further action. This Court also directed that the request of the petitioner for regularising the period of suspension shall also be considered depending upon the punishment imposed by the Manager. 6. In the meanwhile, the petitioner in W.P.(C)No.20602 of 2012 was prosecuted in C.C.No.223 of 2005 on the file of the Court of the Judicial Magistrate of First Class, Kottarakkara, for the offence punishable under section 2 of the Prevention of Insult to National Honour Act on the allegation that at about 11.45 AM on 26.1.2005, he removed the National Flag and burnt it in his residential property situate near the school. Though the petitioner was convicted by the trial court, on appeal filed by him, the judgment of conviction and sentence was set aside and he was acquitted of the charges by the Court of the II Additional Sessions Judge, Kollam by Ext.P12 judgment delivered on 10.8.2011. In C.C.No.223 of 2005, the additional 6th respondent in W.P.(C)No.20602 of 2012, who is the petitioner in W.P. (C)No.4838 of 2013, was examined as P.W.1 and the then Manager was examined as P.W.2. The lower appellate court held, after considering the testimony tendered by the witnesses examined in the case, that there was enmity between the accused (the petitioner in W.P.(C)No.20602 of 2012) and P.W.1 (the petitioner in W.P.(C) No.4838 of 2013). The appellate court also held that the possibility of P.W.2 (the then Manager) framing the accused in a false case cannot also be ruled out. It was held that there is no cogent and convincing evidence against the accused (the petitioner in W.P.(C)No.20602 of 2012) to establish the offence alleged against him. 7. After Ext.P13 judgment was delivered disposing of W.P.(C) No.26816 of 2007 and W.P.(C)No.26724 of 2011, the transferee Manager issued Ext.P14 order dated 23.2.2012 after referring to the previous history of the case including the petitioner's conviction by the trial court and his acquittal by the appellate court and imposed on him the punishment of reversion from the category of Headmaster to the category of UPSA. He also directed that the period of suspension shall be treated as duty for the purpose of reckoning pensionary benefits only.
He also directed that the period of suspension shall be treated as duty for the purpose of reckoning pensionary benefits only. He thereafter sought ratification of the order imposing punishment by the District Educational Officer. By Ext.P15 order dated 15.2.2012, the District Educational Officer ratified the Manager's action in awarding the punishment, but directed that the period of suspension can only be treated as leave without allowances and the said period cannot be treated as duty for any service benefit including pension. The Manager thereafter issued Ext.P16 proceedings dated 28.5.2012 reinstating the petitioner in service and reverting him to the category of UPSA. The Headmaster who was thus reverted as UPSA has filed W.P.(C)No.20602 of 2012 challenging Exts.P14, P15 and P16 orders in so far as they relate to the imposition of the punishment of reversion instead of imposing a minor penalty and to the extent they direct that the period of suspension will not be reckoned for any service benefit including pension. He also seeks incidental and allied reliefs. W.P.(C)No.4883 of 2013: 8. The additional 6th respondent in W.P.(C)No.20602 of 2012 has filed W.P.(C)No.4838 of 2013 challenging Ext.P11 order dated 23.3.2012 issued by the Manager of the school imposing on the petitioner in W.P.(C)No.20602 of 2012, who was under suspension, the punishment of reversion to the category of UPSA. A copy of the said order is produced and marked as Ext.P14 in W.P.(C) No.20602 of 2012. The petitioner in W.P.(C)No.4838 of 2013 challenges Ext.P11 order on the ground that the punishment awarded is inadequate having regard to the gravity of the charges proved in the enquiry and that an order of reversion without prescribing a time limit, apart from the fact that it is against the interests of the students and the institution, will only help the Headmaster who was reverted (the third respondent in W.P.(C)No.4838 of 2013 and the petitioner in W.P.(C) No.20602 of 2012) to come back to the post of Headmaster having regard to the provisions contained in rule 65(iv) of Chapter XIV-A of the Kerala Education Rules.
The petitioner in W.P.(C)No.4838 of 2013 has averred that pursuant to the order placing the Headmaster under suspension [Ext.P1 in W.P.(C)No.20602 of 2012] she was appointed as Headmaster by Ext.P1 order dated 20.6.2005, that the Assistant Educational Officer, Veliyam, declined to approve the said appointment by order dated 30.9.2005, that the appeal filed there from was dismissed by the District Educational Officer by Ext.P3 order dated 22.5.2007, that the revision petition filed there from before the Director of Public Instruction was dismissed by Ext.P4 order dated 1.8.2009 and that aggrieved thereby the Manager has filed Ext.P5 revision petition dated 8.10.2012 before the Government and it is pending. It is contended that the delay on the part of the Government in considering Ext.P5 revision petition seeking approval of her appointment as Headmaster with effect from 20.6.2005 is arbitrary and illegal. On these averments she also seeks an order directing the Government to consider Ext.P5 revision petition and pass orders thereon approving her appointment as Headmaster with effect from 20.6.2005. 9. These writ petitions were heard and disposed of by judgment delivered on 21.2.2013. By the said judgment, I allowed W.P.(C). No.20602 of 2012, set aside the direction in Ext.P15 letter dated 15.2.2012 sent by the District Educational Officer, Kottarakkara to the effect that the period during which the petitioner therein was under suspension (20.12.2004 to 28.5.2012) will be treated as leave without allowances and will not be reckoned for any service benefit including pension and directed the District Educational Officer to reconsider that aspect of the matter expeditiously and in any event within an outer limit of two months from the date on which the petitioner in W.P.(C). No.20602 of 2012 submits a representation setting out his grievances in that regard, after notice to and affording the petitioner in W.P.(C). No.20602 of 2012 and the Manager of the school an opportunity of being heard. I also directed the Manager to issue orders appointing the petitioner in W.P.(C).No.20602 of 2012 as Headmaster with effect from the date on which the period of six months computed with reference to the date of Ext.P16 order expired, within one week from the date of receipt of a copy of the judgment.
I also directed the Manager to issue orders appointing the petitioner in W.P.(C).No.20602 of 2012 as Headmaster with effect from the date on which the period of six months computed with reference to the date of Ext.P16 order expired, within one week from the date of receipt of a copy of the judgment. I also directed the District Educational Officer, Kottarakkara to approve his appointment as Headmaster within two weeks from the date of receipt of the proposal and also declared that the petitioner will be entitled to salary and allowances with effect from the date on which he is reappointed as Headmaster. W.P.(C).No.4838 of 2013 was disposed of with a direction to the State Government to consider Ext.P5 revision petition filed by the Manager of the school and pass orders thereon expeditiously and in any event within an outer limit of three months from the date on which the petitioner in W.P. (C).No.4838 of 2013 produces a certified copy of the judgment along with a copy of the writ petition complete in all aspects before the Secretary to Government, General Education Department. I also directed that the Government shall before disposing of Ext.P5 revision petition afford all the parties including the petitioners in both the writ petitions and the Manager of the school an opportunity of being heard. W.P.(C).No.4838 of 2013 was dismissed in so far as it relates to the challenge to Ext.P11, a copy of which is produced as Ext.P14 in W.P.(C).No.20602 of 2012. 10. After the judgment disposing of the writ petitions was signed by me, it came to my notice that the order of reversion which the learned counsel on both sides contended is an order of temporary reversion, is not an order of temporary reversion at all, but an order permanently reverting the petitioner in W.P.(C).No.20602 of 2012 to the category of Upper Primary School Assistant. I accordingly directed the writ petitions to be posted for being spoken to on 5.3.2013. The learned counsel appearing on both sides were informed that for the aforesaid reason, I propose to suo motu review the judgment delivered on 21.2.2013. After hearing the learned counsel on both sides, by order passed on 5.3.2012, the judgment delivered by me on 21.2.2013 in these writ petitions was reviewed and recalled and the Registry was directed to post the writ petitions for hearing as per roster on 14.3.2013.
After hearing the learned counsel on both sides, by order passed on 5.3.2012, the judgment delivered by me on 21.2.2013 in these writ petitions was reviewed and recalled and the Registry was directed to post the writ petitions for hearing as per roster on 14.3.2013. These writ petitions have thus come up before me for further hearing today. 11. I heard Sri. M.V. Thamban, learned counsel appearing for the petitioner in W.P. (C).No.20607 of 2012, Sri. C. Unnikrishnan, learned counsel appearing for the petitioner in W.P.(C).No.4838 of 2013 (who is also the additional 6th respondent in W.P. (C).No.20602 of 2012), Sri. S.M. Althaf learned counsel appearing for the Manager and Sri. M.A. Fayaz, learned Government Pleader appearing for the respondents. Sri. MV. Thamban, learned counsel appearing for the petitioner in W.P.(C).No.20602 of 2012 contended relying on the decision of a learned single Judge of this Court in Abdul Rahman v. State of Kerala (2005 (3) KLT 250) and of a Division Bench of this Court in Sethu Jayasree Bhasker v. Travancore Devaswom Board ( 1993 (1) KLT 920 ) that the Manager has not in Ext.P14 order indicated whether the reduction to the lower post is permanent or temporary and in the absence of any indication in the order to the effect that it is a permanent reduction, it has to be held that it is an order of temporary reversion which can operate only for a maximum period of six months. The learned counsel contended that in such circumstances the petitioner is entitled to be reinstated in service as Headmaster on the expiry of six months from the date date on which the order of reversion took effect namely, the expiry of the period of six months from the date of Ext.P16 order (28.5.2012) whereby he was reinstated in service as UPSA, after revoking the order of suspension. The learned counsel also assailed the direction issued by the District Educational Officer, Kottarakkara in Ext.P15 letter dated 15.2.2012 while ratifying the imposition of the punishment of permanent reduction to the lower post, that the period during which the petitioner was under suspension cannot be reckoned for any service benefit including pension and contended that the District Educational Officer had no jurisdiction or authority to interfere with the order passed by the Manager regarding regularisation of the period during which the petitioner was under suspension.
The learned counsel contended that though the petitioner has in the writ petition prayed that the entire period of suspension should be regularised as duty with consequential monetary benefits, the petitioner is agreeable to have the period of suspension regularised as duty for the limited purpose of pension as directed by the Manager in Ext.P14 and therefore Ext.P15 order may be set aside and Ext.P14 order passed by the Manager regarding regularisation of the period of suspension may be restored. The learned counsel for the petitioner did not canvass the correctness of the findings in the enquiry report or the validity of the order imposing punishment. 12. Per contra, Sri. C. Unnikrishnan, learned counsel appearing for the petitioner in W.P. (C).No.4838 of 2013 contended that the order of reversion (Ext.P14 in W.P. (C).No.20602 of 2012) is an order of permanent reversion and not an order of temporary reversion and therefore, the petitioner cannot be heard to contend that he is entitled to be reappointed as Headmaster on the expiry of the period of six months. Referring to the decision of the Division Bench in (Sethu Jayasree Bhasker v. Travancore Devaswom Board ( 1993 (1) KLT 920 ) Sri. C. Unnikrishnan, learned counsel contented that the Division Bench was dealing with the provisions contained in rule 11 (1)(v) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, which does not contemplate permanent reduction to a lower post, that in the said rules it is stipulated that the period of reduction cannot be less than six months or more than five years and that it was in such circumstances that the Division Bench held that an order of reversion to a lower post, which does not stipulate a time limit, can only be treated as reduction for a period of six months. The learned counsel contended that the learned single Judge did not in Abdul Rahman v. State of Kerala (2005 (3) KLT 250) advert to this aspect of the matter and therefore, no reliance can be placed on the decision of the learned single Judge or the Division Bench in support of the petitioners' contention.
The learned counsel contended that the learned single Judge did not in Abdul Rahman v. State of Kerala (2005 (3) KLT 250) advert to this aspect of the matter and therefore, no reliance can be placed on the decision of the learned single Judge or the Division Bench in support of the petitioners' contention. The learned counsel for the petitioner in W.P.(C).No.4838 of 2013 did not however oppose the request made by the learned counsel for the petitioner in W.P. (C).No.20602 of 2012, that the period of suspension may be reckoned as service at least for the purpose of pensionary benefits. Sri. M.A. Fayaz, learned Government Pleader appearing for the official respondents submitted that the order imposing punishment is an order of permanent reduction and therefore the petitioner cannot seek reappointment as Headmaster. As regards the direction issued by the District Educational Officer in Ext.P15 letter regarding regularisation of the period of suspension, the learned Government Pleader submitted that if the petitioner is aggrieved, he has a remedy by way of appeal before the appellate authority and therefore, the petitioner may be relegated to the alternate remedy available to him against that part of the order passed by the District Educational Officer, Kottarakkara. 13. I have considered the submissions made at the Bar by the learned counsel on either side. I have also gone through the pleadings and the materials on record. The operative portion of the order imposing punishment, a copy of which is produced and marked as Ext.P14 in W.P.(C).No. 20602 of 2012, reads as follows: Having considered all the aspects of the case the undersigned, the present Manager of PTM UP School, Aakkal, issue the following orders considering the gravity of the offence committed by Sri. Abdul Vahab, yet taking a lenient view- (i) Sri. M. Abdul Vahab will stand reverted to the cadre of UPSA which was immediately held by him before he was promoted as Headmaster, on finalisation of disciplinary proceedings. (ii) The period he was placed under suspension will be treated as a period of duty for the purpose of reckoning pensionary entitlements only. Sri. M. Abdul Vahab will be reinstated as UPSA/LPSA forthwith. This order will be subject to the approval of the District Educational Officer, Kottarakkara." (emphasis supplied) 14.
(ii) The period he was placed under suspension will be treated as a period of duty for the purpose of reckoning pensionary entitlements only. Sri. M. Abdul Vahab will be reinstated as UPSA/LPSA forthwith. This order will be subject to the approval of the District Educational Officer, Kottarakkara." (emphasis supplied) 14. After considering various aspects of the case, the District Educational Officer, Kottarakkara ratified the said order and communicated his decision to the Manager of the school by Ext.P15 letter dated 15.2.2012. The operative portion of Ext.P15 letter reads as follows: "Referring to the letter 2nd cited, I am to inform you that your action in having imposed the punishment of reversion to the cadre of UPSA on Sri. M. Abdul Vahab as per the proceedings order cited first is hereby ratified subject to the condition that the period of suspension can only be treated as L.W.A. and the period cannot be treated as duty for any service benefits including pension." Though the expression used in Ext.P14 is "approval" and the expression used in Ext.P15 is "ratified", from Ext.P14 order of the Manager it can be seen that what was sought by him was prior sanction of the District Educational Officer to impose the punishment. That apart, the punishment of reversion was given effect to only by Ext.P16 order dated 28.5.2012, whereby the petitioner was reverted as UPSA and reinstated in service. In such circumstances, the mere use of the expression "ratified" in Ext.P15 is not material. The petitioner has also not raised the contention that the punishment of reversion was imposed without the previous sanction of the District Educational Officer. Such a case was also not put forward by the learned counsel for the petitioner during the course of arguments. 15. The short question that arises for consideration is whether the order reverting the petitioner in W.P.(C) No.20602 of 2012 to the category of UPSA, the post held by him before he was appointed as Headmaster, is an order of temporary reversion or an order of permanent reversion. The main contention raised by the petitioner in W.P.(C) No.20602 of 2012 is that it is an order of temporary reversion. Reliance is placed on the decision of the Division Bench of this Court in Sethu Jayasree Bhasker v. Travancore Devaswom Board ( 1993 (1) KLT 920 ) and of a learned single Judge of this Court in Abdul Rahman Vs.
Reliance is placed on the decision of the Division Bench of this Court in Sethu Jayasree Bhasker v. Travancore Devaswom Board ( 1993 (1) KLT 920 ) and of a learned single Judge of this Court in Abdul Rahman Vs. State of Kerala (2005 (3) KLT 250) in support of the said contention. In Sethu Jayasree Bhasker v. Travancore Devaswom Board (supra), the Division Bench of this Court was considering the case of an employee of the Travancore Devaswom Board, who while working as Assistant Commissioner, was reverted to the category of Junior Superintendent. The order of reversion was passed under the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, which is made applicable to employees of the Travancore Devaswom Board. Rule 11(1) (v) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 which deals with the punishment of reduction to the lower post reads as follows: "11(1)(v): Reduction to a lower rank in the seniority list or to a lower grade or post or time scale whether in the same service or in another service, State or subordinate, or to a lower stage in a time scale; Note.--(1) The period of reduction shall not be less than six months and not more than five years. If the period is not specified in the order, the period of reduction shall be deemed to be six months". 16. The Note to rule 11(1)(v) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, stipulates that the period of reduction shall not be less than six months and more than five years and if no period is specified, the period of reduction shall be deemed to be six months. From a reading of rule 11(1)(v) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, it is evident that it does not contemplate permanent reduction. It contemplates only a temporary reduction, the minimum of which cannot be less than six months and the maximum of which cannot be more than five years. It was in the light of the aforesaid stipulation in the rules that the Division Bench held that the order of reduction which did not specify a time limit, can have effect only for a period of six months.
It was in the light of the aforesaid stipulation in the rules that the Division Bench held that the order of reduction which did not specify a time limit, can have effect only for a period of six months. The Division Bench also held that the reversion could have been only to the lower post of Junior Superintendent and not as the junior most among the Junior Superintendents. It is relying on the said decision of the Division Bench that a learned single Judge of this Court held in Abdul Rahman Vs. State of Kerala (supra) that an order of reversion passed by the Manager of an aided school which does not specify that it is permanent, can operate only for a period of six months. With respect, I am not persuaded to agree with the opinion expressed by the learned single Judge in Abdul Rahman Vs. State of Kerala (supra). On the terms of the provisions contained in the Kerala Education Rules, the principles laid down by the Division Bench of this Court in Sethu Jayasree Bhasker v. Travancore Devaswom Board (supra) can have no application. 17. Rule 65(1)(iv) of Chapter XIV-A of the Kerala Education Rules is not identically worded as rule 14(1)(v) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. Though in Abdul Rahman Vs. State of Kerala (supra), the learned single Judge had referred to rule 65(1) (iv) of Chapter XIV-A of the Kerala Education Rules as also to rule 11(1)(v) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, the learned single Judge did not notice the fact that the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, does not contemplate permanent reduction to a lower post. It was for this reason that it was held that as the Manager had not indicated in the order of reversion that the reversion is either permanent or for a specified period, it has to be deemed to be for a period of six months. Rule 65 (1)(iv) of Chapter XIV-A of the Kerala Education Rules reads as follows: 65(1)(iv): Reduction to a lower rank in seniority list or to a lower grade or post or time scale. Note.-(1) The reduction referred to may be either permanent or temporary for a specified period. (2) “Temporary period of reduction shall not be less than six months and not more than two years.
Note.-(1) The reduction referred to may be either permanent or temporary for a specified period. (2) “Temporary period of reduction shall not be less than six months and not more than two years. If the period is not specified in the order, the period of reduction shall be deemed to be six months". 18. Note (1) to rule 65(1)(iv) of Chapter XIV A of the Kerala Education Rules stipulates that the reduction referred to therein may be either permanent or temporary, for a specified period. Note (2) stipulates the temporary period of reduction shall not be less than six months and not more than two years. It is also stipulated that if the period is not specified in the order, the period of reduction shall be deemed to be six months. On the other hand, rule 11(1)(v) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, does not stipulate that the reduction may be either permanent or temporary. All that stipulated is that the period of reduction shall not be less than six months and not more than five years. In other words, rule 11(1)(v) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, does not permit permanent reduction to the lower post while it is permitted in the Kerala Education Rules. Having regard to the provisions contained in rule 65 (1)(iv) of Chapter XIV A of Kerala Education Rules, I am persuaded to take the view that unless the order passed by the Manager of an aided school states in express terms that the order of reversion is temporary, it has to be treated as an order of permanent reduction. It is only in cases where the Manager of an aided school or the Educational Officer exercising jurisdiction under section 12 A of the Kerala Education Act/rule 75 A of Chapter XIV-A of the Kerala Education Rules, imposes the punishment of temporary reduction to a lower post without specifying the time limit, that Note 2 to rule 65(1) of (iv) of Chapter XIV-A of the Kerala Education Rules applies. On the terms of rule 65(1) (iv) of Chapter XIV-A of the Kerala Education Rules, every order of reversion without specifying a time limit has to be treated as a permanent reduction unless the order expressly states that it is a temporary reversion.
On the terms of rule 65(1) (iv) of Chapter XIV-A of the Kerala Education Rules, every order of reversion without specifying a time limit has to be treated as a permanent reduction unless the order expressly states that it is a temporary reversion. In the instant case, Ext.P14 order reverting the petitioner in W.P. (C) No.20602 of 2012 recites that he will stand reverted to the category of UPSA, the post held by him before he was promoted as Headmaster. There is no indication in Ext.P14 order to the effect that the reversion is temporary. On the other hand, a reading of Ext.P14 order indicates that the reversion is permanent, a punishment contemplated by the Kerala Education Rules. I accordingly hold that Ext.P14 order reverting the petitioner in W.P.(C) No.20602 of 2012 to the category of UPSA, the post held by him before he was appointed as Headmaster, is an order permanently reverting him and not an order of temporary reversion. Necessarily therefore, the consequences mentioned in Note 2 to rule 65(1)(iv) Chapter XIV-A of the Kerala Education Rules can have no application. 19. I shall next consider whether the direction issued by the District Educational Officer, Kottarakkara in Ext.P15 letter when he ratified the order imposing punishment, that the period of suspension cannot be treated as duty for any service benefit including pension, merits interference. The Manager had while issuing Ext.P14 order directed that the period during which the petitioner was under suspension (20.12.2004 to 28.5.2012) will be treated as duty only for the purpose of pensionary benefits. The District Educational Officer however directed that it will not count for any service benefit including pension. Under rule 56(b) of Part I of Kerala Service Rules, it is for the disciplinary authority (in the instant case, the Manager of an aided school) to decide whether the period during which the employee was under suspension should be regularised as period spent on duty or otherwise. It is also for the competent authority to decide whether the period of absence from duty should be treated as period spent on duty for all purposes. In cases where the Manager of an aided school as the disciplinary authority imposes a punishment, the Educational Officers come into the picture only because of the provisions contained in rules 70, 71, 72, 73 and 74 of Chapter XIV A of the Kerala Education Rules.
In cases where the Manager of an aided school as the disciplinary authority imposes a punishment, the Educational Officers come into the picture only because of the provisions contained in rules 70, 71, 72, 73 and 74 of Chapter XIV A of the Kerala Education Rules. The relevant rule which applies in the case of imposition of the punishment of reduction to a lower rank in the seniority list or to a lower post or time scale, by the Manager, on the Headmaster of an aided school, is rule 71 of Chapter XIV A of the Kerala Education Rules which stipulates that the aforesaid penalties may be imposed by the Manager on a Headmaster with the previous sanction of the Director in the case of Headmasters of Secondary schools and Training Schools and of the Educational Officer in the other cases. It is also stipulated that such penalty may be imposed by the Manager on a teacher in consultation with the Headmaster and with the previous sanction of the Educational Officer. From a reading of rule 71, it is evident that previous sanction is required only for the purpose of imposing the penalty of reduction to the lower post and not for the purpose of deciding whether the period during which the Headmaster or teacher was under suspension should be regularized as duty for all purposes or whether it should be reckoned as duty only for the purpose of pensionary benefits. I accordingly hold that the District Educational Officer could not have interfered with that part of Ext.P14 order by which the Manager directed that the period during which the petitioner was under suspension will be reckoned as duty for the purpose of pensionary benefits and directed as he did in Ext.P15 that the said period will not be counted even for the purpose of pensionary benefits. I accordingly hold that the petitioner in W.P. (C) No.20602 of 2012 is entitled to succeed to that extent. 20. The petitioner in W.P.(C) No.4838 of 2013 has sought two main reliefs. The first relief sought is a declaration that Ext.P11 order (it is same as Ext.P14 in W.P.(C) No.20602 of 2012) is liable to be quashed and a further declaration that the third respondent is liable to be permanently reverted.
20. The petitioner in W.P.(C) No.4838 of 2013 has sought two main reliefs. The first relief sought is a declaration that Ext.P11 order (it is same as Ext.P14 in W.P.(C) No.20602 of 2012) is liable to be quashed and a further declaration that the third respondent is liable to be permanently reverted. The finding entered by me in W.P.(C) No.20602 of 2012 is that the order reverting the third respondent (the petitioner in W.P. (C) No.20602 of 2012) is an order permanently reverting him to the category of UPSA. As I have upheld the order imposing punishment, the petitioner in W.P.(C) No.4838 of 2013 cannot have any grievance regarding the punishment awarded to the third respondent. The other relief sought in W.P.(C) No.4838 of 2013 is an order directing the State of Kerala to consider and dispose of Ext.P5 revision petition and to approve the petitioner's appointment as Headmaster with effect from 20.6.2005. 21. It is not in dispute that pursuant to the order placing the petitioner in W.P.(C) No.20602 of 2012 under suspension [Ext.P1 in W.P.(C) No.20602 of 2012] the petitioner in W.P.(C) No.4838 of 2013 was appointed as Headmaster as per Ext.P1 order dated 20.6.2005. The order recites that the appointment is in the vacancy of the Headmaster who is placed under suspension. By Ext.P2 order dated 30.9.2005, the Assistant Educational Officer declined to approve the said appointment. By Ext.P3 order dated 22.5.2007, the appeal filed by the Manager from Ext.P2 was dismissed. Though a revision petition was filed against Ext.P3 order, that was dismissed by Ext.P4 order dated 1.8.2009. It is not in dispute that aggrieved thereby the Manager has filed Ext.P5 revision petition dated 8.10.2012 before the Government and it is pending. Having regard to the fact that a revision lies from Ext.P2, P3 and P4 orders to the Government, under rule 92 of Chapter XIV-A of the Kerala Education Rules, the Government cannot take the stand that it will not examine Ext.P5 revision petition and dispose it of on the merits. I therefore, find no reason why the relief sought by the petitioner in W.P.(C) No.4838 of 2013 regarding disposal of Ext.P5 revision petition cannot be granted.
I therefore, find no reason why the relief sought by the petitioner in W.P.(C) No.4838 of 2013 regarding disposal of Ext.P5 revision petition cannot be granted. I accordingly allow W.P.(C) No.20602 of 2012 in part and set aside that part of Ext.P15 letter dated 15.2.2012 sent by the District Educational Officer, Kottarakara to the Manager, whereby he directed that the period during which the petitioner in W.P.(C) No.20602 of 2012 was under suspension (20.12.2004 to 28.5.2012) will not be treated as duty for any service benefit including pension and restore Ext.P14 order passed by the Manager. It is however clarified that the petitioner in W.P.(C) 20602 of 2012 will not be entitled to salary and allowances during the said period except the subsistence allowance which he was entitled to receive. W.P.(C) No.20602 of 2012 shall stand dismissed in all other aspects. W.P.(C) No.4838 of 2013 is disposed of with a direction to the Government to consider Ext.P5 revision petition filed by the Manager of the school and pass appropriate orders thereon expeditiously and in any event within an outer limit of three months from the date on which the petitioner in W.P.(C) No.4838 of 2013 produces a certified copy of this judgment along with a copy of the writ petition, complete in all aspects before the Secretary to Government, General Education Department. The Government shall before disposing of Ext.P5 revision petition, afford all the parties an opportunity of being heard. The entitlement of the petitioner in W.P.(C) No.4838 of 2013 to receive salary and allowances in the post of Headmaster would depend upon the outcome of Ext.P5 revision petition filed by the Manager.