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2016 DIGILAW 845 (KER)

JAYAKRISHNAN P, S/O. KESAVAN NAMBIAR, PARUR v. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (P) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM

2016-10-06

DAMA SESHADRI NAIDU

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JUDGMENT : Yet another instance of a Manager cutting corners and the victim, a teacher, paying the price-almost. Jayakrishnan P., the petitioner, a graduate with B.Ed., was appointed through Exhibit P1 on 20.10.2003, as Assistant Teacher by the Manager, Parur A.L.P. School. Initially, when Jayakrishnan's appointment was rejected concurrently by the Assistant Educational Officer (`AEO'), the primary authority, and also by the Deputy Educational Officer (`DEO'), the appellate authority, the Government in revision issued Exhibit P5 order directing the AEO to approve Jayakrishnan's appointment. 2. Later, a third-party filed W.P. (C) No.2529/2008 assailing the revisional order (Ext.P5). On the other hand, Jayakrishnan filed W.P. (C) No.4223/2008 seeking the revisional order's enforcement. This Court rendered Exhibit P6 common judgment in September 2008 holding that the third- party lacks standing and that the revisional order needs to be implemented. It was done. 3. As Jayakrishnan had been continuing as an Assistant Teacher, in 2009 another person-M. Madhu-here the fourth respondent, styling himself to be the Secretary of one Phoenix Sports & Arts Club, filed an objection before the Government. His objection essentially is that Jayakrishnan, a B.Ed., graduate, had been teaching lower classes than the fifth standard, and it is impermissible. After following the due process, the Government issued an order (Ext.P11): It set aside the revisional order. 4. The Government's justification to set aside the revisional order is that the Manager has suppressed Jayakrishnan's teaching lower classes than the fifth standard. The Government also held that the Manager had failed to appoint a teacher with TTC to teach the lower classes. As regards its issuing the revisional order earlier, the Government further justifies that the Manager had played a fraud and the Government, unaware of the facts, issued the revisional order for Jayakrishnan's confirmation. Aggrieved, Jayakrishnan has filed this writ petition. 5. Sri Santhosh Mathew, the learned counsel for Jayakrishnan, to begin with, has submitted that Madhu, an utter stranger, has no standing to re-agitate the issue of Jayakrishnan's appointment, which already stood concluded through the revisional order and the Ext.P6 judgment of this Court. He has further contended that Madhu lacks standing to question Jayakrishnan's appointment. Indeed, specific is his contention that neither Rule 92 nor Rule 93 of Chapter XIV-A of Kerala Education Rules (`KER') empowers the Government to subject its order in a revision to a further review; it is impermissible. 6. He has further contended that Madhu lacks standing to question Jayakrishnan's appointment. Indeed, specific is his contention that neither Rule 92 nor Rule 93 of Chapter XIV-A of Kerala Education Rules (`KER') empowers the Government to subject its order in a revision to a further review; it is impermissible. 6. Sri Santhosh Mathew has also contended that Jayakrishnan was appointed to teach only the fifth standard, but might have been assigned-unofficially, though-additional duty of teaching some lower classes, perhaps. According to him, there is an approved Teacher with TTC qualification to teach the lower classes. Eventually, Sri Santhosh Mathew has submitted that the Government's Ext.P11 order recalling its earlier revisional order is not only illegal but also perverse. And it must be set aside. 7. Sri M. Sasindran, the learned counsel for Madhu, has submitted that Madhu is a Secretary of a Sports and Arts Club, having concern for the standards to be maintained by educational institutions. His singular contention is that since the Manager has played fraud, the Government, unaware of the true state of affairs in the School, first, issued the revisional order; later, it recalled it. He, therefore, urges this Court not to interfere with Exhibit P11 order of recall. 8. The learned Government Pleader, in tune with the averments made in the Government's counter affidavit, contends that under G.O.(P) No.188/2000/G.Edn., a candidate who possesses SSLC and TTC alone can be appointed as an LPSA. In other words, a Teacher with B.Ed., qualification is unsuited to teach lower classes. According to him, acting on Madhu's complaint, the AEO visited the School, verified the records, and found that Jayakrishnan was teaching fourth standard for many years. 9. As regards the Government's issuing Exhibit P11 in the face of the earlier revisional order, the learned Government Pleader strenuously contends that even in terms of Rule 93 of Chapter XIV-A of KER, if a mistake is committed by the Government, especially as a result of a fraud committed by any person, it is always open for the Government to rectify the mistake. Thus, the learned Government Pleader lays emphasis on one aspect: The Manager has misled the Government and obtained the revisional order, though he continued to assign to Jayakrishnan the duty of teaching lower classes. Accordingly, he urges this Court not to interdict Exhibit P11. 10. Thus, the learned Government Pleader lays emphasis on one aspect: The Manager has misled the Government and obtained the revisional order, though he continued to assign to Jayakrishnan the duty of teaching lower classes. Accordingly, he urges this Court not to interdict Exhibit P11. 10. Heard Sri Santhosh Mathew for Jayakrishnan; Sri M. Sasindran for Madhu; and the learned Government Pleader for the State, apart from perusing the record. Issues: 11. The issues to be determined in the writ petition are as follows: (1) Does Madhu have the necessary standing to approach the Government and invite Exhibit P11 order-the order recalling the earlier revisional order? (2) Is the Government empowered under Rules 92 and 93 of Chapter XIV-A of KER to further review its order in revision? (3) Is Jayakrishna's appointment under the revisional order (Ext.P5) a product of fraud? 12. Indeed, emphatic is the judicial pronouncements that in service jurisprudence only an affected person can lay challenge. An interloper or a busybody has always been frowned upon. Earlier a third party, not much different from Madhu, questioned Jayakrishna's appointment. This Court, in Ext.P6 judgment, declared that he lacks the standing and that the petition should fail. Here, the finding cannot be any better for I find that Madhu squarely answers the description of an interloper. 13. Nevertheless, without upsetting the settled principles of law on the issue of standing, I may add a word. Adjudication as a public law remedy, especially under Article 226 of the Constitution of India, is quasi-adversarial. When the issue involves patent, flagrant statutory infraction or avoidable loss to the exchequer, despite the whistle blower's lacking the standing, the Court can as well treat the person as an informer. And, after coming to a prima facie conclusion about any official lapses or statutory transgressions, it could as well proceed further to adjudicate on the issue-only with a view to upholding the Rule of Law. Thus, it lies within the realm of the Constitutional Courts to take cognizance of an issue despite the complainant's lacking the standing. 14. I, therefore, decide to proceed further and adjudicate on the Government's justification in issuing Exhibit P11. 15. Indeed, neither Rule 92 nor Rule 93 of Chapter XIV- A empowers the Government to review its order in revision. Even while the Government reviews any appellate order, on its own-suo motu-the time limit imposed is two months. 14. I, therefore, decide to proceed further and adjudicate on the Government's justification in issuing Exhibit P11. 15. Indeed, neither Rule 92 nor Rule 93 of Chapter XIV- A empowers the Government to review its order in revision. Even while the Government reviews any appellate order, on its own-suo motu-the time limit imposed is two months. But I hasten to add: Of universal application and undoubted vintage value is the legal aphorism that fraud vitiates all acts and deeds, however solemn they may be. 16. Here, the Government has taken the plea of fraud, said to have been played by the Manager, as the fulcrum to sustain Exhibit P11. True, however forthright a legislative mandate limiting the powers of the authorities is, still once the authorities come to know that a beneficiary has obtained the order fraudulently, they should ensure that the person guilty should not enjoy the fruits of his machinations. Thus, I do not want to interdict Exhibit P11 on the technicality that the government lacks the power. So I proceed to examine whether any fraud has vitiated the revisional order. 17. Now I may have to see the sustainability of the revisional order. Does it survive the onslaught of Exhibit P11, which has sought to nullify it? In the revisional order, the Government specifically cites the prevailing practice of approving the services of a B.Ed., graduate, who had been appointed to handle classes in the fifth standard as part of U.P. Section. Equally true is the fact that there was neither an allegation nor a remote reference to the Manager's conduct that he had been assigning to Jayakrishnan the task of his teaching the lower classes, too. Thus, the Government perhaps has come to know for the first time only on Madhu's complaint about the statutory violation allegedly committed by the Manager. 18. To its credit, the Government took all precautions, such as following the due process, for it has put the parties affected on notice and conducted an enquiry before passing Exhibit P11. To that extent, the order is unassailable. But the moot question is, can Jayakrishnan be made to pay for the Manager's misdeeds if any? 19. It pays to refer to the revisional order. The Government acknowledges the prevalent practice thus: "Appointment of B.Ed., holders who were handling classes in standard V in other schools were approved earlier. To that extent, the order is unassailable. But the moot question is, can Jayakrishnan be made to pay for the Manager's misdeeds if any? 19. It pays to refer to the revisional order. The Government acknowledges the prevalent practice thus: "Appointment of B.Ed., holders who were handling classes in standard V in other schools were approved earlier. It is not fair to object to the appointment of a similarly placed incumbent who had been working in the school with effect from 20.12.2003." 20. A teacher, at the Manager's mercy, has always had a very weak bargaining power and he cannot say no to the Manager's command that he should teach lower classes as well. Understandably, the Government may have concluded that the Manager has compelled Jayakrishnan to teach lower classes and that he has violated the statutory mandate. Then, justifiably the Government ought to have restrained the Manager from transgressing the law; it could have further proceeded against the Manager. But it should not result-I reckon-in summary nullification of the revisional order. 21. In the facts and circumstances, as has been pertinently observed by this Court in Exhibit P6, Exhibit P5 has already attained finality and any additional work assigned to the petitioner can always be taken away with a suitable directive to the Manager. 22. In the facts and circumstances, I opine that Exhibit P11 cannot be sustained, and I accordingly set it aside. Having restored Exhibit P5, this Court particularly observes that if the Government still feels that the Manager has cut the statutory corners and has been running the School not entirely in consonance with the statutory scheme, it is always open for the Government to take remedial steps after following due process. At this juncture, the learned counsel for the fourth respondent has brought to my notice that Exhibit P11, which is in vernacular and which I could not read, further mandates that the Deputy Director of Education shall take appropriate steps against the Manager, which the Government should. No order on costs.