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2020 DIGILAW 799 (KER)

Lekha Soman v. State of Kerala

2020-09-24

ANU SIVARAMAN

body2020
JUDGMENT : Anu Sivaraman,J. 1. The petitioners in W.P.(C) No.14145 of 2019 are the present Joint Managers of the Chembakassery Schools, Boothakulam, Kollam. They challenge Ext.P9 order of the Government in as much as it reviews Ext.P7 order passed in revision and directs action under Rule 7 of Chapter III KER. Ext.P13, which is a dependent order passed by the 3 rd respondent disqualifying the petitioners and Ext.P14 passed by the Government in revision against the same are also under challenge. 2. The petitioner in W.P.(C).No.1280 of 2019 is a teacher, who claimed appointment in the school belonging to the Chembakassery educational agency. She challenges Ext.P10 order of the Government (Ext.P9 in W.P. (c).No.14145/2020) to the extent it refuses to grant approval to the appointment as LPSA with effect from 1.6.2009 and grant the benefits thereof to her. 3. Heard Sri.V.Varghese the learned counsel for the petitioner in W.P.(C) No.14145 of 2019. Sri.K.R.Ganesh, the learned counsel appearing for the petitioner in W.P.(C).No.1280 of 2019 and the learned Government Pleader. 4. The parties and documents are referred to in this judgment as arrayed in W.P.(C) No.14145 of 2019, unless specifically stated. 5. The facts necessary for a proper consideration of the issues are as follows:- The petitioners are the Joint Managers, who had taken charge as such in accordance with the scheme of the educational agency in 2011 and 2016 respectively. The 6th respondent, who is the petitioner in W.P. (c).No.1280/2019 was appointed as LPSA in the school against a leave vacancy from 11.12.2000 to 11.2.2001. This appointment was duly approved. When an additional division vacancy of UPST arose in the school on 1.6.2009, the 6th respondent was not informed in terms of Rule 51A, Chapter XIVA KER by the then Joint Managers of the school. Another teacher, Smt.Ajithakumari was appointed in the vacancy. The 6th respondent, who was abroad at the time of the appointment had submitted a complaint on 1.2.2010 before the AEO, Chathannur and the appointment of Ajithakumari was not approved. By Ext.P1 order dated 26.7.2010 the AEO directed the then Joint Managers to appoint the 6th respondent against the vacancy of UPST w.e.f.1.6.2009. Thereafter, one of the then Joint Managers had terminated the appointment of Smt.Ajithakumari to appoint the 6th respondent. Thereafter, Ext.P3 appointment order was issued on 27.10.2010, appointing the 6th respondent as UPSA from 01.06.2009. By Ext.P1 order dated 26.7.2010 the AEO directed the then Joint Managers to appoint the 6th respondent against the vacancy of UPST w.e.f.1.6.2009. Thereafter, one of the then Joint Managers had terminated the appointment of Smt.Ajithakumari to appoint the 6th respondent. Thereafter, Ext.P3 appointment order was issued on 27.10.2010, appointing the 6th respondent as UPSA from 01.06.2009. It appears that on the ground that the Appointment Order was signed by only one of the Joint Managers, the 6th respondent was not permitted to join duty. A complaint was raised before the 2nd respondent and Ext.P4 order was issued on 19.05.2011, directing the appointment of the 6th respondent. Consequently, Ext.P5 order was issued by the then Joint Managers on 01.06.2011 and Ext.P6 appointment order was also issued. 6. Though the appointment of the 6th respondent by Ext.P6 was from 01.06.2009, the AEO limited approval from 13.07.2011, the date on which she joined duty. The 6th respondent approached the Government against the order of the AEO limiting her appointment from 13.07.2011 and Ext.P7 order was issued on 04.01.2013. Ext.P7 specifically refers to a revision petition dated 27.10.2012 submitted by the 6th respondent and notices that against the order of the AEO rejecting the approval of appointment for the period from 01.06.2009 to 13.07.2011, an appeal was pending before the DPI. A hearing appears to have been conducted on the revision petition/representation of the 6th respondent and it was found that there were vacancies in the schools to appoint Smt.Sivalatha and the 6th respondent who were claimants under Rule 51A of Chapter XIVA KER. The DPI was directed to accommodate the claimants in the available vacancies according to their seniority, if otherwise eligible. By this time, it is stated that since the 6 th respondent already stood appointed in the school by W.P.(C).No.1280/2019 & 14145/19 9 virtue of Ext.P6 order, no further steps were taken. However, long thereafter, Ext.P8 representation was submitted by the 6th respondent before the Government allegedly aggrieved by the non implementation of Ext.P7 order. The claim was to appoint the petitioner against the vacancy which was available from 01.06.2009 and to grant her consequential benefits. Ext.P9 order was passed on 22.11.2018 by the Government on the basis of a direction issued by this Court for a consideration of Ext.P8 representation. The claim was to appoint the petitioner against the vacancy which was available from 01.06.2009 and to grant her consequential benefits. Ext.P9 order was passed on 22.11.2018 by the Government on the basis of a direction issued by this Court for a consideration of Ext.P8 representation. After hearing the 6th respondent as well as the Joint Managers, the Government found that the action of the Joint Managers in having made fresh appointments against the vacancy which arose on 01.06.2009, without ascertaining the availability of Rule 51A claimant, was illegal and incorrect. The DPI was, therefore, directed to take action in terms of Rule 7 Chapter III KER against the Manager. The claim of the 6th respondent for salary from 01.06.2009 to 12.07.2011 was rejected on the ground that she had not actually worked during the relevant period. 7. Thereafter, Ext.P10 notice was issued by the DPI to the Joint Managers on the basis of the direction in Ext.P9 order. Though Ext.P11 reply was submitted pointing out that the petitioners were not the Joint Managers at the relevant time, that is, as on 01.06.2009 and that they had assumed the office of the Managers only in 2011 and 2016 respectively and that they had not committed any of the misconducts alleged against them, Ext.P13 order was issued by the Deputy Director, Kollam imposing the penalty of disqualification on the petitioners from holding the post of Manager. Though the issue was taken up in revision before the Government, Ext.P14 order has been passed rejecting the revision. The Government Order, the order of disqualification and the order in revision are under challenge in the writ petition filed by the Joint Managers. 8. In W.P.(C).No.1280/2019 the order under challenge is Ext.P10 which is Ext.P9 in the other writ petition. It is contended that though it is an admitted fact that the writ petitioner was the rightful claimant to the post which arose W.P.(C).No.1280/2019 & 14145/19 11 on 1.6.2009 and that she had been denied appointment as on that date only due to the illegal actions of the Managers. It is contended that though it is an admitted fact that the writ petitioner was the rightful claimant to the post which arose W.P.(C).No.1280/2019 & 14145/19 11 on 1.6.2009 and that she had been denied appointment as on that date only due to the illegal actions of the Managers. The petitioner has been denied the benefit of appointment with retrospective effect from 1.6.2009 in Ext.P10 order, It is submitted that even if it is an admitted fact that the petitioner had not actually worked in the post, the petitioner would be entitled to appointment from 1.6.2009 notionally for the purpose of seniority and all other benefits with the monetary benefits limited to the date when she actually assumed charge. 9. The essential contentions of the counsel for the petitioners in W.P.(C) No.14145 of 2019 are two fold. The primary contention is that Ext.P7 is an order passed on a revision petition submitted by the sixth respondent and that a review of that order is completely without jurisdiction, in the light of the specific provisions contained in Rule 93 of Chapter XIVA, KER. It is submitted that in the light of the contentions of the teacher as is evident from Ext.P7 the only power that could have been exercised by the Government to issue an order in the nature of Ext.P7 was the power of revision under Rule 92 of Chapter XIVA and that no review petition would be maintainable as against an order in the nature of Ext.P7. It is further contended that even if it is admitted that Ext.P7 is an original order, the power of review could not have been exercised by the Government, in view of the fact that the review was sought by Exhibit P8, five long years after the order. It is further stated by the learned counsel for the petitioners/Managers that the finding in Ext.P9 that action is liable to be taken against the Manager in terms of Rule 7 of Chapter III KER could only mean the Managers who were responsible for keeping the petitioners out of service from 1.6.2009 till 12.7.2011 and cannot be construed to mean the petitioners who had assumed charge as Managers only in the years 2011 and 2016 respectively. It is, therefore, contended that the disqualification of the petitioners by Ext.P13 order, in spite of being appraised of the above factual position was completely illegal. It is, therefore, contended that the disqualification of the petitioners by Ext.P13 order, in spite of being appraised of the above factual position was completely illegal. It is contended that the invocation of power of review by Ext.P9 order itself being non est in the eyes of law, Ext.P13, which is only a dependent order, is liable to be quashed without any further grounds having to be established. 10. The learned counsel for the petitioner relies on a decision of this Court in Rathee Devi v. State of Kerala 2002 (1) KLT 271 wherein it is held that review under Rule 93 of Chapter XIVA, KER is possible only if the order sought to be reviewed is an original order. An order passed by the Government in exercise of appellate or revisional jurisdiction cannot be subjected to review under Rule 93. The same position has been reiterated by a Full Bench of this Court in Anilkumar v. State of Kerala 2009 (3) KLT 650 : 2009 (3) KLJ 1 . 11. The learned counsel for the petitioner in W.P.(C) No.1280 of 2019 on the other hand would contend that the petitioner was a teacher, who had approved service in a leave vacancy in the school in the year 2000-2001. It is submitted that the change in the personnel of the Manager would not affect the right of the petitioner to get approval for appointment on the basis of statutory preference embodied in in Rule 51A of Chapter XIVA KER. It is submitted that the action of the Managers as well as the AEO in having declined the benefit to the petitioner with effect from the date of occurrence of vacancy is completely misconceived and that in spite of repeated requests made by the petitioner and factual findings in her favour, the benefit which ought to have granted to the petitioner has been denied. It is submitted that Ext.P7 in W.P.(C) No.14145 of 2019 is not an order passed in revision under Rule 92. It is stated in Ext.P7 that the order of the AEO declining approval for the appointment from 1.6.2009 had been subjected to appeal before the DPI, which was still pending. It is, therefore, contended that Ext.P7 is an order passed in exercise of the original power of the Government and the review would therefore be maintainable in terms of Rule 93. It is, therefore, contended that Ext.P7 is an order passed in exercise of the original power of the Government and the review would therefore be maintainable in terms of Rule 93. It is further submitted that Ext.P9 is an order passed on the basis of a direction issued by this Court and that as such, the contention that it is devoid of jurisdiction cannot be accepted. 12. The learned counsel relies on Ananthakumari v. State of Kerala 2017 (1) KLT 1079 to contend that the retrospective benefits of appointment and approval cannot be denied to an employee who had to approach this Court and the educational authorities repeatedly to get the statutory dues on the ground that she had not actually carried out her duties. 13. Counter affidavits have been placed on record in both the writ petitions. It is contended in the counter affidavit filed on behalf of the third respondent in W.P.(C) No.14145 of 2019 that the Manager had flouted the statutory provisions and the orders of the authorities in not granting appointment to the 6th respondent from 1.6.2009. It is stated that several appointments had been made by the Managers overlooking the statutory claim of the 6th respondent. It is stated that the rotation of management among the legal heirs of the deceased owners of the school is a continuous process and that the Managers during the relevant periods had changed according to the rotation. It is stated at paragraph 5 as follows:— “5. It is submitted that the 6th respondent had filed revision petition before the 1st respondent for getting her appointment approved w.e.f. 01.06.2009. The 1st respondent disposed the revision petition vide Ext.P7 directing the 2nd respondent to accommodate the 6th respondent and another claimant Smt. Sivalatha in the available vacancies according to their seniority. As argued by the petitioner that they had granted appointment to the 6th respondent according to her seniority even before the issuance of Ext,P7 may not be taken into consideration. It is due to the timely interference of this Hon’ble Court and the respondents 2 & 5 that the petitioners were forced to appoint the 6th respondent against the vacancy that arose on 01.06.2009, thereby restoring her seniority.” 14. It is due to the timely interference of this Hon’ble Court and the respondents 2 & 5 that the petitioners were forced to appoint the 6th respondent against the vacancy that arose on 01.06.2009, thereby restoring her seniority.” 14. However, it is stated that since the 6th respondent had not worked during the period from 1.6.2009 to 12.7.2011, she would not be entitled to salary or approval from the earlier date. It is further stated at paragraphs 8 and 9 as follows:- “8. On receipt of Ext.P9 order, this respondent issued notice to the petitioner vide Ext.P10. Thereafter the petitioners and the 6th respondent had been heard on 12.03.2019. On the basis of the documents contentions and arguments raised in the hearing this respondent issued Ext.P13 disqualifying the petitions from holding the managership of Chempakassery Educational Agency or any other schools. The 4th and 5th respondents had been entrusted with the duty of discharging the day to day needs of the institutions under the Chempakassery Educational Agency so as to avoid administrative vacuum. 9. It is humbly submitted that this respondent had issued Ext.Pl3 only after a thorough study of the whole issue. Moreover this respondent who had already been conversant with the issue was of the opinion that the petitioners had denied employment to the rightful Rule 51A claimant, Smt.Lekha Soman as and when a vacancy arose on 01.06.2009 the sub rule (1) of Rule 7 of Chapter III KER states that in the event of denial of appointment to a qualified thrown out teacher who has a rightful claim for reappointment by virtue of his/her holding the post earlier. It shall be open to the Director to declare him unfit to hold the office of manager in the school or in any other aided school. Hence this respondent by exercising the statutory power vested in her disqualified the petitioners vide Rule 7 Chapter III KER.” 15. It is specifically admitted in the counter affidavit filed on behalf of the third respondent in W.P.(C) No.14145 of 2019 is that what was filed before the Government which led to the passing of Ext.P7 was a revision petition. However, it is stated that another revision petition was filed by the 6th respondent on 7.4.2018 which led to the passing of Ext.P9 and that Ext.P9 is legal and valid. 16. I have considered the contentions advanced. However, it is stated that another revision petition was filed by the 6th respondent on 7.4.2018 which led to the passing of Ext.P9 and that Ext.P9 is legal and valid. 16. I have considered the contentions advanced. Rule 92 of Chapter XIVA reads as follows. “92. Revision:- (1) Notwithstanding anything contained in these rules the Government, may on their own motion or otherwise, after calling for the records of the case, revise any order passed by a subordinate authority [in respect of matters contained in this Chapter] which is made or is appealable under these Rules:- (a) confirm modify or set aside the order; b) impose any penalty or set aside, reduce confirm or enhance the penalty imposed by the order; (c) remit the case to the authority which made the order or to any other authority directing such further action or enquiry as they consider proper in the circumstances of the case or (d) pass such other order as they deem fit; Provided that - (i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty provided that such representation shall be based only on the evidence adduced during the enquiry; (ii) if the Government propose to impose any of the penalities specified in items (iv) to (viii) of Rule 65 on a case where an inquiry be held and thereafter on consideration of the proceedings of such inquiry and after given the person concerned an opportunity of making any representation which he may wish to make against such penalty pass such orders as they deem fit. [Explanation:- For the purpose of this proviso and sub rule (2) the person concerned shall include the Manager of a School whose orders are sought to be revised by the Government]. [Explanation:- For the purpose of this proviso and sub rule (2) the person concerned shall include the Manager of a School whose orders are sought to be revised by the Government]. (2) Nothing contained in the proviso to sub-rule (1) shall be deemed to require the Government to give an opportunity for personal hearing to the person concerned and it shall be sufficient if:- (i) Whether the Government propose to revise an order on their own motion, a copy of the grounds on which the order is proposed to be revised, or (ii) Where the Government propose to revise an order in pursuance of a revision petition filed by a party, a copy of the revision petition is furnished to the person concerned along with a notice requiring him to make representation, if any, in the matter in writing a period specified in the notice and the Government pass final orders in revision after consideration of such representation.” 17. Rule 93 is the limited power of review vested in the Government under Chapter XIVA. Rule 93 reads as follows:- “93. Review only of original orders:- Government shall on application of the party, review the original orders. There shall be only one review and application for review shall be made within a period of two months from the date of the order.” 18. A Division Bench of this Court in Haneefa v. Manager, MASM High School, Venmanad and others ILR 1976 (2) Ker 532 had specifically held that a review is maintainable only in terms of Rule 93 of Chapter XIVA and that too against an original order of the Government and within the time provided therein. The Division Bench in paragraph 5 of the judgment held as follows:- “5. The respondents next contended that the order dated 22nd October 1973 is an original order passed by the Government and therefore under rule 95 (sic) of Chapter XIV-A Kerala Education Rules, the Government can on application of the party review its order. The Kerala Education Rules empower the Government to pass original orders; for instance, rule 67, sub-rule 2 of Chapter XIV-A allows the Government to suspend a teacher of an aided school. Similar powers are provided for in other rules. Such an order will be an original order which can be reviewed under rule 93 of Chapter XIV-A, Kerala Education Rules, by the Government. Similar powers are provided for in other rules. Such an order will be an original order which can be reviewed under rule 93 of Chapter XIV-A, Kerala Education Rules, by the Government. The order dated 22nd October 1973 is not an order of that type. It is not based on any Education Rule. Consequently the submission made by the respondent’s counsel that what has been done by the Government was by way of review under rule 93 cannot stand. The order dated 22nd October 1973 is itself a Government order. No appeal lies to the Government against that order. In these circumstances the order Ext. P-16 has no statutory foundation and is therefore invalid. Further considering it as a purely executive order there was no change of circumstances after Ext. P-14 order to warrant a reconsideration of the matter by the Government. Therefore, in any view of the matter the order Ext. P-16 passed by the Government cannot be sustained.” 19. A reading of Rule 93 would clearly indicate that a review petition is not maintainable against an order passed by the Government in exercise of its powers of revision. A reading of the statement filed on behalf of the third respondent in W.P.(C).No.14145 of 2019 would go to show that the 6th respondent had invoked the revisional powers of the Government by filing a revision petition against the order of the AEO declining the approval from 1.6.2009. The 6th respondent has not produced the petition on which Ext.P7 was passed, even in her writ petition. However, Ext.P7 specifically refers to such a revision petition. Even otherwise, there is no provision under which an order in the nature of Ext.P7 could have been passed by the Government, except by exercise of its revisional power. W.P.(C).No.1280/2019 & 14145/19 22 Therefore, the exercise of the power under which Ext.P7 was passed by the Government can only be the power under Rule 92. An order passed in exercise of the powers under Rule 92 is not one which can be reviewed in terms of Rule 93. The direction issued by this Court to consider a representation preferred before the Government cannot clothe the Government with statutory power where none exists. An order passed in exercise of the powers under Rule 92 is not one which can be reviewed in terms of Rule 93. The direction issued by this Court to consider a representation preferred before the Government cannot clothe the Government with statutory power where none exists. Even if it is assumed for the sake of argument that Ext.P7 is an original order, the power of review which is conferred by the rules cannot extend to an exercise in the nature of Ext.P9, that too, after five years from the date of Ext.P7. 20. The contention raised by the 6th respondent to the effect that Ext.P7 is an original order and was only interlocutory in nature cannot be accepted, in view of the absence of any inherent power in the Government to pass an order in the nature of Ext.P7 and in the absence of any specific power, apart from Rule 92 of Chapter XIVA KER. I am, therefore, of the view that Ext.P9 order, by which the Government either reviewed its own order in Ext.P7 or exercised a revisional power for the second time is devoid of jurisdiction and is therefore non-est in law. Ext.P13, which is a dependent order also, therefore, cannot survive. 21. Even considered independently, Ext.P13 which proceeds against the petitioners solely on the basis of Ext.P9 order without any finding as to any misconduct on their behalf cannot be sustained in law. 22. In the above view of the matter, I am of the opinion that the prayers sought for in W.P.(C).No.14145 of 2019 are liable to be allowed Exts.P9, P13 and P14 orders are set aside. 23. Though the petitioner in W.P.(C),No.1280/2019 appears to have an arguable case on merits, her conduct defeats her claims. Even after the claim for approval was limited by the AEO to the date of assumption of charge, it appears that the teacher did not take up the matter seriously with the educational authorities. After a revisional order was passed by Ext.P7, there was a further delay of five years and no challenge was raised to the same. It was after full five years that a belated attempt was made to rectify the situation, that too, by approaching the Government again. In the above factual situation, I am of the opinion that the petitioner in W.P.(C).No.1280 of 2019 is not entitled to any relief. It was after full five years that a belated attempt was made to rectify the situation, that too, by approaching the Government again. In the above factual situation, I am of the opinion that the petitioner in W.P.(C).No.1280 of 2019 is not entitled to any relief. The writ petition fails and the same is accordingly dismissed.