Philip Joseph, S/o. Joseph v. State Of Kerala, Represented By The Chief Secretary, Government Secretariat
2023-11-27
DEVAN RAMACHANDRAN
body2023
DigiLaw.ai
JUDGMENT : The learned Additional Advocate General – Sri.Ashok M.Cherian, instructed by Sri.P.Santhosh Kumar – learned Special Government Pleader, made an unreserved admission that Ext.P1 order, issued by the Director of General Education, Thiruvananthapuram, was in error and not to have been issued at all. 2. I am aware that this Court had issued an interim order in this case on 21.11.2023 to the following effect: “The learned Special Government Pleader – Sri.Santhosh Kumar, appears for the respondents and submits that the learned Additional Advocate General, Sri.Ashok M.Cherian, has been instructed to argue. 2. I have Examined Ext.P1. Prima facie, if the School Buses are to be used for public purposes, perhaps, there may be some justification to this order. This is a matter on which the learned Special Government Pleader will have to obtain instructions. 3. However, this Court finds a preliminary issue with Ext.P1, namely that the Director of General Education recommends that the Buses of the Schools be handed over to the (Organizing Committee), but without mentioning who it is; what it is; and for what purpose such Committees are functioning. I say this poses a problem because, there is no guarantee regarding the protection and maintenance of the Buses, if it is used for the purpose of ferrying other people, particularly when most of such Buses are specifically tailormade for children and their safety – they being, therefore, called ‘School Buses’. 4. That apart, this Court has not been told under what provisions of law the Director of General Education has issued the impugned order. There is no mention of the provision in the order either. In fact, the learned Special Government Pleader sought a few days time to answer this. 5. There is an additional aspect, namely whether there is any legal inhibition, as under the applicable Rules and Regulations, in permitting a ‘School Bus’ to be used for other purposes, especially to ferry adults for events as mentioned in Ext.P1. 5. The learned Special Government Pleader seeks time to obtain instructions in this regard also. 6. Hence, it is made clear that Ext.P1 will be given effect to only after this Court issues an order in due course. List on 27.11.2023.” 3. With the afore admission of the learned Additional Advocate General, it becomes manifest that impugned order cannot be allowed to operate.
6. Hence, it is made clear that Ext.P1 will be given effect to only after this Court issues an order in due course. List on 27.11.2023.” 3. With the afore admission of the learned Additional Advocate General, it becomes manifest that impugned order cannot be allowed to operate. In fact, the learned Advocate General adds that it has been withdrawn. 4. Therefore, all which remains is the query as to how the Director of General Education could have issued Ext.P1 in the first place. He seems to have not understood that he is acting statutorily, under the provisions of the Kerala Education Act and Rules thereunder; and hence that any order could have been issued to him only within its mandate. One can never understand how Ext.P1 could have thus issued, particularly when they direct all Headmasters of the Schools, through the jurisdictional Education offices, to make available buses of the schools for a particular event not connected with student welfare or education. 5. Even though the learned Additional Advocate General says that Ext.P1 was never intended to be mandatory, but only directory, it cannot lost sight of, that when a functionary like the Director of General Education makes even such “directory orders”, it would be construed by the Headmasters and Educational officers under him to be within the realm of mandatory directions. This is manifest from Ext.P4 now produced by the petitioner, which is an order issued by the Deputy Director of Education, Malappuram, who appears to have gone one step forward to direct that school buses ought to be made available for the event in question. Of course, this Court is now told that even this order has been withdrawn. It is so recorded. 6. This is rather unfortunate, but I choose not to speak further, adverting to the submissions of the learned Additional Advocate General, that impugned order has been withdrawn. I, therefore, close this writ petition, recording the afore submissions of the learned Additional Advocate General.