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2025 DIGILAW 136 (KER)

ASHRAF M. A. v. STATE OF KERALA

2025-01-30

A.MUHAMED MUSTAQUE, P.KRISHNA KUMAR

body2025
JUDGMENT : A. MUHAMED MUSTAQUE, J. 1. The learned counsel for the appellant vehemently argued in regard to the competency of the Deputy Director of Education in exercising the power under Chapter III of Rule 7 of the Kerala Education Rules, 1959 (for short KER, 1959), which refers to the power of the Director to disqualify a Manager in the event of mismanagement. In the KER, 1959 as originally stood as ‘Director’ is defined under Rule 2 (4) as follows: “2(4) “Director” means the Director of Public Instruction, Kerala or such Other Officer or Officers who may from time to time be appointed by the Government to exercise all or any of the powers of the Director of Public Instruction.” Which means the Government is competent to appoint any officer from time to time as a Director invoking power under Rule 2(4) of the KER. As per G.O. (P) No. 52/80/G.Edn. dated 7.5.2018, the Government appointed the Deputy Director of Education as the Director for the purpose of Rule 7 of Chapter III of the KER. It is appropriate to refer to S.R.O. No. 561/80, which reads thus: “S.R.O. No. 561/80 - Under Clause (4) of rule 2 of Chapter I of the Kerala Education Rules, 1959 and in super-session of the Notification No. G.O. (P)657/61/Ed. dated the 8th November, 1961, published in the Kerala Gazette dated the 21st November 1961, the Government of Kerala hereby appoint the Deputy Directors (Education) to exercise within their respective jurisdiction, the powers of the Director of Public Instruction conferred upon him by rules 2, 6 and 7 of Chapter III, rules 3(a), 3(a)(a), 13(2), 15 and 23B of Chapter V, rules 6, 12 and 21 of Chapter VI, rules 3 and 4(1) of Chapter VII, rule 7 of Chapter VIII, rule (ix) of Chapter XIII, rules 64, 71, 73 of Chapter XIV(A), rule 7 of Chapter XV and rule 2(2) of Chapter XXIII of the said order.” 2. In the year 2019, an amendment was brought in to the Kerala Education Rules, 1959. Rule 2(4) of the KER, 1959 has been substituted to define ‘Director’ as ‘Director of General Education’ which means no other officer can exercise the power of Director. This Rule came into force on 31.05.2019. In the year 2019, an amendment was brought in to the Kerala Education Rules, 1959. Rule 2(4) of the KER, 1959 has been substituted to define ‘Director’ as ‘Director of General Education’ which means no other officer can exercise the power of Director. This Rule came into force on 31.05.2019. Therefore, if the Government intends to delegate the power of the Director of General Education, the Government will have to rely on any other power vested under the Act or Rules. Anyway, as seen from the Government Notification, S.R.O. No. 561/80, dated 7.3.1980, the Government appointed the Deputy Directors (Education) to exercise the power of Director by invoking the power referred under Rule 2(4) of the KER and not by exercising the power of delegation. That being the case, we find that in this case, the order passed by the Deputy Director of General Education, Malappuram, is without power. 3. In this matter, the Deputy Director of Education, Malappuram, passed an order on 24.5.2024 disqualifying the Manager, who is the appellant herein. Since we have noted that the Deputy Director has no such power, as the power was taken away by the amendment of Rules in the year 2019, he could not have passed such an order. At best, he could have only forwarded the entire records to the Director of General Education for action. 4. Having gone through the order, we are of the prima facie view that it is on account of continuous disobedience of the instructions given by the Educational Officer consequent upon the direction issued by this Court he passed such an order. Whether this is necessary or not, will have to be examined by the Director of General Education. Considering the nature of the power of Deputy Director, we are now of the view that the impugned order cannot stand the test of law in as much as it was issued by the authority which has no power. However, at the same time, we cannot remain oblivious to the facts referred to therein subject to being controverted in an appropriate manner by the appellant before the competent authority. Therefore, we are of the view that the entire records in this matter shall be forwarded by the Deputy Director of Education, Malappuram to the Director of General Education. However, at the same time, we cannot remain oblivious to the facts referred to therein subject to being controverted in an appropriate manner by the appellant before the competent authority. Therefore, we are of the view that the entire records in this matter shall be forwarded by the Deputy Director of Education, Malappuram to the Director of General Education. The Director of General Education shall consider whether the proceedings under Chapter III of Rule 7 shall be initiated after complying with the formality or not. In view of the peculiar circumstances, we are of the view that the disqualification shall be treated as suspension for a period of three weeks, and an appropriate decision shall be taken by the Director of General Education after perusing the entire records. The Deputy Director of Education, Malappuram, shall forward the entire records within one week from today to the Director of General Education. Definitely, before taking a final decision in the matter, the appellant and the 5th respondent shall be given an opportunity of hearing. 5. The writ appeal is disposed of as above.