High Court of KeralaWP(C)/28804/2014allowed

Shahida K. v. State Of Kerala

2015-07-16Honourable Dr. Justice A.K.Jayasankaran Nambiar6 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 16TH DAY OF JULY 2015/25TH ASHADHA, 1937 WP(C).No. 28804 of 2014 (A) ---------------------------- PETITIONER(S):

-------------------------- SHAHIDA K., AGED 40 YEARS, W/O MUHAMMED ALI, KUPPANATHU HOUSE, PALEMADU P.O MALAPPURAM 679311 BY ADV. SRI.K.A.MANZOOR ALI RESPONDENT(S):

----------------------------

1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, EDUCATION DEPARTMENT STATE SECRETARIAT, THIRUVANANTHAPURAM 695001

2. THE HEADMASTER, MMMLP SCHOOL, EAST KALKULAM MALAPPURAM DISTRICT 675625

3. THE MANAGER, MMMLP SCHOOL, EAST KALKULAM MALAPPURAM DISTRICT 675625 (ALSO MKMM LP SCHOOL, VELUMPIAMPADAM) 676505

4. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM 695001 ADDL.RESPONDENTS:

5.THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM 676 505. 6.SAIFUNNISA, ARABIC TEACHER, MMMLP SCHOOL, EAST KALKULAM, MALAPPURAM DISTRICT 676505.

ADDL.RESPONDENTS:

7.DISTRICT EDUCATION OFFICER, WANDOOR.

8.ASSISTANT EDUCATIONAL OFFICER, NILAMBUR.

ADDL.RESPONDENTS 7 AND 8 ARE IMPLEADED AS PER ORDER DT. 25.2.2015 IN I.A.NO.2662/2015.

R2,R3 & 6 BY ADV. SRI.V.RAJASEKHARAN NAIR R BY GOVERNMENT PLEADER SMT.M.J.RAJASREE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 28804 of 2014 (A) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1: TRUE COPY OF THE ORDER OF APPOINTMENT DATED 26-08-2002 AND THE PROCEEDINGS OF THE ASSISTANT EDUCATIONAL OFFICE, NILAMBUR EXHIBIT P2: TRUE COPY OF THE ORDER G.O(RT) NO 371/14/G.EDN DATED 24-012014 OF THE IST RESPONDENT EXHIBIT P3: COPY OF THE G.O.(RT) NO.4541/14/G.EDN. DATED 25.10.2014 OF THE 1ST RESPONDENT.

EXHIBIT P4: COPY OF THE DECISION REPORT IN 2009 3 KLT 650. EXHIBIT P5: COPY OF THE ORDER DATED 2.5.2015 PASSED BY THE ASSISTANT EDUCATIONAL OFFICER, NILAMBUR.

EXHIBIT P5(A): COPY OF THE ORDER DATED 27.4.2014 PASSED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. RESPONDENT(S)' EXHIBITS:

NIL.

--------------------------------------- //TRUE COPY// P.S. TO JUDGE

A.K.JAYASANKARAN NAMBIAR, J.

------------------------------- W.P.(C).NO.28804 OF 2014 (A) ----------------------------------- Dated this the 16th day of July, 2015

J U D G M E N T

The petitioner is a person who has got approved appointment as LG Arabic teacher for two spells, namely, 1.9.2000 to 31.9.2001 and 1.1.2002 to 31.8.2015 in the MKMM LP School. It would appear that the 3rd respondent Manager of MMM LP School purchased the MKMM LP School, and the change of management, including change of ownership, was approved by the Director of Public Instructions [DPI]. It is stated that at the time of purchase of the School, the 3rd respondent did not opt to maintain the two schools as separate units for the purposes of the Kerala Education Rules [KER]. Thereafter, to a vacancy that arose in the MMM LP School, on 1.6.2010, the 3rd respondent appointed the 6th respondent. This was challenged by the petitioner, who was of the view that inasmuch as the petitioner was a Rule 51 A claimant in the MKMM LP School before the merger of the two schools, she was entitled to the appointment in the vacancy that arose with effect from 1.6.2010. By Ext.P2 order dated 24.1.2014, the 1st respondent directed the 3rd respondent Manager to appoint the

petitioner to the said vacancy. It would appear that, thereafter, by Ext.P3 order dated 25.10.2014, the Government reviewed Ext.P2 order and directed the 3rd respondent to appoint the 6th respondent to the said vacancy which arose with effect from 1.6.2010. By the said order, it was also directed that the petitioner would be appointed in the next arising vacancy in the MKMM LP School. In the writ petition, the petitioner impugns Ext.P3 order inter alia on the ground that the 1st respondent did not have the power to pass Ext.P3 order, reviewing its earlier order [Ext.P2], since the review power of the 1st respondent is confined only to orders passed as an original authority and not in respect of orders passed on revision. It is also pointed out that, prior to passing Ext.

P3 order, the 1st respondent did not afford the petitioner an opportunity of being heard. The provisions of Rule 36A of Chapter XIVA of KER are also relied upon by the petitioner. It is also stated that, during the pendency of the writ petition, and taking note of the fact that there was no interim order against the operation of Ext.P3 order, the 3rd respondent effected a mutual transfer of the 6th respondent and one Sri.Mohammed Ali. The approval to the said mutual transfer was also granted by the Director of Public Instructions [DPI] by Ext.

the lower authorities to implement Ext.P3 order.

2. I have heard the learned counsel for the petitioner, learned Standing counsel for the 3rd respondent as also the learned Government Pleader for the official respondents.

3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find force in the contention of the petitioner that Ext.P3 order passed by the 1st respondent, which effectively reviews Ext.P2 order passed by the 1st respondent on an earlier occasion, is one without jurisdiction. It has been held by this Court in the decision reported in Anilkumar v. State of Kerala [2009 (3) KLT 650 (F.B.)] produced as Ext.P4 along with the writ petition that the review power of the Government under Rule 93 of Chapter XIVA of the KER is available only in respect of orders passed by the Government as an original authority and not against orders passed by the Government in revision proceedings. It is also evident that, before passing Ext.P3 order, the petitioner was not afforded an opportunity of being heard. Resultantly, I am of the view that Ext.P3 order cannot be legally sustained. Accordingly, I

quash the same, leaving it open to the 6th respondent and the 3rd respondent to work out their remedies against Ext.P2 order before an appropriate forum, if they so choose. I also make it clear that the subsequent proceedings by the educational authorities with regard to the legality of the transfer effected by the 3rd respondent, as evidenced by Ext.P5(a) order of the DPI, shall also be governed by the directions issued in this judgment and the said authority shall pass consequential orders based on the findings in this judgment. The writ petition is allowed as above.

A.K.JAYASANKARAN NAMBIAR JUDGE prp