IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 WA.No. 1459 of 2005(A) ---------------------- AGAINST THE JUDGEMENT/ORDER IN OP.28868/2002 .................... APPELLANT(S): PETITIONER. ------------------------- R.APPUKUTTAN PILLAI, FULL TIME MENIAL, V.H.S.S. MUTHUKULAM, ALAPPUZHA DISTRICT. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO RESPONDENT(S): RESPONDENTS. --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA. 4. THE MANAGER, V.H.S.S.MUTHUKULAM, ALAPPUZHA DISTRICT. 5. SHAJI, PEON, V.H.S.S. MUTHUKULAM, ALAPPUZHA DISTRICT. (THE NAME AND ADDRESS OF THE 5TH RESPONDENT IS DELETED FROM THE ARRAY OF RESPONDEWNTS AT THE RISK OF THE APPELLANT VIDE ORDER DT.3.10.06 IN IA 988/06) ADV. SMT.V.P.SEEMANDINI, SENIOR ADVOCATE & SHRI.M R.ANISON FOR R4 GP SMT.R.BINDU FOR R1 TO R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------- WA No.1459 OF 2005 ------------------------------------------------------------------- Dated 15th September 2009 Judgment Balakrishnan Nair, J. The point that arises for decision in this appeal is whether a punishment of barring of two increments can be a disqualification for promotion under the Kerala Education Rules (for short, KER). The appellant is the writ petitioner. The brief facts of the case are the following : 2. The appellant is working as a Full Time Menial in the 4th respondent's school. He was appointed to that post on 01.02.1991. His appointment was approved and he was continuing in that post since then. While so, a vacancy in the post of Clerk arose in the school on 01.04.2000. A Peon by name C.G.Jayadas, who has got continuous approved service in that post since 02.12.1991, was the rightful claimant to that vacancy. It is common ground that the said Jayadas has relinquished his claim for promotion to the post of Clerk on 22.05.2004. The appellant is the next person to be considered for promotion to the said vacancy of Clerk. In the meantime, disciplinary proceedings were initiated against the appellant on the allegation of WA No.1459/05 2 insubordination and he was suspended from service on 21.12.2000. The Assistant Educational Officer enquired into the charges levelled against the appellant and submitted a report, finding him guilty as per Ext.R4(a). Relying on the said report, the Manager, by Ext.R4(b) order dated 21.08.2001, imposed a punishment of barring two increments with cumulative effect on the appellant and he was reinstated in service on the said date. Against the punishment imposed on him, the appellant moved the District Educational Officer by filing two representations, one dated 24.08.2001 and the other dated 13.12.2001. The said representations were disposed of by the District Educational Officer by Ext.R4(c) order dated 22.09.2003 holding that the allegations against the appellant were found true and the Manager is competent to impose penalty on him. It is also stated in the order that because of the pendency of OP NO.28868/02 filed by the appellant before this court, he is not interfering in the matter. The appellant challenged Ext.R4(c) order before the Director of Public Instructions. The said challenge was repelled and thereafter, he moved the Government in revision. The Government also dismissed his revision petition. Challenging those orders, the appellant has preferred WP(C) No.9429/08 before this court, which is WA No.1459/05 3 even now pending. After the relinquishment of the claim of Mr.C.G.Jayadas, the Manager considered the claim of the appellant for promotion and by Ext.P9 proceedings dated 11.06.2004, his claim was rejected. The Manager took the view that the appellant cannot be entrusted with the confidential and responsible functions of Clerk. According to him, only a person, with utmost dedication and sincerity to the work, can be appointed to the post of Clerk, as the person in the said post has to do the entire ministerial work of the school and also handle monetary transactions. The main challenge in the Writ Petition was against Ext.P9. In fact, the Original Petition was filed, seeking a direction to the Manager to consider his claim for promotion. During the pendency of the OP, as per the interim order of this court, the appellant's claim was considered and rejected by Ext.P9. So, the Original Petition was amended, incorporating the challenge against that order. 3. In the Original Petition, a counter affidavit was filed by the 1st respondent, pointing out that the action of the Manager, imposing the punishment as per Ext.R4(b), was never ratified by the District Educational Officer. On similar lines, the 3rd respondent DEO has also filed a counter affidavit. The 4th respondent Manager filed a WA No.1459/05 4 detailed counter affidavit, resisting the prayers in the Original Petition. 4. The learned Single Judge heard the OP along with OP No.39161 of 2002, which was filed by the Manager, challenging the conflicting orders issued by the Government concerning how the post of Clerk should be filled up. The learned Single Judge dismissed OP No.28868/02 filed by the appellant and in view of the dismissal of that OP, OP No.39161/02 filed by the Manager was closed. The learned Single Judge relied on the principles underlying Rule 28(b)(ii) of KS &SSR, to decline reliefs to the appellant. On merits also, it was held that the view taken by the Manager that a person like the appellant cannot be appointed as Clerk, is correct. Feeling aggrieved by the above finding of the learned Single Judge, this appeal is filed. 5. We heard Shri.S.P.Aravindakshan Pillay, learned counsel for the appellant and Shri.M.R.Anison, learned counsel appearing for the 4th respondent Manager. We also heard Smt.R.Bindu, learned Government Pleader, appearing for respondents 1 to 3. 6. The learned counsel for the appellant submitted that the provisions of the KS & SSR have no application to promotions under the K.E.R. A punishment imposed on an employee is not a bar for WA No.1459/05 5 promotion under the KER, though it may be a disqualification for the Government servant under Rule 28(b)(ii) of the KS & SSR. The promotions of both teaching and non-teaching staff of aided schools are governed by Rule 43 of Chapter XIV A KER. The punishment of barring two increments imposed on the appellant does not have the approval of the competent authority as evident from the separate counter affidavits filed by respondents 1 and 3 in the Original Petition. If that be so, the said punishment should have been ignored. Further, the enquiry report of the Assistant Educational Officer and the order of punishment imposed on the appellant including the orders of the superior authorities were challenged before this court in WP(C) No.9429/08 and the said Writ Petition is still pending. In other words, the findings of the Assistant Educational Officer against the appellant and the order of the Manager, imposing the punishment on him, have not become final. Therefore, the said orders could not have been relied on by the Manager to overlook him in the matter of promotion. So, according to seniority, the appellant should have been preferred for promotion, it is submitted. 7. The learned counsel for the 4th respondent Manager supported the judgment under appeal and pointed out that the view WA No.1459/05 6 taken by the learned Single Judge is legal and valid. 8. Before going into the rival contentions, we will refer to the relevant rules applicable in this case. Explanation (II) of Rule 1 Chapter XXIV (A) says that the post of Lower Division Clerk shall be filled up by promotion of Peons, Sweepers and other staff, if they possess the qualification prescribed for the post of Lower Division Clerk in Sub-rule (1) of rule 2. The said explanation reads as follows : “The post of Lower Division Clerk shall be filled up by promotion of Peons, Sweepers and other staff, if they possess the qualification prescribed for the post of Lower Division Clerk in sub-rule (1) of rule 2. If there are more than one claimant for appointment as Clerk under these categories, preference shall be given in the order of Peons, Sweepers and other staff. If there are more than one claimant under a particular category, the order of preference shall be according to the date of their first appointment. If the date of first appointment be the same, then preference shall be given with reference to age, the older being given first preference.” The above explanation was introduced in the rule by amendment dated 17.09.1982 published in the gazette dated 19.10.1982. Rule 2 (1) of Chapter XXIV(A), prescribing the qualifications of the non- teaching staff including Lower Division Clerk, reads as follows : “2(1) : The minimum qualifications of the non-teaching staff shall be as follows : Category Qualifications 1. Clerks A pass in SSLC Examination conducted WA No.1459/05 7 by the Commissioner for Government Examinations, Kerala or its equivalent. 2. Attenders A pass in SSLC Examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent. 3. Peons Should be a literate 4. Other members such Good physique” as Sweepers, Watchers The above provision was introduced in the Rules on 14.1.1993, substituting the earlier provision. Rule 4 of Chapter XXIV (B) says that the qualifications of the non-teaching staff shall be the same as the qualifications prescribed for the non-teaching staff in Government Schools. The said rule reads as follows : “The qualifications of the non-teaching staff shall be the same as the qualifications prescribed for the non-teaching staff in Government Schools.” The above rule is a general provision, which was in the statute book eversince the introduction of Chapter XXIV (B) by amendment dated 20.02.1965, which was published in the gazette dated 23.02.1965. Rule 7 of the said chapter provides that the various provisions in Chapter XIV (A) including those concerning promotion, will apply WA No.1459/05 8 mutatis mutandis to non-teaching staff in aided schools. Rule 7 reads as follows : “The rules regarding appointment, probation, increment, transfer from one educational agency to another educational agency or transfer under the same educational agency, discipline, maintenance of service records, confirmation, promotion, seniority and maintenance of seniority list contained in Chapter XIV (A) and the Conduct Rules in Chapter XIV(C) applicable to teachers of aided schools shall mutatis mutandis apply to the non-teaching staff in aided schools.” In view of the above Rule, rule 43 of Chapter XIV (A) will govern appointment by promotion to various posts of non-teaching staff. Rule 43 Chapter XIV (A) KER reads as follows : “ Subject to Rules 44, 45 and 51A and consideration of efficiency, any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority.” (emphasis supplied) Going by the above quoted rule, the vacancies in the higher grade of pay shall be filled up by qualified hands in the lower grade, according to seniority, but, subject to consideration of efficiency. The contention of the appellant that even if he is suffering a punishment, the same has to be ignored while considering his claim for promotion, cannot be accepted. Though there is no rule identical to Rule 28(b) (ii) of KS & SSR, we think, the words “consideration of efficiency” WA No.1459/05 9 contained in Rule 43 KER, will take care of the situation. So, the Manager can definitely look into the punishment, if any, imposed on the appellant along with other materials to decide whether he could be promoted to the post of LD Clerk. 9. In the case on hand, the claim of the appellant for promotion has been rejected by the Manager, on finding that he will not make an efficient Clerk, having regard to his past misconduct, which led to the enquiry report Ext.R4(a) and the order of punishment Ext.R4(b). In that view, by Ext.P9, the Manager rejected the claim of the appellant for promotion. We notice that the learned Single Judge has relied on the provisions of Rule 28(b)(ii) KS & SSR also, to uphold Ext.P9. But, we feel that the provisions of KS & SSR have no application to the promotions under the KER. Rule 4 of Chapter XXIV (B) only speaks of qualifications for appointment. Now, the said general provision does not have much efficacy in view of the express provision introduced later in Chapter XXIV (A) in the form of rule 2(1), specifying what are the qualifications for appointment to various non- teaching posts in aided schools. But, even if the reliance made by the learned Single Judge on the provisions of the KS & SSR is not correct, we feel that the view taken by the learned Single Judge WA No.1459/05 10 regarding the merits of the case has to be upheld. The Manager, having regard to the punishment imposed on the appellant, decided against promoting the appellant. This court can interfere with that decision, if only it is shown to be a decision without jurisdiction. In the general sense, it is within jurisdiction. Further, the view taken by the Manager cannot be said to be perverse or one, which no man in his senses will take. If that be so, we cannot find any jurisdictional error in the decision of the Manager. A plausible view has been taken on the facts and it has been affirmed by the learned Single Judge also. The Manager cannot be asked to wait till the appellant exhausts all avenues of challenge available to him against Exts.R4(a) and R4(b). As of now, his challenge has been repelled by the District Educational Officer, the Director of Public Instructions and the Government. It is true, those orders are under challenge before this court. But, if ultimately his challenge is upheld and Exts.R4(a) and R4(b) are set aside, then, the very foundation of Ext.P9 will be knocked out and the appellant will be justified in moving the Manager as also the District Educational Officer for reconsideration of his claim for promotion. But, as things stand now, we think, the appellant WA No.1459/05 11 cannot be granted any relief. In the result, the Writ Appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA No.1459/05 12