IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 WP(C).No. 25097 of 2010(J) -------------------------- PETITIONER(S): --------------- T.SATHIAN, MUSIC TEACHER, POLACHIRAKKAL HIGH SCHOOL, P.O.PADAGIRI, NELLIAMPATHY, PALAKKAD. BY ADV. SRI.P.M.BENZIR SRI.G.G.MANOJ SRI.JAICE JACOB RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION (K) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM 695 001. 3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD 678 001. 4. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD 678 001. 5. THE MANAGER, POLACHIRAKKAL HIGH SCHOOL, P.O.PADAGIRI, NELLIAMPATHY, PALAKKAD 678 509. GOVERNMENT PLEADER SMT.NISHA BOSE FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25097 of 2010 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE ORDER OF APPOINTMENT DATED 17/07/1995 ISSUED BY THE FIFTH RESPONDENT. EXT.P2 TRUE COPY OF THE STAFF FIXATION ORDER NO.D.DIS.B4-4206/07 DATED 30/09/2007 ISSUED BY THE FOURTH RESPONDENT. EXT.P3 TRUE COPY OF THE ORDER NO.D.DIS B4-29243/07 DT.26/07/2008 ISSUED BY THE 3RD RESPONDENT. EXT.P4 TRUE COPY OF THE REVISION PETITION DATED 11/08/2008 FILED BY THE MANAGER. EXT.P5 TRUE COPY OF THE ORDER NO.D.DIS/61187/08/RA(1)/DPI DATED 01/01/2009 ISSUED BY THE SECOND RESPONDENT. EXT.P6 TRUE COPY OF THE ORDER NO.B4-6324/08 K.DIS DT.21/02/2009 ISSUED BY THE 4TH RESPONDENT. EXT.P7 TRUE COPY OF THE LETTER NO.B3/28211/08 DT.1/7/2009 ISSUED BY THE 3RD RESPONDENT. EXT.P8 TRUE COPY OF THE STAFF FIXATION ORDER NO.D.DIS B4-4525/09 DT.29/09/2009 ISSUED BY THE 4TH RESPONDENT. EXT.P9 TRUE COPY OF THE ORDER NO.26084/K1/2009/G.EDN. DT.20/03/2010 ISSUED BY THE 1ST RESPONDENT. EXT.P10 TRUE COPY OF THE ORDER NO.RA(1)/81712/09/DPI/K.DIS DT.14/06/2010 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXTS: NIL \\TRUE COPY// P.A TO JUDGE T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.25097/2010-J ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23 rd day of September, 2011 J U D G M E N T Aggrieved by Exts.P9 and P10 orders respectively passed by the Government and the Director of Public Instruction, this writ petition has been filed. The petitioner is a Music Teacher working in the school managed by the fifth respondent. The school is having Malayalam as well as Tamil Divisions. It is the case of the petitioner that as per the order of appointment Ext.P1 dated 17/07/1995, the petitioner was appointed and the appointment was approved and he was continuing as Music Teacher in the High School Section of the school. It is pointed out that in the staff fixation for the year 2007-08, the fourth respondent on a wrong interpretation of law held that there was no sufficient number of periods in the school requiring the post of Music Teacher and the post of Music Teacher was abolished. An appeal was filed by the Manager against the same which was dismissed by the third respondent. Thereafter, a revision petition was filed before the W.P.(C). No.25097/2010 -:2:- second respondent Director of Public Instruction. One of the contentions raised was that no specialist teachers under Art or Craft group are there in the said school and hence, one period allotted for Art and Craft in each division in Std.IX may be reckoned for Music and, thereby total six periods can be achieved for sanctioning the post of Music Teacher. Another contention raised was that the condition of having 200 girls students in High School Section for Music has been cancelled as per G.O.(P).No.241/77/G.Edn., dated 12/12/1977. The Joint Director of Public Instructions held that the school is eligible for the post of Music Teacher during the academic year 2007-08 and, accordingly, order has been passed as per Ext.P5. The staff fixation order was thereafter, revised by Ext.P6 order. After the order Ext.P6 was passed, the petitioner was redeployed to the parent school as per Ext.P7 order and was continuing as such. For the next academic year 2008-09 staff fixation also the post of Music Teacher was sanctioned and, accordingly, the petitioner is continuing in the school. W.P.(C). No.25097/2010 -:3:- 2. It is contended that that as a bolt from the blue, the Government issued Ext.P9 communication to the Director of Public Instruction pursuant to which the Director of Public Instruction passed Ext.P10 cancelling the order which sanctioned the post of Music Teacher for the year 2007-08. It is pointed out that no notice was issued to petitioner or the Manager before issuance of Exts.P9 or P10. These are thus under challenge in this writ petition. 3. First respondent has filed a counter affidavit in the matter. 4. Evidently, the order Ext.P5 was passed in a revision petition filed by the Manager. The learned counsel for the petitioner submitted that Ext.P9 is dated 20/03/2010 and during the next academic year also i.e. 2008-09 the petitioner's post was sanctioned and he was continuing. It is further submitted that communications Exts.P9 and P10 violates the principles of natural justice. On the merits of the matter also various contentions have been raised and reliance is placed on Ext.P5 order passed by the Director of Public W.P.(C). No.25097/2010 -:4:- Instruction. My attention was invited to the various provisions of the Rules also to contend for the position that the sanction of the post was justified. 5. The learned Government Pleader, in support of the impugned orders submitted that the Government found a defect in the order passed by the Director of Public Instruction (Ext.P5) and exercised the power under Rule 12F of Chapter XXIII of Kerala Education Rules. It is submitted that for the exercise of the said said power by the Government, it is not specified therein that the parties should be heard. Of course, in Rule 12F of Chapter XXIII of K.E.R, the Government is conferred with power to revise any order passed by the Director of Public Instruction after calling for the records. It is well settled that such power is the power of revision. Evidently, the order Ext.P5 has been passed in a revision petition filed by the Manager. As far as the parties are concerned, the said order had become final. Thereafter, when the Government proposed to revise the order, a notice and a hearing ought to have been granted in compliance of the principles of natural W.P.(C). No.25097/2010 -:5:- justice, especially, since the order has affected the continuance of the petitioner in the school. Compliance of the rules of natural justice has not been specifically excluded in Rule 12F of Chapter XXIII of K.E.R. Apart from that Ext.P9 letter is issued by the Government to the Director of Public Instruction without even marking copies to the petitioner and the Manager and following the same by Ext.P10 the Director of Public Instruction cancelled Ext.P5. The order thus passed by the Director of Public Instruction as per Ext.P10 is with a direction to revise the staff fixation order for the year 2007-08 and take steps to deploy the Music Teacher, namely, the petitioner forthwith. When the compliance of Rules of Natural Justice is not specifically excluded, it will have to be read into the Rules, going by the well settled principles stated by the Apex Court in various decisions. Apart from that when adverse civil consequences are caused to a party by the passing of an order, then the same requires compliance of principles of natural justice also. W.P.(C). No.25097/2010 -:6:- 6. Apart from the same, the petitioner has got various contentions on the merits of the matter and, therefore, the petitioner should have been given an opportunity to raise those contentions including the contention that the exercise of power under Rule 12F of Chapter XXIII of K.E.R was not justified. 7. For all the above reasons, I find that the communications Exts.P9 and P10 cannot survive and they are, accordingly, quashed. There will be a direction that if any fresh proceedings are contemplated by the Government, it will be done only after issuing notice to the petitioner and the Manager and affording an opportunity of hearing. The writ petition is allowed as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms