IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 WP(C).No. 26698 of 2007(C) -------------------------------------- PETITIONER(S): ----------------------- STOY T. MUTTATH,S/O. M.P.THARU, AGED 39 YEARS,UPPER PRIMARY SCHOOL TEACHER, GOVERNMENT HIGHER SECONDARY SCHOOL, PAZHYANNUR, P.O.PAZHAYANNUR-680 587 THRISSUR DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT,SECRETARIAT,TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY,TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE,THRISSUR DISTRICT. 4. THE ASSISTANT EDUCATIONAL OFFICER CHAVAKKAD, POST GURUVAYUR, THRISSUR DISTRICT. GOVERNMENT PLEADER SMT.T.B.REMANI FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 26698/2007-C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER. EXT.P2: COPY OF THE ORDER NO.F2/43511/99/DPI OF THE 2ND RESPONDENT. EXT.P3: COPY OF THE ORDER NO.A4/3205/2002 OF THE 3RD RESPONDENT. EXT.P4: COPY OF THE RELIEVING ORDER NO.D.3750/99 OF THE 4TH RESPONDENT. EXT.P5: COPY OF THE ORDER NO.A4/16006/02 (1) OF THE 3RD RESPONDENT. EXT.P5(a): COPY OF THE ORDER NO.A4/16006/02 OF THE 3RD RESPONDENT. EXT.P6: COPY OF THE ORDER NO.B8-15625/78 OF THE DIST. EDL. OFFICER, ALEPPEY. EXT.P7: COPY OF THE ORDER NO.B5-33757/82 OF THE DY. DIRECTOR OF EDUCATION, TRIVANDRUM. EXT.P8: COPY OF THE ORDER NO.A3-17299/80 OF THE DY. DIRECTOR OF EDUCATION, TRIVANDRUM. EXT.P9: COPY OF THE ORDER NO.A4-39978/83 OF THE DY. DIRECTOR (EDN.), ERNAKULAM. EXT.P10: COPY OF THE G.O.(MS)NO.76/92/G. EDN. OF THE GOVERNMENT. EXT.P11: COPY OF THE PETITION SUBMITTED BEFORE THE 1ST RESPONDENT. EXT.P12: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P.NO.17591/2002-T. EXT.P13: COPY OF THE G.O.(RT) NO.4565/02/GE OF THE GOVERNMENT. EXT.P14: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P.NO.9478/2003- C. EXT.P14(a): COPY OF THE PETITION FILED BEFORE THE GOVT. BY THE PETITIONER. EXT.P15: COPY OF THE ORDER NO.68230/B2/06/GE OF THE GOVERNMENT. EXT.P16: COPY OF THE ARGUMENT NOTES FILED BEFORE THE HEARING OFFICER. EXT.P17: COPY OF THE G.O.(RT)NO.3594/07/GE. OF THE GOVERNMENT. W.P.(C). NO. 26698/2007-C EXT.P18: COPY OF THE G.O.(P)NO.240/99/G.EDN. OF THE GOVERNMENT. EXT.P19: COPY OF THE NOTIFICATION (GO.(P)NO.187/2005/G. EDN.) OF THE GOVERNMENT. EXT.P20: COPY OF THE G.O.(MS)NO.104/69/EDN. OF THE GOVERNMENT RESPONDENT'S ANNEXURES: ANNEXURE R4(a): COPY OF THE G.O(MS)NO.302/02/G.EDN. DATED 10/10/2002. //TRUE COPY// P.A. TO JUDGE Rs/ ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.26698/2007 ----------------------------------------------------------- Dated this the 4th day of November, 2008 JUDGMENT The petitioner joined as LPSA in an aided school on 1.6.1988. He was promoted as Headmaster with effect from 1.4.1990. the school was closed in March, 2002 and Ext.P2 is the order of the Deputy Director ordering closure. Thereafter by Ext.P3 order issued on 3.4.2002 as per which the petitioner was deployed to the Corporation L.P. School, Puthurkara, Trissur, at the request of the Secretary of the Corporation, on a work arrangement basis. 2. Subsequently, by Ext.P5 order dated 18.6.2002, the petitioner was transferred and deployed as LPSA. This order was appealed against by filing Ext.P11 before the first respondent mainly relying on Exts.P6 to P10 orders where Headmasters were deployed without upsetting their status. That appeal was rejected by Ext.P13. Ext.P13 was WP(c).No.26698/07 2 challenged before this court and this court by Ext.P14, judgment in O.P.No.9478/2003 quashed Ext.P13 and directed reconsideration of the matter in the light of Exts.P6 to P10 referred above. 3. Petitioner took up the matter with the Government and eventually Ext.P15 notice of hearing was issued and he was heard by the Deputy Secretary to Government in the General Education Department. However, Ext.P11 appeal was disposed of by Ext.P17 order, passed by the Secretary to Government and it is challenging Ext.P17, the writ petition is filed. 4. The counsel for the petitioner mainly contends that though he is liable to be deployed on the closure of the school, in terms of the Government Orders, which were in force at the relevant time, he is eligible to be deployed as a Headmaster and not as a LPSA as has been done by Ext.P5. On the other hand, the Government Pleader submits that the deployment on protection given to the petitioner can WP(c).No.26698/07 3 only be as the junior most teacher and that if he was deployed as a Headmaster, that will to the detriment of the entire teachers. She is also relying on Exts.P2(b) and R4(a) order in this behalf. As already noticed, by Ext.P14 judgment, Ext.P13 was set aside and the matter was directed to be reconsidered. It was in pursuance to the judgment the petitioner filed Ext.P14(a) representation to the Government. A reading of Ext.P14 and also Ext.P14(a) representation shows that the petitioner was heavily relying on Exts.P6 to P10, where according to the petitioner in similar circumstances, Headmasters have been deployed as Headmasters itself. However, this aspect of the matter has not been dealt with in Ext.P17 order and this is evident from the order itself. That apart, Ext.P17 order is vitiated for the further reason that the order in question has been passed by the Secretary to Government, whereas the petitioner was heard in pursuance to Ext.P15 notice, by the WP(c).No.26698/07 4 Deputy Secretary of the General Education Department. It has been repeatedly held by this court that, if a statutory authority is disposing of the matter, the statutory authority itself shall hear the matter and if hearing has been conducted by anybody else, as in this case, it will be violative of the principles of natural justice. Reference is made to the decisions reported in 1999(3)KLT,275, 1996(1) KLT 133, 1994(1) KLT 790 and 1994(2) KLT 238. For the aforesaid two reasons, without examining the merits of the contentions of both sides, I am inclined to set aside Ext.P17 and direct that the matter shall be reconsidered. Accordingly, Ext.P17 will stand set aside and the first respondent shall hear the petitioner and dispose of Ext.P11 appeal afresh. This shall be done as expeditiously as possible and at any rate within 3 months from the date of production of a copy of the judgment. WP(c).No.26698/07 5 ANTONY DOMINIC JUDGE vi. WP(c).No.26698/07 6