IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 WP(C).No. 25534 of 2008(M) ----------------------------------------- PETITIONER: --------------------- K.K.BHASKARAN PILLAI, AGED 78 YEARS, MANAGER, E.C.E.K.UNION HIGH SCHOOL, KUTHIATHODE 688 533, CHERTHALA. BY ADV. SRI.K.N.CHANDRABABU SRI.T.G.KALADHARAN RESPONDENTS: ------------------------- 1. THE STATE OF KERALA, REP.BY THE PRINCIPAL SECRETARY, DEPARTMENT OF EDUCATION, GOVERNMENT SECREATARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA. 3. THE DY.DIRECTOR OF EDUCATION, O/O.THE DY.DIRECTOR OF EDUCATION, ALAPPUZHA. BY GOVERNMENT PLEADER SRI. T.T. MOHAMMED THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.25534/2008 ----------------------------------------------------------- Dated this the 25th day of September, 2008 JUDGMENT Challenge in this writ petition is against Exts.P8, P10 and P12. 2. By Ext.P8, the DEO has ordered that the petitioner is not eligible for the maintenance granted for the year 2003-2004 and he has been called upon to return the amount paid. Petitioner filed Ext.P9 appeal before the 3rd respondent and that was rejected by Ext.P10. In Ext.P10, the 3rd respondent has also held that, since the matter has been decided on the basis of the inspection report, there is no relevance for granting an opportunity of hearing. A revision filed before the first respondent also met with the dismissal as per Ext.P12. Wp(c).No.25534/2008 2 3. Though the learned Government Pleader has a case that the order has been passed under Chapter XXVIII Rule 9, I am inclined to think that the power exercised is under Chapter XXVIII Rule 2. This is for the reason that, Rule 9 provides for reduction of the maintenance granted, what has been done by the impugned orders is a total denial of the maintenance grant, which is provided only under Rule 2. Further if the power were exercised was under Rule 9, the Rule itself provides that there is no right of appeal. In this case, petitioner's appeal and revision have been entertained and that also is possible only if the Original Authority has exercised the power under Rule 2. 4. Since the original authority has exercised the power under Rule 2 and appeal has been entertained, in my view the petitioner ought to have been granted an opportunity of hearing, since such a right has been expressly conferred by Rule 5(2) of Chapter XXVIII. Since, the right of hearing is a statutory right conferred as above, the appellate authority Wp(c).No.25534/2008 3 could not have denied such right and decided the appeal on the materials available. 5. Since an opportunity of hearing was not granted to the petitioner, I am inclined to invalidate Ext.P10 on that ground itself. Necessarily, Ext.P12 order passed by the first respondent also has to be set aside. Therefore, quashing Exts.P10 and P12, this writ petition is disposed of directing that the 3rd respondent shall take up consider and pass orders on Ext.P9 appeal filed by the petitioner affording him an opportunity of hearing. This shall be done as expeditiously as possible. Recovery as ordered in Ext.P8 will stand deferred until orders are passed on the appeal as above. Writ Petition is disposed of as above. ANTONY DOMINIC JUDGE vi. Wp(c).No.25534/2008 4