IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR, THE HONOURABLE MR. JUSTICE V.GIRI & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 W.A.No. 2410 of 2007 ------------------------------------ AGAINST THE JUDGEMENT IN WPC.15048/2007 Dated 13/08/2007 .................... APPELLANT(S)// PETITIONER:: -------------------- P.ANILKUMAR, HSA (SS), APPMVHSS, AVANEESWARAM P.O., KUNNIKODE, KOLLAM. BY SMT.V.P.SEEMANTHINI, SENIOR ADVOCATE, ALONG WITH ADVS. SMT.S.KARTHIKA, SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON, SRI.T.R.RAJESH & SMT.K.P.GEETHA MANI RESPONDENT(S)//RESPONDENTS:: ------------------------- 1. STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 3. THE DISTRICT EDUCATIONAL OFFICER, PUNALUR. 4. RAJASREE.T.A., UPSA, APPMVHSS, AVANEESWARAM P.O., KOLLAM. 5. L.PREETHAKUMARI, UPPER PRIMARY SCHOOL ASSISTANT, A.P.P.M.HIGH SCHOOL, AVANEESWARAM P.O., KOLLAM. ADDL. RESPONDENTS: 6. THE MANAGER, APPMVHSS, AVANEESWARAM P.O., KUNNIKODE, KOLLAM. 7. RAJASREE. S., W/O. SADASIVAN NAIR, CHARUVILA VEEDU, KURA P.O., CHENGAMANAD, KOLLAM DISTRICT. ADDL. 6TH RESPONDENT IS IMPLEADED AS PER ORDER DT. 16.10.2007 IN I.A. No.841/07. ADDL. 7TH RESPONDENT IS IMPLEADED AS PER ORDER DT. 23.11.2007 IN I.A. No.948/07 R1 TO R3 BY GOVT. PLEADER SMT. SUDHA DEVI. R4 BY ADV. SRI.V.A.MUHAMMED R5 BY ADV. SRI. M.V. THAMBAN R6 BY ADV. SRI.GEORGE POONTHOTTAM R7 BY ADV. SRI.JOHN JOSEPH VETTIKAD & ADV. SRI.C.JOSEPH JOHNY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “C.R.” K. BALAKRISHNAN NAIR, V. GIRI & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. No.2410 of 2007 ------------------------------ Dated this, the 23rd day of July, 2009 JUDGMENT Balakrishnan Nair, J. Before referring to the reasons why the Writ Appeal was referred to the Full bench, we will refer briefly to the facts necessary for the disposal of the case. The appellant was appointed as H.S.A.(Social Studies) in the sixth respondent's school on 5.6.2000. The said appointment was approved by the competent authority. The fourth respondent was appointed as U.P.S.A. in the Upper Primary wing of the said school on 6.6.2001. The said appointment was approved with effect from the said date. The said respondent was qualified for appointment as H.S.A.(Mathematics) and also H.S.A.(English), provided a vacancy in the latter post arose before 19.7.2005. B.Ed. in English became an obligatory qualification for appointment as H.S.A.(English) only from the said date (as per Ext.P4 Government Order) and the fourth W.A.No. 2410/2007 - 2 - respondent was having B.Ed. in Mathematics only. 2. The Government issued Ext.P2 order dated 7.1.2002, creating a new cadre of H.S.A.(English), by re-allocating the periods of English allocated to H.S.As. in Core Subjects. It was also ordered therein that the existing teachers shall not be retrenched for creation of the post of H.S.A.(English). The Government, by Ext.P3 order dated 16.7.2003 directed that existing H.S.A., if any, having qualification for appointment as H.S.A.(English) shall be accommodated against the newly created post of H.S.A.(English). By Ext.P4 dated 19.7.2005, the Government ordered that B.Ed. in the concerned subject shall be a mandatory qualification apart from the degree in the concerned subject, for appointment as H.S.A. in a subject. The fourth respondent was appointed against a maternity leave vacancy as H.S.A.(Mathematics) during the period from 29.10.2002 to 12.3.2003. During the academic year 2004-05, one post of H.S.A.(English) was created in the 6th respondent's school. The fourth respondent was appointed in that vacancy with effect from 21.7.2004. During 2006-07, there was one division fall, as evident from Ext.P7 staff fixation order. As per the said order, W.A.No. 2410/2007 - 3 - the appellant was retained in the 6th respondent's school. As a result, there was no vacancy to accommodate the fourth respondent in the cadre of H.S.A. and therefore, she was reverted as U.P.S.A.. The approval of appointment of the fourth respondent as H.S.A.(Mathematics) and H.S.A.(English) were rejected by the D.E.O. The fourth respondent filed a revision before the Government. The Government allowed the revision in part and approved her appointment as H.S.A.(Mathematics) from 29.10.2002 to 12.3.2003 and allowed her to draw salary in the post of U.P.S.A. from 21.7.2004. But, the approval of appointment of the 4th respondent as H.S.A(English) was rejected. The fourth respondent filed a review petition before the Government. That review petition was allowed by Ext.P6 dated 20.12.2006, approving the appointment of the fourth respondent as H.S.A.(English) from 21.7.2004. In obedience to that direction, the D.E.O. by Ext.P10 order, approved the appointment of the fourth respondent as H.S.A.(English) from 21.7.2004 to 14.7.2006. The writ petition was filed challenging Exts.P6 and P10 orders. The learned Single Judge dismissed the writ petition. Hence this writ appeal. W.A.No. 2410/2007 - 4 - 3. When the Writ Appeal came up for hearing before the Division Bench, noticing the apparent conflict between the Division Bench decisions of this Court in Rakhee v. State of Kerala, 2007(1) KLT 766 and the decision in Ashalatha v. State of Kerala, 2000(1) KLT 192, the appeal was referred to be heard by the Full Bench. 4. Learned Senior Counsel, Smt.V.P.Seemanthini submitted that Ext.P6 order being one passed without jurisdiction, is liable to be quashed. It is settled position in law, that, the Government cannot review an order passed by it under Rule 92 of Chapter XIVA of the Kerala Education Rules, (for short, “the K.E.R.”). On the other hand, Sri.V.A.Muhammed, learned counsel for the fourth respondent, submitted that, if Ext.P6 order is quashed by this Court on some technical grounds, the same will result in resurrection of an illegal order. So, this Court may decline to interfere with Ext.P6. Sri.George Poonthottam, learned counsel who appeared for the sixth respondent and Sri.M.V.Thamban, learned counsel who appeared for fifth respondent supported the above submission of the learned counsel for the fourth respondent. W.A.No. 2410/2007 - 5 - 5. Going by the facts of the case, we feel that Ext.P6 order is ab initio void. The Government have no power to entertain a review petition under Rule 93 against an order passed in revision under Rule 92 of Chapter XIV-A of the K.E.R. If that be so, it is unnecessary to consider the point referred to the Full Bench. This Court will not, normally, decide a question of law, unless it is absolutely necessary for the disposal of the case. In this case, we notice that as a result of creation of one post of H.S.A.(English) and the steps taken for the retention of that post in the year 2006-07, a senior hand is going to be sent out from service. The appellant has service from 2000, whereas the fourth respondent has service as H.S.A. only from 21.7.2004. Therefore, if we accept the contention of the fourth respondent, the same will cause injustice to the appellant. The learned author, H.W.R.Wade, in his Administrative Law, speaks of objection to granting discretion to the courts to quash or not to quash an illegal order. Learned author in the 6th edition of the said book, stated as follows: “There are grave objections to giving courts discretion to decide whether Governmental action W.A.No. 2410/2007 - 6 - is lawful or unlawful: the citizen is entitled to resist unlawful action as a matter of right and to live under rule of law and not under rule of discretion. 'To remit the maintenance of Constitutional right to region of judicial discretion is to shift the foundation of freedom from rock to sand'”. The above statement of law has been quoted with approval in Bugg v. Director of Public Prosecutions [1993] QB 473 and in R. v. Wicks, (1998) AC 92. We respectfully follow the above principle and hold that it is not proper for us not to quash Ext.P6 order, which is found to be issued totally without jurisdiction. 6. In the result, we quash Ext.P6 order, but, it is clarified that it will not affect the right of the fourth respondent to challenge Ext.P5 in appropriate proceedings. But for Ext.P6, the appellant would have got the benefit of the Note in Ext.P7 staff fixation order for the year 2006-07 to the effect that the appellant, though a Social Studies hand, will be accommodated in the post of H.S.A.(English). If, as a result of the subsequent W.A.No. 2410/2007 - 7 - developments, the staff fixation order is revised and her position is prejudiced, she will be free to workout her remedies against the same. Ext.P10 being a dependant order, in view of quashing of Ext.P6 order, the same will no longer survive. The judgment under appeal is set aside and the Writ Appeal is allowed as above. Sd/- K. Balakrishnan Nair, Judge. Sd/- V. Giri, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)