IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WP(C).No. 2622 of 2009(K) ------------------------------- PETITIONER: -------------- SRI COCHIN GUJARATI VIDYALA ENGLISH MEDIUM U.P.S. (AIDED), GUJARATI ROAD, COCHIN- 682 002, REPRESENTED BY ITS MANAGER- SRI.BHARAT.N.KHONA. BY MR.P.C.SASIDHARAN, ADVOCATE. RESPONDENTS: ------------------ 1. THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, MATTANCHERRY, ERNAKULAM. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. MOHANA BAI KAMATH, H 7/1376, MOHANAM, NEAR VASANTH INDUSTRIES, KOOVAPADAM, COCHIN-682 002. BY MR. V.A.MUHAMMED, ADVOCATE, FOR R4 MR.K.E.HAMZA, ADVOCATE, FOR R4. MS. T.B. REMANI, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2009, ALONG WITH WP(C) No.2733 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.2622/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF LETTER OF R4 DTD. 27.1.06. EXT. P2 : COPY OF COMMUNICATION ISSUED BY THE MANAGER OF THE SCHOOL DTD. 30.1.06. EXT. P3 : COPY OF REQUEST MADE TO R4 BY THE HEADMISTRESS. EXT. P4 : COPY OF ENDORSEMENT MADE BY THE SUPERINTENDENT, GOVT. HOSPITAL, FORT KOCHI. EXT. P5 : COPY OF COMMUNICATION DTD. 13.3.06 ISSUED BY HEADMISTRESS. EXT. P6 : COPY OF LETTER SUBMITTED TO A.E.O DTD. 13.3.06. EXT. P7 : COPY OF PETITION SUBMITTED TO THE A.E.O. DTD.27.3.06. EXT. P8 : COPY OF COVERING LETTER DTD. 24.6.06 FORWARDING THE LEAVE APPLICATION. EXT. P9 : COPY OF COMMUNICATION DTD. 26.2.07. EXT. P10 : COPY OF PROCEEDINGS DTD. 1.3.07 ALONG WITH ENDORSEMENT OF D.P.I. EXT. P11 : COPY OF LETTER DTD. 9.11.07 OF R4. EXT. P12 : COPY OF COMMUNICATION DTD. 14.12.07 ISSUED BY THE PETITIONER. EXT. P13 : COPY OF SUBMISSION MADE BY PETITIONER DTD.24.11.08. EXT. P14 : COPY OF ORDER DTD. 29.12.08 ISSUED BY R1. EXT. P15 : COPY OF REQUEST MADE BY R4 BEFORE DEPUTY DIRECTOR DTD. 10.3.08. 4TH RESPONDENT'S EXHIBITS: EXT. R4(a) : COPY OF DECISION REPORTED IN 2008(1) KHC 174 DTD. 1.12.07 EXT. R4(b) : COPY OF LEAVE APPLICATION DTD. 6.1.06. WP(C).No.2622/2009 EXT. R4(c) : COPY OF LEAVE APPLICATION DTD. 9.1.06. EXT. R4(d) : COPY OF LEAVE APPLICATION DTD. 11.1.06. EXT. R4(e) : COPY OF LEAVE APPLICATION DTD. 1.2.06. EXT. R4(f) : COPY OF LEAVE APPLICATION DTD. 31.3.06. EXT. R4(g) : COPY OF LETTER OF THIS DEPONENT DTD. 1.2.06. EXT. R4(h) : COPY OF LEAVE APPLICATION OF THIS DEPONENT DTD. 5.1.06. EXT. R4(i) : COPY OF DEATH CERTIFICATE DTD. 31.12.07. EXT. R4(j) : COPY OF REPRESENTATION FILED BEFORE THE ASSISTANT EDUCATIONAL OFFICER DTD. 1.1.09. EXT. R4(j) : COPY OF JUDGMENT OF THIS HON'BLE COURT IN O.P. 26601/2002-P. EXT. R4(k) : COPY OF DECISION REPORTED IN 2002(2) K.L.T. 346 DTD.21.3.02. EXT. R4(l) : COPY OF DECISION REPORTED IN 1999(2) K.L.T. SHORT NOTES PAGE 12 CASE No.11 DTD. 19.12.98. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. ------------------------------------------ W.P.(C) Nos.2622 & 2733 OF 2009 ------------------------------------------ Dated this the 23rd day of June, 2009. J U D G M E N T W.P.(C) No.2622 of 2009 is filed by the Manager of the school and W.P.(C) No.2733 of 2009 is filed by the Teacher. In the writ petition filed by the Manager, the challenge is against Exhibit P14 order passed by the Deputy Director of Education. In the other writ petition, the petitioner namely, the Teacher seeks to implement the said order. 2. By Exhibit P14 order, the Deputy Director of Education has directed the Manager to permit the 4th respondent to rejoin duty forthwith and take steps to regularize her period of absence by submitting necessary proposals to the Government. While passing the impugned order, the Deputy Director of Education has also set aside all the actions taken by the Manager. 3. Mainly it is contended by Sri.P.C.Sasidharan, learned counsel for the petitioner, the Manager that the order passed by the Deputy Director of Education is without jurisdiction as he was not hearing any statutory appeal. He cannot function as an W.P.(C) No.2622 & 2733/2009 2 original authority and take such a decision without even having any delegation of powers under the Kerala Education Act and the Rules. It is also pointed out that by an order dated 24.05.2008, the Deputy Director of Education had rejected the representation filed by the 4th respondent and without receiving any directions from any superior authority, the Deputy Director of Education ought not to have reconsidered the matter and passed a contrary order. It is therefore, submitted that on both these grounds, the order is liable to the quashed. 4. The dispute arose under the following circumstances: The 4th respondent is working as Upper Primary School Assistant in the school and she submitted an application for leave on medical ground for the period from 11.01.2006 to 31.01.2006 and 01.02.2006 to 30.03.2006. According to the Manager, since the application was not supported by any proper proof, the same was rejected. Later on she submitted Exhibit P1 letter of resignation before the Headmistress. By Exhibit P2, the Manager informed the 4th respondent that any request for resignation is to be submitted in the proper form. Since it was felt that the W.P.(C) No.2622 & 2733/2009 3 ground sought for to apply medical leave was not genuine, in fact, the 4th respondent was directed to appear before a competent Medical Officer also for medical examination. It appears that she could not appear before the Medical Officer even though notice was issued to appear before the Superintendent of General Hospital, Fort Kochi on 01.03.2006. Thereafter, the Headmistress by Exhibit P5 informed the 4th respondent that the leave could not be sanctioned and hence the leave application is rejected. 5. By Exhibit P6, the Manager informed the 4th respondent- teacher that her actions in not attending the school will be treated as voluntarily abandonment of employment. Exhibit P7 is the copy of the letter submitted by the Manager to the Assistant Educational Officer seeking permission to relieve the teacher on the ground of voluntarily abandonment of employment. No orders were passed by the Assistant Educational Officer immediately. Thereafter, the 4th respondent submitted an application for leave without allowance for a period of five years from 06.01.2006 to 05.11.2011. Actually, the leave has to be W.P.(C) No.2622 & 2733/2009 4 sanctioned by the Government and therefore, by Exhibit P8 the Manager forwarded the application along with his remarks to the Government. The Manager after awaiting for some period, submitted Exhibit P9 before the Government seeking for a direction to the Assistant Educational Officer to pass orders on Exhibit P7. Exhibit P10 is produced by the Manager to contend that the application for leave was refused by the Government. 6. By Exhibit P11 dated 09.11.2007, the 4th respondent requested the Manager to reinstate her in service. Reply was given by the Manager by way of Exhibit P12 informing that since leave was not sanctioned, there is no question of cancelling of the unavailed portion of leave and her request cannot be acceded to. Thereafter it appears that the petitioner was served with a notice by the Deputy Director of Education to appear for a hearing. The petitioner gave Exhibit P13 reply to the Deputy Director of Education and Exhibit P14 is the resultant order passed by the Deputy Director of Education. 7. The 4th respondent has filed a detailed counter affidavit in the writ petition. The 4th respondent has taken the position W.P.(C) No.2622 & 2733/2009 5 that there is no particular provision in Chapter XIV-A of Kerala Education Rules to approach the Assistant Educational Officer and there is no specific statutory remedy against rejection of order of the Manager under the leave rules also. It is contended that since Deputy Director of Education is the superior authority of the Education Department in the Revenue District, he is competent to pass Exhibit P14 order. 8. As regards the alleged disputes between the Manager and the 4th respondent, in paragraphs 6 to 13 of the counter affidavit, explanations have been offered for the justification for seeking leave and for not attending the school. It is submitted that she had been suffering from various diseases also in the meanwhile. Exhibits R4(b) to R4(f) have been produced in support of her pleas. As regards the issue of resignation, it is pointed out that even though a letter was submitted to the Headmaster, later by Exhibit R4(g) she had informed the Manager that she does not intend to resign at the moment. It is the case of the 4th respondent that the Government Order rejecting the application for leave without allowance was not W.P.(C) No.2622 & 2733/2009 6 served on her. It is also submitted that the Manager should have resubmitted the application after curing the defects going by the endorsement in the said communication issued by the Government. In the counter affidavit, various decisions of this Court are also relied upon. 9. The first question to be considered is whether, as a matter of fact, the Deputy Director of Education had passed an earlier order rejecting the request made by the 4th respondent. The learned Government Pleader made available the relevant files leading to the order impugned. It is seen from the relevant files that the Assistant Educational Officer had forwarded a report dated 05.05.2008 to the Deputy Director of Education. After perusing the report, an order dated 24.05.2008 was passed. The same is kept in the file itself numbered as B1-6022/08. The contents of the same is to the effect that the request of the teacher to rejoin duty after cancelling the unavailed portion of leave cannot be considered favourably. Long thereafter by a notice dated 19.09.2008, the parties were directed to appear for a hearing. This is based on the very same representation dated W.P.(C) No.2622 & 2733/2009 7 10.03.2008 submitted by the teacher and the report dated 05.05.2008 submitted by the Assistant Educational Officer. No other fresh materials or any direction issued by any superior authority to reconsider the matter have been mentioned either in the notice or in the files. 10. Chapter XIV-A of Kerala Education Rules contains various provisions whereby different authorities have been conferred with powers in various matters including approval of appointment as well as disciplinary action against teachers etc. As regards leave, provisions are included in the said chapter for grant of leave etc. 11. Learned counsel for the petitioner relied upon the following provision namely, Rule 64 of Chapter XIV-A of K.E.R which confers power on the Assistant Educational Officer to pass orders concerning any dispute between the teacher and the Manager. Rule 64 is extracted below: “Disputes between the teacher and the Manager:- An appeal shall lie to the District Educational Officer against the orders of the Assistant Educational Officer in regard to any dispute between the teacher and the Manager that might be W.P.(C) No.2622 & 2733/2009 8 referred to him and an appeal on the orders of the District Educational Officer shall lie to the Director. Such appeal shall be preferred within thirty days of the receipt of the Educational Officer's orders”. Going by the said Rule, the Assistant Educational Officer is competent to pass orders in regard to any dispute between the Teacher and the Manager. Provision is made regarding filing of appeal also before the District Educational Officer. An appeal on the orders of the District Educational Officer lies to the Director. As per G.O.(P) No.52/80/G.Edn dated 07.05.1980, the powers conferred on the Director under Rule 64, have been delegated to the Deputy Director. Hence only an appeal from an order passed by the District Educational Officer can be considered by the Deputy Director. 12. Sri. K.E. Hamsa, learned counsel for the 4th respondent, submitted that procedure for imposing major penalties is contained in Rules 74 and 75 of Chapter XIV-A of K.E.R. Herein, noticeably, the matter does not concern any disciplinary action initiated by the Manager. It is the contention of the Manager that the 4th respondent has abandoned her employment. Seeking for W.P.(C) No.2622 & 2733/2009 9 appropriate orders, the Manager has approached the Assistant Educational Officer to grant permission to relieve the Teacher. The Teacher is aggrieved by the refusal of the Manager to allow her to rejoin duty and has requested for permission to rejoin duty. Actually, the Teacher is also aggrieved by Exhibit P12 issued by the Manager. 13. Apparently, there is a dispute between the parties namely, the Teacher and the Manager in regard to the respective points. Therefore, going by the plain terms of Rule 64 of Chapter XIV-A of K.E.R, it is the Assistant Educational Officer who has to decide the dispute at the first instance. The Deputy Director of Education is not conferred with any original jurisdiction under any of the provisions of Chapter XIV-A to intervene in such a dispute. No other provisions of the Act or Rules have been pointed out before me which confers any such express power on the Deputy Director of Education. Merely because he is the superior officer in the entire Revenue District, that cannot be a ground to intervene in such dispute. He is only an appellate authority from the order passed by the District Educational Officer, under Rule 64. The W.P.(C) No.2622 & 2733/2009 10 authorities under the Act and Rules have to confine to their jurisdiction while passing appropriate orders. They are called upon to decide only such disputes which they are empowered to do so in various provisions of the Kerala Education Act and Rules. Various provisions of the Rules confer original, appellate and revisional jurisdiction to the Assistant Educational Officer, District Educational Officer, Deputy Director of Education and Director of Public Instruction as the case may be. 14. Admittedly, herein the original authority namely, the Assistant Educational Officer has not passed any order. What was pending before the Deputy Director of Education was only a representation and that cannot be treated as an appeal from any order passed by any subordinate authority. There was no direction by any superior authority to consider and pass orders on the representation also. The Deputy Director of Education was not right in entertaining the same since the Manager had already approached the Assistant Educational Officer for seeking appropriate permissions. 15. The representation submitted by the 4th respondent W.P.(C) No.2622 & 2733/2009 11 has been produced along with the reply affidavit filed by the Manager, which is marked as Exhibit P15. Exhibit P15 shows that the same is addressed to Deputy Director of Education, District Educational Officer, Assistant Educational Officer and the Manager. It is not the case of the 4th respondent also that the lower authority has passed any order against her and therefore, she had approached the higher forum like Deputy Director of Education by filing an appeal. 16. In fact, after the rejection of the representation by the Deputy Director of Education as per order dated 24.05.2008, it was not right on the part of Deputy Director of Education to again issue notice for hearing of the very same representation. Surprisingly in Exhibit P14 no mention is made about the said order also. Once he has passed final orders in the matter, it cannot be said that he was seized of the matter again. What prompted the Deputy Director of Education to pass a fresh order is not clear from the files. There is a gap of four months also between the order rejecting the representation and notice of hearing issued later. W.P.(C) No.2622 & 2733/2009 12 17. In that view of the matter, Exhibit P14 cannot be sustained. Therefore, the same is quashed. The Assistant Educational Officer is directed to adjudicate on the dispute between the petitioner-Manager and the 4th respondent-Teacher especially since the Manager has filed Exhibit P7 before the said respondent seeking appropriate orders. Learned counsel for the 4th respondent submits that the 4th respondent may be given two weeks' time to file a representation/objection against Exhibit P12 before the Assistant Educational Officer after receipt of copy of this judgment. Therefore, these writ petitions are disposed of directing the Assistant Educational Officer, 2nd respondent herein to pass appropriate orders as directed above after hearing the parties within a period of two months from the date of receipt of a copy of this judgment. The parties will be allowed to submit their representations/counter statements, if any, in the meanwhile. T.R. RAMACHANDRAN NAIR JUDGE smp