IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 WP(C).No. 20953 of 2009(L) PETITIONER: --------------- DINESH KUMAR K,.HSA (MAL), MAMBARAM HIGHER SECONDARY SCHOOL, MAMBARAM, KANNUR DISTRICT. BY ADV. SRI.M.VIJAYAKUMAR RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT THIRUVANANTHAPURAM. 2. DISTRICT EDUCATIONAL OFFICER THALASSERY. GOVERNMENT PLEADER MS.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER NO.D.DIS.B1-2309/06 DATED 20.3.2006 ISSUED BY THE SECOND RESPONDENT. EXT.P2 TRUE COPY OF THE JUDGMENT IN WPC.NO.24305 OF 2006 DATED 11.12.2008. EXT.P3 TRUE COPY OF THE ORDER NO.B1/12119/08/K.DIS. DATED 21.3.2009 ISSUED BY THE SECOND RESPONDENT. EXT.P4 TRUE COPY OF THE ORDER NO.53205/E3/07/G.EDN. DATED 15.7.2009 ISSUED BY THE FIRST RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER OF THE SECOND RESPONDENT NO.B1- 4629/2009(2) DATED 26.6.2009. EXT.P6 TRUE COPY OF THE ORDER OF THIS COURT IN WP(C) NO.24305 OF 2006 DATED 9.1.2009. EXT.P7 TRUE COPY OF THE COMMUNICATION ISSUED BY THE SECOND RESPONDENT DATED 12.1.2010. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 20953 OF 2009 L ------------------------------------------------------ Dated this the 3rd day of September, 2010 JUDGMENT The petitioner was appointed as H.S.A.(Malayalam) with effect from 12.7.2001 in Mambaram Higher Secondary School, Kannur District. The District Educational Officer refused to grant approval to the appointment of the petitioner on two grounds: (1) There was no sanctioned post in which the petitioner could be appointed; and (2) The Manager was bound to appoint a protected teacher as per the then existing Government Orders. Later, the number of posts of H.S.A.(Malayalam) was reduced to seventeen. Against that order, an appeal was filed before the Director of Public Instructions, but that appeal was dismissed. It is submitted that subsequently the District Educational Officer, acting upon the Government Order dated 1.2.2006, granted approval to the appointment of the petitioner with effect from 1.2.2006. 2. The Manager filed W.P.(C) No.30657 of 2005 challenging the reduction of posts. After the Writ Petition was disposed of, as W.P.(C) NO.20953 OF 2009 l :: 2 :: per Ext.P1 order dated 20.3.2006 passed by the District Educational Officer, Thalassery, three Malayalam medium divisions in standards VIII to X, which were converted as English medium divisions were restored. In the year 2000-01, eighteen posts of H.S.A.(Malayalam) were sanctioned. In the subsequent years also, seventeen posts of H.S.A.(Malayalam) were sanctioned. In Ext.P1, it is stated thus: “438 periods are available for 73 divisions for which 18 posts of H.S.A.(Malayalam) are hereby sanctioned in accordance with G.O.(MS) 135/2005/G.Edn. dated 15.05.2004. Sri.K.Sasidharan and Sri.K.Dineshkumar, HSA (Malayalam) whose date of commencement of continuous service are 25.06.99 and 12.07.2001 respectively are retained in the 16th and 17th post of HSA Malayalam.” It is submitted that Ext.P1 would also disclose that for the years upto 2005-06, sufficient posts were available to accommodate the petitioner. 3. The petitioner filed W.P.(C) No.24305 of 2006 challenging the order granting approval of the appointment only with effect from 1.2.2006. In W.P.(C) No.24305 of 2006, the subsequent event, W.P.(C) NO.20953 OF 2009 l :: 3 :: namely, Ext.P1 order passed by the District Educational Officer, Thalassery, was brought to the notice of this Court. W.P.(C) No.24305 of 2006 was disposed of as follows: “3. A revision filed against Ext.P5 was also rejected by Ext.P6. Petitioner submits that, subsequently by Ext.P7, the DEO, acting upon the Government order dated 1.2.2006, granted approval with effect from 1.2.2006 and on that basis the petitioner is continuing. It is stated that after the DEO passed Ext.P7, the DEO himself passed Ext.P8 order, revising the staff strength and sanctioning 18 posts of HSA (Malayalam) with effect from 2000-2001 onwards. In the light of Ext.P8, petitioner now submits that since he is continuing with effect from 12.7.2001, his appointment is liable to be approved with effect from the date of his entry into service and not from 1.2.2006 as ordered in Ext.P7. 4. In the counter affidavit filed by the respondents also, the availability of post with effect from 2000-01 is admitted, as is seen from paragraph 5. Therefore the admitted position is that the petitioner is continuing in service with effect from 12.7.2001 and a post is also available with effect from 2000-01 onwards. If that be so, there is no reason why the claim of the petitioner W.P.(C) NO.20953 OF 2009 l :: 4 :: should not be reconsidered by the DEO himself, in the light of Ext.P8 order whereby he has sanctioned posts of HSAs with effect from 2000-01 onwards. It is directed that the DEO shall reconsider the matter and pass fresh orders. 5. In order to enable the DEO to reconsider and pass fresh orders in the matter, I quash Ext.P7 to the extent the approval is limited with effect from 1.2.2006. Orders shall be passed as above, with notice to the petitioner and the Manager as expeditiously as possible and at any rate within 3 months from the date of production of a copy of the judgment.” 4. Thereafter, the District Educational Officer passed Ext.P3 order No.B1/12119/08/K.Dis dated 21.3.2009, approving the appointment of the petitioner with effect from 12.7.2001. 5. After ten years, the Government issued Ext.P4 communication dated 15.7.2009 to the District Educational Officer, which reads as follows: “I am to invite your attention to the references cited and to direct you to cancel the approval given to Sri.K.Dinesh Kumar, HSA (Malayalam) with effect from W.P.(C) NO.20953 OF 2009 l :: 5 :: 12.7.01 as per your order second cited and uphold your order No.K.Dis/B1/2055/2006(1) dtd. 25/03/06 approving his appointment with effect from 01/02/06. I am also to direct you to take urgent steps to recover the salary already paid to Sri.Dinesh Kumar in the light of the approval given to him with effect from 12/07/01. The action taken in the matter shall be reported to Government immediately.” On the basis of Ext.P4 communication, the District Educational Officer issued Ext.P5 communication to the Headmaster of the School, which reads as follows: “As per the letter cited (2) the Secretary to Government has informed this office that the appointment of Sri.Dineshkumar.K. HSA (Malayalam) is not eligible to be approved with effect from 12-07-2001. Hence you are requested to withhold his pay and allowances from June 2009 onwards until further orders.” Exts.P4 and P5 are under challenge in this Writ Petition. 6. An interim order was passed on 27.7.2009 staying the operation of Exts.P4 and P5. A direction was also issued to pay the W.P.(C) NO.20953 OF 2009 l :: 6 :: monthly salary to the petitioner from time to time, subject to further orders in the Writ Petition. The monthly salary was being paid. However, the petitioner was not paid the arrears of salary. The petitioner filed interlocutory applications for issuing direction to the respondents to pay the arrears of salary. 7. On 16.7.2010, this Court passed the following order: “It is obvious from Ext.P2 judgment of this Court that the order passed by the District Educational Officer, Thalassery, viz, order No.K.Dis./B1/2055/2006(1) dated 25.3.2006, was quashed by this Court and the District Educational Officer was directed to reconsider the same and pass fresh orders thereon. Based on the directions in Ext.P2 the second respondent, the District Educational Officer, Thalassery, passed Ext.P3 order. As per the same, the appointment of the petitioner as High School Assistant (Malayalam) was approved with effect from 12.7.2001. It appears that Government have reviewed the same suo motu and directed the second respondent to cancel the approval granted to the petitioner with effect from 12.7.2001 and that apart it was directed to uphold the order dated 25.3.2006 approving the appointment of the petitioner with effect from 1.2.2006, viz. the very same order that was W.P.(C) NO.20953 OF 2009 l :: 7 :: quashed by this Court by Ext.P2. In the said circumstances, I direct the concerned officer who passed Ext.P4 order No.53205/E3/07/G.Edn. dated 15.7.2009 to file an affidavit detailing the circumstances under which order dated 25.3.2006 quashed by this Court as per Ext.P2 was directed to be restored. Such an affidavit shall be filed within a period of two weeks.” 8. The Under Secretary to Government, General Education Department filed an affidavit dated 31.8.2010, the relevant portion of which reads as follows: “3. The Manager Mambaram Higher Secondary School, Mambaram, Kannur District appointed the petitioner as HSA (Malayalam) in his school with effect from 12.07.2001 in an anticipated post for the year 2001-02. The appointment was rejected by the educational authorities and by the Government for want of sanctioned post and also for the reason that a protected teacher should have been appointed by the Manager since the school is a newly opened one during 1983-84, as per the conditions in GO(MS) No.123/91/GE dated 05.08.1991. Later an additional post of HSA (Malayalam) was sanctioned in the school from 2000-01 onwards. But only a protected teacher could be accommodated in that post as per the condition in the above Government Order. On W.P.(C) NO.20953 OF 2009 l :: 8 :: 01.02.2006 Government issued GO(P) No.46/2006/GE relaxing the terms and conditions of absorption of the protected teachers. According to this Government Order, the Managers of aided schools are liable to absorb at least one protected teacher in their school which were opened in between 1979 and 1990. On the basis of this order, the D.E.O. Thalassery approved the appointment of the petitioner with effect from 01.02.2006 on condition that the manager shall appoint a protected teacher from the list of protected teachers in the arising vacancy in the school vide order No.K.Dis.B1/2055/06(i) dated 25.03.2006. Against this decision of the DEO Thalassery, the petitioner filed WP(C) No.24305/06 before the Hon'ble High Court of Kerala. The Hon'ble High Court in the judgment dated 11.12.2008 in the above WP(C) observed that the DEO had passed the Exhibit P8 order revising the staff strength and sanctioning 18 posts of HSA (Malayalam) from the academic year 2000-01 onwards and since the petitioner is continuing with effect from 12.07.2001 his appointment is liable to be approved with effect from the date of his entry into service ie. from 12.07.01. With this observation the court quashed the Exhibit P7 order of the DEO Thalassery, approving the appointment of the petitioner w.e.f. 01.02.2006 and directed the DEO to reconsider the matter and pass fresh orders with notice to the petitioner and the Manager. W.P.(C) NO.20953 OF 2009 l :: 9 :: 4. It is submitted that the DEO, without examining the case properly and without getting permission from the Government passed orders approving the appointment of the petitioner with effect from 12.07.01, as per his Order No.B1/12119/2008/K.Dis. dated 21.03.2009. As the observations of the Hon'ble High Court were against the existing orders of the Government, appeal against the above said judgment should have been filed by the DEO. But since the judgment was complied with by the DEO appeal could not be filed against the judgment. Explanation for this was called for from the DEO and the DEO explained that delay in compliance of the judgment would invite contempt of court and so he complied with the judgment without permission from the Government. 5. As the appointment of the petitioner could not be approved with effect from 12.07.2001 on the basis of the conditions laid down in GO (MS) No.123/91/G.Edn. dated 05.08.91 and G.O.(P)No.46/06/G.Edn. dated 01.02.2006 appeal against the judgment should have been filed. But considering the fact that the appeal could not be filed as the judgment was already complied with, Government directed the DEO to cancel the approval given to the petitioner irregularly and to approve his appointment with effect from 01.02.2006 W.P.(C) NO.20953 OF 2009 l :: 10 :: from which date onwards the appointment is eligible to be approved. This is done invoking the powers conferred as per Rule 92 Chapter XIVA of KER. If the approval given by the DEO is not set aside a flood gate of similar cases are likely to arise which will put the Government in trouble. It is in the above circumstances, the Government directed the DEO to approve the appointment of the petitioner with effect from 01.02.2006 for which he is eligible. 6. Once again I may place my unconditional apology for the inconvenience caused to this Hon'ble Court due to the issuance of Government Letter No.53205/E3/07/G.Edn. dated 15.7.2009. It is also submitted that this respondent is willing to cancel the above Government letter if it so requires. It is respectfully submitted that the officer concerned who issued the above Government Letter has been transferred from the General Education Department on his promotion.” 9. The explanation offered in the affidavit dated 31.8.2010 is that as no appeal could be filed against Ext.P2 judgment in W.P.(C) No.24305 of 2006, the Government exercised the power under Rule 92 of Chapter XIV A of the Kerala Education Rules and resurrected the order dated 25.3.2006 passed by the District Educational Officer. W.P.(C) NO.20953 OF 2009 l :: 11 :: This explanation is unacceptable. The order dated 25.3.2006 passed by the District Educational Officer was quashed by this court in W.P.(C) No.24305 of 2006 and it was held that there was no justification for limiting the approval with effect from 1.2.2006. The Government was, therefore, not justified at all in overreaching the judgment passed by this Court under some pretext or other. If the Government was aggrieved by the order passed in the Writ Petition, a Writ Appeal should have been filed. The judgment in W.P.(C) No.24305 of 2006 was not just a direction to reconsider the matter. This Court had considered the issue involved in the case and held that approval only with effect from 1.2.2006 was not justified. The subsequent event leading to Ext.P1 order passed by the District Educational Officer was also taken note of by this Court. If the contention of the Government was that even thereafter the appointment could not be approved, they ought to have raised that contention in the Writ Petition. There is nothing to indicate that such a contention was raised. Therefore, the Government is barred by the principle of constructive res judicata from raising that contention at a later point of time. As no appeal was filed against the judgment in W.P.(C) No.24305 of 2006 and the judgment having become final, the Government was not justified in overreaching the judgment by W.P.(C) NO.20953 OF 2009 l :: 12 :: resorting to the power of review under Rule 92 of Chapter XIV A of the Kerala Education Rules. The power of revision under Rule 92 is not intended to offset a considered judgment passed by the High Court. Though the Government have power to exercise the revisional jurisdiction suo motu, the moment an order which bars the exercise of such jurisdiction is passed by the High Court, the jurisdiction under Rule 92 would come to an end. Thereafter, the Government have no power to exercise that jurisdiction and overcome the judgment passed by the High Court. Therefore, Ext.P4 order is absolutely without jurisdiction and it is accordingly quashed. Since Ext.P4 is quashed, the consequential order Ext.P5 is also quashed. 10. The petitioner is entitled to get the arrears of salary. For payment of the same, he need not be compelled to approach this Court again in another Writ Petition. The Government will pay the arrears of salary without delay and, at any rate, within a period of three months. 11. It is mentioned in the affidavit that “if the approval given by the DEO is not set aside a flood gate of similar cases are likely to W.P.(C) NO.20953 OF 2009 l :: 13 :: arise which will put the Government in trouble”. In these circumstances, it is made clear that Ext.P4 order is being set aside not on the ground whether the DEO's order is right or not, but on the ground that the order passed by the High Court and the subsequent order passed by the DEO has become final. As such, the apprehension that this order would be treated as a precedent is without any substance. The affidavit filed by the Under Secretary to the Government is accepted, though the contentions putforward therein are unsustainable. No further action need be taken in the matter, pursuant to the interim order dated 16.7.2010. The Writ Petition is allowed as above. (K.T.SANKARAN) Judge ahz/