IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 WP(C).No. 19030 of 2008(M) ---------------------------------------- PETITIONER(S): -------------------- D.SASIKALADEVI KUNJAMMA, SEWING TEACHER, B.V.U.P.SCHOOL, ANCHAL, KOLLAM DISTRICT. BY ADVS. MR.P.K.VIJAYAMOHANAN MR.NISHIL.P.S. RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA-REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, ANCHAL.P.O, KOLLAM DISTRICT. 3. THE MANAGER, B.V.U.P.SCHOOL, ANCHAL P.O, KOLLAM DISTRICT. R1 & R2 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/10/2009, THE COURT ON 03/12/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.19030/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER G.O.(RT) NO.4962/99/G.EDN. DTD. 9.11.99. P2:- COPY OF THE COMMUNICATION NO.7991/K3/2000/G.EDN. DTD. 24.4.01 OF THE IST RESPONDENT. P3:- COPY OF THE ORDER NO.C./3860/98/K.DIS DTD. 16.6.01 OF THE 2ND RESPONDENT. P4:- COPY OF THE INTERIM ORDER DTD. 21.1.02 IN CMP. 56660/2001 IN OP. 34660/01. P5:- COPY OF THE ORDER G.O.(RT) NO.700/02/G.EDN. DTD. 1.4.02 OF THE IST RESPONDENT. P6:- COPY OF THE JUDGMENT DTD. 25.9.02 IN OP. 34660/01 . P7:- COPY OF THE ORDER G.O.(MS) NO.108/01/G.EDN. DTD. 23.3.01 OF THE IST RESPONDENT. P8:- COPY OF THE ORDER G.O.(RT) NO.5288/05/G.EDN. DTD. 11.11.05. P9:- COPY OF THE JUDGMENT DTD. 8.11.06 IN WPC. NO.33867/05. P10:- COPY OF THE ORDER GO(RT) NO.1262/07/G.EDN. DTD. 21.3.07. P11:- COPY OF THE ARGUMENT NOTES DTD. 28.7.05 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. 12:- COPY OF THE ORDER G.O.(RT) NO.4304/.2000/G.EDN. DTD. 24.10.09. P13:- COPY OF THE ORDER NO.E/292/2001/K.DIS DTD. 1.1.02 OF THE ASSISTANT EDUCATIONAL OFFICER, KOOTHUPARAMBA. P14:- COPY OF THE ORDER G.O.(RT) NO.4188/06/G.EDN. DTD. 27.9.06. P15:- COPY OF THE JUDGMENT DTD. 10.4.07 IN WPC. 34430/06. P16:- COPY OF THE OFFICE ORDER NO.C/3270/2001/K.DIS DTD. 27.8.01 OF THE 2ND RESPONDENT. P17:- COPY OF THE COMMUNICATION NO.C-494/07 DTD. 14.10.09 OF THE 2ND RESPONDENT. P18:- COPY OF THE ORDER NO.C/494/07 DTD. 27.11.08 OF THE 2ND RESPONDENT. P19:- COPY OF THE GOVERNMENT LETTER NO.26653/K3/07/G.EDN. DTD. 1.10.07. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.19030 of 2008-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2009. JUDGMENT The petitioner herein is a sewing teacher appointed in the school managed by the third respondent, the approval of which was granted pursuant to the order issued by the Government invoking Rule 3 of Chapter I K.E.R. The grievance raised by the petitioner is that the said order has been reviewed, resulting in denial of salary for the period from 7.6.1993 to 31.5.2001 and the benefit of the service rendered by the petitioner during this period. 2. The petitioner was appointed on 7.6.1993 as a sewing teacher in a retirement vacancy. An objection was raised by the educational officers pointing out that there is no sanctioned post. The matter was taken up before the Government and the Government by Ext.P1, sanctioned restoration of the post of sewing teacher from 1993-1994 onwards and for approval of appointment of the petitioner as a special case, by relaxing the rules with effect from q.6.1993 onwards. Ext.P2 is the order by which the Government directed approval of appointment of the petitioner from 1.6.1993 and by Ext.P3 the appointment was approved with effect from wpc 19030/2008 2 7.6.1993. 3. When the salary for the period from 7.6.1993 to 31.5.2001 was not paid to the petitioner by relying upon an audit objection, the petitioner approached this court by filing W.P.(C) No.34660/2001 wherein Ext.P4 interim order was passed directing disbursal of salary ignoring the objection of the Accountant General. Even then, the amount was not disbursed and by Ext.P5, the Government reviewed Ext.P1 order and accorded sanction to approve the appointment of the petitioner with prospective effect from the date of approval of the appointment by the Asst. Educational Officer, i.e. 16.6.2001. This order was quashed as it was passed without hearing the petitioner, by Ext.P6 judgment. Again, by Ext.P8 after hearing the petitioner, a fresh order was passed which was subsequently quashed in Ext.P9 judgment, in a writ petition filed by the petitioner. This Court after referring to the contentions of the petitioner in respect of Ext.P7 order passed in favour of similarly placed needle work teachers who were granted a similar benefit by the Government, directed the Government to reconsider the matter. By Ext.P10, a fresh order was passed by the Government wherein the Government directed the Asst. Educational Officer to pay salary to the petitioner for the period from 7.5.1993 to 31.5.2001, subject to the condition that the unauthorized period of working against unauthorized wpc 19030/2008 3 post will not count for any other service benefits and also on the condition that the amount so paid to the petitioner will be recovered from the Manager. This is under challenge in this writ petition. 4. Learned counsel for the petitioner submitted that the Government has acted without jurisdiction in reviewing Ext.P1 order without any specific power conferred under the Statute for for undertaking review of an order passed under Rule 3 of Chapter I K.E.R. It is also contended that the order is clearly arbitrary and discriminatory. Learned counsel for the petitioner placed reliance on the decisions of the Apex Court in Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji (AIR 1970 SC 1273) and Kumari Shrilekha Vidyarthi etc. v. State of U.P. and others (AIR 1991 SC 537) and a decision of a Division Bench of this Court in Sivakumar v. Sreekumar (2002 (1) KLT 354). 5. The Govt. Pleader submitted that in modifying Ext.P1, the Government has got powers under the General Clauses Act and therefore there is no illegality in passing the order. 6. Learned counsel for the petitioner further pointed out that gross discrimination has been meted out to the petitioner, as evident from Exts.P7 and P12 to P14 orders, since similarly placed teachers have been granted wpc 19030/2008 4 same benefits by the Government and the petitioner alone is singled out. It is also pointed out that even though the Government directed the Asst. Educational Officer to disburse the salary, salary has been reckoned only by calculating the number of days she had worked, and not on a scale of pay and without granting benefits like pay revision, etc. as evident from Ext.P18. The stand taken by the Government in Ext.P19 in that regard is also attacked by the learned counsel for the petitioner. 7. The principal question is whether the Government was right in reviewing Ext.P1 order after this Court passed an interim order as per Ext.P4 to disburse the benefits of salary. 8. A reading of Ext.P1 shows that the Government passed the order after considering the report of the Director of Public Instruction. It shows that the sewing post in the school was in existence prior to 1969-70 and that the teacher who worked against the post retired from service on 31.3.1993. The petitioner was appointed as Sewing Teacher with effect from 1.6.1993. It is also reported that the petitioner has acquired sufficient qualification by passing SSLC and KGTE Needle Work and Tailoring (Higher) and that she is over aged. It is also clear that there is no other post of Specialist Teacher in the school. 9. The Government found in Ext.P1 that the school in question is a wpc 19030/2008 5 pre K.E.R. one and the post of Needle Work Teacher has been in existence from 1946-47. The petitioner had been continuing after the date of appointment by the Manager and the fact that the post was abolished, was not known to the petitioner or the Manager. There is no other post of Specialist Teacher in the school and the petitioner has crossed the age bar. There is no prospects of getting a job either under the Government or in unaided schools. Accordingly, the Government ordered restoration of the post from 1993-94 onwards and for the approval of the appointment of the petitioner with effect from 1.6.1993 onwards as a special case in exercise of the powers conferred under Rule 3 Chapter I K.E.R. 10. By Ext.P2 letter which was issued on a clarification sought for by the Asst. Educational Officer, the Government directed the Asst. Educational Officer to approve the appointment of the petitioner as Full Time Sewing Teacher with effect from 1.6.1993 onwards against the post restored by the Government as per Ext.P1. Thereafter, by Ext.P3 approval was granted by the Asst. Educational Officer in terms of Rule 7 of Chapter XIV-A K.E.R. Thus approval is effective from the date on which the teacher is admitted to duty. Ext.P5 shows that the Asst. Educational Officer in his letter dated 3.11.2001 pointed out that the Accountant General has raised an objection with regard to the order Ext.P1 stating that the school is wpc 19030/2008 6 not eligible for a Full Time post of Sewing Teacher, as the students strength is below 500. It is accordingly, the Government, after reviewing the order Ext.P1, directed approval with a prospective date from the date of approval of appointment by the Asst. Educational Officer on 16.6.2001. This is confirmed in Ext.P8 order. 11. The question is whether the Government was entitled to exercise a power of review in respect of an order passed under Rule 3 of Chapter I K.E.R. No specific power of review has been conferred as evident from the provisions in Chapter I K.E.R., to review an order issued under Rule 3. Then, the other provision available is under Rule 93 of Chapter XIV-A K.E.R. But it may not obviously apply here, in the light of the specific conditions provided therein to exercise the said power. Rule 93 is extracted below: “93. Review only of original orders:- Government shall on application of the party, review the original orders. There shall be only one review and application for review shall be made within a period of two months from the date of the order.” It shows that the Government can exercise the power of review on the application of the party and the application should be one made within a period of two months from the date of the order. These two conditions are wpc 19030/2008 7 not satisfied here and the Government was not exercising any power available under Rule 93 also. 12. The decision of the Apex Court in Patel Narshi Thakershi's case (AIR 1970 SC 1273) is an authority for the position that the power of review is not an inherent one. It must be conferred by law either specifically or by necessary implication. The provisions of Order 47 Rule 1 C.P.C. was considered therein. In Sivakumar's case (2002 (1) KLT 354), this Court considered the very same question. The issue arose under the Kerala Co-operative Societies Act. The Government passed an order in an appeal as provided under Section 83(1)(j) of the Kerala Co-operative Societies Act. Later, another person filed a petition before the Government for a reconsideration of the matter which was directed to be disposed of by this Court. In the Writ Appeal filed from the said judgment, the question whether the Government can exercise a power of review in respect of an order passed passed in an appeal under Section 83(1)(j) was examined. It was held in para 13 as follows: “Further, in the absence of a provision enabling review, the Government are incompetent to consider Ext.P5. Normally, only in the case of an order obtained by fraud, an exception to the principle that no review is competent in the absence of an express power for wpc 19030/2008 8 the same, is recognised by courts. So, even if the writ petitioner was a person aggrieved, the Government are not competent to suo motu review the said order in the light of the statutory scheme contained in the Kerala Co-operative Societies Act.” 13. Therefore, the position is well settled that a power of review should be specifically conferred or by necessary implication. Going by these two tests, Chapter I Rule 3 or any other provisions in the Act or Rules do not confer any power on the Government to review an order passed under Rule 3. In Ext.P8 which was passed after Ext.P5 was quashed by Ext.P6 judgment, it is stated that on the basis of the audit objection the Government reviewed the matter and cancelled Ext.P1 by Ext.P5. The said stand is reiterated in Exts.P8 and P10. In the light of the fact that no specific power of review is conferred, the review of Ext.P1 by way of Ext.P5 and later by Exts.P8 and P10, cannot hold good. 14. The order Ext.P10 cannot survive for another reason also. Clearly, it goes against the basic conditions on which Ext.P1 was passed. In Ext.P1 the Government granted relaxation of the rules to restore the post and approve the appointment of the petitioner. This order was passed after finding that the petitioner was appointed in a retirement vacancy on 1.6.1993 and the school was having the post of sewing teacher from 1946- wpc 19030/2008 9 47. Therefore, the Government recognised the requirement for continuance of the post by restoring it to the school from the year 1993-94 onwards. The fact that the petitioner has crossed the age bar has also been considered. The modification made as per Ext.P5 is to accord sanction to approve the appointment of the petitioner from the date of approval of appointment by the Asst. Educational Officer, i.e. from 16.6.2001. This goes against the directions issued in Ext.P2. The order Ext.P1 is dated 9.11.1999 and Ext.P2 is dated 24.4.2001. The date shown in Ext.P3, i.e. 16.6.2001 is the date on which the order of approval is granted by the Asst. Educational Officer. It has no particular significance, except to show that the Asst. Educational Officer has passed the order only on the said date. Therein, approval has been granted with effect from 7.6.1993, the date of appointment of the petitioner. There is no dispute that the petitioner was discharging her duties from that date. Therefore, going by Rule 7 of Chapter XIV-A K.E.R., the appointment shall be effective from the date on which the teacher is admitted to duty provided the appointment is duly approved. Therefore, the restoration of the post having been made from 1.6.1993 and as the petitioner is also entitled for approval from 7.6.1993, the day on which she was admitted to duty, there is no justification in recalling the approval from the said date and to grant a prospective approval wpc 19030/2008 10 from 16.6.2001, the date of approval of appointment chosen by the Asst. Educational Officer. Once relaxation has been granted and as the Government has chosen the parameters for the relaxation, it is not dependent upon the date of approval granted by the Asst Educational Officer which has no particular significance. In that view of the matter also, the order making the approval from a prospective date from 16.6.2001, i.e. Ext.P5 which is confirmed in Exts.P8 and P10, cannot be sustained. In Exts.P8 and P10, the view taken is that there is no sanctioned post to accommodate the petitioner. This view taken is also not supportable. It can never be held that the period from 7.6.1993 till 31.5.2001 is an unauthorised one, as the post itself was restored by the Government as per Ext.P1. Therefore, the said conclusion in Ext.P10 cannot be justified. Once the post has been restored and approval has been directed to be given from 7.6.1993, it cannot be said that the Manager made an irregular appointment. 15. Herein, the aspect of discrimination pointed out by the petitioner is also significant. Ext.P7 is an order passed by the Government in similar circumstances, wherein the Government granted approval of appointment of 29 Needle Work Teachers whose names are appended to the said order, for the period from 1990 to 1996 from the date of their appointment. It is clear from Ext.P7 itself that the approval of the appointments were not wpc 19030/2008 11 granted by the Asst. Educational Officers for want of sanctioned posts as per the existing Rules in K.E.R. Ext.P7 shows that 29 Needle Work Teachers were appointed against the retirement vacancies, during the period from 1990 to 1996. Therefore, the petitioner's case is also similar and her appointment was also directed to be approved from 1.6.1993. In her case also, the objection is that there is no sanctioned post and the post already existing, was abolished. Ext.P7 shows that the appointment of 29 Needle Work Teachers have been approved from the dates of their appointment specified therein and the appendix shows various details also. Thus, all those teachers have been granted approval of appointment with effect from the date of their appointment which is in tune with Rule 7 of Chapter XIV-A K.E.R. In Ext.P9 judgment, while quashing Ext.P8, in para 2 this Court referred to the contentions of the petitioner relating to Ext.P7 order herein that there is gross discrimination as the petitioner is treated dis-similarly, whereas 29 Needle Work Teachers have been granted approval, which fact has not been considered earlier in Ext.P8. This Court specifically directed the Government to consider the matter afresh after taking note of the contentions of the petitioner. Ext.P11 is the copy of the argument note filed by the petitioner before the Government. Therein, the contentions have been explained. But in Ext.P10, after referring to the wpc 19030/2008 12 contentions, no specific reasons have been pointed out as to why the same yardstick ought not have been adopted in the case of the petitioner also. The main reason pointed out against the approval of appointment of the petitioner is that the post had ceased to be existed on the date of retirement of the teacher working. As already observed, in Ext.P7 also, similar appointments have been made. 16. In the counter affidavit filed by the first respondent, this argument of the petitioner has not been met and no answer has been attempted with regard to the reliance placed on Ext.P7 by the petitioner. Thus, it is clear that the petitioner and the teachers covered by Ext.P7 are similarly placed. All these appointments have been made between the period 1990 - 1996. Obviously, the power under Rule 3 of Chapter I K.E.R. was exercised by the Government in favour of the petitioner and there are no distinguishing features as far as the case of the petitioner and the 29 Needle Work Teachers who were granted approval as per Ext.P7. In Ext.P12 also, the Government granted restoration of the post of Pre- vocational Instructor which existed in Mooriyad Central U.P. School and converted the above post into Needle Work and ordered approval of appointment of Smt. P.K. Narayani as Sewing Teacher. She was appointed as a Needle Work Teacher in that school. Therein also, the number of wpc 19030/2008 13 students in the L.P. Section is only 125 and in the U.P. Section, 246. Accordingly, the appointment of the said teacher was not approved. But the Government finally passed Ext.P12 restoring the post and directed to approve the appointment in relaxation of the rules. Ext.P13 is the order sanctioning the scale of pay to the said teacher, wherein the payment was restricted from 9.11.2000 by the Asst. Educational Officer. This was set aside by the Government by Ext.P14 by finding that by Ext.P12 approval has been granted for appointment from 18.7.1983 to 30.11.2000. Even though the Headmaster of the school challenged these orders in a writ petition, that was dismissed by Ext.P15 judgment. 17. Thus, gross discrimination has been meted out to the petitioner, whereas the Government conferred the benefit of approval of appointment with effect from the date of admission of the teachers covered by Exts.P7 and P12, i.e. on the dates on which they started discharging the duties. As to why the petitioner alone is discriminated, is not explained by the respondents also. 18. Herein, learned Govt. Pleader tried to explain the orders by relying upon the provisions of the General Clauses Act. As far as this State is concerned, the relevant Statute is “The Kerala Interpretation and General Clauses Act, 1125”. Section 20 of the said Act provides “power to make” wpc 19030/2008 14 which is in the following terms: “Power to make to include power to add to, amend, vary or rescind orders, rules or bye-laws.-- Where, by any Act, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.” It is therefore submitted that the Government is having every power to amend or vary any order passed by it. True that the said provision of the General Clauses Act gives a power to the Government to vary or rescind orders. Obviously, the power includes “a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any order.” It is well settled that the power has to be exercised in a fair and reasonable manner and not in an arbitrary and discriminatory manner. Herein, the Government has not altogether withdrawn the benefit of restoration of the post as per Ext.P1 wherein Ext.P5 was issued. The approval of appointment of the petitioner was made effective from 16.6.2001 as per Ext.P5. As already explained, the said date has no particular significance in regard to the main purpose and object of restoration of the post. She was appointed in the school from wpc 19030/2008 15 1993-94 and the approval of the same was pending before the Government for invoking the power under Rule 3 of Chapter I K.E.R. Therefore, by denying the benefit of appointment from 1993 till 16.6.2001, the petitioner will be grossly prejudiced. Now the benefits are restricted to the salary payable on the dates on which she has performed her duties, by Ext.P10 and as explained in Ext.P19 also. The benefit of her service for the said period is also taken away going by Ext.P10, wherein it is stated that it will not count for any service benefits. Once the Government has chosen to grant relaxation from the rules, there is no purpose in not recognising her service in the school from 7.6.1993 to 31.5.2001. Therefore, the order is clearly unreasonable and arbitrary. It is well settled that any action which is arbitrary and discriminatory, will vitiate Article 14 of the Constitution of India. In fact, in Shrilekha Vidyarthi's case (AIR 1991 SC 537), the Apex Court also held that “the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble.” 19. The counter affidavit reiterates only what is contained in the impugned Govt. Order and justification is sought on the audit objection made by the Accountant General. But the audit objection cannot render a valid order passed by the Government as bad, in exercise of the power wpc 19030/2008 16 under Rule 3 of Chapter I K.E.R. The said legal position is clear from the decision of this Court in Usuvathunnisa v. Asst. Educational Officer (1990 (2) KLT 530). The statutory orders are bound to be treated as valid and the audit cannot sit in judgment over such orders passed by statutory authorities. It was held therein that the Accountant General's objection cannot have the effect of nullifying the orders or proceedings taken by the statutory authorities. It is clear that the power under Chapter I Rule 3 was exercised by the Government after considering the various aspects in Ext.P1. When rules are relaxed in restoring the post of sewing teacher, especially after finding that there is no specialist teacher in the school, the relaxation granted has to be upheld.