(2013) 304 KLR 057 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN FRIDAY, THE 22ND DAY OF MARCH 2013/1ST CHAITHRA 1935 WP(C).No. 7895 of 2013 (J) --------------------------- PETITIONER(S): -------------------------- MUHAMMADEEYA MADRASSA AIDED LOWER PRIMARY SCHOOL CHELUR, REPRESENTED BY ITS MANAGER M.K.YOUSAF SAKAFI AGED 34 YEARS, S/O.MUHAMMEDKUTTY, MANGATTU KAVUNKAL PUNNATHALA P.O., VALANCHERRY, MALAPPURAM BY ADVS.SRI.ESM.KABEER SRI.P.K.MOHAMMED PUZHAKKARA RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT THIRUVANANTHAPURAM - 695 001. 2. THE ASSISTANT EDUCATIONAL OFFICER KUTTIPURAM 3. SHERLY MATHEW, AGED 52 YEARS W/O.MANU JOSEPH, KADAVIL HOUSE KARIPOLE POST, VALANCHERRY, MALAPPURAM DISTRICT PIN-676 552. BY GOVERNMENT PLEADER SMT.A.LOWSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7895 of 2013 (J) --------------------------- APPENDIX PETITIONERS' EXHIBITS -------------------------------------
RESPONDENT(S)' EXHIBITS --------------------------------------- NIL /TRUE COPY/ VPS PA TO JUDGE P.N.RAVINDRAN, J. --------------------------- W.P.(C) No.7895 OF 2013 -------------------------- Dated this the 22nd day of March, 2013 Head Note:- Kerala Education Rules, 1959 - Chapter XIV Rule 7 & Chapter XIV A Rule 8(1) - Appointment of a teacher - Copies of the qualification certificates produced by the teacher and the order granting approval have to be maintained by the Manager in his office. J U D G M E N T The petitioner is the Manager of an aided school. He appointed the third respondent as Lower Primary School Assistant (LPSA for short) more than 25 years back, to be exact on 7.1.1988. The said appointment was approved. 27 years later, the Headmaster of the school sent Ext.P1 representation dated 17.7.2012 to the petitioner wherein after referring to the request made by the petitioner to him to make available copies of the degree certificates (BA and B.Ed degrees) held by the third respondent, he stated that though on 14.7.2012 he had issued a memo to the third respondent calling upon her to make available copies of the degree certificates, the third respondent stated that copies are not available with her, that they were produced on 7.1.1988 when she joined service, that they are either in the office of the Manager or of the Assistant Educational Officer and those who want copies of the certificates can approach the Assistant Educational Officer, that the third respondent refused to sign the memo book and threatened him that if she is compelled to sign the memo book, a complaint will be lodged against him for sexual harassment and a press conference will be convened thereafter. It is stated that he was insulted by the teacher in the presence of co-workers. In Ext.P1 letter he informed the Manager that he is not in a position to forward copies of the degree certificates of the third respondent. 2. The petitioner thereupon placed the third respondent under suspension by Ext.P2 order dated 10.9.2012 for a period of 15 days. He thereafter forwarded the order placing the third respondent under suspension to the Assistant Educational Officer, Kuttippuram, who conducted a preliminary investigation into the grounds of suspension. The petitioner, the Headmaster of the school, the third respondent and other teachers were heard. After the preliminary investigation, the Assistant Educational Officer was satisfied that the charges leveled against the third respondent are flimsy. He accordingly directed the petitioner to reinstate the third respondent in service with effect from 10.9.2012, the date of the order of suspension. Though Ext.P3 order was passed on 20.9.2012, the petitioner did not reinstate the third respondent in service. He did not also challenge it immediately thereafter. Instead he waited till 31.12.2012 when he filed Ext.P4 representation before the Secretary to Government, General Education Department. The Government considered Ext.P4 representation and rejected it and informed the petitioner of the rejection of the representation by Ext.P5 letter dated 12.2.2013. In that letter, the Government stated that if copies of the certificates have not been made available under the Right to Information Act, that does not ipse facto lead to the conclusion that the certificates produced by the teacher are forged or that until the genuineness of the certificates are established, the teacher should be placed under suspension. The Government also noticed that when a teacher is appointed in a school, the Manager is bound to inspect the certificates and later when the proposal to approve the appointment is taken up, the Educational Officers are bound to inspect the certificates and that the Manager is also bound to keep records in the school. The Government also noticed that if a person seeking information under the Right to Information Act is not given information, he can file an appeal before the Information Commissioner and if a teacher has committed any act of misconduct, disciplinary action can be initiated by the Manager against her. The Government also directed the third respondent to make available copies of the certificates. The petitioner did not challenge Ext.P5 letter in time. It is stated that though a copy of Ext.P5 letter was handed over by the second respondent, it was not full (sic for complete). 3. When notwithstanding the rejection of Ext.P4 representation by the State Government, the petitioner did not reinstate the third respondent in service, the second respondent sent Ext.P6 letter dated 18.2.2013 to the petitioner calling upon the petitioner to implement Ext.P3 order within five days and to report compliance. After Ext.P6 letter was received, the petitioner submitted Ext.P7 revision petition dated 4.3.2013 accompanied by Ext.P8 stay petition wherein he canvassed the correctness of Ext.P5 order dated 12.2.2013. The instant writ petition was thereafter filed on 19.3.2013 challenging Ext.P5 Government order and seeking a writ in the nature of mandamus commanding respondents 1 and 2 to extend the period of suspension till Ext.P7 revision petition is disposed of. The petitioner has also prayed for an order directing the first respondent to enquire into the genuineness of Ext.P11 certificate. It is contended that in Ext.P11 certificate produced by the third respondent to prove that she possess a B.Ed degree, the name of the college where she underwent studies is mentioned as Nagaland College of Education and in Ext.P12 marklist also the name of the college is shown as Nagaland College of Education, but the third respondent has in paragraph 2 of Ext.P13 representation dated nil stated that she passed the B.Ed degree examination from Kohima Government B.Ed college and therefore it is evident that Ext.P11 certificate is a forgery. 4. As stated earlier, Ext.P2 order placing the third respondent under suspension was passed on 10.9.2012. Within 10 days thereafter, by Ext.P3 order dated 20.9.2012 issued after a preliminary investigation into the grounds of suspension, the Assistant Educational Officer, Kuttippuram declined permission to continue the suspension and directed the petitioner to reinstate the third respondent in service with effect from 10.9.2012, the date of the order of suspension. The petitioner did not challenge the order immediately. He has no case that he was unaware of Ext.P3 order. Nearly three months later, he filed Ext.P4 revision petition before the Government and it was rejected by the Government and the decision communicated to the petitioner by Ext.P5 letter dated 12.2.2013. The petitioner admits having received a copy of Ext.P5, though according to him the copy given to him was incomplete. He has not chosen to produce the incomplete copy of Ext.P5 and he has no explanation for not producing it. Even after Ext.P5 order was passed, he did not reinstate the petitioner in service. The third respondent thereupon filed W.P.(C). No.6726 of 2013 in this Court. The said writ petition was admitted and notice ordered to the respondents on 11.3.2013. In that writ petition, a copy of Ext.P3 was produced as Ext.P3, a copy Ext.P5 was produced as Ext.P9 and a copy of Ext.P6 was produced as Ext.P10. While admitting W.P.(C).No.6726 of 2013, this Court also passed an interim order to the effect that if operation of Ext.P5 order passed by the Government has not been kept in abeyance by this Court, the Assistant Educational Officer, Kuttippuram shall ensure that his own orders evidenced by Exts.P3 and P6 are implemented by the fourth respondent Manager (the petitioner herein) and the fifth respondent Headmaster by reinstating the petitioner (the third respondent herein) in service. A copy of the said interim order is produced as Ext.P10 in the instant writ petition. The petitioner has in paragraph 6 of the writ petition admitted having received a copy of the said order. It is stated that though the petitioner thereafter filed W.A.No.458 of 2013 challenging Ext.P10 interim order, the said writ appeal was dismissed on 18.3.2013. 5. From a reading of Ext.P2 order of suspension, it is evident that the third respondent was placed under suspension for misbehaving with the Headmaster and for threatening to file a complaint against him for sexual harassment. The order of suspension was passed on 10.9.2012, two months after the Headmaster sent Ext.P1 letter dated 17.7.2012 to the petitioner. There is no explanation as to why the Manager did not take any action, though he received Ext.P1 letter on 17.7.2012 itself till he passed Ext.P2 order dated 10.9.2012. The order of suspension also refers to the fact that the Manager had requested the Headmaster to call upon the third respondent to produce copies of the degree certificates held by her. The Assistant Educational Officer conducted a preliminary investigation into the grounds and was satisfied that the charges leveled against the third respondent are flimsy. The Government have in Ext.P5 concurred with the said finding. Rule 7 of Chapter XIV of the Kerala Education Rules stipulates that as soon as a teacher is appointed in a school, the Manager shall immediately issue an appointment order to the teacher in Form 27 and the appointment shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved. Rule 8(1) of Chapter XIVA of the Kerala Education Rules stipulates that three copies of appointment order, all signed by the Manager and the teacher, shall be forwarded by the Manager to the Educational Officer for approval together with such details, particulars and documents as may be required by the Director within fifteen days from the date of effect of the staff fixation order by which the additional posts are sanctioned or within fifteen days from the date of joining duty of the candidates whichever is later, in the manner prescribed by the Director. The Director of Public Instruction has by Circular No.H2-53358/72 dated 22.4.1972 inter alia directed as follows: "39. The procedure regarding the approval of appointment of teachers has been modified by an amendment to Rule 8 of Chapter XIV(A) K.E.R. According to the amended rule three copies of the appointment order all signed by the management and the teacher shall be forwarded by the manager to the Educational Officer for approval together with such details, particulars and documents as may be required by the Director. The documents that are to be followed with the appointment orders are:- (i) Certificates in original for proving qualifications and date of birth of the candidates. (ii) Declaration from the manager to the effect that none has to be absorbed under his management by virtue of any rule or order issued by Govt. and (iii) Conduct certificate as prescribed below:- Certificate of character and antecedents from any one of the following persons can be accepted. 1. Any Gazetted Officer. (i) Any Gazetted Officer who knows the applicant personally for the last 10 years. OR 2. M.P./M.L.A. 3. President for the panchayat having jurisdiction over the lace of the applicant's residence. OR 4. Chairman of a Municipal Council/Mayor of Corporation having jurisdiction over the place of the applicant's residence. (iv) A declaration to the effect that he has not been convicted by a court of law for any offence involving moral turpitude and no criminal case is pending against him. (v) A declaration to the effect that he has not been debarred from appointment in any public service by the Public Service Commission. (vi) True copies of the qualification certificates attested by the teacher as "True Copy" in addition to the original certificates. The appointment order and all these documents and particulars should be forwarded by the Manager within one week from the date of joining duty of the candidates or one week from the date of receipt of fixation order by which the particular post was sanctioned for the first time, whichever is later." 6. It is stated therein that along with the appointment order true copies of the qualification certificates attested by the teacher as "True Copy" in addition to the original certificates should be enclosed. Rule 8 (2) of Chapter XIV-A of the Kerala Education Rules stipulates that on receipt of the appointment order and other records mentioned in sub- rule(1), the Educational Officer may approve the appointment if it is in accordance with the provisions of the Act, the rules and orders issued by the Government or the Director from time to time, that after approval one copy shall be forwarded by the Educational Officer to the teacher through the Manager and another copy forwarded to the Manager to be filed in the school records and that approval may be given as expeditiously as possible and at any rate not later than 30 days from the date of receipt of the appointment order and other documents mentioned in sub-rule (1). 7. It is evident from the Circular dated 22.4.1972 issued by the Director of Public Instruction that apart from the original of the certificates for proving the qualifications and the date of birth of the appointee, the Manager has to forward true copies of the qualification certificates attested by the teacher. Rule 8(2) of Chapter XIV-A of the Kerala Education Rules stipulates that on receipt of the appointment order and other records mentioned in sub-rule(1) the Educational Officer may approve the appointment if it is in accordance with the provisions of the Act, the rules and orders issued by the Government or the Director from time to time. After approval one copy of the appointment order has to be forwarded by the Educational Officer to the teacher through the Manager and another copy forwarded to the Manager to be filed in the school records. It is evident from the circular issued by the Director of Public Instruction and sub rule (2) of rule 8 of Chapter XIVA of the Kerala Education Rules that copies of the qualification certificates produced by the teacher and the order granting approval have to be maintained by the Manager in his office. The Manager has no case that when the third respondent was appointed, she had not made available the originals of the certificates. He has also no case that he is not maintaining records in his office. Even assuming that a complaint had been received about the genuineness of the certificates produced by third respondent when she was appointed, the Manager could have called upon the teacher to make available copies of the qualification certificates. The Government have by Ext.P5 order directed the third respondent teacher to make available copies of the certificates. The petitioner in W.P.(C).No.6726 of 2013 has in paragraph 7 of the writ petition stated that she had produced all the certificates before the Assistant Educational Officer and the Headmaster on 17.10.2012. Though the Headmaster has in paragraph 6 of the counter affidavit dated 21.3.2013 filed by him denied the said averment, the Assistant Educational Officer has not denied the said averment. Therefore, if copies of certificates were necessary, the Manager could have had it from the office of the Assistant Educational Officer or once again called upon the third respondent to make available the same. In such circumstances, I am of the considered opinion that the stand taken by the Assistant Educational Officer in Ext.P3 and by the Government in Ext.P5 does not merit interference. Though the petitioner has filed Ext.P7 revision petition before the Government, the Government having exercised the revisional jurisdiction when it disposed of Ext.P4 revision petition, I am of the opinion that a second revision would not lie. Though the Government are empowered by rule 93 to review its orders, this Court has consistently held that the Government can review only original orders passed by it and not orders passed by it under rule 92 in exercise of its revisional jurisdiction. It is also evident from the conduct of the petitioner in not challenging Ext.P3 for nearly three months that he was not serious about the interference made by the Assistant Educational Officer with the order of suspension passed by him. From the conduct of the petitioner also, I am of the opinion that he is not entitled to invoke the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. P.N.RAVINDRAN, vps (JUDGE) |