FATHER JOHN Vs. STATE OF KERALA
LAWS(KER)-1967-11-6
HIGH COURT OF KERALA
Decided on November 07,1967

RE Appellant
VERSUS
FATHER JOHN V. STATE OF KERALA Respondents

JUDGEMENT

- (1.) The petitioner is a teacher in the St. Mary's High School, Alwaye, who has been aggrieved by the approved list fixing the seniority as between the teachers of the School. In a prior writ petition, O. P. No. 3141 of 1965, this Court directed that the District Educational Officer, Alwaye will give provisional approval in accordance with law to the seniority list of teachers within two months from the date of the order on that writ petition. The 9th respondent in this writ petition, the Manager of the School, had submitted the seniority list of teachers to the 3rd respondent as required by R.35 of Chap.14A of the Kerala Education Rules. In the list so submitted by the 9th respondent the petitioner was placed above respondents 4 to 8. Ext. P2 is the order of the 3rd respondent giving provisional approval to the list, as submitted by the Manager. It will be seen from the same that the 3rd respondent made necessary changes in the list, revised the serial numbers of the teachers as arranged in the list, and also their seniority to some extent. With the modifications thus effected, the seniority list was provisionally approved and it was directed to be circulated among the members of the staff of the 9th respondent's school, for submission in writing of complaints and representations, if any. Complaints and representations were received inter alia from the present petitioner, and were dealt with again by Ext. P3 order of the 3rd respondent. In the said order the 3rd respondent stated that the contentions urged by the petitioner had also been put forward by the Manager, when he submitted the seniority list for provisional approval and had been found against by the 3rd respondent in Ext. P2 proceedings. They were again considered, but the 3rd respondent did not think it necessary to make any change in the seniority list. This order of the 3rd respondent was confirmed on Appeal, by the Regional Deputy Director of Public Instruction in Ext. P4 order. The petitioner seeks to quash Exts. P2, P3, and P4 orders.
(2.) The relevant statutory provisions dealing with the provisional approval of the seniority list submitted by the management of the school, and the finalisation of the said list are contained in R.34, 35, 36 and 38 of Chap.14A of the Kerala Education Rules. These rules in so far as they are material read as follows: "34. Seniority List.-- Every management shall prepare and maintain in the prescribed form a staff list, otherwise called Seniority List, of Teachers. 35. If the Educational Agencies have more than one school in a District, they shall be constituted into one unit and a common seniority list shall be prepared for all the schools in the unit together and shall be submitted to the concerned District Educational Officer for approval. If the Educational Agencies have schools in more than one District within a Region they shall be constituted as one unit and a common seniority list shall be prepared for all the schools in the unit together and submitted to the concerned Region Deputy Director for approval. If the Educational Agencies have schools in more than one Region they shall be constituted as one unit and a common seniority list shall be prepared for all the schools together and shall be submitted to the Director for approval. The District Educational Officer, the Regional Deputy Director and the Director, as the case may be, may approve the list provisionally pending finalisation of appeals, if any, preferred by the aggrieved teachers. 36. The staff list as provisionally approved shall be circulated to the teachers and representations if any received from the teachers within one month from the date of circulation, shall be submitted to the concerned officer competent to approve the list with the managements' remarks within two months from the date of receipt of the list provisionally approved to the authorities specified in R.35. The list shall be maintained by the managements and produced whenever required by the Departmental authorities." 37. (1) The District Educational Officer, the Regional Deputy Director and the Director as the case may be, may after considering the representations, if any, and after hearing the parties, if they deem it necessary, finalise and approve the list with or without change and the list so approved shall be final. (2) An appeal shall lie to the Regional Deputy Director, Director, and the Government respectively against an order passed by the District Educational Officer, Regional Deputy Director and Director under sub-r.(1). Provided that no appeal shall be entertained after the expiry of a period of one month from the date of receipt of the order." From a perusal of the above rules, it will be seen that at the stage of granting the provisional approval under R.35 to the seniority list submitted by the Manager, no power is vested in the authorities to effect changes in the seniority of the teachers as fixed by the management. It appears to be so, for good reasons also. The scheme of the Rules is that the provisionally approved list has to be circulated among the teachers and their representations received before the list is finalised and approved under Clause.1 of R.38. The representations under R.36 have to be submitted to the authority who is to provisionally approve the list under R.35, and the approval and the finalisation is also to be by the same authority under R.38(1). If at the stage of provisional approval the authority were to have the right of making changes in the list as submitted by the management, the right of representation conceded by R.36 and the right of finalisation conferred by R.38(1) would become illusory and otiose. There is the further indication afforded by the language of R.35 and R.38(1) of Chap.14(A). The latter expressly empowers the approval of the list "with or without change". These words are absent in R.35. Indeed, counsel appearing for respondents 1 to 3 conceded that at the stage of provisional approval under R.35, the District Educational Officer has no right to make changes in the list submitted by the management, or to alter the seniority of the teachers as fixed by the management. This being the position, it is clear that Ext. P2 order was not warranted by the terms of R.35 of Chap.14(A). The complaint of the counsel for the petitioner that the District Educational Officer having chosen to make the alterations in the seniority list submitted by the management even at the stage of the provisional approval, the opportunity afforded to the petitioner of making representations before finalisation and approval of the list was really illusory, is well founded and entitled to acceptance. The illegality in passing Ext. P2 order seems to have permeated the subsequent orders, Exs. P3 and P4, and to have precluded an objective assessment of the position. In these circumstances I quash Exts. P2, P4 orders. This will not preclude the authorities from considering the question of approval of the seniority list of teachers submitted by the management in accordance with law and in the light of the observations contained herein.
(3.) The O. P. is allowed as above. No costs.;


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