Balanandan Nair vs Dy. Director of Education and Ors

K.A. Abdul Gafoor, J.—The petitioner, a Headmaster placed under suspension, has approached this Court challenging Exts. P7 & P8. -The facts of the case are as follows: The petitioner is an aided School Headmaster. The 4th respondent is the Manager of the School. The Manager placed the petitioner under suspension as per Ext. P2 order. In terms of Rule 67(8)Chap. XIVA K.E.R. when the manager placed the Headmaster of a U.P. School under suspension, the order has to be forwarded to the Educational Officer who shall make a preliminary investigation into the grounds of suspension. The 3rd respondent is the Educational Officer concerned. He conducted a preliminary investigation in terms of Rule 67(8)Chap. XIV A K.E.R. and passed Ext. P4 order permitting the Manager to keep the Headmaster under suspension beyond 15 days and until finalisation of the disciplinary action initiated against him. The petitioner, adversely affected by Ext. P4 order and the consequent order continuing his suspension, viz. Ext. P5,filed an appeal before the District Educational Officer, Vatakara, the 2nd respondent, in terms of Rule 7 Chap. XIV A K.E.R. The said Rule enables filing of an appeal to the next higher authority to whom the authority who accorded sanction for continuance of suspension is subordinate. The 3rd respondent is immediately subordinate to the 2nd respondent. Therefore, the 2nd respondent is the appellate authority in terms of Rule 79. That power is a statutory power conferred on the 2nd respondent. The 2nd respondent considered the appeal and set aside Ext. P4 order of the 3rd respondent permiting the Manager to continue the suspension beyond 15 days. That order is suo motu reviewed by the first respondent, the Deputy Director of Education. He has set aside Ext. P� order of the District Educational Officer in Ext. P7. Consequent on Ext. P7 a notice was issued by the District Educational Officer to hear the petitioner. Ext. P8 is that notice. It is in the above circumstances the petitioner has approached this Court challenging Exts. P7 & P8.

The petitioner contends that the first respondent, Deputy Director of Education does not have any power to suo motu review the orders contained in Ext. P� order passed by the statutory authority, unless such a power is statutorily conferred on the Deputy Director, merely because he is a higher authority. Thus the 1st respondent cannot modify or rescind or set aside Ext. P�, the petitioner contends. Therefore, Exts. P7 & P8 are bad.

It is contended by the counsel for the 4th respondent, Manager, that being a higher authority, Deputy Director can always set aside or modify the order of the District Educational Officer, on the basis of the provisions contained in Sub-rule (8A)of Rule 67 Chap. XIVA K.E.R. The said rule reads as follows:

Notwithstanding anything contained in sub-rule (8), the authority who permitted the suspension beyond 15 days or any higher authority may at any time during the pendency of such suspension, review such permission and if such authority is satisfied that the teacher under suspension has to be reinstated in service for reasons to be recorded in writing, cancel the permission already ordered under sub-rule (8)and direct the Manager to reinstate the teacher in service. On such order, the Manager shall reinstate the teacher forthwith failing which the provisions in sub-rule (8)will apply in such case.

4.1 have already examined the scope of sub-rule (8)above. When the Manager orders suspension of a teacher, he shall forward the suspension order to the Educational Officer with reasons in support of suspension. The Educational Officer is thereupon statutorily empowered to conduct an investigation and on the basis of such investigation if it is found that there was no valid ground for suspension, he can direct reinstatement of the teacher with effect from the date of suspension itself. On the other hand, if the Educational Officer finds that there are valid grounds for such suspension, he can grant permission to the Manager "to place the teacher under suspension beyond 15 days." This is the provision contained in sub-rule (8)Rule 67 Chapter XIV A K.E.R. It was therefore a new sub-rule was introduced as sub-rule (8A)in 1985, as extracted above. It is when the authority made mention of in sub-rule (8)permitted suspension beyond 15 days, either the said authority or any higher authority can, during the continuance of such suspension, review such suspension order. In other words, to exercise the powers conferred on a higher authority under sub-rule (8A)of Rule 67, the suspension order should have been in force and that suspension should have been continued beyond 15 days. In this case when the impugned order, Ext. P7 order, was issued by the Deputy Director, legally there was no suspension at all because the permission granted to keep the petitioner under suspension by the 3rd respondent had been set aside by the statutory appellate authority empowered in terms of Rule 79 Chap. XIV A K.E.R. Thus there is no legal order for continuance of the suspension. When the suspension is not thus legally continued, necessarily the power vested in sub-rule (8A)of Rule 67 cannot be invoked.

When the issue is seen in a different angle also the conclusion will be the same. There was an order passed in terms of Rule 67(8)permitting the continuance of the suspension of the petitioner, Ext. P4. That order had been appealed against by the petitioner, as provided in Rule 79 of the same Chapter in K.E.R. The appellate authority exercised its power and set aside Ext. P4. When the appellate authority has thus exercised the power and set it aside, there is no order under Rule 67(8), to be subjected to a review under sub-rule (8A)of Rule 67. Therefore, even if the Deputy Director had any power under sub-rule (8A)of Rule 67 as contended by the counsel for the Manager, there is no order for him to review at all, because the order which can be reviewed, even if the contention of the counsel is accepted in terms of sub-rule (8A)as it had already been set aside by the appellate authority exercising the power under Rule 79, by issuing Ext. P6. On that ground also, Ext. P7 cannot get sustenance from out of the provisions contained in Rule 67(8A)as contended by the counsel for the Manager or the Government Pleader. Naturally the irresistible conclusion is that Ext. P7 is without jurisdiction. It is contended by the Manager that the enquiry has been completed and the disciplinary action is almost at the fag end. A penalty of compulsory retirement had been proposed and prior sanction had been sought for from the Department. But sanction has been declined. Therefore, at this stage there arise no reason to quash Ext. P7.

I am unable to accept this contention because what is contended here is only the legality or otherwise of Ext. P7 order and the consequent notice Ext. PS. Whether the disciplinary action is being continued or whether it has been concluded is immaterial while considering the legality or otherwise of Ext. P7 because it is an order passed by an incompetent authority. Ext. P7 is quashed as incompetent and without jurisdiction. Automatically the consequence follows. The petitioner will be entitled to get the benefits.

The original petition is allowed. No costs.