SUBEESH RONSON Vs. DIRECTOR OF PUBLIC INSTRUCTIONS

JUDGEMENT

(1.) A succinct narration of the facts that constrained the petitioner to submit Ext. P2 representation is required for considering this writ petition that carries a seemingly innocuous prayer. On coming to know that there are vacancies under the 4th respondent for appointment to the post of Peon, the petitioner claims to have submitted Ext. P1 application seeking consideration of his candidature for appointment. The contention of the petitioner is that thereupon, the 4th respondent offered him appointment on payment of Rs.3,00,000/- as donation. According to the petitioner, on 27/10/2011, he handed over the said amount in the presence of two witnesses believing the promises held out by the 4th respondent. The case of the petitioner is that despite handing over such an amount, he has not been given appointment so far as promised and in the circumstances, he submitted Ext. P2 representation before the first respondent carrying the request for interference in the matter to create a conducive situation for his appointment. It is the non - feasance on the part of the first respondent despite the receipt of Ext. P2 that constrained the petitioner to file the captioned writ petition. In Ext. P2, the petitioner stated that he had handed over an amount of Rs.3,00,000/- through One N. K. Sunny for handing over it to the manager of the 4th respondent. It is further stated therein that despite the receipt of such an amount, so far, he was not given appointment and on being contacted over telephone, the 4th respondent promised to give him an appointment. It is also stated in Ext. P2 that the petitioner had raised the aforesaid amount by way of pledging ornaments belonging to his wife. The prayer in this writ petition is for issuance of a writ of mandamus commanding the first respondent to consider and dispose of Ext. P2 representation filed by the petitioner within such time fixed by this Court. Therefore, the question to be considered is whether a writ of mandamus could be issued at the instance of a person who allegedly gave illegal gratification for earning appointment in a school, aided or recognised, against the Director of Public Instruction to act upon such a representation to make the manager of the school who allegedly received the same to give appointment as allegedly promised

(2.) I have heard the learned counsel for the petitioner and also the learned Government Pleader. A perusal of the scheme of Kerala Education Rules would reveal that in the matter of appointments, the power is vested with the manager of the concerned educational agency. R.9 of Chapter III, KER makes it clear that the Manager of an aided school is having the power coupled with a duty to provide the staff required for the school concerned. In the decision in Manager M. M. H. S. v. Deputy Director of Education, 1994 KHC 82 : 1994 (1) KLT 321 : 1993 (2) KLJ 1103 : ILR 1994 (1) Ker. 764 it was held by this Court that when the educational authorities came to the conclusion that a particular number of teachers are required to impart proper education to the pupils in accordance with the rules for staff fixation the manager could not be allowed to take a stand that appointment is his prerogative and that he could not be compelled to make appointment. Giving such a right to the manager would certainly adversely affect the educational prospects of the students and the academic work of the school. Therefore, it is the bounden duty of the manager to provide the staff required for the school and when the Government had taken upon itself the liability to pay the salary of all the teachers in aided school, it is the duty of the manager to fill up all the posts in accordance with the orders of educational authorities fixing the staff strength, going by the said decision. This position is, in fact, incontrovertible. R.1 Chapter XIV. A of KER makes it obligatory on the part of the managers of private schools to fill up the vacancies whenever a vacancy occurs in an aided school after following the directions issued by the Government from time to time. The directions in regard to the qualifications have been prescribed in the KER. In terms of R.1A of Chapter XXIV, KER the provisions contained in R.12, R.12B, R.12C, R.12D, R.12E and R.15 in Chapter XXIII for the fixation of strength of the teaching staff in aided school shall mutatis mutandis apply to the fixation of strength of non - teaching staff in aided schools. The qualifications for appointment for the non - teaching staff are provided under R.2 of Chapter XXIV - A. A scanning of the provisions in the KER would undoubtedly make it clear that the power to effect appointment of teaching and non - teaching staff in aided schools vests with the manager of the school. Chapter XIV - AA of KER provides the conditions of service of teaching and non - teaching staff of recognised unaided schools. At any rate, there is nothing in the KER which would empower an educational authority to interfere with a recruitment to the post of teaching or non - teaching staff on the ground that the management promised to give an appointment to a person and not keeping the promise and therefore, to compel to honour the promise. If any appointment is made or not made in accordance with the provisions of the Kerala Education Act or Rules certainly only at the appropriate stage an interference by the competent educational authority is possible and permissible in accordance with the relevant provisions under the KER. As per the scheme of KER the role of the educational authorities in the matter begins when an order of appointment is forwarded for approval or if any vacancy is kept unfilled unreasonably for long in such a manner affecting the academic work of the school. At the same time, no provision has been brought to my notice by the learned counsel for the petitioner empowering the educational authorities to interfere with a matter carrying grievance regarding failure to offer an appointment despite the receipt of donation from a prospective applicant. The educational authorities are not vested with the power of conducting an investigation into such an allegation made by a person who is neither a teaching staff nor a non - teaching staff in an educational institution. If the petitioner had given any amount believing a promise given by the management, if at all it was given, the question is whether it is a donation for getting an illegal appointment or is it a gratification. I do not think it necessary or proper to go into those aspects and details in view of the fact that the petitioner has already lodged Ext. P3 complaint before the Judicial First Class Magistrate, Thirur. If it is a bribe money whether the petitioner is also to be proceeded with I am only thinking aloud. Evidently, the case of the petitioner is that he was made to give an amount of Rs.3,00,000/- for getting appointment as Peon in one of the institutions under the fourth respondent. Whether the concerned institution is a recognised one or an aided educational institution, is not discernible from the pleadings in this writ petition. At any rate, the grievance of the petitioner that he has not received any appointment order despite handing over an amount of Rs.3,00,000/- to the fourth respondent cannot be a matter which could be subjected to enquiry by the first respondent and the first respondent also cannot issue any direction in such circumstances to the second respondent to offer appointment to the petitioner. No provision empowering the first respondent to look into such aspects and to issue any such consequential direction has been brought to my notice. If the petitioner is having any grievance regarding the action on the part of the fourth respondent in accepting money after making such a promise his remedy lies elsewhere and he will have to resort to appropriate proceedings, in accordance with law. At any rate, such an averment cannot, certainly be a foundation for issuance of a writ of mandamus to consider and dispose of a representation carrying a request to the first respondent to take appropriate action for appointment of the petitioner. In such circumstances, this writ petition is liable to fail. Resultantly, the writ petition is dismissed.