HARIDASAN K Vs. DEPUTY DIRECTOR OF EDUCATION

JUDGEMENT

(1.) The petitioner is a High School Assistant in P.M.S.A. Memorial Aided High School, Chemmankadavu, which is an aided school. Earlier, in connection with a forest case registered as O.R. No. 9/2011, the petitioner was arrested and detained from 13-11-2013 to 20-11-2013. Subsequently, he was granted bail as per Ext. P-1 order by the Court of Sessions, Kozhikkode. Since, the period of detention exceeded 48 hours by virtue of operation of the provisions under Rule 67(3) of Chapter XIV A of the Kerala Education Rules (for short 'the KER'), the petitioner was under deemed suspension. The fact that the petitioner was under deemed suspension on account of he is being detained for a period in excess of 48 hours was brought to the notice of the competent educational authority by the Manager, the 2nd respondent. As per Ext. P-3 dated 25-11-2013, the Manager placed the petitioner under suspension with effect from 13-11-2013 owing to his detention for a period in excess of 48 hours. In terms of the provisions under Rule 67(3) of Chapter XIV A of the KER the said order was forwarded to the competent educational authority. As per Ext. P-4, the third respondent granted sanction to the second respondent to continue with the suspension of the petitioner beyond 15 days. Thereupon, the petitioner submitted Ext. P-5 styling it as an appeal under Rule 78 of Chapter XIV A of the KER. Ext. P-5 carries the request of the petitioner to revoke the suspension and to modify it as an order of suspension from 13-11-2013 to 20-11-2013. The captioned writ petition has been filed as no action was taken pursuant to Ext. P-5 appeal, mainly with a prayer to quash Exts. P-3 and P-4 and issue a writ of mandamus commanding the respondents to consider and pass appropriate orders on Ext. P-5.

(2.) I have heard the learned senior counsel appearing for the petitioner and also the learned Government Pleader. Evidently, Rule 78 of Chapter XIV A of the KER has been misquoted in Ext. P-5 appeal. In fact, an appeal is provided against an order of suspension under Rule 79 of Chapter XIV A, KER and therefore, a mis-quoting of the provision will not disempower the competent authority from entertaining the same. Normally, in such circumstances, taking into account the fact that the concerned aggrieved person has already availed the appellate remedy this Court would relegate the petitioner to pursue with the same. However, in this case a legal question of importance is involved and a decision on the said question might make consideration of an appeal against Ext. P-3 order absolutely unnecessary and unwarranted. The question is what is the impact of an aided school teacher eligible to continue in service by virtue of application of Rule 62 of Chapter XIV A, KER, remaining under suspension on the date of superannuation or thereafter getting suspended before the closing day of the academic year concerned during which he/she attained the age of superannuation. I will deal with said question a little later. The contention of the petitioner is that since he could be under deemed suspension by operation of the provisions under Rule 67(3) of Chapter XIV A of the KER only from 13-11-2013 to 20-11-2013 the Manager could not have and should not have passed Ext. P-3 order on 25-11-2013 placing him under suspension with retrospective effect from 13-11-2013 and then sought for extension of the period of suspension. Relying on the decision of this Court in Koran v. Assistant Educational Officer,1975 KHC 113, it is contended that the suspension by virtue of operation of the deemed provision under Rule 67(3) of Chapter XIV A of the KER could continue only till the expiry of the period of detention viz., in this case from 13-11-2013 to 20-11-2013. In other words, it is contended that the suspension ceases the very moment he is released from the custody. Therefore, it is contended that Exts. P-3 and P-4 are unsustainable. There cannot be any doubt with respect to the position that the provisions under Rule 67(3) would come into operation from the moment a teacher detained in custody in a civil or criminal or any other proceedings remains in such custody for a period exceeding 48 hours. It is only profitable to advert to the said provision for a proper consideration of the issues involved in this case. Rule 67(3) is reads thus:

(3.) The learned Government Pleader advanced bi-fold contentions. Firstly, contentions are raised relying on Rule 60(c) of Part I of the Kerala Service Rules (for short 'KSR'). It is contended that going by the admitted date of superannuation and the indisputable position that he was under suspension on that day the petitioner should have been treated to have retired from service on the actual date of superannuation in terms of Rule 60(c) of Part I, KSR. This, essentially, related to the legal question mentioned hereinbefore and therefore, I proceed to consider the same and the necessity to consider other contentions would arise only if it is negatived.