T V KURIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The crucial question to be decided in this case is as to (1) the power of the Manager of an aided school to declare the probation of a teacher with retrospective effect, taking into account the broken periods of duty (2) whether the probation once declared can be revised by the Manager. It is seen from S.R.O.No. 400/78 issued in exercise of the power under Section 36 of the Kerala Education Act, 1958 that an explanation permitting the counting of broken spells was introduced for the first time, which reads as follows:

(2.) It can be seen from the substituted explanation that the Manager is now duty bound to declare the probation of the teachers concerned, reckoning the broken periods of duty within a continuous period of two years for calculating the one year duty period. The explanation obliges the Manager to declare the probation with retrospective effect.

(3.) Under Rule 61 of Chap. XIV KER the Educational Officer concerned has been conferred the power to fix the increment of the teacher concerned in case, the Manager fails to do so. It is the contention of the Learned Government Pleader that the Manager having declared the probation of the petitioner on 31.5.77 and the same having been entered in the service book, there is no provision enabling the Manager to revise the orders thus passed by him, in the matter of declaration of probation. I am afraid the contention cannot be appreciated. For one thing it has to be seen that the enabling provision for the Manager to take into account all the broken periods of service was introduced only on 31.3.1978. The same is issued under Section 36 of the Kerala Education Act which enables the Government to make rules retrospectively for the purpose of carrying into effect the provisions of the Act. The Government Order was issued only on 31.3.78 before which the Manager had already declared probation and the rule was further amended only in 1986 which made it obligatory for the Manager to take into account the broken spells and declare the probation with retrospective effect. In such circumstances, for the only reason that there is no enabling provision permitting the Manager to grant the benefits to an otherwise eligible teacher, the benefits cannot be denied to the teacher. Law does not depict and cannot show such helplessness.