MOHANAN Vs. EXECUTIVE OFFICER

JUDGEMENT

(1.) 1. The 1st respondent-Executive Officer of Kalloorkad panchayat in his capacity as Manager appointed the petitioner as a Part-time sanskrit Teacher in the Panchayat Upper Primary School , Vellaramkallu. The appointment was made after calling for a list of qualified candidates from the Town Employment exchange, Muvattupuzha. The first respondent forwarded Ext. P1 order of appointment along with Ext. R1 (a) covering letter promising that the decision of the Panchayat approving the appointment would be forwarded later. The Taluk panchayat Officer, who functions as the Panchayat, refused to approve the appointment, since he suspected some foul-play in the appointment. This is evident from Ext. R1 (b ). He wrote to the third respondent-Assistant Educational officer, requesting him not to approve the appointment, since the first respondent did not comply with the requirements of R. 3 (2) of the Kerala panchayat (Spread of Education ). Rules. 1964. He also reported the matter to the Deputy Director of Panchayats, who conducted an enquiry into the circumstances under which the appointment was made. He sent Ext. R1 (d) letter to the first respondent and the Taluk Panchayat Officer, requesting them to cancel ext P1 appointment of the petitioner. However, the Assistant Educational officer approved Ext. P2 appointment in Ext. P3 endorsement dated 7-1-1987 pursuant to Ext. R1 (d) communication from the Deputy Director of Panchayats, the first respondent issued Ext. P4 order, cancelling the appointment of the petitioner. That order was communicated to the Headmaster on the same day as is evident from Ext. R1 (e ). In Ext. R1 (f) dated 10-3-1987, the Headmaster reported that Ext. P4 order was communicated to the petitioner on 17-2-1987, but the cancellation of appointment and consequent termination of service could not be given effect to in view of the provisions of Chap. 14-A of the Kerala Education rules. Petitioner challenges Ext. P4 order. The main grounds which he urged in support of his submission are (a) that Ext. P4 was issued without notice to him, and (b) that the Manager of an Aided School cannot terminate the service of a teacher whose service was approved, without the permission of the educational Officer concerned.

(2.) THIS case discloses an unseemly conflict between two public authorities functioning under two different statutes. The first respondent may, perhaps, be right in his submission that the Manager of a panchayat School can effect appointment of a teacher only subject to the approval of the Panchayat. It may, perhaps, be that the appointment will not be effective, unless it is approved by the Panchayat before it is submitted for approval by the Educational Officer under R. 8 of Chap. 14-A of the Kerala education Rules. Such approval need only be by a subsequent ratification is also quite a possible view of R. 2 (3) of the Kerala Panchayat (Spread of education) Rules. It is beyond dispute, that there shall be an approval either prior or subsequent to the appointment. The first respondent maintains that there was no such approval by the Panchayat. According to him, approval by the educational Officer under R. 8 of Chap. 14-A of the Kerala Education Rules may not have the effect of validating the order which was illegal and invalid for non-compliance with R. 2 (3) of the Kerala Panchayat (Spread of Education) Rules. He, therefore, submits that the first respondent was competent to issue Ext. P4 order. According to him issue of notice to the petitioner will only be an empty formality, since the invalidity of the order of appointment made without approval of the Panchayat was incapable of ratification.

(3.) IF on the other hand, the respondents want to seek cancellation of Ext. PI order issued by the erstwhile Manager of the School, it is for the first respondent to give notice to the petitioner of the proposal to cancel his appointment and give him an opportunity of defending that order. Even after cancelling Ext. P1 order, the Panchayat Department may have to seek the permission of the Educational Officer to relieve the teacher under R. 48 of chap. 14-A of the Kerala Education Rules. Since Ext. P4 order was issued without notice to the petitioner and without the concurrence of the Educational officer, the only course open for me is to set aside that order. That may not however be the end of the matter. IF the Panchayat Department decides to persist in their attempt to cancel Ext. P1 appointment. Ext. P4 read along with exts. R1 (a) to Ext. R1 (d) may be treated as notice to the petitioner proposing cancellation of his appointment due to non-compliance with R. 2 (3) of the Kerala panchayat (Spread of Education) Rules. Petitioner may be required to submit his explanations against the proposal for cancellation of his appointment within a period not exceeding two weeks. The first respondent, or the Taluk Panchayat officer, holding charge of the Panchayat, may, thereafter, conduct an enquiry and pass appropriate orders, after hearing the petitioner in defence. Any order of cancellation of the appointment of the petitioner will be given effect to only subject to the provisions contained in Chap. 14-A of the Kerala Education rules. It may be relevant to note that R. 2 of Kerala Panchayats (Spread of education) Rules provides, that "a Panchayat may, subject to the provisions of the kerala Education Act, 1958 (6 of 1958) and the rules made thereunder, establish and maintain schools for providing facilities for the spread of education within the Panchayat area". Panchayat as a Corporate Educational Agency and the executive Officer as Manager of the Aided School have to function subject to the provisions of the Education Act and the Rules and they cannot over-reach those provisions. Any order of cancellation of appointment of the petitioner and consequent termination of his service will, therefore, be effective only subject to the provisions of the Kerala Education Rules. That does not however mean that the Assistant Educational Officer can unreasonably refuse a delay permission necessary under R. 48 of Chap. 14-A of the Education Rules for the proposal to relieve the petitioner. The Educational Officer will pass orders within two weeks of receipt of any proposal to relieve the teacher, if the Manager or the Educational Agency decides to cancel the appointment for good and sufficient reasons. The Original Petition is allowed as above. There will, however, be no order as to costs. . .