Anilkumar R. Vs. State of Kerala and ors. - Court Judgment

Excerpt:
- labour & services appointment: [v.k. bali, ch, p.r. raman & s. siri jagan, jj] post of pharmacist in homeopathy subordinate service - special rules for kerala homeopathy subordinate service rules, 1999 introducing new qualifications vacancy arising subsequent to coming into force of the said special rules held, vacancies have to be filled up only in accordance with special rules, 1999. unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by special rules. state government has the power to frame or amend the special rules with or without retrospective effect. mohanan k.r. & anr vs director of homeopathy, kerala homeopathy services, trivandrum & ors. - 4. before parting with the judgment, i wanted to address certain disgusting circumstances that several employees like the petitioner have been facing. greater efficiency in the use of adjudication resources may be achieved by making management and administration more efficiently and by making legal process more efficient and acceptable. in the present scenario of never ending adjudication proceedings under the act and rules, by different tier of authorities, it is high time to think about formation of an appropriate tribunal for exclusively dealing with such matters and necessary amendments in the statutes for that purpose as well as reduction of appellate and revisional forums. 14. in the circumstances, in order to curtail the number of forums the government can think of making provision for revision before the high court like many other statutes which provide the high court as a forum of revision.harun-ul-rashid, j.1. the writ petitioner is a full time menial appointed under the 5th respondent with effect from 1/11/2005 against a sanctioned vacancy. petitioner seeks to quash exts.pl to p4 orders to the extent the said orders refused the approval of appointment. he also seeks for a direction to the respondents to approve the appointment of the petitioner as full time menial and for consequential benefits including arrears of salary. exts.pl to p4 are the orders respectively issued by the statutory authorities rejecting the proposal for approval of appointment of the petitioner. the reasons stated for rejecting the proposal for approval are that as per g.o.(p) 178/02 gen. edn. dated 28/6/2002 the government ordered that the appointment in newly opened/upgraded schools must be from protected teachers, since the school is a newly upgraded one, the proposal for approval was rejected for non-compliance with the terms of g.o.(p) no. 178/02 gen. edn. dated 28/56/2002.2. in the counter affidavit filed by the 1st respondent it is contended that the management is bound to appoint a protected hand before making any new appointments. the government order also stipulates that the deputy director of education shall make available district-wise and category-wise list of protected teachers on the basis of total length of service to be appointed as teachers. let me assume that there is similar order in respect of non-teaching staff. even then the manager of respective schools may not be in a position to know whether there are protected hands available for appointment. that is the reason why in the order dated 28/6/2002 the deputy director of education concerned is entrusted with the duty to make available district-wise and category-wise list of protected teachers to each and very managers. the order is so clear that there is necessity to appoint protected hands. the managers are not in a position to appoint protected hands unless and until they are made available the category-wise and district-wise list of protected hands. it is the case of the 1st respondent that the list of protected hands has been communicated to the manager as per letter no. a5.6278/06 dated 27/1/2007 of the district educational officer, wandoor and that no request is seen made by the manager to the deputy director of education to allot a protected full time menial to the school at the time of appointment of the petitioner. i find that the reason stated by the 1 st respondent cannot stand. the vacancy of full lime menial arose on 15/7/2005. the manager appointed the petitioner as full time menial on 1/11/2005. admittedly, the manager has no information about the availability of any protected hand in the district. the authority did not care to make available the district-wise and category-wise list of protected full time menials to the manager, though they are duty bound to do so.3. in these circumstances, this court finds that the appointment of the petitioner as full time menial is in order. no valid reasons are made out by the educational authorities for not approving the appointment of the petitioner.4. before parting with the judgment, i wanted to address certain disgusting circumstances that several employees like the petitioner have been facing. the case of the petitioner is not a solitary incident. the petitioner was appointed as full time menial with effect from 1/11/2005 against the sanctioned vacancy. the approval was delayed for the last 3 1/2 years. the 1 st order was passed by the district educational officer on 2/3/2006 rejecting the proposal for approval. an appeal was preferred before the deputy director (edn.), which was dismissed on 15/6/2006. a revision petition was tiled before the director of public instructions against the order passed by the deputy director (edn.). the director of public instruction confirmed the order of the appellate authority by order dated 7/5/2007. that order was challenged in 2nd revision before the government. the government confirmed the order passed by the director of public instruction. the order passed by the government in 2nd revision is challenged in this writ petition filed under article 226 of the constitution of india. thus, this court is the 5th forum to examine the legality of the appointment of full time menial. the petitioner, one among many teaching and non-teaching staff, is filing appeals and revisions before various forums to ventilate their grievances. the kerala education act and rules (hereinafter 'act and rules') prescribe four forums for considering the proposal for approval, in many cases the teaching and non-teaching staff of aided schools and managers are compelled to approach forums after forums and in most of the cases finality is arrived at by the decisions taken by this court in writ petitions and writ appeals in exercise of the powers under article 226 of the constitution of india. while the matter is pending before the deo, dde, dpi and government in many cases writ petitions are also filed by the aggrieved parties for speedy disposal of the appeals or revisions, as the case may be. before various forums the aggrieved persons are compelled to engage lawyers and they have to bear heavy expenses for meeting the fees and other legal expenses, to most of them it is un-affordable.5. the time limit is fixed under the rules within which the approval or rejection of approval shall be made. rule 8(1) of chapter xiv-a k.e.r. stipulates fifteen days' time to forward the proposal for approval. rule 8(2) mandates that the educational officer to grant approval as expeditiously as possible at any rate not later than 30 days from the date of receipt of the appointment order and other documents mentioned in sub-rule (1). rule 8(6) prescribes the time limit of 15 days for filing an appeal. similarly rule 64 of chapter xiv a and rule 12e of chapter xxiii prescribe the time limit for exercising the powers of appeal.6. similar provisions are contained in rules 34 and 38 of chapter xiv a of the k.e.r. rule 34 enjoins preparation of seniority list of teachers. rule 38 empowers the educational authority to finalise and approve the list. proviso to rule 38(2) mandates that no appeal shall be entertained after the expiry of the period of one month from the date of receipt of a copy of the order. the legislatures have fixed the time limit consciously because the delay will affect the working of the staff and teachers and that may result in continuance of the incumbents for long time even without salary. though no time limit is prescribed for the exercise of revisional power, the settled legal position is that it is always open to the revisional authorities not to exercise jurisdiction on the ground of laches or undue delay or on other similar grounds. the authorities are duty bound to pass orders only after affording a reasonable opportunity to the affected persons. reasonable opportunity is not a formalitsy, but the opportunity afforded should be effective. parties to the dispute are entitled to be represented by an advocate. in majority of the cases the parties engaged lawyers to present their cases.7. appeals are also provided under rule 80 of chapter xiv a ker against the order imposing penalty. rule 82 fixed the period of two months for filing the appeal. revision under rule 92 will he against the order passed under rule 74 imposing penalty of compulsory retirement, removal or dismissal from service.8. though time limit is prescribed for passing orders as stated above, 1 find that in most of the cases the said mandate was not followed by the officers. the reason may be due to want of time, pressure of work and other attendant duties etc. in the present case, going by ext.pi to p4 orders, the time limit for passing orders of approval of appointment has not been complied with.9. the long drawn process, number of forums provided for appeals and revisions under the rules, the adjudicating process and litigation in forums and courts are causing severe hardship and mental agony to a class of people namely, managers, teachers and non-teaching staff. since the adjudication of rights of the parties are involved, the procedure before the different forums and the final disposal demands more time and inordinate delay. purpose behind providing different forums itself is intended as a loadable object. but in practice 1 find that the number of forums provided for adjudication are not only causing agony to the aggrieved persons but also causing severe difficulties in the smooth functioning of the offices of the aeo, deo, dde, dpi and the government. the routine work of the department and officers are suffering due to the adjudicatory process in the matter of approval, disciplinary proceedings and other related questions. the resolution method has to be tailed and designed keeping the requirements of the system in mind. system must be tested, tuned and transformed to redeem its tryst with the people to deliver justice. greater efficiency in the use of adjudication resources may be achieved by making management and administration more efficiently and by making legal process more efficient and acceptable. one of the methods always advisable is the method of reducing the number of forums. the practice of not entertaining more than one appeal and more than one revision will certainly reduce the burden of the education department and the burden of the affected persons. the delay in disposal of matters pending before the various authorities is certainly affecting the fairness and efficiency of the system which in turn weaken the rule of law and the ability to enforce human rights.10. in fact the procedure prescribed for ventilating the grievances of a class of persons under the act and rules is intended to ensure fairness to the said class who have no sufficient means to engage a pleader to defend their cases. but in fact the procedure has become complicated. it is pointed out that in every year thousands of cases are being adjudicated before the appellate and revisional authorities. original appellate and revisional authorities spent most of their time for hearing cases relating to the disputes regarding the approval of appointment or disciplinary proceedings etc. the processional law is not to be a tyrant, but shall be an aid to justice. procedural prescriptions are handmade and not a lubricant in a resistant in the administration of justice. these are all mattes which need early disposal and call for prompt relief to the aggrieved persons. heavy expenditure, delay and arrears have given rise to disillusionment with our system.11. in view of the constitutional remedy available to civil service under article 226 of the constitution of india for the purpose of enforcement of the rights available to them under the rules regulating the conditions of service, large number of writ petitions are filed and are pending in this court. whatever may be the reasons, large number of persons resort to the constitutional remedies. the fact remains that number of cases instituted by the civil servants in the high court are increasing day by day. since there is inordinate delay m disposal of cases pending before the various statutory authorities under the act and rules and connected writ petitions before the high court, necessity of establishing a tribunal for adjudicating service disputes and all other disputes under the ker have become a dire need. the establishment of a tribunal exclusively to deal with the aforesaid matters leads to speedy settlement of disputes or reduction of the expenses in the conduct of cases. the constitution of a tribunal vested with the jurisdictional power to decide all kinds of appeals in respect of the grievances relating to recruitment, conditions of service and all other disputes under the act and rules against the orders passed by the 1 st authority, is necessary. by establishing such a forum, various departmental authorities would also be relieved of all the burden of disposal of departmental appeals and revisions and they can devote time for betterment, upgradation and for systematic working to improve the efficiency of the system. moreover, such a step may avoid dissipated time and energy.12. the law is to develop and not to stagnate. the present law governing the field does not cover all the situations that may arise. the law must respond and be responsible to be felt and discernible compulsions of circumstances that would be equitable, fair and just. the act and rules made thereunder to the extent it provides for the hierarchy of authorities for considering appeals and revision is a law of the past and does not tit in the present context due to the rise in the number of disputes and the delay in disposal arising from pressure of work. the law should keep pace with the changing socio-economic norms. if the law fails to respond to the needs of the changing society then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of growth. therefore, law must constantly be on the move adopting itself to the fast changing society and not lag behind. it must shake off the inhibiting legacy of its colonial past and assume a dynamic role in the process of social transformation. needless to say that the law should move forward in tune with the changed ideas and ideologies of the society. in the present scenario of never ending adjudication proceedings under the act and rules, by different tier of authorities, it is high time to think about formation of an appropriate tribunal for exclusively dealing with such matters and necessary amendments in the statutes for that purpose as well as reduction of appellate and revisional forums.13. the constitution of a tribunal for adjudicating the dispute minimize the procedure now followed and certainly ensure fair deal to the teaching and non-teaching staff, majority of whom cannot afford to engage lawyers to defend their case. as stated in the preceding paragraphs, almost every matters end in writ petitions under article 226 of the constitution of india to attain finality, though in addition to the first authority, three more forums are provided under the act and rules. too many alternative remedies to an aggrieved person, made available before various forums on the administrative side is also not to the advantage of such aggrieved. on the other hand, it prevents him/her from approaching high court under article 226 of the constitution, as he/she has to wait till the alternative remedies are exhausted.14. in the circumstances, in order to curtail the number of forums the government can think of making provision for revision before the high court like many other statutes which provide the high court as a forum of revision. the tribunal's order can be challenged before the high court in revision on questions of law, thus the scope of revision can be narrowed and restricted.15. the need for statutory reform is necessitated due to the inordinate delay, heavy expenses and agony and hardship to which the aggrieved persons are put to. a suggestion for a law reform is pointed out for inviting the attention of the government. in the interest of all concerned, the director of public instruction shall make a detailed study report and submit to the government with facts and figures along with his recommendation for reforms within a period of three months from today. the government, on receipt of such report, may make suitable amendments to the act and rules.16. in the result, exts.pl to p4 orders are set aside. there will be a direction to the 4th respondent to approve the appointment of the petitioner within a period of two months from the date of receipt of a copy of this judgment and consequential benefits including arrears of salary shall be disbursed to him within a period of three months thereafter.writ petition is allowed.the registry shall send copy of this judgment to the chief secretary to government, the secretary to government, general education department and to the director of public instruction, thiruvananthapuram, immediately.