Kerala High Court
Ashraf.M.A vs State Of Kerala on 30 January, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
WA No.93 of 2025 1 2025:KER:7344
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
WA NO. 93 OF 2025
AGAINST THE JUDGMENT DATED IN WP(C) NO.22330 OF 2024 OF HIGH
COURT OF KERALA
APPELLANT:
ASHRAF.M.A.,AGED 54 YEARS
MANAGER, MANATHATTU ASHRAF MEMORIAL EDUCATIONAL
A.M.L.P. SCHOOL, (MAME AMLP SCHOOL, THACHUNNI),
KARAKUNNU.P.O., MALAPPURAM - 676 123,
RESIDING AT MANATHATTU HOUSE, MALIKAMPEEDIKA,
ALANGAD.P.O.,
ALUVA, PIN - 683511
BY ADVS.
P.M.PAREETH
NAJEEB P.S
AISWARYA VENUGOPAL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR OF GENERAL EDUCATION
(HIGHER SECONDARY WING),
OFFICE OF THE GENERAL EDUCATION,
HOUSING BOARD BUILDINGS,
SANTHI NAGAR, THIRUVANANTHAPURAM, PIN - 695121
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3 THE DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
MALAPPURAM, PIN - 676121
4 THE ASSISTANT EDUCATIONAL OFFICER,
MANJERY, MANJERY.P.O.,
MALAPPURAM, PIN - 676121
ADDL. R5. SOUDATH C H,
HEADMISTRESS IN CHARGE, A.L.P. SCHOOL,
PAZHEDAM MANJERI, MALAPPURAM,
RESIDING AT PANICKERKUNNAM HOUSE,
THRIKKALANGODE - 676123
(IS IMPLEADED AS ADDL. R5 AS PER ORDER DATED 02.07.2024
IN I.A. 1/2024 IN WPC 22330/2024., PIN - 676123)
BY SRI.A.J.VARGHESE, SR.GP
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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"C.R."
A.MUHAMED MUSTAQUE & P.KRISHNA KUMAR, JJ
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WA No.93 of 2025
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Dated this the 30th day of January, 2025
JUDGMENT
A.Muhamed Mustaque.J
The learned counsel for the appellant vehemently argued in
regard to the competency of the Deputy Director of Education in
exercising the power under Chapter III of Rule 7 of the Kerala
Education Rules, 1959 (for short, KER, 1959), which refers to the
power of the Director to disqualify a Manager in the event of
mismanagement. In the KER, 1959 as originally stood as 'Director' is
defined under Rule 2 (4) as follows:-
"2(4) "Director" means the Director of Public Instruction, Kerala
or such Other Officer or Officers who may from time to time be
appointed by the Government to exercise all or any of the powers
of the Director of Public Instruction."
Which means the Government is competent to appoint any officer from
time to time as a Director invoking power under Rule 2(4) of the KER.
As per G.O.(P) No.52/80/G.Edn. dated 7.5.2018, the Government
appointed the Deputy Director of Education as the Director for the
purpose of Rule 7 of Chapter III of the KER. It is appropriate to refer
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to S.R.O.No.561/80, which reads thus:-
"S.R.O.No.561/80._ Under Clause (4) of rule 2 of Chapter I of the
Kerala Education Rules, 1959 and in supersession of the Notification
No.G.O.(P)657/61/Ed. dated the 8th November, 1961, published in
the Kerala Gazette dated the 21st November 1961, the Government
of Kerala hereby appoint the Deputy Directors (Education) to
exercise within their respective jurisdiction, the powers of the
Director of Public Instruction conferred upon him by rules 2, 6 and 7
of Chapter III, rules 3(a), 3(a)(a), 13(2), 15 and 23B of Chapter V,
rules 6, 12 and 21 of Chapter VI, rules 3 and 4(1) of Chapter VII,
rule 7 of Chapter VIII, rule (ix) of Chapter XIII, rules 64, 71, 73 of
Chapter XIV(A), rule 7 of Chapter XV and rule 2(2) of Chapter XXIII
of the said order."
2. In the year 2019, an amendment was brought in to
the Kerala Education Rules, 1959. Rule 2(4) of the KER, 1959 has been
substituted to define 'Director' as 'Director of General Education', which
means no other officer can exercise the power of Director. This Rule
came into force on 31.05.2019. Therefore, if the Government intends
to delegate the power of the Director of General Education, the
Government will have to rely on any other power vested under the Act
or Rules. Anyway, as seen from the Government Notification,
S.R.O.No.561/80, dated 7.3.1980, the Government appointed the
Deputy Directors (Education) to exercise the power of Director by
invoking the power referred under Rule 2(4) of the KER and not by
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exercising the power of delegation. That being the case, we find that in
this case, the order passed by the Deputy Director of General
Education, Malappuram, is without power.
3. In this matter, the Deputy Director of Education,
Malappuram, passed an order on 24.5.2024 disqualifying the Manager,
who is the appellant herein. Since we have noted that the Deputy
Director has no such power, as the power was taken away by the
amendment of Rules in the year 2019, he could not have passed such
an order. At best, he could have only forwarded the entire records to
the Director of General Education for action.
4. Having gone through the order, we are of the prima
facie view that it is on account of continuous disobedience of the
instructions given by the Educational Officer consequent upon the
direction issued by this Court he passed such an order. Whether this is
necessary or not, will have to be examined by the Director of General
Education. Considering the nature of the power of Deputy Director, we
are now of the view that the impugned order cannot stand the test of
law in as much as it was issued by the authority which has no power.
However, at the same time, we cannot remain oblivious to the facts
referred to therein subject to being controverted in an appropriate
manner by the appellant before the competent authority. Therefore,
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we are of the view that the entire records in this matter shall be
forwarded by the Deputy Director of Education, Malappuram to the
Director of General Education. The Director of General Education shall
consider whether the proceedings under Chapter III of Rule 7 shall be
initiated after complying with the formality or not. In view of the
peculiar circumstances, we are of the view that the disqualification
shall be treated as suspension for a period of three weeks, and an
appropriate decision shall be taken by the Director of General
Education after perusing the entire records. The Deputy Director of
Education, Malappuram, shall forward the entire records within one
week from today to the Director of General Education. Definitely,
before taking a final decision in the matter, the appellant and the 5th
respondent shall be given an opportunity of hearing.
The writ appeal is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
P.KRISHNA KUMAR, JUDGE
dlk/30.01.
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PETITIONER'S ANNEXURES
ANNEXURE A1 A TRUE PHOTOCOPY OF THE JUDGMENT DATED 21-11-
2024 IN W.P.(C) NO. 34850/2018
ANNEXURE A2 A TRUE PHOTOCOPY OF THE JUDGMENT DATED 12-12-
ANNEXURE A3 A TRUE PHOTOCOPY OF THE INTERIM ORDER DATED
06-09-2024 IN CRL. M.A. NO. 1/2024 IN CRL.
ANNEXURE A4 A TRUE PHOTOCOPY OF THE INTERIM ORDER DATED
09-12-2024 IN CRL. M.A. NO. 1/2024 IN CRL.
