The petitioner was appointed as H.S.A. (Malayalam) by the fifth respondent Manager by Ext.P1 appointment order dated 18.6.2004 in M.E.S. Higher Secondary School, Sreenarayanapuram, against an additional division vacancy sanctioned for the academic year 2004- 2005. At the time of appointment, the petitioner possessed a B.A. degree in Economics and a B.Ed. degree in Malayalam awarded by the University of Calicut. The District Educational Officer, Irinjalakkuda declined to approve the said appointment on the ground that the vacancy should have been filled up by appointing a protected teacher. The appeal filed by the Manager before the Deputy Director of Education, Thrissur was rejected. The revision petition filed by the Manager before the Director of Public Instruction was also rejected by order passed on 23.2.2008. The Manager as well as the petitioner thereupon filed revision petitions before the Government.
2. The petitioner, and another teacher whose appointment as HSA (Malayalam) in the very same school with effect from 25.7.2005 had not been approved, thereafter filed W.P.(C)No.1666 of 2009 in this Court wherein they challenged the orders passed by the authorities declining to approve their appointments and also sought a direction to the State of Kerala to consider and pass orders on the revision petitions filed by them. A learned single Judge of this Court disposed of W.P.(C) No.1666 of 2009 by judgment delivered on 15.1.2009 with a direction to the State of Kerala to consider and pass orders on the revision petitions filed by the Manager/teachers, in a time bound manner. Pursuant thereto, the Government heard the parties and issued G.O.(MS)No.249/09/G.Edn. dated 17.12.2009. By that order, the Government directed the District Educational Officer, Irinjalakkuda to approve the appointment of the petitioner with effect from 1.2.2006, if the appointment is otherwise in order. Thereupon, by order passed on 12.3.2010, the District Educational Officer, Irinjalakkuda, approved the petitioner's appointment as H.S.A. (Malayalam) with effect from 1.2.2006.
3. Two days thereafter, the petitioner filed Ext.P2 representation dated 15.3.2010 before the Honourable Minister for Education requesting him to grant approval with effect from 18.6.2004, the date of the appointment order. While that representation was pending, the P.A. to District Educational Officer, Irinjalakkuda objected to payment of salary and allowances to the petitioner on the ground that she is not qualified to be appointed as H.S.A. (Malayalam). He also withheld payment of salary and allowances to the petitioner with effect from August 2011. The objection raised by him was communicated to the Headmaster of the school by Ext.P3 endorsement on the petitioner's salary bill for the month of August 2011. The petitioner thereupon submitted a representation dated 5.9.2011 before the Secretary to Government through the District Educational Officer who forwarded it to the Government along with Ext.P4 letter dated 22.9.2011. By Ext.P5 letter dated 20.9.2012, the Government informed the District Educational Officer/Director of Public Instruction that having regard to the terms of G.O.(P)No.165/08/G.Edn. dated 19.9.2008, the petitioner is eligible to be appointed as H.S.A. (Malayalam). The Government also directed the District Educational Officer to lift the objection raised by him for payment of salary and allowances to the petitioner. The Deputy Director of Education, Thrissur thereupon sought a clarification from the Government and the Government in turn sent Ext.P6 letter dated 31.5.2014 wherein it took the stand that the appointment of the petitioner is irregular. The Government accordingly cancelled Ext.P5. Ext.P3 endorsement on the petitioner's salary bill for August 2011 and Ext.P6 letter are under challenge in this writ petition wherein the petitioner seeks the following reliefs:
1. A writ of certiorari or other appropriate writ direction or order calling for the records leading to Ext.P3 and P6 and quash the same to the extent the said documents deny salary to the petitioner from August, 2011 on the ground that her appointment was irregular.
2. A declaration to the effect that the action of the respondents in having denied salary to the petitioner on the ground that she was not qualified for the post is illegal and arbitrary in view of the fact that having acquiesced in the appointment of the petitioner for 10 years the appointment cannot be invalidated after several years.
3. A direction to the first and 4th respondent to disburse arrears of salary of the petitioner for the period from 1.8.2011 and to continue to pay the same within a time frame.
4. A direction to the first respondent to approve the appointment of the petitioner with effect from 18.6.2004 as done in the case of other teachers of the school.
4. The main ground raised in the instant writ petition is that as the petitioner is working in the school for the past 10 years and her appointment was also approved with effect from 1.2.2006, the respondents cannot invalidate her appointment on the ground that she is not qualified to be appointed as HSA (Malayalam). Relying on the decision of a learned single Judge of this Court in Rajalakshmi Vs. State of Kerala (1992 (1) KLT 458) it is contended that an appointment cannot be invalidated after several years have passed, on the ground that the appointee is not qualified. It is also contended that the petitioner has, after Ext.P3 objection was raised, passed the B.A.degree examination in Malayalm conducted by the Calicut University in April 2013 under the distance education programme and therefore, it cannot now be said that she is not qualified to be appointed as HSA (Malayalam). Reliance is placed on Ext.P9 certificate issued by the University of Calicut in support of the said contention.
5. I heard Sri.P.M.Pareeth, learned counsel appearing for the petitioner. Learned counsel appearing for the petitioner contended that without any objection regarding the qualifications, the appointment of the petitioner was approved, that pursuant to her appointment as HSA (Malayalam) by Ext.P1 order dated 18.6.2004 the petitioner is continuing in service, that she has also successfully completed the B.A.degree course in Malayalam in April, 2013 and was awarded B.A.degree in Malayalam Language & Literature by the University of Calicut and therefore, at this distance of time no objection can be taken to the petitioner's appointment as HSA (Malayalam) and her service terminated. Relying on the decision of this Court in Rajalakshmi Vs. State of Kerala (1992 (1) KLT 458) and the decisions of the Apex Court in Nayagarh Co-operative Central Bank Ltd. and another Vs. Narayan Rath and another [1977 (3) SCC 576], H.C.Putasway and Others Vs. Honourable Chief Justice of Karnataka High Court, Bangalore and Others [AIR 1991 SC 295], the learned counsel contended that in such circumstances, the petitioner's appointment cannot be cancelled.
6. I have considered the submissions made at the Bar by Sri.P.M.Pareeth, learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. The fact that the petitioner possessed only a B.A.degree in Economics and a B.Ed.degree in Malayalam at the time of her appointment as HSA (Malayalam) on 18.6.2004 is not in dispute. She passed the B.A.degree examination in Malayalam held by the University of Calicut only in April 2013. The qualifications for the post of HSA (Malayalam) are prescribed in rule (2)(b)(i) of Chapter XXXI of the Kerala Education Rules, 1959, which reads as follows:
“High School Assistant (Malayalam): A Degree in Malayalam or Malayalam as one of the two optional Subjects under Pattern II of Part III and B.Ed/B.T./L.T conferred or recognized by the Universities in Kerala:or A title of Oriental learning in Malayalam awarded by the universities in Kerala and Certificate in Language Teachers Training issued by the Commissioner for Government Examinations, Kerala.”
7. In the rules as it originally stood, the qualification stipulated was a degree in Malayalam and B.Ed/B.T/L.T conferred or recognized by the Universities in Kerala or a title of Oriental learning in Malayalam awarded by the universities in Kerala and Certificate in Language Teachers Training issued by the Commissioner for Government Examinations, Kerala. Later, by G.O.(P) No.125/75/G.Edn. dated 31.5.1975, rule 2(b)(i) of Chapter XXXI of Kerala Education Rules was amended by incorporating the words “or Malayalam as one of the two optional subjects under pattern II of Part III after the words “A Degree in Malayalam”. The petitioner did not at the time of her appointment possess a degree in Malayalam or a title of Oriental Learning in Malayalam awarded by any of the Universities in Kerala though she possessed a B.Ed.degree in
Malayalam. She had also not undergone a course of study with Malayalam as one of the two optional subjects under Pattern II of Part III. For the B.A.degree course in Economics which the petitioner had undergone, Malayalam was only the second language in Part-II. On the terms of the rules, a person who has passed the B.A.degree examination in any subject other than Malayalam, with Malayalam as second language in Part II, is not qualified to be appointed as HSA (Malayalam). It was overlooking this significant fact that the Government directed the petitioner's appointment to be approved when it issued G.O.(MS)No.249/09/G.Edn. dated 17.12.2009. None of the educational authorities had noticed the fact that the petitioner did not possess the educational qualifications prescribed for the post of HSA (Malayalam). It came to the notice of the P.A. to the District Educational Officer in August 2011 and he immediately objected to the approval granted to the petitioner's appointment. Though in Ext.P5 letter, the Government initially took the stand that by virtue of G.O.
(P) No.165/08/G.Edn. dated 19.9.2008, the petitioner is eligible to be appointed as HSA (Malayalam), later, on noticing the mistake committed by it, the Government issued Ext.P6 letter and cancelled Ext.P5.
8. From a reading of Ext.P5 letter it is evident that it is relying on G.O.(P) No.165/08/G.Edn. dated 19.9.2008 that the Government initially took the stand that the petitioner is qualified. Ext.P5 letter is extracted below in full for easy reference:
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9. The Government order dated 19.9.2008 referred to in Ext.P5 letter is quoted below in full:
“GOVERNMENT OF KERALA Abstract General Education-H.S.A.(Course Subject) Qualification B.Ed. in the concerned subject as training qualification along with Degree in the concerned subject for appointment to the post of H.S.A.(Core Subject)- Modified-orders issued.
GENERAL EDUCATIN (J) DEPARTMENT G.O.(P)No.165/2008/G.Edn. Dated, Thiruvananthapuram, 19th September, 2008.
Read:- 1. G.O.(P) No.220/05/G.Edn., dated 19.7.2005
2. Letter No.H3/75822/05 dated 11.11.05 & H3/56959/05 dated 24.3.2006 from the Director of Public Instructions, Thiruvananthapuram
3. Letter No.AII (1)05/2000/G W dated 17.5.2008 from the Secretary, Kerala Public Service Commission.
ORDER As per G.O read as 1st paper above, it was interalia ordered that here after for the appointment to the post of H.S.A (Core Subjects) in Government and Aided Schools, B.Ed/BT/LT should be in the concerned subject along with degree in the concerned subject.
Government have received petitions from various corners to exempt certain categories from the purview of the above Government order. Government have examined the matter in detail in consultation with the Kerala Public Service Commission and hereby order to exempt the following categories from the purview of the G.O read as 1st paper above:-
(i) Those teachers who were appointed in regular/short term vacancies in Aided schools as H.S.A (Subjects) excluding H.S.A (English) before 19.7.2005 with B.Ed in a different subject, who became claimants under Rule 51 A Chapter XIV A KER for the post of HSA (subjects) excluding HSA (English) by virtue of their appointment before 19.7.2005.
(ii). Those teaching and non-teaching staff who entered into Aided/Government School regular service before 19.7.2005 and had acquired B.Ed in a different subject before that date, aspiring 'promotion'/'appointment by promotion' as HSA (subjects) excluding HSA (English) and (iii) Those candidates of both Government and Aided schools, who had been selected for B.Ed in a different subject under the Departmental quota and who were under going the course as on 19.7.2005.
The Government order read as first paper above will stand modified to the above effect only.
Formal amendment in the KER will be issued separately.
By order of the Governor, James Varghese Secretary to Government”
The Government order dated 19.9.2008 has no application to the post of HSA (Malayalam). It prescribes the qualifications for appointment as HSA (Core Subjects) and HSA (English). It has no application to the post of HSA (Malayalam). In any case, it is not stipulated therein that HSA (Malayalam) need not possess any of the qualifications stipulated in rule 2(b)(i) of Chapter XXXI of the Kerala Education Rules. In such circumstances, no exception can in my opinion be taken to the stand of the Government in Ext.P6 letter. The Government have in Ext.P6 letter also clarified that as per the rules, the qualification prescribed for the post of HSA (Malayalam) is a degree in Malayalam or Malayalam as one of the two optional subjects under Pattern II of Part III. A title of Oriental Learning in Malayalam awarded by any of the Universities in Kerala is also an approved qualification. The petitioner did not admittedly possess any of these qualifications at the time of her appointment. Instead, merely for the reason that her second language in Part II for the B.A.degree course in Economics was Malayalam, her appointment was erroneously approved. Such approval does not in my opinion confer any right on the petitioner to contend that she was qualified for the post when she was appointed.
10. In Sasidharan Vs. Reserve Bank of India (1990 (2) KLT 573) T.L.Viswanatha Iyer, J held that power is inherent in any administrative authority to correct accidental mistakes committed by it. It was held that if the power to correct inadvertent mistakes is not recognized and accepted, it may lead to perpetuation of injustice and to undesirable consequences. It was held that an order correcting a mistake does not affect the rights of the party benefited by the mistake as no rights legally inhered him by virtue of the mistaken orders. Paragraphs 7 and 8 of the decision in Sasidharan Vs. Reserve Bank of India (supra) wherein the above principle has been laid down, are extracted below:
7 . The power is inherent in any administrative authority to correct accidental mistakes committed by it, in ignorance of, or overlooking the facts. Indeed such power should be exercised, where rights of third parties have been affected by the mistaken proceedings, without their knowledge, and without their being heard, resulting in miscarriage of justice. If the power to correct inadvertent mistakes is not recognised and accepted, it may lead to perpetuation of injustice and to undesirable consequences. A person whose rights are so affected by an illegal order passed behind his back need not be compelled to rush to court to get it set aside, on pain of its being held binding otherwise. The authority concerned can itself remedy the mischief, on its being apprised of its mistake and the injustice flowing therefrom. (See in this connection Karunakaran Nambiar v. Director of Public Instruction 1966 KLT 290). Such an order does not affect any rights of the party benefiting by the mistake, as no rights legally inhered in him by virtue of the mistaken order. Wade in his Administrative Law (Fifth Edition, page 226) points out that even where such powers are not (expressly) conferred, statutory tribunals would have power, to correct accidental mistakes, and to review a decision when facts subsequently discovered have revealed a miscarriage of justice. The same rules must apply to non-statutory action by administrative authorities as well.
8 . The Supreme Court was concerned with a similar matter in State of Punjab v. Jagdip Singh, AIR 1964 SC 521. The respondents in that case, who were officiating Tahsildars in the State of Pepsu were confirmed in the posts with immediate effect by an order of the Financial Commissioner dated October 23,1956. No posts were however, available at that time, in which they could be confirmed. The matter was reconsidered by the State of Punjab on October 31,1957, after the State of Pepsu merged in it on November 1, 1956, and a notification “deconfirming the respondents was issued. Respondents successfully challenged the “deconfirmation in the High Court, inter alia as a reduction in rank which could not be effected without complying with the requirements of Article311(2) of the Constitution. On appeal by the State, the Supreme Court ruled that the order of confirmation passed by the Financial Commissioner on October 23,1956 had no legal foundation, and was wholly void, as there were “no vacancies in which the confirmations could take place”. The court then posed the following questions as arising for consideration, (vide para.8).
“Now, where the Government itself realises that an order made by an authority under the Government is void, is it powerless to do anything in the matter? Is it bound to give effect to a void order and treat as confirmed Tahsildars persons who have no legal right to be treated as confirmed Tahsildars? Is it not open to the Government to treat the confirmation as void and notify the persons affected and the public in general of the fact of its having done so by issuing a notification of the kind it made on October 31,1957?”
The questions were answered in the affirmative with the following observations:
“In our opinion where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status. No doubt, the Government has used the expression “de-confirming” in its notification which may be susceptible of the meaning that it purported to undo an act which was therefore valid. We must, however, interpret the expression in the light of actual facts which led up to the notification. Those facts, clearly show that the so called confirmation by the Financial Commissioner of Pepsu was no confirmation at all and was thus invalid. In view of this, the notification of October 31,1957 could be interpreted to mean that the Government did not accept the validity of the confirmation of the respondents and other persons who were confirmed as Tahsildars by the Financial Commissioner, Pepsu.”
The court thus upheld the power of Government to undo the mischief of an earlier mistaken order, which was otherwise void, conferring an undue and unmerited benefit on some of the employees.
11. The very same view was reiterated by the learned Judge in V.V.Prakasini Vs. Kerala Public Service Commission (1993 (1) KLJ 632) wherein it was held as follows:
“18. xxxxxxxxxx. Such a reserve power to correct mistakes committed by itself has to be located in every public authority in the interests of justice and to avoid arbitrariness. It is not uncommon - in fact it is a human failing that errors are committed in the conduct of human affairs. Infallibility is not a human virtue, that being a quality attributable only to the Almighty. Such a power to correct apparent mistakes is therefore an absolute necessity and has to be found in every authority, even without a specific provision as was held by me earlier in my decision in Sasidharan v. Reserve Bank of India (1990 (2) KLT 573, paragraph, 7 relying on the decision in Karunakaran Nambiar V. Director of Public Instruction, 1966 KLT 290 and others”.
In the light of the aforesaid statement of law, as the petitioner did not admittedly possess the educational qualifications prescribed in rule 2 (b) (i) of Chapter XXXI of the Kerala Education Rules for appointment to the post of HSA (Malayalam), when she was appointed on 18.6.2004, I am of the opinion that the Government was well with its rights in issuing Ext.P6 letter.
12. The learned counsel for the petitioner however contends, relying on the decisions of the Apex Court in Nayagarh Co-operative Central Bank Ltd. and another Vs. Narayan Rath and another [1977 (3) SCC 576], H.C.Putasway and Others Vs. Honourable Chief Justice of Karnataka High Court, Bangalore and Others [AIR 1991 SC 295] and the decision of learned single Judge of this Court in Rajalakshmi Vs. State of Kerala [1992 (1) KLT 458] that as the respondents have acquiesced in the appointment of the petitioner and approved it and allowed her to continue in the post, they cannot, after she has served for more than a decade, throw her out of service on the ground that her initial appointment was not in order. In Rajalakshmi Vs. State of Kerala (Supra) this Court held that the appointment of an Upper Division Typist to the category of Upper Division Clerk by category change which was made more than ten years back cannot be cancelled on the ground that she had not passed the test on Manual of Office Procedure, a departmental test prescribed for promotion to the post of Upper Division Clerk. In Nayagarh Co-operative Central Bank Ltd. and another Vs. Narayan Rath and another [1977 (3) SCC 576] the Apex Court upheld the appointment of the Secretary of a co-operative society on the ground that the Registrar of Co-operative Societies who was present in the meeting held on 25.5.1955 in which the Secretary was appointed had acquiesced in it and 13 years had passed thereafter. In H.C.Putasway and Others Vs. Honourable Chief Justice of Karnataka High Court, Bangalore and Others [AIR 1991 SC 295], the Apex Court held that though the appointments made by the Chief Justice of the High Court without consulting the State Public Service Commission was not proper, as several years have passed after the appointment was made, notwithstanding the fact that the appointment was manifestly wrong, a humanitarian approach has to be taken. The appointments in question were to the post of Second Division Clerks.
13. The facts in the instant case are not similar. Though the appointment in the instant case was made on 18.6.2004, approval was declined by the District Educational Officer. The appeal before the Deputy Director of Education and the revision petition before the Director of Public Instruction were also rejected. It was only after the Government allowed the revision petitions filed by the Manager/petitioner by order passed on 17.12.2009 that the District Educational Officer granted approval by order passed on 12.3.2010. Until then, it was an inchoate appointment. The petitioner did not admittedly possess the prescribed qualifications. The objection to her appointment was raised within 15 months after the appointment was approved. Though initially the Government took the stand that the petitioner is qualified, relying on the Government order dated 19.10.2008 which really has no application, on realizing the mistake committed by it, the Government corrected the mistake and issued Ext.P6 letter. In the light of the fact that the petitioner's appointment was approved only on 12.3.2010 and it was inchoate till then as it had not been approved, it cannot be said that the petitioner's appointment is liable to be regularized. That apart, unlike in the decisions relied on by the learned counsel for the petitioner, the post in the case on hand is a teaching post. If unqualified persons are appointed to teaching posts, the students will be adversely affected. In a State like ours where appointments of teachers in aided schools are approved or declined only years after they are made and quite often it is only after this Court intervenes that orders are passed either approving the appointment or rejecting it and in a large number of cases appointments are approved only by the revisional authority years after the appointment is made, if such a view is taken, public interest will suffer. This Court cannot, in the matter of appointment of teachers, water down the stipulation in the rules regarding educational qualifications and uphold the appointment of persons who did not admittedly possess the prescribed qualification when the appointment was made, merely because several years have passed thereafter. The only relief which in my opinion can be granted to the petitioner is to direct that her appointment be approved with effect from the date on which the schools re-opened during the academic year 2013-14, having regard to the fact that by then she had passed the B.A.degree examination in Malayalam conducted by the University of Calicut in April 2013, and to further direct that the salary and allowances paid to her for the period prior to such date shall not be recovered for the reason that she had actually worked as a teacher and had not undertaken to work gratuitously.
I accordingly dispose of the writ petition with a direction to the District Educational Officer, Irinjalakuda to pass revised orders approving the petitioner's appointment as HSA (Malayalam) on a regular basis with effect from the date on which the schools reopened during the academic year 2013-14. Salary and allowances disbursed to the petitioner, pursuant to the approval initially granted to her appointment shall not be recovered from her. Revised orders approving the petitioner's appointment as HSA (Malayalam) with effect from the date on which the schools reopened during the academic year 2013-14 shall be issued within two weeks from the date on which the petitioner produces a certified copy of the judgment before the District Educational Officer, Irinjalakkuda. Arrears of salary and allowances with effect from that date shall be drawn and disbursed to the petitioner within a month thereafter.
rkc.
Sd/-
P.N.RAVINDRAN, JUDGE.