Dasius vs The State and Others

Varadaraja Iyengar, J.—This is a petition under Article 226 of the Constitution filed by an undergraduate teacher Attached to the Little Flower Middle School, Cheranalloor in Cochin-Kanayannore Taluk, which at the relevant time was a private and unaided institution, complaining against a service order which denied to him confirmation from earlier date in alleged violation of Article 52 of the Cochin Education Code.

The Petitioner T. M. Dasius passed the Secondary School Leaving Certificate Examination in 1930 and the Agricultural Training Examination from the Government School of Agriculture at Ollukara, Cochin State in 1935. On 6-12-1119 corresponding to 21-7-1944 Petitioner got appointment as an acting teacher in the preparatory class in the present school in which he is, employed. After the reopening of the School in 1120 (1945-1946) he was promoted to Form I. He was ever since been working in the lower secondary department, i.e., Forms I to III in the said school.

During the mid-summer vacation In 1119 and 1120 Petitioner was not retained in the staff of the school because, according to the manager, the Petitioner had not obtained exemption from Secondary Training (Literary Training) from the Government, and he could not consequently be deemed to be a member of the permanent staff. Petitioner applied therefore on 24-5-1946 to the Director of Public Instruction, Cochin Government, for necessary exemption but the Director was willing to ant the same for that educational year (1121-1122) only. This order is filed as Ex. A. However appeal by the Petitioner before the Cochin Government the scope of the exemption was widened so cover Petitioner''s appointment and conformal in the lower secondary department though not as a head-master of a lower secondary school. This order of Government is produced as Ex. B.

Petitioner thereafter on 21st June 1949 moved the Director of Public Instruction for approving his appointment as a permanent teacher, with effect from 6th December 1119, viz., the date of his first entertainment in the school: so as to enable him to get his pay for previous vacations and also condonation of break in service. The Director replied by Ex. D to say that the exemption granted in Petitioner''s favour under Ex. B order had no retrospective effect but his broker service would be taken into account for granting increments according to existing rules. The Petitioner''s appeal to Government against this order met with no success vide Ex. Ill order dated 19-8-1950. Petitioner later on submitted two more petitions to Government dated 13-3-1952 and 23-9-1954 for reconsideration of the matter but Government refused to interfere. See Ex. E order of Government dated 9-3-1955.

According to Petitioner, there had been no need at all for him to get exemption, as directed by the Manager in order to get his appointment approved. For under Article 52 of the Cochin Education"; Code which had come into force so early as 1109; undergraduate teachers of schools who were trained in industries or agriculture stood exempted from Military training and Petitioner was agriculture trained. The vacancy in which he had joined was a permanent one and there was no reason not to treat him as in the permanent cadre from the very beginning of his service. Assuming exemption was necessary at the hands of the Department, there was the Government''s own order dated 6-2-1953 regarding Private Secondary School Scheme whereby ''''exemption shall take effect from the date on which the persons have become eligible for the exemption even though the exemption is granted later."

By not treating the exemption granted to him as having taken effect from the date of his first appointment on 6-12-1119 Petitioner had been deprived of his seniority and service by four years and this has enabled the 3rd Respondent Manager of the if School to withhold from him payment of vacation; salary for 2 months in each year from 1119 to 1123 '' (1944 to 1948). Petitioner has therefore prayed for the issue of a writ of certiorari to the Respondents lii and 2 (the State of Travancore-Coqhin and the Director of Public Instruction) to quash Exs. A, JX and E orders and for declaration that the exemption'' from Secondary Training granted to him by Ex. B order of Government took effect from the date of-appointment as teacher on 6-12-1119 and for cones; quential reliefs.

This petition is contested by the Respondents. The contention was raised on behalf of the Respondents 1 and 2 and the Petitioner''s claim to be placed on a par with fully trained teachers who had indrawn gone literary training on basis of Article 52 of the Education Code was unsustainable in view of the revision of the qualifications as embodied in the standing orders issued under the authority of the Government of Cochin. According to these revised rules training in agriculture was not a substitute for secondary training as regards appointment which included also promotions to the lower secondary department. Petitioner''s appointment could therefore be only be under the temporary exemption granted and teachers so appointed were not eligible for retention in the staff of the school for vacation.

Only after Ext. B order in 1124 Petitioner was entitled to the benefit of continuity of service. The question was also raised that the provisions of the Education Code or other orders relating to the working of the Education Department were only in the nature of executive directions breach of which could not give any cause of action for relief through Court. In any event the jurisdiction exercised by the Government in service matters of teachers employed in private unaided schools of the type herein was only consensual in character and therefore no remedy could be had by invoking Article 226 of the Constitution. Objection was also raised that the petition herein was filed without good faith and was also belated and on that ground alone was liable to rejection. By separate counter-affidavit the present manager of the 3rd Respondent school has raised also a question of estoppel as against the Petitioner.

The preliminary objection based on delay and lack of good faith raised by learned Government Pleader on behalf of Respondents 1 and 2, is, in my judgment, bound to prevail. The earlier order of the Director Ext. A refusing permanent exemption was passed on 3-9-1946. Ext. B order of Government in appeal, granting exemption for purpose of appointment and confirmation is dated 16-3-1949. The construction of Ext. B order, as not retrospective in effect, was made by the Director by Ext. D order on 4-9-1949.

The appeal petition from this last order was taken on 29-1-1950 and later disposed of by the Government by Ext. Ill order dated 19-8-1950. It was the further representations made on 13-3-1952 and 23-9-1954 that led to the last order Ext. E of 9-3-1955 in mere confirmation of the prior order Ext. III. The present petition has been presented thereafter on 18-7-1955, impugning Exts. A, D and E oKJ$rs. There is no doubt that the final order of Government so far as the Petitioner was concerned was Ext. Ill order dated 19-8-1950 and the later representations of 1952 and 1954 were merely in the nature of appeal to indulgence. Referring to such representations and delay caused thereby this Court had recently occasion to say that:

Once the final decision of the Government is given a representation is merely an appeal for mercy or indulgence, but it is not pursuing a remedy which the law gave to the Petitioner. The existence of a good case on the merits and the absence of any remedy other than Article 226 are not matters which should weigh with a Court in deciding whether the delay that has occurred in a particular case is fatal or not. Delay to be excused required an explanation and such extraneous considerations cannot possibly afford a valid explanation. Though the writ will generally be refused in all cases where the Petitioner fails to show that he has proceeded expeditiously, there is no hard and fast rule by which to determine whether the right to bring certiorari is barred by laches, as the issuance of the writ is largely a matter of stoma discretion." (See Vasu-devan v. State, 1955 Ker IT 651: AIR 1956 Ker 33 (A).

Applying this test, it is perfectly clear that the Petitioner has come to Court after inordinate delay. There has been no attempt either, in the way the affidavit of the Petitioner was filed to seek excuse of Court and get the delay condoned. On the other hand there appears to have been a deliberate suppression therein of the fact that Ext. Ill order had been passed on 19-8-1950 and a false suggestion further made that the later representations of 1952 and 1954 were made in continuation of an apparently indisposed of appeal petition of ''''November 1949"; Learned Government Pleader said that this reference to presentation of an appeal petition in November 1949 ''was also calculated to mislead the Respondents for the petition had been presented only January 1950 and did indeed mislead them into stating in the first instance that there was no appeal from Ext. D order at all.

In the light of my conclusion as above, it has become unnecessary to consider the various other questions debated at the bar as to the enforceability as against Government of the provisions of the Education Code and the circulars and notifications from time to time issued by Government and the Education Department in regard to the working of the educational institutions and the conditions regulating appointments and confirmations, etc., of teachers, particularly at the instance of a teacher attached to a private and unaided school of typo herein. But I may say that the Education Code is at best but a practical rule of caution intended for the guidance of members of the Department. It is not a legislative enactment nor has it the force of a statute and it does not confer any right on private school teachers. See Surendran v. Chacko, 33 Ker LJ 765 (B), and Govindan Pillai v. Kuriakko, 1950 DLR Ker 228 (C).

Orders of Government in alleged infringement of the provisions of the Code cannot, therefore, be amenable to the judicial review at the instance of private school teachers. There is also the glaring fact in this case that it was the Petitioner that moved the Director and then the Government for exemption from secondary training and got order granting the same. It is hardly appropriate that he should come forward and seek relief by these proceedings, on basis that he need not have done so.

On the whole there is no merit in this petition. It is, therefore, dismissed with costs. Advocate''s fee Rs. 100/-.