T.V. Kurian vs State of Kerala

Kurian Joseph, J.—The crucial question to be decided in this case is as to (1) the power of the Manager of an aided school to declare the probation of a teacher with retrospective effect, taking into account the broken periods of duty (2) whether the probation once declared can be revised by the Manager. It is seen from S.R.O. No. 400/78 issued in exercise of the power u/s 36 of the Kerala Education Act, 1958 that an explanation permitting the counting of broken spells was introduced for the first time, which reads as follows: Explanation: Broken periods of duty within a continuous period of two years can be reckoned for calculating the one year duty period. The Manager is competent to declare the probation with retrospective effect from the date on which the person concerned is found eligible/suitable for declaration of completion of probation.

Subsequently, it is seen that the said explanation to Rule 6(a) of Chapter XIV(A) has been substituted by another explanation as per G.O.(P) 135/86/G.Edn dated 7-8-1986 which reads as follows:

Explanation: Broken periods of duty within a continuous period of two years can be reckoned for calculating the one year duty period. In such cases satisfactory completion of probation of the teacher concerned shall be declared by the Manager with retrospective effect from the date on which he is found eligible/suitable for such declaration of the completion of probation.

It can be seen from the substituted explanation that the Manager is now duty bound to declare the probation of the teachers concerned, reckoning the broken periods of duty within a continuous period. The explanation obliges the Manager to declare the probation with retrospective effect.

Under Rue 61 of Chapter XIV KER the Education Officer concerned has been conferred the power to fix the increment of the teacher concerned in case, the Manager fails to do so. It is the contention of the Learned Government Pleader that the Manager having declared the probation of the petitioner on 31-5-77 and the same having been entered in the service book, there is no provision enabling the Manager to revise the orders thus passed by him, in the matter of declaration of probation. I am afraid the contention cannot be appreciated. For one thing it has to be seen that the enabling provision for the Manager to take into account all the broken periods of service was introduced only on 31-3-1978. The same is issued u/s 36 of the Kerala Education Act which enables the Government to make rules retrospectively for the purpose of carrying into effect the provisions of the Act. The Government Order was issued only on 31-3-78 before which the Manager had already declared probation and the rule was further amended only in 1986 which made it obligatory for the Manager to take into account the broken spells and declare the probation with retrospective effect. In such circumstances, for the only reason that there is no enabling provision permitting the Manager to grant the benefits to an otherwise eligible teacher, the benefits cannot be denied to the teacher. Law does not depict and cannot show such helplessness. There is no express prohibition under the Act or Rules restraining the Manager to act according to the mandate under the statute. The Manager hence is competent to revise the orders on probation for giving to the provisions under the KER. Therefore the Manager has acted only within his rights in giving effect to the provisions under the KER. These crucial aspects have missed the notice of the respondents while passing the impugned orders. Therefore Exts. P12, P14 and P16 are quashed. Since the Manager declared the satisfactory completion of probation of the petitioner only in 1989, it is only just and proper that the petitioner is given the sanction for re-option. Accordingly, there will be a direction to the Government to issue appropriate orders permitting the petitioner to make the re-options. The needful shall be done with notice to the petitioner, within a period of three months from the date of production of a copy of the judgment along with an appropriate representation before the 1st respondent. The eligible benefits shall be disbursed to the petitioner, within another two months.

The Writ Petition is disposed of as above.