IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 WP(C).No. 34008 of 2008(W) ----------------------------------------- PETITIONER(S): ------------------------ SHEEJA MUKUNDAN, FULL TIME SANSKRIT TEACHER, KARIPPAL S.V.U.P.SCHOOL, KARIPPAL P.O CHAPPARAPPADU VIA, KANNUR DIST. BY ADV. MR.KALEESWARAM RAJ RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. DISTRICT EDUCATIONAL OFFICER, KANNUR. 5. ASSISTANT EDUCATIONAL OFFICER, TALIPARAMBA. 6. THE MANAGER, KARIPPAL S.V.U.P.SCHOOL, KARIPPAL P.O., CHAPPARAPPADU VIA, KANNUR DIST. R1 TO R5 BY GOVERNMENT PLEADER MR.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 34008/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DT. 14.7.06. P2:- COPY OF THE ORDER DTD. 21.11.06 ISSUED BY 5TH RESPONDENT. P3:- COPY OF THE LETTER DTD. 3.3.07 ISSUED BY 4TH RESPONDENT. P4:- COPY OF THE APPEAL MEMORANDUM DT.D 6.12.06. P5:- COPY OF THE ORDER DTD. 13.12.07. P6:- COPY OF THE REVISION PETIION DTD. 1.1.08 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P7:- COPY OF THE REVISION PETITION DTD. 1.1.08 FILED BY MANAGER BEFORE THE IST RESPONDENT. P8:- COPY OF THE JUDGMENT DTD. 24.3.08 IN WPC. 4599/08. P9:- COPY OF THE G.O.(RT0 3451/08 G.EDN. DTD. 29.7.08. P10:- COPY OF THE MEMO DTD. 28.6.08 TOGETHER WITH LIST OF PROTECTED TEACHERS. P11:- COPY OF THE ORDER DTD. 28.2.07. P12:- COPY OF THE G.O.(P) 46/06 DT. 1.2.06. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 34008 of 2008-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2009. JUDGMENT The petitioner is aggrieved by the objections raised by the Asst. Educational Officer regarding the payment of salary to the petitioner which is now confirmed by Ext.P9, even though the appointment has been approved. The substantial objection appears to be that the appointment of the petitioner is without considering the availability of protected hands in the Educational district for filling up the vacancy. 2. The petitioner was appointed as per Ext.P1 order dated 14.7.2006. This appointment was approved as per the endorsement shown in Ext.P1 itself. Thereafter, by Ext.P2 a notice was issued by the Asst. Educational Officer to withhold the pay and allowances of the petitioner with effect from 1.11.2006 and to refund the pay and allowances already paid to her from 14.7.2006 to 31.10.2006. Ext.P3 evidences the fact that the objection taken by the Department is that the appointment is made in violation of the Government instructions to fill up the vacancies in the upgraded schools by deploying a protected hand. Even though by Ext.P4 the Manager explained the position, that was not accepted and by Ext.P5 it was rejected. wpc 34008/2008 2 3. Learned counsel for the petitioner submitted that even going by the facts emerging from the pleadings, it can be seen that the Manager has fulfilled the obligation to appoint a protected teacher. The school was upgraded during 1982-83. As per the agreement executed between the management and the Government, the Manger was obliged to appoint one protected teacher and accordingly, after getting the details of a protected teacher, during 1988-89 one Shri T. Madhavan was appointed. He was deployed back to the parent school in the year 1991-92 which paved way for appointment of one Shri K.V. Thomas who was also later deployed to the parent school. Subsequently, as the list of protected teachers was not available, five vacancies were filled up during the year 2001-02 and those appointments have been approved. It is also pointed out that one Smt. Jayanthy N.K. was appointed from 19.10.2006 to 30.3.2007. As the said appointment was not approved, another protected teacher, viz. Smt. C.N. Lasitha was appointed in that vacancy. 4. Going by the counter affidavit filed by the first respondent, the contention raised in para 4 is to the effect that one protected Full Time Sanskrit Teacher, viz. Shri N. Ravindran, is awaiting absorption in the Educational District, Kannur on the date of appointment of the petitioner on 14.7.2006. Apparently, the averments made by the petitioner regarding the wpc 34008/2008 3 appointment of the protected teachers from time to time by the Manager have not been denied in the counter affidavit. Therefore, those aspects will be deemed to have been admitted. The position therefore, that emerges from the pleadings will be that the Manager had fulfilled the obligation to appoint a protected teacher, even though at a later point of time that person was deployed to the parent school. In this context, a reference can be made to the statement filed by the Manager as per Ext.P4 before the District Educational Officer. It is evident that during 1988-89 Shri T. Madhavan was appointed as protected teacher who was deployed back in 1991-92 and Shri K.V. Thomas was appointed later. The Manager appointed another protected teacher on 27.11.2006 as per the directions of the Asst. Educational Officer. In fact, in Ext.P4 the Manager has also stated that he will appoint a protected teacher in any of the retirement vacancy which may arise in future. Learned counsel for the petitioner placed reliance upon Ext.P10 reply given by the Public Information Officer of the Office of the Asst. Educational Officer, Kannur under the Right to Information Act. It shows that there were two protected Sanskrit teachers in U.P. Schools in Kannur District during 2006-07. One Shri N. Ravindran who was working in Payyannur Central U.P. School was retained in the same school under the orders of the Government. The second person is one Smt. A.P. Vanajakshy wpc 34008/2008 4 who has been retained in the Govt. U.P. School, Simiri from 27.6.2006 as per order dated 17.6.2007. It is therefore clear that the third one is Shri J. Gopinatha Pillai from Chapparappadavu High School who has also been retained in the parent school in terms of the Govt. Order dated 4.12.2002, on completion of 25 years. It is evident from Ext.P10 that Shri N. Ravindra has been retained in the parent school as he has completed 25 years in accordance with G.O.(P) No.26/2003/G.Edn. dated 14.6.2003. Hence the contention in para 4 of the counter affidavit that he was waiting for absorption as on 14.7.2006 cannot be accepted. On this ground itself the objection raised against his appointment falls to the ground. 5. Learned counsel for the petitioner also relied upon a judgment of this Court in W.P.(C) No.4623/2009 and the decision of a Division Bench in Unni Narayanan v. State of Kerala (2009 (2) KLT 604). It is pointed out that the Govt. Order, Ext.P12 cannot modify the express terms of the rules and the insistence that the vacancy has to be filled up by appointing daily wage hands, cannot be sustained in the light of the dictum laid down in Unni Narayanan's case (supra). I find force in the said submission. Going by the dictum laid down in the said judgment, especially in para 7 it was held that an executive order cannot override the express statutory provisions. wpc 34008/2008 5 6. Even going by Ext.P12, the stipulation therein is that the Manager will have to provide at least one protected hand from the list of protected teachers. Going by the facts noticed above, herein the said obligation was fulfilled by the Manager and he had been taking efforts to continue to fill up the vacancies due to redeployment, by protected hands. Whenever protected hands were made available from the list, the obligation was complied with, evidently. The question whether the Manager of an aided school is obliged to appoint protected teachers beyond the Sub District in compliance with the agreement executed, was examined in W.P.(C) No.4623/2009. The relevant rules under Rule 9 of Chapter III K.E.R. and Rule 6(viii) of Chapter V K.E.R. was considered. It was held thus in para 9: “It is well settled that an executive order cannot go against and override the express statutory prescriptions. Unless the Rules are amended in terms of the executive order, by appropriate means, the same cannot be sought to be enforced. See, Unni Narayanan v. State of Kerala (2009 (2) KLT 604). Herein, Ext.P7 shows that there is no protected teacher available in the Wandoor Educational Sub-district, which fact is admitted in paragraph (9) of the counter affidavit. If that is so, the Manager cannot be faulted for not appointing a protected teacher in the vacancy to which the petitioner was appointed. Even if there will be a protected U.P.S.A. in Malappuram Revenue District, that cannot be sought to be enforced against the Manager, obviously.” wpc 34008/2008 6 Going by sub-rule (viii) of Rule 6 of Chapter V K.E.R., the obligation of the Manager has been fulfilled here. Therefore, the averment in para 4 of the counter affidavit that a protected hand is available in the Educational district and the Manager will have to comply with the same, cannot be sustained. The said obligation is sought to be imposed only because of the subsequent Government Orders issued in the matter and as Rule 6(viii) provides for a particular method which alone is the Manager is obliged to comply with, it cannot be modified by any Government Order issued in the matter. In that view of the matter, the Manager was not obliged to appoint a protected teacher who was remaining outside in the Educational Sub district for re-deployment. Therefore, the approval of appointment of the petitioner cannot be faulted. 7. The writ petition is allowed. The impugned orders, Exts.P2, P5 and P9 are quashed. There will be a direction to release the salary and allowances of the petitioner in terms of the order of approval, along with arrears within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/