IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 WP(C).No. 36375 of 2008(E) --------------------------------------- PETITIONER(S): ------------------------- 1. SUNIL BABU.P.P, AGED 28 YEARS, S/O.MUHAMMED, UPPER PRIMARY SCHOOL ASSISTANT, AIDED HIGH SCHOOL, PARAL MAMPATTUMOOLA,MANJAPETTI, KOORAD, MALAPPURAM DISTRICT. 2. K.C.SHAJI, UPPER PRIMARY SCHOOL ASSISTANT, AIDED HIGH SCHOOL, PARAL MAMPATTUMOOLA, MANJAPETTI, KOORAD, MALAPPURAM DISTRICT. 3. THE MANAGER, AIDED HIGH SCHOOL, PARAL MAMPATTUMOOLA,MANJAPETTI, KOORAD, MALAPPURAM DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): --------------------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, VANDOOR, MALAPPURAM DISTRICT. 2. THE DISTRICT EDUCATIONAL OFFICER, VANDOOR, MALAPPURAM DISTRICT. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM DISTRICT. 4. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 5. STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R5 BY SR.GOVERNMENT PLEADER SMT. M.R. SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36375/2008 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF ORDER DTD. 15/10/2004 OF AEO, VANDOOR REJECTING APPROVAL OF 1ST PETITIONER'S APPOINTMENT. P2: COPY OF ORDER OF THE DEO., VANDOOR REJECTING APPROVAL OF THE 1ST PETITIONER'S APPOINTMENT. P3: COPY OF THE ORDER OF THE D.P.I. DTD. 16/07/2005. P4: COPY OF THE JUDGMENT IN WPC.NO.36008/07. P5: COPY OF GOVERNMENT ORDER G.O.(RT) 1060/08/G.EDN. DTD.28/02/2008. P6: COPY OF REPRESENTATION DTD. 19/04/2008 SUBMITTED TO 5TH RESPONDENT. P7: COPY OF JUDGMENT IN CONT.CASE NO.737/08. P8: COPY OF APPOINTMENT ORDER SHOWING APPROVAL OF 1ST PETITIONER WITH EFFECT FROM 01/02/2006. P9: COPY OF APPOINTMENT ORDER SHOWING APPROVAL OF 2ND PETITIONER WITH EFFECT FROM 01/02/2006. P10: COPY OF G.O.(RT) 4602/08/G.EDN. DTD. 17/10/2008. P11: COPY OF AGREEMENT EXECUTED BY THE 3RD PETITIONER ON 27/04/1984. P12: COPY OF GOVERNMENT ORDER G.O.(MS) NO. 88/79/G.EDN. DTD. 2/06/1979. P13: COPY OF G.O.(P) NO.69/04/G.EDN. DTD.20/02/2004. P14: COPY OF LIST OF HIGH SCHOOLS AVAILABLE IN KERALA IN ACADEMIC YEARS 1980-81, 1985-86 AND 2002-2003. P15: COPY OF G.O.(O) 178/02/G.EDN. DTD. 28/06/2002. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.36375 of 2008-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2009. JUDGMENT The petitioners herein are aggrieved by Ext.P10 order passed by the Government, whereby the approval of appointment of petitioner 1 and 2 stands rejected and the revision petition filed by the Manager also stands rejected. 2. It is submitted by the learned counsel for the petitioners that the issue raised herein is covered in favour of the petitioners in the light of the decision of this Court in Moosakutty v. D.E.O., Wandoor (2009 (3) KLT 863). 3. The first petitioner was appointed on 20.9.2004 as U.P.S.A. in a permanent vacancy at Aided U.P. School, Paral Mampattumoola, Manjapetti, Malappuram District. The approval of the appointment was rejected by the Asst. Educational Officer as per Ext.P1 order. By Ext.P2, the District Educational Officer rejected the appeal filed against Ext.P1 and by Ext.P3, the Director of Public Instruction also rejected the revision petition. The second petitioner was appointed in the same school with effect from 30.9.2994, in a permanent vacancy occurred consequent on the wpc 36375/2008 2 resignation of Smt. Sissy John. The educational authorities, viz the Asst. Educational Officer, District Educational Officer and the Director of Public Instruction rejected the appointment of the second petitioner. The Manager filed a statutory revision before the Government. Thereafter petitioners 1 and 2 approached this Court by filing W.P.(C) No.36008/2007 and this Court as per Ext.P4 judgment, directed the Government to consider the revision and pass orders on it. Ext.P5 is the order passed by the Government pursuant to Ext.P4 judgment. Ext.P5 order was passed without hearing the petitioners and as per the directions issued by this Court in C.C.C. No.737/2008, the matter was re-heard and Ext.P10 is the present order passed by the Government. 4. The view taken by the Government is that the protected teachers are available in Malappuram Revenue District and therefore petitioners 1 and 2 are not entitled for grant of approval and the Manger is obliged to make appointment of the protected teachers. This is opposed by the petitioners by relying upon Rule 6(viii) of Chapter V K.E.R. Ext.P11 is the agreement executed by the Manager in terms of the said rule. It is the contention of the Manager that the obligation is to absorb only protected teachers from any one of the aided primary schools in the eduction sub- district and therefore the respondents cannot insist that vacancies will have wpc 36375/2008 3 to be filled up from the list that is applicable in the Revenue district. The petitioners have raised a further challenge regarding the scheme framed by the Government from time to time to grant protection to retrenched hands. Learned counsel for the petitioners submitted that for the purpose of this case, the said contention need not be gone into. The legal position as regards the obligation of the Manager was examined in Moosakutty's case (2009 (3) KLT 863). 5. The learned Govt. Pleader apparently, is relying upon the clauses in G.O.(P) No.46/06 dated 1.2.2006. In para 11 of the counter affidavit, it is pointed out that 25 protected teachers are available in the year 2004-2005 in Malappuram Revenue District and hence the petitioners' request cannot be accepted. Reliance is placed on para (i) of Ext.P15 order, providing that “the Management of newly opened/upgraded aided schools shall fill up all the existing/arising vacancies in the schools by appointing protected teachers. 6. The obligation of the Manager under Chapter V Rule 6(viii) and Chapter III Rule 9 was examined in Moosakutty's case (2009 (3) KLT 863). After examining the matter in detail, it was held thus in paragraphs 6 to 9: wpc 36375/2008 4 “ Going by Rule 6(viii), the Manager will have to execute an agreement that he is prepared to absorb qualified teachers/non teaching staff who have been retrenched from any of the aided high schools in Education district or aided primary school in the Education Sub-District in which the applicant proposes to open/upgrade the school. Since the school in question is only an Upper Primary School, prior to 1990, the obligation as such is confined to the prescriptions of the said paragraph. Under R.9 of Chapter III the Manager will have to abide by the orders that will be issued from time to time by the Government and the Department “in conformity with the provisions of the Act and the Rules issued thereunder'. Here, the Manager has executed Ext.P6 agreement whereby, he has obliged himself to appoint a protected Teacher from any one of the Aided Primary School in Wandoor Educational Sub-District. This is in terms of sub-rule (viii) of R.6 of Chapter V. K.E.R. Therefore, in terms of sub-rule (1) of Rule 9 of Chapter III K.E.R. Ext.P6 can be enforced against the Manager. The scope of the same cannot be widened as proposed now by relying upon Government Order, G.O.(P) No.83/88/G.Edn. dated 18.4.1988. 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.” It was held that in terms of sub-rule (viii) of Rule 6 of Chapter V K.E.R., the obligation of the Manager is to absorb protected teachers from Vandoor wpc 36375/2008 5 Education Sub District. The above decision was rendered in respect of the very same school Managed by the third petitioner herein. In that view of the matter, the said dictum will apply as regards the present appointments also. 7. Therefore, following the dictum laid down in Moosakutty's case (2009 (3) KLT 863), the writ petition is allowed. Exts.P1, P2, P3 and P10 are quashed. There will be a direction to the second respondent to pass appropriate orders approving the appointment of petitioners 1 and 2 as UPSA with effect from 20.9. 2004 and 30.9.2004 till 31.1.2006. Orders in this regard shall be passed 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/