IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR.JUSTICE P.BHAVADASAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 WA.No. 2684 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.19231/2009 Dated 12/11/2009 .................... APPELLANT(S): PETITIONER: ------------------------- V.RADHAMANI, HIGH SCHOOL ASSISTANT (SOCIAL STUDIES), T.I.H.S.S., NAIMARMOOLA, VIDYANAGAR P.O., KASARAGODE. BY ADV. SRI.ELVIN PETER P.J. SRI.POOJA SURENDRAN RESPONDENT(S): RESPONDENTS: --------------------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, KASARAGODE. 3. THE MANAGER, T.I.H.S.S., NAIMARMOOLA, VIDYANAGAR P.O., KASARAGODE. 4. M.A.MATHEW, U.P.S.A., T.I.H.S.S. NAIMARMOOLA, VIDYANAGAR P.O., KASARAGODE. GP SMT.R BINDU THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA No.2684 of 2009 ------------------------------------------------------------------ Dated 25th November 2009 Judgment Balakrishnan Nair, J. The writ petitioner is the appellant. The appellant and the 4th respondent are Upper Primary School Assistants, working in the school of the 3rd respondent Manager. It is not in dispute that the 4th respondent is senior to the appellant. A vacancy in the cadre of HSA (Social Studies) arose on 02.06.2008. The Manager appointed the appellant. Her qualifications were B.A.(Economics) and B.Ed. in History and English. The qualifications of the 4th respondent were B.A. (History) and B.Ed. in English. The Writ Petition was preferred by the appellant, relying on Ext.P1 G.O. dated 19.07.2005, as per which, instead of B.Ed. in any subject, B.Ed. in the concerned subject was prescribed as an obligatory qualification for appointment to the post of H.S.A. The said order also stated that the formal amendment to the K.E.R. will be issued separately. The appointment of the appellant was challenged by the 4th respondent on the ground that until the Rules are amended, it should be treated that he is qualified and therefore, he being the senior, he should have been WA No.2684/09 2 preferred for promotion to the post of HSA. His claim was upheld by the Additional Director of Public Instruction (General) as per Ext.P5 order. Challenging the said order and seeking a declaration that her promotion as H.S.A. with effect from 02.06.2008 is valid, the Writ Petition was filed. 2. The 4th respondent resisted the reliefs sought in the Writ Petition, by filing a counter affidavit. The learned Single Judge, after hearing both sides, dismissed the Writ Petition by upholding Ext.P5, after elaborately considering the various decisions cited by both sides. Hence this Writ Appeal by the writ petitioner. 3. The learned counsel for the appellant submitted that the rule making authority, by issuing executive orders, can supplement the Rules or fill up the gap in the existing Rules. That is what was done under Ext.P1, it is submitted. 4. It is elementary that an executive order cannot modify a statutory rule. It is equally well settled that if the Rules are silent concerning a matter and that area is not occupied by the statutory Rules, the rule making authority may issue administrative instructions on such matters, invoking its power under Article 162 of the Constitution of India. WA No.2684/09 3 5. In this case, we notice that B.Ed. in any subject is the prescribed qualification. If Ext.P1 is valid, the 4th respondent, who is qualified as per the existing Rules will become disqualified. Such an effect cannot be attained by issuing an executive order. Therefore, we find nothing wrong with the decision of the learned Single Judge. The learned counsel for the appellant brought to our notice, the Full Bench decision of this Court in Anilkumar v. State of Kerala (2009(3) KLT 650) where Ext.P1 order has been followed. But, we notice that in the said decision, the validity of Ext.P1 was not raised or considered. Therefore, the above said decision cannot be relied on, to hold that Ext.P1 is valid. In the result, the Writ Appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA No.2684/09 4 WA No.2684/09 5