IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 WP(C).No. 17711 of 2009(H) --------------------------------------- PETITIONERS: --------------------- 1. A.V. NARAYANAN (RETD ASST.EDUCATIONAL OFFICER, IRITTY) “SREE VALSAM”, 19TH MILE, P.O. CHAVASSERY-670 702, KANNUR DISTRICT. 2. V.GOPALA (RETD SENIOR SUPERINTENDENT), ASSISTANT EDUCATIONAL OFFICE, IRITTY) P.O. THILLENKERY-670 702, KANNUR DISTRICT. BY ADV. SRI.P. P.ABDULKAREEM. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM -14. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. THE ASSISTANT EDUCATIONAL OFFICER, P.O. IRITTY, KANNUR DISTRICT. 5. THE MANAGER, BAFAKI MEMORIAL L.P. SCHOOL, VELIYAMBRA P.O., KANNUR DISTRICT- 670 702. 6. C.C. REMADEVI, L.P.S.A, BAFAKI MEMORIAL L.P. SCHOOL, P.O.VELIYAMBRA-670 702, KANNUR DISTRICT. W.P.(C). NO.17711/2009-H: 7. ACCOUNTANT GENERAL (KERALA & LAKSHADEEP), THIRUVANANTHAPURAM. R1 TO R4 BY SR. GOVT. PLEADER SRI. T.T. MUHAMOOD, R5 BY ADV. SRI.K.V.SOHAN, R6 BY ADVS. SRI.P.J.MATHEW, SRI.THOMAS JOHN AMBOOKEN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2011, ALONG WITH W.P.(C). NO. 21457 OF 2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17711/2009-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER NO.OA II/18813/07 DT.D 31/07/07 ISSUED BY R.3. EXT.P.2: COPY OF THE ORDER NO. OA II(3) 18813/07 DTD. 12/05/08 ISSUED BY THE R.3. EXT.P.3: COPY OF THE ORDER NO. PB(3) 75885/08 DTD. 04/11/08 ISSUED BY THE R.2. EXT.P.4: COPY OF THE LETTER NO.H(1) 76325/08 DTD. 15/11/2008 OF THE R.2. EXT.P.5: COPY OF THE ORDER NO. 76898/C3/2008/G. EDN. DTD. 01/04/09 ISSUED BY THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.17711/2009-H & 21457/2009-B ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 6th day of June, 2011 J U D G M E N T Both these writ petitions are concerned with a common issue i.e. with regard to the approval granted in respect of the petitioner in W.P.(C). No.21457/2009 in the post of Lower Primary School Assistant with effect from 05/06/2006. 2. The petitioners in W.P.(C).No.17711/2009 are the then Assistant Educational Officer and the Senior Superintendent of the Assistant Educational Office, Iritty and the petitioner in W.P.(C). No.21457/2009 is the L.P.S.A appointed. The facts in short are the following:- Two vacancies arose in the school managed by the fifth respondent in W.P. (C).No.21457/2009. One of the vacancies arose due to the promotion of one Shri N.Vijayan as Headmaster of the School and the other arose consequent on the resignation of a L.P.S.A, viz.Smt.T.Reshmi. The petitioner in W.P.(C).No.21457/2009, Smt.C.C.Remadevi was appointed in the promotion vacancy of Shri N.Vijayan and it was approved as per Ext.P1 order and she was disbursed salary also. W.P.(C). Nos.17711/2009 & 21457/2009 -:2:- 3. Later, in the year 2008, the Department withheld the payment of salary to the said teacher on the pretext that the Manager had not appointed a protected teacher as per G.O.(P).No.178/02/G.Edn., dated 28/06/2002, G.O.(P).No.46/2006/G.Edn., dated 01/02/2006 and G.O.(Rt). No.3776/2006/G.Edn., dated 24/08/2006 in one of the vacancies. Later a show cause notice was issued by the fourth respondent proposing to cancel the approval granted to the petitioner, Smt.Remadevi which is produced as Ext.P3 in W.P.(C).No.21457/2009. By Ext.P4 dated 09/01/2008, the fourth respondent informed the petitioner and the Manager that a protected teacher has to be appointed, failing which salary of the petitioner from 2008 onwards would be withheld. The petitioner filed an appeal against the same before the third respondent. Thereafter, a protected teacher Smt.V.M.Chitraprabha was appointed by the Manager as per Ext.P6 proceedings dated 06/11/2008. Again, by referring to the appointment of the said teacher, the petitioner-Smt.Remadevi filed a representation as per Ext.P7 before the second respondent. The Additional Director of Public Instruction allowed her request and modified the approval of appointment of the petitioner-Smt.Remadevi from 24/11/2008, i.e., the date on which the protected teacher-Smt.V.M.Chitraprabha was appointed by Ext.P8 order. W.P.(C). Nos.17711/2009 & 21457/2009 -:3:- 4. W.P.(C).No.21457/2009 is filed by the petitioner seeking to refix the seniority of the petitioner with effect from the date of her initial appointment as on 05/06/2006 and to regularise her appointment. Apart from pointing out that the Manager had earlier appointed a protected teacher, Shri Padmanabhan Nambiar, it is also contended by the learned counsel for the petitioner that actually on 05/06/2006, no protected teacher was available in Iritty Sub District and it is also pointed out that, even for appointing the protected teacher, the Manager had to get the list from the neighbouring Sub District, Mattannur which is evident from Ext.P6. 5. In W.P.(C).No.17711/2009, the petitioners have since retired from service and an amount of Rs.1,47,624/- is shown as liability against them and it is sought to be recovered from the D.C.R.G sanctioned. The amount represents the salary paid to the petitioner-Smt.Remadevi in W.P. (C).No.21457/2009. It is pointed out that the approval of appointment of Smt.Remadevi was made due to non availability of protected teachers in Iritty Educational Sub District where they were working as Assistant Educational Officer and Senior Superintendent. It is pointed out in the writ petition in paragraph (2) that even though these facts were brought to the W.P.(C). Nos.17711/2009 & 21457/2009 -:4:- notice of the third respondent while furnishing reply to the audit objection, that was not considered. 6. Separate counter affidavits have been filed by the respondents in the writ petitions. 7. Since it is contended that protected teacher was not available as on 05/06/2006, the said aspect has to be considered in the light of the various Government Orders. G.O.(P).No.178/02/G.Edn., dated 28/06/2002 provided for filling up of all the vacancies by appointing protected teachers. It was modified by G.O.(P).No.46/2006/G.Edn., dated 01/02/2006 which provided that at least one vacancy should be filled up by appointing a protected teacher. The same is applicable to new schools opened/upgraded from 1979 onwards. In G.O.(P).No.46/2006/G.Edn., dated 01/02/2006 one more stipulation is that the Manager should be supplied the list of protected teachers. 8. Therefore, the question whether actually there were protected teachers as available in Iritty Educational Sub District arises for consideration. Even though in paragraph (2) of W.P.(C).No.17711/2009 the petitioners have specifically averred that no protected teachers were available, that is not specifically denied by the respondents in the counter W.P.(C). Nos.17711/2009 & 21457/2009 -:5:- affidavit. The stand taken by the respondents is that if there were no protected teachers available from the list sent by them, then the vacancy should be filled up only on daily wage basis. 9. This Court in Moosakutty v. D.E.O., Wandoor [2009 (3) KLT 863] held that the obligation of the Manager is to appoint a protected teacher only from the list of protected teachers available in the concerned Educational Sub-District, in terms of Rule 6(viii) of Chapter V of Kerala Education Rules. The said dictum is laid down in paragraph (6), (8) and (9) as follows:- “Going by R.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 Chap.III the Manager will have to abide by the orders that will be issued from time to time by the Government and W.P.(C). Nos.17711/2009 & 21457/2009 -:6:- 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-r.(viii) of R.6 of Chap. V, K.E.R. Therefore, in terms of sub-r.(1) of R.9 of Chap.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 18.04.1988. 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.” The said Judgment has become final as the Writ Appeal stands dismissed and the Special Leave Petition filed by the Government is also dismissed. 10. In that view of the matter, the Manager cannot be faulted for not appointing a protected teacher, due to non availability of the protected teacher in the Iritty Educational Sub District, during the relevant period. W.P.(C). Nos.17711/2009 & 21457/2009 -:7:- There is nothing in the pleadings of the respondents that any list of protected teachers was forwarded to the Manager. Therefore, the action taken by the first petitioner in W.P.(C).No.17711/2009, viz., the Assistant Educational Officer to approve the appointment of Smt.Remadevi cannot be said to be wrong. Apart from that there were two vacancies in 2006 and even one of those vacancies was ear marked for appointing a protected teacher. 11. It is submitted by the learned Government Pleader that another teacher was appointed in one vacancy but that was not approved. However, in the year 2008, Smt.V.M.Chitraprabha was appointed with effect form 24/11/2008. Evidently, she was in the list of protected teachers from Sub District Mattannur, which supports the plea of the petitioners. 12. In that view of the matter and in the light of G.O.(P). No.46/2006/G.Edn., dated 01/02/2006 which clearly provides a procedure for communicating the list of protected teachers and as there is nothing in the pleadings of the respondents that such a list was forwarded to the Manager, it cannot be said that the approval granted by the Assistant Educational Officer is illegal for any reason. In the Judgments of this Court in W.P.(C).No.8039/2008, and W.P.(C).No.2563/2008 this point has been W.P.(C). Nos.17711/2009 & 21457/2009 -:8:- upheld. Therefore, the approval granted to the petitioner in W.P.(C). No.21457/2009 from 05/06/2006 cannot be said to be illegal. In that view of the matter, the writ petition is allowed. Exts.P3, P4 and P8 are quashed. The petitioner in W.P.(C).No.21457/2009 will be granted approval with effect from 05/06/2006 and appropriate orders will be passed by the fourth respondent. If any arrears of salary is due to the petitioner, the same will be disbursed within one month. 13. With regard to W.P.(C).No.17711/2009, since the approval granted is found to be proper, Exts.P1 to P3 and P5 will stand quashed. The amount paid as salary to the teacher, Smt.C.C.Remadevi, cannot be held as liability against the petitioners. It is submitted by the learned counsel for the petitioners that the amount has been recovered from the D.C.R.G. of the petitioners. Therefore, there will be a direction to release the amount thus recovered within two months from the date of receipt of a copy of this Judgment. The writ petitions are allowed as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms