IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 WP(C).No. 34604 of 2008(T) -------------------------------------- PETITIONER(S): ----------------------- CIJI P. JOSE, LOWER PRIMARY SCHOOL ASSISTANT, AIDED LOWER PRIMARY SCHOOL, CHENAM P.O., CHERPU, THRISSUR DISTRICT, PIN- 680 561, RESIDING AT KAVALAKKAT HOUSE, CHIYYARAM P.O., THRISSUR DISTRICT. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, SRI.PETER JOSE CHRISTO, SRI.S.A.ANAND. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARIAT TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 2. DISTRICT EDUCATIONAL OFFICER, THRISSUR, PIN- 680 001. 3. ASSISTANT EDUCATIONAL OFFICER, CHERPU, THRISSUR DISTRICT , PIN- 680 561. 4. MANAGER, AIDED LOWER PRIMARY SCHOOL, CHENAM P.O., CHERPU, THRISSUR DISTRICT, PIN- 680 561. R1 TO R3 BY GOVT. PLEADER SMT.M.T. SHEEBA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 34604 of 2008(T) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 21/10/2003 OF THE MANAGER. EXT.P2: COPY OF THE ORDER DATED 03/03/2004 OF THE MANAGER. EXT.P3: COPY OF THE ORDER NO.D.DIS.D-2258/07 DATED 13/07/2007 OF THE A.E.O., CHERPU. EXT.P4: COPY OF THE APPOINTMENT DATED 01/06/2007. EXT.P5: COPY OF THE ORDER NO.D/2184/07/L.DIS. DATED 25/01/2008 OF THE 2ND RESPONDENT. EXT.P6: COPY OF THE APPEAL WAS FILED BY THE MANAGER BEFORE THE DISTRICT EDUCATIONAL OFFICER, THRISSUR DATED 11/08/2008. EXT.P7: COPY OF THE ORDER NO.B1-1492/2008/K.DIS. DATED 14/10/2008 THE DISTRICT EDUCATIONAL OFFICER, THRISSUR. EXT.P8: COPY OF THE ORDER NO.D-2267/08/L.DIS. DATED 23/10/2008 OF THE AEO, CHERPU. EXT.P9: COPY OF THE G.O.(P) NO.259/2006/G.EDN. DATED 12/10/2006. EXT.P10: COPY OF THE GOVERNMENT CIRCULAR NO.4545/J2/2007/G.EDN. DATED 18/05/2007. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 34604 of 2008T - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of October, 2011. JUDGMENT The petitioner is a claimant under Rule 51A of Chapter XIV-A K.E.R. Her initial appointment was for the period from 20.10.2003 to 2.3.2004 which was approved by Ext.P1 order. In a later vacancy which arose from 3.3.2004 to 30.3.2004 also, the petitioner was continued and the same has also been approved as per Ext.P2. One Smt.V.V. Sukumari, L.P.S.A. retired from service on 31.3.2007 and the Manager appointed the petitioner against that vacancy with effect from 1.6.2007 recognising her claim under Rule 51A, as per Ext.P4 order. The petitioner is accordingly continuing in service. 2. The approval of the same was declined by Ext.P5 order on the reason that the vacancy in an uneconomic school should be filled up only by a protected teacher. The appeal submitted by the Manager was rejected by the District Educational officer as per Ext.P7 order. Again, in the next year also, the petitioner's proposal for approval was rejected by the Assistant Educational Officer as per Ext.P8 order. The main reason for the rejection of the proposal is that the vacancy in an uneconomic school can be filled up wpc 34604/2008 2 only by protected teachers. Ext.P10 is the circular issued by the Government wherein, in para 4 it is stated that the claimants under Rules 43, 51A and 51B of Chapter XIV-A and Rule 9A of Chapter XXIV K.E.R. need not be considered for appointment in uneconomic schools in vacancies which are arising after 12.10.2006. 3. In the counter affidavit filed by the second respondent, the above stand is reiterated. Reliance is placed on Ext.P5 circular. Therefore, the only question is whether the claim of the petitioner under Rule 51A of Chapter XIV-A K.E.R. could be subject to the provisions of the circular. Obviously, the same cannot be, as the rules will override the provisions of a circular in case of conflict. 4. It is well settled that the benefit granted to a teacher under Rule 51A has to be extended by the Manager. Herein, the question is whether a protected hand who is available and who is liable to be deployed under various executive orders, should be absorbed as against a claimant under Rule 51A. Obviously, the statutory rules will prevail over executive orders. Rule 51A or any other provisions have not been amended for incorporating the provisions of the circular. Therefore, para 4 of Ext.P10 cannot operate against the provisions of Rule 51A of Chapter XIV-A K.E.R. 5. Learned Government Pleader pointed out that the school is an uneconomic one and therefore the provisions of Ext.P5 will have to be wpc 34604/2008 3 considered. 6. All these matters cannot be given a preference by a circular issued by the Government, in the light of the specific provisions of Chapter XIV-A K.E.R., especially Rule 51A. The amendment made to Rule 51A by including the second proviso and the explanation therein protects only the right of a protected teacher under the same educational agency. Herein, there is no plea that a protected hand is available under the same educational agency. Therefore, the said amendment cannot also defeat the right of the petitioner and the rejection of approval of appointment of the petitioner cannot thus be supported. 7. Therefore, the writ petition is allowed and the impugned orders, Exts.P5, P7 and P8 are quashed. There will be a direction to the third respondent to approve the appointment of the petitioner pursuant to the appointment orders, Exts.P2 and P4 in the respective years. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. Consequential benefits will be granted. No costs. (T.R. Ramachandran Nair, Judge.) kav/