IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 WP(C).NO. 12603 OF 2010(A) -------------------------- PETITIONERS: --------------- 1. THE MANAGER, JAMA-ATH LP SCHOOL, MEKKALADY,KALADY, ERNAKULAM DISTRICT. 2. K.A.MUHAMMED SALIM, JUNIOR ARABIC TEACHER, JAMA-ATH LP SCHOOL,MEKKALADY,KALADY, ERNAKULAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ----------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY,TRIVANDRUM-14. 3. THE DISTRICT EDUCATIONAL OFFICER, ALUVA, ERNAKULAM DISTRICT. 4. THE ASSISTANT EDUCATIONAL OFFICER, ANGAMALY,ERNAKULAM DISTRICT. BY GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)NO.12603/10 PETITIONER'S EXTS: EXT.P1: COPY OF ORDER OF APPOINTMENT OF THE 2ND PETITIONER DT.1.10.03. EXT.P2: COPY OF ORDER OF APPOINTMENT OF THE 2ND PETITIONER DT.19.6.08. EXT.P3: COPY OF ORDER NO.D/2844/2008 OF THE 4TH RESPONDENT DT.20.12.08.. EXT.P4: COPY OF ORDER NO.B6-210/09/K.DIS. OF THE DISTRICT EDUCATIONAL OFFICER DT.25.4.09. EXT.P5: COPY OF ORDER NO.K.DIS.F5/39241/2009/DPI OF THE 2ND RESPONDENT DT.30.7.09. EXT.P6: COPY OF REVISION PETITION FILED BEFORE THE GOVERNMENT DT.12.8.09. EXT.P7: COPY OF ORDER NO.54107/S1/2009/G.EDN. OF THE GOVERNMENT DT.6.1.10. EXT.P8: COPY OF LETTER NO.A/540/2010/L.DIS. OF THE 4TH RESPONDENT DT.30.1.10. EXT.P9: COPY OF DECISION REPORTED IN 2009(3) KLT 863. TRUE COPY P.A.TO JUDGE dsn T.R.RAMACHANDRAN NAIR, J. ------------------------------------ W.P.(C).No.12603 OF 2010 ------------------------------------ DATED THIS THE 19th DAY OF NOVEMBER, 2011 JUDGMENT The petitioners herein are challenging the orders refusing the approval of appointment produced as Exhibits P3, P4, P5 and P7. It is submitted by the learned counsel for the petitioners that the 2nd petitioner is a claimant under Rule 51A of Chapter XIV-A KER and executive orders providing for absorption of protected hands cannot prevail over the said statutory rule and hence the legal right of the 2nd petitioner cannot be denied. 2. The initial appointment of the 2nd petitioner was approved as per Exhibit P1 order. Thereafter a regular appointment was made as per Exhibit P2 dt.19.6.08, as Junior Arabic Teacher. 3. The question herein is centered on two aspects. One, whether a Rule 51A claimant can be refused approval. Evidently, Rule 51A of Chapter XIV-A KER confers the right on the teacher concerned for appointment and the said right cannot be curtained by executive orders like those relied on here by the respondents. W.P.(C)No.12603/10 -2- Therefore, the provisions of various Government Orders with regard to absorption of protected hands can only be subservient to the statutory rule and in case of conflict, the statutory rules will prevail. In that view of the matter, the petitioner cannot be refused approval. Apart from that on the second aspect, i.e., on the availability of a protected hand, it is submitted by the learned counsel for the petitioner that no protected hand is available in the category itself. 4. Going by the averments in the counter affidavit, it can be seen that a protected hand in the post of Junior Arabic Teacher is not available in the sub-district concerned. What is stated therein is that when the State is taken as a whole, protected hands may be available. A Circular, No.79/10/G.Edn. dated 25.5.2010 is relied upon. The said plea is against the decision of this Court in Moosakutty v. D.E.O., Wandoor (2009(3) KLT 863), wherein this Court was of the view that the obligation under Rule 6(viii) of Chapter V can be imposed only if protected hands are available in the Educational Sub District or District concerned, as the case may be. The said judgment has become final as the Writ Appeal against the same was dismissed, W.P.(C)No.12603/10 -3- which has been confirmed in the Special Leave Petition filed before the Apex Court also. Apart from that the Circular dated 25.5.2010 is much after the appointment of the 2nd petitioner. 5. In that view of the matter, the petitioners are entitled to succeed in the Writ Petition. Exhibits P3, 4, 5 and 7 are quashed. There will be a direction to the 4th respondent to pass orders granting approval of appointment of the 2nd petitioner, which will be passed within a period of six weeks from the date of receipt of a copy of this judgment and consequential monetary benefits also will be sanctioned. The Writ Petition is allowed as above. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn