IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WP(C).No. 8082 of 2009(E) --------------------------------------- PETITIONER(S): ------------------------- 1. THE MANAGER, V.P.K.M.M.S.PUTHUR, PALLIKAL, MALAPPURAM DISTRICT. 2. MR.SUNIL KUMAR, S/O.GOVINDAN CHETTIAR, AMBALIL HOUSE, SIYAMKANDIM P.O. PALLIKAL, MALAPPURAM DISTRICT. BY ADVS. MR.DEVAN RAMACHANDRAN, MR.K.M.ANEESH. RESPONDENT(S): ----------------------------- 1. STATE OOF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. DIRECTOR OF PUBLIC INSTRUCTION , TRIVANDRUM. 3. DEPUTY DIRECTOR OF EDUCATION,MALAPPURAM. 4. DISTRICT EDUCATION OFFICER,MALAPPURAM. BY SR. GOVERNMENT PLEADER SMT. T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.8082/2009 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF APPOINTMENT ORDER DTD. 5/06/2002. EXT.P2; COPY OF THE STAFF FIXATION ORDER DTD. 5/01/03. EXT.P3: COPY OF THE ORDER OF THE 4TH RESPONDENT DTD.10/07/03. EXT.P4: COPY OF THE ORDER OF THE 3RD RESPONDENT DTD.18/03/04. EXT.P5: COPY OF THE ORDER NO.EM(4)41386/06/DPI/D.DIS. OF THE 2ND RESPONDENT DTD. 30/05/07. EXT.P6: COPY OF ORDER NO.D.DIS.63911/04/RA (3)/DPI/DTD.1/1/05. EXT.P7: COPY OF THE ORDER OF THE 4TH RESPONDENT DTD.16/2/05. EXT.P8: COPY OF G.O.(MS)135/04/G.EDN. DTD. 15/05/04. EXT.P9: COPY OF G.O.(MS) NO.237/2000 DTD. 15/07/2000. EXT.P10: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC.NO.7455/2004 DTD. 8/07/04. EXT.P11: COPY OF THE REVISION PETITION FILED BY THE 1ST PETITIONER DTD. 12/06/07. EXT.P12: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.C.NO. 23093/2007 DTD. 27/07/07. EXT.P13: COPY OF THE ORDER OF THE 1ST RESPONDENT DTD.5/12/07. EXT.P14: COPY OF THE JUDGMENT IN WPC.NO.37537/2007 DTD.17/09/2008. EXT.P15: COPY OF THE ORDER NO.G.O.NO.970/2009/GEN.EDN.DTD.5/3/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. ------------------------------------- W.P.(C).No.8082 of 2009 -------------------------------------- Dated 8th April, 2009 JUDGMENT Heard Sri.Devan Ramachandran, the learned counsel appearing for the petitioners and Smt.T.B.Remani, the learned Government Pleader appearing for the respondents. 2. The first petitioner is the Manager of a recognized Aided High School. The first petitioner appointed the second petitioner as High School Assistant (Malayalam) as per Ext.P1 appointment order dated 5.6.2002 against a vacancy anticipated to arise during the academic year 2001-2002. The District Educational Officer declined to approve the said appointment on the ground that no additional post of H.S.A. (Malayalam) was sanctioned during the academic year 2001-2002. Yet another objection raised was that claims of three others had been rejected and the prior permission of the Government had not been obtained. The first petitioner Manager carried the matter in appeal. By Ext.P4 order passed on 18.3.2004, the Deputy Director of Education, Malappuram rejected the appeal. The Manager thereupon moved the Director of Public Instruction in revision. By Ext.P5 order passed on 30.5.2007, the Additional Director of Public Instruction rejected the revision. WP(C).No.8082/2009 2 3. The Manager had in the meanwhile filed an appeal challenging the staff fixation order for the year 2001-2002 before the Director of Public Instruction requesting that 10 posts of H.S.A. (Malayalam) may be sanctioned in the school for the academic year 2001-2002. That request was allowed by the Director of Public Instruction by Ext.P6 order dated 1.1.2005 and the District Educational Officer was directed to revise the staff fixation order accordingly. However, notwithstanding the direction issued by the Director of Public Instruction in Ext.P6, the District Educational Officer passed Ext.P7 order dated 16.2.2005 declining to sanction 10 posts of H.S.A. (Malayalam). The District Educational Officer relied on Exts.P8 and P9 Government orders to hold that the 10 posts of H.S.A (Malayalam) cannot be sanctioned, as the students learning languages other than Malayalam as Part I language, have to be excluded while computing the student strength for the purpose of staff fixation. The first petitioner thereupon filed Ext.P11 revision petition before the Government challenging Ext.P7 order and also the orders declining to approve the appointment of the second petitioner. He thereafter filed W.P.(C)No.23093 of 2007 in this Court. In the said writ petition, he referred to and relied on Ext.P10 judgment in W.P.(C)No.7455 of 2004 of this Court wherein this Court had taken the view that Exts.P8 and WP(C).No.8082/2009 3 P9 Government orders cannot operate in view of the stipulations contained in Rule 6D of Chapter XXIII of the Kerala Education Rules. 4. By Ext.P12 judgment delivered on 27.7.2007, this Court disposed of W.P.(C)No.23093 of 2007 with a direction to the Government to consider Ext.P11 revision and pass orders thereon bearing in mind the decision of this Court in W.P.(C)No.7455 of 2004 a copy of which is produced as Ext.P10 in this writ petition. The Government considered the matter and passed Ext.P13 order dated 5.12.2007 rejecting the first petitioner's request in Ext.P11 revision. The Government did not refer to Ext.P10 judgment of this Court or the contentions raised by the petitioners that when the field is occupied by Rule 6D of Chapter XXIII of the Kerala Education Rules, Exts.P8 and P9 cannot operate. The petitioners thereupon filed W.P.(C)No.37537 of 2007 challenging Ext.P13. By Ext.P14 judgment delivered on 17.9.2008, this Court quashed Ext.P13 and directed the Government to reconsider the matter. The Government thereafter heard the parties and by Ext.P15 order passed on 5.3.2009, declined to revise the staff fixation order and to approve the second petitioner's appointment. Ext.P15 is under challenge in this writ petition. 5. Sri.Devan Ramachandran, the learned counsel appearing for the petitioners submits that even on the second occasion, the WP(C).No.8082/2009 4 Government have not adverted to the case set out by the petitioners or the decision of this Court in Ext.P10 judgment and that the Government have acted mechanically in passing Ext.P15 order. The operative portion of Ext.P15 reads as follows: “The Hon'ble High Court in the judgment in W.P.(C)No.37537/07 (R) has directed that due inadvertence shall be given to Ext.P10 judgment in W.P.(C)No.7455/04 while the matter is decided afresh. In para 7 of that judgment the Court has held as follows: “In the absence of anything contained in Rule 6D or any other Rule in Chapter XXIII for excluding the students studying other languages for the purpose of sanctioning the post of High School Assistant (Malayalam) any executive order issued cannot have the effect of amending the siad statutory rule and cannot stand in the eye of law.” But amendment to Rule 6D Chapter XXIII KER was made as per G.O.(P) No.92/05/G.Edn. Dated 19/03/05. In the above circumstances, the request of the petitioners to approve the appointment of Sri.Sunil Kumar as has (Malayalam) at VPKMM HSS, with effect from 05/06/02 and to revise the staff fixation for the years 2001-02, 2002- 03, 2003-04 and 2004-05 without applying the provisions in G.O.(MS)No.237/00G.Edn. Dated 15/07/00 and G.O.(MS)No.135/04/G.Edn. Dtd. 15/05/04 is not allowable and it is rejected.” 6. It is evident from Ext.P10 judgment to which the State of Kerala is a party that Exts.P8 and P9 Government orders cannot operate when the field is occupied by Rule 6D of Chapter XXIII of the WP(C).No.8082/2009 5 KER. In the instant case, the 10th post of H.S.A. (Malayalam) was declined relying on Exts.P8 and P9 Government orders. This is evident from Ext.P7 order passed by the District Educational Officer. In the light of the decision of this Court evidenced by Ext.P10, I am of the opinion that the stand taken by the Government in Ext.P15 cannot be sustained. Even after noticing that this Court has in Ext.P10 judgment held that executive orders cannot operate when the field is occupied by a statutory rule, the Government rejected the first petitioner's revision petition on the ground that the stipulations in the Government orders dated 15.5.2004 and 15.7.2000 (Exts.P8 and P9) do not permit the sanction of an additional post of H.S.A. (Malayalam). No other reason has been stated by the Government to decline the request made by the first petitioner in his revision petition. I am therefore persuaded to agree with the learned counsel for the petitioners that the Government had not applied its mind when it passed Ext.P15 order. In the result, Ext.P15 is quashed and the Government are directed to pass revised orders on Ext.P11 revision petition filed by the first petitioner in the light of directions issued by this Court in Ext.P10 judgment in W.P.(C)No.7455 of 2004 and ignoring the stipulations in Exts.P8 and P9 Government orders. Final orders in the matter shall be WP(C).No.8082/2009 6 passed, as was done in the case covered by Ext.P10 judgment, within six weeks from the date on which the petitioners produce a certified copy of this judgment before the Secretary to Government, General Education Department. Needless to say, the petitioners shall also be afforded a reasonable opportunity of being heard before orders are passed as directed above. The writ petition is disposed of as above. P.N.RAVINDRAN Judge TKS