IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 15525 of 2010(M) -------------------------- PETITIONER(S): ---------------------- P.GEETHA KUMARI, W/O.MOHANKUMAR, AGED 45 YEARS, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), DEVI VILASOM HIGH SCHOOL, KANDANKERY, P.O.THAYANKARY, (VIA) EDATHUA, ALAPPUZH DISTRICT. BY ADVS. 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 DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, KUTTANAD, ALAPPUZHA DISTRICT. 5. THE MANAGER, DEVI VILASOM HIGH SCHOOL, KANDANKARY, P.O.THAYANKARY, (VIA) EDATHUA, ALAPPUZHA DISTRICT. R1 TO R4 BY GOVT. PLEADER SMT.NISHA BOSE R5 BY ADV.SRI.C.S.GOPALAKRISHNAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMV WPC NO.15525 OF 2010 (M) APPENDIX PETITIONER(S) EXHIBITS : P1. : COPY OF THE ORDER NO.F/2001/08 OF THE DEO P2. : COPY OF THE ORDER NO.B2-21500/08/K.DIS. OF THE DEPUTY DIRECTOR OF EDUCTION. P3. : COPY OF THE ORDER NO.EC3(1)/54012/09/DPI/K.DIS. OF THE 2ND RESPONDENT. P4. : COPY OF THE ORDER NO.64054/A3/2009/G.EDN. OF GOVT. P5. : COPY OF THE ORDER NO.5251/A3/2010/G.EDN. OF GOVT. P6. : COPY OF THE G.O. (P) NO.259/2006/G.EDN. OF GOVT. P7. : COPY OF THE CIRCULAR NO.4545/J2/2007/G.EDN. OF GOVT. P8. : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO.23261/1998-T. P9. : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.20914/2003-M. P10. : COPY OF THE ORDER NO.D.DIS.F/2301/08 OF THE DEO. P11. : COPY OF THE ORDER NO.13498/N2/09/G.EDN. OF GOVT. P12. : COPY OF THE G.O.(P) NO.52/2011/G.EDN. OF THE GOVT. P13. : COPY OF THE DECISION REPORTED IN 2011 (4) KLT 365. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A. TO JUDGE AMV T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.15525 of 2010-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2011. JUDGMENT The petitioner, a claimant under Rule 43 of Chapter XIV-A K.E.R., is aggrieved by the orders Exts.P1 to P5 whereby the approval of promotion of the petitioner as HSST (Physical Science), was rejected, by relying upon the Government Order dated 12.10.2006 and the circular dated 18.5.2007, Ext. P7. 2. Learned counsel for the petitioner submitted that the provisions under Rule 43 of Chapter XIV-A K.E.R. enable the petitioner to claim promotion and herein there is an established vacancy. It is submitted that the circular cannot go against the stipulations of the statutory rules and reliance is placed on the judgment of this Court in P.K. High School v. State of Kerala (2011 (4) KLT 365). The view taken by the statutory authorities is that the school is an uneconomic one and therefore the vacancy has to be filled up by deploying a protected hand. 3. Evidently, Rule 43 is only subject to Rules 44, 45 and 51A of Chapter XIV-A K.E.R. The legal position, as regards a similar situation was considered by this Court in P.K. High School's case (2011 (4) KLT wpc 15525/2010 2 365) and it was held that the right of promotees under Rule 43 will get precedence over the protected teachers from schools under other Educational Agencies. The dictum laid down therein is the following: “In fact, Note 1A is very clear on this aspect. It provides for reappointment to protected teachers “available under the Educational Agency.” The meaning of the words “protected teacher” is given in the explanation. When the general scope and purport of Rule 51A is to confer preference for appointment in future vacancies in respect of teachers who have been relieved under different circumstances, under the same Educational Agency, it cannot be envisaged that the proviso as noted above, will apply to protected teachers of schools under other Educational Agencies, especially in the light of Note 1A. In the case of such protected teachers, the obligation of the Manager arises under Rule 6(viii) of Chapter V and various Government Orders have been issued further in that regard. The protected teachers under the very same Educational Agency will have preference by virtue of the second proviso. In that view of the matter, there cannot be any difficulty to recognise the rights of promotees under R.43 which is only subject to R.51A as far as the present context is concerned. No protected teachers under the very same Educational Agency were available for absorption. Therefore, the right of promotees under R.43 will get precedence over the protected teachers from schools under other Educational Agencies who get a right under various executive wpc 15525/2010 3 orders alone. Evidently, the provisions of statutory rules will override the various clauses of the executive orders, in case of any conflict. Evidently, the words “any general order that may be issued by the Government” can only relate to such orders which may apply in the field of promotion alone and not in respect of other general orders like the orders granting protection. While amending R.51A by including the second proviso, preference is conferred only on the protected teachers of the very same Educational Agency. If the argument of the learned Govt. Pleader that the words “general order” in R.43 will cover other protection orders applicable under different circumstances, is accepted, then the second proviso to R.51A also may come in conflict with such general orders, as various claimants who are eligible for protection as per those orders, can claim such vacancies. Such was not the intention of the second proviso to R.51A. This also gives a clue for interpreting R.43, especially the words “any general order that may be issued by the Government”, that they can only apply to general orders concerning promotion.” 4. Learned Government Pleader submitted that the school is an uneconomic one and therefore the vacancy must be filled up appointing a protected hand. The concept of an uneconomic school is introduced only in certain Government orders and neither Rule 43 nor any other provisions of the Rules, have restricted the power of the Manager to promote an eligible wpc 15525/2010 4 and qualified person even in an uneconomic school. Apart from that, going by the counter affidavit filed by the fourth respondent, the High School is not an uneconomic establishment. It is averred in para 6 that the minimum effective strength of DVHS, Kandankeri from Standard I - X shall be 250. But the total effective strength comes only 191 instead of 250. It is stated that if the effective strength is considered as a whole, the petitioner's school is an uneconomic one. It is pointed out in the latter part of para 6 that the effective strength in High School Section is sufficient and economic for the approval of appointment of the promotion post of the petitioner. Therefore, what is pointed out against the petitioner is that if the strength is taken as a whole, the school will be uneconomic. 5. Evidently, in the light of the provisions of Rule 43 and in the absence of any restriction in the provisions of the Act or Rules for promoting the qualified and eligible teacher, the objection cannot be sustained. The executive orders or circulars will have to yield to the express provisions of statutory rules in case of a conflict. 6. In that view of the matter, the impugned orders Exts.P1 to P5 are quashed. It is declared that the petitioner's promotion as H.S.A. (Physical Science) is liable to be approved and there will be a direction to the fourth wpc 15525/2010 5 respondent to approve the promotion as sought for by the Manager in the appointment order. Appropriate orders will be passed within two months from the date of receipt of a copy of this judgment and consequential monetary benefits also will be granted. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/