IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 WP(C).No. 30595 of 2007(P) -------------------------- PETITIONER: ------------ RENJITH PAUL, AGED 29 YEARS, S/O. PAILY, UPPER PRIMARY SCHOOL ASSISTANT, ST.PETERS' T.T. INSTITUTE, KOLENCHERRY-682 311, (RESIDING AT ADIVALLIL HOUSE, KARUKAPPALLY, KOLENCHERRY, ERNAKULAM DISTRICT.) BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-13. 3. THE DEPUTY DIRECTOR OF EDUCATION, KAKKANAD, ERNAKULAM DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, ALUVA, ERNAKULAM DISTRICT. 5. THE MANAGER, ST.PETERS' T.T. INSTITUTE, KOLENCHERRY-682 311, ERNAKULAM DISTRICT. BY GOVERNMENT PLEADER SHRI T.T.MUHAMOOD FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER NO.B1/905/05/K.DIS OF THE DIST. EDUCATIONAL OFFICER DATED 15.3.20058.12.2001 EXT.P2 TRUE COPY OF THE ORDER NO.B3/7189/05/K.DIS OF THE DY DIRECTOR OF EDUCATION DATED 24.6.2005 EXT.P3 TRUE COPY OF THE ORDER NO.ET4/61365/05/DPI/K.DIS. OF THE DIRECTOR DATED 28.7.2006 EXT.P4 TRUE COPY OF THE GO(RT) NO.2310/2007/G.EDN OF THE GOVT. DATED 26.6.2007also EXT.P5 TRUE COPY OF THE RELEVANT PAGE OF THE KER EXT.P6 TRUE COPY OF THE CIRCULAR NO.K.DIS.140067/H2/73 OF THE DIRECTOR DATED 12.2.1974 EXT.P7 TRUE COPY OF THE GO(P) NO.169/04/G.EDN OF THE GOVT. DATED 15.6.2004 EXT.P8 TRUE COPY OF THE DECISION REPORTED IN 2005(3) KLT 299 DATED 27.5.2005 EXT.P9 TRUE COPY OF THE GO(P) NO.121/2005/G.EDN OF THE GOVT. DATED 16.4.2005 EXT.P10 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.32706/2005 R EXT.P11 TRUE COPY OF THE ORDER NO.B6/9169/05/D.DIS OF THE DIST. EDL. OFFICER DATED 15.3.2007 EXT.P12 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.16821/2008 //TRUE COPY// K.T. SANKARAN,J. -------------------------------------- W.P.(C) No.30595 of 2007 P -------------------------------------- Dated this the 10th day of July, 2008. J U D G M E N T The petitioner was appointed as Teacher Educator in St. Peters' T.T.Institute, Kolencherry, from 12.1.2005 to 31.3.2005, in a leave vacancy. It is stated that the appointment was rejected by the District Educational Officer as per Ext.P1 Order dated 15.3.2005 stating that as per G.O.(P) No.169/04/G.Edn dated 15.6.2004 appointments in leave vacancies of less than one academic year cannot be considered for approval. The fifth respondent, Manager, filed appeals before the Deputy Director of Education, Aluva and Director of Public Instruction. The appeal filed before the Deputy Director of Education was rejected as per Ext.P2 order dated 24.6.2005 and the appeal filed before the Director of Public Instruction was rejected as per Ext.P3 order dated 28.7.2006. The Manager filed revision before the Government which was also rejected as per Ext.P4 order dated 26.6.2007. 2. The reliefs prayed for in the Writ Petition are the following: “(a) call for the records relating to Exhibits P-1,P-2,P-3 and P-4 and quash the originals of the same by the issue a writ of certiorari or other appropriate writ or order. (b) issue a writ of mandamus or other appropriate WP(C) No.30595/2007 2 writ order or direction commanding the 4th respondent District Educational officer, Aluva to approve the appointment of the petitioner as Teacher Educator from 12- 1-2005 to 31-3-2005 without enforcing Para (6) of G.O.(P) No. 169/2004/G. Edn. Dated 15-6-2004 (Exhibit P-7). (c) pass such other order or direction which this Hon'ble Court may be pleased to deem fit and proper to grant in the circumstances of the case.” 3. The reason for not approving the appointment of the petitioner in the leave vacancy as disclosed in Ext. P1 is that the vacancy was for a duration of less than one year. In Ext. P2 it is stated that as per G.O.(P) No.169/04/G/Edn. dated 15.6.2004 vacancies having a duration of less than one academic year shall be filled up only on daily wage basis. The Director of Public Instruction as well as the Government also took the same view. 4. Sub-rule (3) of Rule 7A of Chapter XIV A of the Kerala Education Rules before its amendment in the year 2005 provided that the vacancies, the duration of which is two months or less, shall not be filled up by any appointment. Sub-rule (3) of Rule 7A was amended and another Sub-rule was substituted which provides that vacancies, the duration of which is less than one academic year, shall not be filled up. The amendment came into force with effect from 16.4.2005. Before the amendment which came into force on WP(C) No.30595/2007 3 16.4.2005, the Government had issued G.O(P) No. 169/04/G/Edn. dated 15.6.2004 referred to above. In W.P.(C) No. 32706/2005 a question arose whether G.O.(P) 169/04/G/Edn. dated 15.6.2004 which runs counter to Sub-rule (3) of Rule 7A of Chapter XIV A of the Kerala Education Rules (as then existed) would have binding effect. The learned single judge of this Court held in W.P. (C) 32706/2005 that Sub-rule (3) of Rule 7A of Chapter XIV A of the Kerala Education Rules before the amendment did not prohibit the filling up of vacancies the duration of which was two months or more. It was further held that the Government cannot abrogate or nullify a statutory Rule by issuing an executive order. 5. In the case on hand, the appointment was for the period which commenced before 16.4.2005, the date on which the substitution of Sub-rule (3) of Rule 7A of Chapter XIV A of the Kerala Education Rules came into force. As held in W.P.(C) No. 32706/2005, the Government Order which runs contrary to the specific provision in the Kerala Educational Rules cannot have any binding effect. Therefore, the view taken in Exts. P1 to P4 does not appear to be correct in law. Accordingly Exts. P1 to P4 are quashed. The 4th respondent, District Educational Officer, shall pass appropriate orders approving the appointment of the petitioner as Teacher Educator for the period from 12.1.2005 to 31.3.2005 in St. Peters' T.T. Institute, Kolencherry under the management of the 5th respondent, if the appointment is otherwise in order. The District Educational Officer shall pass orders within a period of two months from the date of receipt a WP(C) No.30595/2007 4 copy of the judgment. Registry shall forward a copy of the judgment to the fifth respondent. The Writ Petition is disposed of as above. K.T. SANKARAN, JUDGE. cks