IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 WP(C).No. 273 of 2007(G) ------------------------ PETITIONER(S): ----------------- S.R.KRISHNANKUTTY NAIR, MANAGER, K.S.M.H.S., EDAVATTAM, KOLLAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMNET OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. GOVERNMENT PLEADER SMT.SMITHA FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2009, ALONG WITH WPC NO. 26062 OF 2008, WPC NO.23452/07 AND WPC NO. 33825 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.273/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE PROCEEDINGS OF THE DEO, KOTTARAKKARA NO.B3/4564/04 DTD 12.10.2004. EXT.P2: TRUE COPY OF THE LETTER NO.B3/8353/04/L.DIS DTD. 21.10.2004. EXT.P3: TRUE COPY OF THE INTERIM ORDER IN WPC NO.34586/2004 DTD. 8.12.2004. EXT.P4: TRUE COPY OF THE PROCEEDINGS OF THE DEO, KOTTARAKKARA AS PER ORDER NO.B3/4690/05 DTD. 31.8.05. EXT.P5: TRUE COPY OF THE VERIFICATION REPORT DTD.12.7.2006. EXT.P6: TRUE COPY OF THE SUPER CHECK INSPECTION REPORT DTD.28.9.2006. EXT.P7: TRUE COPY OF THE INSPECTION REPORT CONDUCTED BY THE DDE, KOLLAM ON 10.11.2006. EXT.P8: TRUE COPY OF THE GO(P) NO.317/2005/G.EDN. DTD 17.8.05. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NOs. 273/07 23452/07, 26062/08 & 33825 OF 2008 ===================== Dated this the 15th day of September, 2009 J U D G M E N T The issue raised being common, these cases were heard together and are disposed of by this common judgment. 2. WP(C)No.23452/2007 is taken as the leading case. In this writ petition filed by the Manager of an aided Higher Secondary School, validity of clause (vi) of G.O(P).No. 317/2005/G. Edn. dated 17.8.2005 is the question raised for consideration. 3. Facts of the case are that, as a part of economy measures, Government of Kerala had issued GO(P). No.2278/99/Fin dated 17.11.1999 directing inter alia that new posts in Government and Government aided schools and colleges should not be created. This was followed by GO(P) No.994/2000/Fin dated 30.6.2000, directing that if new posts in schools are found inevitable, it should, as far as possible, be filled up by re-deployment. Again G.O(P) No.817/2001 Fin. dated 11.6.2001 was issued ordering that no new posts shall be created in Government/aided schools in the State and that the WPC 273/07, 23452/07, 26062/08 & 33825/08 :2 : ban will be in effect till further orders. Later, vide GO(P) No.303/2001/G.Edn. dated 5.10.2001, Government reviewed the issue in all its aspects and directed to approve all appointments in Government/Aided schools up to 14.7.2001 with a condition that in future no new appointments would be made without prior approval of Government. 4. Subsequently, by GO(P).No.377/2001/G.Edn. dated 28.12.2001, it was clarified by the Government that the condition regarding prior approval shall be applicable only to appointments against new division vacancies and that the vacancies against existing posts due to retirement, promotion, leave, death, resignation etc., can be filled up without prior sanction from the Government. Again, GO(P)NO.80/2002/G. Edn. 27.4.2002 was issued ordering that, all appointments of teachers in Government/Aided schools up to 29.10.2001 made in accordance with the provisions of KER will be approved, making it clear that no new vacancies consequent on staff fixation shall be filled up without prior approval of Government. Government again issued GO(P).No.169/04/G. Edn. dated 15.6.2004, ordering approval of appointments made against additional division vacancies in Aided WPC 273/07, 23452/07, 26062/08 & 33825/08 :3 : Schools after 29.10.2001, if otherwise eligible as per the provisions in the KER. Again the matter was reviewed, on the basis of representations received from various quarters requesting for approval of appointments made against the additional division vacancies during 2004-05 and 2005-06. Accordingly, the Government issued Ext.P2, GO(P) No.317/05/G. Edn. dated 17.8.2005, para 3 of which reads as under. “Government after having examined the matter in detail, are pleased to issue the following orders. i. The Assistant Educational Officers/District Educational Officers concerned will sanction additional divisions in Government/Aided Schools, eligible as per the provisions in the KER, for the year 2005-06 and approve the appointments against those vacancies, if they are otherwise in order. Eligible post of non-teaching staff will also be sanctioned accordingly. ii. All appointments of Government/Aided Schools teachers made against regular additional division vacancies during 2004-05 will also be approved, if otherwise eligible as per the provisions in the KER. iii. All appointments of non-teaching staff made in Government/Aided Schools during 2004-05 will also be approved, if otherwise eligible as per the provisions in the KER. iv. Salary for the newly appointed teachers and non teaching staff during year 2004-05 as above up to 31.7.2005 will be credited to the PF accounts and salary from 1.8.2005 only will be paid in cash. No withdrawal shall be made before 1.8 2007 from the arrears of salary WPC 273/07, 23452/07, 26062/08 & 33825/08 :4 : credited to PF Account. v. The educational officers are hereby authorized to revise the staff fixation for the year 2004-05 and 2005-06 as above, whether necessary, in accordance with the provisions in the KER and to issue consequential orders approving the appointments, if they are otherwise in order, not withstanding the fact that the appointments are taken up with higher authorities on appeal. vi. The restriction imposed on appointment of teachers and non teaching staff consequent to additional division vacancies shall continue from the academic year 2006- 07 onwards.” Thus by clause (vi) of para 3 of Ext.P2, the restriction on appointment of teachers and non teaching staff consequent to additional division vacancies was ordered to continue from the academic year 2006-07. 5. In so far as this writ petition is concerned, the school in question is a Higher Secondary School, where, during the academic year 2006-07, two additional vacancies arose and Ext.P1 staff fixation order shows that such additional divisions were in Standard V and Standard VIII. However, Ext.P1 staff fixation order itself shows that because of Ext.P2 Government Order, the vacancies in question are not sanctioned. Despite the prohibition imposed as per Ext.P2 and Ext.P1 staff fixation order, WPC 273/07, 23452/07, 26062/08 & 33825/08 :5 : petitioner appointed two teachers as per Exts.P3 ad P4 orders of appointment and approval sought was rejected as per Exts.P5 and P6. Appeals filed were also rejected as per Ext.P7 order of the Deputy Director, relying on clause (vi) of Ext.P2. It is in these circumstances, the writ petition is filed. 6. The contention raised by the counsel for the petitioner is that in terms of the provisions contained under Rule 23 of Chapter VI KER read with Rules 3 and 4 of Chapter XXIII, depending upon the division strength, teachers are to be appointed. He also made reference to Rule 12 of Chapter XXIII providing for fixation of staff strength. It is contended that Clause (vi) of Ext.P2 prohibiting appointment of teaching staff is against the aforesaid statutory provisions and is therefore, illegal. 7. I have considered the submissions made by both sides. There cannot be any dispute with the proposition that executive orders cannot be contrary to the statutory provisions. In the judgment of the Division Bench in Unni Narayanan v. State of Kerala(2009(2) KLT 604) and the judgment in Moosakutty v. D.E.O., Wandoor (2009(3) KLT 863) relied on by the counsel for WPC 273/07, 23452/07, 26062/08 & 33825/08 :6 : the petitioner, the principle that an executive order cannot run counter to statutory provisions has been accepted by this Court. However, I do not think that the principles laid down therein has any application to the facts of this case. 8. In my view, the question has to be examined in the context of Rule 14 of Chapter XXIII KER and both sides made submissions on this aspect at length. Rule 14 of Chapter XXIII KER reads thus: Notwithstanding anything contained in these rules, if it is found necessary, Government may by orders extend any ban on the creation of posts, retrenchment of staff etc; effected by them in Government schools to aided schools. 9. A reading of this rule shows that notwithstanding the provisions contained in Chapter XXIII, it is open to the Government to impose any ban on creation of posts in the aided schools by extending the ban which is already effected in Government schools. This provision is not under challenge in this writ petition. Therefore, what is to be examined is whether there is any ban on creation of posts in the Government Schools and whether, by virtue of the impugned order, the same has been extended to the aided schools. This calls examination of the WPC 273/07, 23452/07, 26062/08 & 33825/08 :7 : Government orders referred to earlier, which are relied on in Ext.P2. 10. GO(P) No.2278/99/Fin dated 17/11/99 is the first order referred in Ext.P2 and as per Clause (b), new posts in Government and Government aided schools and colleges should not be created. Subsequently, the Government issued GO(P) No.994/2000/Fin dated 30th of June, 2000 which interalia provided that no new posts will be created in Government, during the current financial year. It also provided that if new posts in schools are found inevitable, it should, as far as possible, be filled up by redeployment. Thus, while GO(P) No.2278/99/Fin. dated 17/11/99 applied to both Government and aided schools and colleges, the provisions contained in GO(P) No.994/2000/Fin. dated 30th of June 2000 applied only to Government sector. This was followed by GO(P) No.817/01/Fin dated 11th of June, 2001, referred to at Sl.No.3 in Ext.P2, which, after making reference to the aforesaid two previous Government orders, stated that the Government have decided that no new posts shall be created in Government or Government Aided schools/colleges and that the ban will be in effect till further orders. WPC 273/07, 23452/07, 26062/08 & 33825/08 :8 : 11. Again by GO(P) No.303/01/G.Edn. dated 5/10/2001, after making reference to the Government orders at Sl.Nos. 1 and 2, stated that all appointments of teachers in Government / Aided Schools upto 14/7/01 will be approved if the appointments are in accordance with the provisions of KER. Clause 3 of Para 3 further provided that in future, no new appointments will be made in the schools without prior approval of the Government. This order was followed by GO(P) No.377/01/G.Edn dated 28/12/2001 where para (3) of GO(P) No.303/2001/G.Edn dated 5/10/2001 providing for prior approval was clarified, but the ban on future appointments in Government and Aided Schools continued without any modification. Again Government issued GO(P) No.80/02/G.Edn dated 27/4/2002, by which, in partial modification of the Government orders dated 5/10/01 and 28/12/2001 referred to above, it was ordered that all appointments of teachers in Government/Aided Schools upto 29/10/2001 made in accordance with the provisions of KER, shall be approved. 12. The next relevant Government order to be referred to and relied on in Ext.P2 is GO(P) No.169/04/G.Edn. Dated 15/6/04, which reveals that prior to its issue, Government had issued WPC 273/07, 23452/07, 26062/08 & 33825/08 :9 : orders dated 29/4/2003 and 21/2/2004 regarding the appointments made after 29/10/2001 and that no orders were issued for approval of teachers appointed after 29/10/2001 against leave vacancies and additional division vacancies. It also states that representations were received by the Government from various quarters requesting to approve appointment of teachers in leave vacancies and additional vacancies. It was accordingly that the Government issued this order, which provided that appointments of aided school teachers made against regular additional division vacancies and leave vacancies after 29/10/2001 will be approved if otherwise eligible as per provisions of the KER. This order is confined in its operation to aided school teachers alone unlike the previous orders which applied to both the Government and Aided school teachers. 13. It was making reference to all the aforesaid orders that Ext.P2 GO(P) No.317/05/G.Edn. dated 17/8/05 was issued, para 3 of which has been extracted earlier. As already stated, by this order, all appointments made in Government schools and Aided Schools during the academic year 2004-05 and 2005-06 were ordered to be approved, but however, by Clause (vi) it was WPC 273/07, 23452/07, 26062/08 & 33825/08 :10 : ordered that the restriction imposed on appointment of teaching and non teaching staff consequent to additional division vacancies shall continue from the academic year 2006-07 onwards. 14. A survey of the aforesaid Government orders show that ban on appointments after 29.10.2001 in both Government and Aided Schools was in force by virtue of GO(P) No.80/02 dated 27/4/2002 and that the ban on appointments in aided schools alone was lifted by GO(P) No.169/04. Thus, even after the issue of GO(P) No.80/02, the ban in the Government Schools continued as before. While the position continued as such, by issuing Ext.P2 GO(P) No.317/05/G.Edn dated 17/8/05, which is made applicable to both the Government/Aided Schools, it is ordered that the ban on appointment to additional division vacancies shall continue from the academic year 2006-07. This means that the ban of appointment in Government sector, which was already in force is extended to aided schools also from the academic year 2006-07 onwards. In view of the provisions contained in Rule 14 of Chapter XXIII KER, it has to be held that Clause (vi) of Ext.P2 Government Order is perfectly valid. If that be so, the ban imposed by the WPC 273/07, 23452/07, 26062/08 & 33825/08 :11 : Government from the academic year 2006-07 is a valid one. 15. In so far as this case is concerned, admittedly, the appointments in question effected as per Exts.P3 and P4 were during the academic year 2006-07 and if that be so, by virtue of the continuance of the ban, these appointments could not have been approved and the rejection of approval as per Exts.P5 and P6 orders and Ext.P7 order dismissing the appeal, will have to be sustained. 16. It was contended that by virtue of the provisions contained in Rule 23 of Chapter VI read with Rules 3, 4 and 12 of Chapter XXIII KER, for each additional divisions, the petitioner is entitled to appoint additional teachers and therefore, the ban is illegal. The appointment of teaching staff in aided schools is governed by the provisions contained in Chapter XXIII KER. Rule 14, incorporated in Chapter XXIII starts with a non obstante clause and therefore, the aforesaid rule will prevail over all other rules in the Chapter. If that be so, the fact that the management is entitled to make appointments by virtue of the provisions in Chapter XXIII will always stand superseeded by any ban extended to aided schools as per Rule 14 of Chapter XXIII KER itself. WPC 273/07, 23452/07, 26062/08 & 33825/08 :12 : 17. It was further contended that with the issuance of GO (P) No.169/04/G.Edn. dated 15/6/04, ban in respect of Aided schools having been lifted fully, unless a fresh order extending the ban effected in the Government schools is issued, there cannot be any ban on creation of posts in the Aided Schools. As already seen, prior to the issuance of GO(P) NO.169/2004/G.Edn, both in respect of Government and Aided Schools, ban on appointments against vacancies arising after 29/10/2001 was in force. It is this ban which has been again extended to the aided schools also as per Clause (vi) of Ext.P2, GO(P) No.317/05/G.Edn dated 17/8/05. The judgment in State of Kerala v. Jayan (2009 (3) KLT 857) referred to by the counsel for the petitioner was rendered in the context of Rule 9 of Chapter XXIV KER, which is similar to Rule 14 of Chapter XXIII. All that the judgment lays down is that to extend the ban in Government Schools to Aided Schools, there should be a separate order issued by the Government. In this case, Ext.P2 is a separate order issued by the Government and therefore, I do not find anything objectionable in Ext.P2. Therefore, there is no substance in the contention that the Government should have issued a separate WPC 273/07, 23452/07, 26062/08 & 33825/08 :13 : order extending ban in Government schools to Aided Schools. 18. For the above reasons, I am not persuaded to agree with the counsel for the petitioner, and in my view, Clause (vi) of Ext.P2 does not call for any interference. For the aforesaid reasons, writ petitions fail and therefore will stand dismissed. ANTONY DOMINIC, JUDGE Rp