IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 WP(C).No. 23400 of 2005(I) -------------------------- PETITIONER(S): --------------- T. SUNIL KUMAR, S/O. KARUNAN K., HIGH SCHOOL ASSISTANT, GOVERNMENT HIGH SCHOOL, MANGALPADI, KASARGOD DISTRICT, RESIDING AT BABY NIVAS, ANJARAKANDY, PALAYAM, P.O. MAMBA, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): --------------- 1. STATE OF KRALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. DISTRICT EDUCATIONAL OFFICER, THALASSERY 5. MANAGER, C.H. MOHAMMED KOYA MEMORIAL H.S., KAVUMPADY, THILLANKARI P.O., KANNUR DISTRICT. R1 BY GOVERNMENT PLEADER SMT. NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23400 of 2005 APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE APPOINTMENT ORDER DATED 31.7.98 ISSUED BY THE 5TH RESPONDENT. P2 : COPY OF THE ORDER DATED 1.1.99 ISSUED BY THE 4TH RESPONDENT P3 : COPY OF THE ORDER NO. D.DIS/EM3/65071/99 DATED -3-2000. P4 : COPY OF THE REVISION PETIION DATED 19.2.2000 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT. P5 : COPY OF THE CLARIFICATION DATED 25.3.98 ISSUED BY THE GOVERNMENT. P6 : COPY OF THE ORDER DATED 1.1.02 ISSUED BY THE 1ST RESPONDENT. P7 : COPY OF THE G.O.(MS) NO.123/91/GE DATED 5.8.91. P8 : COPY OF THE REVIEW PETITON DATED 23.12.2004 SUBMITTED BY THE 5TH RESPONDENT. P9 : COPY OF THE ORDER NO.9350/E1/02/G.EDN. DATED 9.3.2005. P10 : COPY OF THE ORDER OF APPROVAL NO. B6/3999/05/K.DIS DATED 2.5.05 ISSUED BY THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE smvd T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.23400/2005-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 1st day of July, 2011 J U D G M E N T Aggrieved by Exts.P9 and P10 orders passed by the Government and the District Educational Officer as far as the matter relates to the denial of approval of appointment of the petitioner as H.S.A (Hindi) from 31/07/1998 to 20/10/1998 this writ petition is filed. 2. The petitioner joined duty as U.P.S.A in Government U.P.S Tholapatty in Wayanad District on 28/02/2001 and continued there upto 01/06/2004. Thereafter, he joined as H.S.A at Government H.S., Mangalpady on 02/06/2004 and is continuing there. He had prior service in an Aided School managed by the fifth respondent from 31/07/1998 wherein he was appointed as H.S.A (Hindi). He resigned the job on getting appointment in Government service on 26/02/2001. His present grievance is with regard to the non approval of appointment for the period from 31/07/1998 to 20/10/1998. It is pointed out that appointment is approved only from 21/10/1998 to 26/02/2001. Ext.P1 is the copy of the appointment order. W.P.(C). No.23400/2005 -:2:- 3. The only question is whether there was a protected teacher, available as on the date of appointment of the petitioner. 4. What is pointed out by the learned counsel for the petitioner is that the school in question comes under Thalassery Educational District and there was no protected teacher who was eligible for deployment to the Aided School in the post of H.S.A (Hindi) and hence the non-approval of the appointment for the balance period is not legal and valid. 5. It is pointed out in the counter affidavit filed by the first respondent is that a protected teacher was available in the Kannur Educational District. 6. The learned counsel for the petitioner places reliance upon the decision of this Court in Moosakutty v. D.E.O, Wandoor [2009 (3) KLT 863] wherein a similar question was considered and the scope of Rule 6 (viii) of Chapter V Kerala Education Rules regarding the obligation of the Manager to absorb a protected teacher was considered. 7. The only question is whether the view taken by the Government that a protected teacher was available in Kannur District would go against the petitioner. In para.4 of the counter affidavit, what is averred is that there was one deployed protected teacher available in the category of H.S.A W.P.(C). No.23400/2005 -:3:- (Hindi), namely, Shri T.C.Madhusoodhanan who was working in Thayineri High School in Kannur District as on 31/07/1998. It is further pleaded in the counter affidavit is that the petitioner was appointed in C.H.M.S., Kavumpady which is also in the administrative jurisdiction of the Deputy Director of Education, Kannur. The relevant question is whether a protected teacher was available in the educational district. The matter is concluded in favour of the petitioner in the light of the decision of this Court in Moosakutty's case [2009 (3) KLT 863]. The writ appeal filed against the said Judgment stands dismissed and the Special Leave Petition filed against the same has also been dismissed. The legal question with regard to the obligation of the Manager has been explained by this Court in paragraphs 8, 6 and 9 therein as follows:- “Going by R.6 (viii), the Manager will have to execute an agreement that he is prepared to absorb qualified teachers/non teaching staff who have been retrenched from any of the aided high schools in Education district or aided primary school in the Education Sub-District in which the applicant proposes to open/upgrade the school. Since the school in question is only an Upper Primary School, prior to 1990, the obligation as such W.P.(C). No.23400/2005 -:4:- is confined to the prescriptions of the said paragraph. Under R.9 of Chap.III the Manager will have to abide by the orders that will be issued from time to time by the Government and the Department “in conformity with the provisions of the Act and the Rules issued thereunder”. Here, the Manager has executed Ext.P6 agreement whereby, he has obliged himself to appoint a protected Teacher from any one of the Aided Primary School in Wandoor Educational Sub-District. This is in terms of sub-r.(viii) of R.6 of Chap. V, K.E.R. Therefore, in terms of sub-r.(1) of R.9 of Chap.III, K.E.R, Ext.P6 can be enforced against the Manager. The scope of the same cannot be widened as proposed now by relying upon Government Order, G.O.(P). No.83/88/G.Edn., dated 18.04.1988. An executive order cannot go against and override the express statutory prescriptions. Unless the Rules are amended in terms of the executive order, by appropriate means, the same cannot be sought to be enforced.” 8. Evidently, herein the protected teacher was available in Kannur Educational District and not in Thalassery Educational District. In that W.P.(C). No.23400/2005 -:5:- view of the matter, the availability of the said teacher in Kannur Educational District cannot disable the petitioner to get approval as H.S.A (Hindi) from 31/07/1998 to 20/10/1998. Therefore, the writ petition is only to be allowed. 9. It is declared that the petitioner's appointment is liable to be approved for the period from 31/07/1998 to 20/10/1998. Exts.P9 and P10 to the extent to which the same is denied to the petitioner are quashed. There will be a direction to the District Educational Officer to approve the appointment of the petitioner for the period from 31/07/1998 to 20/10/1998 and he will be entitled for grant of monetary benefits also. The writ petition is accordingly allowed and appropriate orders will be passed within a period of four months from the date of receipt of a copy of this Judgment. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms