IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 WP(C).No. 37537 of 2007(R) -------------------------- PETITIONERS: ---------------- 1. THE MANAGER, V.P.K.M.M.S. PUTHUR, PALLIKAL, MALAPPURAM DIST. 2. MR. SUNIL KUMAR, S/O. GOVINDAN CHETTIAR, AMBALIL HOUSE, SIYAMKANDIM, P.O.PALLIKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.DEVAN RAMACHANDRAN SMT.T.G.SEETHAL RESPONDENTS: ----------------- 1. STATE OF 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 GOVERNMENT PLEADER SRI.T.T.MOHAMMEDFOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.37537/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF APPOINTMENT ORDER DT 5.6.2002. EXT.P2: TRUE COPY OF THE STAFF FIXATION ORDER DT 5.1.2002. EXT.P3: TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 10.07.2003. EXT.P4: TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DT 18.3.2004. EXT.P5: TRUE COPY OF THE ORDER NO.EM(4) 41386/06/DPI/D.DIS OF THE 2ND RESPONDENT DATED 30.5.2007. EXT.P6: TRUE COPY OF ORDER NO.D.DIS 63911/04/RA(3)/DPI/DT 1.1.2005. EXT.P7: TRUE COPY OF the ORDER OF THE 4TH RESPONDENT DT 16.2.2005. EXT.P8: TRUE COPY OF G.O(MS) 135/04/G.EDN DT 15.5.2004. EXT.P9: TRUE COPY OF G.O.(MS) NO.237/2000 DT 15.7.2000. EXT.P10: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.7455/2004 DT 8.7.2004. EXT.P11: TRUE COPY OF THE REVISION PETITION FILED BY THE 1ST PETITIONER DATED 12.6.2007. EXT.P12: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.23093/07 DT 27.7.2007. EXT.P13: TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DT 5.12.2007. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 37537 OF 2007 R ==================== Dated this the 17th day of September, 2008 J U D G M E N T The first petitioner is the Manager and the second petitioner is an HSA(Malayalam) appointed in V.P.K.M.M.S, Puthur. 2. As per Ext.P1, second petitioner was appointed as HSA (Malayalam) w.e.f.5/6/2002 and the staff fixation order for 2001-02 is Ext.P2. However, the request of the Manager for approval of the appointment was turned down by Ext.P3 on the ground that the appointment of the petitioner was against an anticipated additional post for 2001-02 and that no such additional post was sanctioned during the year. An appeal was filed and that was rejected by the DPI as per Ext.P4 order where reliance was placed on Exts.P8 and P9 Government orders. Further appeal filed to the 2nd respondent also met with rejection as per Ext.P5, in which again, reliance was placed on Exts. P8 and P9. 3. In the meantime, against Ext.P1 and subsequent staff fixation orders, appeal was filed, in which, Ext.P6 order was passed allowing the appeal and directing the DEO, Malappuram to revise the staff fixation order. Ext.P7 is the consequential order that was issued by the DEO WPC 37537/07 :2 : following Ext.P6. Subsequently, a combined revision was filed against Exts.P5 and P7, which is Ext.P11 in this writ petition. 4. Complaining that there was delay in considering and disposing of Ext.P11 revision, petitioners herein filed a writ petition before this court as WP(C) No.23093/07. That writ petition was disposed of by Ext.P12 judgment directing that the 1st respondent therein shall dispose of Ext.P11 within two months from the date of receipt of a copy of the judgment taking into account the judgment rendered by this court in WP(C) No.7455/04, a copy of which is produced in this writ petition as Ext.P10. Accordingly, the matter was considered by the 1st respondent and by Ext.P13, the revision was rejected. It is challenging Ext.P13 and praying for a direction to approve the appointment of the petitioner with all consequential benefits, this writ petition is filed. 5. As can be seen from Ext.P2 staff fixation order Exts. P4 and P5 appellate orders against Ext.P3 order rejecting approval and Ext.P13 order rejecting Ext.P11, reliance has been placed on Exts.P8 and P9 Government orders. Ext.P9 is a Government order dated 15/7/2000 directing that no post of HSA(Malayalam) be sanctioned from the beginning of the academic year 2000-01 reckoning the number of students learning other languages namely Arabic, Urdu, Sanskrit etc. In Ext.P8 WPC 37537/07 :3 : Government order dated 15/5/2004, the Government ordered that the principle adopted in Ext.P9 in the matter of sanctioning HSA(Malayalam) post will be followed for the appointments made from 2002-03 onwards also. A reading of the aforesaid impugned orders show that it is based on these orders that the decision has been taken by the statutory authorities. 6. Petitioners invite my attention to Ext.P10 judgment in WP(C) NO.7455/04 wherein validity of the aforesaid Government Orders were considered by this court. In para 7 of that judgment, this court has held as follows: In the absence of anything contained in Rule 6 D or any other Rule in Chapter XXIII for excluding the students studying other languages for the purpose of sanctioning the post for High School Assistant (Malayalam), any executive order issued cannot have the effect of amending the said statutory rule and cannot stand in the eye of law. On the other hand, Rule 6(E) would give a clear indication that if in a High School having all or any of the Standards VIII to X, if any one of the languages other than regional languages or mother tongue is first introduced, there is a restriction that there should be atleast ten pupils learning the language in Standard VIII. Therefore, the restriction of students learning the language applies only to other languages other than Malayalam and regional languages. Therefore while sanctioning the post of Malayalam teachers the question of exclusion of students studying other languages does not arise. At any rate, in the absence of an amendment made to the statutory rule contained in Rule 6D, Government cannot enforce Ext.P4 as the said Government order will run contra to the principle contained in Rule 6D of Chapter XXIII in the matter of sanctioning the post for language teachers. WPC 37537/07 :4 : 7. A reading of the aforesaid portion of Ext.P10 judgment shows that Exts.P8 and P9 Government orders have been held to be unenforcible and admittedly the judgment has become final. It was taking note of this aspect of the matter that this court has directed in Ext.P12 judgment that while Ext.P11 revision is reconsidered, due advertance should be given to Ext.P10 judgment also, which has been referred to in that judgment as Ext.P9. However, fact remains that in Ext.P13 order, even the relevance of Ext.P10 judgment or the law laid down therein has not been adverted to by the 1st respondent. Therefore, Ext.P13 deserves to be set aside and I do so. 8. It is directed that the 1st respondent shall reconsider Ext.P11 with notice to the petitioners and as expeditiously as possible at any rate within 8 weeks of production of a copy of this judgment. Needless to say that due advertence shall be given to Ext.P10 judgment in WP(C) No.7455/04 while the matter is decided afresh. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp