IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 8893 of 2008(H) ------------------------------------- PETITIONER(S): --------------------- MANAGER, KODUMON HIGH SCHOOL KODUMON P.O., PATHANAMTHITTA DISTRICT. BY ADV. MR.K.T.SHYAMKUMAR RESPONDENT(S): ------------------------ 1. SAJU K., FULL TIME MENIAL KODUMON HIGH SCHOOL, KODUMON P.O. PATHANAMTHITTA DISTRICT. 2. THE DISTRICT EDUCATION OFFICER PATHANAMTHITTA. 3. THE DEPUTY DIRECTOR OF EDUCATION PATHANAMTHITTA AT THIRUVALLA. 4. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. 5. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM R2 TO R5 BY SR.GOVERNMENT PLEADER MR.MUHAMOOD T.T. R1 BY ADV. MR. K.SHAJ, MR.SAJJU.S. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 8893/2008-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER NO.B6/3679/07 L. DIS DATED 23/06/2007 ISSUED BY THE SECOND RESPONDENT TO THE FIRST RESPONDENT. EXT.P2: COPY OF THE ORDER NO.B4/11261/07/L. DIS DATED 09/11/2007 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER. EXT.P3: COPY OF THE CIRUCLAR NO.B1/11403/07 DATED 16/11/2007 ISSUED BY THE THIRD RESPONDENT TO ALL SCHOOL MANAGERS AND DISTRICT/SUB DISTRICT EDUCATION OFFICERS. EXT.P4: COPY OF THE GOVERNMENT ORDER NO.GO(P)/46/06Q EDN. DATED 01/02/2006. EXT.P5: COPY OF THE GOVERNMENT ORDER NO.G.O.(MS)NO.20/82/G.EDN. DATED 15/02/1982. EXT.P6: COPY OF THE GOVERNMENT ORDER NO.G.O. (MS)NO.231/84 G.EDN. DATED 27/10/1984. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.8893/2008-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 29th day of July, 2009 J U D G M E N T The petitioner is the Manager of a High School and is aggrieved by the order of rejection of approval of appointment of a Full Time Menial. The first respondent is the person who was appointed in the post of Full Time Menial. The vacancy arose when one Anil R., Full Time Menial of the school was promoted as Peon with effect from 01/04/2007 in a retirement vacancy which arose in the school. The approval of appointment was rejected as per Ext.P1 for the reason that no protected hands are working in the school. The petitioner went in appeal against the same. It was rejected by the third respondent as per Ext.P2. Ext.P3 is the Circular issued by the Deputy Director of Education. The petitioner points out that even though the respondents insist that a protected hand should be appointed, under Rule 6(viii) of Chapter V K.E.R., the obligation of the Manager is to absorb a protected hand from Aided Primary Schools in Educational Sub-district. The same alone need be satisfied. But herein no protected hand is available in Pathanamthitta District. W.P.(C). No.8893/2008 -:2:- 2. In the counter affidavit, the stand taken is that the petitioner has not appointed any protected hands. In paragraph (7), it is admitted that there is no protected Full Time Menial/Peon in the Revenue District, Pathanamthitta for deployment. It is pointed out that the respondent has asked for the availability of protected FTM/Peon from all other Revenue District. The question is whether there is failure on the part of the petitioner to appoint a protected hand. The Sub-Rule (viii) of Rule 6 of Chapter V of Kerala Education Rules is extracted below:- “viii. An agreement duly executed by the applicant to the effect that he is prepared to absorb qualified teachers/non teaching staff who, after putting in service of 2 years and drawing 2 vacation salaries, have been retrenched from any of the aided high schools in the Education district or aided primary school in the Education Sub-district in which the applicant proposes to open/upgrade the school.” 3. Going by the said Rule, what is important to be noticed is that an obligation arises in case there is a protected hand in the Educational District/Sub District as the case may be. In the absence of a protected hand W.P.(C). No.8893/2008 -:3:- available in the Educational District, it cannot be said that the Manager failed to comply with Rule 6(viii) of Chapter V K.E.R. The said issue was considered by this Court in W.P.(C).No.4623/2009 wherein the legal question was examined in detail. Paragraph (9) of the said judgment reads thus:- “9. It is well settled that 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. See, Unni Narayanan v. State of Kerala (2009 (2) KLT 604). Herein, Ext.P7 shows that there is no protected teacher available in the Wandoor Educational Sub-district, which fact is admitted in paragraph (9) of the counter affidavit. If that is so, the Manager cannot be faulted for not appointing a protected teacher in the vacancy to which the petitioner was appointed. Even if there will be a protected U.P.S.A in Malappuram Revenue District, that cannot be sought to be enforced against the Manager, obviously.” 4. The learned Government Pleader submitted that as per Rule 9 of Chapter III, K.E.R the Manager is bound to obey the directions issued from time to time by the Government and the Department. The said Rule W.P.(C). No.8893/2008 -:4:- will not help the stand taken by the respondents since the obligation is only to obey the directions issued from time to time which are inconformity to the Rules. Herein, the obligation of the Manager arises under Sub Rule viii of Rule 6 of Chapter V K.E.R. In that view of the matter, as it is admitted that no protected hand is available in Pathanamthitta District, the objection raised for approval of appointment of the petitioner cannot be sustained. Therefore, the writ petition is allowed and the impugned orders, Exts.P1 and P2, are quashed. 5. There will be a direction to the second respondent to approve the appointment of the first respondent as Full Time Menial as sought for in the order of appointment and appropriate orders be passed within a period of one month from the date of receipt of a copy of the judgment. The monetary benefits flowing from the said approval will also be sanctioned and the arrears as on today will be disbursed within a period of two months thereafter. No costs. (T.R. Ramachandran Nair, Judge.) ms