IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 WP(C).No. 34476 of 2010(H) -------------------------- PETITIONER(S): --------------- KUMARI MOHANAM K.P. W/O.MURALEEDHARAN NAIR, GREESHMAM, TC-40/1672,MANACAUD PO,THIRUVANANTHAPURAM-695 009, H.S.A(SS)HAJI CHMKM VHSS,VALLAKADAVU THIRUVANANTHAPURAM- BY ADV. SRI.C.S.AJITH PRAKASH SRI.T.D.SALIM SRI.PAUL C THOMAS SRI.K.SUKUMARAN NAIR RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, DPI JUNCTION, VAZHUTHACADU, THIRUVANANTHAPURAM-695 001. 3. DISTRICT EDUCATIONAL OFFICER, THIRUVANANTHAPURAM-695 001. 4. THE MANAGER, HAJI CHMKM VHSS, VALLAKKADAVU, THIRUVANANTHAPURAM-695 008. 5. SMT.LATHA KUMARI.S, LPSA LPS VALLAKKADAVU,THIRUVANANTHAPURAM-695 008. GOVERNMENT PLEADER FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 3/12/2011 , THE COURT ON 03/12/2011 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF APPOINTMENT ORDER DATED 7.12.1989 EXT.P2-TRUE COPY OF APPOINTMENT ORDER DATED 8.11.2005 EXT.P3-TRUE COPY OF DO. DT.2.6.08 EXT.P4-TRUE COPY OF LETTER DT.16.10.09 EXT.P5-TRUE COPY OF ORDER DT.12.7.2010 EXT.P6-TRUE COPY OF ORDER DT.6.10.09 EXT.P7-TRUE COPY OF REVIEW PETITON DT.27.7.2010 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 34476 of 2010-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2011. JUDGMENT The petitioner is a claimant under Rules 43 and 51A of Chapter XIV-A K.E.R. The promotion of the petitioner as H.S.A. (Social Studies) was effected by the Manager and the appointment was approved by the District Educational Officer. But an audit objection was raised by the Deputy Director of Education stating that a protected hand had to be appointed. The same has resulted in the petitioner filing this writ petition. It is stated that the petitioner is due to retire on 31.3.2012 and she is not being paid salary from October, 2009 in view of the audit objection. 2. The facts relevant for consideration are the following: The petitioner entered service as L.P.S.A. in the school on 15.11.1988 which was approved by the Assistant Educational Officer, as evident from Ext.P1 order. She is a postgraduate in Sociology with M.Ed. qualification. Ext.P2 is the order promoting her as H.S.A. (Social Studies) with effect from 8.11.2005 and the said appointment was approved as evident from Ext.P2 itself. 3. During the year 2006-2007, it is stated, that consequent on the wpc 34476/2010 2 approval of appointment, the petitioner had drawn salary as H.S.A. In the year 2006-2007 there was a division fall and consequently the petitioner was reverted as L.P.S.A. on 15.7.2006. When a retirement vacancy arose on 2.6.2008 again she was promoted and the said appointment is approved as evident from Ex.P3, as she had obtained a claim under Rule 51A of Chapter XIV-A K.E.R. In Ext.P4 audit objection, as regard the approval, it is stated that at least one protected teacher should have been appointed. 4. Thereafter, the Manager approached the Director of Public Instruction. Relying upon G.P.(P) No.178/02/G.Edn. dated 28.6.2002 and G.O.(P) No.46/06/G.Edn. dated 1.6.2006, the Director of Public Instruction took the view that the Manager should have appointed a protected hand and accordingly the appointment was directed to be cancelled. Ext.P7 is the revision petition filed by the petitioner before the Government challenging the order of the Director of Public Instruction and as no orders were passed, this writ petition was filed. 5. The counter affidavit filed on behalf of the third respondent states that the petitioner was promoted with effect from 2.6.2008 in a retirement vacancy as she was a Rule 51A claimant. Para 6 of the counter affidavit also shows that when the petitioner was promoted, in the resultant vacancy the fifth respondent was appointed. That appointment has been approved wpc 34476/2010 3 by the Assistant Educational Officer and she is still in service and getting salary. The revision petition filed by the petitioner was heard on 29.1.2011 and final orders are yet to be passed. 6. The question is whether the right of the petitioner who was originally promoted under Rule 43 of Chapter XIV-A K.E.R. and was reverted, can be curtailed. Evidently, the petitioner was initially promoted to the post of H.S.A. as she was a claimant under Rule 43 of Chapter XIV-A K.E.R. The said promotion was approved and the petitioner obtained a title to be an H.S.A., subject to staff fixation orders. But during 2006-2007 due to division fall she was reverted and again a promotion was made as evident from Ext.P3. As the petitioner was originally a Rule 43 claimant (even though now the claim is also recognised as a Rule 51A claimant), she is entitled for preference since the executive orders like G.P.(P) No.178/02/G.Edn. dated 28.6.2002 and G.O.(P) No.46/06/G.Edn. dated 1.6.2006 cannot go against the statutory rules in case of a conflict. The above legal position has been laid down by this Court in P.K. High School v. State of Kerala (2011 (4) KLT 365). As far as Rule 43 is concerned, it is subject to Rules 44, 45 and 51A. In respect of a claim under Rule 51A is concerned, a protected hand of the same school alone can have a preference, wpc 34476/2010 4 going by the second proviso. Herein, what is projected against the petitioner is the provision for appointment of a protected hand as per G.P. (P) No.178/02/G.Edn. dated 28.6.2002 and G.O.(P) No.46/06/G.Edn. dated 1.6.2006. There is no case that a protected hand from the same school was available for absorption in the parent school. Therefore, the second proviso to Rule 51-A will not apply. Hence, if the petitioner is considered as a Rule 51A claimant also, she is entitled for appointment. That claim cannot be curtailed evidently by the provisions of the executive orders for deployment of protected hands. Even under Rule 43, the petitioner had a right for promotion when vacancy arose in the higher post. In the light of the dictum laid down by this Court in P.K. High School's case (2011 (4) KLT 365), in case of conflict the statutory rules will have precedence over the executive orders. 7. In the light of the above legal position, the petitioner is entitled to succeed in the writ petition. Therefore, Ext.P4 audit objection as well as Ext.P5 order are quashed. It is declared that the approval of appointment of the petitioner as H.S.A. is perfectly valid. In that view of the matter, there will be a direction to disburse the withheld salary of the petitioner from October, 2009, within a period of six weeks from the date of receipt of a copy of this judgment. Even though it is stated in the counter affidavit that wpc 34476/2010 5 the revision petition was heard in January, 2011, no orders have been passed so far. Therefore, in the light of the view taken by me, the revision petition has become unnecessary and the same will be struck off. The petitioner will produce a copy of this judgment before the Government for compliance. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/