IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 WA.No. 2724 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.26688/2006 Dated 17/10/2007 .................... APPELLANT: 2ND RESPONDENT ------------------------- SANTHAKUMARI, HEADMISTRESS, A.U.P.SCHOOL, PALLATHADKA, P.O.PALLATHADKA, KASARAGOD DISTRICT. BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) RESPONDENTS: PETITIONER & RESPONDENTS 1,3 AND 4 ----------------------------------------------- 1. MOHANAN A.V., U.P.S.A.(MALAYALAM), A.U.P.SCHOOL, PALLATHADKA, P.O.PALLATHADKA, KASARAGODE DISTRICT. 2. THE MANAGER, A.U.P.SCHOOL, PALLATHADKA, PALLATHADKA P.O., KASARAGODE DISTRICT. 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, KASARAGODE. BY ADV. SRI.KALEESWARAM RAJ SRI.P.SHRIHARI SMT.P.VANI GOVERNMENT PLEADER MR.SANDESH K RAJA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2008, ALONG WITH WA NO. 2750 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. -------------------------------------------------------------------------------- Writ Appeal Nos.2724 & 2750 of 2007 -------------------------------------------------------------------------------- Judgment Balakrishnan Nair, J. These Writ Appeals arise from the Judgment of the learned Single Judge in Writ Petition (C) 26688/06 filed by the 1st respondent herein. 2. The brief facts of the case are the following : A vacancy of Headmaster arose in the AUP School, Pallathadka on 01.05.2005. The writ petitioner was having all the prescribed qualifications for promoiton to that vacancy as per Rule 45 read with Rule 45B of Chapter XIVA KER. The appellant in WA No.2724/07, Smt.Santhakumari was the seniormost Teacher in the said school. She was having all the qualifications prescribed under Rule 45, but, she did not clear the account test qualification prescribed under Rule 45B. But, she was entitled to get permanent exemption from clearing the account test on attaining the age of 50 years. She attained the age of 50 years on 28.05.2005. So, the Manager, who was the brother of Smt.Santhakumari, appointed her as Headmistress of the school on 28.05.2005, overlooking the claim of the petitioner. The petitioner, on the refusal of the Manager to appoint WA Nos.2724 & 2750 of 2007 2 him on 01.05.2005 as Headmaster, moved the statutory authorities. This Court directed the consideration of his claim. The claim was considered by the Assistant Educational Officer and rejected by Ext.P5 order. The said order was affirmed by the DEO by Ext.P8 order. The petitioner filed a revision before the Government, challenging Ext.P8. The same was dismissed by Ext.P11. Challenging Exts.P5, P8 and P11 and seeking consequential reliefs, the Writ Petition was filed. The petitioner attacked the appointment of Smt.Santhakumari and his non-appointment, contending that he is having all the qualifications prescribed as per the Rules. By issuing executive orders, the Government cannot prescribe any additional qualifications and make him unqualified. Executive orders cannot have the efficacy to vary, modify or annul a statutory rule. 3. The Manager, the Government as also Smt.Santhakumari supported the impugned orders. Reliance was placed on Ext.R1(3) order of the Government dated 06.05.1978, directing appointment of persons knowing Tamil/Kannada in areas predominantly inhabited by such minorities in the post of Headmaster of Primary Schools. Smt.Santhakumari knows Kannada language, whereas the petitioner is not Kannadiga. He has not cleared any WA Nos.2724 & 2750 of 2007 3 language test in Kannada. In view of the above position, the respondents contended that this being a bi-lingual school run by a linguistic minority speaking Kannada language, the appointment could have been made only of a person, knowing Kannada. The petitioner, being unqualified, the post could not be filled up when the vacancy arose. When Smt.Santhakumari became qualified on attaining the age of 50 years, she was rightly appointed. When no one in the feeder category is qualified, the post has to be filled up with the person, who becomes first qualified. In this case, Smt.Santhakumari acquired all the requisite qualifications first and therefore, she was rightly appointed. It is also pointed out that she is the senior-most UPSA. The Management also contended that the educational institution is run by a linguistic minority and therefore, it is not bound by the seniority rule in selecting and appointing a Headmaster. 4. The learned Single Judge found that the petitioner was having the prescribed qualifications as per the provisions of the KER. It was also found that on the date of occurrence of the vacancy, he alone was available as a qualified hand. The learned Single Judge held that a minority educational institution cannot appoint an unqualified teacher nor can it keep the post of WA Nos.2724 & 2750 of 2007 4 Headmaster vacant till a person of the Management's choice becomes qualified. It was also found that Ext.R1(3) will apply only to departmental teachers and not to aided school teachers. Based on the above findings, the impugned orders were quashed. A direction was issued to the Management to appoint the petitioner as Headmaster within a time limit. 5. The appellants challenged the above Judgment raising the following contentions : They point out that Ext.R1(3) will apply to all teachers, irrespective of whether they are in Government service or in aided school service. Otherwise it will amount to discrimination between aided school teachers and Government school teachers. They are equal in all other respects. So, there cannot be any discrimination in the matter of applicability of Ext.R1(3). Next, it is contended that the school being a minority educational institution, the Management can appoint the persons of its choice as the Headmaster. The said right is flowing from Article 30(1) of the Constitution of India. The Government have also recognised the school as a linguistic minority educational institution. They also contended that Ext.R1(3) and similar orders do not run counter to the statutory provisions. They only supplement the provisions in the KER. Reference is made to Rule 8(2) of Chapter XIV (A) WA Nos.2724 & 2750 of 2007 5 KER, which says that while approving the appointment, apart from the relevant rules, the relevant Government Orders are also to be taken into account by the officer concerned. So, the orders issued by the Government are bound to be respected by the departmental officers. The appellants also contended that the contention that Ext.R1(3) will not be applicable to aided schools, was not taken before the departmental authorities or before the Government. It was not raised in the Writ Petition also. It was canvassed only at the time of final hearing of the Writ Petition. So, the learned Single Judge should have declined to hear the said contention. The learned Government Pleader appearing for the respondents supported the arguments of the learned counsel for the appellants. He referred to Sections 10 and 11 of the KER and also Rule 1 of Chapter XIV(A) KER and submitted that the Government have the power to issue orders and such orders are valid and are liable to be respected. The learned counsel for the writ petitioner, on the other hand, supported the decision of the learned Single Judge and the reasons and conclusions therein. 6. Whether the school run by the Management is a minority educational institution or not is not relevant for the purpose of determining the controversy involved in this case. If the Management invoked the power under Article 30(1) WA Nos.2724 & 2750 of 2007 6 of the Constitution and appointed a qualified junior hand as Headmaster, the same can be considered as an action asserting the right of the Management of a minority educational institution. In this case, on the date of occurrence of the vacancy, the Manager did not appoint any one. We agree with the learned Single Judge that the minority educational institution cannot wait till the Management's chosen person becomes qualified and thereafter fill up the vacancy. The vacancy has to be filled up with effect from the date of occurrence of the vacancy from among the persons qualified on the said date. The contention of the appellants and the learned Government Pleader that executive orders are also relevant and have to be looked into at various stages including from the stage of approval of appointment, is correct. But, when a particular field is already occupied by the Rules, the Government cannot issue any executive order, which has the effect of modifying that rule. In this case, the petitioner is qualified as per the rules for appointment to the post of Headmaster. If Ext.R1(3) is held to be valid, the same will have the effect of modifying the rules and making the petitioner unqualified. The same is impermissible in law. It is elementary that an executive order cannot modify a statutory rule. For this proposition, no authority need be cited as it is well WA Nos.2724 & 2750 of 2007 7 settled. So, even assuming Ext.R1(3), which is applicable to Government schools, is meant to be applicable to aided schools as well, the same cannot be pressed into service to deny the rights of the writ petitioner which are secured by the statutory rules. Further, we are also in agreement with the conclusion of the learned Single Judge that the said order is applicable only to primary departmental teachers. The contention of the learned counsel for the appellants that the same will amount to generating discrimination among Government school teachers and aided school teachers, cannot be accepted. They belong to separate groups, governed by separate conditions of service. It is true, there are certain common conditions of service applicable to both the groups. But, that does not mean that in every respect, their service conditions should be similar. The contention of infringement of the rights of the teachers of aided schools under Article 14 of the Constitution, therefore, cannot be accepted. The technical contention raised by the appellants that the non- applicability of Ext.R1(3) was not urged before the lower authorities and therefore, it should not have been allowed to be urged before the learned Single Judge, cannot be accepted. It is a pure question of law. The principles governing the pleadings are designed to render justice to both sides. If WA Nos.2724 & 2750 of 2007 8 something is argued which is not in the pleadings, the opposite side will not be able to meet it properly. But, in this case, what is argued is only a question of law. Further, we heard the appellants extensively on this point. Except raising this technical contention, they have failed to show how they are prejudiced. They were unable to show that they have some substantive contention, which they could have urged in support of the efficacy of Ext.R1(3). Therefore, the said technical contention also cannot be accepted. In the result, we find that no ground has been made out warranting interference with the judgment of the learned Single Judge. We are in full agreement with the the reasons and conclusions of the learned Single Judge. Accordingly, the Writ Appeals fail and they are dismissed. K.BALAKRISHNAN NAIR,JUDGE 16.01.2008 P.N.RAVINDRAN, JUDGE sta WA Nos.2724 & 2750 of 2007 9