IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 WP(C).No. 16490 of 2009(E) -------------------------------- PETITIONER: -------------- P.SHEEJA, W/O.VENUGOPALAN, AGED 29 YEARS, LOWER PRIMARY SCHOOL ASSISTANT, S.N.L.P.SCHOOL, AMBALAPPUZHA, ALAPPUZHA DISTRICT. BY MR.V.A.MUHAMMED, ADVOCATE. MR.K.E.HAMZA, ADVOCATE. RESPONDENTS: ------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. THE ASSISTANT EDUCATIONAL OFFICER, AMBALAPPUZHA, ALAPPUZHA DISTRICT. 5. THE MANAGER, S.N.L.P.SCHOOL, AMABALAPPUZHA, ALAPPUZHA DISTRICT. BY MR. A.J. VARGHESE, SR. GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.16490 OF 2009 --------------------------------------- Dated this the 16th day of June, 2009. J U D G M E N T The petitioner herein is aggrieved by the order of approval of appointment on daily wage basis. He was appointed as a Lower Primary School Assistant by the 5th respondent in a permanent vacancy which occurred on 03.01.2005. That was approved as per Exhibit P6. The same was objected by the Deputy Director of Education stating that the appointment of teachers can be approved only on daily wage basis as the duration is less than one academic year. Exhibit P7 is the extract of the audit objection which was forwarded by the Assistant Educational Officer as per Exhibit P8 to the Headmaster, and the salary was withheld till objections are cleared. 2. Even though an appeal was filed against the objection, that was rejected by the Government as per Exhibit P9. In Exhibit P9, the Government ordered to approve the appointment of the petitioner with effect from 03.01.2005 to 31.03.2005 on W.P.(C) No.16490/2009 2 daily wage basis and with effect from the next academic year on regular basis. 3. The petitioner points out that the objections taken by the authorities are based on the Government Orders namely, Exhibits P1, P2 etc. Presently, the matter is covered by the decision of a Division Bench of this Court in Unni Narayanan vs. State of Kerala (2009(2) KLT 604), a copy of which is produced as Exhibit P10 in the writ petition. The validity of Exhibit P5 Government Order dated 10.06.2008 was considered by the Division Bench in the said decision. It was held in paragraph 7 thus: “.....the Government may be able to issue executive instructions, but they have no efficacy to override the statutory provisions. We agree with the contentions of the writ petitioners that the offending conditions in Ext.P2 Government Order cannot stand with the statutory rules. Therefore, for enforcing them, the relevant rules require amendment. As long as the rules are not amended, Ext.P2 cannot be pressed into service by the Government....”. Finally, in paragraph 12, the following directions were issued: “In the case of the writ petitioners in these cases, orders, if any passed, approving their W.P.(C) No.16490/2009 3 appointments on daily wage basis, relying on Ext.P2 Government Order are quashed. All appointments, whether pending approval or already rejected, shall be considered/reconsidered by the Educational Officers concerned and fresh orders shall be passed in the light of the declaration of law made by us in W.P.(C) No.25176 of 2008. The salary found due to be paid to the incumbents concerned shall be released immediately. The action in this regard shall be completed within six weeks from the date of production of a copy of this judgment”. In the light of the above, the petitioner is entitled to succeed in the writ petition. Exhibits P7, P8 and P9 are therefore quashed. There will be a direction to the Assistant Educational Officer to pass fresh orders in the matter in the light of the directions issued by the Division Bench within a period of two months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp