IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 WP(C).No. 4623 of 2009(A) ----------------------------------- PETITIONER(S): ------------------------- MOOSAKUTTY PUTHUVALAPPAN, UPPER PRIMARY SCHOOL ASSISTANT, AIDED HIGH SCHOOL- PAREL MAMPATTUMOOLA, P.O. KOORAD, MALAPPURAM DIST. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): ------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, WANDOOR, MALAPPURAM DIST. 2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM DIST. 3. STATE OF KERALA, REP. BY THE SECRETARY GOVERNMENT, GENERAL EDUCATION DEPT. GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR.T.T.MUHAMOOD FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.4623/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PETITIONER'S APPOINTMENT ORDER DT. 20.11.06. P2:- COPY OF THE GOVERNMENT ORDER. GO(RT) 3586/08/G.EDN DT. 5.8.08. P3:- COPY OF THE GOVERNMENT ORDE, GO(MS) NO.203/08/G.EDN. DT. 11.12.08. P4:- COPY OF THE GOVERNMENT ORDER, GO(P) NO.46/06/G.EDN. DT. 1.2.06. P5:- COPY OF THE ORDER OF THE D.E.O. REJECTING APPROVAL OF THE APPOINTMENT OF THE PETITIONER. P6:- COPY OF THE AGREEMENT EXECUTED BY THE MANAGER DT. 27.4.84. P7:- COPY OF THE DETAILS OF PROTECTED TEACHERS IN MALAPPURAM REVENUE DISTRICT IN THE ACADEMIC YEAR 2006-07. TRUE COPY P.A. TO JUDGE TSS T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.4623/2009-A ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 29th day of June, 2009 J U D G M E N T The petitioner herein was appointed as an Upper Primary School Assistant in an Aided School, by the Manager, in a promotion vacancy. Ext.P1 is the order of appointment. One Smt.Sreekala K. was promoted as High School Assistant which paved way for the petitioner's appointment as U.P.S.A in the resultant vacancy. The school was upgraded as High School in the Academic year 2006-07. As regards the appointment of High School Assistants, pursuant to the judgment of this Court, in W.P.(C). No.2067/2007, the Government passed Ext.P2 order according sanction of five posts of High School Assistants (core subjects) for the year 2006-07. Thereafter, by Ext.P3, the Government passed orders directing the District Educational Officer to take steps for the approval of appointed teachers. Accordingly, orders of approval were issued in respect of H.S.As'. But as regards the petitioner, the approval was rejected by Ext.P5, which is under challenge in this writ petition. 2. The core issue is whether, the reasons stated in Ext.P5 that, the Manager should have appointed a protected Teacher in the place of the petitioner. W.P.(C). No.4623/2009 -:2:- 3. The petitioner submits that the Manager has executed an agreement in terms of Rule 6 (viii) of Chapter V, K.E.R. The copy of the agreement is produced as Ext.P6. The obligation of the Manager under the said agreement is to appoint a protected Teacher from the Educational Sub- district. As far as Wandoor Educational District is concerned, there was no protected Teacher available and Ext.P7 is produced to show that no protected U.P.S.A was available or was deployed to any other school. 4. In the counter affidavit filed on behalf of the first and second respondents, it is averred that since the Upper Primary section was opened before 1990, appointment in that section can be considered only if the Manager absorbed one protected Teacher in that section as per G.O.(P). No.46/2006, dated 01/02/2006. It is also admitted that Ext.P6 is a true copy of the agreement executed by the Manager in terms of the relevant Rules. The stand taken is that as per G.O.(P).No.83/88/G.Edn., dated 18/04/2008, it is obligatory on the part of the Managers of newly opened/Upgraded schools to appoint Protected Teachers from the list of protected teachers to be obtained from the Educational Officer concerned and that the protected teachers need not necessarily belong to the same Educational Sub-district. It is accordingly contended that as per Rule 9 of Chapter III, K.E.R the W.P.(C). No.4623/2009 -:3:- Manager shall abide by the orders that may be issued from time to time by the Government and the Department. In paragraph (9) of the counter affidavit it is admitted that there were no protected Teachers in Wandoor Sub-district. But, there were more than 30 protected Upper Primary School Assistants in Malappuram Revenue District. 5. Heard the learned counsel for the petitioner and the learned Government Pleader. It is submitted by the learned counsel for the petitioner that going by Rule 6 (viii) of Chapter V, K.E.R, the obligation of the Manager is to absorb a protected Teacher from Aided Primary Schools in Educational Sub-district. The same alone need be satisfied. It is therefore, submitted that the prescriptions in G.O.(P).No.83/88/G.Edn., dated 18/04/1988 goes against the said Rule. 6. Firstly, this aspect will have to be examined. 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 W.P.(C). No.4623/2009 -:4:- in the Education district or aided primary school in the Education Sub-district in which the applicant proposes to open/upgrade the school.” Going by the same, the Manager will have to execute an agreement that he is prepared to absorb qualified teachers/non teaching staff who have been retrenched from any of the aided high schools in Education district or aided primary school in the Education Sub-district in which the applicant proposes to open/upgrade the school. Since the school in question is only an Upper Primary School, prior to 1990, the obligation as such is confined to the prescriptions of the said paragraph. 7. In G.O.(P).No.83/88/G.Edn., dated 18/04/1988, in paragraph (v) the following provisions have been introduced:- “(v) It will be obligatory on the part of Managers of newly opened/upgraded schools to appoint 'Protected Teachers' from the list of protected teachers to be obtained from the Educational Officer concerned and that the protected teachers need not necessarily belong to the same Educational Sub-District/District. The protected teachers may belong to the same Educational W.P.(C). No.4623/2009 -:5:- Sub-district or District or in any other Educational District. Necessary amendments to the K.E.R will be issued separately.” It is made clear therein that the protected teachers may belong to the same Educational Sub-district or District or in any other Educational District. Even though, necessary amendments were contemplated at that point of time, even as on today, amendments have not been made in the K.E.R for incorporating the above provisions of the Government Order. 8. Therefore, we will have to refer to Rule 9 of Chapter III, K.E.R also to understand the nature of the obligation of the Manager. Sub Rule (1) is extracted below:- “(1) The Manager shall be responsible for the conduct of the school strictly in accordance with the provisions of the Kerala Education Act and the Rules issued thereunder. He shall also abide by the orders that may be issued from time to time by the Government and the Department in conformity with the provisions of the Act and the rules issued thereunder.” Therefore, the Manager will have to abide by the orders that will be issued W.P.(C). No.4623/2009 -:6:- from time to time by the Government and the Department “in conformity with the provisions of the Act and the rules issued thereunder”. Here, the Manager has executed Ext.P6 agreement whereby, he has obliged himself to appoint a protected Teacher from any one of the aided Primary School in Wandoor Educational Sub-district. This is in terms of Sub Rule (viii) of Rule 6 of Chapter V, K.E.R as quoted already. Therefore, in terms of Sub Rule (1) of Rule 9 of Chapter III, K.E.R, Ext.P6 can be enforced against the Manager. The scope of the same cannot be widened as proposed now by relying upon Government Order, G.O.(P).No.83/88/G.Edn., dated 18/04/1988. 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 W.P.(C). No.4623/2009 -:7:- Malappuram Revenue District, that cannot be sought to be enforced against the Manager, obviously 10. In that view of the matter, the view taken in Ext.P5 cannot be supported. Ext.P5 is therefore, quashed. The appointment of the petitioner is liable to be approved if it is otherwise in order. The District Educational Officer is therefore directed to pass fresh orders in the light of the above findings within a period of one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms