IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 WP(C).No. 1641 of 2006(U) ------------------------------------ PETITIONER(S): ---------------------- SREEJITH.J. S/O.JANARDHANAN UNNITHAN, THAZHATHU KIZHEKKETHILM, CHATHAKULAM P.O. PORUVAZHY NORTH, KOLLAM, LABORATORY ASSISTANT DEVASWOM BOARD HIGHER SECONDARY SCHOOL, THAZHAKI). BY ADV. SRI.S.SUBHASH CHAND SMT.M.P.MARY RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE DIRECTOR OF HIGHER SECODNARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE SECRETARY, TRAVANCORE DEVASWOM BOARD DEVASWOM BOARD BUILDING, NANDHANCODE, THIRUVANANTHAPURAM(CORPORATE MANAGER, TRAVANCORE DEVASWOM BOARD SCHOOLS, THIRUVANANTHAPURAM). 4. K.LALILENDRAN, THUNDIL HOUSE, CHINGOLI P.O. ALAPPUZHA(LABORATORY ASISTANT DEASWOM BOARD, HIGHER SECONDARY SCHOO, THAKAZHI). 5. P.V.JAYAKUMAR, LABORATORY ASSISTANT, DEVASWOM BOARD HIGHER SECONDARY SCHOOL, THAKAZHI. R1 & R2 BY GOVT PLEADER SRI.P.N.NANDAKUMAR R3 BY ADV. SRI. P.PARAMESWARAN NAIR, SC R4 BY SRI.M.K.CHANDRA MOHANDAS R5 BY SMT.S. JAYAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2010, THE COURT ON 11/11/2010 DELIVERED THE FOLLOWING: WP(C) NO.1641/2006 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER OF APPOINTMENT DATED 28/1/2002 ISSUED BY THE 3RD RESPONDENT. P2 COPY OF THE GO(MS) NO.79/2003/G.EDN. DATED 28/3/2003. P3 COPY OF THE ORDER NO. 10967/2001/EDN. DATED 14/11/2003 ISSUED BY THE 3RD RESPONDENT. P4 COPY OF THE REPRESENTATION DATED 19/12/2003 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P5 COPY OF THE REPRESENTATION DATED 16/1/2004 (EXCLUDING THE ANNEXURE) SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P6 COPY OF THE JUDGMENT DATED 1/12/2004 PASSED BY THIS HON'BLE COURT IN WP(C) NO.34852/2004. P7 COPY OF THE ORDER NO. ACD-C3/964/HSE/2005 DATED 3/3/2005 PASSED BY THE 2ND RESPONDENT. P8 COPY OF THE CIRCULAR DATED 18/3/2005 ISSUED BY THE 2ND RESPONDENT. P9 COPY OF THE JUDGMENT DATED 21/10/2005 PASSED BY THIS HON'BLE COURT IN WP(C) NO.11371/2005. P10 COPY OF THE ORDER DATED 28/12/2005 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.1641 OF 2006 --------------------------------------- Dated this the 11th day of November, 2010 JUDGMENT After the introduction of Chapter XXXII of the Kerala Education Rules on 12.11.2001, which contains the method of appointment and qualifications prescribed for appointment to various posts in Higher Secondary Schools, the Government issued orders sanctioning two posts each in Higher Secondary Schools for Laboratory Assistant. The petitioner was a Lab Assistant appointed by direct recruitment by Ext.P1 order dated 28.1.2002 in an aided Higher Secondary School of which the Travancore Devaswom Board is the Educational Agency. The Board has four Higher Secondary Schools under them. At the relevant time, in these four Higher Secondary Schools, consequently, there were eight sanctioned posts of Laboratory Assistant. Chapter XXXII of the Kerala Education Rules, prescribing method of appointment and qualifications of teachers and non-teaching staff in aided Higher Secondary Schools, came W.P.(C)No.1641/06 2 into force by publication of the same in the Official Gazette on 12.11.2001. According to the petitioner, going by sub rule 6 of Rule 4 of Chapter XXXII of the Kerala Education Rules, the post of Laboratory Assistant has to be filled up by direct recruitment and promotion in the proportion of 3:1. Therefore, out of the eight posts sanctioned by the Government for this particular Educational Agency, six have to be filled up by direct recruitment and two by promotion. However, the Manager appointed three persons by promotion. Subsequently, the Government sanctioned two supernumerary posts as well. When the petitioner was not given approval in one of the six sanctioned post available for direct recruits, the petitioner approached this Court. Subsequently by Ext.P7 order, the second respondent approved the petitioner's appointment in one of the sanctioned posts with effect from 28.3.2003. Another direct recruit, namely, the fourth respondent also claimed approval in one of the sanctioned posts. Pursuant to judgment dated 28.7.2005 in W.P.(C) No.22501/05 filed by the fourth respondent, the Government passed Ext.P10 order, wherein the approval granted to the W.P.(C)No.1641/06 3 petitioner was set aside and in that vacancy the appointment of the fourth respondent was directed to be approved. The petitioner is challenging Ext.P10 order seeking the following reliefs: “i) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P10 order passed by the 1st respondent; ii) To issue a writ in the nature of mandamus or any other appropriate writ or order directing the 1st respondent to reconsider Ext.P10 order in the light of the prescribed ratio of 3:1 between direct recruits and transferees in the matter of appointment of Laboratory Assistants under Rule 4 Chapter XXXII KER and issue appropriate orders within such time as this Hon'ble Court may deem fit and proper in the interest of justice with notice and opportunity of hearing to the petitioner and respondents 4 & 5; iii) To issue a declaration that the petitioner being the 6th direct recruit in the order or seniority, he is entitled to hold one sanctioned post of Laboratory Assistant in the 4 higher secondary schools under the 3rd respondent in view of the ratio of 3:1 between direct recruits and transferees” 2. The contention of the petitioner is not that he is entitled for appointment in preference to the fourth respondent. But his contention is that although the fourth respondent is entitled for the fifth sanctioned post, in so far as there were six sanctioned posts for direct recruitment and the petitioner was the sixth person directly recruited, he was W.P.(C)No.1641/06 4 entitled to be accommodated in one of the six sanctioned posts. The petitioner would contend that while passing Ext.P10 order, the Government should have taken into account the fact that the petitioner should have been appointed in the sixth post and consequently, the petitioner should have been accommodated in one of the sanctioned posts by transferring one of the excess promotees to one of the supernumerary posts subsequently sanctioned. 3. Respondents 1 and 2 have filed counter affidavits supporting Ext.P10 order. Respondents 4 and 5 have not cared to file any counter affidavit. The learned counsel for the fourth respondent claims that the fourth respondent has filed a counter affidavit dated 12.1.2007, which is not in the file. But the fourth respondent has filed an I.A.No.14288/2007 for vacating the interim order by which this Court had stayed the operation of Ext.P10 order. 4. I have considered the rival contentions in detail. 5. The learned Government Pleader points out two Government Orders on the subject namely, G.O.(MS) No.354/2004/G.Edn. dated 26.11.2004 and G.O.(MS) W.P.(C)No.1641/06 5 No.145/2005/G.Edn. Dated 7.5.2005. The argument of the learned Government Pleader is that by those orders, the Government had approved the excess appointments of promotees made by the Managers contrary to the rules. Even assuming that those orders are applicable to the petitioner's case, I am of opinion that those orders cannot govern the issue in so far as the Government cannot pass executive orders contrary to statutory rules. The statutory rules have already come into force with effect from 12.11.2001 and therefore any executive order passed contrary to the rules subsequently will not have any legs to stand. Therefore, I am of opinion that the claim of the petitioner cannot be denied on the basis of the Government Orders relied on by the learned Government Pleader. 6. As I have already noted, Chapter XXXII came into force with effect from 12.11.2001. Therefore, after that date , all appointments have to be regulated in accordance with the rules contained therein. Rule 4(6) details the method of recruitment of Laboratory Assistants in aided schools. In the Note attached to the Rule, it is specifically stated that 25% of W.P.(C)No.1641/06 6 the total posts of Laboratory Assistants shall be filled up by transfer from among the qualified Class IV employees in the Schools under the Educational Agency and the remaining 75% by direct appointment. Two posts were sanctioned by the Government for each Higher Secondary School. Since the Educational Agency in this case had four Higher Secondary Schools, there were eight posts in the Higher Secondary Schools under this Educational Agency. Going by the ratio prescribed in the rules, two post have to be filled up by promotion and the balance six by direct recruitment. Admittedly, the petitioner is the sixth direct recruit to the post. But the Manager has appointed three promotees in the eight sanctioned posts. The same is certainly irregular in view of the rules. Therefore, the direct recruits have to be accommodated against the sanctioned posts and the excess promotee has to be shifted to one of the supernumerary posts. The petitioner does not dispute the fact that the fourth respondent is entitled to be accommodated against the fifth post for direct recruitment, since he was the fifth person appointed as direct recruit. But his contention is that for accommodating the W.P.(C)No.1641/06 7 fourth respondent in a sanctioned post, it is not necessary that the petitioner should be shifted to the supernumerary post. He would submit that the petitioner should be accommodated in the sixth post by shifting the fifth respondent, who is the excess promotee to the supernumerary post. The petitioner therefore, challenges Ext.P10 order to that extent. I find that the petitioner's contention is in accordance with the rules prescribed. Out of the eight sanctioned posts, six posts have to be filled up by direct recruits. That being so, one excess promotee has to be shifted to the supernumerary post sanctioned later. To that extent, Ext.P10 order is liable to interfered with. Accordingly, the writ petition is disposed of with the following directions: Ext.P10 order to the extent it interferes with Ext.P7 approval of the petitioner's appointment is quashed. However, Ext.P10 to the extent it upholds the right of the fourth respondent for accommodation in the fifth post is approved. Consequently, the fifth respondent, who is the excess promotee shall be shifted to the supernumerary post. Orders W.P.(C)No.1641/06 8 in this regard shall be passed by the second respondent as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE acd W.P.(C)No.1641/06 9