IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 16821 of 2008(C) ---------------------------------- PETITIONER: --------------- ANIL MATHEW, AGED 39, S/O. K.T. MATHEW, UPPER PRIMARY SCHOOL ASSISTANT, S.H.U.P SCHOOL, CHAMPAKULAM, (RESIDING AT KALAPURACKAL HOUSE, P.O. EDATHUA, ALAPPUZHA DT.) BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DISTRICT EDUCATIONAL OFFICER, KUTTANAD, ALAPPUZHA DT. 4. THE ASSISTANT EDUCATIONAL OFFICER, MONCOMBU, ALAPPUZHA DT. 5. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY OF C.M.I SCHOOLS, PROVINCE OF ST. JOSEPH, TRIVANDRUM-14. BY GOVT. PLEADER A.J. VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, JUDGE ---------------------------------- W.P.(C) NO. 16821 OF 2008 ------------------------------------------- Dated this the 20th day of June, 2008 J U D G M E N T The Government Pleader takes notice for the respondents. Since the matter does not involve disputed questions of fact and that it is already covered by the judgment of this Court, the Writ Petition is being finally disposed of. 2. The petitioner was appointed as High School Assistant (Social Studies) in St. Joseph's Higher Secondary School, Pulinkunnu from 19.6.2000 to 18.8.2000 in the leave vacancy of Sri. Shaji Thomas. It is stated that the appointment was approved by the District Educational Officer as per Order dated 8.12.2001. It is further stated that the petitioner was again appointed as Upper Primary School Assistant from 3.8.2004 to 31.3.2005 in S.H.U.P.School which is under the same Management of the 5th respondent in another leave vacancy. The Assistant Educational Officer rejected the approval as per Ext. P1 Order. The appeal filed W.P.(C)No. 16821/2008 2 by the Manager was rejected by District Educational Officer as per Ext. P2 order and that order was confirmed in Revision by Director of Public Instruction as per Ext. P3 order. The Government also rejected the Revision Petition as per Ext. P4 Order. The reliefs prayed for by the Writ Petitioner are the following: (a) call for the records relating to Exhibits P1,P2,P3 and P4 and quash the originals of the same by the issue a writ of certiorari or other appropriate writ or order. (b) issue a writ of mandamus or other appropriate writ order or direction commanding the 4th respondent Assistant Educational officer, Moncombu to approve the appointment of the petitioner as Upper Primary School Assistant from 3.8.2004 to 31.3.2005 without enforcing Para (6) of G.O.(P) No. 169/2004/G. Edn. dated 15.6.2004 (Exhibit P7). (c) pass such other order or direction which this Hon'ble Court may be pleased to deem fit and proper to grant in the circumstances of the case. W.P.(C)No. 16821/2008 3 3. The reason for not approving the appointment of the petitioner in the leave vacancy as disclosed in Ext. P1 is that the vacancy was for a duration of less than one year. In Ext. P2 it is stated that as per GO(P) No.169/04/G/Edn. dated 15.6.2004 vacancies having a duration of less than one academic year shall be filled up only on daily wage basis. The Director of Public Instruction as well as the Government also took the same view. 4. Sub Rule (3) of Rule 7A of Chapter XIV A KER before its amendment in 2005 provided that the vacancies, the duration of which is two months or less shall not be filled up by any appointment. Sub Rule (3) of Rule 7A was amended and another sub Rule was substituted which provides that vacancies, the duration of which is less than one academic year, shall not be filled up. The amendment came into force w.e.f. 16.4.2005. Before the amendment which came into force on 16.4.2005, the Government had issued G.O(P) No. 169/04/G/Edn. dated 15.6.2004 referred to above. In W.P.(C) No. 32706/05 a question arose whether G.O.(P) 169/04/G/Edn. dated 15.6.2004 which runs counter to sub Rule 3 W.P.(C)No. 16821/2008 4 of Rule 7A of Chapter XIV A would have binding effect. The learned single judge of this Court held in W.P.(C) 32706/05 that Sub Rule 3 of Rule 7A before the amendment did not prohibit the filling up of vacancies the duration of which was two months or more. It was further held that the Government cannot abrogate or nullify a statutory Rule by issuing an executive order. 5. In the case on hand, the appointment was for the period which commenced before 16.4.2005, the date of which the substitution of sub Rule 3 of Rule 7A of Chapter XIV A of KER came into force. As held in W.P.(C) No. 32706/05, the Government order which runs contrary to the specific provision in the Kerala Educational Rules cannot have any binding effect. Therefore, the view taken in Ext. P1 to Ext. P4 does not appear to be correct in law. Accordingly Ext. P1 to P4 are quashed. The 4th respondent, Assistant Educational Officer, shall pass appropriate orders approving the appointment of the petitioner for the period from 3.8.2004 to 31.3.2005 in S.H.U.P. School under the management of the 5th respondent, if the appointment is otherwise in order. The Assistant Educational Officer shall pass orders within a period W.P.(C)No. 16821/2008 5 of two months from the date of receipt a copy of the judgment. Registry shall forward a copy of the judgment to the fifth respondent. The Writ Petition is allowed as above. K.T. SANKARAN, JUDGE vkm