IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 WP(C).No. 19025 of 2010(C) --------------------- PETITIONER : --------------------- 1. TESSY EPHAREM.K., NEEDLEWORK TEACHER, AIDED HIGH SCHOOL, PARAL MAMPATTUMOOLA, KOORAD P.O., MALAPPURAM DIST. 2. SHEEJA P.S., NEEDLEWORK TEACHER (U.P.SECTION), AIDED HIGH SCHOOL-PARAL MAMPATTUMOOLA, KOORAD P.O., MALAPPURAM DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): ------------------------- 1. THE MANAGER, AIDED HIGH SCHOOL, PAREL MAMPATTUMOOLA, P.O.KOORAD, MANHAPPETTY, MALAPPURAM DISTRICT-679 339. 2. THE DISTRICT EDUCATIONAL OFFICER, WANDOOR, MALAPPURAM. 3. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R2 & R3 BY GOVT. PLEADER SRI. T.T. MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 19025 of 2010(C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF PROCEEDINGS DATED 22-6-2009 OF THE MANAGER OF THE A.H.S., PARAL MAMPATTUMOOLA SHIFTING THE 1ST PETITIONER FROM U.P. SECTION TO THE HIGH SCHOOL SECTION OF THE SCHOOL. EXT.P2 : COPY OF APPOINTMENT ORDER ISSUED BY THE MANAGER TO THE 1ST PETITIONER AS NEEDLEWORK TEACHER IN THE HIGH SCHOOL SECTION. EXT.P3 : COPY OF APPOINTMENT ORDER ISSUED BY THE MANAGER TO THE 2ND PETITIONER AS NEEDLEWORK TEACHER IN THE U.P SECTION OF THE SCHOOL. EXT.P4 : COPY OF THE D.E.O'S ORDER REJECTING SHIFTING OF THE 1ST PETITIONER TO THE HIGH SCHOOL SECTION. EXT.P5 : COPY OF THE D.E.O'S ORDER REJECTING APPOINTMENT OF THE 2ND PETITIONER TO THE U.P. SECTION. EXT.P6 : COPY OF G.O.(MS) 126/06/HG.EDN DATED 5-4-06. EXT.P7 : COPY OF THE STAFF FIXATION ORDER FOR THE SCHOOL FOR THE ACADEMIC YEAR 2008-09. EXT.P8 : COPY OF LETTER DATED 11-6-09 ISSUED BY THE GOVERNMENT TO THE D.E.O., TIRUR. EXT.P9 : COPY OF GOVERNMENT ORDER, G.O.(RT) NO. 1853/10/G.EDN DATED 3-5-2010. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.19025/2010-C ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 24th day of January, 2011 J U D G M E N T The petitioners challenge Ext.P9 order passed by the Government. The learned counsel for the petitioners submits that the matter will have to be reconsidered in the light of the decision of this Court in Moosakutty v. D.E.O, Wandoor [2009 (3) KLT 863] which have been confirmed in W.A.No.1199/2010 and in the light of the order passed by the Apex Court in S.L.P.No.36558/2010. 2. Heard the learned counsel for the petitioners and the learned Government Pleader. The matter relates to non approval of appointment of the petitioners. The first petitioner was appointed as Needlework Teacher in U.P.Section with effect from 01/09/1992. The said appointment was approved and salary was paid also. In the year 2006-07, the School was upgraded as High School and, accordingly, Std.VIII was started in the academic year 2006-07. Now the school is having Stds.V to X. The first petitioner was shifted by the Manager as per Ext.P1 from the U.P. Section to the High School W.P.(C). No.19025/2010 -:2:- and Ext.P2 is the appointment order thus issued. In the resultant vacancy of Needlework Teacher in U.P. Section, the second petitioner was appointed. The shifting as well as the appointments were not approved by the Department as per Exts.P4 and P5 orders and finally, the Government by Ext.P9 rejected the revision petitions filed by the Manager and the petitioners herein. The view taken by the Departmental Officers is that the vacancies have to be filled up by protected teachers. The learned counsel for the petitioners submitted that as far as the school is concerned, there were no protected teachers in Wandoor Education District. It is pointed out that this issue was subject matter of consideration by this Court, with regard to the very same school, in Moosakutty's case [2009 (3) KLT 863]. It was held thus in paragraphs (6, 8 & 9):- “Going by R.6 (viii), the Manager will have to execute an agreement that he is prepared to absorb qualified teachers/non teaching staff who have been retrenched from W.P.(C). No.19025/2010 -:3:- 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. Under R.9 of Chap.III the Manager will have to abide by the orders that will 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”. 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-r.(viii) of R.6 of Chap. V, K.E.R. Therefore, in terms of sub-r.(1) of R.9 of Chap.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 W.P.(C). No.19025/2010 -:4:- upon Government Order, G.O.(P). No.83/88/G.Edn., dated 18.04.1988. 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.” 3. Therefore, the legal position explained by this Court with regard to the same school will have to be considered as the same applies to the fact situation herein also. The Apex Court in the order in S.L.P.No.36558/2010 also confirmed the view taken by this Court and, the operative portion of the Judgment is extracted below:- “The management of the school was entitled to appoint teachers because no protected teacher was available in the concerned educational district. However, opportunity was given to the State Government to consider the amendment under the rules so that W.P.(C). No.19025/2010 -:5:- protected teachers could be accommodated in any school in the State.” 4. Therefore, Ext.P9 is quashed. There will be a direction to the Government to reconsider the matter in the light of the legal position laid down by this Court in the Judgments referred above and after hearing the petitioners and the Manager within a period of three months after verifying whether there were any protected teachers available. The writ petition is disposed of as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms