IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 WP(C).No. 25409 of 2006(Y) ------------------------------------- PETITIONER(S): ----------------------- P.V.ANNIE, PULLAPPALLIL HOUSE, NEMOM PO, KOTTAYAM DITRICT, PIN 686 617. BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE BY ADV. SRI.T.RAMPRASAD UNNI RESPONDENT(S): ------------------------- 1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (K) DEPARTMENT GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM. 3. THE SECRETARY AND COMMISSIONER, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE MANAGER, ST.MARY'S GIRLS HIGH SCHOOL, CHERTHALAI. R1 TO R3 BY GOVT. PLEADER SRI.NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.25409/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER NO.34912/G/EDN. 13.9.76 DTD. 13.9.1976 ISSUED BY THE EDUCATION DEPARTMENT, GOVT. OF KERALA. P2:- COPY OF THE ORDER ISSUED ON THE REPRESENTATION OF THE PETITIONER DTD 16.9.93 OF THE IST RESPONDENT. P3:- COPY OF THE GOVERNMENT ORDER G.O.(MS) 62/73/G.EDN. DTD. 30.9.74. P4:- COPY OF THE LETTER DTD. 30.1.1992 SENT BY THE PETITIONER TO THE HONOURABLE MINISTER FOR EDUCATION. P5:- COPY OF THE LETTER DTD. 16.3.1994 SENT BY THE PETITIONER TO THE HONOURABLE MINISTER FOR EDUCATION. P6:- COPY OF THE LETTER DTD. 6.12.1995 SENT BY THE PETITIONER TO THE HONOURABLE MINISTER FOR EDUCATION. P7:- COPY OF THE G.O.(RT) NO.1159/81 GEN. EDUCATION DTD. 28.3.81. P8:- COPY OF THE ORDER PASSED BY THE IST RESPONDENT DT.D 23.3.1998. P9:- COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN OP.12968/98. P10:- COPY OF THE NOTES OF ARGUMENT SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. P11:- COPY OF THE ORDER PASSED BY THE IST RESPONDENT REJECTING THE REQUEST OF THE PETITIONER. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 25409 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 19th day of October, 2011. J U D G M E N T The petitioner commenced her service as a Physical Education Teacher in an aided school from 4.6.1963. She was forced to resign from service on account of continued illness on 13.6.1972. She was re-appointed by the same management in another school under the educational agency on 20.9.1977. She retired on superannuation on 30.6.1996. The petitioner requested for condonation of the break in service for retirement benefits on the basis of Exts. P1 and P3 Government Orders. The same was rejected relying on Rule 54 of Chapter XIV-A of K.E.R, by Ext.P8 order. The petitioner challenged the same by filing O.P.No. 12968/1998, in which, by Ext.P9 judgment, this Court directed re-consideration of the matter in the light of Ext.P7 Government Order in respect of another teacher who had 7 ½ years break in service. In accordance with Ext.P9 judgment, the Government, by Ext.P11 order, again rejected the petitioner's claim based on Rule 54 of Chapter XIV-A of KER. In respect of Ext.P7, the Government held that the case of the teacher involved in Ext.P7 cannot be equated with that of the petitioner. The petitioner is challenging Ext.P11 order seeking the following reliefs: “i. To call for the records leading up to Ext.P11 and quash the same by issuance a writ of certiorari or any other appropriate writ, order or direction. ii. To issue a writ of mandamus directing the respondents 1 to 3 to grant the petitioner nine year's service before the W.P(C) No. 25409 of 2006 -: 2 :- break in service and calculate that for grant of service benefits, grade, pension etc.,.” 2. The contention of the petitioner is that in view of Exts.P1 and P3 Government Orders, break in service even extending to more than 5 years can be condoned in appropriate cases. The petitioner submits that in Ext.P7 order, another teacher similarly situated had been given the benefit of condonation of break in service, which the petitioner is also entitled to. It is further submitted that Ext.P8 order relying on Rule 54 of Chapter XIV-A was set aside by this Court in Ext.P9 order directing the Government to re-consider the issue in the light of Ext.P7. The contention is that Ext.P9 is binding on the Government and the Government, after suffering Ext.P9 judgment, cannot now again relying on Rule 54, reject the claim of the petitioner. 3. A counter affidavit has been filed by the 1st respondent supporting Ext.P11 order on the same grounds mentioned in the same. 4. I have considered the rival contentions in detail. 5. It is not disputed before me that the petitioner resigned from service voluntarily with effect from 136.1972. Rule 54 of Chapter XIV-A of the K.E.R provides thus: “54. (1) If any teacher resigns his appointment in any aided school he shall not on re-appointment, be eligible to count his service prior to his resignation for purposes of increment or seniority on re-appointment; but he shall only be deemed to commence service afresh. (2) Applications for appointments under Government W.P(C) No. 25409 of 2006 -: 3 :- or in private schools or for service elsewhere from teachers employed in an aided school should be sent through the manager of the aided school.” Rule 54 admits of no ambiguity whatsoever. It categorically lays down that on re-appointment, a teacher will not be eligible to count his service prior to his re-appointment for the purpose of increment or seniority, but shall only be deemed to have commenced service afresh. The Government cannot issue an executive order contrary to a statutory rule. Rule 54 does not confer any power on the Government to relax the rigor of the said Rule. The Government has no case that they in issuing Exts. P1 and P3 orders, have invoked the power under Rule 3 of Chapter I of KER in this case. Of course, a relief has been granted to another teacher, who had 7 ½ years of break in service. But, Rule 54 is applicable to that teacher also. In such circumstances, Ext.P7 order can only be construed as an illegal order in violation of Rule 54 of Chapter XIV-A of KER. If I direct grant of the same relief to the petitioner also relying on Ext.P7, that would be perpetuating an illegality, which this Court is not expected to do under law. If I do so, Rule 54 would become totally meaningless and the continuance of the rule in the KER will be rendered nugatory. This Court cannot assume that a statutory rule is without any purpose. It is settled law that every statutory rule has to be given effect. Of course, after quashing Ext.P8 order passed on the basis of Rule 54, this Court has directed W.P(C) No. 25409 of 2006 -: 4 :- re-consideration of the matter in the light of Ext.P7. But, in Ext.P9 judgment, the learned Judge who passed Ext.P9 judgment, has stated that no statutory rule has been brought to his notice standing in the way of granting relaxation in the case of the petitioner. But, Rule 54 itself stands in the way of the petitioner in getting relaxation in the matter. In the above circumstances, I am of opinion that statutorily, the petitioner is not entitled to the reliefs prayed for. The Government cannot issue executive orders in violation of a statutory rule. I can only hold Ext.P7 as a wrong order passed in violation of the statutory rule. In that view, the petitioner is not entitled to the reliefs prayed for. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/