IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 WP(C).No. 24350 of 2009(K) --------------------------------------- PETITIONER(S): ------------------------ V.M.MOHAMMED ALI, H.S.A.(S.S.), CPP HMHS OZHUR, (UNDER THE JURISDICTION LIMIT OF TIRUR DEO), P.O.VELLACHAL, MALAPPURAM DISTRICT. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): ------------------------ 1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE MANAGER, CPP HMHS OZHUR, TIRUR. 3. THE DISTRICT EDUCATION OFFICER, TIRUR. 4. DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 5. DIRECTOR OF PUBLIC INSTRUCTION,THIRUVANANTHAPURAM. ADDL. R6 IMPLEADED. 6. SUNIL KUMAR P.V., H.S.A. (S.S.) C.P.P. H.M.H.S.S., OZHUR, MALAPPURAM. ADDL. R6 IS IMPLEADED AS PER ORDER DTD. 29.7.2011 IN IA. 10910/11. R1,R3 TO R5 BY GOVT. PLEADER SMT.M.T.SHEEBA ADV. SMT.S.KARTHIKA FOR R2 SRI.M.S.UNNIKRISHNAN FOR R2 SRI.M.R.ANISON FOR R2 SMT.K.P.GEETHA MANI FOR R2 SRI.P.N.APPUKUTTAN FOR R2 SMT.P.A.RINUSA FOR R2 SRI.K.S.ARUN KUMAR FOR ADDL R6 SMT.M.N.MAYA FOR ADLL R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.24350/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 31.1.2005 ISSUED BY THE 3RD RESPONDENT. P2:- COPY OF THE ORDER DTD. 8.8.2005 ISSUED BY THE 4TH RESPONDENT. P3:- COPY OF THE ORDER DTD. 14.3.2006 ISSUED BY THE 5TH RESPONDENT P4:- COPY OF THE REVISION PETITION FILED BY THE 2ND RESPONDENT DTD. 31.7.2006. P5:- COPY OF THE ORDER DT. 7.11.2008 ISSUED BY THE IST RESPONDENT. P6:- COPY OF THE ORDER G.O. DTD. 28.6.2002 ISSUED BY THE GOVERNMENT. P7:- COPY OF THE ORDER G.O. DTD. 1.2.06 ISSUED BY THE GOVERNMENT. P8:- COPY OF THE COMMUNICATION DTD. 21.8.1991 SENT BY THE MANAGER TO THE DEPUTY DIRECTOR OF EDN. P9:- COPY OF THE APPOINTMENT ORDER DT. 3.1.05 OF THE PETITIONER. P10:- COPY OF THE ORDER G.O. DTD. 15.6.2004 ISSUED BY THE GOVERNMENT. P11:- COPY OF THE COMMUNICATION DTD. 4.3.2011 ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS R1(a):- GO(MS) NO.11/02/G.EDN. DTD. 7.1.2002. TRUE COPY P.A.TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.24350/2009-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16th day of November, 2011 J U D G M E N T Ext.P5 order refusing to approve the appointment of the petitioner is under challenge here. The petitioner was appointed as High School Assistant (Social Science) from 03/01/2005 to 23/03/2005 in a leave vacancy of Smt.M.R.Bindumol H.S.A. She was on leave from 27/09/2004 to 23/03/2005. 2. Heard the learned counsel for the petitioner, the learned Government Pleader and learned counsel for other respondents. The learned counsel for the petitioner submitted that an executive order issued as per Ext.P10 cannot affect the right of the petitioner for approval. It is pointed out that Rule 7A (3) of Chapter XIV A Kerala Education Rules, prior to its amendment as per G.O.(P).121/05/G.Edn., dated 16/04/2005, permitted filling up of vacancies, the duration of which was not less than two months. It is submitted that in the light of the Judgment of a Division Bench of this Court in Unni Narayanan v. State of W.P.(C). No.24350/2009 -:2:- Kerala [2009 (2) KLT 604], it can be seen that an executive order which is in violation of a statutory rule cannot be enforced. 3. The orders which have rejected the approval of appointment of the petitioner and which were ultimately confirmed by the Government by Ext.P5 show that two aspects went against the petitioner, one that the vacancy will have to be filled up by protected hand as per G.O.(P).No.178/2002/G.Edn., dated 28/06/2002 (Ext.P6) and the other that the leave vacancy should have been filled up by H.S.A (English). The statutory authorities had relied upon Ext.P10 order also to hold that the vacancy is of less than one academic year. In Ext.P5 Government Order it is also mentioned that at the time of appointment of the petitioner, there were 13 sanctioned posts of H.S.A (English) in which nobody was working. 4. With regard to the appointment of a protected hand, the petitioner has produced evidence to show that in the school, a protected hand was appointed in the year 1991. Ext.P8 is the communication of the Manager W.P.(C). No.24350/2009 -:3:- to the Deputy Director of Education, Malappuram in that regard. Ext.P6 Government Order, namely, G.O.(P). No.178/2002/G.Edn., dated 28/06/2002 was later modified by Ext.P7 insisting for appointment of at least one protected teacher in schools which have been started or upgraded between 1979-1990. Therefore, it can be seen that in the light of Ext.P8, the Manager has complied with the requirement of appointing a protected hand. The same satisfies the provisions of Rule 6(viii) of Chapter V K.E.R. Therefore, the first objection cannot be sustained. 5. With regard to the filling up of short term vacancies, reliance is placed on G.O.(P).No.169/04/ G.Edn., dated 15/06/2004 (Ext.P10), which also cannot help the respondents in the light of the decision of a Division Bench of this Court in Abdurahiman v. Government of Kerala [2009 (2) KLT 105] wherein, in para.14 while considering the claim under Rule 51A of Chapter XIV A K.E.R, this Court considered the amendment made to Rule 7A(3) of Chapter XIV A K.E.R also. It is held that W.P.(C). No.24350/2009 -:4:- upto 25.6.2005, it was possible to appoint persons to vacancies having a duration not less than two months and such appointees on being relieved, were treated as 51A claimants also. For easy reference, I am extracting para.14 of the said Judgment. “14. .............. Up to 25.6.2005, it was possible to appoint persons to vacancies having a duration not less than two months. Such appointees, on being relieved, were treated as 51A claimants also. Even in the absence of any such rule, it is a well recognised principle in Industrial Jurisprudence that a person retrenched from service should be preferred, when vacancy arises in future. Earlier, it was thought that the said benefit flowing from Chap. VA of the Industrial Disputes Act in favour of the workmen was available only if retrenchment is made after working for 240 days. The said concept has been knocked down by the judgment of the Division Bench of this Court in W.P.(C). No.24350/2009 -:5:- Prabhakaran v. General Manager, K.S.R.T.C. (1981 KLT 164). So, in industries, persons appointed for one or two months, if retrenched, were entitled to get re- appointments when vacancies arise in future. In the case of Educational institutions, the minimum incumbency period was fixed as two months. That is because a valid appointment can be made only if the vacancy extends beyond that period. Now, it is provided that appointments can be made, if only the duration of the vacancy is one academic year and only such incumbents are to be given preference in future appointments. But, the said amendment can in no way affect the rights accrued to persons, on the strength of their appointment to short duration vacancies exceeding two months, made earlier to the amendment. The right of them to get re-appointment was always recognised by R.51A. But, after 25.6.2005, one can be appointed if only the vacancy has a W.P.(C). No.24350/2009 -:6:- duration of one academic year. .....” 6. The petitioner is entitled to succeed in the light of the above as the appointment was made before the amendment of Rule 7A(3) of Chapter XIV A Kerala Education Rules. Prior to the amendment of Rule 7A(3), the restriction was only for non filling up of vacancies, the duration of which is two months or less and here the duration of vacancy is more than two months. In that view of the matter, the petitioner's appointment is liable to be approved. 7. Then, the other question is whether a High School Assistant (English) had to be appointed. Herein, the leave vacancy arose due to the leave availed by Smt.M.R.Bindumol H.S.A (Social Science). Merely because the Manager had not filled the sanctioned posts of H.S.A. (English) that cannot defeat the rights of the petitioner. It cannot be said that by appointing the petitioner, the Manager has violated the norms for minimum subject requirement. Therefore, the said reason also cannot go against the claim of the petitioner. W.P.(C). No.24350/2009 -:7:- 8. In the counter affidavit filed by the second respondent-Manager, it is pointed out that one Shri Sunil Kumar P.V was initially appointed as H.S.A (S.S) from 01/09/2004 to 14/01/2005 and, thereafter, he was appointed as H.S.A. (S.S) in a regular death vacancy of late Smt.Ancy Joseph with effect from 29/06/2005. The said Shri Sunil Kumar has also sought impleadment by filing I.A.No.10910/2011. 9. With regard to the approval of appointment of the said respondent, the matter will have to be taken up the Manager and the said respondent before appropriate authorities if the same have not been approved so far. 10. Herein, the petitioner's appointment is in a different duration than that covered by the initial appointment of Shri Sunil Kumar P.V. Therefore, the same does not stand in the way of considering the claim of the petitioner for appointment. 11. For all these reasons, the writ petition is allowed. The impugned order Ext.P5 is quashed. It is declared that the petitioner is entitled for grant of W.P.(C). No.24350/2009 -:8:- approval of appointment made as per Ext.P1 for the period from 03/01/2005 to 23/03/2005. There will be a direction to the District Educational Officer to grant approval and, consequential monetary benefits will also be released to the petitioner. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms