IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 WP(C).No. 19231 of 2009(Y) ------------------------------------ PETITIONER(S): ------------------------- V.RADHAMANI, HIGH SCHOOL ASSISTANT (SOCIAL STUDIES), T.I.H.S.S., NAIMARMOOLA, VIDYANAGAR P.O., KASARAGOD. BY ADV. MR.ELVIN PETER P.J. RESPONDENT(S): ------------------------ 1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, KASARAGOD. 3. THE MANAGER, T.I.H.S.S., NAIMARMOOLA, VIDYANAGAR P.O., KASARAGOD. 4. M.A.MATHEW, U.P.S.A., T.I.H.S.S., NAIMARMOOLA, VIDYANAGAR P.O., KASARAGOD. R1 & R2 BY GOVT. PLEADER SMT.M.R.SREELATHA R4 BY ADVS. MR.S.JIJI, MR.J.JAYAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON 12/11/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.19231/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER G.O. DTD. 19.7.05 ISSUED BY THE GOVERNMENT. P2:- COPY OF THE APPOINTMENT ORDER DTD. 2.6.08 OF THE PETITIONER . P3:- COPY OF THE ORDER G.O. DTD. 19.9.08 ISSUED BY THE GOVERNMENT. P4:- COPY OF THE OBJECTION DTD. 3.4.09 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P5:- COPY OF THE ORDER DTD. 24.6.09 ISSUED BY THE IST RESPONDENT. R4(a):- COPY OF THE REPRESENTATION FILED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT. R4(b):- COPY OF THE OBJECTION FILED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT ON 17.6.08 . R4(c):- COPY OF THE CLARIFICATION OF THE IST RESPONDENT BY NO.H2/54211/06/L.DIS. R4(d):- COPY OF THE LETTER OF THE 2ND RESPONDENT DTD. 8.9.08 . R4(e):- COPY OF THE JUDGMENT DT. 3.12.08 IN WPC. 35494/08 OF THIS HONOURABLE COURT. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 19231 of 2009-Y - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of November, 2009. JUDGMENT The petitioner is aggrieved by the order Ext.P5 passed by the Director of Public Instruction, whereby it was held that the 4th respondent is entitled for promotion from 2.6.2008 as H.S.A. (Social Studies) by reverting the petitioner as UPSA from 2.6.2008. The relevant facts for the disposal of the case are the following: 2. The petitioner herein was appointed as UPSA in T.I.H.S.S., Naimarmoola on 2.6.1998 and the said appointment has been approved. The 4th respondent is senior to the petitioner. The petitioner's qualification is B.A. Economics and B.Ed. in History and English, whereas the 4th respondent possesses the qualification of B.A. History and B.Ed. in English. One Shri S.R. Vijayakumar was promoted as Headmaster with effect from 2.5.2008 and by Ext.P2 the petitioner was appointed by way of promotion, as H.S.A. (Social Studies) with effect from 2.6.2008. This was approved also. The 4th respondent challenged the same before the Director of Public Instruction on various grounds. He raised a contention that he is senior to the petitioner and he is having the required qualification also. This was wpc 19231/2009 2 accepted by the Director of Public Instruction. 3. The matter therefore will have to be examined in the light of the qualifications prescribed under the rules and in terms of Ext.P1 Govt. Order and the further clarification issued by the Government as per Ext.P3. 4. Under Rule 2 Chapter XXXI K.E.R. the qualifications prescribed for the post of H.S.A. (Core Subjects) is a degree in the concerned subject and B.Ed./BT/LT conferred or recognized by the Universities in Kerala. As per Ext.P1, the Government decided that B.Ed. in the concerned subject along with Degree in the concerned subject shall be stipulated as qualification for H.S.A. It was ordered that “hereafter for appointment to the post of H.S.A. (core subjects) B.Ed./BT/LT should be in the concerned subject along with Degree in the concerned subject. It was further ordered that “formal amendment in KER will be issued separately.” 5. The petitioner was promoted in terms of Ext.P1 Govt. Order as she was having the required qualification of B.Ed. in History and English , whereas the 4th respondent was having B.Ed. in English only. The Government, later by Ext.P3 order dated 19.9.2009 modified Ext.P1 itself. Three categories were exempted from the purview of Ext.P1 Govt. Order. Item (ii) alone is relevant herein, which is extracted below: “(ii) Those teaching and non teaching staff who entered into wpc 19231/2009 3 aided/Government school regular service before 19.7.2005 and had acquired B.Ed. in a different subject before that date, aspiring promotion/appointment by promotion as H.S.A. (subjects) (excluding H.S.A. (English).” It was also ordered that formal amendment in K.E.R. will be issued separately. 6. Learned counsel for the petitioner, by relying upon various decisions of the Apex Court and of this Court, contended that Ext.P3 cannot be termed as retrospective. The same is dated 19.9.2008. The date of occurrence of vacancy is 2.6.2008. As on the date of occurrence of vacancy, the petitioner alone was qualified and any vested right of the petitioner cannot be taken away by any retrospective effect given to Ext.P3. It is pointed out that Ext.P3 can apply only to future vacancies, as an executive order cannot act retrospectively. It is further contended that even if Ext.P1 is an executive order, it only adds the gap in the rules in Chapter XXXIII and it does not go contrary to Rule 2 of Chapter XXXI K.E.R. Alternatively, it is contended that Ext.P1 has not been challenged by the 4th respondent and therefore the same has to be treated as valid for all purposes. It is further pointed out that the promotions and fresh appointments are made as provided in Ext.P1 itself and therefore they wpc 19231/2009 4 cannot be upset at this distance of time. Reliance is placed on the principles stated by the Apex Court and of this Court in Padmanabhan v. Deputy Director (1991 (1) KLT 337), Gopalakrishnan Nair v. State of Kerala (ILR 1992 (3) Ker. 739), Chairman, Railway Board and others v. C.R. Rangadhamaliah and others {(1997) 6 SCC 623} and Anilkumar v. State of Kerala (2009 (3) KLT 650 (FB)). 7. Learned counsel for the 4th respondent submitted that the qualifications prescribed under a statutory rule cannot be amended by an executive order and therefore Ext.P1 cannot substitute Rule 2 of Chapter XXXIII in the absence of an amendment which has not been brought into force so far. It is submitted that this Court and the Apex Court have held in various decisions that when an executive order is quite contrary to the statutory provisions, that cannot have any operation and has to be ignored. It is further pointed out that going by Ext.P3 which modifies Ext.P1, the 4th respondent clearly comes within its purview. He is senior to the petitioner and thus is entitled for grant of promotion, as he is qualified also. The learned counsel relied upon the principles stated in the following decisions: Ex. Capt. K. Balasubramanian and others v. State of Tamil Nadu and another {(1991) 2 SCC 708}, Subhash v. State of wpc 19231/2009 5 Maharashtra and another (1995 Supp (3) SCC 332), T.N. Housing Board v. N. Balasubramaniun and others {(2004) 6 SCC 85}, Dhananjay Malik and others v. State of Uttaranchal and others {(2008) 4 SCC 171}, Sindhu v. Kerala Public Service Commission (2001 (2) KLT 507), Manager, M.P.V.H.S. School v. Girija (2003 (1) KLT 935 (FB) and Unni Narayanan v. State of Kerala (2009 (2) KLT 604). 8. The crucial question is whether Ext.P1 which is an executive order, can go against the specific provisions of Rule 2 of Chapter XXXI K.E.R. One important contention raised by the learned counsel for the petitioner is that it does not go against the relevant rules of K.E.R., as the notification only fills the gaps in the statutory rules, which is a legally permitted method. 9. Therefore, it has to be considered whether Ext.P1 only fills the gaps in the relevant rules. Herein, the principles stated by this court in an almost similar situation, requires consideration. The same question arose in Anitha John's case (2002 (3) KLT 974). Therein, by a Government Order, viz. G.O.(MS) No.11/2002/G.Edn. dated 7.1.2002), a new cadre of H.S.A. English was created which was challenged in Suguna Prakash v. wpc 19231/2009 6 State of Kerala (2002 (3) KLT 488). A learned Single Judge of this Court held that the same are not enforceable without corresponding amendment to the rules. When the matter came up before the Division Bench, the Bench considered the question whether the Government Order only fills up the gap in the rules. After examining the relevant rules, it was held thus in para 7: “But nowhere in the Rules qualification of H.S.A. (English) is prescribed. Therefore, there is a gap in the Rules which can be filled up by executive orders. As already stated, English is a compulsory subject in Kerala State and English teachers are necessary in every division. Prior to the issuance of the Government Order, teachers who were teaching Science, Mathematics and Social Studies were allowed to teach English. Since S.10 authorises the Government to prescribe qualification for teachers and qualification for H.S.A. (English) was not fixed, it cannot be said that the executive order passed by the Government fixing the qualification is an incorrect or invalid order. It is true that executive orders are passed for filling up the lacuna in the Rules.” It is profitable to refer to para 10 also which is as follows: “.........In a number of decisions, it has been held that rules prescribing qualifications cannot be changed by executive orders. There is no dispute that qualifications prescribed in the rules can be changed only by amending the rules. But here, wpc 19231/2009 7 qualifications for H.S.A. (English) are not prescribed in the rules and the Government Order itself shows that it was issued as a prelude to the issuance of the Rules. Government has power to prescribe qualifications under S.10 of the Act............” (emphasis supplied) The power to fill up the gaps in the rule under Section 10 of the Act was upheld in the light of the fact that qualifications for H.S.A. English are not prescribed in the Rules. At the same time, the Bench was of the view that “there is no dispute that qualifications prescribed in the rules can be changed only by amending the rules.” 10. The next decision is by another Division Bench of this Court in Sindhu v. Kerala Public Service Commission (2001 (2) KLT 507). It was affirmed by a Full Bench in Manager, M.P.V.H.S. School v. Girija (2003 (1) KLT 935 (FB). These decisions related to the interpretation of Rule 2(2) of Chapter XXXI K.E.R. In Sindhu's case (2001 (2) KLT 507), the Bench examined the question whether, for appointment to the post of H.S.A. (Malayalam), the B.Ed. degree obtained should be in Malayalam itself and the answer was in the negative. The appointment therein related to the post of H.S.A. (Malayalam) in Government schools. The Government issued a clarification that B.Ed. degree holders can be wpc 19231/2009 8 considered for appointment to the concerned post provided he has a basic degree in the respective subject and has specialised in the corresponding subject at B.Ed. level course. It is in the light of the said clarification, the issue arose for decision. It was held thus in para 6: “The qualification for appointment to the post of High School Assistant (Malayalam) prescribed under Ext.P1 notification issued by the Public Service Commission is the one notified by the Government in Ext.R1(b) order. The qualification thus prescribed in 1980 has not so far been amended. As held by a Division Bench of this Court in Jesilet v. State of Kerala, 1987 (2) KLT 984, once a rule fully and adequately prescribes qualifications for a post, the State Government in exercise of its executive powers cannot alter the qualifications for eligibility. Though not directly, the issue was again considered by another Division Bench of this Court in the decision reported in Sree Sankaracharya University of Sanskrit V. Prasanna Kumari, ILR 1997 (1) Kerala 319.” Finally it was held thus in para 9: “9. Thus so long as a candidate possesses a qualification which is notified and which qualification notified is in accordance with the rules, it cannot be said that such a candidate is not qualified for the only reason that training qualification is not in the concerned subject. So long as there is no prescription to that effect and so long as the rule/notification regarding qualification is not amended, it cannot be insisted that a wpc 19231/2009 9 candidate should possess training qualification in the concerned subject. As it is now found to be desirable to have the training qualification also in the concerned subject at B.Ed. level, and since the qualifications prescribed are of 1980, and as the Government is also of the said view, we direct the Government to take appropriate steps immediately for suitably amending the rule.” (emphasis supplied) 11. In Manager, M.P.V.H.S. School's case (2003 (1) KLT 935 (FB)), the above decision of the Division Bench was upheld. The Full Bench therein considered the interpretation of Rule 2(a) onwards of Chapter XXXI K.E.R. In para 8 it was held thus: “Thus, there is no reason why we should hold that B.Ed. prescribed in Sub-rr.(2)(a), or 2(b)(i), or (ii), or (iii) or (v), or (vi), or (vii), or (viii) or (ix) of Rule 2 of Chapter XXXI should be in the subject concerned. In all the subjects referred to in Cls. (i) to (ix) of R. 2(2), B.Ed./B.T./L.T. have always been bracketed. If there was no optional subject for B.T. and L.T., we see no pressing for importing that concept for interpretation while dealing with B.Ed. training qualification required under the said Rules.” The issue was further explained in para 9 in the following words: “For all these years, the rules have been interpreted by the rule making authority, the State Government in the Educational Department, as also by the teachers and the Managers of the wpc 19231/2009 10 schools in a particular manner B.Ed. qualification with the optional subject has never been considered as required. It would, therefor, be quite needless to upset the apple cart and unsettle the position by a judicial interpretative process at this point of time. Firstly, the interpretation would apply retrospectively from the date on which the rule was enacted. Secondly, it would defeat the legitimate expectations of large number of persons who may have obtained B.Ed. or its equivalent in other subjects with a view to get promotion by virtue of R.43 of Chapter XIV-A of K.E.R. In any case, the litera legis is clear and leads to no ambiguity, though it could have been better worded. Finally, the life of law is not logic but convenience, as Justice Holmes said.” Finally, in para 11 it was held that if the State Government is of the view that training qualification of a teacher must be in the subject concerned, then they must immediately amend the rule to that effect. Thus, the consistent view taken is that without amending the statutory rules, the particular qualification that B.Ed. should be in the concerned subject, cannot be insisted. 12. Now, I may refer to the principles stated by the Apex Court and by this Court with regard to the question whether an executive order which goes against the statutory rules can survive. In Ex. Capt. K. Balasubramanian's case {(1991) 2 SCC 708} it was held that the wpc 19231/2009 11 administrative instructions cannot alter or supersede the statutory rules. Therein, the express provisions contained in the statutory rules for fixing the seniority of certain posts, was sought to be altered by administrative instructions without any corresponding amendment to the rules. In T.N Housing Board's case {(2004) 6 SCC 85} also the same question was considered. Therein also, the statutory regulations were sought to be supplemented by certain executive instructions. It was found that it will change the criteria itself. In para 6 it was held thus: “Once it is held that relying on the basis of the executive instructions in terms of Regulation 28(a), the Draftsmen who have been getting higher salary are given preference over the diploma- holder Junior Engineers, the eligibility criteria contained in the statutory Regulations would become otiose; the logical corollary thereof would be that the executive instructions would prevail over the statutory Regulations. Such a consequence would lead to an absurdity and in that view of the matter it must be held that the executive instructions cannot be given effect to.” 13. A Division Bench of this Court in Unni Narayanan's case (2009 (2) K.L.T. 604) examined the very same question while considering the interpretation of Rule 7A of Chapter XIV-A K.E.R. The restrictions imposed by a Government Order, viz. G.O.(P) No.104/08/G.Edn. dated wpc 19231/2009 12 10.6.2008 with regard to the approval of appointment was the subject matter of challenge. It was held thus in para 7: “In certain circumstances, the Government may be able to issue executive instructions, but they have no efficacy to override the statutory provisions. We agree with the contentions of the writ petitioners that the offending conditions in Ext.P2 Government Order cannot stand with the statutory rules. Therefore, for enforcing them, the relevant rules require amendment. As long as the rules are not amended, Ext.P2 cannot be pressed into service by the Government.” 14. In answer, learned counsel for the petitioner submitted that going by the decision of the Apex Court in Dhananjay Malik's case {(2008) 4 SCC 171}, it has been held that the qualifications prescribed by the statutory rules and the gaps therein, could be filled up by administrative instructions. Therein, after examining the relevant rules, it was found that executive instruction is only a clarification to fill up the gap between statutory provisions. In para 14 of the said judgment a decision of a Constitution Bench in Sant Ram Sharma v. State of Rajasthan (AIR 1967 SC 1910) was relied on and the said para is extracted below: “14. A Constitution Bench of this Court in Sant Ram Sharma v. wpc 19231/2009 13 State of Rajasthan (AIR 1967 SC 1910) has pointed out at AIR p. 1914 that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.” Therefore, filling up of gaps can be done if the rules are silent. 15. I may refer to two more decisions rendered by this Court in regard to the interpretation of Rule 2(2)(a) of Chapter XXXI K.E.R. In an unreported decision in O.P.No.5527/1991, the question whether the specification by a Government Order dated 21.10.1988 prescribing B.Ed. in Social Studies for appointment to the post in question was considered. It was held that as the rule is clearly specific and it does not provide that training qualification shall be in a particular subject and as there is no amendment pursuant to the Government Order, the petitioner therein is qualified to hold the post of H.S.A. Para 2 of the said judgment is extracted below: “2. Ext.P4 is copy of th Govt. Order dt.21.10.1988. The above Govt. Order itself states that formal amendments of K.E.R. will be issued separately. But, apparently, no such amendment was made to the provisions under the K.E.R. As per the provisions contained under Rule 2(2)(a) of Ch. XXXI of K.E.R., the qualification wpc 19231/2009 14 prescribed for High School Assistants are a Degree in the concerned subject and B.Ed./B.T./L.T. conferred or recognised by the Universities in Kerala. But, it is not provided that training qualification shall be in a particular subject. As mentioned earlier, the above provision is not amended pursuant to Ext.P4 Govt. Order. Under these circumstances, it has to be taken that the petitioner is qualified to hold the post of High School Assistant.” In Bose William v. State of Kerala (2002 (2) KLT 34) also the question arose whether postgraduate degree in English Language and Literature with B.Ed. qualifies for the post of H.S.A. (Social Studies). While examining the power of the rule making authority to issue executive orders in such matters, it was held thus in para 13: “ Under S.10 of the Kerala Education Act, the Government has got the power to prescribe the qualifications to be possessed by persons for appointment as teachers in Government and private schools. This can be done by framing statutory rules as also by executive orders. Of course, when the field is covered by a rule, there is no scope for issuing executive orders. However, the necessity to issue orders cannot be totally obviated even in a case where rules govern the field. It is settled law that a gap in the statutory provision, can be filled up by executive orders which are not inconsistent with the Rule. The executive authority can supplement the rule but not supplant. The position would have been entirely different if the rule specifically used the expression 'Bachelors degree' instead of saying wpc 19231/2009 15 'degree' only. In such a case the executive authority will not have the power to delete the word 'Bachelor' and substitute the same with any other expression including Post-graduate or Masters degree.” 16. Thus, the position is clear, in that the prescriptions of a statutory rule cannot be sought to be amended by an executive order. Thus, when it is covered by a rule, whereby a particular qualification is prescribed in the rule itself, it cannot be varied by issuance of an executive order. The true test is whether there is any inconsistency in the rule. As held by this Court in Bose William's case (2002 (2) KLT 34, the executive authority can supplement the rule, but not supplant. 17. Herein, the relevant rule, viz. Rule 2(a) of Chapter XXXI K.E.R. prescribed the qualifications for H.S.A. (Core Subjects), as a Degree in the concerned subject and B.Ed./B.T./L.T. conferred or recognised by the Universities in Kerala. In Ext.P1 it is specified that B.Ed. in the concerned subject along with Degree in the concerned subject shall be stipulated as qualification for H.S.A. Therefore, really the rule is supplanted and it is not supplemented. While going by the statutory rule, B.Ed. in any subject is sufficient, Ext.P1 is specific that B.Ed. should also be in the concerned subject along with Degree in the concerned subject. Therefore, there is total inconsistency. It is not a case where gaps in the wpc 19231/2009 16 statutory rule are sought to be filled up by an executive order. Even though it is specified in Ext.P1 that formal amendment in KER will be issued separately, the same has not been done so far. As noticed by the Full Bench in Manager, M.P.V.H.S. School's case (2003 (1) KLT 935 (FB)) if the Government wanted to provide anything by way of such substitution in the rule, it could have been done only by a statutory amendment itself. This is clear from the decision of the Division Bench in Sindhu's case (2001 (2) KLT 507) which was affirmed by the Full Bench in Manager, M.P.V.H.S. School's case (2003 (1) KLT 935 (FB)). As long as a person is qualified in terms of the prescriptions of Rule 2(a) of Chapter XXXI K.E.R., he cannot be denied the promotion on the ground that he does not possess the qualifications prescribed by Ext.P1 Govt. Order. Without amending the statutory rule, it cannot be insisted that a candidate should possess B.Ed. in the concerned subject. 18. The effect of Ext.P3 is only to obliterate the effect of Ext.P1 for persons like the fourth respondent. It is the contention of learned counsel for the petitioner that Ext.P3 cannot be termed as having retrospective effect, and reliance is placed on the decision of the Apex Court in Chairman, Railway Board and others' case {(1997) 6 SCC wpc 19231/2009 17 623} to contend that the vested rights cannot be taken