IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WP(C).No. 34405 of 2008(U) --------------------------------------- PETITIONER(S): ----------------------- 1. RAVIKUMAR. S, S/O. LATE SHIVASANKARA PILLA, KAUSTHUBHAM, MADANTHACODU, NELLIMUKKU P.O., KOLLAM- 691 509. 2. ASHA RANI. S, W/O.SRI. PRADEEP. M, W/O. SRI. PRADEEP. M, ERAYIL, MUTHUKULAM P.O., ALAPPUZHA- 690 560 BY ADV. MR.KALEESWARAM RAJ. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, THE KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER MR.V. MANU. R3 BY ADV. MR.ALEXANDER THOMAS,SC, KPSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2010, ALONG WITH WP(C) NO. 10966 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 34405/2008-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RANKED LIST FOR THE POST OF NON-VOCATIONAL TEACHERS- SR.- BIOLOGY. EXT.P2: COPY OF THE RANKED LIST FOR THE POST OF NON-VOCATIONAL TEACHERS SR.- ENGLISH. EXT.P3: COPY OF THE G.O.(P) NO.80/2004/GL. EDN. DATED 12/03/2004.. EXT.P4: COPY OF THE G.O.(MS) NO.123/07/G.EDN. DATED 23/06/2007. EXT.P5: COPY OF THE LETTER NO.72079/SC1/07/GL. EDN. DATED 03/01/2008. EXT.P6: COPY OF THE LETTER NO. E5/19100/2008 DATED 03/10/2008 FROM 2ND RESPONDENT TO 1ST RESPONDENT. EXT.P7: COPY OF THE LETTER NO.EL/RL/19214/2008(324) DATED 30/09/2008 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER & ADMN. OFFICER. EXT.P8: COPY OF THE LETTER NO.EL/RL/19925/08(325) DATED 04/10/2008 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER & ADMN. OFFICER. EXT.P9: COPY OF THE NOTIFICATION DATED 02/11/2004 PUBLISHED IN THE KERALA GAZETTE. (RELEVANT PORTION). EXT.P10: COPY OF THE LETTER DATED 22/09/2008 SENT BY ONE SRI.PK. SUDHEENDRAN NAIR. EXT.P11: COPY OF THE ORDER DATED 19/02/2009 IN WP(C) NO. 2364/2009)F). RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J ------------------- W.P.(C)s.34405/2008 & 10966/2009 -------------------- Dated this the 10th day of February, 2010 JUDGMENT 1. The petitioners were included in the rank list prepared by the Public Service Commission for the post of 'Non-Vocational Teacher -Senior'. 2. Insofar as W.P.(C).34405/2008 is concerned, Exts.P1 and P2 are the rank lists prepared by the PSC for the posts of Non- Vocational Teacher -Senior, (Biology & English). Insofar as W.P. (C).10966/2009 is concerned, rank list in question is Ext.P11, for the post of Non-Vocational Teacher (Biology). 3. Special rules in question has been produced as Ext.P3 in W.P.(C).34405/2008. Rule 3 lays down the method of appointment to the post, which is to be filled up by transfer from the category of Non-Vocational Teacher, (Junior) in the concerned discipline and in the absence of qualified hands in the above category, by direct recruitment. However, note-1 provide W.P.(C)s.34405/08 & 10966/09 2 that 10% of the total number of posts in each discipline shall be reserved for appointment by transfer from qualified ministerial staff of subordinate service department. 4. By Ext.P4 in W.P.(C).34405/2008 which is also produced as Ext.P14 in W.P.(C).10966/2009, which is only an executive order, Special Rule was attempted to be amended, and in particular, amendment was proposed to the note referred to above. By virtue of the amendment, the quota earmarked for those in the ministerial staff was enhanced from 10% to 25%. This amendment is sought to be challenged in the writ petitions mainly on the ground that the statutory rule, viz., Ext.P3 referred to above, cannot be amended or altered by an executive order in the nature of Exts.P4 and P14 referred to above. 5. Counter affidavit has been filed by the State where the justification offered appears to be that the amendment to the statutory rule in the right royal manner involves a cumbersome procedure and therefore, in order to expedite the amendment, W.P.(C)s.34405/08 & 10966/09 3 they have attempted to amend the statutory rule by an executive order. This explanation, to say the least, is most unacceptable and statutory rule cannot be amended by an executive order and this principle does not need any reiteration. Therefore, Exts.P4 and P14, to the extent it amends Special Rules referred to above, is illegal and is to be interfered with and I do so. 6. Insofar as the petitioners in W.P.(C).34405/2008 are concerned, during the pendency of the writ petition, they were advised and have been appointed. Therefore, their continuance should be treated as regular for all purposes. 7. Insofar as the petitioner in W.P.(C).10966/2009 is concerned, her complaint is that despite the availability of seven vacancies, only three vacancies were reported and she, being the 4th one, will get advised, if at least one more vacancy is reported. This is a factual matter which the respondents will have to ascertain and do the needful. Therefore, if the rank list which came into force on 20.11.2006 is still in force, 2nd respondent is W.P.(C)s.34405/08 & 10966/09 4 directed to verify the correctness of the claim of the petitioner about the existence of more vacancies in which event, if the petitioner is not already advised, necessary action in accordance with law, will be taken on receipt of a copy of this judgment. 8. It is now informed that the Special Rule has since been amended as per the Kerala Vocational Higher Secondary Education State service (amendment) Rules, 2009, which came into force on 29.9.2009. It is clarified that this judgment has been rendered in the context of executive order referred to above, viz., Exts.P4 and P14 respectively and that it will not have any impact on the Amendment Rules, 2009. Writ petitions are disposed of as above. ANTONY DOMINIC, Judge mrcs