IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 WP(C).No. 28737 of 2009(J) ------------------------------------ PETITIONER(S): ---------------------- LAIJU.K.D,UPSA, H.U.P.S, PAYILINGAPARAMB,TRICHUR DIST. BY ADV. SRI.M.S.UNNIKRISHNAN SMT.S.KARTHIKA SRI.M.R.ANISON SMT.K.P.GEETHA MANI RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, TRICHUR. 4. THE ASST.,EDUCATIONAL OFFICER, KODUNGALLUR. 5. THE MANAGER, H.U.P.S, PAYILANGAPARAMB, TRICHUR DIST. R1 TO R4 BY GOVT. PLEADER SMT.NISHA BOSE R5 BY ADVS. SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.28737/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.D-2249/04/K.DIS DTD. 28.3.2005 ISSUED BY THE 4TH RESPONDENT. P2:- COPY OF THE NO.L.DIS. B1-4261/05 DTD. 31.3.06 ISSUED BY THE 3RD RESPONDENT. P3:- COPY OF THE ORDER NO.K.DIS./F2/60318/06/DPI DTD. 23.12.06 ISSUED BY THE 2ND RESPONDENT. P4:- COPY OF THE ORDER NO.9882/B2/08/G.EDN. DTD. 6.4.09 ISSUED BY THE IST RESPONDENT. P5:- COPY OF THE ORDER NO.D-2147/09/K.DIS. DT. 31.7.09 ISSUED BY THE 4TH RESPONDENT. P6:- COPY OF THE LETTER DTD. 22.3.2011 ISSUED BY THE IST RESPONDENT. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 28737 of 2009-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of June, 2011. JUDGMENT The challenge in this writ petition is against Ext.P4 order to the extent of not approving the appointment of the petitioner as UPSA in the school managed by the fifth respondent, from 2.6.2004 to 20.11.2007. 2. After the appointment was made, the proposal for approval was declined initially, as per Ext.P1 order by the fourth respondent. An appeal was filed against Ext.P1 order, which was dismissed by the third respondent as per Ext.P2 order stating that the vacancy had to be filled up by a protected teacher. The appointment was in a regular vacancy with effect from 2.6.2004. After the appeal was dismissed, the Manager filed a revision petition before the Government which was allowed directing approval from 20.11.2007, i.e. the date of appointment of the protected teacher. Accordingly, the appointment was approved from 20.11.2007 to 31.3.2008 on daily wage basis and as Probationer UPSA from 2.6.2008 onwards as per Ext.P5 order. It is accordingly pointed out that as on the date of appointment of the petitioner, there was no protected teacher awaiting deployment in the concerned educational sub district. wpc 28737/2009 2 3. Learned counsel for the petitioner relied upon a decision of this Court in Moosakutty v. D.E.O., Wandoor (2009 (3) KLT 863) in that context, wherein Rule 6(viii) of Chapter V K.E.R. was interpreted. 4. In the counter affidavit filed by the third respondent, in para 12, it is stated that “it is obligatory of the Manager of newly upgraded/opened schools to appoint protected Teacher from the list of protected teachers to be obtained from the Educational Officers concerned as per G.O.(Ms) No.20/82/GE dated 20.2.1982 and G.O.(Ms) No.347/98/GE dated 1.9.1988.” Finally it is stated that some protected teachers deployed in Government schools are working in the Revenue District. Reference is also made to the amendment to Rule 6(viii) Chapter V K.E.R. 5. Along with the reply affidavit, the petitioner has produced Ext.P6 order passed by the Government, whereby in the same school, the appointment of one Smt. Mehrunnisa was directed to be approved from 1.12.2003. 6. In Moosakutty's case (2009 (3) KLT 863), this Court after considering various aspects, held thus with regard to the interpretation of Rule 6(viii): “ Going by Rule 6(viii), the Manager will have to execute an agreement that he is prepared to absorb qualified teachers/non wpc 28737/2009 3 teaching staff who have been retrenched from 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 Chapter 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-rule (viii) of R.6 of Chapter V. K.E.R. Therefore, in terms of sub-rule (1) of Rule 9 of Chapter 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 upon Government Order, G.O.(P) No.83/88/G.Edn. dated 18.4.1988. 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.” The Government Orders were also considered in the matter. Therefore, the obligation of the Manager under Rule 6(viii) Chapter V K.E.R. is evident and clear. The averments in the counter affidavit show that the availability of protected teacher was only in the Revenue District and as per the wpc 28737/2009 4 unamended Rule 6(viii), the same cannot be enforced against the Manager. Therefore, the finding by the Government in Ext.P4 that the petitioner's appointment has to be approved only from the date of appointment of the protected teacher, cannot be justified in the light of the view taken by this Court in Moosakutty's case (2009 (3) KLT 863). 7. Apart from that, in spite of Ext.P4 order, the appointment is approved from 20.11.2007 to 31.3.2009 on daily wage basis. The appointment was in a regular vacancy of UPSA from 2.6.2004. 8. In the light of the above, the petitioner is entitled to succeed in the writ petition. As there was no protected teacher available in the educational sub district, the impugned orders cannot survive. Therefore, Exts.P4 and P5 to the extent to which the appointment was approved only from 20.11.2007, cannot be justified and the same are quashed. It is declared that the appointment of the petitioner is liable to be approved from 2.6.2004. There will be a direction to the third respondent to pass appropriate orders in the matter, approving the appointment as above and the petitioner will also be entitled for consequential benefits. Orders as above, will be passed wpc 28737/2009 5 within a period of two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/