IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 WP(C).No. 8834 of 2009(Y) ------------------------------- PETITIONER: -------------- TREESAMMA.A., L.D.CLERK, DIRECTORATE OF V.H.S.E.,HOUSING BOARD BUILDING, SHANHTHI NAGAR, THIRUVANANTHAPURAM. BY ADVS. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL. SRI.VISHNU S. CHEMPAZHANTHIYIL RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC FOR R3 SMT. RANI DIOTHIMA, GOVERNMENT PLEADER FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.8834/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF DEGREE CERTIFICATE OF PETITIONER. EXT. P2 : COPY OF DEGREE CERTIFICATE ISSUED BY UNIVERSITY OF KERALA. EXT. P3 : COPY OF RANK LIST PUBLISHED WITH EFFECT FROM 23.11.06. EXT. P4 : COPY OF G.O.(P) No.80/04/G.EDN DTD. 12.3.04. EXT. P5 : COPY OF G.O.(MS) No.123/07/G.EDN DTD. 23.6.07. EXT. P6 : COPY OF JUDGMENT DTD. 8.8.08 IN WP(C) 32148/06-B OF THIS COURT. EXT. P7 : COPY OF COMMUNICATION No.E4/3764/04 DTD. 25.4.07 ISSUED BY R2. EXT. P8 : COPY OF INTERIM ORDER DTD. 24.7.07 IN WP(C) 4525/07 OF THIS COURT. EXT. P9 : COPY OF COMMUNICATION No.E5/7635/07 DTD. 28.3.08 BY R2 TO R3. EXT. P10 : COPY OF COMMUNICATION No.E5/19100/2008 DTD. 3.10.08 BY R2 TO R1. EXT. P11 : COPY OF COMMUNICATION No.72079/SC1/07/G.EDN DTD. 3.1.08 BY R1 TO R2. EXT. P12 : COPY OF COMMUNICATION No.E5/7635/07 DTD. 6.10.08 BY R2 TO R3. EXT. P13 : COPY OF G.O.(Rt) No.3736/97/G.EDN DTD. 28.10.97. EXT. P14 : COPY OF SUBMISSION DTD. 17.11.03 FILED BEFORE R1. EXT. P15 : COPY OF ORDER DTD. 21.1.08 IN WP(C) 34405/08 OF THIS COURT. EXT. P16 : COPY OF LETTER No.62288/SC.2/07/G.EDN DTD. 1.7.08 ISSUED BY R1. WP(C).No.8834/2009 EXT. P17 : COPY OF REPLY No.EL/R.1/23149/08 DTD. 13.11.08 ISSUED BY R2. EXT. P18 : COPY OF INTERIM ORDER DTD. 19.2.09 IN WP(C) 2364/09 OF THIS COURT. EXT. P19 : COPY OF COMMUNICATION No.E5/23270/08 DTD. 11.3.09 ISSUED BY R2. EXT. P20 : COPY OF COMMUNICATION No.E4/6601/09 DTD. 8.5.09 ISSUED BY STATE PUBLIC INFORMATION OFFICER. EXT. P21 : COPY OF ORDER DTD. 17.3.09 IN I.A 3582/09 IN WP(C) 34405/08 OF THIS COURT. EXT. P22 : COPY OF INTERIM ORDER DTD. 23.5.09 IN WP(C) 34405/08 OF THIS COURT. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.8834 OF 2009 --------------------------------------- Dated this the 25th day of August, 2011. J U D G M E N T The petitioner herein is working as Lower Division Clerk in the Directorate of Vocational Higher Secondary Education. She is a post graduate in Mathematics with first class from the University of Kerala. She is also a B.Ed holder with optional subject in Mathematics. The petitioner has also passed SET in March 2004. The certificates have been produced as Exts.P1 and P2. 10% of the total posts of Non Vocational Teachers have been reserved for appointment by transfer from qualified ministerial staff in the subordinate service of the department, as per the Special Rules for Kerala State Vocational Higher Secondary Education Rules. 2. A notification was issued by the Public Service Commission for appointment to the post of Non Vocational Teacher by transfer and the petitioner applied and Ext.P3 is the copy of the ranked list. The petitioner is rank No.2 therein. W.P.(C) No.8834/2009 2 Ext.P4 is the copy of the Special Rules issued by the Government. Therein, Note 1 shows that 10% of the total posts of Non Vocational Teacher in each discipline shall be reserved for appointment by transfer from qualified ministerial staff. Later the Government by Ext.P5 order proposed to amend the Special Rules by reducing 10% of the quota to 5%. 3. The case of the petitioner is that Ext.P5 is only a proposal and an executive order like the one cannot amend a statutory rule. Earlier the petitioner had approached this Court by filing W.P.(C) No.32148/2006 which was disposed of by Ext.P6 judgment. Therein a direction was issued to the 2nd respondent to report all the available vacancies to the 3rd respondent within a period of one month from the date of production of a copy of the said judgment. 4. Ext.P7 evidences the fact that one vacancy was reported by communication dated 25.04.2007. It is pointed out that the 1st rank holder has already been appointed after Ext.P8 interim order was passed. In W.P.(C) No.32148/2006 in August 2008 directed to report all available vacancies. It appears that the W.P.(C) No.8834/2009 3 2nd respondent had sought some clarification from the Government as per Ext.P10. After the formalities were completed, Ext.P12 proforma has been forwarded by the 2nd respondent to the Public Service Commission. Therein it is mentioned that for the ministerial staff of the Department, the percentage is 5%. This is the grievance raised by the petitioner in this writ petition. 5. Learned counsel for the petitioner submitted that this Court in the judgment in W.P.(C) No.34405/2008 and connected Writ Petition No.10966/2009 has already found that an executive order cannot amend the Special Rules. A reading of the judgment shows that the very same executive order was relied on therein and this Court was of the view that a statutory rule cannot be amended by an executive order and the said principle does not need any reiteration. Unamended Note 1 was referred to in that context. The amendment of the Special Rules is only from 29.09.2009. Herein the vacancies were reported as evident from Exts.P7 and P12 prior to the coming into force of the said amendment. It is evident from the averments in paragraph 9 of W.P.(C) No.8834/2009 4 the counter affidavit filed by the 2nd respondent that the total sanctioned cadre strength of Non Vocational Teacher in Mathematics is 18. The stand taken is that in the light of Exts.P5 and P11, only one post can be earmarked for by transfer appointment. Evidently, the proposal by way of Ext.P5 cannot affect the quota under the then Special Rules and the provisions contained in Note 1 therein namely, Ext.P4 produced herein. Therefore, the reliance placed on Ext.P5 cannot be justified. For all these reasons, the petitioner is entitled to succeed in the writ petition. In the light of the legal position as explained above, there will be a direction to the 2nd respondent to take appropriate action to see that the ministerial category is given the benefit of Note 1 as remained in Ext.P3 before amendment and pass appropriate orders in accordance with the findings herein with regard to the claim of the petitioner for appointment within a period of two months from the date of receipt of a copy of this judgment which will be communicated thereafter to the Public Service Commission. The claim will be considered in any W.P.(C) No.8834/2009 5 of the vacancies already reported to the Public Service Commission if necessary by issuing notice to anybody advised already. This writ petition is allowed as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp