IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 OP.No. 39485 of 2002(A) ----------------------- PETITIONERS: ------------ 1. C.D.MARY, HIGH SCHOOL ASSISTANT (SOCIAL STUDIES), GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, CHERUVANNUR, KOZHIKODE DISTRICT. 2. VALSALAKUMARI U., HIGH SCHOOL ASSISTANT (NATURAL SCIENCE), GOVERNMENT GANAPAT VOCATIONAL HIGHER SECONDARY SCHOOL, FEROKE, KOZHIKODE. 3. RAJAMMA A.S., HIGH SCHOOL ASSISTANT (MATHEMATICS), GOVERNMENT HIGH SCHOOL, KUNDUPARAMB P.O. EDAKKAD, KOZHIKODE DISTRICT. 4. ABDU RAHIMAN P., HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE) GOVERNMENT GANPAT VOCATIONAL HIGHER SECONDARY SCHOOL, FEROKE, KOZHIKODE. BY ADV. SRI.K.P.DANDAPANI RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATIONAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. THE PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, CHERUVANNUR, KOZHIKODE DISTRICT. 5. THE PRINCIPAL, GOVERNMENT GANAPAT VOCATIONAL HIGHER SECONDARY SCHOOL, FEROKE, KOZHIKODE DISTRICT. OP.No. 39485 of 2002 6. THE HEADMASTER, GOVERNMENT HIGH SCHOOL, KUNDUPARAMB, P.O.EDAKKAD, KOZHIKODE DISTRICT. BY GOVERNMENT PLEADER SRI.T.T. MAHMOOD THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 39485 of 2002 ORDER ON C.M.P.NO.66308/02 IN O.P.NO.39485/2002 DISMISSED 22.1.2008 SD/- SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF LETTER DATED 24.12.2001 ISSUED BY R2. EXT.P2: TRUE COPY OF CIRCULAR DTD 19.9.2002 ISSUED BY R2. EXT.P3: TRUE COPY OF PROFORMA WITH RESPECT OF 1ST PETITIONER. EXT.P4: TRUE COPY OF PROFORMA WITH RESPECT OF 2ND PETITIONER. EXT.P5: TRUE COPY OF PROFORMA WITH RESPECT OF 3RD PETITIONER. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 39485 OF 2002 ---------------------------------------- Dated this the 22nd day of January, 2008 JUDGMENT The petitioners are High School Assistants aspiring for promotion as Headmasters and Asst. Educational Officers. Subsequent to filing of this original petition they have retired from service. Their contention is that although they have not passed the Account Test (Lower), on completion of 50 years of service, they are eligible for promotion as Headmasters and Assistant Educational Officers by virtue of Rule 13B of Part II of Kerala State and Subordinates Service Rules. However, by Ext.P2 circular, the Director of Public Instruction has directed that High School Assistants who have completed 50 years of age for should also pass Account Test (Lower) for promotion as Headmasters and Assistant Educational Officers. The petitioners challenge Ext.P2 circular on the ground that the same is discriminatory in so far as for promotion of HSAs as Headmasters of an aided Schools under Rule 44A teachers, who have attained the age of 50 years are exempted permanently from acquiring O.P.No.39485/02 2 test qualification for promotion as Headmasters and also on the ground that statutory rules cannot be overridden by executive orders. 2. After considering arguments of the counsel for the petitioners and the learned Government pleader, I am of opinion that in the absence of any challenge to Rule 13B of the KS & SSR, the petitioners cannot succeed in this original petition. Ext.P2 is not an executive order prescribing new qualification but is only a reiteration of Rule 13B. The Rule 13B reads thus: “13B. Notwithstanding anything contained in these rules or in the Special Rules, persons in Government service who attain the age of 50 years and who have put in 25 years of service shall be eligible for permanent exemption from passing the obligatory departmental tests, other than those prescribed as qualification in the Special Rules for all purposes such as promotion, appointment as full member of a service etc.” (underlining supplied) 3. Under the Kerala General Education Rules for appointment of Headmasters of departmental High Schools and departmental training Schools and Asst. Educational Officers by transfer from High School Assistants, passing of Account Test (Lower) and test in Kerala Education Act and O.P.No.39485/02 3 Rules are prescribed qualifications. Rule 13B specifically says that permanent exemption from passing the obligatory departmental test is applicable only to test other than those prescribed as qualification in the special rules. Since in this case passing of Account Test (Lower) is a qualification prescribed for appointment as Headmasters and Assistant Educational Officers by transfer of HSAs the exemption under Rule 13B is not available. In the absence of any challenge to Rule 13B itself the petitioner cannot succeed in this original petition. Accordingly, the original petition is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.39485/02 4