High Court of KeralaSingle Judge2016-06-27Writ petition disposed; Ext.P4 quashed; Governm...

C.P. MUHAMMED ABDL NAZEER v. STATE OF KERALA & OTHERS

Case / Petition Number:WP(C).No. 2437 of 2009 (M)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.K. Abdul Rehim
Judgment Date: 2016-06-27
Court Decision / Holding: Writ petition disposed; Ext. P4 quashed; 1st respondent directed to reconsider the matter and take a fresh decision on approval of the petitioner’s appointment, after affording personal hearing to the petitioner, the 5th respondent, and the educational authority concerned. A fresh decision to be taken within three months from the copy of the judgment.
Final Disposition: Writ petition disposed; Ext.P4 quashed; Government directed to reconsider and decide afresh on the petitioner’s appointment, after giving personal hearing, within three months of receipt of a copy of the judgment.

Parties to the Case

Appellants / Petitioners

C.P. MUHAMMED ABDL NAZEER

Respondents

The State of Kerala represented by the Secretary to Government, General Education Department, Secretariat, Trivandrum
Director of Public Instruction, Jagathy, Trivandrum
District Educational Officer, Thamarassery, Kozhikode district
Assistant Educational Officer, Thamarassery, Kozhikode district
Manager, AMLP School, Palakkutti, Koduvalli, Kozhikode district
Assistant Educational Officer, Koduvalli, Kozhikode district

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V.A. Muhammed

Counsels for Respondents

• Sri. K. K. Rajeev (Government Pleader) for Respondents 1–4 & 6
• Sri. K. A. Manzoor Ali for Respondent 5

Case Synopsis & Summary

The petitioner, C.P. Muhammed Abdul Nazeer, an Arabic teacher employed at AMLP School, Palakkutti, Koduvalli, Kozhikode, challenged the rejection of his appointment for the post of Arabic Teacher with effect from 1 June 2005. The 5th respondent, the Manager of the same school, was directed to appoint from the list of protected teachers but Exts. P1–P4 show the Government’s and educational authorities’ rejection, citing GO provisions that newly started schools must appoint from protected-teacher lists. The Director of Public Instruction and government orders were relied upon to insist on at least one protected teacher. The petitioner argued that there was no list of protected teachers available as on 1.6.2005 (as revealed by RTI materials in Exts. P20–P21) and that executive orders cannot override statutory prescriptions; Moosakutty v. DEO, Wandoor (2009) KLT 863 supports that a manager cannot be faulted when no protected teacher is available in the sub-district, and even if a protected teacher exists elsewhere, forced transfer isn’t permissible. The court quashed Ext. P4 and directed the Government to reconsider the matter, affording personal hearing to the petitioner, the educational authority, and the 5th respondent, with a fresh decision to be made within three months. The decision was delivered by a Single Judge, Justice C.K. Abdul Rehim, on 27 June 2016.

Provisions of Law Cited

GO(P) 178/2000 G.Edn dt 28.6.2002GO(P) 46/2006 G.Edn dt 1.2.2006GO(P) No.317/2005 G.Edn dt 17.8.2005Rule 6(viii) of Chapter VRule 9 of Chapter IIIRight to Information Act

Legal Doctrines & Maxims

Executive orders cannot override statutory prescriptions.
If no protected teacher is available in the particular sub-district, the Manager cannot be faulted for not appointing a protected teacher; cross-district appointment of a protected teacher cannot be forced on the Manager.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that there was no protected-teacher list on 1.6.2005 and that statutory prescriptions cannot be overridden by executive orders; relying on Moosakutty v. DEO, Wandoor, the petitioner argues that the Manager cannot be faulted for not appointing a protected-teacher where none is available locally; the appointment already approved in 2011 should not affect the period 2005–2011, and a fresh decision is needed after hearing.

Contentions of Respondents

The respondents argue that there is a statutory obligation to appoint at least one protected-teacher in the school; Exts. P1–P3 reflect reliance on GO orders and circulars; Ext. P4 represents the Government’s cryptic order; the Government’s position is that the Manager must appoint from the protected list and the petition seeks to override a regulatory framework.

Cited Precedents (8)

Case Name	Citation	Treatment	Explanation
Moosakutty v. DEO, Wandoor	2009(3) KLT 863	Positive	Cited as the controlling principle that executive orders cannot override statutory prescriptions and that absence of a locally available protected teacher can absolve the manager from fault; used to direct reconsideration.
OP No. 7847/1983	7847/1983	Mentioned Only	Exhibit referenced but not clearly explained or applied in the judgment’s reasoning.
WA No. 754/1987	1987 WA 754/1987	Mentioned Only	Exhibit referenced; no explicit analytical treatment in the judgment.
WP (C) No.2563/2008	2563/2008	Mentioned Only	Judgment cited as an exhibit; no direct treatment discussed in the text.
WA No.183/2010	183/2010	Mentioned Only	Exhibit cited; no explicit application in the decision.
SLP No.36558/2010	36558/2010	Mentioned Only	Exhibit cited; no explicit analytical treatment described.
WP (C) No.8851/2009	8851/2009	Mentioned Only	Exhibit cited; no explicit analytical treatment described.
Decision reported in 1993 (2) KLT SN Page 27 Case No.28	1993 (2) KLT SN Page 27 Case No.28	Mentioned Only	Exhibit cited; no direct treatment elaborated in the judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **MONDAY, THE 27TH DAY OF JUNE 2016/6TH ASHADHA, 1938** ## **WP(C).No. 2437 of 2009 (M)** ## **---------------------------** ## **PETITIONER:** ## **-----------------** **C.P. MUHAMMED ABDL NAZEER AGED 30 YEARS, S/O.P.C.AYYAMED KUTTY, ARABIC TEACHER, AMLP SCHOOL, PALAKUTTI PO., KODUVALLI, KOZHIKODE-673572.** ## **BY ADV. SRI.V.A.MUHAMMED** ## **RESPONDENTS:** **-----------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRTARIAT, TRIVANDRUM.** **2. DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, TRIVANDRUM-14.** **3. DISTRICT EDUCATIONAL OFFICER, THAMARASSERY-673573, KOZHIKODE DISTRICT.** **4. ASSISTANT EDUCATIONAL OFFICER, THAMARASSERY-673573, KOZHIKODE DISTRICT.** **5. MANAGER, AMLP SCHOOL, PALAKUTTI, P.O.KODUVALLY, KOZHIKODE-673572.** - ***6. THE ASSISTANT EDUCATIONAL OFFICER, KODUVALLY, KOZHIKODE-673572.** **R1 TO 4 & 6 BY GOVERNMENT PLEADER SRI. K. K. RAJEEV R5 BY ADV. SRI.K.A.MANZOOR ALI** **[ADDL.6TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 10-022016 IN IA No.1760/2016** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-062016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AMG** W.P (C) No.2437/2009 ## **APPENDIX** ## **PETITIONER'S EXHIBITS** EXT- P1TRUE COPY OF THE ORDER No.C/4160/05/K.Dis OF THE AEO. EXT- P2TRUE COPY OF THE ORDER No.B2-950/06/K.Dis OF THE DEO. EXT- P3TRUE COPY OF THE ORDER No.G3/8245/2007/DPI/K.Dis OF THE DPI. EXT- P4TRUE COPY OF THE LETTER No.29593/S1/08/G/Edn OF THE GOVT. EXT- P5TRUE COPY OF THE G.O. (P) No.178/2002/G.Edn OF -DOEXT- P6TRUE COPY OF THE CIRCULAR No.74101/J2/2004/G.Edn OF -DOEXT- P7TRUE COPY OF THE G.O. (Rt.) No.3776/2006/G.Edn OF THE GOVT. EXT- P8TRUE COPY OF THE AGREEMENT OF THE PETITIONER EXT- P9TRUE COPY OF THE ORDER No.EM (6)/109313/04/DPI/K.Dis OF THE 2ND RESPONDENT. EXT- P10TRUE COPY OF THE ORDER No.EM6/109313/06/DPI/K.Dis OF THE 2ND RESPONDENT. EXT- P11TRUE COPY OF THE ORDER No.EM6/53315/07/DPI/K.Dis OF THE 2ND RESPONDENT. EXT- P12TRUE COPY OF THE ORDER No.EM6/109311/(8)/08/DPI/K.Dis OF THE 2ND RESPONDENT. - EXT- P13TRUE COPY OF THE ORDER No.EM(6)/13136/(8)/08/DPI/K.Dis OF THE 2ND RESPONDENT. EXT- P14TRUE COPY OF THE G.O.(Rt) No.3587/2008/G.Edn OF THE GOVT. EXT- P15TRUE COPY OF THE G.O.(Rt) No.3805/06/G.Edn OF THE GOVT. EXT- P16TRUE COPY OF THE G.O.(Rt) No.3155/07/G.Edn OF THE GOVT. EXT- P17TRUE COPY OF THE DECISION REPORTED IN 1993 (2) KLT SN PAGE 27 CASE No.28. . EXT- P18TRUE COPY OF THE ORDER OF APPOINTMENT OF SHAJHIR P. EXT- P19TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP (c) No.2563/2008. EXT- P20TRUE COPY OF THE LETTER OF THE PETITIONER DATED 11-04-2012. EXT- P21TRUE COPY OF THE LETTER No.C/1473/12/OF THE AEO DATED 03-05-2012. W.P (C) No.2437/2009 -2- EXT- P22TRUE COPY OF THE JUDGMENT IN OP No.7847/1983 DATED 07-11-1986. EXT- P23TRUE COPY OF THE JUDGMENT IN WA No.754/1987 DATED 24-10-1987. EXT- P24TRUE COPY OF THE REPORTED IN 2009 (3) KLT 863 DATED 29-06-2009 EXT- P25TRUE COPY OF THE JUDGMENT IN WA No.183/2010 DATED 21-07-2010. EXT- P26TRUE COPY OF THE ORDER IN SLP No.36558/2010 DATED 10-01-2011. EXT- P27TRUE COPY OF THE JUDGMENT IN WP (C) No.8851/2009 DATED 23-03-2011. EXT- P28TRUE COPY OF THE APPOINTMENT ORDER DATED 01-06-2005. ## RESPONDENTS' EXHIBITS NIL True copy ## P.A. To Judge AMG ## C.K.ABDUL REHIM, J. ----------------------------------------------WP(C) No. 2437 of 2009 ----------------------------------------------Dated this the 27th day of June, 2016 ## JUDGMENT The petitioner's appointment as Arabic Teacher in 5[th] respondent's school with effect from 1.6.2005 was rejected without approval by the 1[st] respondent, through Ext.P1 proceedings, stating the reason that as per GO(P) 178/2000 dt. 28.6.2002, the school being a newly started one, has an obligation to appoint teachers from the list of protected teachers. Appeal filed against Ext.P1 was rejected by the 3[rd] respondent through Ext.P2 order, stating the very same reason. The Director of Public Instruction had also rejected the further appeal through Ext.P3 proceedings relying on GO(P) 46/2006 G.Edn dt. 1.2.2006, observing that the Manager is obliged to appoint atleast one protected teacher, which was not done. Eventhough the petitioner had approached the Government challenging Exts. P1 to P3, through Ext.P4 cryptic order issued, the representation was rejected relying on GO(P)No.317/2005 G.Edn. dt. 17.8.2005, WP(C).2437/2009 2 observing that the management is at an obligation to appoint a protected teacher since the originally appointed teacher was returned to the parents school. It is aggrieved by Exts.P1 to P4, the above writ petition is filed. 2. The petitioner had produced Exts.P20 and P21, request submitted to the 4[th] respondent under the Right to Information Act and the reply obtained. To a specific query made by the petitioner as to whether there was any list of protected teachers maintained under the 4[th] respondent as on 1.6.2005, it was answered that there was no list of Arabic teachers available as on 1.6.2005. To a further question as to whether any list of Arabic teachers was forwarded to the 5[th] respondent Manager in compliance with circular No.74101/1352/2004 G.Edn. dt. 24.1.2005, the answer is 'not applicable'. 3. Learned counsel for the petitioner had relied on the decision of this court in **Moosakutty vs. DEO, Wandoor (2009(3) KLT 863.** Referring to Rule 6 (viii) of Chapter V and Rule 9 of Chapter III and also to the relevant Government Orders it is observed that executive orders cannot go against or override the expressed statutory prescriptions and if there is no protected WP(C).2437/2009 3 teacher available in the particular Sub District, the Manager cannot be faulted for not appointing a protected teacher in the vacancy to which a regular appointment is effected. It is further held that, even if a protected teacher is available in any other revenue District, the same cannot be forced against the Manager. In view of the dictum held as above, it is contended that the appointment of the petitioner ought to have been approved. It is submitted that the appointment of the petitioner is approved subsequently with effect from 1.6.2011. Therefore the question remaining is only with respect to approval of the appointment of the petitioner as Arabic Teacher for the period from 1.6.2005 till 1.6.2011. In view of the position remaining settled as per the decision cited above, this court is of the opinion that the matter requires reconsideration at the hands of the Government. 4. Under the above mentioned circumstances the above writ petition is hereby disposed of by quashing Ext.P4 order passed by the Government. The 1[st] respondent is directed to reconsider the matter and to take a fresh decision on the question of approval of the appointment of the petitioner, in view of the dictum contained in the decision of this court in WP(C).2437/2009 4 **Moosakutty vs. DEO, Wandoor (2009(3) KLT 863.** A fresh decision in this regard shall be taken after affording opportunity of personal hearing to the petitioner, the 5[th] respondent and the educational authority concerned. 5. A decision in this regard shall be taken at the earliest, at any rate within 3 months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE Pmn/ WP(C).2437/2009 5