LINSY AUGUSTINE vs State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 WP(C).No. 29659 of 2009(B) -------------------------------- PETITIONER: - -------------- SR.LINSY AUGUSTINE, UPSA,(ASST.TEACHER) ST.SEBASTIAN'S UPS KAPPAD, PO,KOLAKKADU 670673, KANNUR DIST. BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM RESPONDENTS: ----------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM – 14. 3. DISTRICT EDUCATIONAL OFFICER, KANNUR. 4. ASSISTANT EDUCATIONAL OFFICER, THALIPARAMBA NORTH. 5. THE CORPORATE MANAGER, THE CORPORATE EDUCATIONAL AGENCY, ARCH DIOCESE OF THALASSERY 1,, SANDESHA BHAVAN, THALASSERY - 1, BY ADV. SRI.M.A.FIROZ SMT. NISHA BOSE, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.29659/2009 A P P E N D I X ## PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER No.C/503/02/K.DIS DTD. 3.2.03. EXT. P2 : COPY OF APPOINTMENT ORDER IN FORM 27 TO ROSAKUTTY P.J. EXT. P3 : COPY OF APPOINTMENT ORDER IN FORM 27 TO MARYKUTTY THOMAS. EXT. P4 : COPY OF APPOINTMENT ORDER IN FORM 27 TO PETITIONER. EXT. P5 : COPY OF ORDER No.C/2752/04 DTD. 29.10.04. EXT. P6 : COPY OF ORDER OF R3. EXT. P7 : COPY OF ORDER No.K.DIS/66220/06/G DTD. 20.12.06. EXT. P8 : COPY OF G.O.(Rt) No.603/2009/G.EDN DTD. 6.2.09. EXT. P9 : COPY OF G.O.(P) 178/07/G.EDN DTD. 28.6.02. EXT. P10 : COPY OF G.O.(P) 46/2006/G.EDN DTD. 1.2.06. EXT. P11 : COPY OF G.O.(MS) 21/82/G.EDN DTD. 15.2.82. EXT. P12 : COPY OF G.O.(MS) 209/92/G.EDN DTD. 15.2.82. EXT. P13 : COPY OF ORDER No.B/5083/08 DTD. 10.12.08. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp ## **T.R. RAMACHANDRAN NAIR, J.** **---------------------------------------** **W.P.(C) No.29659 OF 2009 --------------------------------------Dated this the 28[th] day of October, 2011.** ## **J U D G M E N T** The orders passed by the statutory authorities as per Exts.P5 and P6 which have been upheld by the Government by Ext.P8 in a revision petition are under challenge herein. It is a case where the approval of appointment of the petitioner was rejected for the reason that in the light of G.O.(P) No.178/2002/ G.Edn dated 28.06.2002 and the subsequent Government Order namely, G.O.(P) No.46/2006/G.Edn dated 01.02.2006, the Manager had to appoint a protected teacher. 2. The petitioner's appointment was initially from 24.01.2002 to 26.03.2002 in a leave vacancy which was approved as evident from Ext.P1. During the academic year 2004-2005, three vacancies of U.P.S.A arose in the Prathyasa U.P.School, Udayagiri. The petitioner was appointed in the **W.P.(C) No.29659/2009** **2** promotion vacancy. The two other teachers appointed were, one in a retirement vacancy and another in a promotion vacancy. Exts.P2 to P4 are the appointment orders and the petitioner is Sl.No.3 therein. But the approval of appointment of the petitioner was rejected even though the appointments of the other two teachers were approved. 3. Initially, the approval of appointment of the petitioner was declined by Ext.P5 order stating that the petitioner is a B.Ed Degree holder and the appeal filed against it was rejected for the reason that it is time barred, as per Ext.P6. The Additional Director of Public Instruction in Ext.P7 took the view that the school in which the petitioner was appointed is a newly upgraded one and therefore the stipulation imposed by the Government in G.O.(P) No.178/2002/ G.Edn dated 28.06.2002 in filling up of vacancies is still in force whereby a protected teacher has to be appointed. His claim under Rule 51A of Chapter XIV-A of Kerala Education Rules was also not recognised. 4. Learned counsel for the petitioner submitted that G.O.(P)No.178/2002/G.Edn dated 28.06.2002 and G.O.(P) **W.P.(C) No.29659/2009** **3** No.46/2006/G.Edn dated 01.02.2006 cannot nullify the appointment of the petitioner as the petitioner is a Rule 51A claimant. It is also pointed out that the appointments made by the 5[th] respondent in the school between 1982-2004 have been approved without insisting for appointment of protected teachers. 5. Learned Government Pleader by relying upon the averments in the counter affidavit submitted that as per the existing orders, at least one protected teacher should have been appointed. The same is not satisfied in the school. Finally, in paragraph 8 of the counter affidavit, it is pointed out that one protected teacher Smt.Sherly P. joined duty in the school on 26.11.2006. Therefore, the conditions stipulated in G.O.(P) No.46/2006/G.Edn dated 01.02.2006 are satisfied with effect from 26.11.2006. 6. Evidently, the petitioner is a Rule 51A claimant. The said claim being statutory, the question is whether executive orders could be enforced against the claimant under Rule 51A of Chapter XIV-A of Kerala Education Rules. In this context, learned counsel for the petitioner relied upon the decision of a Division **W.P.(C) No.29659/2009** **4** Bench of this Court in _**Rev. Kuriakose** vs._ _**State of Kerala**_ (1981 KLT SN 103) wherein while considering the relevant rules under Chapter V Rule 6 and the agreement executed by the Manager, it was held as follows: “The teachers who are entitled to the benefit of R.51A would be entitled to be absorbed in the vacancies in preference to the teachers contemplated by the agreements and that notwithstanding the agreements executed”. 7. Therefore, protected teachers from other schools cannot have a preference over the claimants under Rule 51A of Chapter XIV-A of Kerala Education Rules. Evidently, there is no protected teacher available under the Corporate Management for absorption. Therefore, the amendment of Rule 51A introducing the 2[nd] proviso giving first preference to a protected teacher cannot also go against the claim of the petitioner. 8. What is relevant herein is to consider the question whether two Government Orders namely, G.O.(P) No.178/2002/G.Edn dated 28.06.2002 as well as G.O.(P) No.46/2006/G.Edn dated 01.02.2006 which have been produced as Exts.P9 and P10 can prevail upon the provisions of Rule 51A of **W.P.(C) No.29659/2009** **5** Chapter XIV-A K.E.R. Obviously, executive orders cannot override the provisions of a statutory rule as the statutory rule alone will prevail in case of conflict. In that view of the matter, the objection with regard to the approval of appointment of the petitioner that a protected teacher had to be appointed cannot be sustained. Apart from that, the appointment of two teachers, who were appointed along with the petitioner, have been approved and in their case, no objection has been raised with regard to the non appointment of a protected teacher. 9. In that view of the matter, the petitioner is entitled to succeed in the writ petition. Learned counsel for the petitioner further relied upon a decision of this Court in _**Nadeera** vs._ _**State of Kerala**_ (2011 (3) KLT 790) wherein this Court took the view that the non availability of protected teacher cannot result in postponement of approval of any qualified hand when the staff fixation order really sanctioned the post for filling up of vacancy in the school. The said legal position also supports the case of the petitioner. For all these reasons, this writ petition is allowed. The **W.P.(C) No.29659/2009** **6** impugned orders Exts.P5, P6 as well as Exts.P7 and P8 as against the petitioner are quashed. There will be a direction to approve the appointment of the petitioner with effect from 15.06.2004 to 15.06.2008 and appropriate orders will be passed by the District Educational Officer within a period of six weeks from the date of receipt of a copy of this judgment. The petitioner will also be sanctioned consequential monetary benefits. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp