High Court of KeralaSingle Judge2017-10-10Dismissed

MANAGER, SCHOOL FOR DEAF, PARAPPANANGADI v. GOVERNMENT OF KERALA

Case / Petition Number:WP(C).No. 10488 of 2011 (I)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.MUHAMED MUSTAQUE
Judgment Date: 2017-10-10
Court Decision / Holding: Writ petition dismissed. The Court directs the Government to take steps to incorporate statutory provisions governing Special Schools under the Kerala Education Rules (KER).
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Manager, School for Deaf, Parappanangadi

Respondents

Government of Kerala represented by Secretary, Department of General Education, Secretariat, Thiruvananthapuram
Director of Public Instruction, Thiruvananthapuram
Sabeer Ahammed P., S/o Ahammed Koya P, Calicut
Kunju Ahammed Kutty, Peon, School for Deaf Parappanangadi

Legal Representation & Advocates

Counsels for Petitioners

• SRI.P.RAVINDRAN (SR.)
• SMT.APARNA RAJAN

Counsels for Respondents

• GOVERNMENT PLEADER SMT RAHMA.N.S.
• SRI.BIJU ABRAHAM
• SRI.B.G.BHASKAR

Case Synopsis & Summary

This writ petition challenges the appointment of staff in a Special School for the Deaf at Parappanangadi, Malappuram, in the absence of a fully developed statutory framework for Special Schools under the Kerala Education Rules (KER). The petitioner, as manager, contends that since no statutory rules exist to govern appointments in Special Schools, he cannot be bound by KER procedures and may fill sanctioned vacancies de hors the statutory scheme. He relies on Varghese v Deputy Director of Education (2000(2) KLT 109), a Full Bench decision, to argue that in the absence of statutory provisions or executive orders, managerial prerogative should prevail. Ext.P14 (GO dated 3.11.1969) and Ext.P16 (GO sanctioning posts) are cited to show that the Government recognized the need to staff Special Schools, though the KER provisions had not yet been extended explicitly to them. Opposing this, the respondents argue that the relevant Government Orders apply to both teaching and non-teaching staff (Clause 7) and that the Government, as paymaster, must approve appointments and ensure consistency with the established rules. The court ultimately notes the Government’s intention to incorporate statutory provisions into the KER for Special Schools and directs that steps be taken to codify these provisions, while dismissing the petition.

Provisions of Law Cited

Chapter XIVA of the Kerala Education Rules (KER)Rule 43, Chapter XIVA, KER

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that in the absence of statutory provisions governing Special Schools under the Kerala Education Rules (KER), the manager is not bound by KER and may appoint to sanctioned vacancies. He relies on the Full Bench decision Varghese v Deputy Director of Education (2000(2) KLT 109) to claim managerial prerogative. Ext.P14 (GO 1969) and Ext.P16 (GO sanctioning posts) show government acknowledgment of staffing needs, suggesting that KER provisions should not bar appointments until statutory rules are enacted. The government’s plan to codify statutory provisions is acknowledged, but the petitioner argues it should not affect existing appointments.

Contentions of Respondents

The respondents contend that GO Ext.P14, including Clause 7, applies to both teaching and non-teaching staff in aided Special Schools and requires government approval since the Government is the paymaster. They argue that even in the absence of a separate statutory framework, the existing orders and the overarching aim of regulating aided institutions mandate adherence to procedures under the KER as and when statutory provisions are enacted. They assert that the Government’s intention to incorporate KER into Special Schools is correct, but until statutory provisions are enacted, appointments must follow established rules, and managerial appointments that bypass such procedures cannot be countenanced.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Varghese v Deputy Director of Education	2000(2) KLT 109	Distinguished	The court expressly declines to apply the Varghese Full Bench decision as controlling in the present context, noting that executive/government orders are being used to bring Special Schools under KER provisions, thereby distinguishing Varghese from the current circumstances.

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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 A.MUHAMED MUSTAQUE** **TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939** **WP(C).No. 10488 of 2011 (I)** **----------------------------** **PETITIONER:** ## **----------** **MANAGER,SCHOOL FOR DEAF,PARAPPANANGADI, KODAKKAD P.O., CHETTIPPADI VIA., MALAPPURAM DISTRICT, PIN-676319.** **BY ADVS.SRI.P.RAVINDRAN (SR.) SMT.APARNA RAJAN** **RESPONDENT(S):** - **--------------** **1. GOVERNMENT OF KERALA,REPRESENTED BY SECRETARY DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695001.** **3. SABEER AHAMMED P., S/O.AHAMMAD KOYA P, 18/1057, 'AMAAN' JAIL ROAD,, P.O.PUTHIYARA, CALICUT-4.** **4. KUNJU AHAMMED KUTTY, PEON, SCHOOL FOR DEAF PARAPPANANGADI, KODAKKAD P.O., CHETTIPPADI VIA., MALAPPURAM DISTRICT-676319.** **R1, R2 BY GOVERNMENT PLEADER SMT RAHMA.N.S. R4 BY ADVS. SRI.BIJU ABRAHAM** **SRI.B.G.BHASKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 10488 of 2011 (I)** ## **----------------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** ## **---------------------** - **P1; TRUE COPY OF THE ORDER DATED 18.5.1996.** - **P2; TRUE COPY OF THE GOVERNMENT ORDER DATED 7.11.2000.** - **P3; TRUE COPY OF THE GOVERNMENT ORDER DATED 26.7.1999.** - **P4: TRUE COPY OF THE APPOINTMENT ORDER DATED 3.7.02.** - **P5; TRUE COPY OF THE REQUEST DATED 17.3.2006.** - **P6; TRUE COPY OF THE GOVT ORDER DATED 23.6.07.** - **P7: TRUE COPY OF THE APPOINTMENT ORDER DATED 23.6.07.** - **P8: TRUE COPY OF THE COMMUNICATION DATED 30.5.08.** - **P9: TRUE COPY OF THE GOVT ORDER DATED 25.6.08.** - **P10 TRUE COPY OF THE COMMUNICATION DATED 25.7.08.** - **P11 TRUE COPY OF THE REPLY DATED 16.8.08.** - **P12 TRUE COPY OF THE ORDER DATED 10.11.08.** - **P13: TRUE COPY OF THE REVISION DATED 25.11.08.** - **P14 TRUE COPY OF THE GOVT ORDER DATED 3.11.69.** - **P15: TRUE COPY OF THE ORDER DATED 17.1.1970.** - **P16; TRUE COPY OF THE GOVT.ORDER DATED 5.6.87.** - **P17; TRUE COPY OF THE GOVT ORDER DATED 11.11.10.** - **P18; TRUE COPY OF THE ORDER DATED 22.2.2011.** - **P19: TRUE COPY OF THE MEMO DATED 11.3.2011.** ## **RESPONDENTS EXHIBITS: ---------------------** **R1(A) TRUE COPY OF THE GO (P) NO 121/87/G.EDN DATED 5.6.1987. R1(B) TRUE COPY OF THE G.O.(MS)NO 122/07/G.EDN DATED 23.6.2007.** - **R1(C) TRUE COPY OF THE G.O (P) NO 412/69/G.EDN DATED 3,11,1969 R1(C) TRUE COPY OF THE G.O (MS) NO 338/05/G.EDN DATED 27.8.2005.** **K.V. P.S.TO JUUDGE** ## **A.MUHAMED MUSTAQUE, J.** _**********************************************************************_ W.P.(C) No.10488 of 2011 _**********************************************************************_ Dated this the 10[th] day of October, 2017 ## JUDGMENT The petitioner is the manager of a Special School. As of now, there are no rules governing the Special School in the State. As seen from Ext.P16 Government Order dated 5.6.1987, the Government was proposing to incorporate a separate chapter in the Kerala Education Rules(KER) to bring the Special School under the purview of the statutory rules. As per the above Government Order, the Government, in fact, sanctioned additional posts in the Special Schools. 2. The issue in this writ petition have arisen in the context of the absence of any Statutory Rules governing the matter. The petitioner/manager would submit that in the absence of statutory provision, he is not bound by the KER and therefore, he is entitled to make appointment into any vacancies that have arisen in the sanctioned posts. Accordingly, he appointed the third respondent in the post of L.D. Clerk. This has been rejected by all authorities including the Government holding that the fourth respondent is the rightful claimant by virtue of the statutory claim in terms of Rule 43 W.P.(C) No.10488 of 2011 2 of Chapter XIVA of the KER. Therefore, the only question survives whether the manager is entitled to make appointments _de hors_ the statutory provisions under the KER. 3. The learned counsel for the petitioner relying upon the Full Bench decision of this Court in **Varghese v Deputy Director of Education [2000(2) KLT 109]** vehemently argued that in the absence of statutory provisions and executive orders governing the field, the manager is entitled to make appointments. The learned counsel for the petitioner particularly referred to Ext.P14 Government Order governing the Special School. This Government Order was issued as early as on 3.11.1969. According to the learned counsel, this order only referred to teaching staff and not to non-teaching staff. He also referred to Ext.P16 Government Order sanctioning the post and would submit that the Government was aware while sanctioning the additional post, there were no statutory provisions governing the matter in the KER. 4. Per contra, the learned counsel for the fourth respondent would submit that the Government Order produced as W.P.(C) No.10488 of 2011 3 Ext.P14 dated 3.11.1969 equally would apply to the non-teaching staff. The learned counsel relied upon Clause 7 of the Government Order. 5. The dispute could not have arisen but for the fact that the appointment requires approval from the Government, as the Government being the pay master for appointees in aided schools. The relationship between the Manager and the Government has to be governed by certain principles and rules. The Government extends aid on certain conditions. The Government being the repository of the public interest cannot extend aid to the managers without there being the procedure governing such aid. No doubt, if the manager wants to make payment from his own resources, there cannot be quarrel in this case. However, if the manager wants to have aid from the Government, certainly, it can be only based on the rules and regulations governing the matter. Therefore, question is what is the rule governing the appointment. There remains the fact that the Government is proposing to incorporate the statutory provisions in the KER for the purpose of making the appointment W.P.(C) No.10488 of 2011 4 of teaching and non-teaching staffs in the aided Special Schools. The first of the Government Order was issued on 3.11.1969. As rightly pointed out by the learned counsel for the fourth respondent that Clause-7 of the above Government Order refers to the procedure of appointment. This appointment would equally apply teaching and non-teaching staffs in the Special Schools. The intention of the Government is very clear that the Manager has to follow the procedure for appointment following the procedure prescribed for the aided school in the KER. Therefore, the provision of the KER has been incorporated by an executive order for the purpose of approval of the appointment. That be so, all the procedures governing the appointment in the KER would equally apply to the Special Schools. In that context, this Court finds no relevance to the Full Bench judgment of this Court in **Varghese** 's case ( _supra_ ) relied upon by the learned counsel for the petitioner. However, the concern of this court is that despite of the fact that the executive order was issued as early as on 1969, the Government had not taken any steps to incorporate separate statutory provisions in the KER. It is necessary to W.P.(C) No.10488 of 2011 5 streamline the appointments in the Special Schools. The Government cannot shirk its responsibility from bringing the statutory provisions. The statutory provisions would bring more clarity to the rules governing the appointment. Thus, while dismissing the writ petition, this Court is of the view that the Government shall take every steps to incorporate the statutory provisions governing the Special Schools. With the above observations, this writ petition is dismissed. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln