Reena Susan Mathew v. State of Kerala and others (W.P.(C) Nos. 3567/2011 (U) & 4067/2011), Kerala High Court

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **FRIDAY, THE 24TH DAY OF FEBRUARY 2012/5TH PHALGUNA 1933** ## **WP(C).No. 3567 of 2011 (U) --------------------------** **PETITIONER(S): -------------** **REENA SUSAN MATHEW, W/O.SABU KURUVILA, PAZHAVARICKAL HOUSE, KANAM P.O., PULICKAVALA, KOTTAYAM (HIGH SCHOOL ASSISTANT (NS), CMS HIGH, SCHOOL, MUNDIYAPPALLY)** **BY ADVS.SRI.S.SUBHASH CHAND SRI.T.NIKLAVU** **RESPONDENT(S): --------------** **1. THE STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION(A), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001. 3. THE DEPUTY DIRECTOR OF EDUCATION, O/O.THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA AT THIRUVALLA-689 101. 4. THE DISTRICT EDUCATIONAL OFFICER, O/O.THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA-689 101. 5. THE CORPORATE MANAGER, C.M.S SCHOOLS, DIOCESAN OFFICE,BISHOP GILL MEMORIAL BUILDING, CATHEDRAL ROAD, KOTTAYAM-686 001.** **R1 TO R4 BY ADV.SRI.JAMES MATHEW KADAVAN, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-02-2012, ALONG WITH WPC. 4067/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** **WP(C).No. 3567 of 2011 (U)** **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXT.P1:**|**COPY OF THE APPOINTMENT ORDER DATED 03.11.2003 ISSUED**| |---|---| ||**BY RESPONDENT NO.5.**| |**EXT.P2:**|**COPY OF THE APPOINTMENT ORDER DATED 05.06.2006 ISSUED**| ||**BY RESPONDENT NO.5.**| |**EXT.P3:**|**COPY OF THE ORDER DATED 30.11.2009 PASSED BY**| ||**RESPONDENT NO.5 EVIDENCING.**| |**EXT.P4:**|**COPY OF THE ORDER DATED 03.12.2009 PASSED BY**| ||**RESPONDENT NO.4.**| |**EXT.P5:**|**COPY OF THE ORDER 15.02.2010 PASSED BY RESPONDENT**| ||**NO.3.**| |**EXT.P6:**|**COPY OF THE ORDER DATED 30.03.2010 PASSED BY**| ||**RESPONDENT NO.3.**| |**EXT.P7:**|**COPY OF THE REVISION PETITION DATED 11.06.2010**| ||**SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.**| |**EXT.P8:**|**COPY OF THE JUDGMENT DATED 28.06.2010 PASSED BY**| ||**RESPONDENT NO.1.**| |**EXT.P9:**|**COPY OF THE ORDER DATED 12.10.2010 PASSED BY**| ||**RESPONDENT NO.1.**| |**EXT.P10:**|**COPY OF THE GO(MS) NO.20/82/G.EDN DATED 15.02.1982.**| |**EXT.P11:**|**COPY OF THE GO(MS) NO.215/89/G.EDN. DATED 16.11.1989.**| |**EXT.P12:**|**COPY OF THE GO(MS) NO.98/90/G.EDN DATED 25.05.1990.**| |**EXT.P13:**|**COPY OF THE GO(MS) NO.208/90/G.EDN DATED 24.09.1990.**| |**EXT.P14:**|**COPY OF THE CIRCULAR NO.53503/J2/90/G.EDN DATED**| ||**12.11.1990.**| |**EXT.P15:**|**COPY OF THE GO(MS) NO.123/91/G.EDN. DATED 05/081991.**| |**EXT.P16:**|**COPY OF THE GOVERNMENT ORDER BEARING GO(P)**| ||**NO.178/2002/G.EDN DATED 28.06.02.**| |**EXT.P17:**|**COPY OF THE GO(P) NO.46/2006/G.EDN DATED 01.02.2006.**| |**EXT.P18:**|**COPY OF THE CIRCULAR DATED 04.12.2009.**| |**EXT.P18:**|**COPY OF THE CIRCULAR DATED 19.01.2010.**| ||**(REPLACED VIDE ORDER DATED 16.02.11 IN I.A**| ||**NO.2376/2011 DATED 07.02.2011.)**| |**EXT.P19:**|**COPY OF THE GOVERNMENT CIRCULAR DATED 06.11.1989.**| |**EXT.P20:**|**COPY OF THE INTERIM ORDER DATED 08.02.2011 PASSED BY**| ||**THIS HON'BLE COURT IN WPC NO.4067/2011(G)**| **RESPONDENT'S EXHIBITS - NIL** **//TRUE COPY//** **P.A TO JUDGE** **DG** **T.R.RAMACHANDRAN NAIR, J. -------------------------------------------------W.P.(C)Nos.3567 & 4067 of 2011 -------------------------------------------------DATED THIS THE 22[nd ] DAY OF FEBRUARY, 2012** ## **JUDGMENT** Both these Writ Petitions concern an identical issue as to whether the right of the petitioners who are claimants under Rule 43 of Chapter XIV-A KER for approval can be objected on the plea that the Manager has not appointed a protected hand in the school. The view taken is that executive orders issued from time to time creates an obligation on the part of the Manager. 2. In W.P.(C)No.3567/2011, Exhibits P1 and P2 will show that the petitioner's appointment as UPSA during different spells have been approved and thus she became a claimant under Rule 43 of Chapter XIV-A. While the petitioner was working as UPSA as per Exhibit P2 appointment order, she was appointed as High School Assistant(SS) in a long leave vacancy. By Exhibit P4, the District Educational Officer took the view that the school comes under the newly upgraded category and therefore a protected teacher will have to be appointed. In Exhibit P5 also the same view has been taken. The appeal and revision petition having W.P.(C)Nos.3567 & 4067 of 2011 been failed, this Writ Petition has been filed. -2- 3. In W.P.(C)No.4067/11, the initial appointment of the petitioner is as UPSA. Exhibit P1 is the first appointment order dated 16.6.2004, which was approved. While the petitioner was working as UPSA in the CMS High School, Kattanam in a long leave vacancy, a regular vacancy of LPSA arose in the Mullackal CMS L.P.School, Alappuzha and the petitioner was appointed there with effect from 11.8.2004. The said appointment has been approved also. 4. Exhibit P3 is the order by which the petitioner was promoted as High School Assistant in the vacancy from 1.6.2010. Therein the final order passed by the Government is Exhibit P4. 5. The stand, identically taken by the Government, in both the cases in the respective orders is that the Management ought to have appointed protected hands and Rule 43 claimants cannot be exempted. 6. The learned counsel for the petitioners relied on a decision of this Court in **P.K.High School v. State of Kerala (2011(4) KLT 365)** wherein the very same question was addressed by this Court. This Court held therein that the right of W.P.(C)Nos.3567 & 4067 of 2011 -3- promotees under Rule 43 will get precedence over the protected teachers from schools under other educational agencies. It was held thus: “ In fact, Note 1A is very clear on this aspect. It provides for reappointment to protected teachers “available under the Educational Agency.” The meaning of the words “protected teacher” is given in the Explanation. When the general scope and purport of R.51A is to confer preference for appointment in future vacancies in respect of teachers who have been relieved under different circumstances, under the same Educational Agency, it cannot be envisaged that the proviso as noted above, will apply to protected teachers of schools under other Educational Agencies, especially in the light of Note 1A. In the case of such protected teachers, the obligation of the Manager arises under R.6(viii) of Chapter V and various Government Orders have been issued further in that regard. The protected teachers under the very same Educational Agency will have preference by virtue of the second proviso. In that view of the matter, there cannot be any difficulty to recognise the rights of promotees under R.43 which is only subject to R.51A as far as the present context is concerned. No protected teachers under the very same Educational Agency were available for absorption. Therefore, the right of promotees under W.P.(C)Nos.3567 & 4067 of 2011 -4- R.43 will get precedence over the protected teachers from schools under other Educational Agencies who get a right under various executive orders alone. Evidently, the provisions of statutory rules will override the various clauses of the executive orders, in case of any conflict. Evidently, the words “any general order that may be issued by the Government” can only relate to such orders which may apply in the field of promotion alone and not in respect of other general orders like the orders granting protection. While amending R.51A by including the second proviso, preference is conferred only on the protected teachers of the very same Educational Agency. If the argument of the learned Govt. Pleader that the words “general order” in R.43 will cover other protection orders applicable under different circumstances, is accepted, then the second proviso to R.51A also may come in conflict with such general orders, as various claimants who are eligible for protection as per those orders, can claim such vacancies. Such was not the intention of the second proviso to R.51A. This also gives a clue for interpreting R.43, especially the words “any general order that may be issued by the Government”, that they can only apply to general orders concerning promotion.” Therefore, the legal position as above will show that unless there W.P.(C)Nos.3567 & 4067 of 2011 -5- are protected hands available under the very same Management, the second proviso to Rule 51A will not apply here. If that be so, executive instructions providing for absorption of protected teachers from other educational agencies cannot be a ground to object the approval of appointment of the petitioners, who are claimants under Rule 43 of Chapter XIV-A KER. The right conferred under the statutory rules cannot be whittled down by executive orders and in case of conflict between the statutory rules and the executive orders, the statutory rules will have overriding effect. In the counter affidavit also there is no plea that there is a protected hand eligible for deployment under the very same educational agency. In the light of the above, the Writ Petitions are allowed. The impugned orders, namely Exhibits P4, P5, P6 and P9 produced in W.P.(C)No. 3567/11 and Exhibit P4 produced in W.P. (C)No.4067/11 are quashed. There will be a direction to the 4[th] respondent-District Educational Officer to approve the appointments of the petitioners in the respective vacancies and pass appropriate orders in terms of the appointment orders issued by the Manager within a period of two months from the W.P.(C)Nos.3567 & 4067 of 2011 -6- date of receipt of a copy of this judgment. The petitioners will be entitled for consequential monetary benefits also. Since it is pointed out that the petitioners were being disbursed salary in the lower posts in terms of the interim orders passed by this Court, they will be entitled for the difference in pay and other allowances. No costs. ## Sd/-( **T.R.RAMACHANDRAN NAIR** , **JUDGE)** dsn