R.S. Geena v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 1938** **WP(C).No. 36764 of 2010 (U)** **----------------------------** ## **PETITIONER:** **-----------** **R.S. GEENA, HIGH SCHOOL ASSISTANT (HINDI), K.P.M.HIGH SCHOOL, KRISHNAPURAM, VALIYARATHALA, OORUTTAMBALAM P.O., THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.PIRAPPANCODE V.S.SUDHIR** **SRI.SAJU JOHN** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA REPRESENTED BY ITS** - **SECRETARY, GENERAL EDUCTION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM -1.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, KERALA, THIRUVANANTHAPURAM 695032.** **3. DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA 695632.** **4. THE MANAGER, K.P.M.HIGH SCHOOL, KRISHNAPURAM, VALIYARATHALA, OORUTTAMBALAM P.O., THIRUVANANTHAPURAM DISTRICT 695 542.** **5. R.P.REENA, UPPER PRIMARY SCHOOL ASSISTANT K.P.M.HIGH SCHOOL, KRISHNAPURAM, VALIYARATHALA, OORUTTAMBALAM P.O., THIRUVANANTHAPURAM 695542.** - **R1 TO R3 BY GOVERNMENT PLEADER SMT RAJI T BHASKER R4 BY ADV. SRI.D.KISHORE R5 BY ADV. SRI.MILLU DANDAPANI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-11-2016,ALONG WITH WPC 37091/2010 THE COURT ON 11-01-2017 DELIVERED THE FOLLOWING:** **K.V.** **WPC 36764 OF 2010:** ## **-----------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **-------------------** - **P1: COPY OF THE APPOINTMENT ORDER DATED 14.7.2000 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **P2: COPY OF THE APPOINTMENT ORDER DATED 5/6/2002 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **P3: COPY OF THE REVISION PETITION FILED BY THE 5TH RESPONDENT DATED 4/8/2003 BEFORE THE 23ND RESPONDENT.** - **P4: COPY OF THE ORDER NO.ET 5/62696/2003/DPI/D.DIS DATED 10/2/2004 OF THE 2ND RESPONDENT.** - **P5: COPY OF THE G.O (MS) NO150/88 G.EDN DATED 3.10.1988.** - **P6: COPY OF THE REVISION PETITION DATED 21.2.2004 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **P7: COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 27.7.2007 IN WPC NO 9747/2004.** - **P8: COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 4/3/2010 IN WA. NO 2248/2007** - **P9: COPY OF THE PETITION DATED 22/3/2010 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **P10: COPY OF THE G.O.(RT) NO 5356/2010/G.EDN DATED 29/11/2010.** - **P11: COPY OF THE G.O (MS) NO 164/98/G.EDN DATED 14/5/1998.** - **P12: COPY OF THE G.O (MS) NO 459/98/G.EDN DATED 21.11.1998.** ## **RESPONDENTS EXHIBITS: NIL** **---------------------** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **K.V.** ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).Nos.36764 & 37091 of 2010** **= = = = = = = = = = = = = = = Dated this the 11[th] day of January, 2017** ## **JUDGMENT** - 1.W.P(C).No. 37091 of 2010 is filed by the Manager of an aided school challenging Exhibits P3 and P8 orders. W.P(C). No.36764 of 2010 is filed by the affected teacher. Since W.P. (C).No.36764 of 2010 contains more substantive pleadings, the documents and parties are being referred to as arrayed in the said writ petition. - 2.The question which arises for consideration in these writ petitions is as to the qualification required for appointment to the post of HSA (Hindi). The petitioner in W.P.(C).No.36764 of 2010 was initially appointed as HSA (Hindi) in the 4[th] respondent school from 14.07.2000 to 29.09.2000. The appointment was duly approved. In a retirement vacancy which arose on 01.04.2002, the petitioner was appointed by Exhibit P2 order by the 4[th] respondent w.e.f. 05.06.2002. The said appointment was approved by the DEO on 11.03.2003. The 5[th] respondent, who was a UPSA working in the 4[th] W.P(C) 36764 & 37091/10 2 respondent school, preferred a revision before the DPI. She stated that she had been appointed as UPSA w.e.f. 01.08.2000 and she claimed to be qualified for appointment as HSA (Hindi) in the vacancy which arose on 01.04.2002. By Exhibit P4 order dated 10.02.2004, the DPI allowed the revision preferred by the 5[th] respondent and cancelled the approval granted to the appointment of the petitioner. The DPI had relied on GO(MS) No.150/88.G.Edn. dated 03.10.1988 to hold that the 5[th] respondent was qualified to hold the post of HSA (Hindi). Exhibit P4 order was challenged in revision before the Government. A writ petition was also filed challenging the same. By Exhibit P7 judgment dated 27.07.2007, this Court held that the qualification prescribed under Rule 2(2)(iv) of Chapter XXXI KER does not contain the qualification of Sahithyacharya and Acharya examinations conducted by the Kerala Hindi Prachar Sabha after 1969-70 and that persons with those certificates are not qualified in view of the rules. Exhibit P4 order was therefore quashed. The order of approval of the petitioner's appointment was restored. W.P(C) 36764 & 37091/10 3 3.The 5[th] respondent took up the matter in appeal by filing W.A.No.2248 of 2007 which was referred to a Full Bench. The question as to the sufficiency of the 5[th] respondent's qualifications in view of Exhibit P5 order dated 03.10.1988 was not answered by the Full Bench, since a statutory revision was pending before the Government. The writ petition was held to be not maintainable and the Government was directed to consider the statutory revision pending before it. Thereafter considering the revision and the additional pleadings Exhibit P10 order dated 29.11.2010 was passed by the Government holding that in view of Exhibit P5 Government Order the 5[th] respondent is liable to be treated as having the prescribed qualification for promotion to the post of HSA (Hindi) which arose on 01.04.2002. Exhibit P4 order of the DPI was therefore upheld. 4.Heard the learned counsel for the petitioners and the learned Government Pleader for respondents 1 to 3 and the W.P(C) 36764 & 37091/10 4 learned counsel for the Manager and the learned counsel appearing for the party respondents. 5.It is submitted by the learned counsel for the petitioner that though Exhibit P5 Government Order provided for the recommendation of 'Acharya Course' of Kerala Hindi Prachar Sabha and an alternate training qualification for appointment as Hindi teachers in aided Upper Primary Schools and aided High Schools, no corresponding amendment had been carried out in the relevant rule in Chapter XXXI of the KER. It is contended that since Rule 2 (2)(iv) of Chapter XXXI KER prescribes the qualification for appointment to the post of HSA (Hindi) and since the training qualification possessed by the 5[th] respondent does not find a place in the said rule, the 5[th] respondent cannot be held to be qualified for appointment. It is contended that, it is trite law that executive orders cannot amend statutory rules. The learned counsel further states that there is no order issued by the Government considering the effect of the rules and granting a relaxation of the same and W.P(C) 36764 & 37091/10 5 therefore Exhibit P5 cannot be relied upon to hold that the 5[th] respondent is qualified to hold the post of HSA (Hindi). The learned counsel relies on the decision of this Court as well as the Apex Court reported in **Jesilet v. State of Kerala** [1987 (2) KLT 984] and **Lalitha v. State of Kerala** [2008(1) KLT 416]. 6.With regard to the power of relaxation which is conferred on the Government under Rule 3 of Chapter XXXI KER, it is contended that the power can be exercised only after the need for relaxation of the rules is specifically considered and found by the Government. In support of the said position the learned counsel relies on the decisions reported in **Deputy Commissioner v. Nachimuthu** [1989 (1) KLT 621] and **Syed Khalid Rizvi v. Union of India** [(1993) 3 SCC 575]. It is therefore contended that Exhibit P10 order suffers from errors of law apparent from the face of record and is liable to be set aside. 7.A counter affidavit has been filed by the official respondents W.P(C) 36764 & 37091/10 6 contending that if the 5[th] respondent is qualified, it is beyond dispute that she is entitled to be promoted as HSA (Hindi) in preference to the petitioner in view of the position of the Rule as it stood at the relevant time. It is stated that Exhibit P5 Government Order recognises the training qualification held by the 5[th] respondent as an alternate qualification for appointment in aided schools and therefore the 5[th] respondent was fully qualified and eligible to be appointed. 8.The learned Government Pleader would contend that the said qualification had been recognised as a sufficient qualification till the year 1970 even going by the provisions of Rule 2(2)(iv) of Chapter XXXI KER. It is therefore stated that what is done by Exhibit P5 is only to extend the benefit to later periods also. The learned counsel for the 5[th] respondent submits that going by Rule 43(b)(i) Chapter XIVA KER the 5[th] respondent was entitled for appointment having acquired the Sahithyacharya qualification of the Hindi Prachar Sabha in 1997 and the Acharya qualification W.P(C) 36764 & 37091/10 7 in 1998. The learned counsel for the 5[th] respondent would submit that Exhibit P5 only amounts to a clarification of the qualification already recognised by the rules till 1970 and therefore it is perfectly valid. Relying on the decision of this Court in **Gangadharan Nair v. State of Kerala and others** [1984 KHC 67] it is contended that Rule 3 of Chapter I KER can be exercised to meet equity and justice also in favour of a group of persons, when other conditions for exercise of power are justified. 9.Relying on a decision reported in **Meenakshikuty P v. State of Kerala** and others [2011(1)KLT 1032] it is contended that the rule empowers the Government to dispense with or relax requirement of rules and general law that executive order cannot alter a statutory provision would not be applicable in such exceptional circumstances. - 10.I have considered the contentions advanced. Section 12 of the Kerala Education Act provides that conditions of service of teachers in aided schools shall be such as may be W.P(C) 36764 & 37091/10 8 prescribed by the Government. Rule 1 of Chapter XIVA KER states that Managers of private schools shall appoint only candidates who possess the prescribed qualifications. Qualifications are prescribed in Chapter XXXI of the KER. Rule 2(2)(iv) provides for qualifications for appointment to the post of HSA (Hindi). Explanation III under the head 'training qualification' reads as follows:- “Explanation III:- Persons who have successfully undergone the Acharya course of the Kerala Hindi Prachar Sabha upto and including the academic year 1969-70 shall be considered to possess the requisite training qualification.” ## 11.This provision remains unamended even today. Therefore, the only question to be considered is whether Exhibit P5 order can have the effect of amending the rules. Exhibit P5 is an order evidently issued by the Government on the request made by the Hindi Prachar Sabha to revive the Acharya course conducted by the Sabha. It reads as follows:- “In the letter read first, the Secretary, Kerala Hindi Prachara Sabha, Trivandrum has requested Government to accord sanction to revive the Acharya course conducted by the Sabha. W.P(C) 36764 & 37091/10 9 (2) In the letter read second, the Secretary, Dakshin Bharath Hindi Prachar Sabha has informed Government that 'Siksha Snathak' is awarded to “Praveen” holders of Dakshin Bharath Hindi Prachara Sabha, and requested Government to recognise the 'Siksha Snathak' qualification as equivalent to B.Ed Degree/ or, to recognise it as an alternate qualification for appointment as Hindi Teachers in Aided Upper Primary and Aided High Schools. 3) Government have examined the matter, and are pleased to order as follows:- (i) Acharya Course of the Kerala Hindi Prachara Sabha will be recognised as an alternate training qualification for appointment as Hindi Teachers in Aided Upper Primary Schools and Aided High Schools. (ii)'Siksha Snathak' qualification of the Dakshin Bharath Hindi Prachara Sabha will be recognised as an alternate training qualification for appointment as Hindi Teachers in Aided Upper Primary and Aided High Schools. (4)Orders regarding extension of these qualifications for recruitment in Government Schools will be issued separately. (5) The Director of Public Instruction will forward necessary proposals for amendments to the K.E.R.” 12.From a reading of the said order, I am of the definite opinion that the said order cannot be termed to be an order passed in exercise of the powers of the Government under Rule 3 to Chapter I KER, which reads as follows:- W.P(C) 36764 & 37091/10 10 “ **3** . Where the Government are satisfied that the operation of any rule under these Rules causes undue hardship in any particular case, the Government may dispense with or relax the requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner.” 13.From a reading of the above rule it is abudantly clear that the requirement of the exercise of the power is the satisfaction of the Government that the operation of a rule causes undue hardship in any particular case. The existence of undue hardship need not be of a particular person alone. However, the satisfaction as to the existence of such a hardship is necessary for the invocation of a power under Rule 3. I am unable to hold, from a reading of Exhibit P5 that any such consideration weighed with the Government in the issuance of Exhibit P5 order. Exhibit P5 therefore cannot be held to be an order issued relaxing the rule relating to qualification as contained in Chapter XXXI of the KER. - 14.In the above view of the matter, it can only be an administrative order and cannot have the effect of modifying W.P(C) 36764 & 37091/10 11 the statutory rules as contained in Chapter XXXI KER. 15.In the result, W.P(C).No.37091 of 2010 is allowed. It is declared that Exhibit P5 is unenforceable as against the petitioner in W.P(C).No.36764 of 2010. Exhibit P10 order which relies on Exhibit P5 to deny approval to the appointment of the petitioner is set aside. It is directed that the petitioner shall be entitled to approval of appointment as HSA (Hindi) w.e.f. 05.06.2002. All consequential benefits shall be calculated and disbursed to the petitioner by the competent among the respondents within a period of three months from the date of receipt of a copy of this judgment. This writ petitions are ordered accordingly. ## **Anu Sivaraman, Judge** sj