High Court of KeralaSingle Judge2010-06-04Writ Petition disposed of.

Saleena Kakkattuchali v. State of Kerala and Others

Case / Petition Number:WP(C).No. 29151 of 2009(L)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K.T.SANKARAN
Judgment Date: 2010-06-04
Court Decision / Holding: The writ petition is allowed in part. Exts.P3–P5 and Exts.P8 and P10 are quashed. The Assistant Educational Officer is directed to reconsider the matter afresh in light of Ext.P6 and the statutory framework, and to dispose of the matter within two months from receipt of a copy of the judgment. All contentions of the parties are kept open. The judgment clarifies that Ext.P6 does not bar verification of protected-teacher lists within the Sub District for proper adjudication.
Final Disposition: Writ Petition disposed of.

Parties to the Case

Appellants / Petitioners

Saleena Kakkattuchali

Respondents

The State of Kerala represented by the Secretary to General Education Department, Trivandrum
The Director of Public Instructions, Trivandrum
The District Educational Officer, Tirur
The Assistant Educational Officer, Vengara
The Manager, MISM UP School, Pengadkundilparamba, Kannamangalam West P.O., Vengara, Malappuram District

Legal Representation & Advocates

Counsels for Petitioners

• Sri R.K. Muraleedharan

Counsels for Respondents

• Sri K.E. Hamza (for R5)
• Government Pleader (for R1-R3)

Case Synopsis & Summary

Saleena Kakkattuchali challenged the denial of approval of her appointment as FT Arabic (UPS) teacher at MISM UP School, Pengadkundilparamba, Kannamangalam West P.O., Vengara, Malappuram District. The background traces to the death of Subaida in 2001 and the Manager’s appointment of Mujeeb Rahman in 2002 in the vacancy caused by that death. The Assistant Educational Officer rejected the approval on two grounds: absence of a protected teacher in terms of G.O.(P)178/02/G.Edn. and that the Manager was bound to appoint protected teachers. The appeal and revision against that order were dismissed, but the Manager’s revision directed approval for Mujeeb Rahman for 8.6.2002 to 5.11.2002. After Rahman left, the Manager appointed Faizal Mon as UPSA and subsequently a regular FT Arabic vacancy arose, for which the petitioner was appointed on 28.7.2003 (28.7.2003 to 4.11.2007), limited by Rahman’s leave. The AEO again rejected the petitioner’s proposal on 5.1.2004 (Ext.P3), citing no established vacancy and the need to appoint protected teachers per G.O.178/02; Ext.P4 and Ext.P5 upheld these rejections. The petitioner argued that Rahman’s appointment was later approved and that relaxation under G.O.(P)46/2006 should apply, and relied on Moosakutty v. D.E.O. to challenge the GO orders. The High Court quashed Exts.P3–P5 and Exts.P8 and P10, directing fresh consideration by the AEO in light of Ext.P6 (RTI) and the Moosakutty principle, to be completed within two months, with all contentions preserved.

Provisions of Law Cited

G.O.(P) No.178/02/G.Edn. dated 28.6.2002G.O.(P) No.46/2006/G.Edn. dated 1.2.2006Rule 6(viii) of Chapter V of Kerala Education Rules

Legal Doctrines & Maxims

Executive orders cannot override express statutory provisions
Protected teachers principle under Kerala Education Rules (G.O.(P) No.178/02 and relaxation under G.O. No.46/2006)
Moosakutty v. D.E.O., Wandoor (2009(3)KLT 863) – executive actions cannot nullify statutory requirements

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the approval for Mujeeb Rahman up to 5.11.2002 removed the basis for Ext.P3 denial. She asserts that GO 178/02 creates a protected-teacher requirement, which was relaxed by GO 46/2006, and that Rahman’s later approval undermines the earlier grounds. Relying on Rule 6(viii) of Chapter V of the Kerala Education Rules and the RTI-derived list of protected teachers (Ext.P6), she argues the Manager should appoint only protected teachers within the sub-district. She relies on Moosakutty v. D.E.O. Wandoor to contend that executive orders cannot contravene statutory provisions and seeks quashing of Exts.P3–P5 and Exts.P8, P10, with fresh adjudication by the AEO within two months, considering the admitted facts and the protective-teacher list.

Contentions of Respondents

The respondents submit that there was no established vacancy since Mujeeb Rahman’s appointment was not validly approved; GO 178/02 required protected teachers, and the Manager was bound accordingly. GO 46/2006 relaxations do not automatically validate prior decisions. The DEO and Director of Public Instructions confirmed Exts.P4 and P5; Ext.P10 reasons include the school being newly opened and pending LWA sanction. They argue the RTI list shows protected teachers outside the sub-district and that the Manager’s revisions were in line with statutory requirements. Therefore the challenged orders were proper and justified.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Moosakutty v. D.E.O., Wandoor	2009(3)KLT 863	Positive	The court relied on this decision to hold that government orders contravening statutory provisions (Rule 6(viii), GO 178/02) cannot stand, justifying quashing the challenged orders.

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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 K.T.SANKARAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 WP(C).No. 29151 of 2009(L) -------------------------- PETITIONER(S): - --------------- SALEENA KAKKATTUCHALI, PUTHUVEETTILKANDAY HOUSE, OZHUKUR P.O., MALAPPURAM DISTRICT. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): - --------------- 1. THE STATE OF KERALA REP.BY SECRETARY TO GENERAL EDUCATION DEPARTMENT TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION TRIVANDRUM. 3. THE DISTRICT EDUCATIONAL OFFICER, TIRUR. 4. THE ASSISTANT EDUCATIONAL OFFICER, VENGARA. 5. THE MANAGER, MISM UP SCHOOL, PENGADKANDILPARAMBA, KANNAMANGALAM WEST P.O., VENGARA, MALAPPURAM DISTRICT. ADV. SRI.V.A.MUHAMMED FOR R5 SRI.K.E.HAMZA FOR R5 GOVERNMENT PLEADER FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 29151/2009 ## APPENDIX ## PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE APPOINTMENT ORDER AND APPROVAL GRANTED TO T.K.MUJEEB RAHMAN. EXT.P2: COPY OF THE APPOINTMENT ORDER DATED 28.7.2003. EXT.P3: COPY OF THE ORDER DATED 5.1.2004 OF THE 4TH RESPONDENT. EXT.P4: COPY OF THE ORDER DATED 22.6.2004 OF THE THIRD RESPONDENT. EXT.P5: COPY OF THE ORDER DATED 12.1.2005 OF THE SECOND RESPONDENT. EXT.P6: COPY OF THE REPLY RECEIVED FROM DEPUTY DIRECTOR OF EDUCATION DATED 5.10.09. EXT.P7: COPY OF THE G.O.(P) NO.46/2006/G.EDN. DATED 1.2.2006. EXT.P8: COPY OF THE ORDER DATED 21.4.05 OF THE FOURTH RESPONDENT. EXT.P9: COPY OF THE REVISION DATED 24.7.06 BEFORE THE FIRST RESPONDENT. EXT.P10: COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 13.12.2006. EXT.P11: COPY OF THE MERCY PETITION DATED 27.1.2007. ## RESPONDENT'S EXHIBITS : EXT.R5(a) : COPY OF THE ORDER NO.B3/23234/2006(1) OF THE DEPUTY DIRECTOR OF EDN. EXT.R5(b) : COPY OF THE JOINING CERTIFICATE. /TRUE COPY/ P.A. TO JUDGE ## **K.T.SANKARAN, J.** --------------------------------------------W.P.(C).No.29151 of 2009 --------------------------------------------Dated this the 4[th] day of June, 2010 ## **JUDGMENT** The petitioner is aggrieved by the denial of approval of her appointment as FT Arabic (UPS) teacher for the period from 28.7.2003 to 4.11.2007 in the school of the fifth respondent. 2. One K.V.Subaida was working as FT Arabic (UPS) in MISM UP school, Pengadkundilparamba, Kannamangalam West P.O., Vengara, Malappuram District. Subaida died on 17.12.2001. The Manager of the school appointed Sri.T.K.Mujeeb Rahman from 8.6.2002 onwards in the vacancy caused due to the death of Subaida. The Assistant Educational Officer rejected the proposal for approval of appointment of Mujeeb Rahman on the ground that no protected teacher was appointed in the school in terms of G.O.(P)No.178/02/G.Edn. dated 28.6.2002. It is stated in the Writ Petition that the appeal and revision filed against that order were dismissed. However, the first respondent, on a revision filed by the Manager, directed approval of appointment WPC 29151/2009 2 of Mujeeb Rahman for the period from 8.6.2002 to 5.11.2002. It is stated that Mujeeb Rahman left the school after applying for leave without allowance for going abroad. Since the approval of appointment of Mujeeb Rahman was sanctioned up to 5.11.2002 and since he ceased to be a teacher, the Manager appointed Faizal Mon C.H. in the vacancy of Mujeeb Rahman. Later, a regular vacancy of UPSA arose in the school and the Manager appointed Faizal Mon as UPSA. Consequently, the vacancy of FT Arabic Teacher arose in the school. The Manager appointed the petitioner as per Ext.P2 appointment order dated 28.7.2003 for the period from 28.7.2003 to 4.11.2007. It is stated that the period was so restricted in view of the fact that a leave application was submitted by Mujeeb Rahman for a period of five years. 3. The Assistant Educational Officer, Vengara rejected proposal for approval of appointment of the petitioner as per Ext.P3 dated 5.1.2004 on two grounds, namely, (1) the appointment of Mujeeb Rahman was not approved and therefore, there is no established vacancy (2) As per G.O.(P) No.178/02/G. WPC 29151/2009 3 Edn. dated 28.6.2002, the Manager was bound to appoint protected teachers. Ext.P3 was taken up in appeal before the District Educational Officer who confirmed the order of Assistant Educational Officer as per Ext.P4 order dated 22.6.2004. The revision filed by the Manager before the Director of Public Instructions was dismissed as per Ext.P5 order dated 12.1.2005. The petitioner is mainly aggrieved by Exts.P3 to P5 orders. 4. The learned counsel for the petitioner submitted that subsequent to Exts.P3 to P5 orders, the appointment of Mujeeb Rahman was approved and therefore, one of the reasons stated for rejection of approval of appointment of the petitioner has vanished. It is also submitted that G.O.(P) No.178/02/G.Edn. was relaxed as per G.O.(P) No.46/2006/G.Edn. dated 1.2.2006 and benefit of the same was availed by more than 400 teachers. In view of G.O.(P) No.46/2006/G.Edn., the Manager submitted a revised proposal before the Assistant Educational Officer for approval of appointment of the petitioner. The Assistant Educational Officer rejected that proposal as per Ext.P8 order dated 21.4.2005. A revision was filed against that order before WPC 29151/2009 4 the Government. However, the revision petition was forwarded to the Director of Public Instructions who disposed of the same as per Ext.P10 order dated 13.12.2006 confirming the order passed by the Assistant Educational Officer. In Ext.P10 order, the following reasons are stated by the Director of Public Instructions : - “(i) The school is a newly opened one. Hence, the vacancy should have been filled with a protected teacher, as per G.O.(P) No.178/02/G.Edn. dated 28.6.2002. - (ii) The LWA for 6.11.2002 to 5.11.2007, in respect of Sri.Mujeeb Rehman.T.K., F.T.Arabic Teacher, stand yet to be sanctioned by the Government.” 5. Challenging Ext.P10 order, the petitioner has filed Ext.P11 representation before the Government. It is stated that Ext.P11 was not disposed of. 6. The learned counsel for the petitioner submitted that Ext.P6 communication dated 5.10.2009 issued by the Deputy WPC 29151/2009 5 Director of Education, Malappuram on an application submitted by the petitioner under the Right to Information Act, shows the list of protected Full Time Arabic Teachers of U.P. school to be deployed for the year 2003-2004. It is submitted that all those protected teachers belong to schools outside Vengara Sub District. The counsel also relied on Rule 6(viii) of Chapter V of the Kerala Education Rules and submitted that the Manager was bound only to appoint protected teachers available in the Sub District concerned. Reliance was also placed on the decision reported in **Moosakutty vs. D.E.O., Wandoor (2009(3)KLT 863)** wherein it was held that a Government Order which runs contrary to Rule 6(viii) of Chapter V of Kerala Education Rules would not stand since an executive order cannot go against the express statutory provisions. In the light of the dictum laid down in Moosakutty vs. D.E.O.,Wandoor, Exts.P3 to P5 orders and also Exts.P8 and P10 orders are liable to be quashed. 7. Accordingly, I quash Exts.P3 to P5 and Exts.P8 and P10 orders. The Assistant Educational Officer shall consider the matter afresh in the light of the admitted facts of the case and WPC 29151/2009 6 also the information furnished in Ext.P6 dated 5.10.2009. In the light of the principles laid down in Moosakutty vs. D.E.O.Wandoor, the Assistant Educational Officer shall dispose of the case within a period of two months from the date of receipt of a copy of this judgment. All the contentions of the parties are left open. The Writ Petition is disposed of as above. It is made clear that in spite of Ext.P6 communication issued by the Deputy Director of Education, Malappuram, the Assistant Educational Officer would be entitled to verify the list of protected teachers available in the Sub District for the relevant period for the purpose of a complete and proper adjudication of the disputes involved in the case. **K.T.SANKARAN,** **JUDGE** csl