Saraswathy Amma G. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` THURSDAY, THE 6[TH] DAY OF OCTOBER 2022 / 14TH ASWINA, 1944 ``` ## **`WP(C) NO. 23265 OF 2010`** ## **`PETITIONER:`** ``` SARASWATHY AMMA G MANAGER, V.M.H.S.KOTTARAKARA, E.T.C. P.O., AMBALAPURAM. BY ADVS. SRI.M.V.BOSE SRI.VINOD MADHAVAN ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,, EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM.` - `2 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM.` - `3 THE DEPUTY DIRECTOR OF EDUCATION KOLLAM.` - `4 THE DISTRICT EDUCATIONAL OFFICER KOTTARAKKARA.` ## **`OTHER PRESENT:`** ``` 0 SR GP JUSTIN JACOB ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ``` ``` ON 06.10.2022, ALONG WITH WP(C).21172/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **WPC.Nos.23265/2010 & 21172/2011** **2** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` THURSDAY, THE 6[TH] DAY OF OCTOBER 2022 / 14TH ASWINA, 1944 WP(C) NO. 21172 OF 2011 ``` ## **`PETITIONER:`** ``` SARASWATHY AMMA.G. MANAGER, V.M.H.S KOTTARAKKARA, ETC P.O, AMBALAPURAM. BY ADVS. SRI.M.V.BOSE SRI.VINOD MADHAVAN ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,, GENERAL EDUCATION DEPARTMENT,, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 2THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM - 695 001. 3THE DEPUTY DIRECTOR OF EDUCATION KOLLAM - 691 001. 4THE DISTRICT EDUCATIONAL OFFICER KOTTARAKKARA - 691 506. BY ADV.JUSTIN JACOB, SR. GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2022, ALONG WITH WP(C).23215/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **WPC.Nos.23265/2010 & 21172/2011** **3** ## **P.V.KUNHIKRISHNAN, J.** **--------------------------------** **W.P.(C).Nos.23265 of 2010 & 21172 of 2011 ---------------------------------------------Dated this the 06[th] day of October, 2022** ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing these two writ petitions by a common judgment. 2. W.P.(C). No.23265/2010 is filed with following prayers: i. To call for the entire records leading up to Exhibits P20 and P22 and to quash the same by the issuance of a writ of certiorari or any other writ, direction or order. ii. To issue a writ of mandamus compelling the respondents to approve the Exhibits P15, P16 and P17 appointments to the posts of Clerk, HSA and peon in the permanent vacancies from 1.2.2007, 1.6.2009 and 8.9.2009 respectively. iii. To direct the respondents to accord all consequential benefits including payment of salary to the appointees vide Exhibits P15, P16 and P17 from the date of their appointment. iv. To declare that the petitioner is entitled to fill up the vacancies of various posts including one post of FTM in the school. v. To grant such other reliefs deemed fit and proper **WPC.Nos.23265/2010 & 21172/2011** **4** in the circumstances of the case. vi. To award the cost of the Petitioner in this proceedings. (SIC) 2. W.P.(C). No.21172/2011 is filed with following ## prayers: - i. To call for the entire records leading upto Exhibit P8 and quash the rejection of Exhibit P6 appointment as ordered therein by the issuance of a writ of certiorari or any other writ, direction or order. - ii. To issue a writ of mandamus compelling the respondents to approve the Exhibit P6 appointment of Smt. Krishnendhu C.R. with effect from 02.11.2010. - iii. To issue any other order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. vi. To award the cost of the Petitioner in this proceedings. ## (SIC) 3. Petitioner in W.P.(C). No.23265/2010 is the Manager of V.M.H.S. Kottarakara. The petitioner appointed teachers as per Exts.P7 to P10. The same Manager filed W.P.(C). No.21172/2011 in which the Manager appointed a peon based on Ext.P6. The grievance of the petitioner is that the **WPC.Nos.23265/2010 & 21172/2011** **5** appointment of these teachers and peon are not given effect with effect from the date of appointment for the reason that protected persons were not appointed. Hence these writ petitions. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The counsel for the petitioner submitted that in the light of the judgments of this Court in **Moosakutty v. D.E.O. Wandoor [2009 (3) KLT 863]** and **Nadeera v. State of Kerala [2011 (3) KLT 790]** , the impugned orders in these writ petitionswill not stand. The Government Pleader submitted that a detailed counter affidavit is filed and there is nothing to interfere with the impugned orders. 6. This Court considered the contentions of the petitioner and the Government Pleader. In **Moosakutty’s case** (supra), this Court considered the issue in detail. The relevant portion of the judgment is extracted hereunder: “6. Firstly, this aspect will have to be examined. The Sub-Rule (viii) of Rule 6 of Chapter V of Kerala Education Rules is extracted below: “viii. An agreement duly executed by the **WPC.Nos.23265/2010 & 21172/2011** **6** applicant to the effect that he is prepared to absorb qualified teachers/non teaching staff who, after putting in service of 2 years and drawing 2 vacation salaries, have been retrenched from any of the aided high schools in the Education district or aided primary school in the Education Subdistrict in which the applicant proposes to open/upgrade the school.” Going by the same, the Manager will have to execute an agreement that he is prepared to absorb qualified teachers/non teaching staff who have been retrenched from any of the aided high schools in Education district or aided primary school in the Education Sub-district in which the applicant proposes to open/upgrade the school. Since the school in question is only an Upper Primary School, prior to 1990, the obligation as such is confined to the prescriptions of the said paragraph. 7. In G.O.(P).No.83/88/G.Edn., dated 18/04/1988, in paragraph (v) the following provisions have been introduced:- “(v) It will be obligatory on the part of Managers of newly opened/upgraded schools to appoint 'Protected Teachers' from the list of protected teachers to be obtained from the Educational Officer concerned and that the protected teachers need not necessarily belong to the same Educational Sub-District/District. The protected teachers may belong to the same Educational Sub-district or District or in any other Educational District. **WPC.Nos.23265/2010 & 21172/2011** **7** Necessary amendments to the K.E.R will be issued separately.” It is made clear therein that the protected teachers may belong to the same Educational Sub-district or District or in any other Educational District. Even though, necessary amendments were contemplated at that point of time, even as on today, amendments have not been made in the K.E.R for incorporating the above provisions of the Government Order. 8. Therefore, we will have to refer to Rule 9 of Chapter III, K.E.R also to understand the nature of the obligation of the Manager. Sub Rule (1) is extracted below:- “(1) The Manager shall be responsible for the conduct of the school strictly in accordance with the provisions of the Kerala Education Act and the Rules issued thereunder. He shall also abide by the orders that may be issued from time to time by the Government and the Department in conformity with the provisions of the Act and the rules issued thereunder.” Therefore, the Manager will have to abide by the orders that will be issued from time to time by the Government and the Department “in conformity with the provisions of the Act and the rules issued thereunder”. Here, the Manager has executed Ext.P6 agreement whereby, he has obliged himself to appoint a protected Teacher from any one of the aided Primary School in **WPC.Nos.23265/2010 & 21172/2011** **8** Wandoor Educational Sub-district. This is in terms of Sub Rule (viii) of Rule 6 of Chapter V, K.E.R as quoted already. Therefore, in terms of Sub Rule (1) of Rule 9 of Chapter III, K.E.R, Ext.P6 can be enforced against the Manager. The scope of the same cannot be widened as proposed now by relying upon Government Order, G.O.(P).No.83/88/G.Edn., dated 18/04/1988. 9. It is well settled that an executive order cannot go against and override the express statutory prescriptions. Unless the Rules are amended in terms of the executive order, by appropriate means, the same cannot be sought to be enforced. See, **Unni Narayanan v. State of Kerala** (2009 (2) KLT 604). Herein, Ext.P7 shows that there is no protected teacher available in the Wandoor Educational Subdistrict, which fact is admitted in paragraph (9) of the counter affidavit. If that is so, the Manager cannot be faulted for not appointing a protected teacher in the vacancy to which the petitioner was appointed. Even if there will be a protected U.P.S.A in Malappuram Revenue District, that cannot be sought to be enforced against the Manager, obviously.” 7. The same is followed in **Nadeera’s case** (supra). **Nadeera’s case** (supra) is affirmed by the judgment in **State** **WPC.Nos.23265/2010 & 21172/2011** **9** **of Kerala v. Nadeera [2013 (3) KLT 88]** . In the light of these decisions, according to me, the matter has to be reconsidered by the Government. Therefore, these writ petitions are allowed in the following manner: 1. Ext.P22 in W.P.(C). No.23265/2010 and Ext.P8 in W.P.(C). No.21172/2011 are set aside. 2. The 1[st] respondent in these writ petitions is directed to reconsider the matter, after affording an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. 3. All the contentions raised by the petitioner in these writ petitions are left open. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV **WPC.Nos.23265/2010 & 21172/2011** **10** ## **`APPENDIX OF WP(C) 21172/2011`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ORDER DATED 28.09.1985 OF THE 4TH RESPONDENT D.E.O. ``` - `Exhibit P2 TRUE COPY OF THE ORDER DATED 27.02.1988 OF THE DEPUTY DIRECTOR.` - `Exhibit P3 TRUE COPY OF THE ORDER DATED 10.11.1992 OF THE DEPUTY DIRECTOR.` - `Exhibit P4 TRUE COPY OF THE ORDER DATED 11.04.2011 IN W.P. (C) NO. 23265 OF 2010 OF THIS HON'BLE COURT.` - `Exhibit P5 TRUE COPY OF THE LETTER OF THE ADVOCATE DATED 28.04.2011.` - `Exhibit P6 TRUE COPY OF THE APPOINTMENT ORDER DATED 02.11.2010 OF SMT. KRISHNENDHU C.R.` - `Exhibit P7 TRUE COPY OF THE ORDER DATED 31.05.2011 PASSED BY THE DISTRICT EDUCATIONAL OFFICER.` - `Exhibit P8 TRUE COPY OF THE ORDER DATED 12.07.2011.` - `Exhibit P9 TRUE COPY OF THE CONSENT OF SHRI. SURYA SURENDRAN.` - `Exhibit P10 TRUE COPY OF GOVERNMENT LETTER DATED 06.07.2011.` **WPC.Nos.23265/2010 & 21172/2011** **11** ## **`APPENDIX OF WP(C) 23265/2010`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF ORDER DATED 28.9.1985 OF THE 4TH RESPONDENT DEO, Exhibit P2TRUE COPY OF THE ORDER DATED 27.2.1988 OF THE DEPUTY DIRECTOR. Exhibit P3TRUE COPY OF ORDER DATED 10.11.1992 OF THE DEPUTY DIRECTOR Exhibit P4TRUE COPY OF THE ORDER DATED 12.11.1992 Exhibit P5TRUE COPY OF THE ORDER DATED 1.6.1993 Exhibit P6TRUE COPY OF THE APPOINTMENT ORDER DATED 21.6.1995 Exhibit P7TRUE COPY OF THE APPOINTMENT ORDER OF SMT.R.USHAKUMARY Exhibit P8TRUE COPY OF THE APPOINTMENT ORDERS OF SMT.K.P. MANORAMA Exhibit P9TRUE COPY OF THE APPOINTMENT ORDERS OF SHRI.P.SREEKUMAR Exhibit P10TRUE COPY OF THE APPOINTMENT ORDERS OF SHRI.JAYADEVAN NAMBOODIRI Exhibit P11TRUE COPY OF THE ORDER DATED 20.5.2003 Exhibit P12TRUE COPY OF THE APPOINTMENT ORDER DATED 20.5.2003 OF SMT.INDU K.PILLAI Exhibit P13TRUE COPY OF THE APPOINTMENT ORDER Exhibit P14TRUE COPY OF THE APPOINTMENT ORDER DATED 1.11.2006 Exhibit P15TRUE COPY OF THE APPOINTMENT ORDER DATED DATED 1.2.2007 Exhibit P16TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2009 Exhibit P17TRUE COPY OF THE APPOINTMENT ORDER DATED 8.9.2009 Exhibit P18TRUE COPY OF THE APPOINTMENT ORDER DATED 1.4.2008 Exhibit P19TRUE COPY OF THE APPOINTMENT ORDER OF SHRI. MANOJ K.PILLAI DATED 10.6.1996 Exhibit P20TRUE COPY OF THE APPEAL FILED BEFORE ``` **WPC.Nos.23265/2010 & 21172/2011** **12** ``` THE DPI ALSO WAS DISMISSED VIDE ORDER DATED 19.2.2009 ``` ``` Exhibit P21TRUE COPY OF THE JUDGMENT DATED 7.4.2009 IN W.P.(C)NO.11709/2009 Exhibit P22TRUE COPY OF THE ORDER DATED 12.8.2009 Exhibit P23TRUE COPY OF THE REPRESENTATION DATED 7.6.2010 BEFORE THE HONOURABLE MINISTER OF EDUCATION Exhibit P24TRUE COPY OF THE REPRESENTATION DATED 16.6.2010 FILED BY THE PETITIONER BEFORE THE DEPUTY DIRECTOR ``` ``` Exhibit P25TRUE COPY OF THE REQUEST DATED 28.6.2010 Exhibit P26TRUE COPY OF THE REPLY DATED 7.7.2010 Exhibit P27TRUE COPY OF THE PETITION DATED 29.6.2010 Exhibit P28TRUE COPY OF THE G.O.(P) NO.46/G.EDN. DATED 1.2.2006. ```