Secretary, Corporate Management of Schools under the Society of the Order of Sacred Transfiguration Pathanapuram, Kollam, and Jolly Alex v. State of Kerala and Others

## **`CR`** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 ``` ## **`WP(C) NO. 3810 OF 2022`** ## **`PETITIONERS:`** ``` 1SECRETARY CORPORATE MANAGEMENT OF SCHOOLS UNDER THE SOCIETY OF THE ORDER OF SACRED TRANSFIGURATION PATHANAPURAM, KOLLAM-689 695 2JOLLY ALEX, HIGH SCHOOL ASSISTANT (NATURAL SCIENCE) (RETIRED) MOUNT TABOR HIGH SCHOOL PATHANAPURAM, KOLLAM, RESIDING AT MOOZHIYIL HOUSE, KOTTAVATTAM P.O.ELAMPAL, VETTIKAVALA, KOLLAM-691 322. BY ADVS. M.A.FAYAZ M.VISHNUPRIYA C.B.ABHINAVA ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2DIRECTOR GENERAL OF EDUCATION OFFICE OF THE DIRECTOR GENERAL OF EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014. 3THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM-691 001. 4THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, PUNALLOOR, KOLLAM-691 013. BY ADV ADVOCATE GENERAL OFFICE KERALA SMT.NISHA BOSE, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.3810/2022 **2** **C.R P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.3810 of 2022** **---------------------------------------------Dated this the 07[th] day of February, 2023** ## **JUDGMENT** Short point to be decided in this case is whether a claimant under Rule 43 of Chapter XIV (A) of the Kerala Education Rules, 1959(hereinafter referred to as, “KER”) is entitled a preferencial appointment in supersession to an executive order passed by the Government as per G.O.(P) No.10/10/G.Edn dated 12.01.2010 (in short, “G.O(P) 10/10”). 2. The 1[st] petitioner is the Corporate Management having several schools in different districts of the State, which is conferred with minority status by the National Commission for Minority Institutions of Government of India as per Ext.P1 order. The 2[nd] petitioner, Ms. Jolly Alex, was appointed as the Upper Primary School Assistant (in short, “UPSA”) by the 1[st] petitioner with effect from 16.11.1989. The said appointment was approved by the department from the actual date of appointment. The 2[nd] petitioner, after her approval of appointment, worked in different schools under the 1[st] petitioner's management and was working at WP(C).No.3810/2022 **3** St.Stephen's High School, Pathanapuram till her promotion. The 1[st] petitioner promoted the 2[nd] petitioner as High School Assistant (Natural Science)(in short “HSA(NS)”) and posted her to Mount Tabor High School, Pathanapuram with effect from 01.06.2010 as per Ext.P2 order. The promotion was effected in a retirement vacancy caused due to the retirement of one A.T. Annamma with effect from 31.03.2010. It is the case of the petitioners that, being a claimant under Rule 43 of Chapter XIV (A), KER, the 2[nd] petitioner’s promotion as HSA (NS) with effect from 01.06.2010 is liable to be approved as per the statutory provisions of KER. The proposal for approving the promotion of the 2[nd] petitioner as HSA (NS) at Mount Tabor High School, Pathanapuram was submitted to the 4[th] respondent, the District Educational Officer, Kollam. The 4[th] respondent rejected the approval of promotion of the 2[nd] petitioner on the ground that the Manager had not complied with the stipulations contained in G.O(P) 10/10 and has not executed any Bond. Ext.P3 is the order of the 4[th] respondent. Ext.P3 order was challenged before the 3[rd] respondent, The Deputy Director of Education, kollam, by the Manager, but the 3[rd] respondent also took the stand that since the 1[st] petitioner Manager has not complied with the directions contained in GO(P) 10/10, it is not possible to grant approval of promotion to the 2[nd] petitioner as WP(C).No.3810/2022 **4** HSA (NS) with effect from 01.06.2010 and thereby rejected the appeal as per Ext.P4 order. After Ext.P4 order, the 2[nd] petitioner's promotion as HSA (NS) was approved by the 4[th] respondent with effect from 01.06.2011 in the light of G.O(P) No.199/2011/G.Edn dated 01.10.2011 and also in the light of Order No.H2/35920/2011/DPI dated 14.12.2011 issued by the 2[nd] respondent. Ext.P5 is the order. It is the case of the petitioners that the 2[nd] petitioner was working as UPSA with approval from the year 1989 onwards. Thus, she became a claimant under Rule 43 of Chapter XIV (A) KER and hence she is eligible for promotion in the next arising vacancy under the 1[st] petitioner's management. It is the further case of the petitioners that the other Government Orders directing the appointment of protected teachers in additional vacancies will not have any overriding effect over the 2[nd] petitioner’s claim, since she is a statutory claimant under Rule 43 of Chapter XIV (A), KER. Therefore, the contention of the petitioners is that the 2[nd] petitioner is entitled to get her promotion approved with effect from 01.06.2010 itself. It is the case of the 2[nd] petitioner that, after the approval of her promotion as HSA (NS) by Ext.P5 with effect from 01.06.2011, she was behind respondents 3 and 4 for getting her promotion approved with effect from 01.06.2010 itself, but the 2[nd] petitioner was WP(C).No.3810/2022 **5** informed that the Government is issuing a comprehensive order on the basis of the judgments of this Court which was filed challenging G.O(P) No.199/2011/G.Edn dated 01.10.2011. Later the Government issued G.O.(P)No.29/2016/G.Edn dated 29.01.2016 issuing necessary directions and modalities by which the appointments of teachers in aided school has to be approved. Revised teacher-student ratio in Primary and Upper primary Schools were fixed in the light of Central Legislation of Right to Education Act, 2009. Based on the above Government Order, the 2[nd] petitioner submitted a request before the 1[st] petitioner to take immediate steps to get her promotion as HSA (NS) approved with effect from 01.06.2010 instead of 01.06.2011. Ext.P6 is the request. The 1[st] petitioner based on Ext.P6 submitted a fresh petition before the 3[rd] respondent stating that the refusal to approve the promotion of the 2[nd] petitioner from 01.06.2010 made by an established retirement vacancy is highly irregular, as the 2[nd] petitioner is a Rule 43 claimant and as per the amendment brought in the KER on 03.12.2016, the 2[nd] petitioner is entitled for approval of her promotion as HSA (NS) with effect from 01.06.2010 itself. Ext.P7 is the petition submitted by the 1[st] petitioner. But the 3[rd] respondent rejected the same as per Ext.P8 stating that the 1[st] petitioner has not executed a bond pursuant to WP(C).No.3810/2022 **6** GOP 10/10. Ext.P8 order of the 3[rd] respondent was taken up in revision is the contention of the petitioners, but the same was not considered by the Government is the grievance. Thereafter the 2[nd] petitioner retired from service on 31.03.2019. Her pensionary and terminal benefits were fixed on the basis of the service records by treating her promotion as HSA(NS) only with effect from 01.06.2011, as evident by Ext.P9. Ext.P9 is the pension sanctioning order issued by the Accountant General. The grievance of the 2[nd] petitioner is that since she being an approved Upper Primary School Teacher having service from 1989 onwards, she is entitled to get her promotion approved from the actual date of promotion, i.e., with effect from 01.06.2010 onwards. A Rule 43 claimant have preference over protected hands is the contention of the petitioners. Hence the reasons stated by the 3[rd] and 4[th] respondents in not approving her promotion with effect from 01.06.2010 cannot be sustained is the submission. It is also the case of the petitioners that the non-execution of the bond by the 1[st] petitioner in accordance with GOP 10/10 cannot be taken as a ground to decline the rightful claim of the 2[nd] petitioner to get her promotion approved from the actual date of promotion. Hence this writ petition is filed with following prayers: I. To call for the records leading to the issuance of Ext.P3, P4 and P8 orders of the 4[th] and 3[rd] WP(C).No.3810/2022 **7** respondents respectively, and set aside the same by issuing a writ of certiorari. II. To issue a Writ of Mandamus directing the 4[th] respondent to approve the promotion of the 2[nd] petitioner as H.S.A (NS) w.e.f. 01.06.2010 on the basis of Ext.P2 appointment order issued by the 1[st] petitioner. III. To declare that the 2[nd] petitioner being a Rule 43 claimant working as UPSA with approval from 1989 under the management is having superior claim for the post of H.S.A(NS) under the management in preference to protected hands. IV. To declare that since 2[nd] petitioner a Rule 43 claimant was promoted in a retirement vacancy w.e.f 01.06.2010 the stipulation contained in G.O(P)No.10/10/G.Edn dated 12.01.2010 has no applicability with the facts and circumstances of the case, and 2[nd] petitioner is entitled to get approval of promotion from 01.06.2010 itself. V. To issue a Writ of Mandamus directing the 4[th] respondent to sanction and disburse the salary to the 2[nd] petitioner in the scale of H.S.A(NS) w.ef. 01.06.2010 after adjusting the salary given in the lower scale up to 31.05.2011, forthwith. ## AND - VI. To grant such other reliefs or orders as this Hon'ble Court may deem fit and proper in the above case, and to award costs. ## (SIC) ## 3. Heard the learned counsel for the petitioners and the learned Government Pleader. WP(C).No.3810/2022 **8** 4. The counsel for the petitioners reiterated the contentions raised in the writ petition. The counsel submitted that, admittedly the 2[nd] petitioner is a Rule 43 claimant and hence she has got preference for appointment and G.O(P) 10/10 which is an executive order will not curtail the right of a claimant under Rule 43 of Chapter XIV (A), KER. The counsel for the petitioners also relied on Exts.P10 to P12 judgments to support his contentions. The Government Pleader, on the other hand, took me through the counter affidavit filed by the 4[th] respondent and submitted that the approval is not granted to the 2[nd] petitioner since the 1[st] petitioner has not executed the bond as laid down in G.O(P) 10/10. 5. This Court considered the contentions of the petitioners and the Government Pleader. The short point to be decided is whether a Rule 43 Chapter XIV (A) KER claimant is entitled to a preference over the stipulations in an executive order passed by the Government as G.O(P) 10/10. The Government issued a ban for creating new posts in government/aided schools and colleges as per G.O.(P). No.817/1/Fin dated 11.06.2001. Considering the practical difficulties in the schools and colleges because of the above ban, the same was relaxed as per G.O.(P). No.303/01/G.Edn. Dated 05.10.2001, G.O.(P). No.377/01/G.Edn. WP(C).No.3810/2022 **9** Dated 28.12.2001, G.O.(P). No.80/02/G.Edn. Dated 27.04.2004, G.O.(P). No.159/04/G.Edn. dated 15.06.2004 and G.O.(P). No.317/05/G.Edn dated 17.08.2005. As per G.O.(P). No.317/05/G.Edn, it is stated that the ban for appointment will continue for the vacancies occurred because of the additional division from the academic year 2006-2007 onwards. But there were appointments by school managers violating the above order. Consequently there were requests for approving those appointments. Considering those requests, the Government decided to withdraw the ban for appointment to the vacancies occurred because of additional division with certain conditions as per G.O(P) 10/10. A perusal of G.O(P) 10/10 will show that the same was issued to relax the ban of appointments to vacancies occurred because of additional divisions from 2006-07 onwards. It is clear from the last sentence of first paragraph of G.O(P) 10/10 which reads like this: “ഇവര്‍ക നിയമനാംഗീകാരം നല്‍കണമെന്ന നിരന്തരമായ അഭ്യര്‍ത്ഥനകള്‍ പരിഗണിചച സര്‍ക്കാര്‍ ഇക്കാര്യം വിശദമായി പരിശ ോധിക്ുയും അധിക ഡിവിഷന്‍ 2006-07 അദ ഒഴിവുകളില്‍ ധയന വര്‍ഷം മുതല്‍ ഏര്‍ പ്പെടുത്തിയിരുന്ന നിയമന നിയ(ന്തണം, താഴെപ്പറയുന്ന നിബന്ധനകള്‍ക വിധേയമായി പിന്‍വലിക്കുവാന്‍ ഉത്തരവാകുകയും ചെയ്യുന്നു -” Therefore G.O(P) 10/10 is mainly applicable to the vacancies which occurred due to additional divisions. But the Government WP(C).No.3810/2022 **10** pleader took me through clause (V) of para 1 of G.O(P) 10/10 and contended that the above government order is applicable to future vacancies also. It will be beneficial to extract clause (V) of para 1 of G.O(P) 10/10: “(v) 2006-07 മുതല്‍ 2009-10 വരെയുള്ള അദധയന വര്‍ ഷങ്ങളില്‍ എയ്ഡഡ് സ്‌കൂളുകളിലെ അധിക ഡിവിഷന്‍ ഒഴിവുകളില്‍ നടത്തിയ നിയമനങ്ങള്‍ അംഗീകരിക്കുന്നതിന്, അടുത്ത അദധയന വര്‍ഷം (2010-11) മുതല്‍ ടി സ്‌കൂളുകളില്‍ പുതിയ ഒഴിവുകള്‍ വരുന്ന ഘട്ടത്തില്‍, 2006-07 മുതല്‍ 2009-10 വരെയുളള കാലയളവില്‍ നിയമിതരായവര്‍കക തുല്യമായ എണ്ണം പ്രൊട്ടക്റ്റഡ് അധ്യാപകരെ/അദധാപകേതര ജീവനക്കാരെ നിയമിക്കാമെനന സമ്മതിച്ചുകകൊണ്ടുള്ള നനോട്ടറി സാക ഷപ്പെടുത്തിയ ഒരു സമ്മതപത്രം അമ്പത് രൂപയുടെ മുദ്രപത്രത്തിൽ അതത് സ്‌കൂള്‍ മാനേജര്‍മാര്‍ ബന്ധപ്പെട്ട വിദ്യാഭ്യാസ ഓഫീസര്‍കക സമര്‍പ്പിക്കേണ്ടതാണ്. ഓരരോ വിദ്യാഭ്യാസ ജില്ലയിലും ഇപ്രകാരം ലഭിക്കുന്ന സമ്മതപത്രത്തിന്റെ പകര്‍പ്പുകള്‍ വിദ്യാഭ്യാസ ഓഫീസര്‍മാര്‍ സമാഹൃതമായി സര്‍ക്കാരിലേകക ലഭ്യമാക്കേണ്ടതാണ്.” It only says that the vacancies which occurred from 2010-11 onwards can be filled up only after appointing protected teachers equal to the number of teachers appointed during the period 2006-07 to 2009-10 because of additional vancies. A bond to that effect is to be executed by the Managers in a stamp paper and is to be submitted to the Educational Officer concerned. But the 2[nd] petitioner in this case was promoted to an established retirement vacancy as a Rule 43 Chapter XIV (A) KER claimant. There is no dispute on that and the same is clear from Ext.P2 order of promotion of the 2[nd] petitioner. It may be true that, because of the WP(C).No.3810/2022 **11** promotion of the 2[nd] petitioner from the post of UPSA, the arising vacancy in UPSA may have to be filled up as per G.O(P) 10/10. But G.O(P) 10/10 is not applicable to the retirement vacancy of HSA(NS) in which the 2[nd] petitioner was promoted as a statutory Rule 43 claimant. 6. The right of the 2[nd] petitioner who is a claimant under Rule 43 will not be affected by G.O(P) 10/10. It is a well settled position that an executive order issued by the state will not override a statutory rule (see the judgment in **Unni Narayanan K. and Others v. State of Kerala and Others [2009 (2) KHC 550]** , **Moosakutty Pothuvalappan v. District Educational Officer, Wandoor and Others [2009 (3) KHC 446]** and **State of West Bengal and Another v. Madan Mohan Ghosh and Others [2002 (9) SCC 177]** ). Moreover, on a reading of G.O.(P). No.52/11/G.Edn dated 26.02.2011, G.O.(P). No.56/11/G.Edn dated 26.02.2011 and G.O.(MS)No.347/98/G.Edn dated 01.09.1988, it is clear that a Rule 43 Chapter XIV (A) KER claimant has got preference in appointment. Therefore G.O(P) 10/10 is not a reason to deny the approval of the 2[nd] petitioner’s promotion with effect from 01.06.2010 who was a claimant under Rule 43 Chapter XIV (A) KER. The right of a teacher under Rule 43 Chapter XIV (A) KER cannot be infringed by the state through WP(C).No.3810/2022 **12** an executive order. Therefore the prayers in this writ petition are to be allowed. Therefore, this writ petition is allowed in the following manner: 1. Exts.P3, P4 and P8 are set aside. 2. The 4[th] respondent is directed to approve the promotion of the 2[nd] petitioner as High School Assistant (Natural Science) with effect from 01.06.2010 on the basis of Ext.P2 appointment order issued by the 1[st] petitioner, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. 3. Based on the above order, the consequential benefits including arrears of salary and other consequential pensionary benefits shall be disbursed to the 2[nd] petitioner, as expeditiously as possible, at any rate, within a period of three months from the date on which the 4[th] respondent passed the approval order. Sd/- **P.V.KUNHIKRISHNAN JUDGE** JV WP(C).No.3810/2022 **13** ## **`APPENDIX OF WP(C) 3810/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`PHOTOCOPY OF THE ORDER ISSUED BY THE NATIONAL`| ||`COMMISSION`<br>`FOR`<br>`MINORITY`<br>`INSTITUTIONS,`| ||`GOVERNMENT OF INDIA DATED 28.5.2012`| |`Exhibit P2`|`PHOTOCOPY OF THE ORDER ISSUED BY THE 1ST`| ||`PETITIONER DATED 1.6.2010 PROMOTING THE 2ND`| ||`PETITIONER AS H.S.A (NS)`| |`Exhibit P3`|`PHOTOCOPY OF THE ORDER NO B6/3115/10/K.DIS`| ||`DATED 19.1.2011, ISSUED BY 4TH RESPONDENT`| |`Exhibit P4`|`PHOTOCOPY OF THE ORDER NO B6/31650/11/K.DIS`| ||`DATED 6.4.2011, ISSUED BY 3RD RESPONDENT`| |`Exhibit P5`|`PHOTOCOPY OF THE ORDER NO B6/8134/2011/D.DIS`| ||`DATED 20.12.2011, ISSUED BY 4TH RESPONDENT`| |`Exhibit P6`|`PHOTOCOPY OF REQUEST MADE BY THE 2ND`| ||`PETITIONER DATED 9.8.2016`| |`Exhibit P7`|`PHOTOCOPY OF PETITION SUBMITTED BY THE 1ST`| ||`PETITIONER BEFORE THE 3RD RESPONDENT DATED`| ||`29.3.2017`| |`Exhibit P8`|`PHOTOCOPY OF ORDER NO B6/16244/2016/K.DIS`| ||`DATED 7.7.2017 ISSUED BY THE 3RD RESPONDENT`| |`Exhibit P9`|`PHOTOCOPY OF PENSION SANCTIONING ORDER ISSUED`| ||`BY THE ACCOUNT GENERAL DATED 9.7.2019`| |`Exhibit P10`|`PHOTOCOPY OF JUDGMENT IN WPC NO 6039/2012 AND`| ||`CONNECTED CASES DATED 18.2.2015`| |`Exhibit P11`|`PHOTOCOPY OF JUDGMENT IN WPC NO 15998/2015`| ||`DATED 28.7.2015`| |`Exhibit P12`|`PHOTOCOPY OF JUDGMENT IN WPC NO 15998/2015`| ||`DATED 28.7.2015 JUDGMENT IN WPC NO 11360/2016`| ||`DATED 21.12.2016`| RESPONDENTS EXTS : NIL TRUE COPY P.A.TO JUDGE