Shilaja S. v. Secretary to Government of Kerala, Department of General Education, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 10TH DAY OF AUGUST 2012/19TH SRAVANA 1934** **WP(C).No. 9466 of 2012 (G) --------------------------** ## **PETITIONER(S): -------------** **SMT.SHILAJA.S., AGED 48 YEARS W/O.P.RAJENDRAN PRASAD, AGED 48 YEARS H.S.A.(MALAYALAM), MILADE SHERIEF MEMORIAL HIGHER SECONDARY SCHOOL, CHATHINAMKULAM CHANDANATHOPE P.O., KOLLAM, RESIDING AT PRASANTHI, AMBAZHA VAYAL, PANAYAM P.O., KOLLAM.** **BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM).** **RESPONDENT(S): --------------** **1. THE SECRETARY TO GOVERNMENT OF KERALA DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM PIN- 691.** **2. DEPUTY DIRECTOR OF EDUCATION, KOLLAM, PIN-691 014.** **3. THE DISTRICT EDUCATION OFFICER, KOLLAM, PIN-691 014.** **4. THE MANAGER, MILADE SHERIEF MEMORIAL HIGHER SECONDARY SCHOOL, CHATHINAMKULAM, CHANDANATHOPE P.O. KOLLAM, PIN-691 014.** **5. THE HEAD MASTER, MILADE SHERIEF MEMORIAL HIGHER SECONDARY SCHOOL, CHATHINAMKULAM, CHANDANATHOPE P.O., KOLLAM PIN-691 014.** **BY GOVERNMENT PLEADER SMT.M.T.SHEEBA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 9466 of 2012 (G)** ## APPENDIX ## **PETITIONER(S) EXHIBITS :-** |**EXT.P1**|**:**|**TRUE COPY OF THE APPOINTMENT ORDER DATED 11/6/1985.**| |---|---|---| |**EXT.P2**|**:**|**TRUE COPY OF THE APPOINTMENT ORDER DATED 9/9/85**| |||**CONTAINING APPROVAL OF THE DEPARTMENT ISSUED BY THE**| |||**MANAGER.**| |**EXT.P3**|**:**|**TRUE COPY OF THE LETTER DATED 8/2/2011 OF THE MANAGER**| |||**TO THE D.E.O.**| |**EXT.P4**|**:**|**TRUE COPY OF THE LETTER NO.B4/4687/10 DATED 23/2/2011**| |||**ISSUED BY THE D.E.O. TO THE GOVERNMENT.**| |**EXT.P5**|**:**|**TRUE COPY OF THE LETTER NO.11230/E3/2011/G.EDN. DATED**| |||**11/4/2011 ISSUED BY THE GOVERNMENT TO THE D.E.O.**| |**EXT.P6**|**:**|**TRUE COPY OF THE G.O.(P) NO.220/05/G.EDN. DATED**| |||**19/7/2005.**| |**EXT.P7**|**:**|**TRUE COPY OF THE G.O.(P) NO.165/08/G.EDN. DATED**| |||**19/9/2008.**| |**EXT.P8**|**:**|**TRUE COPY OF THE G.O.(P) NO.160/09/G.EDN. DATED**| |||**4/8/2009.**| |**EXT.P9**|**:**|**TRUE COPY OF THE REPRESENTATION DATED 20/5/2011**| |||**PREFERRED BY THE PETITIONER BEFORE THE GOVERNMENT.**| |**EXT.P10**|**:**|**TRUE COPY OF THE ARGUMENT NOTES DATED 22/12/2011**| |||**SUBMTITED BY THE PETITIONER.**| |**EXT.P11**|**:**|**TRUE COPY OF THE G.O.(RT.) NO.765/2012/G.EDN. DATED**| |||**17/2/2012.**| |**EXT.P12**|**:**|**TRUE COPY OF THE ORDER NO.388/2012-2013 DATED 1/3/2012**| |||**ISSUED BY THE MANAGER.**| |**EXT.P13**|**:**|**TRUE COPY OF THE G.O(P) NO.209/12/G.EDN. DATED**| |||**27-6-2012.**| **RESPONDENTS' EXHIBITS : NIL.** **//TRUE COPY//** **amk** **P.A TO JUDGE** ## **P.N.RAVINDRAN, J. ----------------------------------------W.P(C).No.9466 of 2012 ----------------------------------------Dated this the 10[th] day of August, 2012** ## **JUDGMENT** The petitioner was appointed as HSA (Malayalam) in Milade Sherif Memorial Higher Secondary School, Chathinamkulam in Kollam district in the maternity leave vacancy of Smt.P.Rugmini during the period from 11.6.1985 to 8.9.1985 by Ext.P1 appointment order dated 11.6.1985. At the time of appointment, the petitioner possessed, besides B.A. Degree in Malayalam Literature, B.Ed. Degree in English and History. The petitioner's appointment as per Ext.P1 in the maternity leave vacancy was approved. She was re-appointed in the leave vacancy of Smt.P.Rugmini, who had availed leave on medical grounds, during the period from 9.9.1985 to 12.11.1985 by Ext.P2 order dated 9.9.1985. The said appointment was also approved. On cessation of that vacancy she was thrown out of service. The petitioner was thereafter re-appointed as UPSA with effect from 1.8.1988 in a regular vacancy. The said appointment was approved and she continued as UPSA till 31.5.2010. **W.P(C).No.9566 of 2012** -:2:- 2. With effect from 1.6.2010 the petitioner was promoted and appointed as HSA (Malayalam) in a regular vacancy. The Manager forwarded the order appointing the petitioner as HSA (Malayalam) along with a proposal to approve her appointment, to the District Educational Officer, Kollam. The District Educational Officer, Kollam, entertained a doubt as to whether the petitioner is qualified to be appointed as HSA (Malayalam). He thereupon sent Ext.P4 letter dated 23.2.2011 to the Secretary to Government, General Education Department, requesting the Government to clarify whether the petitioner is eligible to be appointed as HSA (Malayalam) in view of the stipulations contained in G.O.(P) No.160/09/G.Edn. dated 4.8.2009, a copy of which is on record as Ext.P8. In that letter the District Educational Officer also pointed out that the petitioner has an approved service in two spells as HSA (Malayalam) in the very same school. The Government thereupon sent Ext.P5 letter dated 11.4.2011 informing the District Educational Officer that the petitioner is not eligible to be appointed as HSA (Malayalam) as she lacks the prescribed qualification. On coming to know of Ext.P5 letter the petitioner submitted Ext.P9 representation dated 20.5.2011 before the Secretary to Government of Kerala, General Education Department, requesting the Government to permit her to continue **W.P(C).No.9566 of 2012** -:3:- as HSA (Malayalam). The petitioner thereafter filed W.P.(C) No.14488 of 2011 in this Court seeking an expeditious disposal of Ext.P9 representation. This Court disposed of the said writ petition by the judgment delivered on 30.6.2011 with a direction to the Government to consider Ext.P9 representation and pass appropriate orders thereon within a period of five months, after affording the petitioner an opportunity of being heard. Pursuant thereto the Secretary to Government heard the petitioner on 13.12.2011 and thereafter, the petitioner submitted Ext.P10 argument notes dated 22.12.2011. The Government considered Ext.P9 representation and Ext.P10 argument notes and passed Ext.P11 order dated 17.2.2012 holding that the petitioner is not qualified to be appointed as HSA (Malayalam). The Government accordingly held that her request to continue as HSA (Malayalam) with effect from 1.6.2010 cannot be granted. Consequently the Manager of the school issued Ext.P12 proceedings dated 1.3.2012 reverting her to the category of UPSA with effect from 1.6.2010. Hence this writ petition challenging Ext.P11 Government order and Ext.P12 proceedings of the Manager. 3. The main contention raised by the petitioner is that clause (b) of sub-rule (2) of rule 2 of Chapter XXXI of the Kerala Education Rules does not stipulate that a person seeking **W.P(C).No.9566 of 2012** -:4:- appointment as HSA (Malayalam) should possess a B.Ed. Degree in Malayalam and as the rules have not been amended no reliance can be placed on Ext.P8 Government order to hold that her appointment is not in order. Alternatively, it is contended, relying on Ext.P13 Government order dated 27.6.2012, that the Government have exempted certain categories of teachers from the operation of Ext.P8 Government order dated 4.8.2009, that the petitioner is entitled to the benefit of the aforesaid Government order and therefore, for that reason also, the impugned order is liable to be set aside. 4. I heard Sri.C.Unnikrishnan, learned counsel appearing for the petitioner and Smt.M.T.Sheeba, learned Government Pleader appearing for the respondent. I have also gone through the pleadings and the materials on record. The short question that arises for consideration in this writ petition is whether the petitioner, who has approved service as HSA (Malayalam) during the period from 11.6.1985 to 8.9.1985 and from 9.9.1985 to 12.11.1985 and as UPSA from 1.8.1988 onwards till 31.5.2010, is qualified and eligible to be appointed as HSA (Malayalam) with effect from 1.6.2010. The qualification for appointment to the post of HSA (Malayalam) is set out in rule 2(2)(b)(i) of Chapter XXXI of the Kerala Education Rules which reads as follows:- -:5:- ## **W.P(C).No.9566 of 2012** ## _“2(2)(b)(i)_ _**High School Assistant**_ _**(Malayalam)** :- A Degree in Malayalam or Malayalam as one of the two optional Subjects under Pattern II of Part III and B.Ed/B.T./L.T. conferred or recognised by the Universities in Kerala: or_ _A title of Oriental learning in Malayalam awarded by the Universities in Kerala and certificate in Language Teachers Training issued by the Commissioner for Government Examinations, Kerala.”_ It is not stipulated in rule 2(2)(b)(i) of Chapter XXXI of the Kerala Education Rules that a person seeking appointment as HSA should possess a B.Ed. Degree in the concerned language. However, by Ext.P8 Government order dated 4.8.2009 the Government, in consultation with the Kerala Public Service Commission, stipulated that any person seeking appointment as HSA in any language should possess a B.Ed. Degree in the concerned language itself. The Government also ordered that a formal amendment to the Kerala Education Rules will be issued separately. However, no formal amendment was issued. In other words, the Government did not amend rule 2 of Chapter XXXI of the Kerala Education Rules in conformity with its decision evidenced by Ext.P8. Later, by Ext.P13 order dated 27.6.2012 the Government granted exemption to certain categories of teachers from the purview of ## **W.P(C).No.9566 of 2012** -:6:- Ext.P8 order and directed that a formal amendment in that regard will also be issued separately. That amendment also has not yet been introduced to the Kerala Education Rules. It is now well settled by a series of decisions of this Court that when the field is occupied by a statutory rule, it cannot be governed by an executive order. Exts.P8 and P13 orders cannot therefore, have any efficacy. Interpreting rule 2(2)(b)(i) of Chapter XXXI of the Kerala Education Rules, a learned single Judge of this Court has recently held in _**Mini Antony v. District Educational Officer**_ , 2012 (1) KLT 927 that the rules do not stipulate that a teacher aspiring to the post of HSA (Malayalam) should possess a B.Ed. Degree in Malayalam. Reliance was placed on the decision of a Full Bench of this Court in _**Manager, M.P.V.H.School v. George**_ , 2003(1) KLT 935 in support of the said conclusion. In such circumstances, as the Kerala Education Rules has not been amended to stipulate that a person aspiring to the post of HSA (Malayalam) should possess a B.Ed. Degree in Malayalam, the stand taken by the Government in Ext.P11 cannot be sustained. Necessarily therefore, it has to be held that the petitioner is entitled to have her appointment as HSA (Malayalam) approved, if the appointment is otherwise in order. Consequently Ext.P12 order issued by the Manager reverting her to the category of ## **W.P(C).No.9566 of 2012** -:7:- UPSA will have to be set aside. I accordingly allow the writ petition, set aside Ext.P5 and P11 Government orders and Ext.P12 proceedings dated 1.3.2012 issued by the Manager of the school. The District Educational Officer, Kollam, shall take up the proposal submitted by the Manager and approve the appointment of the petitioner as HSA (Malayalam) with effect from 1.6.2010, if the appointment is otherwise in order. Final orders in the matter shall be issued expeditiously and in any event within one month from the date on which the petitioner produces a certified copy of this judgment before the District Educational Officer, Kollam. Needless to say, in the event of the petitioner's appointment being approved she will be entitled to all consequential service benefits including salary and allowances, the arrears of which shall be disbursed to her expeditiously thereafter. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P(C).No.9466 of 2012 ----------------------------** ## **JUDGMENT** **10[th] August, 2012**