The Deputy Director of Education, Malappuram; District Educational Officer, Wandoor; Assistant Educational Officer, Melattoor v. Sharmina V.M, U.P.S.A, W/o Muhsin C.H, Aided Upper Primary School, Veliyan Cheri; Headmaster, Aided Upper Primary School, Veliyan Cheri; Manager, Aided Upper Primary School, Veliyan Cheri

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 7TH DAY OF AUGUST 2017/16TH SRAVANA, 1939 WA.No. 135 of 2017 IN WP(C).29317/2016 ---------------------------------------[AGAINST THE JUDGMENT IN WP(C) 29317/2016 of HIGH COURT OF KERALA DATED 07-09-2016] APPELLANTS(S)/RESPONDENTS 1 TO 3: ------------------------------- 1. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM-679 001. 2. THE DISTRICT EDUCATIONAL OFFICER,WANDOOR, MALAPPURAM DISTRICT-679 326. 3. THE ASSISTANT EDUCATIONAL OFFICER, MELATTOOR, MALAPPURAM DISTRICT-679 326. BY GOVERNMENT PLEADER MR.E.S.ASHRAF. RESPONDENTS(S)/PETITIONER AND RESPONDENTS 4 AND 5: ------------------------------------------------- 1. SHARMINA .V.M, U.P.S.A, W/O. MUHSIN C.H, AIDED UPPER PRIMARY SCHOOL, VELLIYANCHERI, MALAPPURAM DISTRICT. 2. HEADMASTER, AIDED UPPER PRIMAR SCHOOL, VELLIYANCHERRI, MALAPPURAM DISTRICT-679326. 3. THE MANAGER AIDED UPPER PRIMARY SCHOOL, VELLIYANCHERI, MALAPPURAM DISTRICT-679326. R3 BY ADV. SRI.T.S.NEJIMUDDIN R2 BY ADV. SMT.LAKSHMI RAJAN R1 BY ADV. SMT.A.R.PRAVITHA R1 BY ADV. SRI.K.MOHANAKANNAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.SURENDRA MOHAN & MARY JOSEPH, JJ.** **---------------------------------------------------------** ## **W.A.No.135 of 2017** **---------------------------------------------------** Dated this the 7th day of August, 2017 ## **JUDGMENT** ## **K.SURENDRA MOHAN , J.** The State is in appeal challenging the judgment dated 7.9.2016 of the learned Single Judge allowing W.P(C) No.29317 of 2016. The first respondent herein is the writ petitioner. The appellants were respondents 1 to 3 in the writ petition. The writ petition was filed by the first respondent challenging Ext.P2 order of the third appellant by which approval was declined to her appointment as an Upper Primary School Assistant ('UPSA' for short) in the school of the third respondent. 2. The first respondent was appointed as UPSA in a promotion vacancy in the school of the third respondent, with effect from 1.6.2016. A copy of her appointment order is Ext.P1 dated 1.6.2016. However, approval to her appointment was W.A.NO.135 OF 2017 -:2:- rejected as per Ext.P2 dated 27.6.2016 by the third appellant. The reason for rejection of approval was that, the first respondent had not studied Malayalam for her S.S.L.C. Ext.P4 Government Order dated 19.3.2002 was also challenged in the writ petition. 3. The learned Single Judge heard the counsel for the first respondent as well as the learned Government Pleader and allowed the writ petition as per the judgment appealed against. It has been found by the learned Single Judge that, Ext.P4 Government Order runs counter to the express provisions in the Kerala Education Rules,1959 ( hereinafter referred to as 'the KER' for short). Therefore, it is held that Government Orders prescribing qualifications cannot supplant the qualifications prescribed in the Rules and that in the event of conflict, the Rules should prevail. The third appellant has been directed to consider the question of granting approval to the appointment of the first respondent, afresh and in the light of the qualifications prescribed by the K.E.R. ## W.A.NO.135 OF 2017 -:3:- 4. According to the learned Government Pleader who appears for the appellants, since the first respondent had not studied Malayalam for her S.S.L.C., she was not qualified to be appointed as UPSA in view of Ext.P4. The learned Government Pleader places reliance on the decision of a learned Single Judge of this Court in **M.P.Lakshmi** v. **Assistant Educational Officer** [1966 KLT 1042] and a Division Bench decision of this Court in v. **Baiju Suguna Prakash** [2003(2) KLT 182] to support his contention that the Government has the power to prescribe qualifications by issuing Government Orders to supplement the qualifications prescribed by the Rules. The learned Government Pleader on the above grounds seeks interference with the judgment appealed against. 5. Advocate K.Mohanakannan, who appears for the first respondent, on the other hand, points out that, as evident from the clarification submitted by the Manager of the school to the third W.A.NO.135 OF 2017 -:4:- appellant, the first respondent is a person, who has studied Malayalam, since she has passed her B.A.Degree with Malayalam as her second language. Our attention is drawn to the provisional certificate issued by the University of Calicut to the first respondent evidenced herein by Ext.P1 and to her Consolidated Grade Card to point out that she had studied Malayalam in all the semesters of her degree course. She has also passed her B.A.Degree Examination. Therefore, according to the learned counsel, she is fully qualified to be appointed as a UPSA. Though Ext.P4 Government Order has been relied upon to decline approval to her appointment, it is pointed out by the learned counsel that as per Ext.P5 dated 4.6.2002, going by the revised qualification of UPSAs, a degree in any subject and B.Ed. conferred by or recognised by the Universities in Kerala constitute sufficient qualification. Since the first respondent was appointed as UPSA in the year 2016, it is contended that she is entitled to take the benefit W.A.NO.135 OF 2017 ## -:5:- of Ext.P5. 6. Heard. It is no doubt true that Ext.P4 contains a stipulation that the candidates, who have not studied the regional language 'Malayalam' either under Part I or Part II or as Medium of Instruction of S.S.L.C., would not be appointed to the post of UPSA. However, Ext.P4 has been subsequently clarified by Ext.P5 dated 4.6.2002, as rightly pointed out by the counsel for the first respondent. Going by Ext.P5, possession of a degree in any subject and B.Ed conferred by or recognised by the Universities in Kerala is sufficient qualification for being appointed as UPSA. Admittedly, the first respondent possesses the said qualifications. 7. We also notice that she is a person, who has passed her B.A.Degree in Literature with 'Malayalam' as second language. Therefore, the fact that she has sufficient proficiency in Malayalam cannot be disputed. She is also a person whose mother tongue is Malayalam. Therefore, we find absolutely no justification for the W.A.NO.135 OF 2017 -:6:- rejection of approval to her appointment, as done in Ext.P2. The learned Single Judge has therefore rightly interfered with the said proceedings and directed reconsideration of the said question. 8. What the learned Single Judge has held is only that Government Orders prescribing qualifications cannot supplant the qualifications prescribed by the Rules and that in the event of conflict, the rules should prevail. There cannot be any doubt on the above aspect, for the reason that the executive power of the State under Article 162 of the Constitution of India has been made subject to, and limited by, the legislative power conferred by the Constitution on the State. Therefore, the Rule making power conferred by the Statute would prevail over executive orders issued by the Government wherever there is conflict between the two. The qualification prescribed by the Government Orders can apply only to supplement the qualifications prescribed by the rules, in this case in the KER. The qualifications for appointment as a W.A.NO.135 OF 2017 -:7:- UPSA are prescribed by Rule 3 of Chapter XXXI KER. As per the said Rule, in addition to a pass in S.S.L.C.Examination, possession of a degree in any subject and B.Ed. conferred by or recognised by the Universities in Kerala are prescribed as sufficient qualifications. In view of the above rule position, no qualification that has the effect for conflicting with the same can be prescribed by a Government Order. Therefore, in so far as appointment as UPSA is concerned, the Government Order Ext.P4 cannot supplant the provisions of Rule 3 of Chapter XXXI of KER. The above aspect is made clear. 9. Having considered the respective contentions, we find no grounds to interfere with the judgment of the learned Single Judge. The appeal fails and is accordingly dismissed. The third appellant shall consider and pass appropriate orders on the question of grant of approval to the first respondent, as expeditiously as possible, at any rate within a period of four weeks from the date of receipt of a W.A.NO.135 OF 2017 -:8:- copy of this judgment. The Writ Appeal is accordingly dismissed. sd/- ## **K.SURENDRA MOHAN, Judge.** sd/- **MARY JOSEPH, Judge.** MBS/ -true copy- P.S.TO JUDGE W.A.NO.135 OF 2017 -:9:- ## W.A.NO.135 OF 2017 -:10:-