V.R. Sunanda v. State of Kerala & Others

**WP(C) NO. 1241 OF 2014** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945 WP(C) NO. 1241 OF 2014** ## **PETITIONER/S:** V.R. SUNANDA FULL TIME MENIAL, SDPY KPM HS, EDAVANAKKAD. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.AMMU PILLAI SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA ## **RESPONDENT/S:** |1|STATE OF KERALA| |---|---| ||REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL| ||EDUCATION DEPARTMENT, SECRETARIAT,| ||THIRUVANANTHAPURAM, PIN-695001.| |2|DIRECTOR OF PUBLIC INSTRUCTION| ||THIRUVANANTHAPURAM-695014.| |3|DEPUTY DIRECTOR EDUCATION| ||ERNAKULAM, KAKKANAD-682030.| |4|DISTRICT EDUCATIONAL OFFICER| ||ERNAKULAM, PIN-682011.| |5|MANAGER| ||S.D.P.Y.SCHOOLS, SREE NARAYANA NAGAR, PALLURUTHY,| ||KOCHI, PIN-682006.| ||BY ADVS.| **WP(C) NO. 1241 OF 2014** **2** ## GOVERNMENT PLEADER ## **OTHER PRESENT:** SRI BIJOY CHANDRAN, SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 1241 OF 2014** **3** **P.V.KUNHIKRISHNAN, J --------------------------------------W.P.(C.) No. 1241 of 2014 -------------------------------------Dated this the 4[th] day of January, 2024** ## **JUDGMENT** The petitioner was originally appointed as a Full Time Menial in SDPY KPM HS, Edavanakkad w.e.f 01.06.2005 against a regular vacancy. That appointment was approved. While continuing in service, she was retrenched from service w.e.f 15.07.2009 for accommodating Smt.T. Retnam, on her reversion from the post of LG Hindi Teacher to which she had been promoted from the post of Peon. It is stated in the writ petition that in view of her preferential claim under Rule 51A of Chapter XIV A KER, the 4[th] respondent Manager appointed the petitioner as FTM w.e.f 01.07.2010 onwards against an additional division vacancy. The District Educational officer, Ernakulam as per Ext.P1 order, declined to approve the appointment of the petitioner on the ground that the Manager **WP(C) NO. 1241 OF 2014** **4** failed to abide by the conditions in the declaration filed by him in the light of the GO (P) No. 10/10/G.Edn dated 12.01.2010. The appeal filed by the Manager challenging Ext.P1 order was rejected by the Deputy Director (Education), Ernakulam by Ext.P2 order. The Manager filed the revision against Exts.P1 & P2 as evident by Ext.P3. The petitioner also filed Ext.P4 revision against Exts.P1 and P2. It is submitted that as per Ext.P5 GO, it was held by the Government that against additional division vacancies, claimants under Rule 51A Chapter XIV A KER have got preferential claim for appointment. Therefore, it is submitted that in the light of Ext.P5, the 2[nd] respondent ought to have allowed Exts.P3 and P4 revisions. But revision was dismissed as per Ext.P7 order. Challenging Ext.P7 order, a revision petition under Rule 92 of Chapter XIV A KER was filed by the petitioner before the 1[st] respondent as evident by Ext.P8. The Government based on Ext.P8, approved the appointment of the petitioner as Full Time Menial only with effect from 01.06.2011 in the light of nonteaching staff package on the ground that the Manager has not **WP(C) NO. 1241 OF 2014** **5** complied with the agreement executed under the provisions of Ext.P11 Government Order. Ext.P10 is the order passed by the Government. Pursuant to Ext.P10, the District Educational Officer approved the appointment of the petitioner made by the Manager by order dated 01.07.2010 as Full Time Menial in the additional post of Full Time Menial that arose during the year 2010-11 w.e.f. 01.6.2011. Ext.P12 is the order. 2. The petitioner is aggrieved by Ext.P10 to the extend by it, her appointment is not approved w.e.f. 01.07.2010. The appointment was approved only w.e.f. 01.06.2011. Hence, this writ petition is filed with the following prayers : “i. call for the records leading to Ext.P10 and quash the same to the extent by it the appointment of the petitioner for the period from 01.07.2010 to 31.05.2011 is declined to be approved by the Issuance of a writ of certiorari or any other appropriate writ, order or direction. ii. declare that the petitioner is entitled to have her appointment approved w.e.f. 01.07.2010 and be given all consequential service and monetary benefits. iii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 and 4 to approve the appointment of the petitioner as Full Time Menial w.e..f 01.07.2010 and give her all consequential service and **WP(C) NO. 1241 OF 2014** **6** monetary benefits within a time limit to be fixed by this Hon'ble Court. and iv. grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this Writ Petition (Civil).” 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. After hearing both sides, I think there is some force in the argument of the petitioner. It is a settled position that an executive order issued by the State will not override a statutory rule. The right of a teacher under the statutory rule cannot be infringed by the State through an executive order. Admittedly, the petitioner is a claimant under Rule 51A Chapter XIVA KER. The Government restricted the approval of the petitioner for the following reason mentioned in Ext.P10. The same is extracted hereunder : “Government have examined the case in detail. It is true that the petitioner is a claimant under Rule 51 A Chapter XIV A KER. But G.O (P) No. 10/10/G.Edn dated 12/01/2010 casting an obligation on the manager to appoint protected hands. A **WP(C) NO. 1241 OF 2014** **7** protected Full Time Menial was available for deployment at the time of appointment of the petitioner. The manager is reluctant to comply with the clauses of the agreement. Unless the agreement has been maintained, the manger cannot insist for approval of other appointments. Government as per G.O read as 9th paper above introduced a comprehensive package for the non teaching staff of aided schools, whose approval of appointments have been pending due to various reasons including the clause to appoint protected hands proclaimed as per G.O. (P) No. 10/10/G.Edn dated 12.01.2010. Under the circumstance Government are pleased to approve the appointment of the petitioner as Full Time Menial in SDPYKPMHS, Edavanakkad, Ernakulam District with effect from 01/06/2011 in the light of non teaching staff package.” 5. Admittedly, the petitioner is a Rule 51A Chapter XIVA KER claimant. The petitioner has got a preferential right. This Court while considering a similar claim under Rule 43 Chapter XIVA KER in **Secretary Corporate Management of Schools Under the Society of the Order of Sacred Transfiguration Pathanapuram v. State of Kerala & Ors.** 2023 (1) KLJ 739 considered this point in detail. The relevant portion is extracted hereunder : “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 **WP(C) NO. 1241 OF 2014** **8** 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 :: 2009 ICO 752], **Moosakutty Pothuvalappan v. District Educational Officer, Wandoor and Others** [2009 (3) KHC 446 :: 2009 ICO 2757] and **State of West Bengal and Another v. Madan Mohan Ghosh and Others** [2002 (9) SCC 177 :: 2002 ICO 370]), 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 2nd 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 an executive order. Therefore the prayers in this writ petition are to be allowed.” 6. In the light of the above principle, I am of the considered opinion that the petitioner's appointment ought to have been approved w.e.f. 01.07.2010 itself and the consequential benefits also should be disbursed to the petitioner. Therefore, this writ petition is allowed in the following **WP(C) NO. 1241 OF 2014** **9** manner : 1) Exts. P10 & P12 to the extent by it, the appointment of the petitioner for the period from 01.07.2010 to 31.05.2011 is declined to be approved is set aside. 2) It is declared that the petitioner is entitled to have her appointment approved w.e.f. 01.07.2010. 3) The 4[th] respondent will pass consequential order and disburse the consequential benefits based on the claim of the petitioner as expeditiously as possible, at any rate, within four months from the date of receipt of a certified copy of this judgment. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS **WP(C) NO. 1241 OF 2014** **10** ## **APPENDIX OF WP(C) 1241/2014** PETITIONER EXHIBITS EXHIBIT P1 : TRUE COPY OF THE ORDER NO.B2/7376/10 DT.14-6-2011 OF R4 EXHIBIT P2 : TRUE COPY OF THE ORDER NO.B2/15470/11/K.DIS DT.20-1-2012 OF R2. EXHIBIT P3 : TRUE COPY OF THE REVISION PETITION DT.17-2-2012 FILED BY THE MANAGER TO R1. EXHIBIT P4 : TRUE COPY OF THE REVISION PETITION DT.19-3-2012 SUBMITTED BY THE PETITIONER TO R1. EXHIBIT P5 : TRUE COPY OF THE G.O. (RT)NO.622/11/G.EDN.DT.14-2-2011. EXHIBIT P6 : TRUE COPY OF THE JUDGMENT DT.28-5-2012 IN WPC 12128/2012 M OF THIS HON'BLE COURT. EXHIBIT P7 : TRUE COPY OF THE ORDER NO.K.DIS/EC3/17446/2012/DPI DT.28-7-2012 OF THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION. EXHIBIT P8 : TRUE COPY OF THE REPRESENTATION DT.18-8-2012 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXHIBIT P9 : TRUE COPY OF THE JUDGMENT DT.19-3-2013 IN WPC 7593/2013 Y OF THIS HON'BLE COURT. EXHIBIT P10 : TRUE COPY OF THE GO(RT)NO.3016/13/GEDN. DT.20-7-2013. **WP(C) NO. 1241 OF 2014** **11** EXHIBIT P11 : TRUE COPY OF THE G.O. (P)NO.10-10-GEDN. DT.12-1-2010. EXHIBIT P12 : TRUE COPY OF THE ORDER OF APPOINTMENT DT.1-7-2010 OF THE MANAGER, SDPY KPMHS, EDAVANAKAD.