W.A.No.1296 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 05TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941** ## **WA.No.1296 OF 2017** **JUDGMENT IN WPC 36764/2010 DATED 11-01-2017 OF HIGH COURT OF KERALA** **APPELLANT/S: R.P.REENA UPPER PRIMARY SCHOOL,ASSISTANT K.P.M HIGH SCHOOLKRISHNAPURAM, VALIYARATHALA, OORUTTAMBALAM P.O,THIRUVANANTHAPURAM 695 542** ## **BY ADV. SRI.MILLU DANDAPANI** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARYGENERAL EDUCATION**| ||**DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM 695 001**| |**2**|**DIRECTOR OF PUBLIC INSTRUCTIONS**| ||**KEERALA, THIRUVANANTHAPURAM 695 032**| |**3**|**DISTRICT EDUCATIONAL OFFICER**| ||**NEYYATTINKARA 695 632**| |**4**|**THE MANAGER, K.P.M HIGH SCHOOLKRISHNAPURAM**| ||**VALIYARATHALA,OORUTTAMBALAM P.O,THIRUVANANTHAPURAM**| ||**DISTRICT 695 542**| |**5**|**R.S GEENA, HIGH SCHOOL ASSISTANT (HINDI)K.P.M HIGH**| ||**SCHOOL, KRISHNAPURAM, VALIYARATHALA, OORUTTAMBALAM**| ||**P.O, THIRUVANANTHAPURAM DISTRICT 695 542**| ||**BY ADV. SRI.SAJU JOHN**| ## **OTHER PRESENT:** ## **GP SRI.RAJI.T.BHASKER** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.1296 of 2017 -2- ## **JUDGMENT** ## V.G.Arun, J. The appeal is filed by the the 5[th] respondent in the writ petition. The writ petitioner was a Rule 51A claimant to the post of HSA (Hindi) in the KPM High School, Krishnapuram (“the School” for short). A permanent vacancy in the post of HSA (Hindi) arose in the School on 1.4.2002 and the petitioner was appointed with effect from 5.6.2002. The appointment was approved by the educational authorities. The appellant, a UPSA in the School, challenged the approval of petitioner's appointment on the ground that she had a claim for promotion to the post of HSA (Hindi) under Rule 43B of Chapter XIV A KER. The revision filed by the appellant was allowed by the DPI, setting aside the approval granted to the petitioner's appointment and directing to promote the appellant under Rule 43B of Chapter XIV A KER. The DPI relied on G.O.(M.S.) No.158/98/G.Edn dated W.A No.1296 of 2017 -3- 3.10.1998 to find the appellant qualified for appointment as HSA (Hindi), since in G.O.(M.S.) No.158/98/G.Edn, the Government had ordered the Acharya Course of the Kerala Hindi Prachar Sabha to be recognised as an alternate training qualification for appointment as Hindi Teacher in aided Upper Primary Schools and High Schools. 2. The petitioner challenged the DPI's order before the Government in revision and pending the revision, approached this Court by filing W.P.(C) No.9747 of 2004. By Ext.P7 judgment, the writ petition was allowed and the DPIs order set aside by this Court. Aggrieved, the appellant challenged Ext.P7 in W.A.No.2248 of 2007 and the Division Bench, finding that divergent judgments had been rendered on the issue raised in the writ appeal, referred the matter to the Full Bench. By Ext.P8 judgment, the Full Bench held that the writ petition was not maintainable since the appellant W.A No.1296 of 2017 -4- had already availed the remedy of revision before the Government. Consequently, the writ appeal was disposed of, and the Government directed to pass orders on the revision filed by the petitioner. _Status quo_ was directed to be maintained till orders are passed. 3. In accordance with the direction in Ext.P8 judgment, the Government passed Ext.P10 order upholding the order of the DPI and rejecting the petitioner's revision. The writ petition, from which this appeal arises, was thereupon filed seeking to quash Exts.P4 and P10 and to declare the appointment of the petitioner as HSA (Hindi) to be legal and valid. 4. In the writ petition, the petitioner assailed the legality of Exts.P4 and P10 on various grounds. It was submitted that as per Section 10 of the Kerala Education Act, a person can be appointed as Teacher in a school only if he W.A No.1296 of 2017 -5- possesses the qualification prescribed by the rules made under the Act. It was contended that the appellant did not have the training qualification prescribed in Rule 2 (iv) of Chapter XXXI of the KER and that the Acharya Course of the Kerala Hindi Prachar Sabha, up to and including the academic year 1969-70 alone, could be considered as the requisite training qualification, whereas the appellant had undergone the Acharya course only in the year 1998. That, under Rule 43B of Chapter XIV A, a Primary Teacher could claim promotion only if the teacher is having the qualification prescribed for the promotion post. It was contended that Ext.P5 Government order does not have the effect of overriding the statutory rules and that in the absence of amendment to Rule 2 (iv) of Chapter XXXI of the KER, the Government order could not have been relied on to hold that the appellant had the requisite qualification. The W.A No.1296 of 2017 -6- learned Single Judge set aside the impugned orders and held the petitioner to be entitled for approval of appointment as HSA (Hindi) with effect from 5.6.2002 and for all consequential benefits. The judgement is assailed on the ground that the learned Single Judge erred in finding that Ext.P5 order cannot be termed as an order passed in exercise of the power of the Government under Rule 3(2) of Chapter I of KER and that Ext.P5 being an administrative order, cannot have the effect of modifying the statutory rules. The appellant contends that Ext.P5 is complete and intact inasmuch as it is the decision taken by the Government to include a qualification as equivalent to the training qualification and only supplement the prescription under Rule 2 (iv) of Chapter XXXI of the KER . 5. In the light of the contentions raised, it would be appropriate to look at Rule 2 (iv) of Chapter XXXI of the KER, W.A No.1296 of 2017 -7- ## which reads as follows: - “ **(iv) High School Assistant (Hindi)** :- The candidate shall possess any one of the academic qualifications and a training qualification as specified below: ## **A. ACADEMIC QUALIFICATION** A degree in Hindi conferred or recognised by the Universities in Kerala; or A title of Oriental learning in Hindi awarded or recognised by the Universities in Kerala; or Praveen of the Dakshina Bharat Hindi Prachar Sabha, Madras with a pass in the S.S.L.C Examination conducted by the Commissioner for Government Examinations Kerala, or its equivalent; or Sahithyacharya of Kerala Hindi Prachar Sabha with a pass in S. S.L.C. Examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent. ## **B. TRAINING QUALIFICATIONS** B.Ed/B.T/L.T. conferred or recognised by the Universities in Kerala or Diploma or Certificate of Language Teachers' Training in Hindi issued by the Commissioner for Government Examinations, Kerala; or Diploma in Hindi Teachers Training issued by the Commissioner for Government Examinations, Kerala; or A pass in any one of the following examinations of the Kendriya Hindi Sikshan W.A No.1296 of 2017 -8- Mandal Agra namely: (i) Hindi Siksha Praveen; (ii)Hindi Sikshan Parangath ## (iii) Hindi Sikshan Nishnat **Explanation I** :- Persons who have successfully undergone Pracharak Diploma of the Dakshina Bharat Hindi Prachar Sabha upto and including the academic Year 1969-70 shall be considered to possess the requisite training qualification. **Explanation II** :- Persons who have successfully undergone the Course in Hindi Teachers Diploma course of the Regional Hindi Training College Gandhigram Madura during the academic year 1967-68 or prior to that year shall be considered to possess the requisite training qualifications. **Explanation IlII** - Persons who have successfully undergone the 'Acharya course of the Kerala Hindi Prachar Sabha] upto and including the academic year 1969-70 shall be considered to possess the requisite training qualification.” 6. As per Rule 43 B of Chapter XIV A, Lower Grade Language Teachers who have the prescribed qualification in that language, is entitled for promotion to the post of High School Assistant in that language at the time of occurrence of W.A No.1296 of 2017 -9- a vacancy. Therefore, the prescribed qualification under Chapter XXXI Rule 2(iv) is mandatory for promotion of a Lower Grade Language Teacher like the appellant, as High School Assistant in the same language. Admittedly, the appellant does not have the training qualification of Diploma in Hindi Teachers Training issued by the Commissioner for Government Examination, Kerala OR pass in (i) Hindi Siksha Praveen (ii) Hindi Sikshan Parangath or (iii) Hindi Sikshan Nishnat Examinations conducted by the Kendriya Hindi Sikshan Mandal Agra. By Explanation III to Rule 2(iv) of Chapter XXXI, persons who have successfully undergone the Acharya Course of the Hindi Prachar Sabha up to and including the academic year 1969-70 shall be considered to possess the requisite training qualification. Admittedly, the appellant has passed the Acharya Course conducted by the Hindi Prachar Sabha only in the year 1998. The contention W.A No.1296 of 2017 -10- of the appellant, based on Ext.P5 Government order, is that by Ext. P5, the Government had ordered that Acharya Course of the Hindi Prachar Sabha will be recognised as an alternate training qualification for appointment as Hindi Teacher in Aided Upper Primary Schools and Aided High Schools, and the appellant having passed the Acharya Course in 1998, he was having the requisite qualification. 7. The only issue to be considered is as to whether Ext.P5 has the effect of amending Explanation III to Rule 2 (iv) of Chapter XXXI of the KER. In this regard, it may be worthwhile to mention that in Ext.P5 itself the Government had directed the Director of Public Instructions to forward necessary proposals for amendments to the KER. Therefore, even the Government had only proposed to bring about amendments to the KER based on Ext.P5. Even otherwise, it is settled law that the provisions of the statute cannot be W.A No.1296 of 2017 -11- amended through executive orders. This position was explicitly laid down by the Honourable Supreme Court, way back in the year 1955 itself, in **Rai Sahib Ram Jawaya Kapur v. State of Punjab [AIR 1955 SC 549],** wherein it was held as follows:- “We see nothing in the terms of Article 309 of the Constitution which abridges the powers of the executive to act under Article 162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule, and it cannot in exercise of the executive power under Article 162 of the Constitution ignore or act contrary to that rule or act.” 8. This Court has also expressed the same view in **State of Kerala v. V.P.Bepathu Amma [W.A.No.1030 of** . **2014 dated 12.7.2016]** 9. The other contention of the appellant is based on Chapter XXXI Rule 1(6) which permit the entertainment or continuance of under qualified hands on the strength of W.A No.1296 of 2017 -12- general or special orders of the Government. By no stretch of imagination can Ext.P5 be perceived as a general or special order issued by the Government in exercise of the power under Chapter XXXI Rule 1(6), for the purpose of entertaining or permitting the continuance of under qualified hands. The order attempts to insert a qualification not available in the Rules; which can only be by incorporating it by way of an amendment; which though proposed was not carried out. In such circumstances, we find no valid ground in the appeal, justifying interference with the impugned judgment. Resultantly, the writ appeal is dismissed. No order as to costs. **Sd/-** **K.VINOD CHANDRAN JUDGE Sd/V.G.ARUN JUDGE** Scl/5.8