WP(C).No. 6069 of 2010(G)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933** ## **WP(C).No. 6069 of 2010(G)** **-------------------------** ## **PETITIONER(S):** ## **----------------------** **1. TH MANAGER, (K.UDAYAKUMARAN ) P.K.HIGH SCHOOL, MANNAPRA, ALATHUR TALUK, PALAKKAD DISTRICT.** **2. INDULEKHA K, W/O. K.JAYAKUMAR HIGH SCHOOL ASSISTANT, P.K.HIGH SCHOOL, MANNAPRA, ALATHUR TALUK, PALAKKAD DISTRICT. RESIDING AT DEVAYANAM, AMAKKULAM, VADAKKENCHERRY, ALATHUR TALUK, PALAKKAD DISTRICT.** **3. SREEVALSAN V.P, S/O.A.VASUDEVAN U.P.SCHOOL ASSISTANT,P.K.HIGH SCHOOL, MANNAPRA, ALATHUR TALUK, PALAKKAD DISTRICT. RESIDING AT PALLATH HOUSE, PADUR , PALAKKAD DISTRICT.** **4. INDIRA K.R, W/O.K.P.SUDARSANA KUMAR HIGH SCHOOL ASSISTANT,P.K.HIGH SCHOOL,MANNAPRA, ALATHUR TALUK, PALAKKAD DISTRICT. RESIDING AT 'SOUPARNIKA, NAIR THARA, VADAKKENCHERRY PO, ALATHUR TALUK, PALAKKAD DISTRICT.** **5. BINDU N, W/O.C.RAJESH,U.P.SCHOOL ASSISTANT, P.K.HIGH SCHOOL,MANNAPRA, ALATHUR TALUK, PALAKKAD DISTRICT. RESIDING AT GEETHANJALY, MELARCODE PO ALATHUR TALUK,PALAKKAD DISTRICT.** **BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** **RESPONDENT(S):** ## **---------------------------** **1. STATE OF KERALA, REP BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD.** **4. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD.** **R1-R4 BY GOVERNMENT PLEADER SMT.NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 6069 of 2010(G) -------------------------------------** ## **APPENDIX** **-------------** ## **PETITIONER'S EXHIBITS** ## **------------------------------------** **EXT.P1. COPY OF THE APPOINTMENT ORDER OF PETITIONER NO.2 IN THE POST OF HSA (PHYSICAL SCIENCE)** **EXT.P2. COPY OF THE APPOINTMENT ORDER OF THE PETITIONER NO.3.** **EXT.P3. COPY OF THE APPOINTMENT ORDER OF THE PETITIONER NO.4 AS HSA (NATURAL SCIENCE).** **EXT.P4. COPY OF THE APPOINTMENT ORDER OF THE PETITIONER NO.5 AS UP SCHOOL ASSISTANT.** **EXT.P5. COPY OF THE ORDER DATED 22.5.2000 PASSED BY THE RESPONDENT NO.4 IN THE CASE OF SRI.SIBY K.JOHN.** **EXT.P6. COPY OF THE LETTER DATED 3.3.2001 SENT BY THE RESPONDENT NO.3 TO SRI.SIBY K.JOHN.** **EXT.P7. COPY OF THE ORDER DATED 14.1.2010 ISSUED BY THE RESPONDENT NO.4, IN THE CASE OF THE PETITIONER NO.4.** **EXT.P8. COPY OF GO (MS) NO.20/82/G.EDN. DATED 15.2.1982.** **EXT.P9 COPY OF GO (MS) 215/89/G.EDN. DATED 16.11.1989.** **EXT.P10. COPY OF GO (MS) NO.98/90/ G.EDN. DATED 25.5.1990.** **EXT.P11. COPY OF GO (MS) NO.208/90/ G.EDN. DATED 24.9.1990.** **EXT.P12. COPY OF GO (MS) NO.123/91/ G.EDN. DATED 5.8.1991.** **EXT.P13. COPY OF GO (MS) NO.347/98/ G.EDN. DATED 1.9.1998.** **EXT.P14. COPY OF GO (P) NO.178/2002/G.EDN DATED 28.6.2002** **EXT.P15. COPY OF GO (P) NO.46/2006/GEDN. DATED 1.2.2006** **EXT.P16. COPY OF THE CIRCULAR NO.38929/01/2009/G.EDN. DATED 19.11.2009.** **EXT.P17. COPY OF GO (P) NO.73/2006/GEDN. DATED 18.2.2006** **EXT.P18. COPY OF THE ORDER DATED 24.4.2006 PASSED BY THE RESPONDENT NO.1, IN THE CASE OF THARA VARGHESE OF P.K. HIGH SCHOOL, MANNAPRA.** **EXT.P19. COPY OF THE JUDGMENT DATED 27.5.2009 PASSED IN OP NO.36552/2002 ON THE FILE OF THIS HON'BLE COURT.** **EXT.P20. COPY OF THE G.O. (P) NO.52/11/GEN. EDN. DATED 26.02.2011.** **WP(C).No. 6069 of 2010(G)** **---------------------------------------** **EXT.P21. COPY OF THE LETTER DATED 10.11.2010 ISSUED BY THE RESPONDENT NO.3 TO THE MANAGER, LMHS MANGALAM DAM.** **EXT.P22. COPY OF THE DETAILS OF THE PROTECTED TEACHERS IN PALAKKAD REVENUE DISTRICT REGARDING HSA (PHYSICAL SCIENCE).** **EXT.P23. COPY OF THE APPLICATION DATED 23.6.11 BEFORE THE PUBLIC INFORMATION OFFICER ATTACHED TO THE OFFICE OF THE 3RD RESPONDENT.** **EXT.P24. COPY OF THE COMMUNICATION DATED 30.6.11. SENT BY THE PUBLIC INFORMATION OFFICER ATTACHED TO THE 3RD RESPONDENT.** **EXT.P25. COPY OF GO (MS) NO. 104/69/EDN. DATED 06.03.1969** ## **RESPONDENT'S EXHIBITS :** **---------------------------------------** **R3(A). COPY OF THE G.O. NO.1679/J2/2010 DATED 19.01.2010** **/ TRUE COPY /** **P.A. TO JUDGE** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 6069 of 2010** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 29th day of September, 2011.** ## **JUDGMENT** The first petitioner is the Manager of a high school and petitioners 2 to 5 are teachers working therein. As the proposal for approval of appointment of the teachers stands rejected, this writ petition has been filed. Ext.P7 is the order under challenge. The reason stated therein to reject the approval is that the Manager has to absorb a protected teacher in the high school section, as it is a newly upgraded one. 2. Petitioners 2 and 4 have been appointed by promotion from the post of U.P.S.A. as H.S.A. (Physical Science) and H.S.A. (Natural Science). The said vacancies arose when Shri V. Sivan, H.S.A. (Physical Science) retired on 30.6.2008 and Shri A.K. Sreekumaran, H.S.A. (Natural Science) retired on 31.3.2009. In the consequential vacancies petitioners 3 and 5 have been appointed as U.P.S.As. with effect from 1.7.2008 and 1.6.2009 respectively. 3. The petitioners' case is that petitioners 2 and 4 are claimants for promotion under Rule 43 of Chapter XIV-A K.E.R. Various Government Orders providing for absorption of protected hands are specific that the wpc 6069/2010 2 same is subject to the right of claimants under Rules 43 and 51A. Exts.P8 to P17 are relied upon in this context. It is submitted that the Government Orders, if any, providing for preference for appointment of protected teachers, cannot go against the statutory provisions, viz. Rules 43 and 51A of Chapter XIV-A K.E.R. Therefore, the claimants under Rule 43 have got a better right for promotion. It is pointed out that the U.P. School, viz. the pre upgraded school was established prior to 1979. Therefore, Rule 6(viii) of Chapter XIV-A or the Government Orders with regard to the absorption of protected teachers, cannot have any application for filling up of vacancies in the pre upgraded portion of the U.P. School and the appointment of petitioner 3 and 5 have therefore to be approved. 4. Heard learned counsel for the petitioners Shri Sajan Varghese and learned Govt. Pleader Smt. Nisha Bose. 5. Learned counsel for the petitioners invited my attention to Rule 43 of Chapter XIV-A K.E.R. as well as the various Government Orders produced in the writ petition. My attention was also invited to Exts.P19 judgment as well as P20 Government Order which was issued recently, to contend for the position that the claim for promotion under Rule 43 cannot be denied at all. It is also pointed out that no list of protected teachers has been forwarded and nobody was available for deployment also and reliance wpc 6069/2010 3 is placed on Ext.P21 reply given under the Right to Information Act. 6. I will consider the main argument that petitioners 2 and 4 are claimants under Rule 43 and their claim cannot be objected on the ground of non appointment of any protected hands. Ext.P8 Government Order, viz. G.O.(MS) No.20/82/G.Edn. dated 15.2.1982 relates to filling up of vacancies during the year 1982-83 by protected hands. Therein, paragraphs 1 and 2 protect the right of claimants under Rules 51A and 43 of Chapter XIV-A K.E.R. It is stated in para (ii) as follows: “If any of the said vacancies have been filled up by persons claiming under Rule 43 of Chapter XIV - A K.E.R. then the post vacated by persons so promoted shall be also taken into account for being filled up with protected teachers.” In Ext.P9 Government Order dated 16.11.1989, which concerns protection to teachers and non teaching staff, it is ordered that “the appointments made by promotion (Rule 43) re-appointment (51-A) and fresh appointments (new recruitments) made by the Managers of newly upgraded or newly opened schools during the academic year 1988-89 will be approved by the Educational Officers.” Ext.P10 Government Order dated 25.5.1990 which is applicable for the year 1989-90 directs the Managers to execute an agreement in writing in a stamp paper that “all the vacancies arising in wpc 6069/2010 4 future shall be filled up by protected teachers provided there are no rule 43 and 51A claimants under the Educational Agency.” Ext.P11 relates to approval of appointment made in newly upgraded or newly opened schools in the year 1999-91. Therein also direction is given to approve the appointments made during 1990-91 provided the Manager executes an agreement in writing that all the vacancies arising in future shall be filled up only by protected teachers provided there are no rule 43 and 51A claimants under the Educational Agency. 7. Ext.P12 also directs appointment of minimum of one protected teacher provided there are no rule 43 and 51A claimants. Ext.P13 dated 1.9.1998 contains a similar provision. Para 5(i) therein states that “all vacancies arising in the newly opened or upgraded schools coming under Rule 6(viii) Chapter V K.E.R. may be filled up by protected teachers, if there are no rules 43 and 51A claimants. Paragraphs (ii) and (iv) also direct appointment of protected hands provided there are no Rules 43 or 51A claimants. In Ext.P14 Govt. Order dated 28.6.2002 no reference has been made to Rule 43 or 51A claimants. This Government Order was modified by Ext.15 order wherein the provision in Ext.P14 to fill up all vacancies by protected hands, was relaxed and what is insisted therein is to appoint at least one protected hand from the list. Ext.P16 circular dated 19.11.2009 wpc 6069/2010 5 insists that the list of protected hands will have to be furnished by the Deputy Director of Education to the Managers concerned. 8. Ext.P17 is a clarification issued regarding the appointment of protected teachers in the pre upgraded sections of the new school which states that “the stipulation regarding appointment of protected hands in the Govt. Order read above will not be insisted on in the pre-upgraded sections of the New School.” The Government Order referred to therein is Ext.P14. Thus, it can be seen from the various Govt. Orders that the absorption of protected hands is not insisted when there is a claimant under Rule 43 or Rule 51A of Chapter XIV-A K.E.R. 9. The counter affidavit filed by the first respondent proceeds on the basis that the Manager is bound to absorb at least one protected teacher in the High School section, which is newly upgraded, in the light of Ext.P15 Government Order dated 1.2.2006. It is mentioned that on the date of appointment of the petitioners, no protected teachers were there on the rolls of the school. 10. It is stated in para 7 of the counter affidavit filed by the first respondent that petitioners 2 and 4 are claimants under Rule 43 for promotion as H.S.A. In para 4 of the affidavit of the third respondent, filed on 5.4.2011, it is averred that “a protected teacher namely wpc 6069/2010 6 Smt. M. Hema Narayanan, H.S.A. (PS) who was working in Government High School, Thenkurisi due to the closing down of the VVPHS, Palakkad was available with effect from 1.6.2000 and she was deployed to Government High School, Thenkurisi.” It is further pointed out that in the category of H.S.A. (Natural Science) no protected teacher was available as on 1.6.2009. 11. The third respondent has filed an affidavit to explain the position with regard to Ext.P22 communication produced by the petitioner. Therein, it is mentioned that Smt. M. Hema Narayanan is now working at H.G.S., Thenkurussi and is due to retire on 31.3.2012. One Shri K.G. Rajeev, protected teacher has been recalled to his parent school and one Smt. M. Jayanthi is now working at G.H.S., Pattanchery. Thus, the objection raised against the approval of petitioners 2 and 4 is that the High School is a newly upgraded one and no protected teacher has been appointed there. As their approval stands rejected, no consequential vacancies have arisen to appoint petitioners 3 and 5. 12. Learned counsel for the petitioners relied upon various decisions of this Court to contend that the claim of teachers for promotion under Rule 43 will override the provisions of the various executive orders concerning absorption of protected teachers. In **Deepthi Susan Jacob v. State of** wpc 6069/2010 7 **Kerala** (1996 KHC 446 = 1996 (2) KLT 1033) the claim of persons under Rules 43 and 51A of Chapter XIV-A K.E.R. was upheld as against a claimant under Rule 51B. A Division Bench of this Court in **Rajendran v.** **State of Kerala** (1993 KHC 151 = 1993 (1) KLT 893) also considered the right of the claimants under Rule 43 and after discussing the various rules including Rule 43 of Chapter XIV-A K.E.R., it was held in para 7 as follows: “The above mentioned statutory provisions cast a legal duty on the Managers of the aided schools to promote the qualified member of the staff in the above mentioned categories to the higher cadres. For giving promotion to those qualified members of the staff, they need not put in any application to the Manager. It is is the Manager's duty to give them the promotion.” Therein, the claim of certain members of the non teaching staff was the subject matter of consideration. ## 13. In **G. Narayanan Pillai v. Regional Deputy Director of Public** **Instruction and others** (1972 KLJ 761 = 1972 KHC 291) while considering the case of a claimant for promotion, it was held in para 8 that “his right to get the promotion is automatic.” In **Rachal v. State of Kerala** (2000 KHC 136) it was held that there is no preference for claimant under dying in harness scheme over any claimant under Rule 43. wpc 6069/2010 8 14. A Division Bench of this Court in **Rev. Kuriakose v. State of Kerala** (1981 KLT SN page 103, C. No.183), while considering the effect of Rule 6 of Chapter V K.E.R. and the agreement to be executed, held that “the teachers who are entitled to the benefit of Rule 51A would be entitled to be absorbed in the vacancies in preference to the teachers contemplated by the agreements and that notwithstanding the agreement executed.” Learned counsel for the petitioners submitted that a parallel can be drawn with respect to Rule 43 claimants also. Thus, the claim of promotion under Rule 43 has been found in their favour under different circumstances, in the decisions cited above. 15. Question herein is whether the Government Orders Exts.P14 and P15 will have to be complied with by the Manager by appointing a protected teacher, in preference to claimants under Rule 43 in the High School. An interpretation of Rule 43 of Chapter XIV-A K.E.R. along with the other relevant rules in the Chapter therefore arises for consideration. Rule 43 concerns promotion. The main part of the rule reads as follows: “43. Subject to rules 44, 45 and 51A and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available.” wpc 6069/2010 9 Therefore, the said rule is subject to Rules 44, 45 and 51A. Rules 44 and 45 are not relevant for our purpose, since it concerns the appointment of Headmasters. Rule 51A and its provisos, especially the second proviso will have to be adverted to. Rule 51A protects the rights of qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies for preference for appointment to future vacancies. The second proviso states as follows: “provided further that the first preference under this rule shall be given to protected teachers.” Note 1A and the Explanation thereto are also relevant, which are extracted below: “Note 1A:- Fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the Educational Agency shall be made only after providing re-appointment to such teachers thrownout from service and protected teachers available under the Educational Agency. Explanation:- For the purpose of this clause, “Protected teacher” means, a teacher who has been retrenched for want of vacancy after putting such length of regular service that may be specified by the Government or who is eligible for such protection as per G.O.(Ms) No.104/89/Edn. dated 6.3.1969 or G.O.(Ms) No.231/84/G.Edn. dated 27.10.1984 or any other orders issued by Government from time to time.” Much arguments were raised with regard to the scope of the second proviso wpc 6069/2010 10 also and whether it actually gives preference to protected teachers of other schools, under different Educational Agencies. Learned Government Pleader submitted that the proviso will apply to protected teachers of all classes including from other schools of different Educational Agencies, whereas learned counsel for the petitioners submitted that it will apply only to the protected teachers of the very same school under the same Educational Agency and in that context learned counsel relied upon the decision of a learned Single Judge of this Court in **Thomas N.C. v. Director of Public Instructions and others** (2011 (2) KHC 123). 16. In fact, Note 1A is very clear on this aspect. It provides for reappointment to protected teachers “available under the Educational Agency.” The meaning of the words “protected teacher” is given in the explanation. When the general scope and purport of Rule 51A is to confer preference for appointment in future vacancies in respect of teachers who have been relieved under different circumstances, under the same Educational Agency, it cannot be envisaged that the proviso as noted above, will apply to protected teachers of schools under other Educational Agencies, especially in the light of Note 1A. In the case of such protected teachers, the obligation of the Manager arises under Rule 6(viii) of Chapter wpc 6069/2010 11 V and various Government Orders have been issued further in that regard. 17. In **Thomas N.C.'s case** (2011 (2) KHC 123) this Court, while interpreting the very same provisions, has held thus in para 5: “It is thus obvious from Note 1A that only after providing reappointment to such teachers thrown out from service and protected teachers available under the Educational Agency that fresh appointments to vacancies arising in the same or higher or lower category of teachers under the Educational Agency could be made. The meaning of the term 'protected teacher' has been given under the Explanation. A combined reading of Note 1A and Explanation would reveal that teachers who come within the meaning of 'Protected Teacher' under the Explanation that too, under the Educational Agency, shall be given the preference under the Rule by virtue of the second proviso. In other words, fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the Educational Agency shall be made only after providing re-appointment to such teachers under Rule 51A. The expression 'under this rule' can only be taken to mean under Rule 51-A.” I respectfully agree with the view that the protected teachers under the very same Educational Agency will have preference by virtue of the second proviso. In that view of the matter, there cannot be any difficulty to recognise the rights of promotees under Rule 43 which is only subject to wpc 6069/2010 12 Rule 51A as far as the present context is concerned. No protected teachers under the very same Educational Agency were available for absorption. Therefore, the right of promotees under Rule 43 will get precedence over the protected teachers from schools under other Educational Agencies who get a right under various executive orders alone. Evidently, the provisions of statutory rules will override the various clauses of the executive orders, in case of any conflict. 18. Learned Govt. Pleader, in this context, raised a further argument that Rule 5-A of Chapter XIV-A K.E.R. is also relevant in this context, as a protected teacher mentioned therein has to be absorbed in schools under the same Educational Agency or under other Educational Agencies. This argument is raised pointing out the availability of Smt. M. Hema Narayanan whose parent school was closed down. Rule 5A reads as follows: “5A. Qualified teachers who are retrenched by the opening of new schools or consequent on orders of Government relating to the course of studies or scheme of teaching or due to withdrawal or recognition of the school for any of the reasons specified in Rules 22, 22A or 23 in Chapter V and consequent closure of the school shall be given preference for appointment to future vacancies in schools under the same Educational Agency or under other Educational Agencies.” wpc 6069/2010 13 Of course, the rule confers preference for appointment in future vacancies for such teachers who have been retrenched, under the very same Educational Agency or under other Educational Agencies. It is pointed out that Rule 43 shows that promotion can be made “on consideration of efficiency and any general order that may be issued by the Government” and therefore the orders granting protection to various teachers under different Government Orders will also have to be considered. Evidently, the words “any general order that may be issued by the Government” can only relate to such orders which may apply in the field of promotion alone and not in respect of other general orders like the orders granting protection. While amending Rule 51A by including the second proviso, preference is conferred only on the protected teachers of the very same Educational Agency. If the argument of the learned Govt. Pleader that the words “general order” in Rule 43 will cover other protection orders applicable under different circumstances, is accepted, then the second proviso to Rule 51A also may come in conflict with such general orders, as various claimants who are eligible for protection as per those orders, can claim such vacancies. Such was not the intention of the second proviso to Rule 51A. This also gives a clue for interpreting Rule 43, especially the words “any general order that may be issued by the Government”, that they can wpc 6069/2010 14 only apply to general orders concerning promotion. 19. It is a well settled rule of interpretation that provisions of a statute will have to be interpreted harmoniously so as to avoid conflict. When Rule 43 specifically provides that it is only subject to Rules 44, 45 and 51A, evidently it will not be subject to Rule 5A. Therefore, the preference for appointment in future vacancies, envisaged under Rule 5A will have to be granted in other circumstances not covered by Rule 43, evidently. Therefore, such of those protected teachers who may be entitled for a preference under Rule 5A may have to pave way for promotees under Rule 43. In that view of the matter also, the plea raised by the learned Govt. Pleader that Smt. Hema Narayanan, H.S.A. (Physical Science) who was thrown out due to closure of the school will get preference under Rule 51A, cannot be accepted. 20. Evidently, the various orders which have been discussed already concerning grant of protection, is subject to the rights of the promotees under Rule 43. Apart from that, the statutory rules will have precedence and overriding effect in case of conflict with executive orders; which principle is a well settled one. Therefore, the claim of teachers for promotion will prevail over such executive orders granting protection or for deployment of protected teachers, like Exts.P14 and P15. wpc 6069/2010 15 21. In that view of the matter, the appointment of petitioners 2 and 4 as H.S.A. (Physical Science) and H.S.A. (Natural Science) will have to be approved, as they are claimants under Rule 43. 22. What remains is the right of the consequential appointees, viz. petitioners 3 and 5 who have been appointed as U.P.S.A. Evidently, they have been appointed in the pre upgraded portion of the U.P. School. There is no dispute that the pre upgraded portion has come into vogue prior to 2.5.1979, viz. before the introduction of Rule 6(viii) of Chapter V K.E.R. In respect of vacancies in such schools are concerned, it is clear from Ext.P17 Govt. Order also that there is no obligation to appoint protected hands. Therein, it has been ordered thus: “4. The matter has been examined in detail. Government are pleased to order that the stipulation regarding appointment of protected hands in the Govt. Order read above will not be insisted on in the pre-upgraded sections of the New School.” In that view of the matter, the petitioners 3 and 5 are also entitled for grant of approval. 23. Therefore, the writ petition is allowed. The impugned order Ext.P7 is quashed. It is declared that petitioners 2 to 5 are entitled for grant of approval based on the appointment orders issued by the first petitioner wpc 6069/2010 16 Manager. There will be a direction to the fourth respondent to pass orders granting approval of their appointments as claimed and the consequential monetary benefits also will be sanctioned to them, within a period of three months from the date of receipt of a copy of this judgment. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**