IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 6601 of 2001(J)
1. MANAGER
... Petitioner
Vs
1. DIR.OF PUBLIC INSTRUCTION
... Respondent
For Petitioner :SRI.G.S.MOHANDAS
For Respondent :SRI.B.RAGUNATHAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :28/02/2007
O R D E R
ANTONY DOMINIC, J.
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O.P NO. 6601 OF 2001
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Dated this the 28th day of February, 2007
J U D G M E N T
The facts of the case disclose that a post of Sewing Teacher
was sanctioned on 22/5/98 and staking claim to that post, being a
claimant under Rule 51 B of Chapter XIV A K.E.R, the 3rd
respondent filed a case before this Court as O.P.No. 11087/97. In
that case, this Court by Ext.P2 order dated 10/7/98 directed the
Manager to consider her claim and in pursuance to the order thus
issued by this court, the Manager passed Ext.P3 order holding
that the 3rd respondent was not entitled to be appointed to the
post of Sewing Teacher sanctioned by order dated 22/5/98. It was
thereafter that, by Ext.P1, the 4th respondent was appointed as
Sewing Teacher effective from 13/1/99.
2. Following the appointment of the 4th respondent,
request for approval was made to the D.E.O and the same is seen
rejected by Ext.P5 order dated 6/3/99 and the reason stated is
“there is a claimant qualified for the post under Rule 51 B Chapter
XIV A K.E.R”. Manager pursued the matter in revision before the
first respondent by Ext.P6. During the pendency of the revision,
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he filed OP 7961/2000, which was disposed of by Ext.P7
judgment, directing the first respondent to consider and pass
orders on Ext.P6 revision. It was accordingly that Ext.P8 order
dated 16/8/2000 was issued by the first respondent rejecting the
revision and upholding Exhibit P5 order of the D.E.O declining to
approve the appointment of the 4th respondent. In the above
background this original petition was filed by the Manager
seeking the reliefs of quashing the order declining approval and
the order of the first respondent rejecting the revision.
3. The only contention raised during the course of the
hearing is that while the 4th respondent was qualified in terms of
Rule 2(3)(d) of Chapter XXX1 of K.E.R, the 3rd respondent was not
qualified and therefore the appointment of the 4th respondent is
valid. To resolve the controversy, it is necessary to refer to the
Rule and the qualification as prescribed in Rule 2(3)(d) of Chapter
XXXI of K.E.R is as follows:
“(d) Sewing Teachers: (1) A pass in S.S.L.C.
Examination conducted by the Commissioner for
Government Examinations, Kerala, or its equivalent;
and
(2) Group Certificate in Needle Work and Dress
Making of the K.G.T.E (Higher) or M.G.T.E.(Higher); or
OP 6601/2001
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Group Certificate in Tailoring of the K.G.T.E.(Higher) or
M.G.T.E.(Higher); or
(Group Diploma in crafts issued by the Commissioner
for Government Examinations, Kerala; or National
Trade Certificate in Cutting and Tailoring issued by the
National Council for training in Vocational Trades,
Government of India or Diploma in Craftsmanship
(Tailoring and Garments making) issued by the
Director of Technical Education, Kerala).”
4. While it is the admitted position that the 4th
respondent is qualified in terms of the aforesaid rule, the
qualification possessed by the 3rd respondent as disclosed by her
counter affidavit is that she has passed with second class, the
Kerala Government Technical Examination in Tailoring,
Embroidery and Needle Work (Higher). Exhibit R3(a) is the
certificate issued by the Department of Technical Education,
Government of Kerala in this respect. Thus, it is obvious that the
3rd respondent does not possess the qualification as prescribed in
the rule. However, the impugned order shows that from 1987/88
onwards a two year composite course in Tailoring, Embroidery
and Needle Work is implemented in the State replacing the old
certificate scheme prescribed in Rule 2(3)(d) of Chapter XXXI of
K.E.R. It is stated that as per GO(Ms) 187/87/H.Edn dated
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27/6/87, pass in the new KGTE (Ten) Higher is equivalent to the
group certificate issued in these subjects and is sufficient
qualification for the post of Sewing Teacher in High School.
Thus the attempt is to contend that the qualification
possessed by the 3rd respondent evidenced by Exhibit R3(a) is
equivalent to what is prescribed in the Rule. I am not in a
position to appreciate this argument for the simple reason that if
the Government wanted to equate a qualification or to make it a
part of the qualification prescribed in the statutory rules, what it
ought to have done was to have incorporated the same in the
Rule. Rule making authority is not conferred with any power to
modify the rules by issuance of Government orders. Referring to
Section 10 of the Kerala Education Act, 1958, the learned
Government Pleader raised a contention that in as much as the
Government has the competence to prescribe the qualification of
teachers, the Government is equally competent to modify the
same by executive orders. If this plea is to be accepted, one has
to forget the fact that statutory rule can be amended only in the
manner in which law permits and executive orders cannot modify
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such rules. Only such rules that are framed as per Section 36, in
the manner laid down in Section 37 can amend the KER 1959.
Therefore for reasons which are obvious, Exhibit R3(a),
qualification possessed by the 3rd respondent, is not recognised
by Rule 2(3)(d) of Chapter XXXI of K.E.R. The 3rd respondent
therefore is unqualified to be appointed as Sewing Teacher and
the appointment of the 4th respondent to that post cannot be held
to be invalid for any reason.
5. Thus the rejection of the approval of the appointment
of the 4th respondent and the rejection of the revision petition
filed by the first respondent cannot be sustained. Thus Exhibits
P4, P5 and P8 are therefore quashed and the 2nd respondent is
directed to approve the appointment of the 4th respondent as
Sewing Teacher with effect from 13/1/99, the date of her initial
appointment in the school.
Original petition is disposed of as above. No costs.
ANTONY DOMINIC, JUDGE
Rp