IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34008 of 2008(W)
1. SHEEJA MUKUNDAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DIRECTOR OF PUBLIC INSTRUCTIONS,
3. DEPUTY DIRECTOR OF EDUCATION,
4. DISTRICT EDUCATIONAL OFFICER,
5. ASSISTANT EDUCATIONAL OFFICER,
6. THE MANAGER, KARIPPAL S.V.U.P.SCHOOL,
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :09/12/2009
O R D E R
T.R. Ramachandran Nair, J.
- - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No. 34008 of 2008-W
- - - - -- - - - - - - - - - - - - - - - - - - - -
Dated this the 9th day of December, 2009.
JUDGMENT
The petitioner is aggrieved by the objections raised by the Asst.
Educational Officer regarding the payment of salary to the petitioner which
is now confirmed by Ext.P9, even though the appointment has been
approved. The substantial objection appears to be that the appointment of
the petitioner is without considering the availability of protected hands in
the Educational district for filling up the vacancy.
2. The petitioner was appointed as per Ext.P1 order dated 14.7.2006.
This appointment was approved as per the endorsement shown in Ext.P1
itself. Thereafter, by Ext.P2 a notice was issued by the Asst. Educational
Officer to withhold the pay and allowances of the petitioner with effect from
1.11.2006 and to refund the pay and allowances already paid to her from
14.7.2006 to 31.10.2006. Ext.P3 evidences the fact that the objection taken
by the Department is that the appointment is made in violation of the
Government instructions to fill up the vacancies in the upgraded schools by
deploying a protected hand. Even though by Ext.P4 the Manager explained
the position, that was not accepted and by Ext.P5 it was rejected.
wpc 34008/2008 2
3. Learned counsel for the petitioner submitted that even going by the
facts emerging from the pleadings, it can be seen that the Manager has
fulfilled the obligation to appoint a protected teacher. The school was
upgraded during 1982-83. As per the agreement executed between the
management and the Government, the Manger was obliged to appoint one
protected teacher and accordingly, after getting the details of a protected
teacher, during 1988-89 one Shri T. Madhavan was appointed. He was
deployed back to the parent school in the year 1991-92 which paved way for
appointment of one Shri K.V. Thomas who was also later deployed to the
parent school. Subsequently, as the list of protected teachers was not
available, five vacancies were filled up during the year 2001-02 and those
appointments have been approved. It is also pointed out that one Smt.
Jayanthy N.K. was appointed from 19.10.2006 to 30.3.2007. As the said
appointment was not approved, another protected teacher, viz. Smt. C.N.
Lasitha was appointed in that vacancy.
4. Going by the counter affidavit filed by the first respondent, the
contention raised in para 4 is to the effect that one protected Full Time
Sanskrit Teacher, viz. Shri N. Ravindran, is awaiting absorption in the
Educational District, Kannur on the date of appointment of the petitioner on
14.7.2006. Apparently, the averments made by the petitioner regarding the
wpc 34008/2008 3
appointment of the protected teachers from time to time by the Manager
have not been denied in the counter affidavit. Therefore, those aspects will
be deemed to have been admitted. The position therefore, that emerges
from the pleadings will be that the Manager had fulfilled the obligation to
appoint a protected teacher, even though at a later point of time that person
was deployed to the parent school. In this context, a reference can be made
to the statement filed by the Manager as per Ext.P4 before the District
Educational Officer. It is evident that during 1988-89 Shri T. Madhavan
was appointed as protected teacher who was deployed back in 1991-92 and
Shri K.V. Thomas was appointed later. The Manager appointed another
protected teacher on 27.11.2006 as per the directions of the Asst.
Educational Officer. In fact, in Ext.P4 the Manager has also stated that he
will appoint a protected teacher in any of the retirement vacancy which may
arise in future. Learned counsel for the petitioner placed reliance upon
Ext.P10 reply given by the Public Information Officer of the Office of the
Asst. Educational Officer, Kannur under the Right to Information Act. It
shows that there were two protected Sanskrit teachers in U.P. Schools in
Kannur District during 2006-07. One Shri N. Ravindran who was working
in Payyannur Central U.P. School was retained in the same school under the
orders of the Government. The second person is one Smt. A.P. Vanajakshy
wpc 34008/2008 4
who has been retained in the Govt. U.P. School, Simiri from 27.6.2006 as
per order dated 17.6.2007. It is therefore clear that the third one is Shri J.
Gopinatha Pillai from Chapparappadavu High School who has also been
retained in the parent school in terms of the Govt. Order dated 4.12.2002, on
completion of 25 years. It is evident from Ext.P10 that Shri N. Ravindra has
been retained in the parent school as he has completed 25 years in
accordance with G.O.(P) No.26/2003/G.Edn. dated 14.6.2003. Hence the
contention in para 4 of the counter affidavit that he was waiting for
absorption as on 14.7.2006 cannot be accepted. On this ground itself the
objection raised against his appointment falls to the ground.
5. Learned counsel for the petitioner also relied upon a judgment of
this Court in W.P.(C) No.4623/2009 and the decision of a Division Bench
in Unni Narayanan v. State of Kerala (2009 (2) KLT 604). It is pointed
out that the Govt. Order, Ext.P12 cannot modify the express terms of the
rules and the insistence that the vacancy has to be filled up by appointing
daily wage hands, cannot be sustained in the light of the dictum laid down
in Unni Narayanan’s case (supra). I find force in the said submission.
Going by the dictum laid down in the said judgment, especially in para 7 it
was held that an executive order cannot override the express statutory
provisions.
wpc 34008/2008 5
6. Even going by Ext.P12, the stipulation therein is that the Manager
will have to provide at least one protected hand from the list of protected
teachers. Going by the facts noticed above, herein the said obligation was
fulfilled by the Manager and he had been taking efforts to continue to fill
up the vacancies due to redeployment, by protected hands. Whenever
protected hands were made available from the list, the obligation was
complied with, evidently. The question whether the Manager of an aided
school is obliged to appoint protected teachers beyond the Sub District in
compliance with the agreement executed, was examined in W.P.(C)
No.4623/2009. The relevant rules under Rule 9 of Chapter III K.E.R. and
Rule 6(viii) of Chapter V K.E.R. was considered. It was held thus in para 9:
“It is well settled that an executive order cannot go against and
override the express statutory prescriptions. Unless the Rules are
amended in terms of the executive order, by appropriate means, the
same cannot be sought to be enforced. See, Unni Narayanan v.
State of Kerala (2009 (2) KLT 604). Herein, Ext.P7 shows that
there is no protected teacher available in the Wandoor Educational
Sub-district, which fact is admitted in paragraph (9) of the counter
affidavit. If that is so, the Manager cannot be faulted for not
appointing a protected teacher in the vacancy to which the petitioner
was appointed. Even if there will be a protected U.P.S.A. in
Malappuram Revenue District, that cannot be sought to be enforced
against the Manager, obviously.”
wpc 34008/2008 6
Going by sub-rule (viii) of Rule 6 of Chapter V K.E.R., the obligation of
the Manager has been fulfilled here. Therefore, the averment in para 4 of
the counter affidavit that a protected hand is available in the Educational
district and the Manager will have to comply with the same, cannot be
sustained. The said obligation is sought to be imposed only because of the
subsequent Government Orders issued in the matter and as Rule 6(viii)
provides for a particular method which alone is the Manager is obliged to
comply with, it cannot be modified by any Government Order issued in the
matter. In that view of the matter, the Manager was not obliged to appoint a
protected teacher who was remaining outside in the Educational Sub district
for re-deployment. Therefore, the approval of appointment of the
petitioner cannot be faulted.
7. The writ petition is allowed. The impugned orders, Exts.P2, P5
and P9 are quashed. There will be a direction to release the salary and
allowances of the petitioner in terms of the order of approval, along with
arrears within a period of two months from the date of receipt of a copy of
this judgment. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/