Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942 WA.No.162 OF 2020 (AGAINST THE JUDGMENT DATED 22-07-2019 IN WP(C) 15827/2019) APPELLANTS/RESPONDENTS 1-4: 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 THE DIRECOTR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM - 695 014. 3 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR - 680 020. 4 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THRISSUR - 680 020. BY GOVERNMENT PLEADER RESPONDENTS/PETITIONER & RESPONDENTS 5 & 6: 1 A. A. MANCY, AGED 30 YEARS, D/O. A. O. ANTONY, CHIRIYANKANDATH HOUSE, KALAMASSERY, ERNAKULAM DISTRICT - 683104. 2 THE CORPORATE MANAGER FRANCISCAN CLARIST CONGREGATION SCHOOLS, ASSISI PROVINCIAL HOUSE EAST FORT, THRISSUR - 680 005. 3 HEADMASTER ST. SEBASTIAN'S C.G.H.S., NELLIKKUNNU, THRISSUR - 680 005. OTHER PRESENT: SMT. RAJI. T. BHASKAR - G.P. R1- SRI. NOUSHAD THOTTATHIL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-06-2020, THE COURT ON 24-06-2020 DELIVERED THE FOLLOWING: W.A No. 162/2020 -2-
JUDGMENT
Dated this the 24th day of June, 2020 Gopinath, J: This writ appeal is filed challenging the judgment in W.P (C) No.15827/2019. The appellants are respondents 1 to 4 in that writ petition and the 1st respondent herein is the writ petitioner.
2. The 1st respondent was appointed as a Junior Hindi Teacher in
St. Sebastian's C.G.H.S School, through an order dated 01-06-2017. The proposal for approval of her appointment was rejected on the ground that she was not fluent in reading or writing Malayalam. The order of the District Educational Officer was not interfered with either by the Deputy Director of Education or the Director of Public Instructions.
3. The 1st respondent thereupon approached this Court through
the aforesaid W.P (C) No.15827/2019. It is her case that the qualifications for appointment to the post of Junior Hindi Teacher was contained in Chapter XXXI of the Kerala Education Rules and that there was no stipulation in any of the Rules in Chapter XXXI that the person concerned must have studied the regional language Malayalam as was stipulated in Ext.P11 order dated 19-03-2002. She also relies on Ext.P12 and P13 judgments of this court wherein this court has taken the view that the stipulations such as the one in Ext.P11 order cannot be permitted to operate against the statutory Rules. It is to be noticed that Ext.P12
W.A No. 162/2020 -3-
judgment of the learned Single Judge was upheld by a Division Bench
through judgment dated 07-08-2017 in W.A. No.135/2017.
4. The judgment of the learned Single Judge out of which this
appeal arises, notices that the stipulations in G.O (MS) No.67/2018/G.Edn dated 22-05-2018 (Annexure-A1) modifies the stipulations in Ext.P11 to the extent that even persons who have undertaken regular Graduation, Post Graduation or Teacher Training Course in which Malayalam was a subject will also be eligible for appointment as a Lower Primary School Teacher and Upper Primary School Teacher. The learned Single Judge however found that though such stipulations are found in Ext.P11 order and the subsequent order dated 22-05-2018 (produced along with writ appeal as Annexure A1), the provisions of Chapter XXXI of the Kerala Education Rules have not been amended to include such qualification as a requirement for obtaining appointment as Lower Primary School Teacher / Upper Primary School Teacher. The learned Single Judge therefore followed the ratio of the judgments produced as Ext.P12 and P13 and directed that the approval of the appointment of the 1 st respondent shall be proceeded with.
5. Smt. Raji T. Bhaskar, learned that the Government Pleader
appearing for the appellants would submit that the judgments of this court in M.P. Lakshmi V. Assistant Educational Officer (1966 KLT 1042) and that in Baiju V. Suguna Prakash (2003 (2) KLT 182) have clearly held that
W.A No. 162/2020 -4- the Government was well within its power to issue Executive orders to fill- up any gaps in the Rules provided they are not inconsistent with the Rules. It is argued that Section 10 of the Kerala Education Act, 1958 empowers the Government to fix qualification of the teachers and the Government orders referred to above should be treated as orders issued in exercise of powers of the Government referable to Section 10 of the KER.
6. Sri. Noushad Thottathil, learned counsel appearing for the
respondent/writ petitioner would contend that the provisions of Ext.P11 and Annexure-A1 having not been incorporated into Statutory Rules it was not legally permissible for the authorities to insist upon such qualification being obtained before for appointment as Lower Primary School Teacher / Upper Primary School Teacher. He would contend that the law is settled by the judgments produced as Ext.P12 and P13 and the judgment of the Division Bench in WA No.135/2017 which has been produced as Annexure-A2 along with the memorandum of appeal in this case. He would also contend that pursuant to the directions issued by the learned Single Judge in the impugned judgment, the District Educational Officer, Thrissur has already approved the appointment of the 1st respondent through order No.B5-
copy of the said order of approval. He would also contend that at any rate the petitioner/respondent is now proficient in Malayalam and has produced before us a certificate dated 19-09-2019 issued by the Kerala State
W.A No. 162/2020 -5- Literacy Mission Authority which certifies that the 1 st respondent has passed the “Pacha Malayalam Certificate Course Examination” conducted by the Kerala State Literacy Mission Authority in June 2019 with A-Grade. He would also contend that the 1 st respondent's mother-tongue is Malayalam and that she did not undertake Malayalam course either in school or in any manner provided for in Annexure-A1 order only by reason of the fact that her father was serving in the Indian Army and she was undertaking studies in north India.
7. We have anxiously considered the contentions of both sides. We must notice that though the law laid down by the Division Bench of this court in Baiju V. Suguna Prakash (surpa) was brought to the notice of the
Division Bench while deciding W.A. No.135/2017, the ratio of that judgment
was not applied to the facts of the case. We notice from the decision in Baiju V. Suguna Prakash (supra) that the power to issue orders in the nature of Ext.P11 /Annexure-A1 should be found in the fact that the law always permits executive authorities to supplement the Rules though they are legally incompetent to supplant the Rules. Here the question is whether proficiency in Malayalam can be insisted upon in schools / divisions where the medium of instruction is Malayalam. We are of the opinion that such a stipulation is not in any manner arbitrary and that it may be well within the powers of the administrative authority to insist on such requirement through orders supplementing the statutory Rules. We do not think that the
W.A No. 162/2020 -6- issuance of executive orders incorporating a condition regarding proficiency in Malayalam to teach other subjects, in an institution where the medium of instruction is Malayalam, will amount to issuance of executive orders overriding the qualifications fixed by statutory provisions. Such instructions can only be read as supplementing and not supplanting the
existing qualifications. However, we must hasten to add that such requirements must invariably be incorporated in the statutory Rules at least shortly after the executive orders are issued to supplement the statutory provisions. The executive orders in question in this case were issued on 19-03-2002 (Ext.P11 in the writ petition) and was modified through Annexure-A1 dated 22-05-2018. Inspite of passage of considerable time, such stipulations as in Ext.P11 modified by Annexure-A1 have not been incorporated in the statutory Rules. This practice should stop. If the executive authority feels that instructions in the nature of Ext.P11 / Annexure-A1 have to be issued to meet certain circumstances, it is well within their power to do so. However as already noticed such executive action must be followed up by amending the statutory Rules so as to avoid similar disputes in future. We hope that the authorities will bestow their attention to these observations and take appropriate follow-up action in the matter.
8. In so far as the facts of the present case are concerned, we find that a view contrary to the one expressed in WA No.135/2017 W.A No. 162/2020 -7- (Annexure-A2) has been expressed by another Division Bench of this court
in Baiju V. Suguna Prakash (Supra). However in the totality of the facts
and circumstances of the case and considering the fact that the appointment of the 1 st respondent has already been approved through proceedings dated 13-03-2020 and also noticing the fact that the 1 st respondent has obtained proficiency in Malayalam which is borne out from the certificate issued from the Kerala State Literacy Mission Authority we feel that it will not be appropriate for us to interfere with the directions issued by the learned Single Judge in the judgment impugned before us.
In the light of the above the writ appeal will stand dismissed. The authorities shall take immediate steps to draw and disburse salary to the 1st respondent following the order of approval dated 13-03-2020.
The registry shall send a copy of this judgment to the Secretary, General Education Department, Thiruvananthapuram. Sd/- A.M.SHAFFIQUE JUDGE Sd/- GOPINATH P. JUDGE AMG W.A No. 162/2020 -8- APPENDIX APPELLANT'S ANNEXURES: ANNEXURE A1 TRUE COPY OF G.O.(MS) NO.67/2018/G.EDN. DATED 22.5.2018. ANNEXURE A2 TRUE COPY OF JUDGMENT IN WRIT APPEAL NO.135/2017.