Philip Thomas Vs. Secretary to Government - Court Judgment

S. Siri Jagan, J.

1. W.P.(C) Nos. 16770 and 19348 of 2003 are filed challenging Government Order, G.O. Ms.78/87/G.Edn. dated 31.3.1987 (Ext.P-1 in W.P.(C) No. 16770/ 2003) and G.O.(Rt) No. 5641/99/G.Edn. dated 31.12.1999 and G.O.(Rt) No. 1388/03/G.Edn. dated 4.4.2003 (Exts.P-1 and P-3 in W.P.(C) No. 19348/2003 respectively). The essence of challenge in these two Writ Petitions are against the approval of appointment of Sri. Jossy Stephen (6th respondent in W.P.(C) No. 16770/2003). The 6th respondent passed certificate examination in Physical Education conducted by the Karnataka Government which is accepted by the Government of Kerala as an alternate qualification by Ext.P-1 Government Order in W.P.(C) No. 16770/2003. He was so appointed for different periods from 18.8.1994 to 4.11.1994, 4.10.1995 to 27.1.1996 and 11.6.1996 onwards on regular basis. Pursuant to the judgment (Ext.P-4 in W.P.(C) No. 16770/2003) of this Court in O.P.No. 18762/2001, the Government has passed final orders approving the appointment of the 6th respondent for the period from 18.8.1994 to 4.11.1994 and 4.10.1995 to 27.1.1996. However, no orders approving his regularisation of service from 11.6.1996 onwards have been passed. W.P.(C) No. 18471/2003 is filed for a direction to the authorities to approve that service also and disburse his salary.

2. The bone of contention between the parties in these Writ Petitions is as to whether the approval granted by Ext.P-1 for the service 6th respondent for the above periods is in accordance with law. Petitioners in W.P. (C) Nos. 16770 and 19348 of 2003 contend as follows:

3. Rule 1 of Chapter XXXI reads as under:

'(1) The teachers in the private schools shall have the educational and professional qualifications prescribed in this chapter. The conditions regarding age, Departmental Test qualifications, service qualifications and other service conditions shall be governed by the provisions of the Act and the Rules contained in the foregoing chapters:

Provided that nothing contained in this chapter shall affect the teachers appointed in private schools prior to the coming into force of this chapter and who possess qualifications prescribed under valid orders then in force and whose appointments have been approved as fully qualified teachers; Provided further that such persons will be eligible for appointment in any schools.'Sub-rule 2(3)(b) of Chapter XXXI prescribes the qualifications necessary for appointment as Physical Education Teachers in aided High Schools, which reads as follows:

'(b) Physical Education Teachers.-- (1) A pass in S.S.L.C. Examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent and

(2) Certificate of Physical Education issued by the Commissioner for Government Examinations, Kerala.

Note.-- Certificate of Physical Education of Mysore will be recognised as a qualification for appointment of Physical Education Teachers in Schools in the linguistic minority area of Kasaragod.'

Going by these Rules, a pass in certificate examination in Physical Education conducted by the Government of Karnataka is not a recognised qualification for the purpose of Kerala Education Rules. Therefore, the qualification obtained by the 6th respondent on the basis of which he has been appointed in the School of the 2nd respondent is not valid. The petitioners further contend that Ext.P-1 Government Order on the basis of which Exts.P-5 and P-6 orders have been passed is only an executive order which cannot amend the qualification prescribed in Chapter XXXI of K.E.R. and, therefore, Ext.P-1 is ab initio void. Consequently, Exts.P-5 and P-6 orders which are consequences of Ext.P-1 are also bad in law. In support of their case, petitioners bring to my attention to the decision of the Hon'ble Supreme Court in Smt. Naseem Bano v. State of U.P. and Ors., AIR 1993 SC 2592 and a decision of this Court in Anitha John v. Eldhose Mathew, 2002 (3) KLT 974.1 shall refer to the decision in Anitha John's case (supra) since the same has been rendered after taking into account Supreme Court decisions also.

4. That was a case where the Government sought to bring in a new cadre of H.S.A. (English) to teach English in Government aided schools by an executive order. After considering the question as to whether Government has power to prescribe qualifications under the K.E.R. by executive orders, in paragraph 6 of that judgment, this Court held as follows:

'... It is trite law that if rules are made, there is no scope for issuing executive orders and rules will prevail over the executive orders. Executive orders can be issued to fill up the gap in the rules provided they are not inconsistent with the rules. The executive authority can supplement the rules, but cannot supplant the rules as held in the decisions reported in Bose William v. State of Kerala, 2002 (2) KLT 34 and Union of India v. Rakesh Kumar, (2001) 4 SCC 309. In the decision reported in M.M. Dolichan v. State of Kerala, (2001) 1 SCC 151, it is held that the Government has got powers to issue administrative instructions in the absence of statutory rules.'

Further, in paragraph 10 thereof, this Court held thus:

'... In a number of decisions, it has been held that rules prescribing qualifications cannot be changed by executive orders. There is no dispute that qualifications prescribed in the rules can be changed only by amending the rules.'

Therefore, this Court categorically lays down the proposition that the Government cannot, by an executive order, amend the qualifications prescribed by Chapter XXXI of the K.E.R.

5. It is not disputed before me that Ext.P-1 is an executive order of the Government. It is also not disputed before me that Ext.P-1 order, in fact, prescribed an alternate qualification which is absent in Rule 2 (3) (b) of Chapter XXXI of the K.E.R. Rule 2(3)(b) of Chapter XXXI which is quoted above specifically prescribes certificate examination in Physical Education conducted by the Commissioner of Government Examination, Kerala as a necessary qualification for appointment as Physical Education Teacher in aided schools in Kerala. In fact, the words 'or Certificate of Physical Education (L.G.) issued by the Commissioner for Government Examinations, Madras or Certificate of Physical Education of Mysore State' formerly occurring after the words 'Commissioner for Government Examinations, Kerala' in Sub-rule (2) were specifically omitted by G.O.(P) 42/75/G.Edn., dated 27.1.1975. This would show that the rule making authority consciously wanted to prescribe only Certificate of Physical Education issued by the Commissioner for Government Examinations, Kerala as the prescribed qualification for the post of Physical Education Teachers. This is further fortified by the fact that in 1977, the rule making authority added a Note to the said sub-rule to the following effect:

'Note.-- Certificate of Physical Education of Mysore will be recognised as a qualification for appointment of Physical Education Teachers in Schools in the linguistic minority area of Kasaragod.'

This Note would go to show that the rule making authority wanted to restrict the qualification of Certificate of Physical Education, Mysore as an alternate qualification for appointment of Physical Education Teachers in schools in the linguistic minority area of Kasaragod alone, thus making it clear that for other parts of the State, the said qualification is not an acceptable qualification. Further, the fact that the first qualification occurring in Sub-rule (1) of Rule 3(b), what is prescribed is 'a pass in S.S.L.C. Examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent' and in Sub-rule (2), the words 'or its equivalent' are conspicuously absent, would go to show that the rule making authority consciously wanted to restrict the qualification prescribed by Sub-rule (2) to Certificate of Physical Education issued by the Commissioner of Government Examinations, Kerala alone. Therefore, the Government cannot, by Ext.P-1 order, either add to or amend the said qualification. Admittedly, Ext.P-1 Executive Order does exactly that.

6. Counsel for the 6th respondent quoting the decision of this Court in Baiju v. Suguna Prakash, 2003 (2) KLT 182, would argue that executive orders can be issued for the purpose of adding to or prescribing additional alternate qualification for a post as per K.E.R. I do not think that the said decision makes such a proposition. The said decision only says that executive orders can be issued to fill up gaps in the rules provided they are not inconsistent with the rules. In fact, this is only a reiteration of the law laid down by another Division Bench in Anitha John's case supra. Therefore, the decision in Baiju's case supra does not advance the case of the 6th respondent.

7. In the above circumstances, I am of the view that Ext.P-1 order cannot be sustained, the same being an executive order which seeks to add to the Rules a qualification which has not been prescribed in the Rules. Therefore, Ext.P-1 Government Order is totally without jurisdiction and the same is hereby quashed.

8. Ext.P-5 order has been passed holding that the qualification of pass in certificate examination conducted by the Government of Karnataka is an approved qualification based on Ext.P-1, Executive Order of the Government. Therefore, Ext.P-5 order approving the appointment of the 6th respondent for the period from 18.8.1994 to 4.11.1994 and4.10.1995 to 27.1.1996 is also bad in law. By Ext.P-6 order, appointment of the petitioner in W.P.(C) No. 16770/2003 was cancelled in order to accommodate the 6th respondent. As a necessary consequence, Ext.P-6 also is to be quashed. Therefore, I quash Exts.P-5 and P-6 orders also.

9. W.P.(C)No. 18471/2003 is filed by the 6th respondent in W.P.(C)No. 16770/2003 for a direction to respondents 2 to 4 therein to approve the appointment of the petitioner from 11.6.1996 onwards and disburse the salary and allowances due to him on account of such approval. Since, I have found that the qualification obtained by the petitioner in W.P.(C) No. 18471/2003, is not a qualification recognised by K.E.R and approval of his earlier temporary service has been quashed by me, it necessarily follows that he is not entitled to have his service for the subsequent period approved. Therefore, W.P.(C) No. 18471/2003 is liable to be dismissed.

Accordingly, I allow W.P.(C) Nos. 16770 and 19348/2003 and dismiss W.P.(C) No. 18471/2003. The consequences of my above decision will follow and respondents 1 to 5 in W.P.(C) No. 16770/2003 shall pass appropriate consequential orders. However, I make it clear that the salary paid to the 6th respondent consequent to the orders which have been set aside by me, shall not be recovered.