A.K.Swapna vs State Of Kerala
2021 Latest Caselaw 8465 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942

                      WP(C).No.30164 OF 2014(U)


PETITIONER:

               A.K.SWAPNA, UPSA, PARLI HIGHER SECONDARY SCHOOL,
               PARLI, PALAKKAD DISTRICT.

               SRI.N.M.MADHU
               SMT.C.S.RAJANI

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY, GENERAL EDUCATION
               DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

      2        THE DIRECTOR OF PUBLIC INSTRUCTION
               THIRUVANANTHAPURAM-695001.

      3        DEPUTY DIRECTOR OF EDUCATION
               CIVIL LINES, PALAKKAD-678612.

      4        DISTRICT EDUCATIONAL OFFICER
               CIVIL LINES, PALAKKAD-678612.

               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.30164 OF 2014(U)

                                        2




                                JUDGMENT

Dated this the 15th day of March 2021

The petitioner says that she was appointed as an Upper

Primary School Teacher (UPST) on 27.07.2007 in the services

of the "Parli Higher Secondary School" by its Manager, against

an anticipated additional post in the academic year 2007-08,

but that the same was rejected by the District Educational

Officer (DEO), Palakkad for the reason that there was no

sanctioned post.

2. The petitioner says that subsequently, a vacancy of

UPST arose with effect from 01.06.2010 on account of the

promotion of a teacher by name Smt.P.Renuka, but that when

she was appointed to the said post, it was again rejected by the

DEO for the reason that she had completed her studies outside

Kerala and had not studied Malayalam or passed a Language

Test while acquiring her eligible qualification.

3. The petitioner submits that since the rejection of her

appointment was wholly untenable, going by the provisions of

the KER - which does not mandate that Malayalam is required

to be studied at the time of acquiring qualification - she

preferred statutory appeals and revisions before the WP(C).No.30164 OF 2014(U)

competent Authorities, which finally culminated in Ext.P9 order

of the Government, holding that she was not entitled to be

granted approval of her appointment with effect from

01.06.2010, but that she is eligible to be so approved with

effect from 21.12.2011, since she had passed the Language

Test in Malayalam on 20.12.2011. She says that consequently,

Ext.P9 granted her approval on daily wages until 21.12.2011

and substantively from that date.

4. The petitioner says that Ext.P9, to the afore extent, is

illegal and unlawful because the provisions of the Kerala

Education Act or Rules do not provide that teachers must have

studied Malayalam and consequently, that any such stipulation

brought through an executive order is untenable and illegal.

The petitioner relies on the judgment of a learned Single Judge

of this Court in W.P.(C) No.29317/2016, which has declared that

Government orders cannot supplant the qualifications

prescribed in the Rules and that in the event of conflict, it is

the statutory Rule that should prevail. She added that, in fact,

through this judgment, a similarly placed teacher was directed

to be granted approval with effect from the date of her original

appointment, even though she had no formal education in the

language in question. The petitioner thus prays that Ext.P9 to WP(C).No.30164 OF 2014(U)

the extent impugned, be set aside and the competent

educational Authorities be directed to grant her approval with

effect from 01.06.2010 on scale-of-pay basis.

5. The learned Senior Government Pleader -

Sri.P.M.Manoj, conceded that the judgment of this Court in W.P.

(C) No.29317/2016 is in favour of the petitioner, but contended

that another Division Bench of this Court has, in

W.A.No.162/2020, made it clear that executive orders

incorporating a condition regarding proficiency in Malayalam

to teach other subjects, in an institution where the medium of

instruction is Malayalam, will not amount to overriding the

statutory qualifications. He submitted that, therefore, since the

medium of instruction in the school in question is admittedly

Malayalam, the requirement of the educational Authorities that

the petitioner ought to have qualified in Malayalam was

without error. He, therefore, prayed that this writ petition be

dismissed.

6. Even when I hear the learned Senior Government

Pleader as afore, I am afraid that I cannot find favour with his

contentions because, as rightly submitted by Sri.N.M.Madhu -

the learned counsel for the petitioner, as long as the statutory

Rules do not prescribe that a teacher must be trained in WP(C).No.30164 OF 2014(U)

Malayalam before he/she can be so appointed, such a

stipulation cannot be brought in by the Government through

executive orders. This is exactly what has been stated by the

learned Senior Judge in the judgment in W.P.(C)

No.29317/2016.

7. Coming to the Division Bench judgment relied upon by

the learned Senior Government Pleader, namely that in

W.A.No.162/2020, even though it is indubitable that the Bench

had found that the issuance of executive orders supplanting the

requirements of law cannot be always illegal, it has been made

clear therein that unless the statutory provisions are

appropriately amended, the approval to teachers cannot be

denied as long as they are in conformity with the provisions of

statutory scheme. Therefore, the learned Division Bench, even

when finding that the Government may have competence to

issue executive orders supplanting the statutory provisions, has

made it clear that such executive action must be followed by

suitable statutory amendments, so as to avoid disputes in

future. The judgment further shows that the Government was,

in fact, granted liberty to consider such an amendment, but it

is admitted that even in the last more than nine months

thereafter - the judgment having been delivered on WP(C).No.30164 OF 2014(U)

24.06.2020 - the Government has not endeavored to take any

step for amendment of the Rules in terms of the executive

orders issued by them.

8. In the afore circumstances, I cannot find favour with

the stand of the Government that the petitioner is not entitled

to be approved with effect from the date of her initial

appointment, merely because she had not been formally

trained in Malayalam.

9. Resultantly, I set aside Exts.P2, P5, P7 and P9; with a

consequential direction to the fourth respondent - District

Educational Officer to reconsider the proposal for approval of

appointment of the petitioner with effect from 01.06.2010 de

hors the objection that she had not formally cleared the

language test on that day.

The afore exercise shall be completed by the fourth

respondent within a period of two months from the date of

receipt of a copy of this judgment and it is needless to say that

all consequential benefits shall be disbursed to the petitioner

within a period of two months thereafter.

Sd/- DEVAN RAMACHANDRAN

JUDGE stu WP(C).No.30164 OF 2014(U)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER DATED 16-1-08 BY THE 4TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE ORDER NO. D. DIS.NO.

B2/4899/10K DATED 10-3-2011 PASSED BY THE 4TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY K.P.S.C. DATED 20-12-11.

EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 28-3-2011 FILED BEFORE THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 5-3-12 PASSED BY THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE REVISION APPLICATION FILED BEFORE THE 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 25-1-13 OF THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 19-2-

2013 FILED BY THE PETITIONER BEFORE THE PRINCIPAL SECRETARY, GENERAL EDN. DEPARTMENT.

EXHIBIT P9 TRUE COPY OF THE LETTER DATED 30-12-13 FROM THE DEPUTY SECRETARY, GENERAL EDN.

DEPARTMENT.

EXHIBIT P10 TRUE COPY OF THE CERTIFICATE ISSUED BY UNIVERSITY OF CALICUT TO PETITIONER FOR M.A. SOCIOLOGY IN THE YEAR 2005.

EXHIBIT P11 TRUE COPY OF THE CERTIFICATE ISSUED BY SREE SWAMI VIVEKANANDA CENTRE OF TEACHER EDUCATION DATED 17-10-2008.

EXHIBIT P12 TRUE COPY OF THE CERTIFICATE ISSUED BY THE HEAD MISTRESS PARLI HIGH SCHOOL, PALAKKAD DATED 16-10-2008.