Balakrishnan Nair, J.

In these writ petitions, the petitioners challenge G.O.(P) No. 104/08/G.Edn. dated 10.6.2008, to the extent it directs that if the term of appointment of an incumbent does not extend to one academic year, even if the duration of the vacancy, in which, he/she is appointed, is one academic year or more, his/her appointment shall be approved only on daily wage basis. According to the writ petitioners, the above direction contained in the aforementioned Government Order runs counter to the statutory rules in the Kerala Education Rules (for short the K.E.R.). W.P.(C) No. 2563 of 2009

2. This case is treated as the main case for referring to the exhibits. In the 4th respondents Higher Secondary School, a vacancy in the cadre of High School Assistant (H.S.A.) (English) arose, as a result of grant of leave to one Shri. Shinoj T. Elias, H.S.A. (English) from 8.7.2008 to 7.2013. The writ petitioner, Ms. Sneha Cherian, was appointed in that vacancy on 10.2008 and the period of her appointment will expire only on 7.2013. The Manager forwarded the said appointment order for approval to the District Educational Officer (D.E.O.). But, the D.E.O. approved the said appointment from 10.2008 to 33.2009 only on daily wage basis. The D.E.O. further stated that the approval was made, relying on Ext.P2, G.O.(P) No. 104/2008/G.Edn dated 10.6.2008. The petitioner submits that the vacancy has a duration of five years and therefore, her appointment should have been approved without any time limit, and that too in the time scale of pay applicable to H.S.As. In support of that submission, reliance is placed on Rule 7A of Chapter XIV A of the K.E.R. The offending clauses in Ext.P2 Government order are clauses 5(i) and (ii). The said clauses read as follows:

"(i) If the period of appointments does not cover one academic year (i.e. from the re-opening day of the school after summer vacation to the closing day for summer vacation), the appointment shall be made only on daily wages.

(ii) If the period of appointment commences after the beginning of the re-opening day but extends over the next academic year/years, the period up to the first vacation shall be approved on daily wages only. Re- appointment can be approved on regular basis, only if the duration of the period of re-appointment completes one academic year. If the period of re-appointment is also less than one academic year, that re-appointment will also be considered only on daily wages basis. In short, fractions of an academic year will not be considered for approval on regular basis."

3. In the case of the petitioner, clause 5(ii) has been made applicable. In the case of other writ petitioners, clause 5(i) was made applicable. The petitioner submits that the above clauses cannot stand with Rule 7A of Chapter XIVA of the K.E.R. and therefore, are ultravires and unenforceable. The petitioner also points out that Ext.P2 Government order mentions about the proposal to amend the Rules in accordance with the terms contained therein. It means, the Government themselves admit that the conditions in Ext.P2 cannot be implemented without amending the rule. So, the reliance placed by the D.E.O. on Ext.P2, before the rules are amended, is unsustainable, it is submitted.

4. The Government did not file any counter affidavit in this case. But, we notice that in the connected cases, the Government have filed counter affidavits. The Government supported the impugned order relying on the contentions raised in those counter affidavits.

5. Weheard Smt. Mary Benjamin, learned counsel for the petitioner as also M/s. K. Ramakumar (Sr.), Kurian George Kannanthanam (Sr.), N.Sugathan, V.A. Muhammed, P.J. Mathew, P.N. Mohanan, Elvin Peter P.J., U. Balagangadharan, C.P. Peethambaran, and Jiji Thomas on behalf of the petitioners in the connected Writ Petitions. We also heard Shri. Benny Gervacis, learned Senior Government Pleader and Smt. R. Bindu, learned Government Pleader for the official resp