Executive instructions cannot override statutory provisions.

1. Prayer in this writ petition is to quash the proceedings of the Director of School Education, Chennai-6, the first respondent herein, made in Na.KA. No. 51525/T1/2/05, dated 4.4.2006, and direct the respondents to approve his appointment in the post of junior grade B.Ed. Teacher with effect from the date of his first appointment on 2.6.2004, if necessary by relaxing the rules if any stands in its way, and consequently disburse all the service and monetary benefits due to the petitioner with effect from the date of first appointment namely 2.6.2004 and pay the arrears within a short date that may be fixed by this Court.

2. Thebrief facts necessary for disposal of the writ petition as stated in the affidavit are as follows.

(a) Petitioner was appointed as Junior Grade B.Ed Teacher in the third respondent School with effect from 2.6.2004. He passed B.Sc.(Geology), M.Sc. (Geology), B.A.(History), MA.(History) and B.Ed degrees. In B.Sc, petitioner studied Physics and Chemistry as ancilliary subjects and in B.Ed, he studied English and Social Science as subjects.

(b) Petitioner was appointed in the third respondent School as Secondary Grade Teacher in an unsanctioned post for which salary was paid by the Parent-Teacher Association and he has worked as such for eight years. Petitioner continued in the said post on the fond hope that whenever vacancy arises, he will be absorbed by the third respondent School and he can get salary from the respondents 1 and 2 on approval.

(c) Petitioner states that one post of Secondary Grade Teacher fell vacant on 1.3.2004. The management applied for grant of permission to fill up the said post and the second respondent by order dated 4.5.2004 granted permission to fill up the post by a Junior Grade B.Ed Teacher. Consequently, petitioner was appointed in the said post on 2.6.2004 and he has been working in the third respondent School, but without getting salary.

(d) On2.7.2004, the management submitted a proposal for approval before the second respondent. However, the proposal was returned on 30.7.2004 by the second respondent stating that the petitioner being a graduate in Geology, he cannot be appointed as B.Ed. Teacher since the subject does not fall within the curriculum of teaching Junior Grade B.Ed Teacher. The said action of the second respondent being contrary to the statutory rule, the management re-submitted the proposal and stated that the petitioner studied ancilliary subjects of Physics and Chemistry and therefore he is able to handle classes and requested the second respondent to approve the appointment of the petitioner, citing previous instances. The second respondent again on 30.12.2004, declined to approve the appointment citing the circular of the first respondent dated 26.10.2004 and stated that while filling up the vacancy of Junior Grade B.Ed Teacher for classes VI to VIII, the area of discipline has been restricted only to Maths, Science, English, Chemistry and History and 20% History posts could be filled up by Geography graduates.

(e) After the said order, the petitioner appreciated the Annamalai University wherefrom he obtained degree, to clarify as to whether the petitioner is competent to conduct classes in Geography for classes VI to VIII. The Registrar of Annamalai University certified that the petitioner is competent to undertake classes in the said subjects. The management also submitted a representation to the first respondent on 29.2.2005 and stated that the circular issued by the first respondent on 26.10.2004 is not applicable to the petitioners case because on the date of his appointment on 2.6.2004, no circular was in force and therefore as per G.O.Ms. No. 125 School Education Department dated 12.11.2003, any graduate can be appointed as Junior Grade B.Ed Teacher and therefore the said circular is not applicable to the petitioner,

(f) The proposal was again re-submitted to the second respondent, which was also returned on 2.6.2005. Thereafter, thir