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2010 Supreme(Online)(KER) 14163
HIGH COURT OF KERALA
K.S.RADHAKRISHNAN, J
SREEKALADAS – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/19979/2008
SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.T.S.SHYAM PRASANTH, GOVT PLEADER SMT.SMITHA SUKUMAR, SRI.T.R.SADEESAN
Statutory provisions regarding teacher appointments take precedence over executive orders, ensuring entitlements are protected.
Headnote:
Education - Appointment of Teachers - Kerala Education Act - Sections governing teacher appointment and approval.
Fact of the Case:
Petitioners were appointed as teachers in an aided school. The Manager appointed a protected teacher after the petitioners, leading to the statutory authority withholding approval for the petitioners' appointments until the protected teacher's appointment was recognized.
Finding of the Court:
The court found that the petitioners were qualified and that their appointments against existing vacancies could not be denied approval due to later appointments of protected teachers, emphasizing that statutory provisions should prevail over executive decisions.
Issues: Whether the manager's subsequent appointment of a protected teacher impacts the approval of earlier appointments made under statutory authority.
Ratio Decidendi: The court concluded that the statutory framework of the Kerala Education Act prevents denial of approval for qualified appointments simply due to later executive appointments, which do not override statutory entitlements.
Final Decision: The orders denying the approval were quashed, granting approval effective from the original appointment dates.
JUDGMENT
1.Petitioners were appointed as UPSAs in an aided school of which the 4th respondent is the Manager. It is a school which had an obligation to appoint a protected teacher, i.e., to say, a teacher who had been retrenched from another school on account of division fall and who was allotted by the statutory authorities to the 4th respondent school for appointment as protected teacher. Such appointments of protected hands are governed by executive orders. When the question of approval of the appointments of the petitioners went up to the statutory authority, they took the stand that the Manager having appointed a protected teacher only after the appointment of the petitioners, approval of the appointment of the petitioners would be granted only with effect from the date on which the protected teacher was appointed. This issue has to be answered by considering the nature and effect of the executive WPC.19979/08 decision of the Government requiring the appointment of protected hands vis.a.vis. the statutory entitlement of the Manager to make appointments subject to approval, as also the manner in which the Government have applied the executive decision regarding protection as has been noticed in a different case also.
2.Power to make appointment is with the Manager. Vacancy has to be identified. In the case in hand, the fact that there were two vacancies and the appointments of the petitioners were made as against existing vacancies is not disputed. So much so, within the framework of the Kerala Education Act and Rules, there is no room to refuse the approval of the appointment of the petitioners who were admittedly qualified. As against those statutory provisions, the executive decision of the Government stood requiring the Managers to appoint a protected teacher. But that cannot have an overriding effect to take away the entitlement of a teacher appointed under a WPC.19979/08 statutory proceedings to have approval from the date of issuance of the appointment order by the Manger who is the competent authority. Approval has a strong nexus to the entitlement of the teacher to draw emoluments etc. and therefore, in my view, that would visit the teacher with adverse civil consequences. So much so, the statutory rule will have to be preferred over the executive decision of the Government and the executive order requiring the Manager to make appointment of the protected teacher, particularly when the Government have also essentially toned this line in Ext.P12. This fact and the conduct of Government has also been noticed by this Court in the judgment dated 5.8.2010 in W.P(C).No.24599/07 and connected cases.
3.For the aforesaid reasons, the impugned orders are quashed and it is declared that the petitioners are entitled for approval of their appointments under the 4th respondent as per Exts.P1 and P2 with effect from 1.6.2005 and 2.6.2005 respectively.
WPC.19979/08 They are also entitled to all consequential benefits on account of such approval. The writ petition is allowed accordingly.
