SR ANNAMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was appointed as a Sewing Teacher in the Lower Primary School of which the fourth respondent is the Manager in the year 1962. Her appointment was approved by the Assistant Educational Officer. Her services were terminated for want of vacancy on February 19, 1963. A subsequent vacancy of Sewing Teacher to which the petitioner could be appointed arose in the school on June 3, 1985. The fourth respondent appointed her to the vacancy by virtue of the preference in appointment which she had under R.51A of Chap.14A of the Kerala Education Rules (KER). The appointment was reported to the Assistant Educational Officer for his approval, but he declined approval by the order Ext. P1 on the ground that the petitioner was over aged at the time of her fresh appointment. She had completed 51 years on January 1, 1985 which was beyond the upper age limit prescribed for appointment, under R.1(2) of Chap.14A Manager's appeal to the District Educational Officer and further representation to government under R.92 of Chap.14A were not successful. The appellate and revisional authorities dismissed the appeal and the revision by the orders Exts.P2 and P4 dated 29-1-1986 and 26-12-1987 respectively. In both these orders it was stated that, besides being over aged, the petitioner did not also possess the S.S.L.C. qualification which was required for appointment as a Sewing Teacher. Evidently this latter qualification was insisted on, on the basis of the executive order G.O.(P) No.87/80/G. Edn. dated June 39,1980, requiring possession of S.S.L.C. even for a Sewing Teacher. The petitioner filed this original petition on 19-5-1988 challenging the proceedings Exts.Pl, P2 and P4. She continued in service, and while the original petition was pending, retired from service on March 31, 1989.

(2.) Two reasons are discernible from the impugned orders, for non approval of the petitioner's appointment as a Sewing Teacher. One of these reasons which found expression only in the appellate and revisional orders Exts. P2 and P4, is that the petitioner did not possess the S.S.L.C. qualification. The first question for consideration is whether this is correct. Chap.30 of the K.E.R. prescribes the qualifications for appointment as teachers. R.3(3)(iv) relates to Sewing Teachers. At the relevant time i.e. on June 3, 1985, when the petitioner was appointed, the qualification for appointment as a sewing teacher was a pass in Standard VII and group certificate in needle work and dress making K.G.T.E (Higher) or M.G.T.E. (Higher). This was amended by G.O.(P)No.55/ 87/G. Edn. dated March 6, 1987 published in the Kerala Gazette dated June 16, 1987 by substituting pass in S.S.L.C. examination for pass in Standard VII. Therefore, so far as the statutory rules are concerned, the educational qualification required at the time the petitioner was appointed in June 1985, was only a pass in Standard VII, a qualification which the petitioner possessed. The subsequent amendment to the Rule making it a pass in S.S.L.C. examination cannot affect the appointment already made in June 1985, if otherwise it was in order. But the learned Government Pleader maintains that the petitioner did have to possess the S.S.L.C. qualification by virtue of the government order dated June 30, 1980 which I have already referred. But this Government order cannot supplant the statutory rule requiring only a pass in Standard VII and insist on a higher qualification of S.S.L.C. when the rule itself required only a lesser qualification. The respondents cannot on the basis of an executive order refuse approval of the appointment when the teacher was otherwise qualified as per the statutory rule. The departmental functionaries are governed by the statutory provisions and they cannot act on an executive order which runs counter to those provisions. Government cannot in exercise of their executive functions impose conditions which are not warranted by the statutory provisions. Prescription of a qualification other than that laid down in the rules has to be by amendment to the rule and not by executive order - an exercise which government itself undertook later in the year 1987.

(3.) This precise question in relation to the very same rule came up for consideration by a Division Bench of this Court in Jesilet v. State of Kerala, 1987 (2) KLT 984 where the Bench held that the executive order of the State Government prescribing S.S.L.C. qualification for promotion in addition to the other qualifications prescribed by the Rules was without competence and cannot be enforced. The ground of want of educational qualification of S.S.L.C. stated in Exts.P2 and P4 has therefore to fail.