ANTONY DOMINIC, J. This appeal is filed by the 4th respondent in W.P.(C).No.
8522/2009, which was filed by the 1st respondent herein.
2. The 1st respondent filed the Writ Petition in the following circumstances. The appellant, whose qualifications are B.A (Economics) and B.Ed. (English), was appointed as U.P.S.A. in the school of which the 5th respondent is the manager with effect from 22.11.1999. The 1st respondent, who is a graduate in Economics and is possessing B.Ed. in Social Science, was also appointed as U.P.S.A. in the same school with effect from 15.12.2000. A vacancy of H.S.A.(Social Science) arose in the school with effect from 2.6.2008. The manager appointed the 1st respondent.
3. The appellant objected to the appointment of the 1st respondent by moving the DEO and the DEO rejected the petition by Ext.P2 order, placing reliance of Ext.P1 G.O(P) No.220/05/G.Edn. dated 19.7.2005, where it has been ordered that B.Ed. in the concerned subject along with the degree in the concerned subject is the required qualification for the post of H.S.A (Social Science). On that basis, the DEO held that the appellant, whose degree is in Economics and B.Ed. in English, was not eligible to be promoted as H.S.A (Social Science) in the vacancy that arose with effect from 2.6.2008. Against Ext.P2 order, the appellant filed an appeal before the Deputy Director of Education. The Deputy Director considered the appeal and disposed of the matter by Ext.P4 order dated 19.11.2008. In that order, the Deputy Director placed reliance on Ext.P5, G.O(P)No.165/2008/G.Edn. dated 19.9.2008, where the Government exempted teaching and non-teaching staff, who entered into regular service before 19.7.2004 and had acquired B.Ed. in different subject before that date, from the purview of the Government order dated 19.7.2005 (Ext.P1) excluding H.S.A. (English).
4. Accordingly, the 1st respondent was reverted to the post of U.P.S.A. and the appellant was promoted to the post of H.S.A. (Social Science). The 1st respondent filed a revision before the Government under Rule 92 of Chapter XIV-A of the KER, which was rejected by the Government as per Ext.P9 order. It was in these circumstances, challenging Exts.P4 and P9, the Writ Petition was filed. By the impugned judgment, mainly relying on the fact that Ext.P5 order exempting category of teachers like the petitioner from the purview of Ext.P1 issued only on 19.9.2008, could not have affected the prior promotion of the 1st respondent, the learned Single Judge set aside Exts.P4 and P9 and allowed the Writ Petition. It is this judgment, which is challenged by the appellant, who was impleaded as the 4th respondent in the Writ Petition.
5. We heard the learned counsel for the appellant and the learned counsel for the respondents.
6. The first contention raised before us is that the qualifications of H.S.A (subject) prescribed in Rule 2(2)(a) of Chapter XXXI of the KER are degree in the subject concerned and B.Ed./B.T/L.T conferred or recognised by the universities in Kerala. It is contended that the statutory rule does not make any prescription as contained in Ext.P1 Government Order dated 19.7.2005 that the B.Ed. should be in the subject concerned. Therefore, according to the learned counsel, both Exts.P1 and Ext.P5, which exempt the category of teachers from the purview of Ext.P1, in effect and substance, amount to an amendment to the statutory rule and that such an exercise could not have been done by an executive order evidenced by Exts.P1 and P5 and without amending the statutory rules itself. In support of this contention, the learned counsel for the appellant placed reliance on the judgments of this Court in Manager M.P.V.H.S. School v. Girija [2003 (1) KLT, 935(FB)], Radhamani. v. Director of Public Instructions [ILR 2009 (4) (Ker.) 783, and Mini Antony v. District Educational Officer, 2012 (1) KLT 927.
7. However, this argument of the learned counsel for the appellant was sought to be controverted by the learned counsel for the 1st respondent by contending that Ext.P1 or Ext.P5 does not amount to an amendment to the rule. According to the learned counsel, the rule is silent as to the nature of the B.Ed. to be possessed by a candidate for the post of H.S.A. and, therefore, that ambiguity or omission was sought to be clarified by the Government by issuing Exts.P1 and P5. This, according to the learned counsel, is perfectly within the domain of the Government. In this context, the learned counsel for the 1st respondent placed considerable reliance on the judgment of the Apex Court in Comptroller & Auditor General of India v. Mohan Lal Mehrotra [AIR 1991 SC 2288]. The counsel also placed reliance on the judgment of the Division Bench of this Court in Baiju v. Suguna Prakash [2003 (2) KLT 182], which, according to the learned counsel, recognises the competency of the Government to issue executive orders to implement its policy decisions and also that such orders will not be interfered with by this Court. The learned counsel also pressed into service the principles of promissory estoppel and legitimate expectation in order to salvage the promotion that was granted to the 1st respondent.
8. We have considered the submissions made. We have already noticed the qualifications for H.S.A (subjects) of private schools are contained in Chapter XXXI of the KER. Insofar as H.S.A (subjects) is concerned, Rule 2(2)(a) prescribes degree in the concerned subject and B.Ed/B.T/L.T conferred or recognised by the universities in Kerala, are the qualifications. Here it is to be noticed that while in the case of degree, the rule making authority has chosen to prescribe that it shall be in the subject concerned and that such a restrictive prescription has not been incorporated in the case of the training qualification. Language of the Rule being as above, the fact that the rule does not prescribe that the training shall be in the subject concerned has also been recognised by the Full Bench of this Court in the decision in Manager M.P.V.H.S. School v. Girija [2003 (1) KLT 935 (FB)]. In paragraphs 8 and 9 of the said judgment, it has been held thus:
8. Mr. Devan, learned counsel for the appellant, contended that the rules have made a distinct departure when it comes to High School Assistant (Hindi), and hence, we should interpret the qualification B.Ed. of the training qualification in R.2(2)(b)(iv) as meaning B.Ed. in Hindi only. He also contends that a careful reading of the training qualifications enumerated in Para B would indicate that all the alternatives are like Diploma or Certificate of Language Teachers Training in Hindi, or passing in any one of the examinations of the Kendriya Hindi Sikshan Mandal, Agra, such as Hindi Siksha Praveen, Hindi Sikshan Parangath, and Hindi Sikshan Nishnat. All these, according to the learned counsel, suggest that the emphasis is on teachers training in teaching Hindi language. Hence, learned counsel contended that the B.Ed. qualification prescribed as training qualification for a High School Assistant (Hindi) must necessarily be equivalent to Hindi Teachers Training given in the various options. Ergo, the B.Ed. qualification also must be with Hindi as optional subject. Prima facie, the argument, no doubt, is attractive. But, we cannot make a radical departure only for interpreting R.2(2)(b)(iv) of Chapter XXXI of K.E.R. as that principle would equally be applicable to the interpretation of other clauses of R.2(2)(b) of Chapter XXXI. We have already pointed out that the Certificate in Language Teachers Training is not required to be in a particular language. Thus, there is no reason why we should hold that B.Ed prescribed in Sub-rr. (2)(a), or (2)(b) (i),or (ii), or (iii), or (v), or (vi), or (vii), or (viii) or (ix) of R.2 of Chapter XXXI should be in the subject concerned. In all the subjects referred to in Cls.(i) to (ix) of R. 2(2), B.Ed./B.T./L.T. have always been bracketed. If there was no optional subject for B.T. and L.T., we see no pressing for importing that concept for interpretation while dealing with B.Ed. training qualification required under the said Rules.
9. For all these years, the rules have been interpreted by the rule making authority, the State Government in the Educational Department, as also by the teachers and the Managers of the schools in a particular manner. B.Ed. qualification with the optional subject has never been considered as required. It would, therefore, be quite needless to upset the apple cart and unsettle the position by a judicial interpretative process at this point of time. Firstly, the interpretation would apply retrospectively from the date on which the rule was enacted. Secondly, it would defeat the legitimate expectations of large number of persons who may have obtained B.Ed. or its equivalent in other subjects with a view to get promotion by virtue of R. 43 of Chapter XIV-A, of K.E.R.. In any case, the litera legis is clear and leads to no ambiguity, though it could have been better worded. Finally, the life of law is not logic but convenience, as Justice Holmes said.
Proceeding further and after approving the judgment of the Division Bench in Sindhu v. Kerala Public Service Commission [2001 (2) KLT 507], the Full Bench held in para 11 that if the State Government is of the view that training qualification of a teacher must be in the subject concerned, then they must immediately amend the rule to that effect.
9. Again, in the context of Ext.P1 Government order itself, the question as to whether, without amending the statutory rule, it can be insisted that a candidate should possess B.Ed. in the subject concerned was considered by a learned Single Judge of this Court in Radhamani v. Director of Public Instructions [2009 (4) ILR (Ker) 783], and the question was answered in paragraph 17 thus:
“17. Herein, the relevant rule, viz. Rule 2(a) of Chapter XXXI K.E.R. prescribed the qualifications for H.S.A. (Core Subjects), as a Degree in the concerned subject and B.Ed./B.T./L.T. conferred or recognised by the Universities in Kerala. In Ext.P1 it is specified that B.Ed. in the concerned subject along with Degree in the concerned subject shall be stipulated as qualification for H.S.A. Therefore, really the rule is supplanted and it is not supplemented. While going by the statutory rule, B.Ed. in any subject is sufficient, Ext.P1 is specific that B.Ed. should also be in the concerned subject along with Degree in the concerned subject. Therefore, there is total inconsistency. It is not a case where gaps in the statutory rule are sought to be filled up by an executive order. Even though it is specified in Ext.P1 that formal amendment in KER will be issued separately, the same has not been done so far. As noticed by the Full Bench in Manager, M.P.V.H.S. School's case (2003 (1) KLT 935(FB)) if the Government wanted to provide anything by way of such substitution in the rule, it could have been done only by a statutory amendment itself. This is clear from the decision of the Division Bench in Sindhu's case (2001 (2) KLT 507) which was affirmed by the Full Bench in Manager, M.P.V.H.S. School's case (2003 (1) KLT 935 (FB)). As long as a person is qualified in terms of the prescriptions of Rule 2(a) of Chapter XXXI K.E.R., he cannot be denied the promotion on the ground that he does not possess the qualifications prescribed by Ext.P1 Govt. Order. Without amending the statutory rule, it cannot be insisted that a candidate should possess B.Ed. in the concerned subject.”
The same view has been taken by another learned Single Judge of this Court in the judgment in Mini Antony v. District Educational Officer [2012 (1) KLT 927], and it was held thus:
“9. A perusal of the above extracted rule would reveal that for appointment to the post of HSA(Malayalam), a Degree in Malayalam is essential. The question is whether B.Ed .Degree in Malayalam is essential or not. A scanning of the above rule would reveal that there is specification in the rule that the qualification of a basic Degree in Malayalam is essential. However, there is no such specification with respect to the qualification of B.Ed. Degree. The issue whether for appointment to the post of HSA (Malayalam), the B.Ed. Degree should also be in Malayalam came up for consideration before this court. A Division Bench of this Court in Sindu v.
K.P.S.C reported in (2001(2) KLT 507) held that for appointment to the post of HSA(Malayalam) the B.Ed. Degree obtained by the concerned person need not be in Malayalam. It is so found in terms of R.2 (2)(b)(i) of Chap.XXXI of K.E.R. It was also found that there is no valid Notification clarifying or declaring that what was intended under the rule is a B.Ed. or B.T or L.T. in Malayalam. The said view of the Division Bench in Sindu's case supra (2001 (2) KLT 507) was approved by a Full Bench of this Court in Manager, M.P.V.H. School v. George reported in (2003(1) KLT 935 (F.B.)). Full Bench held that for appointment to the post of HSA, the B.Ed. need not be in the concerned subject. Obviously, the contention of the petitioner as also the 5th respondent that the B.Ed. Degree should also be in the concerned subject, in the instant case in Malayalam, is apparently based on G.O.(Ms) No.11/2003/G.Edn. dated 7.1.2002 and G.O.(P) No.220/2005/G.Edn. dated 19.7.2005. As regards G.O dated 7.1.2002, it is admittedly, concerned with English and its scope and validity was considered by a Division Bench of this Court in Baiju v. Suguna Prasad reported in (2003 (2) KLT 182). It is a Government Order introducing or creating a new category of HSA(English) by reallocating the posts of core subjects and insisting that those candidates aspiring for the post should have a Degree in English with B.Ed. in English. Its validity was upheld by the Division Bench. As per G.O. dated 19.7.2005 taking into account the creation of the new category of HSA(English) by reallocating the posts of core subjects and the insistence for possession of a Degree in English with B.Ed. in English for those who aspired the post of HSA English, it was prescribed that B.Ed. in the concerned subject along with Degree in the concerned subject shall be qualifications for appointment to the post of HSA(core subjects). In the said G.O. dated 19.7.2005, it is further stated:- “Formal amendment in K.E.R. will be issued separately.” A perusal of R.2(2)(a) would reveal that no such amendment was so far been carried out in the K.E.R. even in regard to the HSA subjects viz., core subjects. At any rate, no such Notification qualifying or declaring that what is intended under R.2(2)(b)(i) governing the post of HSA(Malayalam) is B.Ed/BT/LT in Malayalam has been issued so far. In fact, no such Notification has been brought to my notice. Even such an amendment to R.2(2)(a) cannot have any effect or impact on R.2(2)(b)(i). No amendment has been brought to R.2(2)(b) (i) of Chap.XXXI of the K.E.R. mandating possession of B.Ed. in Malayalam for appointment to the post of HSA (Malayalam). There is no challenge against the said rule regarding the possession of qualification in this Writ Petition. In short, as on today, essentially in the light of the decisions reported in (2001(2) KLT 507) and (2003 (1) KLT 935 (F.B.)) and also in view of the rule position the petitioner and the 5th respondent cannot be heard to contend that for appointment to the post of HSA(Malayalam), B.Ed. Degree in Malayalam is essential. ”
Thus the consistent view taken by this Court is that, in the absence of an amendment to the statutory rules in Chapter XXXI of the KER, the requirement of Ext.P1 Government order prescribing that the training qualification should be in the subject concerned cannot be insisted in the case of aided private school teachers. We also do not see any good reason to depart from this principle, as, according to us, so long as the requirement that training qualification shall be in the concerned subject has not been prescribed by the rule making authority, such a prescription could not have been introduced into the rule by an executive order. In that view of the matter, the contention of the learned counsel for the 1st respondent that since the rule was silent on the nature of training qualification that a candidate should possess, there was scope for issuing a clarification, does not merit acceptance.
10. The counsel for the 1st respondent placed reliance on the judgment of the Apex Court in Comptroller & Auditor General of India v. Mohan Lal Mehrotra [AIR 1991 SC 2288]. That was a case which involved promotions in the Audit and Accounts office of the Comptroller and Auditor General of India. The facts disclosed show that the rules do not contain any provision for reservation in the matter of promotion, but executive orders were issued by the Government of India providing for reservation in promotion. The question that was raised before the Apex Court was that reservation could not have been introduced by administrative instructions. This contention was not accepted by the Supreme Court and the Apex Court overruled the judgment holding thus:
“12. The High Court is not right in stating that there cannot be an administrative order directing reservation for Scheduled Castes and Scheduled Tribes as it would alter the statutory rules in force. The rules do not provide for any reservation. In fact, it is silent on the subject of reservation. The government could direct the reservation by executive orders. The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules. (See: the observations in Sant Ram Sharma v. State of Rajasthan, [1968] 1 SCR 111.). In fact similar circulars were issued by the Railway Board introducing reservations for Scheduled Castes and Scheduled Tribes in the Railway services both for selection and non-selection categories of posts. They were issued to implement the policy of the Central Government and they have been upheld by this Court in Akhil Bharatiya Soshit Karamchari Sangh (Railways) v. Union of India [1981] 1 SCC 246]”
However, we are unable to accept this contention of the 1st respondent for the reason that the reservation is a constitutional obligation as contained in Article 16 and the legal principle that reservation can be implemented even by executive orders has been upheld by the Apex Court in the judgment in Indra Sawhney v. Union of India [AIR 1993 SC 477]. Therefore, this judgment now relied on by the learned counsel for the 1st respondent would not help him to salvage his case.
11. The learned counsel then placed considerable reliance on the judgment of the Division Bench of this Court in Baiju's case (supra), where, in the context of the Government order dated 7.1.2002 creating a new cadre of H.S.A (English), this Court held that the policy decision of the Government having a laudable object cannot be interfered by this Court especially when conscious effort is made by the Government to make rules and when the Government order was issued as a temporary measure to implement the policy to avoid hardship. First of all, reading of paragraph 12 of the judgment itself shows that the Division Bench held that the Government order in question was issued for the purpose of filling the gap in the rules and that the said Government order was also issued as a temporary measure pending amendment of the rules. Subsequently, rule was amended retrospectively with effect from 7.1.2002, when the Government order referred to above was issued. Moreover, it requires to be clarified that the category of H.S.A (English) was not covered by any statutory rule and the new cadre of H.S.A(English) to teach English in the Government and aided schools was created by Government order dated 7.1.2002. Secondly, the rule itself has been amended with retrospective effect. Therefore, the purpose of the Government order was only to take care of the temporary situation and fill up the gap. On the other hand, insofar as this case is concerned, Ext.P1 Government order was issued as early as on 19.7.2005 and Ext.P5 Government Order was issued on 19.9.2008. Even after a lapse of all these years and despite the authoritative pronouncements of this Court evidenced by at least three judgments, the Government have not chosen to amend the rules. In such a situation, the principle laid down in the judgment in Baiju's case (supra) cannot be of any assistance to the 1st respondent.
12. Insofar as the principles of promissory estoppel and legitimate expectation pressed into service by the learned counsel for the 1st respondent is concerned, we do not think that these principles can come to the assistance of the 1st respondent, in a case where the validity of the Government Order on the basis of which, the whole claim is raised, itself is found to be unenforceable. That apart, these principles cannot operate against the statutory rules, which is a settled principle of law.
10. The learned counsel for the 1st respondent lastly relied on Ext.P10 judgment of this Court in W.A.No.2296/2007 and connected cases and contended that, relying on Ext.P1 Government order, this Court ordered that vacancies should be filled up on that basis. However, reading of the judgment itself shows that this Court was concerned with the recruitment of teachers in the Government service and not teachers in the private schools. Therefore, the principles laid in Ext.P10, which concerned the recruitment of U.P.S.A. in Government schools alone, cannot have any impact on the rules contained in Rule XXXI of the KER regulating the appointment in private schools. This is all the more so, because in Government service, there are no statutory rules and the recruitment is governed only by executive orders, which can be validly amended by orders such as Exts.P1 and P5.
13. Therefore, we cannot accept any one of the contentions raised by the learned counsel for the 1st respondent, who was supported by the learned Government Pleader on the issue of the enforceability of Ext.P1 order. We make it clear that if the Government wants to enforce their executive decisions as per Exts.P1 and P5 in private aided schools, then it is open to the Government to carry out necessary amendments to the statutory provisions contained in Chapter XXXI of KER.
In the result, we are unable to sustain the judgment of the learned Single Judge. Accordingly, the Writ Appeal is allowed and the judgment of the learned Single Judge is set aside. Consequently, the Writ Petition (Civil) stands accordingly dismissed. No order as to costs.
Sd/-
ANTONY DOMINIC, JUDGE Sd/-
sdk+ ALEXANDER THOMAS , JUDGE ///True copy/// P.S. to Judge