Kerala High CourtV.Radhamani vs The Director Of Public Instructions on 12 November, 2009Author:T.R.Ramachandran NairBench:T.R.Ramachandran NairIN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 19231 of 2009(Y)


1. V.RADHAMANI, HIGH SCHOOL ASSISTANT
                      ...  Petitioner

                        Vs



1. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
                       ...       Respondent

2. THE DISTRICT EDUCATIONAL OFFICER,

3. THE MANAGER, T.I.H.S.S., NAIMARMOOLA,

4. M.A.MATHEW, U.P.S.A.,

                For Petitioner  :SRI.ELVIN PETER P.J.

                For Respondent  :SRI.S.JIJI

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :12/11/2009

 O R D E R
                      T.R. Ramachandran Nair, J.
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                     W.P.(C) No. 19231 of 2009-Y
                   - - - - -- - - - - - - - - - - - - - - - - - - - -
            Dated this the 12th day of November, 2009.

                                 JUDGMENTThe petitioner is aggrieved by the order Ext.P5 passed by the Director

of Public Instruction, whereby it was held that the 4th respondent is entitled

for promotion from 2.6.2008 as H.S.A. (Social Studies) by reverting the

petitioner as UPSA from 2.6.2008. The relevant facts for the disposal of the

case are the following:2. The petitioner herein was appointed as                UPSA in T.I.H.S.S.,

Naimarmoola on 2.6.1998 and the said appointment has been approved.The 4th respondent is senior to the petitioner. The petitioner's qualification

is B.A. Economics and B.Ed. in History and English, whereas the 4th

respondent possesses the qualification of B.A. History and B.Ed. in English.

One Shri S.R. Vijayakumar was promoted as Headmaster with effect from

2.5.2008 and by Ext.P2 the petitioner was appointed by way of promotion,

as H.S.A. (Social Studies) with effect from 2.6.2008. This was approved

also. The 4th respondent challenged the same before the Director of Public

Instruction on various grounds. He raised a contention that he is senior to

the petitioner and he is having the required qualification also. This waswpc 19231/2009                         2accepted by the Director of Public Instruction.3. The matter therefore will have to be examined in the light of the

qualifications prescribed under the rules and in terms of Ext.P1 Govt.

Order and the further clarification issued by the Government as per Ext.P3.4. Under Rule 2 Chapter XXXI K.E.R. the qualifications prescribed

for the post of H.S.A. (Core Subjects) is a degree in the concerned subject

and B.Ed./BT/LT conferred or recognized by the Universities in Kerala.

As per Ext.P1, the Government decided          that B.Ed. in the concerned

subject along with Degree in the concerned subject shall be stipulated as

qualification for H.S.A. It was ordered that "hereafter for appointment to

the post of H.S.A. (core subjects) B.Ed./BT/LT should be in the concerned

subject along with Degree in the concerned subject. It was further ordered

that "formal amendment in KER will be issued separately."5. The petitioner was promoted in terms of Ext.P1 Govt. Order as

she was having the required qualification of B.Ed. in History and

English , whereas the 4th respondent was having B.Ed. in English only.

The Government, later by Ext.P3 order dated 19.9.2009 modified Ext.P1

itself. Three categories were exempted from the purview of Ext.P1 Govt.

Order. Item (ii) alone is relevant herein, which is extracted below:"(ii) Those teaching and non teaching staff who entered intowpc 19231/2009                        3aided/Government school regular service before 19.7.2005 and had

       acquired B.Ed. in a different subject before that date, aspiring

       promotion/appointment     by   promotion    as   H.S.A.   (subjects)

       (excluding H.S.A. (English)."It was also ordered that formal amendment in K.E.R. will be issued

separately.6.    Learned counsel for the petitioner, by relying upon various

decisions of the Apex Court and of this Court, contended that Ext.P3

cannot be termed as retrospective. The same is dated 19.9.2008. The date

of occurrence of vacancy is 2.6.2008. As on the date of occurrence of

vacancy, the petitioner alone was qualified and any vested right of the

petitioner cannot be taken away by any retrospective effect given to

Ext.P3. It is pointed out that Ext.P3 can apply only to future vacancies, as

an executive order cannot act retrospectively. It is further contended that

even if Ext.P1 is an executive order, it only adds the gap in the rules in

Chapter XXXIII and it does not go contrary to Rule 2 of Chapter XXXI

K.E.R. Alternatively, it is contended that Ext.P1 has not been challenged

by the 4th respondent and therefore the same has to be treated as valid for

all purposes.   It is further pointed out that the promotions and fresh

appointments are made as provided in Ext.P1 itself and therefore theywpc 19231/2009                          4cannot be upset at this distance of time.       Reliance is placed on the

principles stated by the Apex Court and of this Court inPadmanabhan v.

Deputy Director(1991 (1) KLT 337), Gopalakrishnan Nair v. State of

Kerala (ILR 1992 (3) Ker.739), Chairman, Railway Board and others

v. C.R. Rangadhamaliah and others{(1997) 6 SCC 623} and

Anilkumar v. State of Kerala (2009 (3) KLT 650 (FB)).7. Learned counsel for the 4th respondent submitted that the

qualifications prescribed under a statutory rule cannot be amended by an

executive order and therefore Ext.P1 cannot substitute Rule 2 of Chapter

XXXIII in the absence of an amendment which has not been brought into

force so far. It is submitted that this Court and the Apex Court have held

in various decisions that   when an executive order is quite contrary to the

statutory provisions, that cannot have any operation and has to be ignored.

It is further pointed out that going by Ext.P3 which modifies Ext.P1, the

4th respondent clearly comes within its purview.       He is senior to the

petitioner and thus is entitled for grant of promotion, as he is qualified

also.   The learned counsel      relied upon the principles stated in the

following decisions: Ex. Capt. K. Balasubramanian and others v. State

of Tamil Nadu and another {(1991) 2 SCC 708}, Subhash v. State ofwpc 19231/2009                         5Maharashtra and another (1995 Supp (3) SCC 332), T.N. Housing

Board v. N. Balasubramaniun and others {(2004) 6 SCC 85},

Dhananjay Malik and others v. State of Uttaranchal and others

{(2008) 4 SCC 171}, Sindhu v. Kerala Public Service Commission

(2001 (2) KLT 507), Manager, M.P.V.H.S. School v. Girija (2003 (1)

KLT 935 (FB) and Unni Narayanan v. State of Kerala (2009 (2) KLT604).8. The crucial question is whether Ext.P1 which is an executive

order, can go against the specific provisions of Rule 2 of Chapter XXXI

K.E.R. One important contention raised by the learned counsel for the

petitioner is that it does not go against the relevant rules of K.E.R., as the

notification only fills the gaps in the statutory rules, which is a legally

permitted method.9. Therefore, it has to be considered whether Ext.P1 only fills the

gaps in the relevant rules. Herein, the principles stated by this court in an

almost similar situation, requires consideration. The same question arose

in Anitha John's case (2002 (3) KLT 974). Therein, by a Government

Order, viz. G.O.(MS) No.11/2002/G.Edn.dated 7.1.2002), a new cadre of

H.S.A. English was created which was challenged inSuguna Prakash v.wpc 19231/2009                           6State of Kerala(2002 (3) KLT 488). A learned Single Judge of this Court

held that the same are not enforceable without corresponding amendment

to the rules. When the matter came up before the Division Bench, the

Bench considered the question whether the Government Order only fills

up the gap in the rules. After examining the relevant rules, it was held

thus in para 7:"But nowhere in the Rules qualification of H.S.A. (English) is

         prescribed. Therefore, there is a gap in the Rules which can be

         filled up by executive orders. As already stated, English is a

         compulsory subject in Kerala State and English teachers are

         necessary in every division.        Prior to the issuance of the

         Government Order, teachers who were teaching Science,

         Mathematics and Social Studies were allowed to teach English.

         Since S.10 authorises the Government to prescribe qualification

         for teachers and qualification for H.S.A. (English) was not fixed,

         it cannot be said that the executive order passed by the

         Government fixing the qualification is an incorrect or invalid

         order. It is true that executive orders are passed for filling up the

         lacuna in the Rules."It is profitable to refer to para 10 also which is as follows:".........In a number of decisions, it has been held that rules

          prescribing qualifications cannot be changed by executive orders.

          There is no dispute that qualifications prescribed in the rules

          can be changed only by amending the rules.                But here,wpc 19231/2009                         7qualifications for H.S.A. (English) are not prescribed in the rules

         and the Government Order itself shows that it was issued as a

         prelude to the issuance of the Rules. Government has power to

         prescribe qualifications under S.10 of the Act............" (emphasis

         supplied)

The power to fill up the gaps in the rule under Section 10 of the Act was

upheld in the light of the fact that qualifications for H.S.A. English are not

prescribed in the Rules. At the same time, the Bench was of the view that

"there is no dispute that qualifications prescribed in the rules can be

changed only by amending the rules."10. The next decision is by another Division Bench of this Court inSindhu v. Kerala Public Service Commission(2001 (2) KLT 507).It

was affirmed by a Full Bench inManager, M.P.V.H.S. School v. Girija(2003 (1) KLT 935 (FB).These decisions related to the interpretation of

Rule 2(2) of Chapter XXXI K.E.R. In Sindhu's case (2001 (2) KLT507), the Bench examined the question whether, for appointment to the

post of H.S.A. (Malayalam), the B.Ed. degree obtained should be in

Malayalam itself and the answer was in the negative. The appointment

therein related to the post of H.S.A. (Malayalam) in Government schools.

The Government issued a clarification that B.Ed. degree holders can bewpc 19231/2009                         8considered for appointment to the concerned post provided he has a basic

degree in the respective subject and has specialised in the corresponding

subject at B.Ed. level course. It is in the light of the said clarification, the

issue arose for decision. It was held thus in para 6:"The qualification for appointment to the post of High School

         Assistant (Malayalam) prescribed under Ext.P1 notification

         issued by the Public Service Commission is the one notified by

         the Government in Ext.R1(b) order.           The qualification thus

         prescribed in 1980 has not so far been amended. As held by a

         Division Bench of this Court in Jesilet v. State of Kerala, 1987

         (2) KLT 984,       once a rule fully and adequately prescribes

         qualifications for a post, the State Government in exercise of its

         executive powers cannot alter the qualifications for eligibility.Though not directly, the issue was again considered by another

         Division Bench of this Court in the decision reported in Sree

         Sankaracharya University of Sanskrit V. Prasanna Kumari, ILR

         1997 (1) Kerala 319."Finally it was held thus in para 9:"9. Thus so long as a candidate possesses a qualification which

          is notified and which qualification notified is in accordance with

          the rules, it cannot be said that such a candidate is not qualified

          for the only reason that training qualification is not in the

          concerned subject. So long as there is no prescription to that

          effect and so long as the rule/notification regarding

          qualification is not amended, it cannot be insisted that awpc 19231/2009                         9candidate should possess training qualification in the

        concerned subject. As it is now found to be desirable to have

        the training qualification also in the concerned subject at B.Ed.

        level, and since the qualifications prescribed are of 1980, and as

        the Government is also of the said view, we direct the

        Government to take appropriate steps immediately for suitably

        amending the rule." (emphasis supplied)11.InManager, M.P.V.H.S. School's case (2003 (1) KLT 935

(FB)),the above decisionof the Division Bench was upheld. The Full

Bench therein considered the interpretation of Rule 2(a) onwards of

Chapter XXXI K.E.R. In para 8 it was held thus:"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 Rule 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."The issue was further explained in para 9 in the following words:"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 thewpc 19231/2009                         10schools in a particular manner       B.Ed. qualification with the

          optional subject has never been considered as required. It would,

          therefor, 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."Finally, in para 11 it was held 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.          Thus, the

consistent view taken is that without amending the statutory rules, the

particular qualification that B.Ed. should be in the concerned subject,

cannot be insisted.12. Now, I may refer to the principles stated by the Apex Court and

by this Court with regard to the question whether an executive order which

goes against the statutory rules        can survive.      In Ex. Capt. K.

Balasubramanian's case {(1991) 2 SCC 708} it was held that thewpc 19231/2009                          11administrative instructions cannot alter or supersede the statutory rules.

Therein, the express provisions contained in the statutory rules for fixing

the seniority of certain posts, was sought to be altered by administrative

instructions without any corresponding amendment to the rules.InT.N

Housing Board's case {(2004) 6 SCC 85} also the same question was

considered.    Therein also, the statutory regulations were sought to be

supplemented by certain executive instructions. It was found that it will

change the criteria itself. In para 6 it was held thus:"Once it is held that relying         on the basis of the executive

       instructions in terms of Regulation 28(a), the Draftsmen who have

       been getting higher salary are given preference over the diploma-

       holder Junior Engineers, the eligibility criteria contained in the

       statutory Regulations would become otiose; the logical corollary

       thereof would be that the executive instructions would prevail over

       the statutory Regulations. Such a consequence would lead to an

       absurdity and in that view of the matter it must be held that the

       executive instructions cannot be given effect to."13. A Division Bench of this Court in Unni Narayanan's case

(2009 (2) K.L.T. 604) examined the very same question while considering

the interpretation of Rule 7A of Chapter XIV-A K.E.R. The restrictions

imposed by a Government Order, viz. G.O.(P) No.104/08/G.Edn. datedwpc 19231/2009                       1210.6.2008 with regard to the approval of appointment was the subject

matter of challenge. It was held thus in para 7:"In certain circumstances, the Government may be able to issue

        executive instructions, but they have no efficacy to override the

        statutory provisions. We agree with the contentions of the writ

        petitioners that the offending conditions in Ext.P2 Government

        Order cannot stand with the statutory rules.       Therefore, for

        enforcing them, the relevant rules require amendment. As long as

        the rules are not amended, Ext.P2 cannot be pressed into service

        by the Government."14. In answer, learned counsel for the petitioner submitted that

going by the decision of the Apex Court in Dhananjay Malik's case

{(2008) 4 SCC 171}, it has been held that the qualifications prescribed by

the statutory rules and the gaps therein, could be filled up by

administrative instructions. Therein, after examining the relevant rules, it

was found that executive instruction is only a clarification to fill up the

gap between statutory provisions.In para 14 of the said judgment a

decision of a Constitution Bench inSant Ram Sharma v. State of

Rajasthan(AIR 1967 SC 1910) was relied on and the said para is

extracted below:"14. A Constitution Bench of this Court inSant Ram Sharma v.wpc 19231/2009                        13State of Rajasthan(AIR 1967 SC 1910) has pointed out at AIR p.

       1914 that the Government cannot amend or supersede statutory

       rules by administrative instructions, but if the rules are silent on

       any particular point, the Government can fill up the gaps and

       supplement the rules and issue instructions not inconsistent with

       the rules already framed."Therefore, filling up of gaps can be done if the rules are silent.15. I may refer to two more decisions rendered by this Court in

regard to the interpretation of Rule 2(2)(a) of Chapter XXXI K.E.R. In an

unreported decision     in O.P.No.5527/1991, the question whether the

specification by a Government Order dated 21.10.1988 prescribing B.Ed.

in Social Studies for appointment to the post in question was considered.

It was held that as the rule is clearly specific and it does not provide that

training qualification shall be in a particular subject and as there is no

amendment pursuant to the Government Order, the petitioner therein is

qualified to hold the post of H.S.A. Para 2 ofthe said judgmentis

extracted below:"2. Ext.P4 is copy of th Govt. Order dt.21.10.1988. The above

       Govt. Order itself states that formal amendments of K.E.R. will be

       issued separately. But, apparently, no such amendment was made

       to the provisions under the K.E.R. As per the provisions contained

       under Rule 2(2)(a) of Ch. XXXI of K.E.R., the qualificationwpc 19231/2009                         14prescribed for High School Assistants are a Degree in the

       concerned subject and B.Ed./B.T./L.T. conferred or recognised by

       the Universities in Kerala. But, it is not provided that training

       qualification shall be in a particular subject. As mentioned earlier,

       the above provision is not amended pursuant to Ext.P4 Govt. Order.

       Under these circumstances, it has to be taken that the petitioner is

       qualified to hold the post of High School Assistant."InBose William v. State of Kerala(2002 (2) KLT 34) also the question

arose whether postgraduate degree in English Language and Literature

with B.Ed. qualifies for the post of H.S.A. (Social Studies).         While

examining the power of the rule making authority to issue executive

orders in such matters, it was held thus in para 13:" Under S.10 of the Kerala Education Act, the Government has got

      the power to prescribe the qualifications to be possessed by persons

      for appointment as teachers in Government and private schools.

      This can be done by framing statutory rules as also by executive

      orders. Of course, when the field is covered by a rule, there is no

      scope for issuing executive orders. However, the necessity to issue

      orders cannot be totally obviated even in a case where rules govern

      the field. It is settled law that a gap in the statutory provision, can

      be filled up by executive orders which are not inconsistent with the

      Rule. The executive authority can supplement the rule but not

      supplant. The position would have been entirely different if the rule

      specifically used the expression 'Bachelors degree' instead of sayingwpc 19231/2009                        15'degree' only. In such a case the executive authority will not have

      the power to delete the word 'Bachelor' and substitute the same with

      any other expression including Post-graduate or Masters degree."16.    Thus, the position is clear, in that the prescriptions of a

statutory rule cannot be sought to be amended by an executive order.

Thus, when it is covered by a rule, whereby a particular qualification is

prescribed in the rule itself, it cannot be     varied    by issuance of an

executive order. The true test is whether there is any inconsistency in the

rule. As held by this Court inBose William's case (2002 (2) KLT 34,

the executive authority can supplement the rule, but not supplant.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 thewpc 19231/2009                       16statutory 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 inManager, 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 inSindhu's case (2001 (2) KLT 507) which was affirmed by the Full Bench

inManager, 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.18. The effect of Ext.P3 is only to obliterate the effect of Ext.P1

for persons like the fourth respondent. It is the contention of learned

counsel for the petitioner that Ext.P3 cannot be termed as          having

retrospective effect, and reliance is placed on the decision of the Apex

Court in Chairman, Railway Board and others' case {(1997) 6 SCCwpc 19231/2009                        17623} to contend that      the vested rights cannot be taken away by a

retrospective amendment. Herein, it is true that the petitioner obtained

promotion based on Ext.P1. That was challenged by the 4th respondent at

the right point of time and meanwhile, Ext.P3 itself was issued by the

Government modifying Ext.P1.        Therein also, it is specified that the

statutory rules will be amended. If the relevant statutory rules cannot be

set at naught by an executive order like Ext.P1, then without any

amendment of the rules in terms of Ext.P1, the 4th respondent can maintain

that   he is perfectly qualified in terms of     Ext.P3 wherein Ext.P1 is

modified. Therefore, the argument that the vested right has been affected

by the issuance of Ext.P3, cannot hold good.19. Then, the further contention raised by the learned counsel for

the petitioner is that as Ext.P1 has not been specifically challenged by the

4th respondent, the order is liable to be treated as valid and enforceable.

The decision of a Division Bench of this Court in           Gopalakrishnan

Nair's case (ILR 1992 (3) Ker. 739 was relied upon to contend that Ext.P1

order, if not challenged, will survive. In para 18 of the said judgment, it

was held as follows:"But at the same time it is equally a well settled principle that

        unless a court of law either sets aside or declares an administrativewpc 19231/2009                         18instruction, direction or order as invalid and inoperative, it will be

         presumed to be valid and operative."In fact, therein an executive order Ext.P4 was opposed on the ground that

it violates the Special Rules. Ultimately, the Division Bench held that the

said administrative instruction goes against Rule 9 of the Special Rules.

This is clear from paragraphs 25 and 26 of the said judgment. Therein

also, there was no prayer for declaration to the effect that Ext.P4 is invalid.

The Division Bench was of the view that "if it was found that Ext.P4 was

invalid, we do not think that a relief to that effect could have been denied

to the petitioners merely on the ground that the petitioners have not made a

specific prayer for declaration that Ext.P4 is invalid and inoperative."

Therefore, the said decision will also not help the petitioner.         In the

decision of the Full Bench in Anilkumar's case (2009 (3) KLT 650(FB),

reference was made to Ext.P4 Govt. Order produced, wherein B.Ed. in

English became an obligatory qualification for appointment as H.S.A.

(English) from 19.7.2005. It is therefore contended that by executive

orders, qualifications can be fixed. There cannot be any controversy

regarding that, but it can be done only subject to well-known exceptions.

But the question is whether the said prescriptions go against the express

provisions of the statutory rule. Therefore, the above decision also willwpc 19231/2009                       19not help the petitioner.20. In W.A. No.2529/2005 and connected cases, recently a Division

Bench held that when certain conditions of Government Orders are sought

to be enforced, if the conditions are ultra vires and illegal, even in the

absence of a formal challenge, this court will be entitled to ignore the said

conditions. It was held thus in para 26:"Finally, an objection was raised by the learned Government

       Pleader that the 8th respondent who accepted the conditional

       sanction of course cannot now be allowed to turn around and

       contend that they will not abide by the conditions. Once we have

       concluded that the conditions relied on by the Government are in

       violation of the provisions contained in the Direct Payment

       Agreement and University Statutes, these conditions are ultra vires

       and illegal and if so, when these conditions are sought to be

       enforced, even in the absence of a formal challenge to those

       conditions, this Court will be justified in ignoring those

       conditions."Reliance was placed on the judgment of the Apex Court inBharathidasan

University and another v. All India Councilfor Technical Education

and others {(2001) 8 SCC 676}. The Apex Court, in para 14 ofthe said

judgmentheld thus:"The fact that the Regulations may have the force of law or whenwpc 19231/2009                        20made have to be laid down before the legislature concerned does

       not confer any more sanctity or immunity as though they are

       statutory provisions themselves. Consequently, when the power to

       make regulations is confined to certain limits and made to flow in a

       well-defined canal within stipulated banks, those actually made or

       shown and found to be not made within its confines but outside

       them, the courts are bound to ignore them when the question of

       their enforcement arises and the mere fact that there was no specific

       relief sought for to strike down or declare them ultra vires,

       particularly when the party in sufferance is a respondent to the lis or

       proceedings cannot confer any further sanctity or authority and

       validity which it is shown and found to obviously and patently lack.

       It would, therefore, be a myth to state that Regulations made under

       Section 23 of the Act have "constitutional" and legal status, even

       unmindful of the fact that any one or more of them are found to be

       not consistent with specific provisions of the Act itself."Therefore, the contention raised by the learned counsel for the petitioner

that in the absence of a specific challenge against Ext.P1 order, the 4th

respondent cannot argue that the same is inconsistent with the statutory

rules, cannot be accepted.     If Ext.P1 cannot be recognised as being

inconsistent with the statutory rules, this Court can ignore the provisions

contained therein, as being contrary to the statutory rules.21. Learned counsel for the 4th respondent further argued that in thewpc 19231/2009                         21memorandum of revision filed before the Director of Public Instruction, a

specific contention was raised by him that in the light of the express

provisions of Chapter XXXI K.E.R., Ext.P1 cannot be enforced by the

Government. It is submitted that obviously in the light of Ext.P3, the said

question was not examined by the Director of Public Instruction.22. In Ext.P5, it has been held that the 4th respondent is senior to

the petitioner. The view taken is that the conditions in Ext.P1 having been

relaxed by Ext.P1 in terms of the specific provisions therein, the 4th

respondent is entitled to be promoted. A reading of Ext.P3 shows that the

Government was of the view that Ext.P1 will stand modified in terms of

the provisions contained therein. Clearly, the 4th respondent is entitled to

rely upon the same. In that view of the matter also, the reasoning adopted

in Ext.P5 cannot be rejected. The question is not whether Ext.P3 is

retrospective in nature, so as to affect the vested rights of the petitioner, as

contended by the learned counsel for the petitioner.           Ext.P3 clearly

modifies the terms contained in Ext.P1.23.    It  was vehemently argued by the learned counsel for the

petitioner that Ext.P1 had been implemented in respect of various persons

and recruitments have been made already, which aspect will justify that in

the light of the common course of events, it has to be recognised as legallywpc 19231/2009                        22valid.   It is submitted that the order Ext.P1 has been passed after

consultation with the Public Service Commission and after the

Government found that it is highly necessary that the qualifications

prescribed for core subjects should be modified. It is therefore submitted

that Ext.P1 cannot be read in isolation and the effect of the same has to be

considered as one which is salutary in nature and is in tune with the

Government Orders relating to recruitment in Government High schools.

The observations of the Division Bench in para 7 of the judgment in

Anitha John's case (2002 (3) KLT 974) are also relied upon in support of

the above plea.    As already held, the circumstances considered by the

Division Bench therein are totally different and on examination of the

various aspects, it was held that the Government Order therein only fills

the gap. There was nothing in the rules prescribing qualifications for the

post of H.S.A. in English. But herein, the situation is similar to the one

considered by this court in the unreported judgment in                   O.P.

No.5527/1991.     No amendment was introduced in terms of Ext.P1.

Therefore, it cannot be insisted that the training qualification shall be in a

particular subject, going by the relevant rules in Chapter XXXI K.E.R.

The fourth respondent being qualified as per the rules, is liable to be

promoted in accordance with seniority.wpc 19231/2009                        2324. In that view of the matter, the order Ext.P5 cannot be said to be

illegal, as contended by the learned counsel for the petitioner. The 4th

respondent was duly qualified in terms of the statutory rules and the effect

of Ext.P1 Govt. Order stands obliterated in the light of Ext.P3 modified

Govt. Order itself.   Therefore, on both these grounds, the 4th respondent

was entitled to be promoted.Therefore, the writ petition fails and the same is dismissed. No

costs.(T.R. Ramachandran Nair, Judge.)



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