Kerala High Court
Asha K vs State Of Kerala
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938
OP(KAT).No. 131 of 2016 (Z)
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AGAINST THE ORDERS DATED 19.05.2016 IN OA NO.1165/2013 AND 25.07.2016
IN RA NO.19 OF 2016 IN OA NO.1165 OF 2013 OF THE KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS:
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1. ASHA K.
W/O.SHRI.SAJEESH KUMAR G.P.,
LISSY BHAVAN, CHARUPARA P.O., KILIMANOOR,
THIRUVANANTHAPURAM 695 601
2. BINDU V.
W/O.SHRI BIPIN S.RAJ,, BINDU VILASOM,
NEDUMPARAMBU P.O., ALAMCODE (VIA),
THIRUVANANTHAPURAM 695 102
3. JIJUMON.M.M
S/O.SHRI.A MOHAMMED ILLIAS,
MYMOON, COSMO GARDENS, VALIYAKUNNU,
AVANAVANCHERRY P.O., ATTINGAL,
THIRUVANANTHAPURAM 695 103
4. MOHAMMED RAFFI.M
S/O.SHRI.K.MOHAMED KUNJU,
IRFANA MANZIL (MUSALIAR HOUSE),
THALACHIRA, THALACHIRA P.O., KOTTARAKKARA,
KOLLAM 691 546
5. RAJESH.A
S/O.SHRI.V.P.ANANDAN, SARADHA BHVAN,
KARUNAGAPPALLY, KALLELIBHAGOM P.O.,
KOLLAM 690 546
BY ADVS.SRI.B.RAGHUNATHAN
SRI.M.SALIM
SRI.V.M.JACOB
RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
[CONTD.....]
OP(KAT).No. 131 of 2016 (Z) 2
2. DIRECTOR
HIGHER SECONDARY EDUCATION DEPARTMENT,
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM 695 001
3. DIRECTOR
VOCATIONAL HIGHER SECONDARY EDUCATION DEAPRTMENT,
HOUSING BOARD BUILDING,
SANTHI NAGAR, THIRUVANANTHAPURAM 695 001
4. KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY SECRETARY,
KERALA PUBLIC SERVICE COMMISSION,
PATTOM, THIRUVANANTHAPURAM 695 004
* 5. KERALA ADMINISTRATIVE TRIBUNAL
REPRESENTED BY REGISTRAR,
KERALA ADMINISTRATIVE TRIBUNAL,
VANCHIYOOR, THIRUVANANTHAPURAM 695 035. [DELETED]
* [R5 IS DELETED AS PER ORDER DATED 14/11/2016 IN IA
NO.1496/2016 IN OP(KAT)NO.131/2016.]
BY SENIOR GOVERNMENT PLEADER SRI.T. RAJASEKHARAN NAIR
BY SRI.P.C.SASIDHARAN, SC, KPSC
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 22.11.2016, ALONG WITH OPKAT. 132/2016, OPKAT. 135/2016,
THE COURT ON 21-12-2016 DELIVERED THE FOLLOWING:
OP(KAT).No. 131 of 2016 (Z)
APPENDIX
PETITIONER'S EXHIBITS:-
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EXT.P1 - COPY OF THE ORDER DATED 19.05.2016 IN OA.NO.
1165/2013 OF THE HON'BLE KAT, THIRUVANANTHAPURAM.
EXT.P2 - COPY OF THE ORDER DATED 25.07.2016 IN RA.NO.
19/2016 IN OA.NO. 1165/2013.
EXT.P3 - COPY OF OA.NO. 1165/2013 ALONG WITH ANNEXURES A1 TO
A31(A).
EXT.P4 - COPY OF THE REPLY STATEMENT ALONG WITH ADOPTION
MEMO SUBMITTED BY 1ST RESPONDENT IN THE OA.
EXT.P5 - COPY OF THE REJOINDER ALONG WITH ANNEXURES
A32 TO A 35.
EXT.P6 - COPY OF THE REVIEW APPLICATION NO. 19/2016
RESPONDENTS' EXHIBITS:- NIL
---------------------
//TRUE COPY//
P.A. TO JUDGE
sp
[CASE REPORTABLE]
P.R. RAMACHANDRA MENON & P.SOMARAJAN JJ.
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O.P. (KAT) Nos.131, 132 & 135 of 2016
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Dated this the 21st day of December, 2016
JUDGMENT
P.R. Ramachandra Menon J.
Challenge is against the prescription in Annexure A3 addendum notification issued by the Public Service Commission [PSC], stipulating that, for the purpose of appointment as a Non-Vocational Teacher (English), the relevant qualifications have to be obtained after attending a 'regular course of study' in one of the Colleges affiliated to a University recognised by any of the Universities in Kerala. Grievance is that, no such stipulation is insisted, in so far as Annexure A1 and A2 notifications are concerned; in respect of the post of Higher Secondary School Teachers [both Senior and Junior], despite the fact that the syllabus and the selection process are the same in respect of both the streams. The claim raised in this regard and the challenge O.P. (KAT)Nos.131, 132 & 135 of 2016 2 against Note-I to Rule 6(10) of the Kerala Vocational Higher Secondary Educational Service Rules, 2004 [herein after referred to as Rules, 2004] came to be rejected/repelled by the Kerala Administrative Tribunal as per a common order passed in the OAs. Though a review application was filed, it also came to be dismissed, which is under challenge in these Original Petitions.
2. The petitioners in O.P(KAT) No.131 of 2013 are Post Graduates with M.A. in English Literature having B.Ed. and SET qualification and are stated as eligible for recruitment to both the posts of Higher Secondary School Teacher [HSST-Senior/ Junior (English)] and Non-Vocational Teacher [NVT-Senior/Junior (English)] in the Kerala Higher Secondary Education Department and Kerala Vocational Higher Secondary Education Department, respectively. The said petitioners acquired their Post Graduate Degree from Annamalai University, Madurai Kamaraj University and Sree O.P. (KAT)Nos.131, 132 & 135 of 2016 3 Venkiteswara University, Thiruppathi, respectively. Similar qualifications are possessed by the petitioner in OP(KAT) No.132 of 2016, who obtained the Post Graduation in English from Annamalai University. In the case of the petitioners in O.P(KAT) No.135 of 2016, they also possess all the relevant qualifications and in their case, the Post Graduate Degree in M.A. [English] is from the Kerala University.
3. O.P.(KAT) No.132 of 2016 is stated as the lead case. The parties and proceedings are referred to as given therein, except where it is separately referred to.
4. Heard Mr. B.Raghunathan, the learned counsel appearing for the petitioners, as well as Mr.P.C. Sasidharan, the learned Standing Counsel appearing for the PSC and Mr.T. Rajasekharan Nair, the learned Senior Government Pleader, appearing for the State/ Department.
5. The PSC issued Annexure A1 notification dated O.P. (KAT)Nos.131, 132 & 135 of 2016 4 30.04.2010, inviting application for selection and appointment as HSST-Senior [English]. Subsequently, Annexure A2 addendum notification was issued, inviting applications also for selection and appointment as HSST- Junior [English]. This was followed by yet another notification as Annexure A3, whereby the PSC invited applications from qualified candidates for selection and appointment as NVT-Senior/Junior [English]. The qualifications stipulated for both the streams [HSST/NVT] were almost the same and the only difference in Annexure A3 notification was that the qualification should be one acquired after 'regular study'. Pursuant to the applications preferred by the petitioners, they participated in a common examination conducted by the PSC [common to all the four different posts notified as per Annexure A1, A2 & A3].
6. After assessing the credentials of the candidates who participated in the process of selection, the PSC published a O.P. (KAT)Nos.131, 132 & 135 of 2016 5 'short list' of the candidates, including the petitioners and they were called for verification of the Certificates/records. After the verification of Certificates, the PSC found all the petitioners as eligible for appointment as HSST [English] both Senior/Junior. But they were never included in the list of eligible persons to be appointed as NVT. The petitioners were given to understand that such a differential treatment was given as the requisite qualification mentioned for selection and appointment as 'NVT' was to have acquired after pursuing 'regular study' in the Educational Institution. In the instant case, all the petitioners had acquired the qualification only under a correspondence course/parallel stream and hence they were weeded out, stating that the Certificates produced were not obtained after 'regular study'. This made the petitioners to approach the Tribunal by filing O.A. No.1162 of 2013 [connected with O.P.(KAT) No.131 of 2016], O.A. No.1165 of 2013 [connected with O.P. (KAT)Nos.131, 132 & 135 of 2016 6 O.P.(KAT) No.132 of 2016] and O.A. No.257 of 2014 [connected with O.P.(KAT) No.135 of 2016]. Obviously, the applicants had also challenged the validity of the 'Note' under Rule 6(10) of the Rules, 2004 contending that, it was not sustainable and that there was no nexus/object to have had a differential treatment and hence ultravires.
7. The claim was resisted from the part of the PSC, pointing out that the notification issued by the PSC had clearly stipulated the qualification, insisting to have had the same after pursuing 'regular study' in the College concerned. It was also stated that the said notification was issued in conformity with the contents of the relevant Rule governing the field of recruitment of 'NVTs', which insisted to have the Degree obtained after pursuing 'regular study', unlike the Rule governing the appointment of 'HSSTs'. The difference in the nature of post and curriculum was also sought to be explained and distinguished, pointing out that O.P. (KAT)Nos.131, 132 & 135 of 2016 7 in the case of NVT, the students are taught more in the 'Technical subjects', whereas in the case of HSST, it was in the General subjects.
8. The main contention put forth by the applicants was that, the 'Note' appearing under Rule 6(10) of the Rules, 2004 came to be amended later, adding something more to the original Rule framed in the year 2004. This amendment was stated as based on an 'undertaking' given before this Court that, such an amendment would be made as noted in Annexure A3 judgment dated 25.08.2006 in WP(C) No.12209 of 2006. This was to give equivalence in the qualification and to bring the field of consideration open to all the deserving candidates. According to the PSC, the said amendment had nothing to do with the consideration of eligibility of candidates having Degree obtained by a 'correspondence course' and that the amendment was necessitated only because of the judgment passed by this O.P. (KAT)Nos.131, 132 & 135 of 2016 8 Court to the effect that it was never proper for the State/PSC to have stipulated that the selection will stand confined only to those who had obtained Degree from the 'Universities in Kerala'. This hence was sought to the clarified by adding necessary words, under the 'Note', to the effect that it would be enough, if the qualification is one certified as recognised by anyone of the Universities in Kerala. It is also pointed out from the part of the petitioners that, till issuance of Annexure A1/A2/A3 notifications, Degrees under Distant Education Programme were also being considered for selection and appointment and as such, there is absolutely no rationale in having adopted a different norm as per Annexure A3, which hence was under
challenge.
9. The Rule in respect of appointment to the post of HSST-Senior/Junior (English) is as given below:-
"(i) Masters Degree in the concerned subject with not less than 50% marks from any of the Universities in Kerala or a qualification recognised as equivalent O.P. (KAT)Nos.131, 132 & 135 of 2016 9 thereto in the respective subject by any University in Kerala.
(ii) (1) B.Ed in the concerned subject acquitted after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by a University in Kerala.
(2) In the absence of persons with B.Ed Degree in the concerned subject. B.Ed Degree acquired in anyone of the subjects under the concerned Faculty as specified in the Acts/Statures of any of the Universities in Kerala.
(3) In the absence of persons with B.Ed Degree as specified in items (1) and (2) above, persons with B.Ed Degree in any subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by anyone of the Universities in Kerala.
(iii) Pass in the State Eligibility Test for the Post of Higher Secondary School Teacher conducted by Government of Kerala or by the agency authorised y the State Government."
10. The Rules in respect of the 'NVT' were framed only subsequently in the year 2004, relevant portion of which is extracted below:-
"All the Educational Qualifications prescribed for the post of Non Vocational Teacher in Kerala Vocational Higher Secondary Education Department should be one acquired after a regular course of study from a recognised University in Kerala or recognised as equivalent thereto by any of the Universities in Kerala."
11. It is contended with reference to the law declared by the Division Bench of this Court in Kamala Devi v. O.P. (KAT)Nos.131, 132 & 135 of 2016 10 Kerala State Financial Enterprises Limited [2002 (1) KLT 157] that, to sustain qualification, there must be intelligible differentia and further, it should have some nexus with the object of the statute. Reliance is also sought to be placed on Union of India and others v. Atul Shukla and others [(2014) 10 SCC 432]; which obviously stands on a different footing, as the dictum therein is only that, so long as two employees are the part of a same cadre/rank, they can't be treated differently either for purposes of pay & allowances or other conditions of service, including the age of superannuation. Further, reliance is placed on some communication/correspondence with the UGC as to the importance of the 'correspondence course', as reflected from Annexures A12,A13 & A14. List of the recognised Universities for 'correspondence course' is given as Annexure A16. The Institutions from where the Degree has been awarded to the petitioners, have been O.P. (KAT)Nos.131, 132 & 135 of 2016 11 enlisted therein. As it stands so, the course and proceedings pursued by the respondents to treat the petitioners as a different class is devoid of any merit. Placing reliance on the verdict passed by the Apex Court/this Court in Mujeeb Rahman v. State of Kerala [2005 (1) KLT 680], State of Kerala v. Thulasibai [2011 (3) KHC 65] and Sindhu M.G. and Others v. Santhosh P.G. and Others [ILR 2014 (3) Ker 971], which was upheld by the Division Bench in Sindhu M.G. and Others v. Santhosh P.G. and Others [2014 KHC 440], the learned counsel for the petitioners contended that there could be any difference between 'Regular Degree' and a 'Correspondence Degree'. This is more so, since the subjects and syllabus are one and the same. In the case of HSST, the classes offered in English are as part of main study; whereas in the case of Non-Vocational Sector, the language English is been taught only at a lower level [as the main thrust is upon the 'core O.P. (KAT)Nos.131, 132 & 135 of 2016 12 subjects' dealing with Technical aspects]. Under such circumstance, if the Post Graduate Degree in English under the 'Correspondence course/Distant Education Scheme' is enough, as a proper/recognised qualification for selection and appointment as HSST (main stream); it cannot but be 'enough' in respect of the other course, ie. to teach English in the Non-vocational Sector (where it is only of lessor importance); submits the learned counsel.
12. The learned Standing Counsel for the PSC submits that, absolutely no tenable ground has been raised or established to sustain the challenge against the Rule. It is also pointed out that the stipulation in the relevant Recruitment Rule is based on the study conducted by the expert body/registering authority, also with reference to the nature of the duty to be performed. In so far as the job of a Teacher is involved, the matter assumes more importance. More so, when it comes to the case of a 'Language Teacher', O.P. (KAT)Nos.131, 132 & 135 of 2016 13 having obtained the Degree under a 'regular course', as against the case of similar Teacher under a correspondence course. In teaching a language, proper interaction with the students is very necessary, particularly in connection with the expression, usage and the pronunciation, which cannot be fully achieved under correspondence study. The Rules in respect of 'HSST' were framed in the year 2001 and it was much thereafter, that the Rules in respect of the 'NVT' were framed and introduced in the year 2004. In the Rules for NVT Sector, the Rule making authority has undertaken a conscious analysis and has stipulated that the Degree has to be obtained from the concerned University after a 'regular course study'. Merely for the reason that the Rules framed and introduced earlier in the year 2001 in respect of 'HSST' do not stipulate any such clause, it is not possible to contend that the subsequent Rule in respect of 'NVT' sector is not correct or sustainable.
O.P. (KAT)Nos.131, 132 & 135 of 2016 14
13. The qualification for the post of NVT in English is prescribed in Rule 6(10) of the Kerala Vocational Higher Secondary Education State Rules, 2004, which is reproduced below:-
"(i) Post Graduate Degree in English with not less than 50% marks awarded by any of the Universities in Kerala or an equivalent qualification.
(ii) (1) B.Ed. Degree in the concerned subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by a University of Kerala.
(2) In the absence of persons with B.Ed Degree in the concerned subject. B.Ed Degree in the concerned faculty as specified in the Acts and Statutes of the Universities in Kerala.
(3) In the absence of persons with B.Ed. Degree as specified in item (1) and (2) above persons with B.Ed.
Degree in any subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by any of the Universities in Kerala.
(iii) Must have passed the State Eligibility Test for the post of Non-Vocational Teacher conducted by Government of Kerala or by the agency authorised by the State Government."
The above Rule clearly stipulates that the B.A Degree should be acquired after a 'regular course' of study from any of the Universities in Kerala or the candidate should have a qualification recognised as equivalent thereto by any of the O.P. (KAT)Nos.131, 132 & 135 of 2016 15 Universities in Kerala. A clarification was added in the form of 'Note I', after Rule 6(10), that the educational qualification for the teaching course should be one acquired after a 'regular course' of study from a recognised University in Kerala [or recognised thereto by anyone of the Universities in Kerala].
14. The contention of the petitioners appears to be that, once a course is recognised as equivalent by anyone of the Universities in Kerala, 'regular course of study' should not have been insisted any further. The prayers raised in the O.A. in the above context are in the following terms:
"i) issue a writ of mandamus or other appropriate writ, direction or order to the respondents to include the name of the applicant in the rank list for appointment to the post of Non-Vocational Teacher English (Senior) and further to advice and appoint her to the service.
ii) issue a writ order or direction to declare that Note:1 to Rule 6(1) of the Rules 2004 [if made applicable to Rule 6(1) (English) is illegal and unsustainable.
iii) issue a writ of certiorari or other appropriate writ order or direction to call for the records leading to Annexures A11 to the extent of not including the name of the applicant and quash the same.
iv) grant such other orders which this Hon'ble Tribunal may deem fit and proper in the circumstance of the case.O.P. (KAT)Nos.131, 132 & 135 of 2016 16
and
v) award the cost of this application to the applicant."
15. With regard to the submissions made by the learned counsel for the petitioners with reference to the 'correspondences with the UGC', as to the importance of 'distance education', dealt with as Annexures A12 to A14 [pages 93, 94 & 96], it is to be noted that Annexure A12 dated 28.07.1993 is in respect of the Distance Educational Course offered by Open University established in the country by an Act of Parliament in accordance with the provisions contained in Section 2(f) of the University Grant commission Act, 1956. It was accordingly clarified that these Universities were therefore empowered to award Degrees in terms of Section 22(1) of the UGC Act, 1956. Annexure A14 issued by the AICTE on 13.05.2005 refers to recognition of MBA/MCA awarded by 'IGNOU' established by sub-section (2) of Section 1 of the IGNOU Act, 1985. Similarly, Annexure A15 dated 14.10.2013 is a O.P. (KAT)Nos.131, 132 & 135 of 2016 17 communication issued by the UGC in respect of equivalence of Degree awarded by Open and Distance Learning Institutions established under an Act of Parliament.
16. The issue where the Degree obtained under a correspondence course from Annamalai University can be treated as equivalent to the Degree awarded by the University of Kerala came to be considered by Division Bench of this Court in Shine Bose v. Kerala Public Service Commission [2015 (1) KLT 591]. The question considered by the Bench was with reference to 'Note I' under the Rules for Kerala Vocational Higher Secondary Education Subordinate Service Rules, 2004, which specifically provided that, all the educational qualifications for teaching course should be those acquired after 'regular course' of study from the recognised University in Kerala or recognised as equivalent thereto by anyone of the Universities in Kerala. The verdict passed by the Kerala O.P. (KAT)Nos.131, 132 & 135 of 2016 18 Administrative Tribunal holding that, in so far as 'teaching posts' were concerned, the candidate should have obtained the Degree, after undergoing a 'regular course' of study, was upheld and the O.P.s were dismissed. However, there is a contention for the petitioners that the law declared by the Division Bench of this Court in 2015 (1) KLT 591 [supra] is distinguishable. Despite the said attempted made by the learned counsel, we find it difficult to persuade ourselves to hold that the dictum in 2015 (1) KLT 591 [supra] is distinguishable. As clearly pointed out, the issue involved in the said case [2015 (1) KLT 591] [supra] was whether the basic qualification of M.Com. for appointment to the post of Vocational Teacher obtained under a correspondence course from the Annamalai University was equivalent to be regarded as M.Com. Degree of the University of Kerala. The Bench referred to 'Note I' under the Rules, 2004 [which are statutory Rules in terms of the provisions of the Constitution O.P. (KAT)Nos.131, 132 & 135 of 2016 19 of India and the Kerala Public Service Act, 1968], which specifically provided that all the educational qualifications for teaching course should be acquired after a regular course of study from a recognised University in Kerala or recognised as equivalent thereto by anyone of the Universities in Kerala. The main contention put forth by the petitioner before the Court was that the 'Note' was amended based on the undertaking given before this Court as per the Counter Affidavit filed in WP(C) No.12209 of 2006 that, the Rule was proposed to be amended and that there would be no hurdle in approving promotion of the writ petitioner. But according to the PSC, the amendment was necessitated to give effect to the judgment already rendered by this Court on the point that the Rule could not stipulate that Degree issued from any University in Kerala alone will be considered, thus necessitating the equivallency to be pointed out, which in fact was done by adding the O.P. (KAT)Nos.131, 132 & 135 of 2016 20 'Note'. The submission made before the Court was that, the 'bracketed portion' in the 'Note' giving equivalency to the Degree obtained from a University outside the State was quite categoric, in so far as nothing else was to be looked into, ie., whether it was under the regular study or the correspondence stream. The Bench observed that, if such an interpretation was to be given, candidates qualifying from the University in Kerala, should be those, who had undergone a 'regular course' of study; wheareas a candidate obtaining Degree from any 'University outside the Kerala' without undergoing a regular course of study would become eligible; which was held as fallacious. Observing that the stipulation was in respect of recruitment to a 'Teaching post' and in so far as specific stipulation was there in the Rule to have obtained a Degree after pursuing a 'regular course', if the Court was to dissect the aforesaid Rule and hold that a 'correspondence course' from any O.P. (KAT)Nos.131, 132 & 135 of 2016 21 University was enough as equivalent to a Degree obtained after the 'regular course' of study from the University of Kerala, the result would be disastrous. It was also observed that the prescription that one should have acquired the educational qualification after 'regular course' of study, was a conscious decision of the Government, as borne by the Special Rules and as such, no interference was possible. This Court does not find any reason to deviate from the view taken by the Bench in 2015 (1) KLT 591.
17. Reliance is also sought to be placed by the petitioners on Annexure A34 Circular dated 07.05.2005 issued by the PSC [produced in O.P. [KAT] No.131 of 2016]. As per the said Circular, it is stated that, for selection and appointment of Teachers, Degree obtained by the candidates under 'correspondence course' can also be reckoned to be included in the rank-list. But, as rightly pointed out by the learned Standing Counsel appearing for O.P. (KAT)Nos.131, 132 & 135 of 2016 22 the PSC, the said Circular is only in respect of the 'HSST' and not in respect of 'NVT'. In so far as the qualification prescribed for appointment of 'HSST' is as per the Special Rules of the year 2001, whereas in the latter case, ie., 'NVT', it is governed by separate Special Rules of 2004, there is nothing contradictory from the part of PSC in having issued Annexure A34. As such, the said Circular does not come to the rescue of the petitioners in any manner.
18. With regard to the submission made from the part of the petitioners that a classification, stipulating different norms for appointment of 'HSST' and 'VST' has no basis or nexus, reliance is sought to be placed on the dictum in Kamala Devi v. Kerala State Financial Enterprises Limited [2002 (1) KLT 157] and in Union of India and others v. Atul Shukla and others [(2014) 10 SCC 432]. It is true that similar judgments have been rendered by this Court as well; as per 2005 (1) KLT 680 [supra], O.P. (KAT)Nos.131, 132 & 135 of 2016 23 2011 (3) KHC 65 [supra] and ILR 2014 Ker 971 as upheld in 2014 KHC 440 [supra] to the effect that there cannot be much distinction between 'Regular Degree' and a 'Correspondence Degree'. The reliance sought to be placed on the above verdicts by the petitioners is rather misconceived, in so far as the distinction in the instant case is by virtue of the specific difference between the two sets of Special Rules. In the Special Rules dealing with the appointment of 'HSST' formulated in the year 2001, it is not insisted that the qualification obtained shall be after a 'regular course', whereas in the case of 'VST' governed by separate Special Rules of 2004, it is specifically incorporated that it shall only be after 'regular study' from the concerned College/ University. In so far as the Rules stand distinct and different, and since the relevant Rules are not successfully challenged or that the challenge is not substantiated, the petitioners cannot aspire to have any relief at the hands of O.P. (KAT)Nos.131, 132 & 135 of 2016 24 this Court. Considering the purpose to be achieved, nature and curriculum of the course, the language required to be taught and the circumstances prevailing in the Higher Secondary Sector, on comparison with those prevailing in the NVT Sector, whether there has to be a level playing field/ equalization of qualifications, is a matter for the Government to decide and not for this Court. It is open for the petitioners or such other persons interested in this regard to move the Government to have it considered and dealt with by way of appropriate measures.
19. What was the circumstance under which appointment as 'NVT' was differentially provided to be dealt by the Government/Rule-making authority, insisting to have the qualifications obtained only after 'regular study' unlike the recruitment for 'HSST' [where it was not so necessary], is not known to this Court. In so far as the said Rule stands, which may be a matter of 'policy' or otherwise, the PSC O.P. (KAT)Nos.131, 132 & 135 of 2016 25 could have issued notification inviting applications only in accordance with the Rules and if the selection is made by the PSC on the basis of the said Rules, no interference is possible. This Court does not have the expertise to assess the job requirement and state that, this shall be the Rule or that shall not be the Rule. If the Rule requires any amendment, it is a matter for consideration of the Government.
20. It is true, the subject matter had attracted the attention of the Government as reflected from paragraphs 2, 3 & 4 of the Counter Affidavit dated 07.08.2006 filed by the 1st respondent/State in WP(C) No.12209 of 2009, which are reproduced below:-
"2. It is submitted that in 1983, the scheme of Vocational Higher Secondary Education was started in the State at +2 level. Now there are 375 schools having Vocational Higher Secondary Education courses, 247 n Government sector and 128 in aided sector. The method of appointment and basic qualifications of the posts in Vocational Higher Secondary Schools in Government sector were formulated in 2004 only. The Special Rules of Vocational Higher Secondary Education Department were prepared on the advice of Curriculum Committee O.P. (KAT)Nos.131, 132 & 135 of 2016 26 for Vocational Higher Secondary Education, Law and P&AR Departments and the Kerala Public Service Commission. Therein it is specifically mentioned that all the educational qualifications for teaching posts should be one acquired after a regular course of study from a recognised University. Incumbents who have acquired qualifications in classroom environment direct from the teacher are distinctly different from those who have acquired qualification through distance education. The incumbents who acquired their lessons from th teacher directly are more capable than the others to impart the lessons to their students.
3. But after issuance of the said Special Rules Government have received a number of requests from the public for reconsideration of the clause regarding the educational qualification through distance education. Government in principle admitted the case of the petitioners and directed the Director Vocational Higher Secondary Education to prepare the draft notification along with a number of other suggestions under consideration for amending the Special Rules accordingly. In the Special Rules of Higher Secondary Education Service there is no stipulation with regard to distance education.
4. The prayers of the petitioner are to quash the note in the Special Rules on the regular course of study, to declare the petitioner as eligible for appointment as Non-Vocational Teacher in Vocational Higher Secondary Schools in the State, to appoint her in the School of the 3rd respondent, and to approve her appointment by the 2nd respondent subject to the amendment to the Special Rules. The issue in this Writ Petition pertains to the approval of appointment of a teacher having qualification acquired through distance education in an aided private School. It may be stated that the Special Rules fixing qualifications, method of appointment etc. are yet to be promulgated. Once the Special Rules of Vocational Higher Secondary School in Government Sector are amended suitably, the Special Rules for the aided sector will be formulated on the same lines."O.P. (KAT)Nos.131, 132 & 135 of 2016 27
21. It may appear illogical to say that a more rigorous mode is necessary in obtaining the qualification by way of 'regular study', to make the Teachers eligible to impart learning to the students in the 'Non-Vocational sector', where emphasis is more in teaching the 'Technical Subjects'. Unlike this, the language segment is equally or more important when it comes to the General stream, ie. 'HSST sector'. But as per the relevant Rules, no stipulation admittedly exists insisting for Degree after 'regular study' to be selected and appointed as HSST. If this is an anomaly or a draftsman's error/mistake occurred at the hands of the Government [we do not express any opinion], it is for the Government to have it considered or rectified, if found necessary. This role cannot be assumed by this Court, while testing the correctness and sustainability of the verdict passed by the Tribunal in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. O.P. (KAT)Nos.131, 132 & 135 of 2016 28
22. Another important aspect to be noted is that the disputed Rule is in existence right from the year 2004. Annexure A3 notification was issued by the PSC in the year 2010, clearly stipulating that the qualification concerned shall be after completing a 'regular study' from the Educational Institution. Admittedly, the petitioner did not seek to challenge such stipulation, despite knowing that they did not have any such Degree after completing the 'regular study', but for the Degree obtained under 'correspondence course/distance study'. The petitioners participated in the process of selection without any demur and only on finding that they could not get through in respect of the 'Non-vocational segment' [though came to be considered and placed at appropriate level in respect of the 'HSST' sector], that they sought to challenge Annexure A3 notification, also challenging the 'Note' under the relevant Rule by filing the O.A. in the year 2013/2014. This O.P. (KAT)Nos.131, 132 & 135 of 2016 29 Court finds that the petitioners were virtually sleeping over their rights, if at all any, without choosing Annexure A3 notification to be challenged then and there. It is settled law that the scheme of selection cannot be challenged after participating the process of selection. For this reason also, the Original Petitions preferred by the petitioners are not maintainable.
23. The crux of the above discussion is that the petitioners, being governed by separate Special Rules in respect of the 'Non-Vocational' Sector, insisting to have obtained a Degree from the Educational Institution after 'regular course' and since there is nothing ultravires in the Rules, the OPs are to fail. Such a stipulation is contained in Annexure A3 notification issued by the PSC, in conformity of the Rules and it was published way back in the year 2010, which was never subjected to challenge then and the petitioners consciously took part in the examination. The O.P. (KAT)Nos.131, 132 & 135 of 2016 30 challenge is raised only after finding that they were never considered by the PSC in the 'NVT' Segment [however considering in the HSST Segment, by virtue of the eligibility], for want of Degree after attending a 'regular course'.
24. It is also relevant to note that, though, Review Applications were filed by the petitioners, interference was rightly declined by the Tribunal, holding that there was no error apparent on the face of the record. This Court finds that Ext.P2 Order was passed by the Tribunal after reference to the case projected in the Review Application. The matters were considered in the light of the decisions rendered by this Court and by the Apex Court, on the point. The Tribunal also took note of the dictum laid down by this Court in Pankajakshy and Others v. George Mathew and Others [1987 (2) KLT 723] as to the principles to be considered when a statutory Rule is under challenge. The O.P. (KAT)Nos.131, 132 & 135 of 2016 31 principles enunciated by the Apex Court in State of Gujarat v. Shri. Ambika Mills, Ahmedabad [AIR 1974 1300] [para 132] were also adverted to. Reference was made to the verdicts in 2005 (1) KLT 680 [supra] and 2014 KHC 440 [supra] as well; to find out whether the Rule making authority had made any distinction with respect to the qualifications obtained through a 'regular course' of study or those obtained through 'distance education', as a sure test to decide the point. It was accordingly, that the above review applications were heard along with O.A. No.1162 of 2003 and the merit position was answered against the petitioners/applicants as per Ext.P2 order. Even otherwise, it is settled law that the scope of review is not liable to be misconstrued as a substitute for the appeal, as made clear by the Apex Court in Smt. Meera Bhanja V. Smt. Nirmala Kumari Choudhury [AIR 1995 SC 455].
O.P. (KAT)Nos.131, 132 & 135 of 2016 32
In the above circumstance, we hold that Ext.P1 order passed by the Tribunal declining interference and Ext.P2 order dismissing the Review Applications do not require any interference. The O.Ps. fail and they are dismissed accordingly.
Sd/-
P.R. RAMACHANDRA MENON, JUDGE.
Sd/-
P.SOMARAJAN, JUDGE.
sp/21/12/16 //True Copy//
P.A. to Judge