Kerala High Court
Annamma vs State Of Kerala on 7 February, 2005
Equivalent citations: 2005(2)KLT254
Author: Thottathil B. Radhakrishnan
Bench: Thottathil B. Radhakrishnan
JUDGMENT Thottathil B. Radhakrishnan, J.
1. The petitioner and the 4th respondent scouted to this Court and before the Government and other statutory authorities, in relation to their rival claims for being appointed as H.S.S.T. (English) in the School of which the 3rd respondent is the Manager, as on 1.8.2000, the date on which, by Ext.P4, the petitioner was appointed to the said post.
2. Leaving aside a ground of attack to the impugned Ext.P16 on the ground that the same has been issued through an officer who was not the one who heard the parties before the issuance of such order by the Government, I proceed to decide the issue regarding the merits of the rival claims since the same involves consideration and interpretation of certain decisions of the Apex Court, as also the Government Orders which are relevant as on the date of the occurrence of the vacancy to which the petitioner has been so appointed.
3. By G.O.(MS) No. 162/98/G.Edn. dated 13.5.1998, the Government of Kerala came out with its policy decision regarding Higher Secondary Course and sanctioned such course in 95 Government Schools and 178 Aided Schools, laying down, among other things, that 25% of the vacancies of the H.S.S.Ts. in the Government and Aided Higher Secondary Schools will be filled up by appointment from qualified High School Assistants and Primary School Teachers. Along with that Order, qualifications were not prescribed.
4. By G.O.(Ms)No. 110/99/G.Edn., dated 13.5.1999, the Government prescribed the qualifications. We are concerned with that prescribed for appointment as H.S.S.T. in English. This is governed by paragraph 2(i) of the said Government order. It is the admitted position that the petitioner and the 4th respondent were fully qualified as per the said paragraph 2(i) of the said Government Order as on 1.8.2000, the date on which the petitioner was appointed.
5. By G.O.(MS) No. 268/99/G.Edn. dated 3.11.1999, consistent with the National Education Policy, having introduced Higher Secondary Course, the Government proposed to introduce an eligibility test, commonly referred to as the State Eligibility Test (SET). Following that, by G.O.(MS) No. 289/99/G.Edn. dt. 25.11.1999, qualifications etc. were prescribed for the said Test.
6. By G.O.(MS) No. 341/99/G.Edn. dated 30.12.1999 (Ext.P3), SET was made applicable to all H.S.S.Ts. who had been appointed after the academic year 1995-1996 and it was decided by the Government, as an interim measure, that appointments to Higher Secondary Schools during the years 1999-2000 and 2000-2001 can be made from the candidates having the required educational qualifications subject to the condition that such candidates should pass the SET within a period of two years from the date of appointment. Those teachers who were appointed prior to 1995-1996 stood permanently exempted from passing the SET.
7. According to the learned counsel for the contesting 4th respondent, paragraph 5 of the said Government order which stipulated that SET is a mandatory qualification, runs contrary to the afore-referred interim measure and therefore, the same amounts to a modification of paragraph 1 of the said Government Order. I am unable to agree with the said contention since the Government Order has to be read as a whole and all that is stated in paragraph 5 is the predominant situation that is sought to be achieved by modifying G.O.(MS) No. 110/99/G.Edn. dt. 13.5.1999, whereas the provision made in paragraph 1 of the Government Order, G.O.(MS) No. 341/99/G.Edn. dt. 30.12.1999 is an interim measure, consciously made by the Government after adverting to and considering all relevant matters. There is no reason or rationale to come to any conclusion to the contrary.
8. Thus, by the aforesaid Ext.P3 Government Order dated 30.12.1999, appointments for the years 1999-2000 and 2000-2001 could be made from candidates having the required educational qualifications subject to the condition that they shall pass the SET within a period of two years from the date of appointment. The same is part of an executive order. There was no prescription either in the said Government Order or in any of the Government Orders that preceded it that the question of exemption would arise only in cases where candidates with SET qualification are not available.
9. As stated above, by Ext.P4, the petitioner, who was fully qualified, in the sense that she had the required educational qualifications, was appointed as H.S.S.T.(English) with effect from 1.8.2000. That was at a point of time when appointments of H.S.S.Ts. stood governed by an interlocutory order dated 7.12.1999 issued by the Hon'ble Supreme Court of India in M.M. Dolichan's case (Ext.Pl). This was the interim order that governed the Aided Schools sector till Dolichan's case was ultimately decided by judgment dated 14.11.2000, (2001) 1 SCC 151. As per Ext.P1, either Lordships had directed as follows:
"In the case of private aided schools, by way of an interim order, we direct that if suitable qualified candidates among the existing teachers already working are available in those schools, they may be appointed purely on ad hoc basis as a stop gap arrangement subject to further orders. These persons shall be appointed on the recommendation of a Selection Committee constituted by the Manager or his representative of the school, Principal of the school and a Government nominee from the panel of officers consisting of Deputy Director, Education, DEO of the area and DIET Principal of the District. If such suitable candidates are not available, then the teachers may be appointed from the open market, also on ad hoc basis as stop gap arrangement at the recommendation of the aforesaid Selection Committee. All the candidates will be informed that their appointment is purely on ad hoc basis and subject to the final outcome of these appeals".
10. Therefore, the question that arises is as to what was the qualification for making appointments after the said order of the Apex Court made on 7.12.1999. Obviously, as already noticed, the situation stood governed by Ext.P3.
11. It is pointed out by the learned counsel for the 4th respondent, though not pleaded by any party to this limitation and though not considered and relied on by the Government during its consideration of the case, that on 31.7.2000 i.e. the day immediately preceding Ext.P4 order of appointment of the petitioner, the Government had issued G.O.(Rt) No. 3168/2000/G.Edn., stated to be pursuant to the issuance of the aforesaid interlocutory order of the Apex Court, inter alia, further stating that priority shall be given to candidates who have passed SET, while making appointments in Government as well as in aided schools. Apart from the fact that this Government Order has not been considered even by the Government while the impugned order was issued, the said Government Order could not have imposed any condition over and above that contained in the interim order of the Supreme Court which was to govern the parties during the pendency of Dolichan's case before the Apex Court. That apart, the same is only a routine Government Order and cannot be read as containing any policy decision varying Ext.P3.
12. By the judgment dated 14.11.2000 in Dolichan's case, the Apex Court, among other things, directed that all the teachers in private schools who were appointed pursuant to the interim order dated 7.12.1999 during the pendency of that case, would be held to be duly appointed to the post and their services will not be annulled. This means that all appointments made pursuant to the aforesaid interim order dated 7.12.1999 will not be annulled provided they are in accordance with the said order dated 7.12.1999. As already noticed, the interim order of the Apex Court passed on 7.12.1999 required that appointments shall be made among suitable qualified candidates among the existing teachers already working and available in the schools. It is not in dispute that the petitioner was an existing teacher already working and available in the school and had the educational qualification prescribed by G.O.(MS) 110/99/G.Edn. dt. 15.3.1999. She had to her benefit the provision in paragraph 1 of Ext.P3 which provided that the promotions have to be made from the candidates having the required educational qualification, subject to the condition that such candidates should pass the State Eligibility Test. As on that date, petitioner is admittedly much senior to the 4th respondent in the cadre of H.S.As., the petitioner having been so appointed on 1.8.1974 and the 4th respondent only in 1983, Therefore, having been in possession of the prescribed educational qualification, the petitioner, the admitted senior, was found qualified and appointed with a liability to pass SET within a period of two years. There is no prescription in Ext.P3 which excluded the consideration of teachers who had not passed SET when others, who had passed SET, were available. In other words, there is no rule inherent in Ext.P3 that those teachers without SET would be considered only in the absence of teachers with SET qualification. So much so, the decision of the Manager to appoint the petitioner as per Ext.P4 cannot be found fault with.
13. The learned counsel for the 4th respondent relied on Ext.R4(h) judgment of this Court in which reference was made to a Government Order dated 25.8.2000 (G.O.(MS) No. 298/2000/G,Edn.) wherein the SET qualified teacher ought to be preferred over one who did not have such qualification. That is a Government Order containing a policy decision of the Government and is not a routine one. It was on the basis of the said Government Order that Ext.R4(h) was made. That Government Order was issued much after the petitioner was appointed. Therefore, the principle contained in the said decision cannot be imported as a precedent to apply to this case.
14. In this view of the matter, Ext.P4 order appointing the petitioner as H.S.S.T. (English) ought to have found approval at the hands of the statutory authorities. Be that as it may, the 4th respondent complained against the same. Notwithstanding the controversy as to whether the 4th respondent is entitled to be considered as against any among the vacancies that arose during the subsequent year, which was also found in his favour by the Government, there was no room for the Government or any among the statutory authorities to have concluded that the petitioner's appointment as per Ext.P4 is invalid. The observations made by the D.E.O. in Ext.R4(b) are also out of place since that was issued on 4.11.2000 and obviously not referable to Ext.P3, the Government Order that governs the situation.
15. In the result, the impugned Ext.P16 Government Order is quashed and I direct that the appointment of the petitioner as H.S.S.T. in English as per Ext.P4 be approved with effect from 1.8.2000 and all consequential benefits shall flow to her within a period of two months from the date of receipt of a certified copy of this judgment.
16. As rightly pointed out by the learned counsel for the contesting 4th respondent, this judgment shall not stand in the way of the 4th respondent's entitlement to relief as regards the post for the academic year 2001-2002, which issue is stated to be pending before the Government and the Government shall consider and dispose of the same untrammelled by anything stated herein.
This Writ Petition is allowed as above.