Kerala High Court
Elizabeth P.M vs Siji Abraham on 6 February, 2020
Equivalent citations: AIRONLINE 2020 KER 45
Bench: A.M.Shaffique, Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947
WA.No.423 OF 2016
AGAINST THE JUDGMENT IN WPC 19386/2006 DATED 03-12-2015 OF HIGH
COURT OF KERALA
APPELLANT/4th RESPONDENT IN THE WP(C):
ELIZABETH P.M.
HSST (COMMERCE), MKM HIGHER SECONDARY SCHOOL,
PIRAVOM, ERNAKULAM DISTRICT.
BY ADVS.
SRI.S.RAMESH
SRI.NAVEEN.T
SMT.POOJA SURENDRAN
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 IN THE WP(C):
1 SIJI ABRAHAM
MKM HIGHER SECONDARY SCHOOL, PIRAVOM, NOW RESIDING AT
PUTHURKUDILLIL, PERUMBADAVOM P.O., AVARMA.
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY, GENERAL EDUCATION
DEPARTMENT, THIRUVANANTHAPURAM-695 001.
3 DIRECTOR OF HIGHER SECONDARY EDUCATION
DIRECTORATE OF HIGHER SECONDARY EDUCATION,
HOUSING BOARD BUILDING, THIRUVANANTHAPURAM.
4 MANAGER
MKM HIGHER SECONDARY SCHOOL, PIRAVOM,
ERNAKULAM DISTRICT.
R2 & R3 SRI. B. VINOD-SR.G.P.
R1 SRI.PAULSON THOMAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.01.2020, THE
COURT ON 06.02.2020 DELIVERED THE FOLLOWING:
W.A.No.423/2016
2
JUDGMENT
Dated this the 6th day of February, 2020 Shaffique, J.
The 4th respondent in WP(C) No.19386/2006 has preferred this appeal challenging the judgment dated 03.12.2015 by which the learned Single Judge allowed the writ petition and has issued a direction to approve the petitioner as Higher Secondary School Teacher (HSST) from 16.09.2002 and to provide him all service benefits.
2. The short facts of the case are as under:
The petitioner was appointed as HSST (Junior) Commerce in the school managed by the 3rd respondent on 18.10.2001. At the relevant time, he was having M.Com. Degree and had more than 50% marks.
Petitioner contended that Chapter XXXII of KER prescribing qualification for the said post, was notified only on 12.11.2001 and at the time when the petitioner was appointed, Government orders held the field. As per the Government orders, persons like the petitioner were granted time to acquire B.Ed. within a period of three years which was subsequently extended by another two years up to 26.11.2006.
Petitioner's appointment was approved with effect from 05.08.2002, the date on which he passed State Eligibility Test (SET). The petitioner proceeded on leave for acquiring B.Ed. from 07.08.2002 and he was W.A.No.423/2016 3 granted leave up to 31.03.2003. One Sabu George who was working as HSST (Sr.) Commerce resigned from the post. The Manager invited applications for filling up the said post and appointed the 4 th respondent by direct recruitment with effect from 21.10.2002. The Director of Higher Secondary Education rejected the approval of the 4 th respondent, as direct recruitment could have been resorted only in the absence of qualified hands from the lower level of the school to be appointed by transfer. The 4th respondent preferred a revision before the Government and the Government reversed the decision of the Director on the ground that as on the date of occurrence of the vacancy, i.e., 16.09.2002, the petitioner was undergoing B.Ed. course and was not fully qualified and therefore the appointment of the 4 th respondent was justified. The writ petition was filed challenging Ext.P4 Government order by which the appointment of the 4 th respondent was approved.
3. The 4th respondent filed a counter affidavit supporting the stand of the Government. It is inter alia contended that as on the date when the vacancy arose, the petitioner did not have the necessary qualification, as he did not possess B.Ed. degree. That apart, it was contended that the petitioner did not complete his probation and was not eligible for any promotion. Further, he was on leave and was not eligible to be considered for promotion. It was argued that since he W.A.No.423/2016 4 was on leave without allowance for the purpose of study, there is forfeiture of the previous service.
4. During the pendency of the above writ petition, the 4 th respondent resigned on 10.02.2010 and the 3 rd respondent appointed the petitioner in the said resignation vacancy with effect from 01.07.2010.
5. The learned Single Judge rejected all the contentions urged by the 4th respondent and held that the petitioner ought to have been promoted to the said vacancy.
6. The first contention urged by the learned counsel for the appellant is that the petitioner was not qualified to be appointed as HSST (Junior) on account of the fact that he did not have B.Ed. qualification. It is the case of petitioner that as per various Government orders, time was granted to enable the HSS teachers who did not have B.Ed. to acquire the said qualification. Reference is made to Exts.P9, P10, P11 and P12 Government orders. Ext.P9 is the Government order dated 25.09.1991. By this Government order, it was mentioned that wherever B.Ed. holders in Commerce are available, they will be given preference in appointment as HSST. It was also ordered that candidates who had taken M.Com. Degree prior to 1991 and who attained the upper age limit within two years will also be given some preference in appointment of HSST, subject to the W.A.No.423/2016 5 condition that they will execute an agreement to the effect that they will acquire B.Ed. degree within three years. Petitioner has taken his degree in Commerce in April, 2003, as evident from Ext.P13 and therefore he could have acquired M.Com. only after 2003. Therefore, Ext.P9 Government order can have no application to the case of the petitioner. Ext.P10 is yet another Government order dated 13.05.1999. It was ordered that with reference to Sociology/Commerce and certain other subjects, the HSS teachers should have second class Masters Degree in the respective subjects with not less than 50% of the marks from one of the Universities in Kerala or a qualification declared as equivalent thereto as notified. It was further indicated that "B.Ed. degree is not essential in these disciplines except Commerce at the time of appointment, but the candidates should acquire B.Ed. within three years". Based on Ext.P10, argument of the learned counsel for the appellant is that in so far as by Government order dated 13.05.1999, B.Ed. degree was considered as not essential in respect of certain other subjects, with reference to Commerce, that exemption was not given. With respect to other disciplines, candidates were to acquire B.Ed qualification within three years. Ext.P11 is yet another Government order dated 28.01.2000. After referring to the earlier Government order dated 13.05.1999, it was clarified that the Government order dated 25.09.1998 is still valid and not yet cancelled W.A.No.423/2016 6 and the Government order dated 13.05.1999 stands modified to that extent. On the basis of Ext.P11, it is argued by the learned counsel for the appellant that the benefit of Government order dated 13.05.1999 also is with reference to those teachers who had acquired M.Com. prior to 1991 and would attain upper age limit within two years. Ext.P12 is yet another Government order dated 16.11.2000. By the aforesaid order, the time specified in the Government order dated 13.05.1999 was extended by another two years.
7. The learned Single Judge observed that the petitioner was qualified in terms of the Government orders and they had to acquire the B.Ed. qualification within a period of five years. Further reference was also made to the judgment of this Court in O.P.No.28477/2002 (Ext.P18).
8. There is no dispute about the fact that in respect of other disciplines, B.Ed. was not considered to be an essential qualification as per the Government orders. The petitioner's contention itself is that he was qualified based on the Government orders. But, the Government order Ext.P9 which he had relied upon permits only appointment of persons who had acquired M.Com. prior to 1991 and who will attain the upper age limit within two years, and that such persons should be given preference in appointment subject to the condition that they will execute an agreement to acquire the W.A.No.423/2016 7 qualification within the specified time. The said Government order came to be passed in the light of the decision of this Court in O.P.No.15206/1998. The opening paragraph of the Government order reads as under:
"Government prescribed the essential educational qualification for those aspiring to become Higher Secondary School Teachers vide G.O. read as second paper above. It has come to the notice of the Government that, for those who acquired the prescribed qualification before 13.05.1999 and for those subjects for which Government have given a grace period of 3 years for acquiring B.Ed. from the date of appointment, the prospective nature of the G.O. read as second paper above has created some difficulties."
9. However, Ext.P9 order stood modified by Ext.P10 Government order dated 13.05.1999 by which B.Ed. was considered to be an essential qualification for appointment. In Ext.P11, relaxation had been made to persons who had M.Com degree prior to 1991 and who would attain upper age limit within two years. Petitioner cannot aspire for the said benefit. Ext.P12 only extends the time. Therefore, as rightly pointed out by the learned counsel for the appellant, at the time of appointment of the petitioner, Ext.P10 Government order held the field, as a result of which it has to be found that B.Ed. was an essential qualification for being appointed as HSST(Junior) in Commerce. No other materials were placed before us to take a different view.
10. It is contended by the learned counsel counsel for the W.A.No.423/2016 8 petitioner, that in several cases this Court had upheld the appointment of candidates who do not have B.Ed. at the relevant time. But it has to be noticed that we are concerned about the qualification of HSST in a particular subject, i.e., Commerce. When an exemption had been granted by the Government for many disciplines, except for Commerce in terms of the Government order dated 13.05.1999 (Ext.P10), it has to be held that the appointment of the petitioner ignoring Ext.P10 was invalid. In the judgments produced as Exts.P18 and P19, there is nothing to indicate that this Court was considering the case relating to appointment of HSST (Junior) in Commerce.
11. There is no dispute about the fact that at the time when the petitioner was appointed, rules regulating qualification of HSS teachers were not framed by the Government. KER was amended incorporating Chapter XXXII, and it had come into effect only on 12.11.2001. As per Rule 4(2) of Chapter XXXII of Kerala Education Rules, Higher Secondary School Teacher has to be appointed by transfer from Junior Lecturer in the subject concerned. Rule 4(2) reads as under:
"4. Method of Appointment:- Appointment to the various categories specified in Column (2) of the Table below shall be made by the method of appointment specified against each in column (3) thereof.
TABLE
Sl. Category Method of Appointment
No.
1 xxxxx xxxx
Higher Secondary (1) By transfer from Junior Lecturer in the
2 School Teacher subject concerned under the management/
Higher Secondary School Teacher (Junior)
(2) In the absence of qualified hands under
clause (1) above, the vacancies shall be
W.A.No.423/2016
9
apportioned in the ratio 1:3 between
appointment by transfer and direct
appointment as detailed below:
(i) (a)By transfer from High School Assistants, who possess the requisite qualifications, under the Educational Agency.
(b) In the absence of qualified persons under
(a) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants who possess the requisite qualification in the subject concerned, under the Educational Agency.
(ii) By direct appointment Note:- (i) When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under item 2(i) above such vacancies shall also be alloted for direct appointment.
(ii) Appointments under item (I) above shall be made from select lists of qualified persons prepared on the basis of seniority and merit.
12. The qualification for Higher Secondary School Teacher and Higher Secondary School Teacher (Junior) either by way of transfer or direct recruitment is a Master's Degree in the concerned subject with not less than 50% marks from any of the Universities in Kerala or a qualification recognised as equivalent thereto in the respective subject by any University in Kerala, B.Ed. 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 the University in Kerala and thirdly, pass in State Eligibility Test for the post of Higher Secondary School Teacher conducted by the Government of Kerala or by the agency authorised by the State. As per the Rules, when B.Ed. degree holders are not available, candidates having Master's degree with not less than 50% marks and who had passed State Eligibility Test will be considered. At the time of appointment, the petitioner was W.A.No.423/2016 10 having a Master's Degree with 50% marks. But, he did not have B.Ed and had not passed the State Eligibility Test. Therefore, going by any standards, the petitioner did not have the qualification to be appointed as HSST (Junior) at the relevant time. He acquired the qualification only when he passed SET and later acquired B.Ed. degree. Therefore, it has to be held that when the petitioner was appointed by the Manager on 18.10.2001, he did not have the requisite qualification.
13. Yet another contention urged by the learned counsel for the appellant is that the petitioner was appointed as a probationer and without completing the probation, he went on leave without allowance, in which event, he forfeits his earlier service in terms of Appendix XII-B of Kerala Service Rules. The rule indicates that those officers who are granted leave without allowance without completing probation, has to start afresh after leave and they will forfeit the service benefit that accrues to them and will be deemed as a new entrant to the service on return from leave.
14. Appendix XII-B of KSR reads as under:
"The following Rules shall regulate the grant of leave for study purpose in the case of Officers who are not eligible for leave for more than three months under Rule 88 due to the condition of 3 years of continuous service or under Rule 91 due to the condition in Note 2 thereunder. In such cases Leave Without Allowances will be granted for the purpose of study to cover the entire period of the course concerned subject to the following conditions :-"
xxxxxx xxxxxxx W.A.No.423/2016 11 "(ii) In the case of those who have not completed probation in the entry grade, they shall, besides losing all the service benefits during the currency of the period of leave, forfeit the service benefits that had accrued to them prior to their proceeding on leave. They shall be deemed as new entrants to Government Service on return from leave. They shall have to start afresh and complete their probation on return from leave. Only their right to rejoin Government Service in the same entry grade is protected as if they were new entrants."
15. From Ext.P1 appointment order issued by the Manager on 18/10/2001, it is clear that the appointment of the petitioner was as a probationary teacher. By Ext.P2, his appointment had been approved w.e.f. 5/8/2002. Leave without allowance was granted for study purposes for undergoing B.Ed to the petitioner as per Ext.P3 dated 8/1/2004 for the period from 7/8/2002 to 31/3/2003 under R.88 of Part I KSR. Even the order of appointment of the petitioner was as a probationer in which event, the duration of the leave without allowances should not have exceeded 3 months on any one occasion. However, Exception 2 indicated that the limitation in sub rule (ii) of Rule 88 shall not apply to the grant of leave without allowances regulated by the rules in Appendices XIIA, XIIB and XIIC. Therefore, this is a case where Appendix XIIB would apply to the fact situation in view of the fact that in respect of those who had not completed probation in the entry grade, they shall lose all service benefits during the period of leave and all the service benefits that will accrue to them prior to their proceeding on leave. Therefore, there is W.A.No.423/2016 12 justification on the part of the appellant to contend that the petitioner had forfeited his right for promotion in view of the statutory restriction imposed as per Appendix XIIB of KSR. Of course, by Ext.P16 order, the benefit of 3rd proviso below Rule 33(b)(2) of Part I KSR has been extended to HSS Teachers for undergoing B.Ed courses if the period of leave availed is before 24/5/2005. By Ext.P16 order dated 8/1/2014 itself, it was made clear that the Rule will not have application in the case of Leave Without Allowance sanctioned under Appendix XIIB of Part I KSR.
16. Viewed in the light of the aforesaid discussion, we are of the view that the learned Single Judge was not justified in allowing the writ petition in so far as the petitioner did not stand a chance for being appointed as HSST in the vacancy that had arisen on 16/9/2002.
Under such circumstances, Government was justified in issuing Ext.P4 order. In the result, appeal is allowed and we set aside the judgment of the learned Single Judge.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
MARY JOSEPH
Rp True Copy JUDGE
PS to Judge