Kerala High Court
Bose William vs State Of Kerala on 14 February, 2002
Author: K.K. Denesan
Bench: K.K. Denesan
JUDGMENT K.K. Denesan, J.
1. Manager of a private aided school, governed by the Kerala Education Act and the Rules, is the petitioner. On 1.4.1997 a vacancy of H.S.A. (Social Studies) arose in the school. Petitioner filled up that vacancy by promoting the additional 4th respondent under Rule 43 of Chapter XIV A of K.E.R. But the 2nd respondent-District Educational Officer declined approval to the promotion as per Ext. P11 dated 16.1.1998 on the ground that it was done overlooking the claim of the senior hand.
2. From the facts stated in the Original Petition it is seen that the senior hand referred to in Ext. P11 is respondent No. 3. By Ext. P10 dated 2.12.1997 the 2nd respondent had informed the petitioner, in response to a complaint filed by the 3rd respondent that on verification of her service book and qualification certificates, she has got continuous service as U.P.S.A. from 7.6.1993 onwards and she is fully qualified for promotion as H.S.A. (Social Studies).
3. Petitioner seeks to quash Exts. P10 and P11 as also Ext. P12 Government Order dated 22.8.1987. Ext. P12 says that candidates possessing Post-graduate qualifications in the concerned subject or language are also eligible for appointment as H.S.A. (Subject) or HSA (Language).
4. According to the petitioner, respondent No. 3 is not qualified for promotion to the post of HSA (Social Studies). It is contended that Ext. P12 is liable to be eschewed from consideration as it is inconsistent with the statutory provision which prescribes the qualification for the post.
5. Rule 2(2)(a) of Chapter XXXI which prescribes the qualification of High School Assistants (Subjects) reads:
"A Degree in the concerned subject and B.Ed./B.T./L.T. conferred or recognised by the Universities in Kerala."
6. It is an admitted fact that there is no degree recognised by the University as such in eh subject called Social Studies. Therefore the qualifying degree or degrees have to be ascertained with reference to any rule or order issued in that behalf. None of the provisions in the Kerala Education Rules throws light on the qualifying degree required for H.S.A. (Social Studies). However, Ext. R3(a) Government Order dated 25.10.1967 has done a grouping and as per that grouping the qualifications for HSA (Social Studies) are Degree in History or Economics or Geography or Politics or Commerce or English Language and Literature or Philosophy or Music as main subject for graduation. Ext. R3(b) Government Order dated 3.6.1978 says that any of the foregoing main subject for Post-graduation also will be considered as qualification for the post of H.S.A. (Social Studies). Ext. R3(c) Government Order dated 7.12.1988 was issued taking into account the need for improving the quality of teaching English language in High School Classes. Ext. R3(c) took cognizance of the fact that English language was taught by the High School Assistants (Core Subjects) and this gave rise to demand from various quarters for improving the need for teaching English Language and for that a separate cadre of High School Assistant (English) would be created exclusively for teaching English language in High School Classes. In this background, Government considered the proposals submitted by the Director of Public Instructions and issued certain orders. One of the directions issued by the Government as per Ext. R3(c) is that while sanctioning additional or new posts of High School Assistants (Social Studies) the staff fixation will be done in such a way that there should be at least one post of graduate teacher in English language and Literature. As far as Government High Schools are concerned, it was decided by the Government that out of 10 posts of High School Assistants (Social Studies) reported to the Public Service Commission for direct recruitment, the third and seventh vacancies should be ear-marked for graduates in English language and Literature.
7. On the strength of Exts. R3(a) to (c), respondents 1 to 3 contend that a primary school teacher having Post-graduation in English language and Literature is qualified for promotion to the post of High School Assistant (Social Studies). Since the 3rd respondent is thus qualified for promotion, the additional 4th respondent who is junior to the 3rd respondent has no claim for the vacancy of H.S.A. (Social Studies) that arose on 1.4.1997.
8. The petitioner on the other hand submits that the 3rd respondent who is having a degree in Physics is qualified for the post of H.S.A. (Science) but not for the post of H.S.A. (Social Studies). Petitioner relies on Ext. P4 Government Order dated 13.9.1988 and contends that English language and Literature should be the main subject for graduation and not for post-graduation. It is submitted that the word used in Rule 2(2)(a) is 'degree' and not 'post graduate degree'.
9. The learned Govt. Pleader submits that the word 'degree' does not confine to Bachelors degree only, but takes in Post-graduate degree as well. Moreover, while prescribing the main subject at the degree level or the Post-graduate level for the purpose of treating a candidate as qualified for appointment to the post of H.S.A. (Social Studies) Government have issued orders evidenced by Exts. R3(a), (b) and (c) wherein post-graduation is also referred to. These orders are not in conflict with or inconsistent with the statutory provision contained in Rule 2(2)(a) of Chapter XXXI, but they only fill up the gap in the Rule and explain the Rule.
10. The learned counsel for the petitioner has placed reliance on the decision in Sujatha v. State of Kerala (1998 (2) KLT 809) in support of his contention that 'degree' means bachelors degree only. The facts of that decision would show that the qualification notified for the post of Special Officer (Sanskrit) in the Education Department was "graduation from any recognised University with Sanskrit as main subject and LT/BT/B.Ed." The learned Judge found that only those applicants who have got graduation in that subject would be qualified for the post and held that graduation can only mean, basic graduate degree and not a post-graduate degree. The learned counsel for the 3rd respondent on the other hand buttressed his submissions based on the decision of the Division Bench of this Court in W.A. No. 213 of 1997 (Kerala Public Service Commission v. Alex P. Kaleelazhikam). In the opinion of the Division Bench the word 'degree' means Bachelors degree as well as Masters degree and that the word 'degree' unless qualified by the word 'Bachelor' or 'Post-graduate' should not be understood as to mean only a Bachelors degree or a Post-graduate degr`ee. In that view of the matter, the Division Bench came to the conclusion that the words in the notification 'a Bachelors Degree from a recognised University in Economics or Commerce' would include both bachelor's degree and masters degree'.
11. I have considered the submission made by the learned counsel for the petitioner, the learned counsel for respondent No. 3, that of respondent No. 4 as also the learned Government Pleader for respondents 1 and 2.
12. In the seniority list of Upper Primary School Assistants, respondent No. 3 is rank No. 6 whereas additional respondent No. 4 is rank No. 10. Since the 3rd respondent is senior to the additional 4th respondent, she can be overlooked in the matter of promotion only if she is not qualified for the higher post. Hence, it is necessary to decide whether the 3rd respondent is qualified for the post of H.S.A. (Social Studies) which fell vacant on 1.4.1997. It is not disputed that the 3rd respondent has got a Post-graduate degree in English Language and Literature with B.Ed. and that the Post-graduate qualification she has got is the one recognised by the Kerala University. The qualification prescribed as per K.E.R. is a degree in the concerned subject and B.Ed./LT/BT. As regards Social Studies, the 'concerned subject' includes English Language and Literature, History, Economics, Geography, Politics etc. The word 'degree' as it occurs in the rule is not qualified by the word 'Bachelors' or 'Masters' or 'Post Graduate'. The judgment of the Division Bench in W.A. No. 213 of 1997 says that the words "recognised degree" would include both Bachelors degree as well as Masters degree. As the word 'degree' in Rule 2(2) is not qualified by the word 'Bachelor' or 'Post-graduate', when we travel in the same direction as the Division Bench travelled to find out the meaning of a similar expression, I am inclined to take the view that a restricted meaning is not called for in the circumstances of this case. There is justification or at least room for filling up the gap by supplying the word 'Bachelor' or 'Post-graduate' immediately before the word 'Degree', so as to give full meaning and certainly to the expression used in the statutory provision. The reasons stated for grouping the subjects and also for ordering that not only bachelor's degree but post-graduate degree also will be adequate qualification for the purpose of Rule 2(2)(a), as done by the Government in the various orders referred to in the statement filed by the 2nd respondent and the counter affidavit filed by the 3rd respondent cannot be rejected as arbitrary or beyond the powers of the Government. When the Government has felt the need to fill up the gap occurring just before the word 'degree', in Rule 2(2) of Chapter XXXI KER it, cannot be said that such an order has been issued in violation of the statutory provisions.
13. Under Section 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 farming 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 saying '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. I do not find any merit in the contention of the petitioner that Ext. R3(a) and (b) should be ignored while ascertaining the qualification prescribed for the post of High School Assistants (Social Studies). In any view, Ext. P12 does not suffer from any illegality and the same is not liable to be interfered with. I hold that the decision taken by the 2nd respondent as per Ext. P10 and P11 are in accordance with law and that the 4th respondent cannot supersede the claim of the 3rd respondent for the promotion to the post of High School Assistant (Social Studies) in the vacancy that arose on 1.4.1997.
Original Petition, therefore, fails, and it is accordingly dismissed.