Kerala High Court
Sreeja.R vs State Of Kerala on 13 January, 2022
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
WP(C) NO. 328 OF 2021
PETITIONER/S:
SREEJA.R.
HIGHER SECONDARY SCHOOL TEACHER (SOCIOLOGY), SREEKRISHNA H.S.S
NALLEPPILLY, NALLEPPILLY P.O, PALAKKAD - 678533.
BY ADVS.
M.R.ANISON
SMT.V.BHARGAVI (PANANGAD)
SMT.P.A.RINUSA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.
2 THE DIRECTOR OF GENERAL EDUCATION
DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM -
695001.
3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION
OFFICE OF THE DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, B-2
BLOCK, CIVIL STATION, MALAPPURAM - 676505.
4 THE MANAGER
SREEKRISHNA H.S.S, NALLEPPILLY, NALLEPPILLY P.O, PALAKKAD - 678553.
5 A. CHANDRASEKHAR
HIGHER SECONDARY SCHOOL TEACHER (ENGLISH), SREEKRISHNA H.S.S,
NALLEPPILLY, NALLEPPILLY P.O, PALAKKAD - 678553.
BY ADVS.
SRI.V.A.MUHAMMED
SMT.P.A.JENZIA
OTHER PRESENT:
GP SMT NISHA BOSE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 328 OF 2021
2
JUDGMENT
Order dated 17.12.2020, Ext.P10 of the Secretary, Higher Education rejecting the case of the petitioner for promotion and reviewing his seniority with effect from 22.5.2012 instead of 1.12.2011 has been assailed in the present writ petition.
2. The fight is between the petitioner and the 5 th respondent as according to the petitioner she is senior than the 5 th respondent on account of the fact that she was appointed as High School Teacher in the High School Section with effect from 17.8.1998 whereas 5th respondent was appointed as High School Teacher with effect from 9.6.2001. The next promotion post was HSST (Jr.). Both the parties's appointment as HSST (Jr) was approved with effect from 1.12.2011. Both the parties ie, petitioner and the 5th respondent were appointed as HSST with effect from 25.2.2013 and 22.6.2013 respectively. Respondent No.5 was placed senior to the petitioner but it was not agitated and raked up only when the proposal for appointment of 5 th respondent as Principal was initiated. Various writ petitions were filed for adjudication of the grievance and ultimately an order was passed directing the Secretary Education to decide the WP(C) NO. 328 OF 2021 3 controversy.
3. Learned counsel for the petitioner submitted that the first respondent has committed grave illegality in raking up the issue of the approval of the petitioner as HSST (Jr.) as well as HSST on the premise that the petitioner did not fulfill the qualifications for having been appointment and approval as HSST (Jr.) for want of post graduation degree. Petitioner had acquired the post graduation degree from Sree Venkateswara University, Tirupathi in 2010. UGC had recognized all the aforementioned degrees but certain Universities did not pass the order from time to time and predicament of many persons for the purpose of employment as well as admission in higher courses was writ large. The Academic Council of Kerala University took a decision to recognize the Degree awarded by Sree Venkiteswara University as equivalent to the degree of Kerala University.
4. Rule 6 of Chapter 32 of the Kerala Education Rules 1959 no doubt, prescribes the qualification of holding a post graduation degree for having been appointed and approved as HSST (Jr.). Considering that the degree was recognized in 2012 with no effective date and by not considering the Government order dated 13.11.2018, Ext.P15 seniority of the petitioner as WP(C) NO. 328 OF 2021 4 HSST has been reassigned from 22.5.2012 ie., the date when the degree of post graduation from Sree Venkateswara University was recognized, thus, has been placed junior that of the 5 th respondent whose appointment was approved as HSST with effect from 1.12.2011 and approved the appointment of her as Principal. The Government did not take up the issue of review which is not permissible in Chapter 32 except for revision that too till the post of High School Assistant. Thus such an act that too belatedly, is wholly preposterous and erroneous. Though an attempt has been made to deal with all the objections raised by the petitioner including the Government order dated 13.11.2018 but while rejecting the case no reasoning has been assigned except a strong reliance had been laid to the order dated 22.5.2012 of the University of Kerala. The aforementioned order do not specify that the degree would be effective from the date nor there is any deeming fiction. If the authority had read the contents of the Government order dated 13.11.2018, it also did not relate to any specific date of recognizing the degree obtained by different persons from the Universities which had already been recognized by the University Grants Commission. Thus the order is liable to be set aside.
WP(C) NO. 328 OF 2021 5
5. On the other hand, learned counsel appearing on behalf of the 5th respondent supported the impugned order on the premise that the appointment and approval of the petitioner as HSST with effect from 1.12.2011 was wholly incorrect as she did not have the requisite qualification which is a mandatory requirement of law as per the provisions of Rule 6 of Chapter 32 of 1959 Regulations. In other words, the qualification is sine qua non for approval and appointment. No doubt, the petitioner was appointed earlier to the respondent No.5 and was senior but by virtue of obtaining the qualification in 2010 and approval thereof in 2012, the degree obtained in 2010 could not have been taken into account for approval and appointment as HSST with effect from 1.12.2011. The said mistake has now vide impugned order been rectified, considering to be equivalent with effect from 22.5.2012. Petitioner after having approached the Director of Education with regard to approval 2 days later than that of the 5 th respondent ie., with effect from 25.2.2013 instead of 23.2.2013. Since no action was taken and had woken up only in 2018, when the process of promotion of 5 th respondent was taken, thus, such an act is wholly belated and is against the doctrine akin to delay and laches.
WP(C) NO. 328 OF 2021 6
6. I have heard the learned counsel for the parties and appraised the paper book. Appointment of the petitioner as HSA on 17.8.1998 and that of the 5 th respondent on 9.6.2001 is not in dispute. Both the parties were appointed and approved as HSST (Jr.) with effect from 1.12.2011 and thereafter as HSST with effect from 23.2.2013-5th respondent and 25.2.2013-petitioner. It is not discernible as to how and under what manner the two different dates of appointment and approval has been assigned to the parties once their approval of HSST (Jr.) was of the same date. In other words, the length of service was not taken into consideration. The aforementioned gave a cause of action to the petitioner and as per the averments and contents of the impugned order had approached the Director Education making complaint thereof but the order thereon was passed only on 14.3.2019 by that time petitioner had already approached this Court by W.P.(C) No.17781 of 2018 and directed to consider the representation of the petitioner which resulted into passing of the order dated 14.3.2019 which was again assailed and ultimately by virtue of the judgment dated 2.9.2019 rendered in two writ petitions, Ext.P9, direction was issued to the Secretary to decide the revision petition. Secretary Government in para 9 of the impugned order WP(C) NO. 328 OF 2021 7 dealt with the order dated 13.11.2018 issued by the Government recognizing the degrees obtained from various universities without assigning any date of which recognition but did not assign any reason as to how and under what manner the said order would not be applicable. For the sake of brevity, relevant portion of the impugned order extracted herein below:
9) Smt. Sreeja submitted that as per the GO read 2nd paper above declaring that no equivalency certificate shall be insisted by the appointing authority for degree obtained from the institutions recognized by UGC and all appointing authorities are bound to recognize the degree awarded by the State/Central Universities. Sree Venketeswara University is a State University of State of Andhra Pradesh which is recognized by the UGC. Hence Smt. Sreeja has clarified that once equivalency certificate is issued by the University, the same will be made applicable from the date on which the degree certificate is issued. Hence it is informed that no equivalency certificate is necessary in this case.
10) Smt. Sreeja was appointed as HSA, Physical Science on 17/8/1998 and she was appointed by transfer as HSST (jr) w.c.f 01.12.2011. Smt. Sreeja obtained MA degree in Sociology (Distance mode) from Sri. Venkateswara University. Tirupathi. The University of Kerala has recognized the aforesaid degree as equivalent to MA degree only on 22.05.2012. Hence Smt Sreeja is entitled to get approval in the post of ISST (jr) only w.c.f 22.05.2012 ie the date from which she obtained the prescribed qualification for the post of TISST(Jr) as per Rule 6 Chapter XXXII, KER.
11) In the above circumstances, the Manager, Sree Krishna Higher Secondary School, Nallepily, Palakkad is directed to appoint the petitioner. Sri. A. Chandrasekhar as Principal of the above school if he is otherwise eligible. The Director of General Education and the Regional Deputy Director.
Malappuram are directed to review the appointment approval granted to the 5th respondent Smt. Sreeja.R(Petitioner in WP(C) No. 18317/2019) in the post of WP(C) NO. 328 OF 2021 8 IISST (jr) Sociology as the university of Kerala has recognised the MA degree in Sociology obtained by Smt. Sreeja w.e.f 22.5.2012 and hence she is eligible for appointment approval w.e.f the aforesaid date.
12)Ext. 110 and P12 are disposed of on the above lines and the direction contained in the common judgment of the Ilon'ble High Court read 4th paper above is complied with.
7. From the perusal of the contents of para 11 extracted above, direction had been also issued to Director General of Education and Regional Deputy Director, Malappuram to review the appointment approval of the petitioner who was arrayed as 5 th respondent in the aforementioned proceedings, petitioner herein with effect from 22.5.2012 ie., the date when the University of Kerala had recognized the M.A Degree in Sociology obtained from the Sree Venketeswara University. It would be expedient to extract the order dated 22.5.2012 of the University of the Kerala. The relevant portion of the same reads thus:
The Academic Council at its meeting held on 7 th May, 2012 vide item No.71 considered the question of recognizing the M.A Degree in Sociology (Distance Mode) from Sri.Venkateswaran University, Tirupati and resolved that the M.A Degree in Sociology (Distance Mode) from Sri.Vekateswara University, Tirupati be recognized as equivalent to the M.A degree in Sociology of the University of Kerala for employment purposes.
The aforementioned order has been issued on the basis of the request submitted by the petitioner on 14.11.2012 with regard to the recognition and it is the only Academic Council of the WP(C) NO. 328 OF 2021 9 particular University, competent to decide the question. It is in that manner the degree was said to be recognized. But there is no such order has been placed on record on behalf of the 5 th respondent herein as actually when the degree was recognized.
The aforementioned order has been passed only on the request of the petitioner and not otherwise. The said order in my view is wholly misinterpreted by raking up the issue of approval and appointment done as far back as on 1.12.2011 in the year 2021, after a gap of almost 10 years. There is no provision of review provided under the provisions of Chapter 32 of the 1959 Rules.
Power of the revision either suo motu or an application is limited only upto High school Assistant as per provisions of Rules 92, Chapter 14 A of the 1959 Rules. I am of the view that the Secretary was swayed away from the reading of the order of University of Kerala dated 22.5.2012 much less had not also assigned any reasons to the implication of the order dated 13.11.2018, Ext.P15, referred to in Paragraph 9. In this view of the matter, order sans merit and is accordingly set aside. The matter is remitted to the Secretary, to decide afresh, in accordance with law after affording an opportunity of hearing to the parties. Both the parties are at liberty to place on record WP(C) NO. 328 OF 2021 10 additional material in support of the submissions over and above what has already been recorded. Let this exercise be undertaken within a period of three months from the date of receipt of a copy of this judgment.
Sd/-
sab AMIT RAWAL
JUDGE
WP(C) NO. 328 OF 2021
11
APPENDIX OF WP(C) 328/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF GO(MS) NO.211/2011/G.EDN
DATED 24.10.2011.
EXHIBIT P2 TRUE COPY OF THE ORDER
NO.B4/20401/RDD/HSE/EKM/2011 DATED
28.06.2012 ISSUED BY THE 3RD RESPONDENT
APPROVING THE APPOINTMENT OF THE
PETITIONER AS HSST(JUNIOR)
EXHIBIT P3 TRUE COPY OF ORDER BEARING NO.
B4/3685/RDDE/HSAE/2013 DATED 03.12.2013 ISSUED BY THE 3RD RESPONDENT APPROVING PETITIONER'S APPOINTMENT IN HSST POST.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 14.10.2014 ISSUED BY THE 3RD RESPONDENT APPROVING THE APPOINTMENT OF THE 5TH RESPONDENT TO HSST POST.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 18.08.2014 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 12.09.2018 ISSUED BY THE GOVERNMENT TO THE 2ND RESPONDENT ASSIGNING SENIORITY TO PETITIONER IN HSST POST W.E.F 23.02.2013.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED
21.12.2018 IN WP(C) NO. 38967/2018.
EXHIBIT P8 TRUE COPY OF THE ORDER NO.
ACD/A2/64353/2017/HSE DATED 14.03.2019 ISSUED BY THE 2ND RESPONDENT DECLARING THAT PETITIONER IS THE ELIGIBLE CLAIMANT FOR APPOINTMENT TO PRINCIPAL POST.
EXHIBIT P9 TRUE COPY OF THE COMMON JUDGMENT DATED 02.09.2019 IN WP(C) NO. 12276/2019 AND 18317/2019.
WP(C) NO. 328 OF 2021 12 EXHIBIT P10 TRUE COPY OF THE GO(RT) NO.3335/2020/GEDN DATED 17.12.2020 ISSUED BY THE 1ST RESPONDENT PERMITTING 4TH RESPONDENT TO APPOINT 5TH RESPONDENT TO PRINCIPAL POST.
EXHIBIT P11 TRUE COPY OF THE CERTIFICATE OF POST GRADUATE DEGREE IN SOCIOLOGY BY DISTANCE MODE FROM SREE VENKATESWARA UNIVERSITY, TIRUPATHI OF THE PETITIONER DATED 18.03.2010.
EXHIBIT P12 TRUE COPY OF THE APPLICATION FOR EQUIVALENCY CERTIFICATE SUBMITTED BY THE PETITIONER BEFORE THE UNIVERSITY OF KERALA DATED 4.11.2011.
EXHIBIT P13 A TRUE COPY OF THE ORDER NO.
AC.C/45638/2011 DATED 22.05.2012 ISSUED BY THE KERALA UNIVERSITY RECOGNIZING M.A. SOCIOLOGY (DISTANCE MODE) ISSUED BY SRI VENKATESWARA UNIVERSITY, TIRUPATI.
EXHIBIT P14 A TRUE COPY OF THE EQUIVALENCY
CERTIFICATE ISSUED BY THE KERALA
UNIVERSITY DATED 28.05.2012.
EXHIBIT P15 TRUE COPY OF G.O(MS) NO.272/2018/HEDN
DATED 13.11.2018.
EXHIBIT P16 TRUE COPY OF RELEVANT PAGES OF LIST OF
THE STATE UNIVERSITIES RECOGNIZED BY UGC
AS ON 15.01.2016.