Kerala High Court
The Kerala Pubic Service Commission vs Anirudh K.R on 9 December, 2016
Author: V Shircy
Bench: P.R.Ramachandra Menon, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939
OP(KAT).No. 179 of 2016 (Z)
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OA(EKM)No.105/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
==============
PETITIONER/2ND RESPONDENT:
--------------------------
THE KERALA PUBIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY, PATTOM
THIRUVANANTHAPURAM, KERALA - 695 004.
BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
RESPONDENTS/APPLICANTS & 1ST RESPONDENT:
----------------------------------------
1. ANIRUDH K.R
AGED 26 YEARS, S/O. RAMACHANDRAN K.K.
KONNAPPALAM, KANDIYIL HOUSE, AROOR P.O.
KAKKATTIL (VIA), KOZHIKODE, KERALA - 673507
2. MANEESH P.P.
AGED 35 YEARS, S/O. MUKUNDAN P.O.
MISHA NIVAS, CAMPAD. P.O, THY (VIA)
KANNUR, KERALA - 670 643
3. DHANYESH.K.,AGED 34 YEARS
S/O. MOHINI.K., NADUKKANDY
PARAMBATH HOUSE SANKARANELLUR P.O.
KANNUR, KERALA- 670643.
4. MAHESH KUMAR. P.,
AGED 42 YEARS, S/O. V.MUKUNDAN,
VADAVATHIYIL HOUSE, PINARAYI P.O.
KANNUR, KERALA - 670741.
5. LIMA. K.K., AGED 32 YEARS
D/O. KUMARAN.K.P., KUTTIPILAYIL HOUSE
NARINADA, KAYANNA P.O., PERAMBRA (VIA)
PIN 673 526, KERALA.
6. SREEJA T.M.,AGED 33 YEARS, W/O. E.K.SHYAM KUMAR
PARAMBATH HOUSE, MAVOOR, KOZHIKODE
KERALA - 673661.
7. DIVYA U.M., AGED 35 YEARS, UMMINIMADATHIL HOUSE
KAYANNA P.O, KOZHIKODE, KERALA - 673526.
8. JAYASREE POONTHOTTATHIL, AGED 33 YEARS
OLERIPARAMBIL HOUSE, PERUMUGHAM P.O.
FEROKE (VIA), KOZHIKODE, KERALA - 673631.
OP(KAT).No. 179 of 2016 (Z) -2-
9. DHANYA NARAYANAN. P.
AGED 27 YEARS, D/O. NARAYANAN, SANGEETH HOUSE,
MOKERI, KAKKATHIL, KOZHIKODE, KERALA - 673507.
10.AGINA G.A.,AGED 22 YEARS, D/O. ACHUTHAN
KEERTHANAM HOUSE, ERAVATTUR, PERAMBRA
KOZHIKODE, KERALA - 673525.
11.ANJANA. C., AGED 23 YEARS
PATINBARAYIL HOUSE, MOKERI P.O.
KAKKOTTIL (VIA) PIN - 673507, KERALA.
12.NAJMA. C.P.,AGED 29 YEARS, W/O. RIYAS.K.
MUNEER MANZIL, MANTHARATHOOR P.O
PUTHUPPANAM(VIA), PIN - 673105, KERALA.
13.NIJEESH. P.,AGED 28 YEARS
S/O. MOHANAN, THAVOTT HOUSE
KUTTOTH.P.O.,MEPPAYOOR (VIA)
KOZHIKODE, KERALA - 673524.
14.ASHITHA.S.,AGED 25 YEARS
W/O. LAJITH.K., KELOTH HOUSE,
MEMUNDA. P.O, VATAKARA- 673104, KERALA.
15.SHYLU.E.P.,AGED 31 YEARS
W/O. RAJESH KUMAR, THEKKEPUNATHIL HOUSE
IRINGOL P.O., VATAKARA, KOZHIKODE, KERALA 673104.
16.LINSY.K.,THAZHEKELOTH HOUSE, VALLIAD P.O.
VILLIPPALLY(VIA) KERALA - 673542.
17.ANJANA.K.K.,ENGATTU KUNIYIL
PONMERIPARAMBIL P.O, VILLIAPPALLY (VIA)
PIN - 673 542, KERALA.
18.SHIBINA MEKKOODATHIL,MEKKOODATHIL HOUSE
PONMERIPARAMBIL P.O, VILLIAPPALLY (VIA)
PIN- 673542, KERALA.
19.SHINYA.K.M.,KUNNIYALLATHIL MEETHRI HOUSE
PONMERIPARAMBIL.P.O., VILLIAPPALLY (VIA)
PIN- 673 542, KERALA.
20.KRISHNA PRASAD. N.K.
AGED 24 YEARS, NELLIKKANDIYIL HOUSE
AROOR.P.O., KAKKATTIL(VIA), KOZHIKODE
KERALA 673122
21.JYOTHSNA.K.,AGED 30 YEARS, D/O. GOPALAN
KULAMULLATHIL HOUSE, ARUR.P.O.
KAKKOTTIL (VIA),KOZHIKIDE, KERALA 673122
22.SRUTHI.G.S.,AGED 29 YEARS, D/O. SASIDHARAN.C.K.
CHAITHANYA HOUSE, PANOOR.P.O, PIN- 670692, KERALA.
23.SHEEJA V.,AGED 36 YEARS
D/O. A.T.BALAKRISHNAN NAIR
SURABHI HOUSE, ELATHUR P.O.
KOZHIKODE, KERALA 673303.
OP(KAT).No. 179 of 2016 (Z) -3-
24.SAMRUTHA.P.K.,AGED 22 YEARS
D/O. PADMANABHAN.V.P.
PUTHAN PARAMBATH KUNNUMBRAM
THANNADA P.O., CHALA EAST
KANNUR, KERALA - 670 621.
25.AJESH C.V.,AGED 33 YEARS
S/O. RAGHAVAN.M.,CHATHAMBALLI HOUSE
THIRURANGAD P.O., THALASSERY - 670103, KERALA.
26.PRAJISHA.P,PILACHAL HOUSE, VAYANNUR P.O.
CHITTARIPARAMBA (VIA), KANNUR, KERALA 670650
27.DEEPTHI.K.,AGED 31 YEARS, D/O.VALSAN.C.
DHANUSHA HOUSE, NEERVELI P.O., NIRMALAGIRI
KANNUR, KERALA 670701.
28.SHAHINA.P.P.,AGED 23 YEARS
D/O. ABDULLA.K., KOORARI
IRIKKUR P.O., PIN - 670593, KERALA.
29.ALSHI.V.,AGED 27 YEARS
D/O. ASOKAN, NAKSHATHRA HOUSE
VETTUMMAL, KADIRUR- 670642, KERALA.
30.ARJUN. V. RAJ,AGED 22 YEARS
S/O. VALSARAJAN A.
ATHIRA, POOKODE, POOKODE. P.O,
KANNUR KERALA - 670691.
31.NITHYA.P.C.,AGED 22 YEARS
D/O. C.M. BALAKRISHNAN
SREEPRASADAM, MALOT, KANNADIPARAMBA P.O,
KANNUR, KERALA - 670604.
32.NAVYA. C. G.,AGED 22 YEARS
D/O. GOPINATHAN, NARYA HOUSE
KALLIAD. P.O, IRIKKUR (VIA)
BALATHUR - 670 573, KERALA.
33.MAHESH.C.,AGED 29 YEARS, S/O. NARAYANAN.C.
MANJU NIVAS, MOTTAMMAL P.O., KANNAPURAM
KERALA 670331.
34.SHIJILA.K.
AGED 23 YEARS, D/O. PUSHPAJA.K.
DWARAKA, CHEKKIKULAM P.O, KOODALI (VIA)
MANIYOOR - 670 592, KERALA.
35.MAHITHA.K.M., AGED 25 YEARS
D/O. MAHENDRAN.K.M., KODIKKALIL HOUSE
NEAR S.N. COLLEGE, THOTTADA P.O.
KANNUR, KERALA - 670007.
36.SHARMYA.P.C.,AGED 22 YEARS
D/O. GOPALAN.K.P., RAYAROTH HOUSE
PANERICHAL, IRIVERI P.O, KANNUR
KERALA - 673613.
OP(KAT).No. 179 of 2016 (Z) -4-
37.ANUPRIYA.V.P.,D/O. ACHUTHAN
ANUSHREE HOUSE, VATAYAM, KAKKATTIL
KOZHIKODE, KERALA - 673507
38.STATE OF KERALA, REPRESENTED BY
ITS SECRETARY, DEPARTMENT OF
GENERAL EDUCATION, SECRETARIAT
THIRUVANANTHAPURAM 695001.
BY ADV. SRI.P.S.SREEDHARAN PILLAI
BY ADV. SRI.T.K.SANDEEP
BY ADV. SRI.ARJUN SREEDHAR
BY ADV. SRI.ARUN KRISHNA DHAN
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 22-06-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No. 179 of 2016 (Z)
APPENDIX
PETITIONER'S EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE O.A.(EKM) NO.105/2015 ALONG WITH
ANNEXURES.
EXHIBIT P2 TRUE REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN THE
O.A.
EXHIBIT P3 TRUE REPLY STATEMENT FILED BY THE 2ND RESPONDENT IN THE
O.A.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 9/12/2016 IN OA(EKM)
105/2015
EXHIBIT P5 TRUE COPY OF G.O(P) NO.145/16/G. EDN DATED 30/8/2016.
RESPONDENTS' EXHIBITS
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NIL
// True Copy // P.A. to Judge
SD
P.R.RAMACHANDRA MENON
&
SHIRCY V., JJ.
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OP[KAT] No.179 of 2016
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Dated this the 22nd day of June, 2017
JUDGMENT
P.R. Ramachandra Menon, J.
Challenge is at the instance of the Kerala Public Service Commission against the order passed by the Kerala Administrative Tribunal in O.A. No.105 of 2015. Prayers raised in the O.A. are in the following terms:
"(i) Issue an order or direction setting aside and to quash Annexure A4, A5 to the extent it does not prescribe the qualification of K-T.E.T. as an eligibility criteria and does not give weightageto 60% or more score in K-T.E.T.
(ii) Direct the 2nd respondent to issue fresh notification for recruitment of U.P.S.A. and L.P.S.A. Prescribing the pass in K-T.E.T. as mandatory eligibility criteria and to give weightage to 60% or more score in K-T.E.T in the recruitment process.OP[KAT] No.179 of 2016 2
(iii) Issue such other orders or directions as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
AND
(iv) Award the cost of the applicants in these proceedings."
2. During the pendency of the above OA, the Tribunal was moved for interdicting the test scheduled to be conducted by the PSC on 21.01.2017 and after hearing, Ext.P4 order was passed, granting the reliefs sought for in the OA and preventing the PSC from holding the test, which is the subject matter of challenge in this original petition.
3. When the matter came up for consideration before this Court on 15.12.2016, an order was passed referring to the sequence of events and interdicting Ext.P4 order passed by the Tribunal for a period of one month, in turn permitting the PSC to proceed with the test. This Court finds it appropriate to extract the order for brevity of discussion and convenience of reference, which reads as follows:
"Correctness and sustainability of Ext. P4 interim order dated 09.12.2016 passed by the Kerala Administrative Tribunal in O.A. (EKM) No. 105 of 2015 is under challenge at the instance of the PSC. As per the said order, interim stay has been granted interdicting the OP[KAT] No.179 of 2016 3 PSC from proceeding with Annexures A4 and A5 notifications until further orders. Apparently, the said order has been passed accepting the version of the applicants that the K-TET [Kerala Teacher Eligibility Test] ought to have been included as a mandatory qualification for appointment to the post in question and hence re-notification of Annexures A4 and A5 is necessary.
2. As put forward by the learned standing counsel for the PSC, vacancies in respect of LPSA/UPSA were notified as per Anenxures A4/A5 notification dated 10.09.2014, prescribing the last date for submitting the applications as 15.10.2015. It is stated that altogether 1,40,226 applications have been received and examination in respect of LPSA is scheduled to be conducted on 17.12.2016; whereas in respect of UPSA, it is to be conducted on 21.01.2017. The learned standing counsel submits that 554 centres have been identified, question papers have been despatched and Invigilators have been entrusted with the duty. It is at this point of time that Ext. P4 order was passed by the KAT on 09.12.2016, granting interim order in the O.A. (Ekm) No. 105 of 2015, which was pending from February 2015 (i.e. nearly after two years), interdicting the process of selection.
3. The learned counsel pointed out that the Government has decided to introduce possession of K-TET as mandatory qualification only as per Ext. P5 dated 30.08.2016 [with I.A. No. 1783 of 2016 to receive the same]; which in no way could be made applicable for the selection notified by the PSC way back in the year 2014. It is also pointed out that, prescription of K-TET was introduced for the first time as per G.O.(P) No. 199/11/G.Edn. dated 01.10.2011 also providing for Teachers' OP[KAT] No.179 of 2016 4 package. But the said G.O. came to be set aside by a learned Judge of this Court as per the verdict dated 15.01.2015 in W.P.(C) No. 30107 of 2013. Though an appeal was preferred against the said verdict as W.A. 970 of 2016, the same came to be dismissed as withdrawn, vide judgment dated 02.03.2016. It is considering the necessity to introduce K- TET as part of the mandatory qualification, in terms of the norms and standards prescribed by the National Council for Teacher Education (NCTE)/competent authority, that Ext. P5 Government Order was issued on 30.08.2016.
It is also a case of the petitioner/PSC that, since Ext. P5 was issued only on 30.08.2016, the entire selection process pursuant to Annexures A4/A5 cannot be stalled, as it is possible to justify the selection till the date of issuance of Ext. P5 [making 'K-TET' as mandatory].
4. Heard the learned senior Government Pleader as well, who made submissions in terms of Ext. P2 statement filed before the KAT. Reference is made, by the learned standing counsel for the PSC, to the stand of the Government as revealed from paragraphs 3 and 4 of Ext. P2, which is extracted below for convenience of reference :
"3. It is submitted that the Government is of the stand that the benefit of exemption on condition that K-TET shall be acquired within the year 2018 given to aided sector have to be extended to Government sector as well. For this separate orders or special rules will be framed prescribing unification of qualifications for teachers in Government and aided schools. Government of India have already informed the State Government that TET should be made a necessary qualifications for teachers in Government and aided Schools. Government of OP[KAT] No.179 of 2016 5 India have already informed the State Government that TET should be made necessary qualification within the time limit prescribed i.e. within 31.03.2015. But it is only after considering the circumstances in Kerala, the Government have given exemption to teachers in the Aided sector strictly on condition that they should pass K-TET examination within 2018. Necessary amendments in KER and subsequent orders to effect the same in Government schools also will be issued soon. In this regard it is further submitted that the executive order by which K-TET was declared as mandatory qualification for teachers in G.O.(P) 199/11/G.Edn. dated 01.10.2011 which is in turn the common order on the teachers package. This order stands quashed by the Honourable High Court, in its judgment dated 15.01.2015 in W.P.(C) No. 30107/13 and others and the direction to consider TET as mandatory qualification for teacher is specified as one of the items in the quashed Government Order. Hence at this point of time Government is view of the unable to take the decision of amendment in view of the judgment. However, NCTE (National Council for Teacher Education) has laid down TET as a essential qualification for a person to be eligible for appointments as Teacher from Class I to VIII in accordance with the provisions of sub Section (1) of Section 23 of the RTE Act 2009. Hence subject to decision of the Honourable Division Bench in W.A. 812 of 2015 Government of Kerala is bound to prescribe TET as mandatory qualification. However, in view of the present judgment dated 15.01.2015 of Honourable High Court, Government is unable to take a speedy decision.
4. It is submitted that, Government have already issued Government Order G.O.(P) No. 199/11/G.Edn. dated 01.10.2011 specifying that K-OP[KAT] No.179 of 2016 6
TET will be mandatory qualification for the appointment of teachers and this order itself is quashed by the Honourable High Court in its judgment dated 15.01.2015 in W.P.(C) No. 30107/13 and others. However, since NCTE has laid down TET as an essential qualification in accordance with the provisions of the RTE Act, Government is duty bound to prescribe it as a necessary qualification. Also Government is ready to make necessary amendments in KER and special rules. However, in view of the judgment dated 15.01.2015 of the Honoruable High Court, Government is unable to make a speedy decision on KER amendment of framing of special rules."
5. The learned standing counsel for the PSC submits that the amendment to the KER dealing with 'Aided school' is referred to in the relevant proceedings of the Government, for the reason that the qualification prescribed in respect of the Teachers of Aided school, as contained in Chapter XXXI KER, has broadly been incorporated in respect of the qualifications applicable for employment in Government Schools, as per G.O. (P) No. 76/80/G.Edn. dated 6th June 1980. As a natural consequence, since the KER is also to be amended in terms of the provisions of the Right of Children to Free and Compulsory Education Act 2009, it could be made applicable in similar terms to the Government School by virtue of G.O. (P) No. 76/80/G.Edn. dated 6th June 1980. That apart, interim stay granted by the Tribunal at the 11th hour will only shatter the equilibrium and much loss and hardships would be caused to all the concerned. This Court finds considerable force in the submission made by the learned standing counsel. That apart, if ultimately the applicants lose the case and the stand of the PSC is vindicated, leading to dismissal of the OP[KAT] No.179 of 2016 7 O.A.; the damage caused, by the interim order passed by the Tribunal cannot be remedied at all.
6. Admittedly, the O.A was filed on 03.02.2015 and interim stay of Annexures A4/A5 was sought for then and there; which came to be granted only now; on 09.12.2016. In so far as there is no dispute for the Government that K-TET has been ordered to be reckoned as mandatory qualification only as per Ext. P5 G.O. dated 30.08.2016, the selection notified by the PSC as per Annexures A4/A5 dated 10.09.2014 cannot be prima facie found as wrong or irregular in any manner. That apart, it is settled law that the Rules of the Game shall not be changed after commencement of the Game. We find support from the ruling rendered by Apex Court in Manjusree Vs. State of Andra Pradesh and Ors. [(2003) 8 SCC 512.
7. In the above circumstances, we find that Ext. P4 interim order passed by the Tribunal does require interference.
The Original Petition stands admitted. Issue urgent notice to the respondents 1 to 37 by speed post returnable within two weeks.
The learned senior Government Pleader takes notice on behalf of the 38th respondent.
Implementation of the Ext. P4 order shall be kept in abeyance for a period of month. The outcome of the Tests scheduled to be conducted pursuant to Anenxure A4/A5 shall be subject to further orders to be passed by this Court.
Post immediately after completion of service of notice."
4. The learned counsel appearing for the respondents/ applicants in the OA submits that, pursuant to the order passed OP[KAT] No.179 of 2016 8 by this Court, the test was conducted by the PSC and the respondents/applicants also participated in the same. It is stated that the OA is still pending. In the said circumstances, the merit of the case projected by the applicants and the stand of the PSC, also with reference to the sustainability of the application of K-T.E.T ordered to be reckoned as a mandatory qualification as per GO dated 30.08.2016, ie after the selection notified by the PSC vide Annexure A4/A5 on 10.09.2014 and also the applicability of law declared by the Supreme Court in Manjusree V. State of Andra Pradesh and Others [(2003) 8 SCC 512] that the Rules cannot be changed after commencement of the Game, as noted by us in the aforesaid order, requires to be considered by the Tribunal while adjudicating the matter.
5. The learned counsel for the respondent/applicant points out that the applicants have already produced the relevant documents particularly the GOs issued by the Government even much prior to Ext.P5 GO(P) No.145/16/G.Edn. dated 30/08/2016 [virtually GOs of 2011 onwards], which would OP[KAT] No.179 of 2016 9 support their case before the Tribunal. This Court finds it appropriate to cause the matter to be remitted to the Tribunal for further consideration in accordance with law, based on the pleadings raised by both sides and also the binding precedents, if any, on the point. In view of the nature of contentions and the challenge involved, this Court expresses hope that the matter would be considered and finalised by the Tribunal at the earliest.
With this observation, the matter is remitted to the Tribunal. The original petition stands disposed of accordingly.
Sd/-
P.R.RAMACHANDRA MENON, Judge.
Sd/-
SHIRCY V, Judge.
sp/27/06/17