Abidha K. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938** ## **WP(C).No. 11910 of 2016 (K)** **----------------------------** ## **PETITIONER(S): -------------** **ABIDHA K., PERANCHERY HOUSE,THRIPANGODE P.O., TIRUR,MALAPPURAM,KERALA-676 108.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.P.J.JOE PAUL** ## **RESPONDENT(S):** **--------------** **1. STATE OF KERALA.** **REPRESENTED BY SECRETARY TO GOVERNMENT IN THE DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695 001.** **3. DISTRICT EDUCATIONAL OFFICER, OFFICE OF DEO,THIRUR, MALAPPURAM-676 101.** **4. MANAGER, K.H.M.H.S.S. ALTHIYUR, THIRUR,MALAPPURAM-676 101.** **R1-R3 BY ADV. GOVERNMENT PLEADER SRI UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 11910 of 2016 (K)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXT.P1: A TRUE COPY OF BSC DEGREE CERTIFICATE ALONG WITH MEMORANDUM OF MARKS ISSUED BY THE UNIVERSITY OF CALICUT.** **EXT.P2: A TRUE COPY OF CERTIFICATE OF B.ED ALONG WITH STATEMENT OF MARKS ISSUED BY UNIVERSITY OF CALICUT.** **EXT.P3: A TRUE COPY OF PROSPECTUS TO ADMISSION FOR B.ED COURSES 2012 KERALA(RELEVANT PAGE).** **EXT.P4: A TRUE COPY OF CERTIFICATE ISSUED BY THE HEAD MASTER OF THE KUNHIMON HAJI MEMORIAL HIGHER SECONDARY SCHOOL,ALATHIYUR.** **EXT.P5: A TRUE COPY OF ORDER DATED 29.11.2013 ISSUED BY THE 4TH RESPONDENT.** **EXT.P6: A TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXT.P7: A TRUE COPY OF COMMUNICATION NO.22149/A2/2014.GEN.EDN DATED 30.04.2014.** **EXT.P8: A TRUE COPY OF ORDER NO.K DIS B2/5041/2013 DATED 13.06.2014.** **EXT.P9: A TRUE COPY OF ACKNOWLEDGMENT RECEIVED BY THE PETITIONER FROM THE OFFICE OF MINISTER FOR EDUCATION.** **EXT.P10: A TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER.** **EXT.P11: A TRUE COPY OF GO(MS) NO.141/88/G DATED 13.09.1988.** **EXT.P12: A TRUE COPY OF GO(P) NO.220/2005/G.EDN.DATED 19.07.2005. EXT.P13: A TRUE COPY OF GO(MS) NO.227/2009/G.EDN.DATED 25.11.2009.** **EXT.P14: A TRUE COPY OF JUDGMENT IN CIVIL APPEAL NO.226-227 OF 2015 OF THE HONOURABLE SUPREME COURT OF INDIA.** **EXT.P15: A TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT BEFORE THE HONOURABLE SUPREME COURT IN CIVIL APPEAL NO.226-227 OF 2015.** **EXT.P16: A TRUE COPY OF ADDITIONAL COUNTER AFFIDAVIT FILED IN CIVIL APPEAL NO.226-227 OF 2015.** **RESPONDENT(S)' EXHIBITS:NIL** **-----------------------** **//TRUE COPY//** **P.A TO JUDGE** **A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.11910 of 2016 ............................................................. Dated this the 6[th] day of October, 2016** ## **J U D G M E N T** The petitioner is a graduate in Biochemistry, having been awarded a graduate degree by the faculty of Science in the University of Calicut. The main subject pursued by her, as part of the degree course, was Biochemistry and the subsidiary subjects were Chemistry and Microbiology. It is also on record that the petitioner had obtained a B.Ed qualification in Physical Science, as evident from Ext.P2 certificate issued by the University of Calicut. The petitioner, based on her qualification, was appointed as H.S.A in Physical Science in the 4[th] respondents school in an additional division vacancy. Later, she was adjusted against a regular vacancy in the same school with effect from 03.06.2013. When the proposal for approval to the appointment of the petitioner as H.S.A (Physical Science) was forwarded to the educational authorities, the same was initially returned under cover of Ext.P5 communication dated 29.11.2013, stating that the proposal for approval could not be considered since, according to the -2- W.P.(C).No.11910 of 2016 respondents, the petitioner did not have the requisite qualification for appointment as H.S.A (Physical Science). This led the petitioner to approach the Government through Ext.P6 representation, seeking to include her qualification of BSc Biochemistry as a specific qualification for the purposes of appointment as H.S.A (Physical Science). By Ext.P7 order, the said representation was rejected. Thereafter, the 3[rd] respondent, by Ext.P8 order, formally rejected the proposal for approval to the appointment of the petitioner as H.S.A (Physical Science), indicating therein that the reason for denial of approval was the fact that the petitioner had the qualification of BSc Biochemistry with B.Ed in Physical Science, and as per the provisions of the Kerala Education Rules (hereinafter referred to as 'the KER') the said qualification of BSc Biochemistry was not specified as the qualification required for appointment as H.S.A in Physical Science. In the writ petition, the petitioner impugns Exts.P5, P7 and P8, inter alia, on the ground that, Government orders that have been issued from time to time clearly indicate that the qualification of BSc in Biochemistry would also qualify as a graduate degree in Physical Science for the purposes of -3- W.P.(C).No.11910 of 2016 appointment as H.S.A (Physical Science). In particular, reliance is placed on Ext.P12 Government order dated 19.07.2005 which made it clear that, both the qualification of graduate degree as also the B.Ed degree should be in the concerned subject for the purposes of appointment as H.S.A in the subject concerned. It is also pointed out that, although the Government had, by Ext.P11 Government order, initially taken the view that for the purposes of holding the post of H.S.A (Physical Science) one had to have a graduate degree in either Physics, Chemistry or Home Science as a main subject, this requirement was later modified by Ext.P13 Government order dated 25.11.2009 making it clear that the degree had necessarily to be either in Physics or Chemistry as a main subject. 2. A counter affidavit has been filed on behalf of the 3rd respondent wherein the stand taken is as follows: “4. A degree in the concerned subject and BEd/B.T/L.T conferred or recognised by the Universities in Kerala circular No.H4/128441/74 dated 17.01.75 also laid down qualification of teaching staff. Even though many amendments came into force by adding or deleting required subject combination for the post of H.S.A -4- W.P.(C).No.11910 of 2016 teaching post, qualification for teaching Physical Science remained the same qualification for H.S.A Social Science, was amended as per G.O. (Ms) No.227/2009/G.Edn dated 25.11.2009. But in the case of Physical Science combination with Bio Chemistry as main subject did not came into effect. 5. It is respectfully submitted that the contention of the petitioner for getting approval of her appointment is that she is a Bio Chemistry graduate with Chemistry and Biology as subsidiaries, which is not equivalent to the graduation required for H.S.A Physical Science, is not at all sustainable in the eye of law and it is against the statutory manner. The petitioner's BEd degree in Physical Science alone is not at all sufficient to get approval of her appointment as H.S.A (Physical Science). In the aforesaid facts and circumstances, this respondent denied the approval of her appointment as H.S.A (Physical Science) in the 4[th] respondent's school.” It is the contention of the respondents that, inasmuch as the petitioner does not have a graduate qualification in the subject Physical Science or in the subject of Physics and Chemistry, she cannot be considered for appointment to the post of H.S.A (Physical Science). 3. I have heard the learned counsel appearing for the -5- W.P.(C).No.11910 of 2016 petitioner as also the learned Government Pleader appearing for the respondents. 4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that as per the provisions of Rule 2 (2) (a) of Chapter XXXI KER, the qualification required for appointment as a High School Assistant (Subject) under the said Rules is a degree in the concerned subject and B.Ed/B.T./L.T conferred or recognised by the Universities in Kerala. The latter portion of the Rule, which contemplates the possession of a B.Ed/B.T./L.T conferred or recognised by the Universities in Kerala, has since been clarified by a decision of this Court to mean a B.Ed/B.T./L.T in the concerned subject. In otherwords, the prescription in the statutory Rules is that a person seeking appointment as High School Assistant in a particular subject must have both a degree, as also a B.Ed/B.T./L.T, in the concerned subject. The issue that then arises is: what would be the concerned subject for a person seeking appointment to the post of H.S.A in Physical Science? It is not in dispute that, at present, there is no graduate course of study in Physical Science. -6- W.P.(C).No.11910 of 2016 This aspect has also engaged the attention of this Court in **Swapna Sukumar v. State of Kerala (213 (3 KLT 53]** , where this Court also found that there is no graduation in Physical Science. As rightly observed in the said judgment of the Division Bench, in the absence of any graduate course in Physical Science one has to go by the scheme of the Rules, read with the Government orders issued from time to time, to ascertain what would amount to a graduate course in Physical Science. In this connection, it would be relevant to note that, by Ext.P11 Government order dated 13.09.1988, the Government itself has, for the purposes of grouping of subjects in the post of High School Assistants, indicated that the group with nomenclature Physical Science would take within its fold, the academic qualification of a degree in Physics, Chemistry or Home Science as the main subject for graduation. By Ext.P13 Government order dated 25.11.29, this was modified by deleting the subject of Home Science from the academic qualifications that would be relevant for the group Physical Science. One would assume, therefore, that the Government sought to restrict the consideration of the group of Physical Science to only those candidates possessing a graduation -7- W.P.(C).No.11910 of 2016 in Physics or Chemistry as the main subject for graduation. The learned counsel for the petitioner, however, points to Ext.P3 prospectus for admission to various B.Ed courses in the State. The said prospectus, which applies for admission to B.Ed courses in 2012, clearly indicates that for aspiring for admission to a B.Ed course for Physical Science, a candidate had to have a B.Sc degree with either Physics/Chemistry/Polymer Chemistry/ B.Sc Geology/B.Sc Petrochemichals/ B.Sc Biochemistry/ B.Sc Industrial Chemistry main with 50% marks for Part III or not less than 50% marks for masters degree in Physics/Chemistry/Polymer Chemistry/MSc Geology/MSc Petrochemicals/M.Sc Biochemistry/MSc Industrial Chemistry. Reliance on Ext.P3 prospectus is essentially for the purposes of indicating that, a person with a BSc degree in Biochemistry could aspire for admission to the BEd course in Physical Science. As already noted above, the BEd course in Physical Science would equip a person with one of the qualifications required for the post of H.S.A in Physical Science. When read with the stipulation by the Government in Ext.P12 Government order, that both the graduate qualification as well as the BEd qualification had to be in Physical -8- W.P.(C).No.11910 of 2016 Science, for a person seeking appointment to the post of H.S.A Physical Science, one cannot but come to the conclusion that the graduation in Physical Science would take in even a graduation in Biochemistry, which is deemed sufficient to enable a candidate to pursue the BEd course in Physical Science. Thus, when one looks at the Government orders, and the prospectus issued by the State Government, who is to be seen as the policy maker in the context of the recruitment criteria prescribed in the KER, the conclusion is inescapable that a graduate in Biochemistry would have to be considered as having a degree in the subject of Physical Science for the purposes of appointment to the post of H.S.A Physical Science. In Exts.P5, P7 and P8 orders that are impugned in the present writ petition, the educational authorities have not considered this aspect in the matter and have proceeded to mechanically reject the proposal submitted for approval to the appointment of the petitioner as H.S.A Physical Science based on the express provisions in Rule 2 (2) (a) of Chapter XXXI of KER. I, therefore, quash Exts.P5, P7 and P8, and allow the writ petition by directing the 3[rd] respondent to approve the appointment of the petitioner as H.S.A Physical Science in the school under the -9- W.P.(C).No.11910 of 2016 management of the 4[th] respondent, in the regular vacancy that arose in the school with effect from 03.06.2013. The 3[rd] respondent shall pass appropriate orders in line with the directions in the judgment within a period of one month from the date of receipt of a copy of this judgment, and shall thereafter pay the salary and other allowances that flow from such approval within a further period of three months. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/13.10.16