Dr. Sureshkumar v. Director of Higher Secondary Education & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 16TH DAY OF JULY 2013/25TH ASHADHA, 1935 WA.No. 1028 of 2013 IN WP(C).26397/2012 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 26397/2012 DATED 10-06-2013 .......................... ## APPELLANT/PETITIONER : ----------------------------- DR.P.SURESHKUMAR, HIGHER SECONDARY SCHOOL TEACHER (HISTORY) S.N.TRUSTS HIGHER SECONDARY SCHOOL, NANGIARKULANGARA, ALAPPUZHA DISTRICT. BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.AMMU PILLAI ## RESPONDENTS/RESPONDENTS : ----------------------------------- 1. DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM - 695 001. 2. THE DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, NEAR MUSEUM, THIRUVANANTHAPURAM - 695 033. 3. THE MANAGER, - S.N.TRUSTS SCHOOLS, KOLLAM - 691 001. 4. PRASANNAKUMR.T., - PRINCIPAL, S.N.TRUSTS HIGHER SECONDARY SCHOOL, NANGIARKULANGARA, ALAPPUZHA DISTRICT - 690 513. 5. HEMALETHA.J., PRINCIPAL, S.N.TRUSTS HIGHER SECONDARY SCHOOL, CHELANNUR, PIN - 673 616. 6. SUNITHA.L. - PRINCIPAL, S.N.G.H.S.S., CHEMPAZHANTHY, THIRUVANANTHAPURAM DISTRICT, PIN - 695 587. WA.No. 1028 of 2013 ## 7. SUMAM.A. PRINCIPAL, S.N.TRUSTS HIGHER SECONDARY SCHOOL PUNALOOR, KOLLAM DISTRICT, PIN - 691 305. ## 8. JAYAN.U., PRINCIPAL, S.N.TRUSTS HIGHER SECONDARY SCHOOL CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688 524. R1 & R2 BY SPL.GOVERNMENT PLEADER, SMT. GIRIJA GOPAL. R3 BY SRI.A.N.RAJAN BABU. R4 BY SRI.S.SUJIN. R5 TO R7 BY SRI.G.S.REGHUNATH. R8 BY SRI.V.A.MUHAMMED. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MANJULA CHELLUR, C.J & K.VINOD CHANDRAN, J.** ## **----------------------------------------------** ## **W.A.No. 1028 of 2013** ## **---------------------------------------------Dated this the 16[th] day of July, 2013 JUDGMENT** ## **Manjula Chellur, C.J.** Heard learned counsel for the appellant as well as learned Special Government Pleader. 2. The entire issue revolves round the controversy raised by the appellant/writ petitioner that whatever relaxation granted to him at the time of appointment as Higher Secondary School Teacher has to be considered even for the promotion to the post of Principal in the light of the appellant having Ph.D, a higher qualification than B.Ed. It is not in dispute, initially the appellant joined the service as Higher Secondary School Teacher without having the required qualification of B.Ed Degree, because of the relaxation granted by the Government. It is also not in dispute that so far as the qualification required for the post of Principal, the next promotion from Higher Secondary School Teacher, one has to have B.Ed Degree, apart from experience and basic degree. The contention of the writ petitioner is that having had _**WA.1028/13**_ 2 the benefit of relaxation on earlier occasion, it has to be continued to be extended to him for the next promotion also as Principal, though he does not have B.Ed Degree. 3. The contention of the State before the learned Single Judge was that in the Special Rules, specific qualifications are prescribed for each post. The concession granted in terms of Exhibit P5 notification does not cover a concession with reference to the basic qualification required for the post of Principal in so far as the relaxation had been granted to the appellant/writ petitioner only for the post of Higher Secondary School Teacher. In the absence of such extended benefit or a separate circular in that regard, the appellant cannot claim such relaxation; to become eligible to be considered for the post of Principal. As a matter of fact, the appellant approached the learned Single Judge seeking quashing of Exhibit P4, the order under which various persons appointed under the management by the corporate management, was indicated. Exhibit R5(b) is the seniority list. When his name was not found in the seniority list, for want of required qualification of B.Ed Degree to the post of Principal, he approached this Court. 4. The learned Single Judge, after considering the relaxation 3 _**WA.1028/13**_ granted earlier as per Exhibit P5, opined that Ph.D was taken as a higher qualification for B.Ed Degree so far as the post of Higher Secondary School Teacher as a special case in respect of appellant/writ petitioner and also others, but the same cannot be a substitute or cannot be extended again at the time of considering his case for promotion to the post of Principal, as B.Ed is an essential qualification for the post of Principal. Aggrieved by the said judgment of the learned Single Judge, the appellant is before us. 4. According to learned counsel for the appellant, in similar situation, the Apex Court, while considering the case of _**Jagdish Kumar and others v. State of HP and others**_ (2006(2) All India Services Law Journal 340), held as under: _“15. Further question is whether any relaxation was necessary while giving promotion as Assistant Draftsman. For being eligible to be considered for appointment as Assistant Draftsman, the requirements are indicated in Rule 6(ii). Once the requirement of passing diploma of Draftsman Course is relaxed in terms of Rule 6(i) for appointment as Tracer, there is no necessity for again having relaxation for being considered as Assistant Draftsman. That_ 4 _**WA.1028/13**_ _contingency is already taken care of when relaxation is given for appointment as Tracer. Otherwise, a person who has been found eligible to be appointed as a Tracer will not be considered for promotion as Assistant Draftsman, even though there is no illegality attached to the appointment as Tracer. Such a view would go against the logic of relaxation for appointment as Tracer.”_ 5. We have gone through the facts of the _**Jagdish Kumar's case (Supra)**_ . It was with regard to a “Tracer” being promoted as Assistant Draftsman. Paragraph 2 of the said decision clearly indicates the facts of the said case. In the said case, a departmental examination was provided substituting the training by the ITI for appointment of the post of 'Tracer' and it was specifically considered as a relaxation so far as the qualification for promotion to the post of Assistant Draftsman. The facts in the said case are entirely different from the facts in the present case. Even otherwise, as pointed out by the learned Special Government Pleader, the Division Bench of this Court had an occasion to consider Rule 3 Chapter I of the Kerala Education Rules with reference to relaxation in the case of _**Gangadharan Nair v. State of Kerala & Others**_ (1984 KLT 75). Going through 5 _**WA.1028/13**_ the facts of the said case, it is seen that after referring to Rule 39 of KS & SSR, which is similar to Rule 3 Chapter I KER, their Lordships held it is in the domain of the Government, where and for what post such relaxation could be extended. They further held that the court does not assess the correctness of the government's decision as if it is an appellate authority, since it is for the Government to judge the facts and assess the necessity for the invocation of a provision like Chapter I Rule 3 of KER. 6. In the present case, as per Exhibit P5, a relaxation was extended to the appellant/writ petitioner at the time of appointing him as Higher Secondary School Teacher and it is not only the appellant, but several others were also given such relaxation. He cannot expect to have the benefit of Exhibit P5 for the next promotion as Principal. There is no provision in any of the Rules providing extension of benefit of an order like Exhibit P5 for all promotions; till the retirement of a teacher, who had the benefit of such relaxation. In the absence of any specific provision or circular by the Government, we fail to understand how he could again rely upon Exhibit P5 when specific qualifications are required to be considered for promotion to the post of Principal. In the absence of appellant/writ petitioner having B.Ed Degree, 6 _**WA.1028/13**_ which is a mandatory qualification, we fail to understand how Ph.D can be replaced by B.Ed Degree. In that view of the matter, we are of the opinion, the learned Single Judge was justified in rejecting the claim of the appellant/writ petitioner. Accordingly, the Writ Appeal is dismissed. **MANJULA CHELLUR, CHIEF JUSTICE** **K.VINOD CHANDRAN, JUDGE** **vgs16.7**