Latha Joseph M v State of Kerala & Others

WP(C) NO. 8268 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 27[TH] DAY OF MARCH 2023 / 6TH CHAITHRA, 1945** ## **WP(C) NO. 8268 OF 2023** ## **PETITIONER/S:** LATHA JOSEPH M AGED 53 YEARS WIFE OF JOHNSON PAVOO HIGH SCHOOL ASSISTANT (SOCIAL STUDIES) ST. JOSEPH'S & ST. CYRIL'S HIGHER SECONDARY SCHOOL WEST MANGAD, THRISSUR (RESIDING AT PELLISSERY HOUSE EAST BAZAR, KUNNAMKULAM, THRISSUR DISTRICT-680 503), PIN - 680542 BY ADVS. M.SAJJAD V.A.MUHAMMED ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE II, THIRUVANANTHAPURAM-, PIN - 695001 2 THE DIRECTOR OF GENERAL EDUCATION JAGATHY, THIRUVANANTHAPURAM, PIN - 695014 3 THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR @ AYYANTHOLE, PIN - 680003 4 THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT, PIN - 680506 5 THE MANAGER, ST. JOSEPH'S & ST. CYRIL'S HIGHER SECONDARY SCHOOL WEST MANGAD, THRISSUR, PIN – 680542 SRI.K.M.FAISAL, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 8268 OF 2023 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C) No. 8268 of 2022** **-------------------------------------Dated this the 27[th] day of March, 2023** ## **JUDGMENT** ## The above writ petition is filed with following prayers : “(i) call for the records relating to Exhibits P-3, P-4, P-5 and P-8 and set aside the originals of the same by the issue of a writ of certiorari or other appropriate writ or order. ii) issue a writ of mandamus or other appropriate writ, order or direction commanding the 4[th] Respondent to approve the promotion appointment of the Petitioner covered by Exhibit P-2 and disburse the attendant benefits forthwith. iii) declare that the petitioner is entitled to get approval to the promotion covered by Exhibit P-2 in the light Exhibit P-11 judgment. iv) to dispense with filing of English translation of vernacular documents produced along with the Writ Petition. v) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.” [SIC] 2. The petitioner commenced service as UPSA (Upper WP(C) NO. 8268 OF 2023 3 Primary School Assistant) under the 5[th] respondent w.e.f. 01.06.2007 against a promotion vacancy and the said appointment as UPSA was approved from 04.06.2007 onwards. It is the case of the petitioner that she had qualification of B.A.(History) and B.Ed. (English) at the time of commencement of service as UPSA. While continuing as an approved UPSA, she was promoted as HSA (High School Assistant) (Social Studies) against a retirement vacancy w.e.f. 01.06.2018, by virtue of seniority and qualification. It is the case of the petitioner that she was promoted as HSA (SS) w.e.f. 01.06.2018. When the proposal for approval to the promotion as HSA (SS) was taken up with the 4[th] respondent, the approval was rejected mainly on the ground that the petitioner's B.Ed degree is in English and that the vacancy was not filled up by appointing a protected teacher. According to the petitioner, she has qualification of BA and B.Ed and B.Ed is not necessary in the same subject. The petitioner relied Ext.P11 judgment. Hence, this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. WP(C) NO. 8268 OF 2023 4 4. Today, when the matter came up for consideration, the counsel for the petitioner submitted that the point raised in this writ petition is covered in favour of the petitioner in Ext.P11 judgment. The Government Pleader conceded that there is no amendment to the Rule after Ext.P11 judgment. If that is the case, I think in the light of Ext.P11 judgment, the impugned order can be set aside. It will be better to extract the relevant portion of Ext.P11 also. “8. We have considered the submissions made. We have already noticed the qualifications for H.S.A (subjects) of private schools are contained in Chapter XXXI of the KER. Insofar as H.S.A (subjects) is concerned, Rule 2(2)(a) prescribes degree in the concerned subject and B.Ed/B.T/L.T conferred or recognised by the universities in Kerala, are the qualifications. Here it is to be noticed that while in the case of degree, the rule making authority has chosen to prescribe that it shall be in the subject concerned and that such a restrictive prescription has not been incorporated in the case of the training qualification. Language of the Rule being as above, the fact that the rule does not prescribe that the training shall be in the subject concerned has also been recognised by the Full Bench of this Court in the decision in Manager M.P.V.H.S. School v. Girija [2003 (1) KLT 935 (FB)]. In paragraphs 8 and 9 of the said judgment, it has been held thus: 8. Mr. Devan, learned counsel for the appellant, contended that the rules have made a distinct departure WP(C) NO. 8268 OF 2023 5 when it comes to High School Assistant (Hindi), and hence, we should interpret the qualification B.Ed. of the training qualification in R.2(2)(b)(iv) as meaning B.Ed. in Hindi only. He also contends that a careful reading of the training qualifications enumerated in Para B would indicate that all the alternatives are like Diploma or Certificate of Language Teachers Training in Hindi, or passing in any one of the examinations of the Kendriya Hindi Sikshan Mandal, Agra, such as Hindi Siksha Praveen, Hindi Sikshan Parangath, and Hindi Sikshan Nishnat. All these, according to the learned counsel, suggest that the emphasis is on teachers training in teaching Hindi language. Hence, learned counsel contended that the B.Ed. qualification prescribed as training qualification for a High School Assistant (Hindi) must necessarily be equivalent to Hindi Teachers Training given in the various options. Ergo, the B.Ed. qualification also must be with Hindi as optional subject. Prima facie, the argument, no doubt, is attractive. But, we cannot make a radical departure only for interpreting R.2(2)(b)(iv) of Chapter XXXI of K.E.R. as that principle would equally be applicable to the interpretation of other clauses of R.2(2)(b) of Chapter XXXI. We have already pointed out that the Certificate in Language Teachers Training is not required to be in a particular language. Thus, there is no reason why we should hold that B.Ed prescribed in Sub-rr. (2)(a), or (2) (b) (i),or (ii), or (iii), or (v), or (vi), or (vii), or (viii) or (ix) of R.2 of Chapter XXXI should be in the subject concerned. In all the subjects referred to in Cls.(i) to (ix) of R. 2(2), B.Ed./B.T./L.T. have always been bracketed. If there was no optional subject for B.T. and L.T., we see no pressing for importing that concept for interpretation while dealing with B.Ed. training qualification required WP(C) NO. 8268 OF 2023 6 under the said Rules. 9. For all these years, the rules have been interpreted by the rule making authority, the State Government in the Educational Department, as also by the teachers and the Managers of the schools in a particular manner. B.Ed. qualification with the optional subject has never been considered as required. It would, therefore, be quite needless to upset the apple cart and unsettle the position by a judicial interpretative process at this point of time. Firstly, the interpretation would apply retrospectively from the date on which the rule was enacted. Secondly, it would defeat the legitimate expectations of large number of persons who may have obtained B.Ed. or its equivalent in other subjects with a view to get promotion by virtue of R. 43 of Chapter XIV-A, of K.E.R.. In any case, the litera legis is clear and leads to no ambiguity, though it could have been better worded. Finally, the life of law is not logic but convenience, as Justice Holmes said. Proceeding further and after approving the judgment of the Division Bench in Sindhu v. Kerala Public Service Commission [2001 (2) KLT 507], the Full Bench held in para 11 that if the State Government is of the view that training qualification of a teacher must be in the subject concerned, then they must immediately amend the rule to that effect.” 5. In the light of the above finding, I am of the considered opinion that the finding in Ext.P8 will not stand. Therefore, this writ petition is allowed in the following manner : 1) Ext.P8 is set aside. WP(C) NO. 8268 OF 2023 7 - 2) The 1[st] respondent is directed to reconsider the matter in - the light of paragraph 8 of Ext.P11 judgment as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. - 3) The petitioner will produce a certified copy of this judgment along with the copy of this writ petition before the 1[st] respondent for compliance. Sd/- **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 8268 OF 2023 8 ## **APPENDIX OF WP(C) 8268/2023** PETITIONER EXHIBITS Exhibit P-1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01.06.2007 Exhibit P-2 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01.06.2018 Exhibit P-3 TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD VIDE ORDER NO. B2/18740/2020 DATED 06.10.2020 Exhibit P-4 TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR VIDE ORDER NO. B4/212521/2020 DATED 30.11.2020 Exhibit P-5 TRUE COPY OF THE PROCEEDINGS OF THE ADDL.DIRECTOR OF GENERAL EDUCATION VIDE ORDER NO. EC5/232760/2021/DGE DATED 29.10.2021 Exhibit P-6 TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 02.12.2021 Exhibit P-7 TRUE COPY OF THE JUDGMENT IN WP(C)NO.3580/2022 DATED 03.11.2022 Exhibit P-8 TRUE COPY OF THE G.O.(RT).NO.1119/2023 DATED 07.02.2023 Exhibit P-9 TRUE COPY OF THE G.O. (P) NO. 220/2005/G.EDN DATED 19.7.2005 Exhibit P-10 TRUE COPY OF THE G.O. (P) NO. 165/2008/ G.EDN DATED 19.09.2008 Exhibit P-11 TRUE COPY OF THE JUDGMENT IN W.A. NO. 724/2014 DATED 02.06.2014