P. V. Mohan Kumar v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **FRIDAY, THE 2ND DAY OF MARCH 2012/12TH PHALGUNA 1933** ## **WP(C).No. 11604 of 2004 (F)** **---------------------------------------** **PETITIONER(S): ------------------------** **P.V.MOHAN KUMAR, ASSISTANT TEACHER, AUP SCHOOL, PACHERI, MELATTUR MALAPPURAM** **BY ADVS.SRI.B.RAGUNATHAN SRI.V.V.MATHEW SRI.G.GOPALAKRISHNA PILLAI** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001** **2. DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM** **3. DISTRICT EDUCATIONAL OFFICER, MALAPPURAM.** **4. ASSISTANT EDUCATIONAL OFFICER, MELATTUR, MALAPPURAM.** **5. MANAGER, AUP SCHOOL, PACHERI, MELATTUR, MALAPPURAM** **6. SMT. P.M.RADHAMANI, HEAD MISTRESS, AUP SCHOOL, PACHERI, MELATTUR MALAPPURAM.** **R1 TO R4 BY GOVT. PLEADER SRI.BIJU MEENATTOOR R5 BY ADVS. SRI.JACOB SEBASTIAN R5 BY SRI.VARGHESE C.KURIAKOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2012, THE COURT ON 02/03/2012 DELIVERED THE FOLLOWING: tss** ## **W.P.(C) NO.11604/2004** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE APPOINTMENT ORDER DTD. 1.5.03 OF 5TH RESPONDENT.** **P2:- COPY OF THE LETTER DTD. 30.4.03 OF THE 5TH RESPONDENT.** **P3:- COPY OF THE REPRESENTATION DTD. 5.5.03 OF SHRI.VELAYUDHAN.** **P4:- COPY OF THE B.A.DEGREE CERTIFICATE** ## **RESPONDENT'S EXHIBITS** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.11604 of 2004-F** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 2[nd] day of March, 2012** ## **JUDGMENT** The question posed before this Court is as to whether, for the purpose of Rule 45 of Chapter XIV-A K.E.R. and for appointment of Headmaster in a U.P. School, degree with T.T.C. can be treated as equivalent to degree with B.Ed. The essential facts for the disposal of the case are the following: 2. The petitioner is working as Assistant Teacher under the fifth respondent Manager and he was appointed as such on 1.6.1981. He had the qualification of P.D.C. with T.T.C. and later he graduated in B.A. in the year 2002. He has also passed Account Test Lower and Kerala Education Act and Rules in 1992. 3. The sixth respondent is the Teacher who has been promoted as Headmistress. She is having B.A. (Sanskrit) and B.Ed. The sixth respondent was appointed from 1.5.2003 as per Ext.P1 order. 4. Heard learned counsel for the petitioner Shri B.Raghunathan, Shri Jacob Sebastian, learned Counsel appearing for the sixth respondent and Shri Biju Meenattoor, learned Government Pleader. WPC.11604/2004 2 5. Learned counsel for the petitioner submitted that under Rule 45 of Chapter XIV-A K.E.R. (unamended), a graduate teacher with B.Ed. or other equivalent qualification and who has got at least five years experience in teaching (after acquisition of B.Ed. degree), can be appointed as Headmaster provided that he has got a service equal to half of the period of service of the seniormost under graduate teacher. Degree with T.T.C. will come within the meaning of the term “other equivalent qualification” in the Rule. 6. Shri Jacob Sebastian, learned Counsel for the sixth respondent and learned Government Pleader submitted that what is provided under the rule is a qualification equivalent to B.Ed. and T.T.C. has not been recognised as equivalent to B.Ed. under the said rule or any other rules of K.E.R. 7. In support of the argument of the learned counsel for the petitioner, reliance is placed on a decision of the Apex Court in **Latha v. State of Kerala** (2003 (1) KLT 949 - SC) which was relied on by another Division Bench of this Court in **Gopalakrishnan v. Director of Public Instruction** (2005 (4) KLT 774) and **Jayakrishna v. Kerala Public Service Commission** (2012 (1) KLT 629). 8. The crucial provision in Rule 45 of Chapter XIV-A K.E.R. comes WPC.11604/2004 3 up for interpretation. The said rule as it stood at the relevant date of occurrence of vacancy, reads as follows: “Subject to rule 44, when the post of Headmaster of complete U.P. school is vacant or when an incomplete U.P. School becomes a complete U.P. School, the post shall be filled up from among the qualified teachers on the staff of the School or Schools under the Educational Agency. If there is a Graduate teacher with B.Ed. or other equivalent qualification and who has got at least five years experience in teaching (after acquisition of B.Ed. Degree) he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the senior most under-graduate teacher. If graduate teachers with the aforesaid qualification and service are not available in the School or Schools under the same Educational Agency, the senior most Primary School Teacher with S.S.L.C. or equivalent and T.T.C. issued by the Board of Public Examination, Kerala or T.C.H. issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre-degree Examination with Pedagogy as an elective subject conducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as Primary School Assistant may be appointed.” The academic qualification provided is graduation with B.Ed. or other equivalent qualification for the first category which is entitled to preference. In fact, the question considered by the Apex Court in **Latha's case** (2003 WPC.11604/2004 4 (1) KLT 949 - SC) and by the Division Bench in **Gopalakrishnan's case** (2005 (4) KLT 774) are totally different. In **Latha's case** (supra) the question considered is whether B.Ed. holders can be appointed as teachers in Primary Schools, going by the relevant specifications. Therein, the recruitment was for appointments in Government schools. The Public Service Commission conducted the selection and in the notification the prescribed training qualification was T.T.C. apart from other qualifications but B.Ed. candidates were considered for selection. A learned Single Judge of this Court held the view that B.Ed. candidates could not have been included in the select or rank list as they were not eligible under the terms of the advertisement. Such candidates were directed to be excluded from the rank list. The Division Bench, after upholding the decision of the learned Single Judge, interfered with the directions by recording the undertaking by the Government that rules will be suitably amended providing appointment to both TTC and B.Ed. holders as Teachers in Primary Schools. This was set aside by the Apex Court and in that process the legal position was laid down thus at page 952: “Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed. qualification, is a matter of recruitment policy. We find sufficient logic and WPC.11604/2004 5 justification in the State prescribing qualification for post of primary teachers as only TTC and not B.Ed. Whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates, for the present vacancies advertised, as eligible. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law. The Division Bench forgot that in extending relief on equity to B.Ed. candidates who were unqualified and yet allowed to compete and seek appointments contrary to the terms of the advertisement, it is not redressing the injustice caused to the appellants who were TTC candidates and would have secured a better position in the Rank List to get appointment against the available vacancies, had B.Ed. candidates been excluded from the selections. The impugned judgment of the Division Bench is both illegal, inequitable and patently unjust. The TTC candidates before us as appellants have been wrongly deprived of due chance of selection and appointment. The impugned judgment of the Division Bench, therefore, deserves to be set aside and of the learned single Judge restored.” 9. In the later judgment of the Division Bench of this Court in **Gopalakrishnan's case** (2005 (4) KLT 774), Rule 45A of Chapter XIV-A K.E.R. came up for interpretation which concerns the filling up of the post of Headmaster in a complete L.P. School. After examining the relevant WPC.11604/2004 6 rules, the Bench was of the view that B.Ed. is not an equivalent training qualification for appointment to the post of Headmaster in L.P. schools. The specific provisions under Rule 45A were interpreted by the Division Bench. It was held that B.Ed. has never been recognised as an equivalent qualification for the post of Lower Primary School Assistant or for the post of Headmaster of a Lower Primary School. The legal issue was explained in paragraphs 6, 7 and 8 as hereunder: “6.........The above mentioned provision would clearly show that a pass in TTC Examination conducted by the Commissioner for Government Examinations is an essential qualification for the post of Lower Primary School Assistant. We have already pointed out that R.45A of Chapter XIVA of the KER refers to “any other equivalent training qualification prescribed for appointment as Primary School Assistant”. The qualification prescribed for the post of Primary School Assistant is TTC and not B.Ed. B.Ed. has never been recognised as an equivalent qualification for the post of Lower Primary School Assistant or for the post of Headmaster of a Lower Primary School The Supreme Court in _P.M.Latha v. State of Kerala,_ 2003 (1) KLT 949 (SC) = (2003) 3 SCC 541 has occasion to consider the question as to whether B.Ed.is a higher training qualification than T.T.C. 7. We are of the view that unless it is specifically incorporated in R.45A of Chap.XIVA or in R.4 of Chap.XXXI of the KER, WPC.11604/2004 7 B.Ed. cannot be treated as equivalent training qualification to that of TTC. If that be the legal position we are of the view that second petitioner was the only person qualified for being appointed as Headmaster on the date of occurrence of the vacancy and the 4th respondent was unqualified to hold the post of Headmaster of L.P.School. 8.............. We therefore find it difficult to accept that reasoning of the learned single Judge in _Mathew’s_ case, especially, in view of the decision of the Apex Court in _Latha’s_ case (supra) wherein the Apex Court rejected the contention that B.Ed. qualification is higher qualification than T.T.C. and held that there is sufficient justification in prescribing TTC qualification for appointment of Primary School Teachers and not B.Ed. The emphasis in R.45A is on “any other equivalent training qualification” and not higher qualification. Training qualification prescribed for Primary School Assistant is not B.Ed., but T.T.C. ...........” 10. Going by the decision of the Apex Court, it can be seen that B.Ed. was not found as equivalent to T.T.C. Therefore, the dictum laid down in the said decision cannot support the argument of the petitioner. The decision of a Full Bench of this Court in **Raghavan v. State of Kerala and others** (1987 (2) KLT 942 FB), is a case where the contest was between two graduate teachers with B.Ed. qualification for appointment as Headmaster of U.P. School and it was held that preference should be given WPC.11604/2004 8 to the person having seniority. 11. In **Jayakrishna's case** (2012 (1) KLT 629), a Division Bench of this Court interpreted the requirement of Rule 5 of Collegiate Education Service Special Rules, 1994 for appointment to the post of Lecturer in B.Ed. College. Therein, the appellant was having the qualification M.A. and B.Ed. in Hindi at the time of appointment as a Hindi Teacher. After five years of service, she acquired M.Ed. degree and also NET. Pursuant to the notification issued by the Public Service Commission for appointment to the post of Lecturer in Hindi in two B.Ed. Colleges, the appellant submitted an application. The Commission took the view that the experience after acquiring M.Ed. degree was less than three years and therefore she did not have the required three years experience to apply for the post. The Division Bench took the view that the appellant had five years of teaching experience with B.Ed. and one year's experience as a Teacher in the High School after acquiring M.Ed. degree. It was held thus in para 3: “Therefore, the professional qualification has to be necessarily B.Ed., which the appellant had from the very beginning. So much so, we hold that the professional qualification required for High School Teacher being B.Ed. degree, the experience gained as a Teacher with B.Ed. degree is squarely covered by clause 3 of the Special Rules. The appellant with six years' experience as a High WPC.11604/2004 9 School Assistant with B.Ed. as on date of making application for the post of Lecturer was eligible to be considered.” Even though assistance was sought by the learned counsel for the petitioner of the above dictum, the same cannot help the petitioner herein since a person having degree with B.Ed. is having preference for appointment as Headmaster. 12. Learned Counsel for the contesting respondent, Shri Jacob Sebastian relied upon the decision of a learned Single Judge of this Court in **Jayanand v. AEO** (2001 KHC 58 = 2001 (1) KLT 115) wherein it was held that there can be no comparison between T.TC. holders and B.Ed. holders to find out which is higher or lower. This Court examined the duration of the respective courses and other aspects and it was held in para 3 as follows: “3. TTC is a course having a duration of two years. B.Ed. is a course having duration of one year. TTC is a course where the teachers are trained to teach all subjects to tiny tots, whereas B.Ed. is a course where teachers are trained to teach one or two subjects alone for High School Classes. Therefore one cannot be compared with the other to hold that one is a lower qualification and the other is a higher qualification.” WPC.11604/2004 10 Therefore, the learned Judge was of the considered view that going by the course content and duration, one cannot be compared with the other to hold that one is a lower qualification and the other is a higher qualification. I respectfully agree with the above view. 13. Of course, for the purpose of Rule 45, the contest can be between graduates with B.Ed. and teachers with other “equivalent qualification”. Therefore, equivalency is a matter which should be laid down by the rules or prescribed by other executive orders, if rules have not prescribed any equivalent qualification, as held by the Apex Court in **Guru** **Nanak Dev University v. Sanjay Kumar Katwal and another** {(2009) 1 SCC 610}, wherein it was held thus in para 13: “Equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the University relating to equivalence should be by a specific order or resolution, duly published.” The Government can therefore prescribe any equivalent qualification for the purpose of Rule 45. In fact, under the second limb of Rule 45, in the absence of graduate teachers with the prescribed qualification, persons having T.T.C. qualifications are eligible to be appointed as Headmaster. This is significant. If graduates with T.T.C. could have been treated as WPC.11604/2004 11 equivalent with a graduate teacher with B.Ed., that could have been stated in the rule itself. The Division Bench in **Gopalakrishnan's case** (2005 (4) KLT 774) was of the view that unless it is specifically incorporated in Rule 45A of Chapter XIV-A or in Rule 4 of Chapter XXXI K.E.R., B.Ed. cannot be treated as equivalent training qualification to that of T.T.C. Similarly, herein also, unless it is specified that graduation with T.T.C. is equivalent to graduation with B.Ed., the same cannot be presumed. It cannot therefore be said that T.T.C. will be an equivalent qualification coming under the rule even if the person having T.T.C. is having a degree. Any qualification which is equivalent to degree with B.Ed. alone will satisfy the requirements of Rule 45. In that view of the matter, the writ petition fails and the same is dismissed. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**