Rehana A.B. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 21ST DAY OF JANUARY 2013/1ST MAGHA 1934** ## **WP(C).No. 9711 of 2012 (L)** ## **-------------------------------------** ## **PETITIONER(S):-** **------------------------REHANA A.B. AGED 37 YEARS W/O.V.J.HAREES MUSALIYAR,VETTIPLACKAL HOUSE VAIPUR P.O. THIRUVALLA (UPPER PRIMARY SCHOOL ASSISTANT MUSLIM HIGHER SECONDARY SCHOOL, KANGAZHA)** **BY ADVS.SRI.S.SUBHASH CHAND SRI.SHINDO VARGHESE** ## **RESPONDENT(S):** - **--------------------------** ## **1. STATE OF KERALA** **REP.BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL EDUCATION GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM** ## **2. THE DISTRICT EDUCATIONAL OFFICER** **O/O.THE DISTRICT EDUCATIONAL OFFICER KANJIRAPPALLY-686507** ## **3. THE MANAGER** **MUSLIM HIGHER SECONDARY SCHOOL,KANGAZHA-686541** **4. SABEENA M.T** ## **H.S.A.MUSLIM HIGHER SECONDARY SCHOOL,KANGAZHA,686541** **5. JYOTHI K.NAIR H.S.A.(MATHS)MUSLIM HIGHER SECONDARY SCHOOL KANGAZHA,686541** **6. THE DIRECTOR OF PUBLIC INSTRUCTION** - **O/O.THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-685001** **R1, R2 & R6 BY GOVERNMENT PLEADER SRI. NOUSHAD THOTTATHIL R3 BY ADV. SRI.E.S.ASHRAF** **R3 BY ADV. SRI.C.P.PRADEEP R4 & R5 BY ADV. SRI.ESM.KABEER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** **WP(C).No. 9711 of 2012 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1:COPY OF THE ORDER OF APPOINTMENT DTD 8/6/2001 ISSUED BY RESPONDENT NO 3 AND APPROVED BY RESPONDENT -2** - **EXT.P2:_ COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE PETITIONER.** - **EXT.P3:COPY OF THE GOVERNMENT ORDER BEARING GO(MS) 11/2002/G.EDN.DTD 7/1/2002 ISSUED BY RESPONDENT NO 1** - **EXT.P4:COPY OF THE STAFF FIXATION ORDER BEARING NO D.DIS B5/7016/09 DTD 29/9/2009 ISSUED BY RESPONDENT NO 2** - **EXT.P5:COPY OF THE JUDGMENT DTD 3/11/2011 PASSED BY THIS HON'BLE COURT IN WPC NO 16491/2010** - **EXT.P6:COPY OF THE GOVERNMENT ORDER DTD 27/5/2006** - **EXT.P7:COPY OF THE JUDGMENT DTD 9/7/2010 PASSED BY THIS HON'B LE COURT IN WPC NO 21381/2010-W** - **EXT.P8:COPY OF THE ORDER DTD 15//12/2010 PASSED BY RESPONDENT NO 2 EXT.P9:COPY OF THE JUDGMENT DTD 5/1/2011 IN WPC NO 322/2011(M) EXT.P10:COPY OF THE ORDER DTD 19/4/2011 PASSED BY RESPONDENT NO 2** - **EXT.P11:COPY OF THE ORDER BEARING GO (RT)NO 1038/2012 G.EDN DTD 3/3/2012** - **EXT.P12:COPY OF THE CERTIFICATE EVIDENCING THE QUALIFICATION OF DEGREE OF MASTER OF ARTS (ENGLISH)** - **EXT.P12(A):- COPY OF THE CERTIFICATE EVIDENCING THE QUALIFICATION OF DEGREE OF BACHELOR OF SCIENCE(MATHS)** - **EXT.P12(B):COPY OF THE CERTIFICATE EVIDENCING THE QUALIFICATION OF DEGREE OF BACHELOR OF EDUCATION (PHYSICAL SCIENCE)** - **EXT.P12(C):- COPY OF THE CERTIFICATE EVIDENCING THE QUALIFICATION OF STATE ELIGIBILITY TEST (ENGLISH)** - **EXT.P12(D):- COPY OF THE NOTIFICATION DATED 08.09.2010 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION INVITING APPLICATIONS FOR THE POST OF HIGH SCHOOL ASSISTANT(ENGLISH)** ## **RESPONDENT'S EXHIBITS: NIL** ## **P.A. TO JUDGE** ## **DCS** **/TRUE COPY/** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P. (C) NO. 9711 OF 2012** ## **----------------------------------------** Dated this the 21[st] day of January, 2013 ## **JUDGMENT** The petitioner is working as Upper Primary School Assistant (UPSA) in the school managed by the 3[rd] respondent. According to her she has acquired necessary qualification for appointment as HSA(English) as she has Graduation in Maths and Post Graduation in English and B.Ed in Physical Science as well as in English and also has undertaken the qualification of the State Eligibility Test (SET) in English. A vacancy for HSA (English) had arisen on 01.06.2010. The Manager has appointed the 5[th] respondent who was working as HSA(Maths) as HSA (English). This came to be challenged which resulted in Ext. P8 issued by the District Educational Officer, Ext. P10 by the Director of Public Instruction and Ext. P11 by the Government. 2. The factual circumstances which arises in this case would indicate that the petitioner was appointed as UPSA with effect from 08.06.2001. She was promoted as HSA(Maths) during a maternity leave vacancy from 05.07.2001 to 06.11.2001. When a vacancy had arisen in the school consequent to the retirement of Smt. Laila Beegum HSA(English) on 31.03.2010, according to W.P. (C) NO. 9711 OF 2012 **2** the petitioner, though she was eligible to be appointed as HSA (English) her claim was rejected by the departmental authorities and Smt. Sabeena M.T. was promoted and appointed to the post of HSA(Natural Science), shifting Smt. Jyothi K. Nair to the post of HSA(English). 3. According to the petitioner when the staff position changed during 2002-03, as against 2 sanctioned post of HSA (Maths) there were 3 HSA's working. The excess HSA(Maths) Smt. Jyothi K. Nair was accommodated as HSA(Natural Science). The two English vacancies were filled up by accommodating Smt. Shiji V.H. and Smt. Laila Beegum. Smt. Shiji V.H. resigned during 2003-2004. Manager appointed a fresh hand Smt. Saritha Thomas to the said vacancy. During the year 2009-10 there were 10 sanctioned post of HSA(core subjects) and there was one teacher excess in HSA(Social Science) as against 2 sanctioned posts. Smt. Laila Beegum HSA(Social Science) was accommodated as HSA(English) in addition to Smt. Saritha Thomas of HSA(English). 4. The contention of the petitioner is that when the vacancy arose on retirement of Laila Beegum HSA(English) there W.P. (C) NO. 9711 OF 2012 **3** was no justification on the part of the Manager of the school in accommodating Smt. Jyothi K. Nair to the vacant post of HSA (English) when the petitioner was a qualified hand to be appointed and a claimant under Rule 43 Chapter XIVA of KER. In Ext. P8 the District Educational Officer has come to a conclusion that since the 3 HSA's has commenced their service before issuing G.O.(MS)11/02/G/Edn. dated 07.01.2002, as such the excess HSA(Maths) teacher is liable to teach English. Therefore the appointment to the post of HSA(English) is supposed to be made only after retirement or transfer of existing excess Maths teacher. This order came to be passed in a complaint filed by the petitioner in regard to the appointment of Smt. Sabeena M.T. as HSA(Natural Science). 5. Reference is made to Ext. P10, an order passed by the Director of Public Instruction wherein also petitioner staked a claim against the appointment of Smt. Sabeena M.T. as HSA (Natural Science). It is found that new HSA(English) can be appointed only after the retirement or transfer of HSA(Maths). Further it is held that there was no established vacancy of HSA (English) and that the petitioner was not qualified for the post of W.P. (C) NO. 9711 OF 2012 **4** HSA(English). Hence her claim was rejected upholding the decision of the District Educational Officer. Petitioner preferred a revision before the Government. In Ext. P11 revisional order the Government has come to the conclusion that the petitioner is not qualified for the post of HSA(English) at the time when the vacancy had arisen and by virtue of G.O.(P)No.2/09/G.Edn. dated 05.01.2009 B.Ed in English is an essential qualification for the post of HSA(English). The Government has approved a new cadre of HSA(English) without affecting the existing HSA(core subjects). Smt. Jyothi K Nair being an excess HSA(Maths) and her accommodation against the retirement vacancy of HSA (English) is justified. 6. The main argument of the petitioner is that going by Ext. P3 Government Order it was decided to have a new cadre of HSA(English) in aided Government Schools by reallocating the periods of English now allocated to core subjects. This order came to be passed on 07.01.2002 and necessary qualification had been prescribed. Paragraph 3(d) of the Government Order indicated that in order to implement the Orders, a temporary ban on promotion of claimants as per Rule 43 Chapter XIVA of KER W.P. (C) NO. 9711 OF 2012 **5** will be imposed, exempting those who had the prescribed qualification to be posted as HSA(English). Therefore it is not in dispute that any person having a claim under Rule 43 Chapter XIVA of KER and having the prescribed qualification to be posted as HSA(English) are entitled to claim the said benefit. Rule 43 of Chapter XIVA of KER reads as under:- - R.43. Subject to rules 44, 45 and 51A and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available: Provided that in the case of promotion to the post of High School Assistant (Subject), the minimum subject requirements alone need be satisfied, to safeguard the interests of trained graduates who are awaiting promotions as High School Assistants. - Provided further that where a Headmaster or a teacher who has been promoted under this rule faces retrenchment for want of vacancy, he shall be reverted to the category of post from which he has been promoted provided he is not eligible for protection in the retrenched post as per the orders issued by the Government from time to time. - Note:- (1) A teacher in a lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of post provided. - (i) he has the prescribed qualifications; and - (ii) there is no teacher with the prescribed qualifications in the lower grade of pay of W.P. (C) NO. 9711 OF 2012 **6** the category of post to which promotions are to be made. Note:-(2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy. ## 7. In regard to the qualification for HSA(English) as per Chapter XXXI of KER, the qualification prescribed is as under:- ## **(x) High School Assistant(English)** :- - (i) A degree in English language and literature; and - (ii) B.Ed/B.T./L.T. with English as optional subject, conferred or recognised by the Universities in Kerala; (iii) In the absence of those with qualification in item (ii) above, candidates with B.Ed/BT/L.T. in any other subject, conferred or recognised by the Universities in Kerala will be considered. [Provided that a post graduate degree in the subject or language concerned shall be considered as an alternative qualification of degree in such subject or language concerned for appointments as High School Assistant (Subject) or High School Assistant (Languages) as case may be.] 8. Going by the aforesaid qualification criteria it cannot be disputed that the petitioner was having B.Ed in Physical Science at the time when the vacancy had arisen and she had a Post Graduate Degree in English. 9. This qualification was not considered to be a proper W.P. (C) NO. 9711 OF 2012 **7** qualification by the Government on the basis of Government Order dated 05.01.2009 in which paragraph 2 and 3 which reads as under:- 2. Now it has come to the notice of the Government that there are adequate number of candidates for the post of HSA (English) having the qualification prescribed in item (ii) above. Therefore, Government have decided to delete item (iii) of Sub clause x to sub rule (2)(b) of Rule 2 Chapter XXXI KER, and order accordingly. 3. Formal amendment to KER will be issued separately. But apparently no amendment is so far made in terms of paragraph 2 above in Chapter XXXI of KER as far as the qualification for HSA(English) is concerned. Therefore going by the law laid down by this Court in **Unni Narayanan v. State of Kerala [2009 (2) KLT 604]** it may not be possible to rely upon the Government Order and to exclude certain qualification mentioned in the Rule as qualification to the said post. That apart the right available to a candidate for a particular post under the Rule cannot be curtailed by a Government Order without amending the Statute. Hence I have to conclude that the petitioner was qualified for the post of HSA(English). 10. The next question to be considered is whether the W.P. (C) NO. 9711 OF 2012 **8** petitioner has priority to get appointment to the post of HSA (English) in the place of 5[th] respondent who was HSA(Maths) and now appointed to the vacancy of HSA(English). Going by Ext. P3 it clearly indicates that a new cadre in English will be created by appointing/promoting qualified hands against the vacancies caused by retirement/additional division/ Resignation/leave observing the minimum subject ratio requirement between the core subjects. However, it is stated that it should be done in a phased manner and without causing retrenchment of the existing HSA's(core subjects). By accommodating the petitioner the question would be whether there will be any retrenchment of any person who is working in a core subject. If the petitioner is appointed in the vacancy that had arisen on 01.06.2010 as she is qualified and being a Rule 43 claimant, necessarily the 5[th] respondent will have to be reverted to the post of UPSA as at present there is no post for her in High School. It is relevant to note that even the Government in Ext. P11 had indicated that the appointment of Smt. Jyothi K. Nair who was HSA(Maths) against the vacant post of HSA(Natural Science) was highly irregular especially when there was a real 43 claimant for the post. That W.P. (C) NO. 9711 OF 2012 **9** being the situation it is not open for the Management to have accommodated Smt. Jyothi K. Nair to the post of HSA(English), overlooking the claim of the petitioner. 11. In the counter affidavit filed by the respondents they have supported the impugned orders and has contended that Smt. Jyothi K. Nair was appointed as UPSA in 03.06.1996 and was appointed as HSA on 01.06.1999 and since she being appointed as HSA even prior to Ext. P3 coming into force she is entitled for protection as HSA. Ext. P3 by itself does not give any protection to any of the teachers in the core subjects whereas it only imposes the restriction that no teacher should be retrenched on account of creating the post of English teachers. If Smt. Jyothi K. Nair is not retrenched her rights will never be affected on account of appointing the petitioner as HSA(English). 12. The Government tries to explain the situation on the basis of Government Order dated 05.01.2009 which I have already held as not applicable. In para 13 of the Counter Affidavit of 2[nd] respondent a reference is made to a Circular No. H2/54419/1994 dated 10.02.1995 of the Director of Public Instruction wherein it is said for the implementation of subject W.P. (C) NO. 9711 OF 2012 **10** ratio only the approved teachers shall not be thrown out from service. There is no question of throwing out Smt. Jyothi K Nair from the service at all. In the counter affidavit the second respondent states that she is eligible for protection. But the provision of law for protection as HSA is not stated. Therefore protection is only to the limited extent of not being retrenched from service. It is further indicated that since she has joined service before 15.07.1997 she is entitled for protection. Still the question is whether such protection is available as HSA or even if reverted as UPSA. Consequence of the petitioner being appointed to the post of HSA(English) is probably reversion of Smt. Jyothi K.Nair as UPSA. This eventually cannot be disputed, since as matters stand now I do not find any provision which enables the 5[th] respondent to be retained as such. It is open for the 5[th] respondent to seek necessary exemption from the Government to continue as HSA. 13. The learned counsel for the 3[rd] respondent contended on the basis of judgment of this Court in **Baiju v. Suguna Prakash [2003(2) KLT 182]** that the Government can issue necessary clarification in regard to the prevalent Rules. This W.P. (C) NO. 9711 OF 2012 **11** judgment came to be passed at a time when the Rules were not amended and parties were bound by Ext. P3 alone. That apart this judgment is only indicative of the fact that necessary clarification can be issued by the Government in regard to the qualification prescribed as per the notification. But when the Rules have been framed by the Government and it is incorporated in the KER, I do not think that there will be any justification on the part of the respondents to contend that the Government Order dated 05.01.2009 is valid in any form. 14. In the result, the writ petition is allowed as follows:i) Ext. P8, P10 and P11 orders to the extent it affects the interest of the petitioner are set aside. ii) The 3[rd] respondent is directed to appoint the petitioner as HSA(English) within one month from the date of receipt of copy of the judgment and necessary approval in that regard shall be given by the 2[nd] respondent within one month from receiving the communication from 3[rd] respondent. iii) The rights of the 5[th] respondent to continue as HSA shall be considered by the 1[st] respondent on a representation filed by the 5[th] respondent within a period of two weeks from the W.P. (C) NO. 9711 OF 2012 **12** date of receipt of copy of this judgment. iv) Reversion, if any of the 5[th] respondent shall be kept in abeyance till the Government decides the matter. sd/- **A.M. SHAFFIQUE JUDGE** **DCS**