Sabu John v. State of Kerala and Others (WP(C).No.6501 of 2013(K))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941** ## **WP(C).No.6501 OF 2013(K)** ## **PETITIONER:** **SABU JOHN.C. CHITTILAPPILLY HOUSE, PARAPPUR P.O., THRISSUR DISTRICT.** **BY ADVS. SRI.P.RAVINDRAN (SR.) SRI.M.R.SABU** ## **RESPONDENTS:** - **1 STATE OF KERALA REP.BY PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695 001.** - **3 THE MANAGER POMPIE ST.MARY'S HIGH SCHOOL, KATTOOR, PIN-680 702.** - **4 SMT. A.P.AGNES HSA PS POMPIE ST.MARY'S HIGH SCHOOL, KATTOOR, THRISSUR DISTRICT-680 702.** - **5 DISTRICT EDUCATIONAL OFFICER IRINJALAKUDA-680 121.** **SRI.JUSTIN MATHEW, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.6501 OF 2013(K) 2 ## **J U D G M E N T** This writ petition is filed by the petitioner seeking to quash Ext.P7 Government Order dated 30.1.2013, whereby the request of the petitioner to shift him to the post of HSA (English) as he has degree in Maths and English with B.Ed in Maths was declined. Brief material facts for the disposal of the writ petition are as follows; 2. Petitioner was appointed as High School Assistant (Maths) at Pompie St.Mary's School, Kattoor in regular vacancy on 6.6.2011. The staff fixation order for the year 2007 abolished a post of HSA(Maths) and a post of HSA (English) was additionally sanctioned. Petitioner possesses B.Sc(Maths) and also B.A.(English). As per Ext.P6 Government Order and Ext.P3 communication issued by the Director of Public Instructions, petitioner is qualified to be retained in the school as HSA(English). According to the petitioner, WP(C).No.6501 OF 2013(K) 3 petitioner acquired B.Ed qualification prior to 19.7.2005 and therefore, he is entitled to get the benefit of orders governing the qualification prescribed. However, the District Educational Officer ordered retention of a Physical Science teacher in the post of HSA (English). Though the Manager submitted a request to post the petitioner in the post of HSA(English), it was rejected by the Deputy Director. Even though an appeal was preferred, it was also rejected as per Ext.P2 order. The revision filed against Ext.P2 was rejected by Ext.P4 order by the State Government. But as per Ext.P5 judgment, Ext.P4 Government Order was set aside and the Government was directed to pass fresh orders in the light of the decision of this court in **Radhamani v. Director of Public Instructions** [ILR 2009(4)Kerala 783]. But now the Government have passed Ext.P7 order, which according to the petitioner, is overlooking the directions contained in Ext.P5 judgment rendered by this court and without understanding the qualification required for appointment of the WP(C).No.6501 OF 2013(K) 4 petitioner as HSA (English) in the school in question. 3. A detailed counter affidavit is filed by the 5[th] respondent justifying the stand adopted in Ext.P7 order. Apart from other contentions, it is submitted that petitioner is not qualified to be appointed as HSA(English) as per G.O.(MS) No.144/05/G.Edn dated 7.5.2005, by which Government have ordered that appointment of HSA(English) by conversion from the existing HSA's will be made, only if they are having B.Ed in English. Petitioner is not entitled to be appointed in the post of HSA(English) from June 2006 onwards. So also it is submitted that, petitioner is having continuous service only w.e.f.6.6.2001 and not eligible for protection either. Therefore, G.O.(P) No.226/03/G.Edn dated 14.6.2003 is not applicable to the petitioner. 4. The sum and substance of the contention put forth by the 5[th] respondent is that, the stipulation of having a B.Ed degree in the same subject is absolutely necessary as per the order WP(C).No.6501 OF 2013(K) 5 of the Director of Public Instruction in connection with the conversion from the existing HSA's. It was after evaluating the _pros and cons_ and the Government Orders specified above, the Government have arrived at Ext.P7 decision that, petitioner is not qualified to be appointed. 5. I have heard learned counsel for petitioner Sri.Sridhar Ravindran, learned Government Pleader Sri.Justin Mathew and perused the pleadings and documents on record. 6.The prime question to be considered is, whether any manner of of interference is warranted to Ext.P7 order ? According to the Government, as per Government Order dated 16.6.2008, Government rejected the request of the petitioner and held that, petitioner is not qualified to be appointed as HSA (English) as per the Government Order dated 7.5.2005 by conversion from existing HSA since such conversion is possible, only if a candidate is having B.Ed in English. It is also pointed out as per Rule 2(2)(a) of Chapter XXXI KER, the prescribed qualification for HSA core subject is a degree in the concerned subject WP(C).No.6501 OF 2013(K) 6 with B.Ed/B.T./L.T. conferred or recognised by the Universities in Kerala. As per G.O(MS) No.144/05/G.Edn dated 7.5.2005 and G.O.(P) No.220/05/G.Edn dated 19.7.2005, degree and B.Ed in the concerned subject is necessary for approval of appointment in HSA core subject. It is also stated thereunder that section 11 of the Kerala Education Act stipulates that appointment of teachers in aided schools is subject to rules and conditions laid down by the Government. Therefore, it is a clear indication that conditions could be laid down by executive orders. Hence a Government Order issued for implementing statutory obligations of the Manager/teachers are well within the legislative competence of the Government and therefore, by virtue of the Government Orders specified above, the request of the petitioner to shift to the post of HSA (English) cannot be granted. 7. In my considered opinion, the issue basically revolves around Rule 2(2)(x) dealing with qualification of High School Assistant (English). The law as stood then read thus: WP(C).No.6501 OF 2013(K) 7 _“_ _**(x) High School Assistant(English)** :-(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/B.T./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.]_ _[Note:-B.Ed Degree obtained through Correspondent course, which are not specifically approved by the Government shall not be considered as a qualification for appointment as HSA.]_ 8. On a reading of the said provision, it is clear that, in order to appoint a teacher as High School Assistant (English), a degree in English language and Literature and B.Ed/B.T./L.T with English as optional subject conferred or recognised by the Universities in Kerala is mandatory. However, an exception is carved out as per Serial No.(iii) of Rule 2(2)(x) Chapter XXXI KER, which states that, in WP(C).No.6501 OF 2013(K) 8 the absence of those with qualification in item (ii) above, candidates with B.Ed/B.T./L.T in any other subject, conferred or recognised by the Universities in Kerala will be considered. It is true as per G.O. (P) No.381/12/G.Edn dated 30.11.2012 published in the gazette dated 21.12.2012, on and with effect from 5.1.2019 Serial No.(iii) above was omitted. Which thus means, as per the Government Order specified above, the option available to appoint any candidate with B.Ed/B.T./L.T in any other subject was deleted effective from the said date. 9. However, fact remains till such time the above option was entitled to be exercised by a person who did have a basic degree in English language and Literature. It is also clearly come out that, there was a vacancy in HSA (English) during the year 2006. It is also clear from Ext.P7 Government Order that, no other teachers with B.Ed degree in English language and B.Ed/B.T./L.T as optional subject were eligible in the school for appointment as HSA (English). It is also relevant to note that, even though this court in Ext.P5 judgment in W.P. WP(C).No.6501 OF 2013(K) 9 (C)No.25167/2008 dated 27.2.2012 directed the Government to re-consider the case taking into account the principles of law laid down in **Radhamani's** case (supra), the said direction was absolutely overlooked, evident from Ext.P7 impugned order. So also in my considered opinion, when there was specific provisions under the Kerala Education Rules guiding the issue in question, the Government Orders relied upon by the Government to decline the relief sought for by the petitioner cannot be sustained under law. In that view of the matter, I am of the considered opinion that, Ext.P7 order passed by the Government dated 30.1.2013 is liable to be quashed being arbitrary and illegal. Accordingly, I quash Ext.P7 and direct the Government to re-consider the matter taking into account the provisions of Chapter XXXI Rule 2(2)(x) KER discussed above and also the principles of law laid down in **Radhamani's** case and take appropriate decision, at the earliest possible time and at any rate within two months from the date of receipt of a copy of this judgment, after WP(C).No.6501 OF 2013(K) 10 providing a notice of hearing to the petitioner, Manager and any other interested persons. **==> picture [33 x 12] intentionally omitted <==** ## **SHAJI P.CHALY** Smv **JUDGE** 3.12.2019 Joining date “6.6.2011” shown in the 2[nd] paragraph of the judgment dated 02.12.2019 in W.P.(C) No.6501/2013 is corrected as “06.06.2001” as per order dated 10.08.2020 in I.A.No.1/2020 in W.P.(C) No.6501/2013. Sd/- **Deputy Registrar** WP(C).No.6501 OF 2013(K) 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 2006-07** **EXHIBIT P2 TRUE COPY OF THE ORDER OF THE JOINT DIRECTOR REJECTING THE APPEAL DATED 16.8.07 EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 14.10.06** **EXHIBIT P4 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 16.6.2008 EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.25167/08 DATED 27.2.2012** **EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER NO.G.O. (MS)NO.11/02 DATED 7.1.02 EXHIBIT P7 TRUE COPY OF THE ORDER DATED 30.1.13 REJECTING THE REVISION PETITION.**