Salma K. v. State of Kerala and Others

W. P. (C) No. 6423/2021 ..1.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 WP(C) NO. 6423 OF 2021** ## **PETITIONER:** **SALMA K., HIGH SCHOOL ASSISTANT, KARUNYA NIKETAN SCHOOL FOR DEAF, VILAYNKODE, KANNUR 670 501.** **BY ADVS.M/S.VINOD MADHAVAN, SRI.M.V.BOSE, SRI.SHARATH S.PUTHENPARAMPAN, SMT.P.M.MAZNA MANSOOR, SRI.ASLEM SANJID.M.** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REP.BY ITS SECRETARY, DEPARTMENT OF GENERAL**| ||**EDUCATION (R), GOVERNMENT SECRETARIAT,**| ||**TRIVANDRUM 695 001.**| |**2**|**THE DIRECTOR OF GENERAL EDUCATION,**| ||**OFFICE OF THE DIRECTOR GENERAL OF EDUCATION,**| ||**JAGATHY, TRIVANDRUM 695 014.**| |**3**|**THE DISTRICT EDUCATION OFFICER,**| ||**OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,**| ||**KANNUR 670 001.**| |**4**|**THE ASSISTANT EDUCATION OFFICER,**| ||**OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER,**| ||**KANNUR NORTH, KANNUR 670 001.**| W. P. (C) No. 6423/2021 **==> picture [19 x 7] intentionally omitted <==** ## **5 THE MANAGER, KARUNYA NIKETHAN SCHOOL FOR DEAF, VILAYANCODE, KANNUR 670 501.** ***ADDL.6 THE DISTRICT EDUCATION OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THALIPARAMBU -670141** *** ADDITIONAL 6TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 14.12.2023 IN I.A.1/2023 IN WP(C).** **SRI.PREMCHAND R.NAIR, SR.G.P.** **ADV. SRI.R.NANDAGOPAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. P. (C) No. 6423/2021 ..3.. MOHAMMED NIAS C. P. , J. ================================ W. P. (C) No. 6423 of 2021 ================================ Dated this the 12[th] day of February, 2024 ## J U D G M E N T The petitioner was appointed as an Assistant Teacher by the 5[th] respondent in a retirement vacancy on 6.6.2001. Since there was a shortfall of a post in the year 2001-2002, in a vacancy that arose subsequently in the school, due to leave taken by another teacher from 3.7.2001 to 2.7.2005, the 5[th] respondent-Manager appointed the petitioner on 3.7.2001. However, the petitioner was not qualified then to be appointed to the post of Assistant Teacher, for want of the requisite qualification. The petitioner acquired the requisite qualification of special school training only on 28.9.2006. The qualification required for an Assistant Teacher in Special Schools for the Impaired is a D.Ed. or Special B.Ed. (Hearing Impaired), which is compulsory in addition to the other academic qualifications. The approval of the petitioner's appointment was denied based on the Government Orders with regard to W. P. (C) No. 6423/2021 ..4.. the appointment of Assistant Teacher in Special School as the petitioner did not possess a D.Ed. or Special B.Ed. (Hearing Impaired) as on 6.6.2001 or 3.7.2001, when the petitioner was subsequently appointed. Through Ext.R-1(a) dated 22.11.1979, the Government had prescribed the requisite qualifications for the post of Assistant Teacher in Special Schools and it is the case of the Government that, since the petitioner acquired the qualification only on 28.9.2006, she was not entitled to get approved before that. 2. The petitioner had approached this Court by filing WP(C). No.27426/2005, which was disposed of by judgment dated 23.9.2005 (Ext.P-3), directing the Government to take note of Exts.P-15 & P-16, which are the orders passed relaxing the eligibility conditions as far as similarly situated teachers are concerned. Despite Ext.P-3 judgment, the educational authorities rejected the approval. It is to be noted that later, the petitioner had again approached this Court by filing WP(C). No.34129/2015, which was also disposed of by judgment dated 17.7.2019 (Ext.P-9) directing the Government to reconsider the request of the petitioner. By Ext.P-11 dated 16.1.2021, the request of the petitioner was W. P. (C) No. 6423/2021 **==> picture [18 x 9] intentionally omitted <==** rejected. 3. The Government placed reliance on Ext.R-1(b) letter dated 8.11.2001, which is after the appointment of the petitioner, that relaxation of qualifications should not be granted and the earlier Government Order dated 3.11.1969 will apply to only those teachers who were in service as on the date of issuance of the said order, namely 3.11.1969. 4. The learned counsel for the petitioner, Sri. Vinod Madhavan submits that Exts.P-4, P-5 & P-6 are orders passed in favour of identically situated teachers who were granted the benefit of relaxation. The learned counsel submits that, despite Ext.P-3 judgment which directed the Government to consider the orders granted to similarly situated teachers, the approval sought for by the petitioner for the period from 3.7.2001 to 28.9.2006 (when the petitioner qualified) was not granted. 5. The Government has filed a counter affidavit pointing out that, there is no right for a person to claim relaxation without having sufficient qualification and that, going by Exts.R-1(a) & (b), the claim of the petitioner cannot be considered. No reason is stated in the counter as to how the case of the petitioner differs from that of the teachers who have W. P. (C) No. 6423/2021 ..6.. been granted exemption as per Exts.P-4, P-5 & P-6. 6. The learned counsel for the petitioner relies on the judgment of the Supreme Court in _**Sadasivan Nair G. (Dr.) v. Cochin University of Science and Technology, Represented by its Registrar and Others [2021**_ ## _**(6) KHC 727],**_ in particular paragraph 33, which reads as follows: “ _33. Therefore, we are of the view that if the respondent University sought to deny the benefit of R.25(a), in light of the proviso which was subsequently inserted thereby limiting the benefit of the Rule, it ought to have done so uniformly. The proviso could heave been madeapplicable in relation to all employees who retired from service of the respondent University following the introduction of the proviso, i.e. after 12[th] February, 1985. However, the action of the respondent University of selectively applying the proviso to R. 25(a) in relation to the appellant, while not applying the said proviso in relation to similarly situated persons, is arbitrary and therefore illegal. Such discrimination, which is not based on any reasonable classification, is violative of all canons of equality which are enshrined in the Constitution of India.”_ 7. The similarly situated persons as that of the petitioner were indeed granted the benefit of relaxation. No reason is put forth in the counter affidavit as to why a different treatment is meted out to the petitioner by not granting the same benefits to her. There is no averment in the counter affidavit that Exts.P-4, P-5 & P-6 are wrong or that the petitioner is claiming negative equality. Under such circumstances, I do not find any reason why the benefit of Exts.P-4, P-5 & P-6 granted to W. P. (C) No. 6423/2021 ..7.. similarly situated persons be not granted to the petitioner. It is also to be noticed that Exts.P-4, P-5 & P-6 orders were all passed after 8.11.2001 and 3.11.1969. The Government, as a model employer and as a model litigant, cannot show any semblance of double standards while dealing with similarly situated employees. Under such circumstances, I am inclined to grant the relief sought for by the petitioner. Ext.P-11 will stand quashed. It is declared that the petitioner is entitled to relaxation of qualification and consequential approval of her service rendered from 3.7.2001 to 2.7.2005 or such date when the petitioner acquired the qualification, in the light of Exts.P-4, P-5 & P-6 and also, going by the principles laid down by the decision of the Supreme Court mentioned above. The petitioner will be entitled to all attendant benefits. Orders in this regard shall be passed within a period of 3 months from the date of receipt of a copy of this judgment. The Writ Petition is allowed, as above. Sd/- MOHAMMED NIAS C. P., JUDGE MMG W. P. (C) No. 6423/2021 ..8.. ## **APPENDIX OF WP(C).NO.6423/2021** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(A) A TRUE COPY OF THE GO(MS) NO.198/1979/GEDN DATED 22.11.1979 EXHIBIT R1(B) A TRUE COPY OF THE GOVERNMENT LETTER NO.30967/R2/2001/GEDN, DATED 08.11.2001** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DT. 25.3.2002 EXHIBIT P2 TRUE COPY OF THE ORDER DT. 3.7.2001 EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 23.9.2005 IN W.P.(C) NO.27426/2005 (M) EXHIBIT P4 TRUE COPY OF ORDER DATED 28.2.2001 PASSED IN THE CASE OF SMT. BINU NELSON R. EXHIBIT P5 TRUE COPY OF ORDER DATED 18.3.2002 PASSED IN THE CASE OF SMT. SEENA THOAMS, LIADIN C.T. AND SHEEBA DAVID. EXHIBIT P6 TRUE COPY OF ORDER DATED 25.5.2005 PASSED IN THE CASE OF SMT. AGHITHA RAJAN. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 14.12.2005 EXHIBIT P8 TRUE COPY OF THE ORDER G.O.(RT) NO.2689/2015/G.EDN. DATED 3.7.2015** W. P. (C) No. 6423/2021 ..9.. **EXHIBIT P9** **EXHIBIT P10** **EXHIBIT P11** **TRUE COPY OF THE JUDGMENT DATED 17.7.2019 IN W.P.(C) NO.34129/2015.** **TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER IN THE HEARING CONDUCTED ON 20.9.2019** **TRUE COPY OF THE ORDER G.O.(RT) NO.383/2021/GEN.EDN. DATED 16.1.2021 PASSED BY THE 1ST RESPONDENT.**