State of Kerala v. Vinod N.G. and Omana C.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944** **OP(KAT) NO. 332 OF 2021** **AGAINST THE ORDER dated 04.08.2021 in OA 2370/2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **PETITIONERS/RESPONDENTS NO.1 AND 2 IN O.A:** - **1 THE STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS DPI OFFICE, JAGATHY, THIRUVANANTHAPURAM 695 014** **BY ADV SR.GOVERNMENT PLEADER SRI.UNNIKRISHNA KAIMAL** **RESPONDENTS/APPLICANT AND 3RD RESPONDENT IN O.A:** - **1 VINOD N.G, AGED 44 YEARS, S/O.JERMIAS.A., WORKING AS ASSISTANT TEACHER (SPECIAL TRAINING) SENIOR GRADE, GOVERNMENT SCHOOL FOR THE BLIND, VAZHATHACAUD, THIRUVANANTHAPURAM 695 014, RESIDING AT VINOD BHAVAN, NEETTANI, CHULLIMANOOR, NEDUMANGAD, THIRUVANANTHAPURAM KERALA 695 54** - **2 OMANA C., TEACHER IN CHARGE, GOVERNMENT SCHOOL FOR THE BLIND, KUNNAMKULAM, THRISSUR 680 503** **BY ADVS.SMT.VAISAKHI V SMT.ELVIN PETER P.J. SMT.M.C.SINY SRI.K.R.GANESH(K/000551/1991) SRI.N.NANDAKUMARA MENON (SR.)(N-24)** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT).No.332 of 2021 **==> picture [13 x 9] intentionally omitted <==** ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** The State of Kerala represented by the Secretary, General Education Department, and the Director of Public Instructions, are the petitioners in this OP(KAT) that impugns the order dated 09.08.2021 of the Kerala Administrative Tribunal in O.A. No.2370 of 2019. 2. The brief facts necessary for the disposal of the OP(KAT) are as follows: The 1[st] respondent herein was the applicant before the Tribunal, being aggrieved by an order (A-15), by which the 2[nd] respondent herein was appointed as the Teacher-in-charge of the Government School for Blind, Kunnamkulam, Thrissur. It was her case, with reference to the Recruitment Rules in force, that to 50% of the posts of Headmasters reserved for in-service candidates, she was the more eligible of the two as she had 10 years service in teaching the blind/deaf when her prior :3: OP(KAT).No.332 of 2021 service rendered in aided schools was reckoned along with her Government service. The stand taken by the Government and the 2[nd] respondent, on the other hand, was that the quota prescribed for inservice candidates was basically one that enabled in-service candidates to aspire for promotion to the post of Headmaster in the 50% quota earmarked for such promotions. That being the case, it was contended that the required years of service in teaching the blind/deaf had to be in Government service in which the promotion post of Headmaster was also included. 3. The Tribunal, on a consideration of the rival submissions, and taking note of the decisions in **Raghunandanan v. GCDA [1981 KLT 723], Bhaskaran v. State of Kerala [1981 KLT 633], A.S. Sreedevi v. State of Kerala and Others [1996 (1) KLT 664]** and **Kunhikrishnan Nambiar v. State of Kerala [1964 KLT 704 (FB)],** found that inasmuch as the applicable Rule did not specifically refer to Government service, while stipulating a the requirement of 10 years service in teaching the blind/deaf, the past service of the applicant in the aided schools, prior to her appointment in Government service, could be reckoned for determining her eligibility for the post of Headmaster. The O.A was thus allowed by holding that it was the :4: OP(KAT).No.332 of 2021 applicant who was qualified and eligible for appointment as Headmaster on the date of issuance of the impugned order appointing the 2[nd] respondent herein as Teacher-in-charge. A consequential direction was also issued to the respondents to appoint the applicant as Headmaster within a period of two months from the date of receipt of the order of the Tribunal. 4. Before us, it is the contention of Sri.Unnikrishna Kaimal, the learned Senior Government Pleader for the petitioners, that it is clear from a reading of the relevant Rules that the 50% quota for promotion is reserved for qualified teachers in service with 10 years service in teaching the blind/deaf. According to him, the intention of the Rule is quite clear when it states that the 50% quota is reserved for in-service teachers and when it further makes it clear that those teachers should have 10 years of actual service in teaching the blind/deaf. In substance, what he contends is that the actual teaching service must be in the service that they joined with the Government. He, therefore, justifies the appointment of the 2[nd] respondent as Teacher-in-charge in Annexure A15 order that was impugned before the Tribunal. 5. Per contra, it is the submission of Sri.Nandakumara Menon, :5: OP(KAT).No.332 of 2021 the learned Senior counsel, duly assisted by Smt.M.C. Siny appearing on behalf of the 1[st] respondent that Annexure A6 Rule/Government Order that prescribes the qualification and method of appointment to the post of Headmaster in schools for the handicapped, clearly makes a distinction between the service in which the qualified teacher must be for the purposes of aspiring for the post of Headmaster on promotion basis and the actual years of service in teaching the blind/deaf, which according to him can even be in a service outside of Government service. He points out that inasmuch as the 1[st] respondent had prior service in an aided school, of a like nature as contemplated under the Rules, the said service had to be taken as part of the eligibility criteria for the purposes of promotion, and in that view of the matter, the 1[st] respondent was more qualified than the 2[nd] respondent to be appointed as the Headmaster of the school. In support of his contentions, he would rely on the judgments of this Court in **Raghunandanan v. GCDA [1981 KLT 723], Bhaskaran v. State of Kerala [1981 KLT 633], A.S. Sreedevi v. State of Kerala and Others [1996 (1) KLT 664]** and **Kunhikrishnan Nambiar v. State of Kerala [1964 KLT 704 (FB)].** 6. Sri.Elvin Peter, the learned counsel appearing for the 2[nd] :6: OP(KAT).No.332 of 2021 respondent, would refer to the Rules to contend that the specific reference to 10 years service in teaching the blind/deaf in the Rules was only with a view to ensure that the qualified teachers who were in the feeder category for promotion to the post of Headmaster had actual teaching experience for the prescribed number of years. It is his further case that such experience had necessarily to be in the same service, namely, Government service, to which the teachers were appointed. 7. On a consideration of the rival submissions, we are of the view that for the reasons that are to follow this OP(KAT) must necessarily succeed. The qualification and method of appointment to the post of Headmaster in the schools for the handicapped is prescribed through the Government Order dated 22.11.1979 and reads as follows: “1. Qualification:- A. Headmaster on Rs.535-835 (pre-revision):- (I) B.A., B.Sc. or B.Com (ii) L.T., H.T., or B.Ed and (iii) Lower certificate/Junior Diploma in Teaching the Blind (for Headmasters of schools for the Blind and cabined schools for the Blind and Deaf) OR :7: OP(KAT).No.332 of 2021 Lower certificate/Junior Diploma in Teaching the Deaf (for the Headmasters of the schools for the Blind and combined schools for the Deaf/Blind). Note:- (1) Preference will be given to the candidates who possess both the lower Certificates/Junior Diploma in Teaching the Bind and Deaf, for appointment in combined schools for the Blind and the Deaf. (2) 50% of the posts of Headmasters are reserved for the qualified teachers in service with 10 years service in teaching the blind/deaf as the case may be. If qualified teachers with 10 years of service in teaching the Blind/Deaf are not available qualified teachers with 5 years of service or more will be eligible for promotion as teacher-in-charge of special schools, but they will not be given the Headmaster's scale. Only an allowance of Rs.50%- will be paid in section to his/her pay till he/she completed 10 years service. (3) Handicapped persons shall not be recruited or promoted as Headmaster of Special Schools.” When dealing with the method of appointment the Government Order stipulates as follows:- ## “II. Method of appointment:- Direct recruitment for all the above posts except for Headmaster and Resource Teacher. The method of appointment to these posts will be as specified in the Notes under the above 2 categories.” :8: OP(KAT).No.332 of 2021 8. A reading of the above 'Rule' indicates that only 50% of the posts of Headmaster are reserved for appointment through promotion, and the remaining 50% are reserved for direct recruitment. Further, when it comes to direct recruitment to the post of Headmaster, the qualifications prescribed do not require any prior teaching experience to be possessed by the candidate. The requirement of experience is prescribed only in the case of in-service candidates who aspire for promotion as Headmaster in the quota earmarked for such candidates. The tenor of the Rules, therefore, suggests that an in-service candidate must have the necessary experience as prescribed in the Rules for the purposes of being promoted. The question then arises as to whether the said experience must be in the same service or whether it can also include past teaching experience of a candidate prior to joining Government service. To resolve the said conundrum, we may resort to the settled Rules of interpretation, which mandate that words used in a provision must ordinarily carry the same meaning throughout the said provision. [see: **Central Bank of India v. Raveendra [2002 (1) KLT 743 (SC)]** . When we apply the said test to the facts of the instant case, we find that the Rule dealing with eligibility for promotion to the post of Headmaster refers to qualified teachers in service with 10 years :9: OP(KAT).No.332 of 2021 service in teaching the blind/deaf, as the case may be. It cannot be in dispute that the word 'service' occurring in the initial limb of that provision refers to the Government service to which respondents 1 and 2 were appointed. If that be the case, then going by the principle laid down in the decision aforementioned, the word 'service' in the second limb, which prescribes the experience to be possessed by the candidate, must also be in the Government service concerned. That this is the meaning to be accorded to the word 'service' is also apparent from a reading of the subsequent portion of the Rule, which envisages a situation of non-availability of qualified teachers with 10 years of service. The Rule contemplates that in the absence of such teachers, qualified teachers with 5 years of service or more will be eligible for promotion as Teacher-in-charge of special schools subject to the condition that they will be paid the Headmaster scale only on completion of the required 10 years of service. In our view, the use of the word 'service' as also 'promotion' are clear indicators of the meaning to be accorded to the nature of the teaching experience that is contemplated, which in our view is undoubtedly teaching experience in the same service to which the respondents were appointed. In the light of the view that we have taken, the impugned order of :10: OP(KAT).No.332 of 2021 the Tribunal cannot be legally sustained. We, therefore, set aside the impugned order of the Tribunal and allow the OP(KAT) by dismissing the O.A. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P. JUDGE** mns :11: OP(KAT).No.332 of 2021 ## **APPENDIX OF OP(KAT) 332/2021** ## **PETITIONER EXHIBITS** **Exhibit P1** **TRUE COPY OF THE O.A.NO.2370/2019 ALONG WITH ANNEXURES** - **Annexure A1** **TRUE COPY OF THE ORDER NO.A/232/62/2015/SS DATED 29.4.2015 ISSUED BY THE CORPORATE MANAGER OF LMS SPECIAL SCHOOLS, THIRUVANANTHAPURAM PROMOTING THE FIRST RESPONDENT AS HEADMASTER IN LIGHT OT THE BLIND, VARKALA** - **Annexure A2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE MANAGER, LMS SPECIAL SCHOOLS ON 20.05.2016** - **Annexure A3** - **TRUE COPY OF THE ORDER NO.M5/27169/2016/DPI DATED 29.11.2016 ISSUED BY THE SECOND PETITIONER** - **Annexure A4** - **TRUE COPY OF THE ORDER NO.M5/25402/2019/DGE DATED 25.7.2019 BY THE SECOND PETITIONER** - **Annexure A5** - **TRUE COY OF THE STATEMENT OF FIXATION OF PAY IN THE SENIOR GRADE OF TEACHERS OF SPECIAL SCHOOLS PERTAINING TO THE FIRST RESPONDENT** - **Annexure A6** - **TRUE COPY OF G.O.(MS) NO.198/79/G.EDN DATED 22.11.1979 ISSUED BY THE FIRST PETITIONER** - **Annexure A7** **TRUE COPY OF THE CERTIFICATE OF DEGREE OF BACHELOR OF ARTS (MALAYALAM LANGUAGE AND** :12: OP(KAT).No.332 of 2021 - **LITERATURE MAIN) ISSUED BY THE UNIVERSITY OF KERALA TO THE FIRST RESPONDENT** ## **Annexure A8** - **TRUE COPY OF THE CERTIFICATE OF DEGREE OF BACHELOR OF EDUCATION (MALAYALAM) ISSUED BY THE UNIVERSITY OF KERALA TO THE FIRST RESPONDENT** - **Annexure A9 TRUE COPY OF THE CERTIFICATE OF DIPLOMA FOR PRIMARY SCHOOL TEACHERS OF THE VISUALLY HANDICAPPED ISSUED TO THE FIRST RESPONDENT BY THE NATIONAL INSTITUTE OF VISUALLY HANDICAPPED, DEHRADUN.** - **Annexure A10 TRUE COPY OF THE CERTIFICATE I ACCOUNT TEST LOWER ISSUED BY THE KPSC TO THE FIRST RESPONDENT** - **Annexure A11 TRUE COPY OF THE CERTIFICATE IN KERALA EDUCATION ACT AND RULES ISSUED BY THE KPSC TO THE FIRST RESPONDENT** - **Annexure A12 TRUE COPY OF THE CERTIFICATE OF KTET ISSUED TO THE FIRST RESPONDENT BY THE DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT OF KERALA.** - **Annexure A13 TRUE COPY OF THE AIDED SCHOOL CERTIFICATE PERTAINING TO THE FIRST RESPONDENT DATED 9.10.2019** - **Annexure A14 TRUE COPY OF THE ORDER NO.SY(1)8091/2017/DPI DATED 4.12.2017 OF THE SECOND PETITIONER AND THE SENIORITY LIST OF ASSISTANT TEACHERS SPECIAL SCHOOLS FOR VISUALLY IMPAIRED.** - **Annexure A15** **TRUE COPY OF THE ORDER NO.D5/9320/2019/DGE DATED 21.8.2019 ISSUED BY THE SECOND** :13: OP(KAT).No.332 of 2021 ## **PETITONER** - **Exhibit P2** **TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT IN THE ABOVE ORIGINAL APPLICATION ON 23.3.2020** - **Exhibit P3 A TRUE COPY OF REJOINDER FILED BY THE 1ST RESPONDENT ON 1.6.2020 AGAINST THE REPLY STATEMENT OF THE 2ND PETITIONER** - **Exhibit P4** **TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN THE ABOVE ORIGINAL APPLICATION ON 24.11.2020** **Exhibit P5 TRUE COPY OF THE ORDER DATED 9.8.2021 IN O.A.NO.2370/2019** - **RESPONDENT EXHIBITS** - **EXhibit R2(a)** **TRUE COPY OF THE B.A. (HISTORY) CERTIFICATE AWARDED BY THE CALICUT UNIVERSITY TO THE PETITIONER DATED 04.11.1996.** - **EXhibit R2(b)** - **TRUE COPY OF THE M.A. (MAL.) DEGREE CERTIFICATE AWARDED BY THE UNIVERSITY OF CALICUT TO THE PETITIONER DATED 20.04.2016.** - **EXhibit R2(c)** - **TRUE COPY OF THE BACHELOR OF SPECIAL EDUCATION IN MENTAL RETARDATION DEGREE CERTIFICATE AWARDED BY THE INDIRA GANDHI NATIONAL OPEN UNIVERSITY TO THE PETITIONER DATED 02.04.2013.** - **EXhibit R2(d)** **TRUE COPY OF THE DIPLOMA CERTIFICATE FOR PRIMARY SCHOOL TEACHERS OF THE VISUALLY HANDICAPPED AWARDED BY THE NATIONAL INSTITUTE FOR THE VISUALLY HANDICAPPED DATED 30.12.2001.** :14: OP(KAT).No.332 of 2021 **EXhibit R2(e)** **EXhibit R2(f)** **EXhibit R2(g)** **EXhibit R2(h)** **TRUE COPY OF THE CERTIFICATE OF NATIONAL ELIGIBILITY TEST FOR ASSISTANT PROFESSOR CONDUCTED BY THE UNIVERSITY GRANTS COMMISSION DATED 31.10.2018 ISSUED TO THE PETITIONER.** **TRUE COPY OF THE CERTIFICATE OF ACCOUNT TEST BOTH LOWER AND HIGHER CONDUCTED BY THE PUBLIC SERVICE COMMISSION DATED 21.04.2022.** **TRUE COPY OF THE CERTIFICATE ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION DATED 21.04.2022 IN THE TEST IN KERALA EDUCATION ACT AND RULES.** **TRUE COPY OF THE CERTIFICATE OF K-TET CONDUCTED BY THE GOVERNMENT OF KERALA DATED 25.06.2018.**