High Court of KeralaSingle Judge2024-03-19Writ petition disposed of; Ext.P18 quashed; Gov...

Subairabi P v. State of Kerala and Others

Case / Petition Number:WP(C) No. 13762 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Mohammed Nias C.P.
Judgment Date: 2024-03-19
Court Decision / Holding: The writ petition is disposed of. Ext.P18 (the impugned order) is quashed. The Government is directed to reconsider the case of the petitioner and the sixth respondent in terms of the Rules by verifying whether the sixth respondent has a B.Ed in the concerned subject; if she has, her claim may be considered superior; if not, the petitioner should be given due consideration. This reconsideration should be completed within two months from receipt of a copy of this judgment, with reasonable opportunity of hearing; the parties may produce materials. The date 28.5.2918 has been corrected to 29.05.2018 as per an order in IA 7/2024 in WP(C)No.13762/2022.
Final Disposition: Writ petition disposed of; Ext.P18 quashed; Government directed to reconsider the petitioner and the sixth respondent's claims under the Rules within two months with hearing; correction of date issued.

Parties to the Case

Appellants / Petitioners

Subairabi P., aged 47 years, wife of Moideen, HSA (Social Science), MSP Higher Secondary School, Malappuram

Respondents

The State of Kerala represented by its Secretary to Government, General Education Department, Secretariat Annex II, Thiruvananthapuram
The Director of General Education, (Higher Secondary Wing), Housing Board Buildings, Shanti Nagar, Thiruvananthapuram
The Regional Deputy Director of Higher Secondary Education, Civil Station, Malappuram
The Manager, MSP Higher Secondary School, Malappuram
The Principal, MSP Higher Secondary School, Malappuram
Ms. Rajasree A.V., HSA (Natural Science), MSP Higher Secondary School, Malappuram

Legal Representation & Advocates

Counsels for Petitioners

• V. A. Muhammed
• M. Sajjad

Counsels for Respondents

• K. M. Sathyanatha Menon
• Sri K.G. Sarojini, Sr. GP

Case Synopsis & Summary

MSPHSS, Malappuram, an aided school, faced a vacancy for HSST (Sociology). The petitioner Subairabi P and the sixth respondent both possessed the requisite qualifications. The eligibility for the post is governed by Kerala Education Rules Chapter XXXII, Rule 6, which prescribes: (i) Master’s Degree in the concerned subject with direct appointment of no less than 50% marks; (ii) B.Ed in the concerned subject or, in the absence of such, B.Ed in a subject under the same faculty as recognised by Kerala universities; (iii) in the absence of B.Ed, a pass in the State Eligibility Test for HSST. The note adds that in the absence of B.Ed, candidates with a Master’s degree and 50% and who have passed SET may be considered; preference is given to those with PhD/MPhil or by JRF/NET. The petitioner contends she should be appointed in preference to the sixth respondent since she holds a B.Ed in Social Science (Sociology) and the sixth respondent does not have a B.Ed in the concerned subject; she also asserts entitlement to by-transfer appointment as HSST (Sociology). The sixth respondent argues seniority and that she possesses a B.Ed. The court examines whether Sociology falls within the Faculty of Social Science and notes the rule’s equivalence provisions; it concludes that the appointment cannot be sustained on the sixth respondent’s face without verifying whether she holds a B.Ed in the subject. It directs the Government to reconsider in light of the Rules, with opportunity for hearing, and to decide within two months. A correction to a misdated reference is also clarified.

Provisions of Law Cited

Chapter XXXII Rule 6 of the Kerala Education Rules (KER)Kerala University First Ordinance 1978, Chapter V

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that under Kerala Education Rules Chapter XXXII Rule 6, a B.Ed in the concerned subject (Sociology) or in the same Faculty should be given priority; since she holds B.Ed in Social Science (Sociology) and the sixth respondent lacks B.Ed in the subject, she should be preferred for HSST (Sociology) or at least considered in by-transfer; the rules contemplate the by-transfer appointment primarily for those with the relevant B.Ed; reliance on earlier decisions (K.V. Sankaradas, etc.) is made.

Contentions of Respondents

The sixth respondent is senior and has a B.Ed; in the absence of relevant B.Ed, others, etc.; the Government has acted within the rules; appointment based on seniority; the petitioner’s claim fails.

Cited Precedents (7)

Case Name	Citation	Treatment	Explanation
K.V. Sankaradas v. State of Kerala and others	2006(4) KLT 956	Mentioned Only	Petitioner relies on this decision; the judgment does not expressly apply or distinguish its holdings.
Saritha Mohan v. State of Kerala	WA No.1508/2003	Mentioned Only	Cited as part of a list of earlier decisions; no explicit treatment stated.
Salini K. v. State of Kerala	WA No.1092/2003	Mentioned Only	Cited in context; no explicit binding application.
Tessy Mol K.D. v. The Secretary to Government	WA No.1112/2003	Mentioned Only	Cited; not treated as binding precedent.
Ansy Isaac v. State of Kerala	WP(C) No.21194/2019	Mentioned Only	Cited as a related matter; no explicit application.
Sonia Alex v. State of Kerala	OP(KAT) 111/2014	Mentioned Only	Cited for reference; no explicit binding application.
Geetha v. State of Kerala	2012 (10 KLT 829)	Mentioned Only	Cited in passing; not distinguished or followed.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945** **WP(C) NO. 13762 OF 2022** ## **PETITIONER:** **SUBAIRABI P AGED 47 YEARS WIFE OF MOIDEEN, HSA (SOCIAL SCIENCE), MSP HIGHER SECONDARY SCHOOL, MALAPPURAM - 676 505. (RESIDING AT KARUVALLY PATHIKKAD, PADAPPARAMBA, PADAPPARAMBA P.O., MALAPPURAM - 676 507.)** **BY ADVS. V.A.MUHAMMED M.SAJJAD** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE – II, THIRUVANANTHAPURAM - 695 001.** **2 THE DIRECTOR OF GENERAL EDUCATION, (HIGHER SECONDARY WING), HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM - 695 001.** - **3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION,** **CIVIL STATION, MALAPPURAM - 676 519.** - **4 THE MANAGER, MSP HIGHER SECONDARY SCHOOL, MALAPPURAM - 676 505.** **5 THE PRINCIPAL, MSP HIGHER SECONDARY SCHOOL,** -2- WP(C)No.13762/2022 ## **MALAPPURAM, - 676 505.** **6 SMT.RAJASREE A.V., HSA (NATURAL SCIENCE), MSP HIGHER SECONDARY SCHOOL, MALAPPURAM - 676 505.** **BY ADVS. ADVOCATE GENERAL OFFICE KERALA K.M.SATHYANATHA MENON** **BY SRI.K.G.SAROJINI, SR. GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 11.03.2024, THE COURT ON 19.3.2024 DELIVERED THE FOLLOWING:** -3- WP(C)No.13762/2022 ## **MOHAMMED NIAS C.P., J.** **- - - - - - - - - - - - - - - - - - - - -** W(C)No.13762 of 2022 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of March, 2024 ## **JUDGMENT** MSPHSS, Malappuram, is an aided school under the administrative jurisdiction of the third respondent. A vacancy of HSST (Sociology) arose in the said school. The petitioner, as well as the sixth respondent, had the requisite qualifications. The qualifications prescribed for the post of HSST(Sociology) under Chapter XXXII Rule 6 of the KER are as follows:- “6. Qualifications:- No person shall be eligible for appointment to the category in column(2) in the table below under the method specified in column(3) unless he possesses the Qualifications prescribed in column (4) thereof. |(28) Sociology (29) Social Work (30) Anthropology (31) Home Science|By transfer and by direct appointment|(i)Master's Degree in the concerned subject with direct appointment not less than 50% marks from any of the Universities in Kerala or a qualification recognised as equivalent thereto in the respective subject by a University of Kerala. (36) Journalism (ii)(1)B.Ed in the concerned subject| |---|---|---| -4- WP(C)No.13762/2022 |(32) Geology (33) Statistics (34) Music (35) Gandhian Studies||acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by a University in Kerala (2) In the absence of person with B.Ed Degree in the concerned subject, B.Ed Degree acquired in any one of the subject under the concerned Faculty as specified in the Acts /Statutes of any of the Universities in Kerala. (3) In the absence of persons with B.Ed degree as specified in items (1) and (2) above, persons with B.Ed Degree in any subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by any of the Universities in Kerala. (iii) Pass in the state Eligibility Test for the post of Higher Secondary School Teacher conducted by Government of Kerala or by the agency authorised by the State Government. Note:- (1) In the absence of B.Ed Degree holders, candidates having Master's degree with not less than 50% marks and who have passed the State Eligibility Test will be considered . Preference will be given to those who have acquired PhD./M.Phil Degree or have qualified at Junior Research Fellowship or National Eligibility Test. The Teachers appointed under this provision will have to acquired B.Ed at their own expense within 5 years from the date| |---|---|---| -5- ## WP(C)No.13762/2022 of expiry in service. (2) Persons who have acquired M.Ed in the subject concerned recognised by any University in Kerala are exempted from acquiring B.Ed. 2. The petitioner challenges the appointment given to the sixth respondent on the ground that she cannot be preferred over the petitioner, under the Rules in as much as she does not have a B Ed in the concerned subject or a concerned faculty, whereas the petitioner is a holder of B.Ed in Social Science who is a faculty of Sociology. Since the petitioner has a B.Ed in the concerned subject, she has to be appointed in preference to the sixth respondent going by the qualifications fixed and only in the absence of persons with B.Ed in the concerned subject, the B.Ed degree holders required in any one of the subjects under the concerned faculty can be considered. In terms of the Rules, it is the contention of the petitioner that she ought to have been appointed in place of the sixth respondent. The petitioner also states that she was entitled to the by-transfer appointment as HSST (Sociology). The petitioner also relies on the judgment of this Court in **K.V.Sankaradas v. State of Kerala and others** [2006(4) KLT 956, **Saritha Mohan v. State of Kerala** (WA No.1508/2003), **Salini K. v. State of Kerala** (WA No.1092/2003) T **essy Mol K.D. v. The Secretary to Government** (WA No.1112/2003), **Ansy Isaac v. State of Kerala** -6- WP(C)No.13762/2022 [WP(C)No.21194/2019], **Sonia Alex v. State of Kerala** [OP(KAT) 111/2014] and **Geetha v. State of Kerala** [2012 (10 KLT 829] 3. The sixth respondent opposes the writ petition, primarily saying that she is senior to the petitioner and she also has a B.Ed qualification. Since the petitioner is senior, the orders passed appointing her as HSST (Sociology) is sought to be sustained. 4. Accordingly, the impugned order, Ext.P18, is sought to be quashed and also for a declaration that the petitioner is entitled to be appointed as HSST (Sociology) in preference to the sixth respondent with effect from 28.5.2918 with all consequential benefits. 5. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel for the sixth respondent. 6. As per Chapter V of the Kerala University First Ordinance, 1978, the faculty of Social Science includes Sociology, whereas the faculty of the B.Ed Natural Science is not included in the faculty of Science. As per the Rules, the equivalency from any one of the Universities will be sufficient, and under such circumstances, the petitioner’s claims ought to have been considered, taking note of the fact that Sociology is a subject -7- ## WP(C)No.13762/2022 coming within the Faculty of Social Science and going by the Rules extracted above the petitioner’s claims ought to have been considered when it is stated that the B.Ed of the sixth respondent is not in the concerned subject. It is only in cases where both teachers did not have a B.Ed in the concerned subject will the claim arise under the second alternative. The Government counter also proceeds on the basis that the sixth respondent is senior to the petitioner. There is no reference to the qualification fixed, though it is conceded that the petitioner has a B.Ed (Social Science), which is a faculty of Sociology, whereas there is no finding that the sixth respondent has a B.Ed in the concerned subject. The appointment of the sixth respondent cannot be considered solely on the basis of seniority. Under such circumstances, the impugned orders cannot be sustained, and it is only to be quashed. 7. Accordingly, there will be a direction to the Government to reconsider the case of the petitioner and the sixth respondent in terms of the Rules by examining whether the sixth respondent has a B.Ed in the concerned subject and only if the sixth respondent is shown to have a B.Ed in the concerned subject can her claim to be considered as superior to that of the petitioner. 8. The Government will take a decision on the claims of the -8- ## WP(C)No.13762/2022 petitioner and the sixth respondent in the light of the observations above within a period of two months from the date of receipt of a copy of this judgment. The petitioner, the sixth respondent and other affected parties will be afforded with reasonable opportunity of hearing before a decision is taken. The parties will be free to produce such materials to substantiate their claims, which will be adverted by the Government while taking a decision as directed above. The writ petition is disposed of as above. ## **Sd/-** ## **MOHAMMED NIAS C.P.** ## **JUDGE** The date '28.5.2918' occurring in paragraph 4 of the judgment dated 19.03.2024 in WP(C)No.13762/2022 is corrected and substituted as '29.05.2018' as per order dated 04.04.2024 in IA No.7/2024 in WP(C)No.13762/2022. Sd/- JOINT REGISTRAR dlk/18.3.2024 -9- WP(C)No.13762/2022 ## **APPENDIX OF WP(C) 13762/2022** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE SENIORITY LIST OF HST IN MSP HSS MALAPPURAM AS ON 01.01.2020.** **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF M.A.SOCIOLOGY ISSUED BY THE ANNAMALAI UNIVERSITY TO THE PETITIONER DATED 04.10.2006** **EXHIBIT P3 TRUE COPY OF THE ELIGIBILITY CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA WITH RESPECT TO THE PETITIONER DATED 25.11.2006** **EXHIBIT P4 TRUE COPY OF THE CERTIFICATE OF SET ISSUED BY THE GOVERNMENT TO THE PETITIONER DATED 31.10.2008.** **EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES OF THE WEBSITE OF THE KERALA UNIVERSITY.** **EXHIBIT P6 TRUE COPY OF THE INFORMATION ISSUED BY "NO.0994/RT1/4/2021-22 DATED 07.02.2022 BY THE STATE PUBLIC INFORMATION OFFICER.** **EXHIBIT P7 TRUE COPY OF THE DECISION REPORTED IN 2006 KHC 1128= 2006 (4) KLT 956.** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN WRIT APPEAL NO.1508/2003 DATED 16.09.2003.** **EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN WRIT APPEAL 1092/2003 DATED 03.07.2003.** **EXHIBIT P10 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN WRIT APPEAL 1112/2003 DATED 08.07.2003** -10- WP(C)No.13762/2022 |**EXHIBIT P11**|**TRUE COPY OF THE APPLICATION FOR THE POST OF**| |---|---| ||**HSST (SOCIOLOGY) SUBMITTED BY THE PETITIONER**| ||**DATED 28.01.2019.**| |**EXHIBIT P12**|**TRUE COPY OF THE REQUEST MADE BY THE PETITIONER**| ||**BEFORE THE MANAGER & COMMANDANT DATED**| ||**14.02.2019.**| |**EXHIBIT P13**|**TRUE COPY OF THE NOTICE VIDE LETTER NO.G1(B)-**| ||**14294/2019/M OF THE MANAGER & COMMANDANT DATED**| ||**22.02.2021.**| |**EXHIBIT P14**|**TRUE COPY OF THE JUDGMENT IN W.P.**| ||**(C)NO.21194/2019 DATED 22.08.2019.**| |**EXHIBIT P15**|**TRUE COPY OF THE REPRESENTATION "SUBMITTED BY**| ||**THE PETITIONER BEFORE THE RDD HSE, MALAPPURAM**| ||**DATED 02.03.2021.**| |**EXHIBIT P16**|**TRUE** **COPY** **OF** **THE** **ORDER**| ||**NO.D/2260/21/RDD/HSE/MLPM/K.DIS DATED 29-10-**| ||**2021 ISSUED BY THE RDD MALAPPURAM.**| |**EXHIBIT P17**|**TRUE COPY OF THE REVISION PETITION FILED BY THE**| ||**PETITIONER DATED 15.11.2021.**| |**EXHIBIT P18**|**TRUE COPY OF THE GOVERNMENT ORDER NO. G.O(RT)**| ||**NO. 2058/2022/G.EDN DATED 26.03.2022.**| |**EXHIBIT P19**|**TRUE** **COPY** **OF** **THE** **ORDER** **NO.**| ||**H/6016/2022/RDD/HSE/K.DIS DATED 29.10.2022 OF**| ||**THE 3RD RESPONDENT**| |**EXHIBIT P 20**|**TRUE COPY OF THE JUDGMENT IN OP KAT NO.111/2014**| ||**DATED 03.03.2017 OF THIS HON'BLE COURT**| |**EXHIBIT P 21**|**TRUE COPY OF THE RELEVANT PAGES OF THE**| ||**UNIVERSITY OF CALICUT FROM WEBSITE**| |**EXHIBIT P-22**|**TRUE COPY OF THE CHAPTER 5 OF THE KERALA**| ||**UNIVERSITY FIRST ORDINANCES 1978**| -11- ## WP(C)No.13762/2022 |**EXHIBIT P-23**|**TRUE COPY OF THE B.ED CERTIFICATE OF THE**| |---|---| ||**PETITIONER DATED 20.09.2001**| |**EXHIBIT P-24**|**TRUE COPY OF THE B.ED MARK LIST OF THE**| ||**PETITIONER DATED 04.07.2001**| |**EXHIBIT P-25**|**TRUE COPY OF THE RELEVANT PAGES OF THE**| ||**CURRICULUM OF THE UNIVERSITY OF CALICUT FOR**| ||**B.ED SOCIAL SCIENCE**| |**RESPONDENTS EXHIBITS**|| |**EXHIBIT R6(A)**|**A TRUE COPY OF THE LETTER NO: 234/T2/2019/G EDN**| ||**DATED 12/7/2019**| |**EXHIBIT R6(A)** **(1)**|**TYPED COPY OF EXT.R6[A]**| |**EXHIBIT R6(B)**|**A TRUE COPY OF G.O.[MS] NO.247/2019/GEN EDN**| ||**DATED 21.01.2019**| |**EXHIBIT R6(C)**|**TRUE COPY OF THE DEGREE CERTIFICATE ISSUED BY**| ||**UNIVERSITY OF KERALA IN FAVOUR OF 6TH**| ||**RESPONDENT DATED ON 27.6.1996**| |**EXHIBIT R6(D)**|**A TRUE COPY OF THE MARKLIST OF THIS APPLICANT**| ||**OF B ED. IN NATURAL SCIENCE UNDER UNIVERSITY OF**| ||**KERALA DATED 16.3.1996**| |**EXHIBIT R6(E)**|**A TRUE COPY RELEVANT PORTION OF THE G.O(MS)**| ||**NO.141/2008/G. EDN. DATED 18.8.2008**|