Thulasibai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932** **WP(C).No. 10132 of 2010(N)** **---------------------------------------** **PETITIONER:** - **-------------------** **THULASIBAI, W/O.LATE K. SURESH BABU, AGED 52 YEARS, ASST. CHEMICAL EXAMINER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM,RESIDING AT TX 31/603(3), SRUTHI, S.N.N.R.A - 75, SREENARAYANANAGAR, PETTAH TRIVANDRUM - 695 024.** **BY ADVS. SMT.A.G.ANEETHA, SRI.MANU SOLOMAN, SMT.M.KABANI DINESH.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. CHIEF CHEMICAL EXAMINER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM.** ## **3. B. AJAYAKUMAR,** **ASST. CHEMICAL EXAMINER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KAKKANAD, ERNAKULAM.** **4. DR. N. JAYASREE, ASST. CHEMCIAL EXAMINER, REGIONAL CHEMICAL EXMINER'S LABORATORY, KAKKANAD, ERNAKULAM.** ## **W.P.(C). NO.10132/2010-N:** **5. V.C. THANKAMONY,** **ASST. CHEMICAL EXAMINER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, MEDICAL COLLEGE CAMPUS, CALICUT - 673 008.** **R1 & R2 BY SR. GOVT. PLEADER SRI. P. NANDAKUMAR, R3 BY ADVS. SRI.PETER JOSE CHRISTO, SRI.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, SRI.S.A.ANAND.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.10132/2010-N:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE KERALA CHEMICAL EXAMINER'S LABORATORY SPECIAL RULES.** **EXT.P.2: COPY OF THE ADVERTISEMENT PUBLISHED IN MADHYAMAM DAILY IN ITS TRIVANDRUM EDITION DT. 09/05/2006.** **EXT.P.3.A: COPY OF THE LETTER DT. 06/12/2007 FROM THE MADURAI KAMARAJ UNIVERSITY.** **EXT.P.3.B: COPY OF THE LETTER DT. 12/09/08 FROM THE UNIVERSITY GRANTS COMMISSION AND INDIRA GANDHI OPEN UNIVERSITY.** **EXT.P.4; COPY OF THE GOVERNMENT ORDER DT. 17/07/1965.** **EXT.P.5: COPY OF THE MARK LIST OF THE PETITIONER.** **EXT.P.6: COPY OF THE SENIORITY LIST DTD. 01/05/2009.** **EXT.P.7: COPY OF THE REPRESENTATION DT. 01/10/2009.** **EXT.P.8: COPY OF THE REPLY DT. 20/11/09.** **EXT.P.9: COPY OF THE NEWSPAPER REPORT IN MADHYAMAM ON 19/11/2006.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **ANTONY DOMINIC, J. ================ W.P.(C) NO. 10132 OF 2010 (N) =====================** ## **Dated this the 28[th] day of May, 2010** ## **J U D G M E N T** Petitioner entered service in the Chemical Examiner's Laboratory Department as a Technical Assistant on 10/2/82. She was promoted as Junior Scientific Officer w.e.f. 6/10/85 and as Assistant Chemical Examiner w.e.f. 18/4/91. The next higher post to which she is aspiring for promotion is that of Joint Chemical Examiner. 2. Though the petitioner joined service as a Graduate in Chemistry, while continuing in service, she acquired M.Sc Chemistry, under the Distant Education Programme of the Madurai Kamaraj University and passed the examination in 2007. She apprehends that she will not be considered by the Departmental Promotion Committee for the reason that the Post Graduate Degree in M.Sc Chemistry possessed by the petitioner is only under the Distant Education Programme. It is with this grievance, this writ petition has been filed praying for a direction to the respondents to include the petitioner in the field of choice to be considered by the DPC for inclusion in the select list. **WPC No. 10132/10** **:2 :** 3. Special Rules concerning Kerala Chemical Examiner's Laboratory Service has been produced as Ext.P1. The qualification prescribed for the post of Joint Chemical Examiner to be filled up by promotion is Masters Degree with atleast 50% marks in Chemistry or Forensic Science or Bio-Chemistry of a recognised University and two years experience as Assistant Chemical Examiner in Chemical Examiner's Laboratory. 4. The case set up by the petitioner is that so long as Special Rules do not make a distinction between a regular Post Graduate Degree or a Post Graduate Degree acquired in the Distant Education Programme, both categories are equally eligible, and that therefore, she should be held eligible for the higher post. 5. In support of this contention, counsel for the petitioner has relied on the judgments of this Court in _**Mohanan Nair v. State of Kerala**_ (1994(2) KLT 537), _**Mujeeb Rahman v. State of Kerala**_ (2005(1) KLT 680), _**State of Kerala v. Suja Kumari**_ (2006 (1) KLT 846), _**Public Service Commission v. Abdul Rasheed**_ (2007(3) KLT 881) and _**Ani G. Mattathil v. State of Kerala**_ (2009 (1) KLT 917). In **Mohanan Nair's** case, (1994(2) KLT 537), in para 6 an 8, it has been held thus: 6. As already stated the Government of Kerala **WPC No. 10132/10** **:3 :** by its order G.O(MS) 526 dated 17.2.1965 which was specifically on the subject of recognition of qualifications, has recognised all degrees and diplomas awarded by statutory Universities established by an Act of State or Central legislatures. The Annamalai University is a statutory University established by the Statute of the Madras Legislature. The qualifications prescribed for higher secondary schools in Kerala make no distinction between degrees obtained by regular attendance in colleges and those obtained by correspondence study. That is why the Government's order dated 27.6.90 prescribes “a Master's Degree” and not “a Master's degree by attending regular college”. The Government's order dated 17.2.1965 reorganising various qualifications also does not make a distinction based on attendance or regular classes. 8. The recognition of the qualification by the Kerala University- a fact which entered the making of the impugned orders-is not relevant for the recognition of qualifications by the Government. The Government may, consistently with its needs recognise educational qualifications irrespective of whether the Kerala University recognises them or not. The Government of Kerala in fact did so. Again, the fact that the Kerala University has not recognized the M.Sc.Degree of Annamalai University does not mean that the Kerala University has rejected the degree. The degree of the Directorate of Correspondence Courses and Continuing Education of the Annamalai University, never came before the Kerala University for consideration of recognition. In any event, the Government of Kerala, has, for the purpose of appointment of teachers in Higher Secondary Schools, recognised the degree of M.Sc(Chemistry) from the statutory Annamalai University. 6. Similarly in **Mujeeb Rahman's case** (2005(1) KLT 680), it has been held thus in para 6: **WPC No. 10132/10** **:4 :** Writ petitioners took up the stand that the rule making authority has not made any distinction between persons who have acquired M.A.Degree after undergoing regular course of study and those who have acquired the M.A.Degree after undergoing course of study through distance education or correspondence course. Counsel submitted wherever rule making authority thought that the degree obtained must be through regular course of study the same has to be specified in the rules. Counsel referred to B.Ed Degree which has to be acquired through regular course of study unlike M.A.Degree where there is no such stipulation. Counsel submitted that the only stipulation is that Master's Degree obtained by the candidate must be recognised by any of the Universities in the State of Kerala. Petitioners satisfy those conditions and therefore, counsel submitted that, there is no justification in rejecting their application overlooking the statutory rules. Petitioners have produced eligibility certificate from the University certifying that the Master's Degree obtained by them from various Universities have been recognised as equivalent qualification in the respective subject by the Universities in Kerala. Rule making authority in their wisdom, has not made any distinction between Master's Degree obtained through correspondence course and the one acquired through regular course of study. Similar issue arose when the recruitment was made to the post of High School Assistant. Public Service Commission noticed that several persons who have acquired the degree through correspondence course had applied for the post of High School Assistant. Commission then addressed a letter to the State Government to clarify whether candidates who have applied to the post of High School Assistant having the qualification acquired through distance educational course or correspondence course are eligible for holding the post. Request was also made by the P.S.C to the Government to amend the qualification of the teaching post so as to make ineligible the degrees which are obtained through distance education system without undergoing the stipulated regular course of study. **WPC No. 10132/10** **:5 :** Government at that time accepted the request of the P.S.C. and passed an order on 6.11.2002 stating that the qualification obtained through regular course of study alone shall be considered for appointment to the post of High School Assistant, Government later rescinded the said order, vide G.O(P) No.406/02/G.Edn. dt 13.12.2002. Rule making authority therefore made no distinction between the degree obtained by correspondence course as well as through regular course so far as appointment to the post of High School Assistants are concerned. Rule making authority, it is seen, has taken the same stand for the post of Higher Secondary School Teacher as well. State Government have also not filed counter affidavit in these cases. Consequently, they are not contradicting the stand of the writ petitioners that Master's Degree obtained by candidates through correspondence course if it is recognised by any of the Universities in Kerala would be sufficient qualification for the post of Higher Secondary School Teachers. 7. These judgments have been followed in the subsequent judgments mentioned above. Thus, the law laid down by this Court in the aforesaid judgments fully supports the case canvassed by the petitioner. Added to this is Ext.P4, the Government Order GO(MS) No.526 dated 17[th] of July 1965, where the Government have ordered that Degrees and Diplomas awarded by statutory Universities established by an Act of the Central or State Legislature or by other institutions of higher learning recognised as Universities by the Central University Grants Commission should be recognised in the State. There is no dispute that Madurai Kamaraj University will not come within the scope of this order **WPC No. 10132/10** **:6 :** 8. In the light of the judgments and the Government Order referred to above, the contention that the petitioner is eligible for the post of Joint Chemical Examiner deserves acceptance, and there will be a declaration to that effect. 9. It is pointed out by the petitioner that the DPC for filling up the two existing vacancies in the cadre of Joint Chemical Examiner is to meet tomorrow and on that basis, petitioner seeks a direction for her consideration. But now that the judgment has been delivered only today, learned Government Pleader points out that it will be impractical to consider the case of the petitioner. Having regard to the above, I do not propose to direct consideration of the case by tomorrow itself, but however, it is directed that the 1[st] respondent shall take steps for convening the review DPC, as expeditiously as possible, on the production of a copy of this judgment for considering the case of the petitioner. Writ petition is disposed of as above. ## **ANTONY DOMINIC, JUDGE** Rp