Usha Kumari A. v. The Secretary, General Education Department, Thiruvananthapuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 25TH DAY OF JULY 2014/3RD SRAVANA, 1936** ## **WP(C).No. 5637 of 2012 (D)** ## **---------------------------** ## **PETITIONER :** - **----------------------** **USHA KUMARI.A, AGED 44 YEARS, D/O.ACHUTHAN, HIGH SCHOOL ASSISTANT (MATHS), R.P.M.HIGH SCHOOL, PANANGATIRI, POST PALAKKAD, RESIDING AT BALAKRISHNA, PANANGATTIRI-678 506.** **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENT(S):** - **----------------------------** **1. THE SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695001.** **2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM-695 001.** **3. THE REGIONAL DEPUTY DIRECTOR, DIRECTORATE OF HIGHER SECONDARY EDUCATION BOARD, KALOOR, ERNAKULAM-682 017.** **4. THE MANAGER, R.P.M.HIGH SCHOOL, PANANGATIRI,** **PALAKKAD-678 506.** **5. SMT. DIVYA RAMACHANDRAN, HIGHER SECONDARY SCHOOL TEACHER** **(COMPUTER APPLICATION) R.P.M.HIGH SCHOOL, PANANGATIRI, PALAKKAD-678 506.** **6. SMT. K.P.INDHU, HIGHER SECONDARY SCHOOL TEACHER (ENGLISH) R.P.M.HIGH SCHOOL, PANANGATIRI, PALAKKAD-678 506.** **2/-** **sts** **-2-** **WP(C).NO.5637/2012** **7. SMT. BINDU C.PHILIP,** **HIGHER SECONDARY SCHOOL TEACHER (ZOOLOGY), R.P.M.HIGH SCHOOL, PANANGATIRI, PALAKKAD-678 506.** **R1 TO R3 BY SR GOVERNMENT PLEADER SMT. LOWSY.A. R4 BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA** **R5 BY ADVS. SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH R6 & R7 BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2014, ALONG WITH WPC. 13106/2012 AND WPC. 13995/2012, THE COURT ON 25-07-2014 DELIVERED THE FOLLOWING:** **sts** **WP(C).NO.5637/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 6/6/1994 ISSUED BY THE 4TH RESPONDENT.** **EXT.P2 TRUE COPY OF THE B.SC. CERTIFICATE DATED 5/1/1989 OF THE PETITIONER.** **EXT.P2(A) TRUE COPY OF THE B.ED. CERTIFICATE OF MANONMANIAM SUDARANAR UNIVERSITY DATED 15/1/1993. EXT.P2(B) TRUE COPY OF THE POST GRADUATE DIPLOMA IN COMPUTER APPLICATION CERTIFICATE - 1994 CERTIFICATE ISSUED DATED 23/1/1999 EXT.P2(C) TRUE COPY OF THE M.SC. COMPUTER SCIENCE CERTIFICATE PUBLISHED IN AUGUST 2011. EXT.P3 TRUE COPY OF THE EXAMINATION RESULT OF M.SC. COMPUTER SCIENCE PUBLISHED IN AUGUST 2011. EXT.P4 TRUE COPIES OF MARK LISTS OF MASTER SCIENCE IN COMPUTER SCIENCE. EXT.P4(A) TRUE COPY OF THE RELEVANT PAGES OF LIST PUBLISHED BY UNIVERSITY GRANTS COMMISSION IN THE OFFICIAL WEB SITE. EXT.P5 TRUE COPY OF THE G.O.(MS)NO.211/2011/G.ED DATED 24/10/2011. EXT.P6 TRUE COPY OF THE PROPOSAL OF THE 4TH RESPONDENT DATED 22/11/2011 SUBMITTED TO 3RD RESPONDENT. EXT.P6(A) TRUE COPY OF THE CONSOLIDATED MARK-LIST OF THE SELECTION EXT.P7 TRUE COPY OF THE WPC.NO.33580/2011-V DATED 15/12/2011. EXT.P8 TRUE COPY OF THE G.O.NO.B3/20490/11 DATED 17/2/2012. EXT.P9 TRUE COPY OF THE NOTIFICATION APPEARED IN MATHRUBHOOMI DAILY DATED 19/07/2012. EXT.P10 TRUE COPY OF THE REPRESENTATION DATED 12/07/2012 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT** **2/-** **sts** **-2-** ## **WP(C).NO.5637/2012** **EXT.P11 TRUE COPY OF THE REPRESENTATION DATED 11/07/2012 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT. EXT.P12 TRUE COPY OF THE LETTER DATED 8/5/2012 ISSUED BY THE IGNOU EXT.P13 TRUE COPY OF THE CIRCULAR DATED 15/11/2011 ISSUED BY THE JOINT DIRECTOR, HIGHER SECONDARY DIRECTORATE, THIRUVANANTHAPURAM EXT.P14 COPY OF THE NEWS PAPER CLIPPING OF KERALA KOUMADHI 06/11/2011 EXT.P15 COPY OF THE ORIGINAL CERTIFICATE OF M.SC.NO.050157 OF SAM HIGGINBOTTOM INSTITUTE OF AGRICULTURE TECHNOLOGY AND SCIENCE EXT.P15(A) COPY OF THE COURSE CERTIFICATE ISSUED BY THE SAM HIGGINBOTTOM INSTITUTE OF AGRICULTURE TECHNOLOGY AND SCIENCE EXT.P15(B) COPY OF THE TRANSCRIPT OF MARKS OF SAM HIGGINBOTTOM INSTITUTE OF AGRICULTURE TECHNOLOGY AND SCIENCE EXT.P16 COPY OF THE DECLARATION RECEIVED BY THE PETITIONER ON 14/06/2014** ## **RESPONDENTS' EXHIBITS : NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~ **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 25[th] day of July, 2014 ## **J U D G M E N T** These writ petitions are related to appointments in 25% transfer quota from among High School Assistants to the post of Higher Secondary School Teachers (HSST) in R.P.M. High School, Pangantteri, Palakkad. 2. The facts are as follows: The petitioner in W.P.(C).No.5637/2012, Usha Kumari A. is working as High School Assistant (Mathematics) in the aforesaid school. She claims to be the senior-most teacher eligible for appointment as HSST (Computer Application). Manager invited applications for appointment to the post of HSST against 25% transfer quota from among qualified High School Assistants based on seniority-cum-suitability, on 18/11/2011. The posts were created as per Government Order dated 24/10/2012. However, this was with retrospective effect from 06/08/2011 as mentioned in Ext.P5. The qualifications that are prescribed for appointment as H.S.S.T (Computer Application) under Rule 6 of Chapter XXXII of the Kerala Education Rules are as follows: “1. Master's Degree in Engineering or Technology in the concerned subject/M.Tech.Degree in Computer Science/ Computer Engineering/ Information Technology/ Software Engineering with not less than 50% marks from a recognised University. **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:2:-** OR Master's Degree in Computer Application/Master's Degree in Computer Science or Information Technology with not less than 50% marks from a recognised University. 2. In the absence of qualified candidates in item (1) above, B.Tech/Bachelor of Engineering Degree with not less than 50% marks in Computer Science/Computer Engineering/Information Technology from a recognised University. .............” Interview was conducted by the selection committee. Usha Kumari relies on Exts.P3 and P4 mark sheets issued by Sam Higginbottom Institute of Agriculture, Technology & Sciences (formerly Allahabad Agricultural Institute) in the programme of M.Sc.(Computer Science). The mark sheets would disclose that Usha Kumari had secured marks 254 out of 400 in her fourth semester. The marklist that was produced before the Manager is a computer generated print out (Ext.P3). This marklist would show that Usha Kumari secured more than 50% in Master of Science in Computer Science. Usha Kumari's candidature was rejected by the selection committee and another candidate, namely, one Divya Ramachandran (petitioner in W.P.(C).No.13106/2012) was appointed. Challenging appointment of Divya Ramachandran, Usha Kumari approached this Court **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:3:-** with W.P.(C).No.33580/2011 and the said writ petition was disposed of by directing the Regional Deputy Director to consider the grievance of Usha Kumari before grant of approval to Divya Ramachandran. Thereafter, the Regional Deputy Director passed Ext.P8 order. The reason for rejection stated therein is that Usha Kumari did not produce any certificate to evidence her qualification and, therefore, Smt.Divya Ramachandran was appointed directly to the post of HSST (Computer Science) for the reason that there were no other qualified candidates for appointment by transfer. Usha Kumari, challenging her non selection and selection of Divya Ramachandran, filed writ petition 5637/2012. On account of interim order passed in W.P.(C).No.5637/2012 and non payment of salary and approval of appointment of Divya Ramachandran, Divya Ramachandran filed W.P. (C).No.13106/2012. Divya Ramachandran appears to have resigned after entering into service. Since the appointment in 25% transfer quota is under challenge, some of the other candidates, whose appointments have not been approved, due to pendency of writ petition filed by Usha Kumari, have approached this Court by filing W.P.(C).No.13955/2012. 3. Manager filed a statement in W.P.(C).No.5637/2012. It is stated b the Manager in para.4 as follows: **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:4:-** “In fact, petitioner had submitted her application on 19/11/2011 along with copy of SSLC Book, Degree Certificate, B.Ed Certificate and Ext.P3 examination results downloaded from a website. All the incumbents were called for the interview before the selection committee. Before the selection committee petitioner has not produced the qualifying certificate such as M.Sc marklist, M.Sc Degree Certificate and Equivalency Certificate. From Ext.P3, it is seen that the result is withheld in the absence of internal assessment marks. It is not clear as to whether the petitioner has got more than 50% marks in her Post Graduate Degree, the minimum qualification prescribed by the statute. Petitioner has not, so far, entered her Post Graduate Degree in the service book as well.” Going by the averments in the counter affidavit filed by the Manager, the case of the Manager is that Usha Kumari has not produced M.Sc marklist, M.Sc Degree Certificate and Equivalency Certificate. It is also contended that result of Usha Kumari is withheld in the absence of internal assessment marks. It is also contended that Usha Kumari has not entered her Post Graduate Degree in the service book. 4. During the hearing of the writ petition, yet another contention was raised by the Manager with respect to the qualification acquired by Usha Kumari. It is contended by the learned counsel for the Manager that ## **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:5:-** as per Ext.P5, date of occurrence of vacancy is 06/08/2011 and Usha Kumari has not established that as on that date she was qualified. 5. It is admitted by the Manager that applications were invited from among qualified teachers, who were working in the school as on 18/11/2011 by issuing a memo. It is also admitted that Usha Kumari had made an application and was called for interview along with SSLC book, degree certificate, B.Ed. certificate and Ext.P3 marklist of M.Sc (Computer Science) downloaded from the website. There is no dispute about other qualifications possessed by Usha Kumari, except qualification in M.Sc (Computer Science). The question, therefore, that arises for consideration is whether Ext.P3 is sufficient to hold that Usha Kumari was qualified at the relevant time. Ext.P3 is the examination result of fourth semester of M.Sc (Computer Science) published in August, 2011. Usha Kumari, along with I.A.No.8203/2014, has produced a document as Ext.P16 to show that the result of final year M.Sc (Computer Science) was declared on 04/08/2011. However, from the records (Ext.P3), it is not clear as to the date on which it was declared, though it is indicated therein that “Examination ResultAugust, 2011”. Ext.P3 clearly shows that name of the programme attended by Usha Kumari as M.Sc (CS). It would also show that Usha Kumari has got 254 marks out of 400, which is more that 50% marks. It appears that ## **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:6:-** noting the footnote in Ext.P3, Manager carried an impression that the result of Usha Kumari has been withheld, in the absence of internal assessment marks. Ext.P3 examination results is in a computer printed format and the footnote therein mentions about general instructions that may apply in case to case basis. Nothing is there in Ext.P3 to indicate that Usha Kumari's results are withheld. Usha Kumari's, both internal assessment marks and University examination marks have been entered in the relevant columns. Thus, Ext.P3 clearly establishes Usha Kumari's qualification. In Ext.P8 proceedings of the Regional Deputy Director of Higher Secondary Education, arising from approval of appointment of Divya Ramchandran questioned by Usha Kumari, it is mentioned that it is not mandatory for Computer Science Post Graduates to produce an equivalency certificate. Therefore, that objection of the Manager has also to be overruled. 6. Therefore, I am of the view, merely because Usha Kumari has not produced Post Graduate Degree Certificate, she is not dis-entitled for considering for appointment. The only criteria for such consideration, besides qualification, is seniority-cum-suitability. The Manager cannot insist for production of Post Graduate Degree Certificate unless it is so compelled under the relevant regulations. What Manager/selection committee needs to be satisfied is regarding qualification. This is so ## **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:7:-** reflected from Ext.P3 examination results. If the examination results would clearly indicate the qualification, I am of the view, the same is sufficient to satisfy the statutory requirement. 7. The next contention of the Manager is regarding non entry of the Post Graduate Degree qualification of Usha Kumari in her service book. This Court in another judgment in W.P.(C).No.16786/2004 dated 31/10/2008 held as follows: “......... Rule 33 of Chapter XIVA of the KER stipulates that “ _if any teacher acquires any additional qualifications during his service, particulars thereof shall be entered in the service book by the headmaster and attested by the Educational Officer_ .” But nowhere is it mentioned that qualifications not entered in the service book would not be considered for any purpose like appointment by transfer as HSST. Chapter XXXII of the KER which lays down the qualifications and method of appointment of HSST, does not stipulate that only qualifications endorsed in the service book of a teacher would be considered for appointment by transfer to that post. Therefore, the Principal or the Manager cannot, merely on the basis of the service books of the teachers, assume or decide that there are no qualified teachers in the School to be considered for appointment by transfer to the post of Higher Secondary School Teachers in the 25% quota set apart for appointment by transfer. In view of my decision on **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:8:-** that point, it is not even necessary for me to go into the question as to whether the 2nd class M.Sc.(Maths) degree of Smt.Beena Rani has been endorsed in her service book before Smt.Jeeji was appointed to the vacancy or not. 10. When there is no stipulation that only qualifications recorded in the service book alone would be considered, all teachers of the school or under the Educational Agency who possess the required qualifications are entitled to be considered and are eligible to apply for such appointment in the 25% quota reserved for appointment by transfer. .........” Therefore, the objection of the Manager in this regard is also repelled. 8. The next point to be considered is whether as on the date of occurrence of vacancy, Usha Kumari was qualified or not. The method of appointment to the post of HSST, as provided under the Kerala Education Rules, is appointment by transfer as HSST from among qualified hands of High School Assistants in the 25% quota. It is only in the absence of qualified candidates, direct recruitment is considered. By Ext.P5, the vacancy is deemed to have arisen on 06/08/2011. Ext.P3 examination results do not indicate that results have been published before 06/08/2011, even though, before this Court, Ext.P16 is produced to indicate that results have been published on 04/08/2011. The Manager and selection committee, which was constituted for selection of candidates for ## **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:9:-** appointment to the post of HSST (Computer Science) found that there were no qualified candidates for appointment to the post of HSST (Computer Science). Therefore, they appointed Divya Ramachandran, a direct recruitee, though it is now admitted that Divya Ramachandran has resigned to take up employment elsewhere and her writ petition is only for approval of appointment for the purpose of obtaining salary in the post which she had worked. It is to be noted that selection committee rejected Usha Kumari's selection on 26/11/2011 for the reason that she did not produce M.Sc. (Computer Science) Certificate and equivalency certificate along with the application or at the time of interview. 9. The qualification produced by Usha Kumari as Exts.P3 and P4 series and Ext.P16 would establish that she has acquired qualification as on the date of occurrence of vacancy which is 06/08/2011. Therefore, the question is whether non production of evidence, along with the application made on 18/11/2011, to show that Usha Kumari is qualified as on the date of occurrence of vacancy, would disentitle her claim for appointment. As has been already found, Usha Kumari's credentials produced before the Manager are sufficient to hold that she is having the requisite qualification. In **Ajithakumari v. Shamma [2009 (1) KLT 808]** , a Division Bench of this Court held that “the method of appointment to the post of HSST provided ## **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:10:-** for as per the Special Rules is by appointment by transfer from the category of HSST (junior) in the subject concerned. So, normally, the entire vacancies shall go to them and no direct recruitment is possible. But, when there are no hands in that category, the Rules provide that the vacancies available for want of HSST (junior) shall be filled up by appointment by transfer of qualified HSA/UPSA and by direct recruitment, in the ratio of 1:3. If qualified HSAs/UPSAs are not available, those vacancies set apart for them shall also go to direct recruitment. The Rules have, therefore, to be worked out with reference to the date of occurrence of vacancies. Filling up shall be against the vacancies occurred and the position as on the date of occurrence of vacancies of HSST shall be ascertained in order to determine, whether the HSST (junior) is to be appointed or HSA/UPSA is to be appointed or a direct recruit candidate is to be appointed. The principle that filling up of vacancies shall be as per situation on the date of occurrence of vacancies is an accepted position, in order to avert the possible discrimination and arbitrariness in preferring one candidate to another.” Herein, the case of the Manager is that Usha Kumari failed to produce documents in support of her qualification on 18/11/2011. No attempt was made by the Manager to ascertain the manner in which appointment has to be made based on the dictum laid down by this Court **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:11:-** in **Ajithakumari's** case ( _supra_ ). The Manager has not made any exercise to find out who were qualified as on the date of occurrence of vacancy. It is only in the absence of candidates among High School Assistants, appointment from direct recruitment can be made, as per the Special Rules. Had any exercises been made by the Manager to find out who were eligible as on the date of occurrence of vacancies, necessarily, Usha Kumari would have the opportunity to produce all the documents. Having not done so, the Manager cannot take now advantage of his own default to state that Usha Kumari failed to produce the documents to evidence that as on 06/08/2011 she was qualified. It has to be noted, the case of the Manager/selection committee is that Usha Kumari failed to produce the documents evidencing her qualification along with the application on 18/11/2011 and rejection was not on the ground that she did not have the qualification as on the date of occurrence of vacancy. This is all the more relevant because in order to consider the candidature of a direct recruitee, necessarily, a finding has to be made by the Manager that as on the date of occurrence of vacancy, there are no candidates from among High School Assistants. Therefore, merely because Usha Kumari did not produce documents on the date of selection to show that she has qualification as on 06/08/2011, she cannot be denied appointment, as the fact remains that **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:12:-** she has qualification as on the date of occurrence of vacancy. This also assumes so much importance in this matter as the Manager, even before ascertaining whether there are qualified candidates among High School Assistants, invited applications for direct recruitment on 06/11/2011. It is also to be noted that selection is only on the basis of seniority-cumsuitability and there is no assessment of comparative merits. Therefore, role of selection committee is only to ensure whether principles of senioritycum-suitability has been followed. It was obligatory on the part of the Manager to ascertain whether qualified hands were available or not, as on 06/08/2011, especially, in the facts and circumstances of this case that posts were newly created with retrospective effect. I am of the view Usha Kumari is having qualification as on the date of occurrence of vacancy and she cannot be denied appointment as HSST (Computer Science). 10. In the light of the above, I am of the view, Usha Kumari is entitled to succeed. Therefore, Manager ought to have appointed Usha Kumari in the place of Divya Ramachandran. In the result, Ext.P8 produced in W.P.(C).No.5637/2012 approving the appointment of Divya Ramachandran is quashed and, consequently, there shall be a direction to the Manger to appoint Usha Kumari in the post of HSST (Computer Science) in RPM HSS, Panagattiri, Palakkad. ## **W.P.(C).Nos.5637/2012, 13106/2012 & 13995/2012** ## **-:13:-** 11. The writ petition filed by Divya Ramachandran as W.P.(C). No.13106/2012 is liable to be dismissed in view of the judgment in W.P.(C). No.5637/2012. 12. W.P.(C).No.13995/2012 filed by other teachers whose approval of appointment has been delayed due to pendency of the interim order passed in W.P.(C).No.5637/2012 shall be considered in the light of the judgment in W.P.(C).No.5637/2012. W.P.(C).No.13995/2012 is, therefore, disposed of. The Manager shall issue necessary orders appointing the petitioner-Usha Kumari in W.P.(C).No.5637/2012 within a period of one month. The competent authority shall take necessary steps to approve her appointment within a further period of one month in accordance with law. No costs. ## **Sd/-** ## **A.MUHAMED MUSTAQUE, JUDGE** ms