V. Rajeev vs. Kerala Public Service Commission & State of Kerala & D. Shaji (WP(C).No. 27156 of 2009 (L))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933** **WP(C).No. 27156 of 2009(L)** **----------------------------------** **PETITIONER(S):** **-----------------------** **V.RAJEEV H.S.S.T., GOVERNMENT J.N.M. H.S.S., PUTHUPANAM, PUTHUPANAM POST, VADAKARA KOZHIKODE DIST.** **BY ADV. SRI.M.SASINDRAN** **RESPONDENT(S):** **-------------------------** **1. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, THIRUVANANTHAPURAM.** **2. STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF EDUCATION THIRUVANANTHAPURAM.** **ADDL. 3. D. SHAJI, THUNDUVILA VEEDU, KOTTUKAL, NELLIMOODU.P.O., THIRUVANANTHAPURAM – 695524 [H.S.A.( HINDI), VRINDAVAN HIGH SCHOOL, VLATHANKARA, CHENKAL.P.O., THIRUVANANTHAPURAM - 695132 ].** ## **IS IMPLEADED VIDE ORDER DTD 29/03/2010 IN I.A 3810/2010.** **R1 BY ADV. SRI.P.C.SASIDHARAN, SC. R2 BY GOVERNMENT PLEADER SMT.M.T.SHEEBA. R3 BY SRI.B.RAGUNATHAN SRI.R.SRINATH SRI.M.M.LALBIND** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2011, ALONG WITH WPC NO. 27381 OF 2009 AND WPC NO. 27458 OF 2009 THE COURT ON 20/10/2011 DELIVERED THE FOLLOWING:** **STU** ## **WP(C).No. 27156 of 2009(L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 : COPY OF THE ORDER DTD 18/10/2006, ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE POSTING THE PETITIONER AS H.S.S.T. BASED ON THE PROMOTION ORDER ISSUED BY THE DIRECTOR OF HIGHER SECONDARY EDUCATION.** - **P1(a) : COPY OF THE RELIEVING ORDER ISSUED BY THE PRINCIPAL OF THE SCHOOL.** - **P2 : COPY OF THE SERVICE CERTIFICATE ISSUED BY THE PRINCIPAL, GOVERNMENT J.N.M.H.S.S., PUTHUPANAM DTD 01/08/2009.** - **P3 : COPY OF THE NOTIFICATION ISSUED BY THE PUBLIC SERVICE COMMISSION.** - **P3(a) : COPY OF THE APPLICATION DTD 14/08/2006 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.** - **P4 : COPY OF THE SERVICE CERTIFICATE ISSUED BY THE PRINCIPAL DTD 14/08/2006.** - **P5 : COPY OF THE ADMISSION TICKET ISSUED TO THE PETITIONER FOR PRELIMINARY EXAMINATION.** - **P6 : COPY OF THE ADMISSION TICKET FOR APPEARING FOR THE MAIN EXAMINATION HELD ON 07/06/2008 ISSUED TO THE PETITIONER.** - **P7 : COPY OF THE SHORT LIST PUBLISHED BY THE P.S.C.** - **P8 : COPY OF THE MEMO ISSUED TO THE PETITIONER FOR PARTICIPATING IN THE CERTIFICATE VERRIFICATION PROCESS ON 24/09/2009 AND FOR INTERVIEW 25/09/2009.** - **P9 : COPY OF THE ENDORSEMENT OF REJECTION BY THE P.S.C. ON THE FORM ii PROFORMA DTD 24/09/2009.** - **P10 : COPY OF THE ORDER DTD 05/10/2006 ISSUED BY THE DIRECTOR OF HIGHER SECONDARY EDUCATION.** - **P11 : COPY OF THE LIST OF SECRETARIAT DEPARTMENTS DOWN LOADED FROM OFFICIAL WEB SITE OF THE GOVERNMENT.** ## **RESPONDENT'S EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A TO JUDGE.** **STU** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos.27156/2009-L, 27381/2009-P & 27458/2009-B** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 20th day of October, 2011.** ## **JUDGMENT** All the three writ petitions concern a common question and therefore they are disposed of together. 2. The petitioners applied for appointment to the post of District Educational Officer, notified by the Public Service Commission. The Commission took the view that the petitioners are not entitled to be considered as they became Higher Secondary School Teachers and the selection is confined to teachers coming under the General Education Department. The legality of the same is the issue, therefore, to be decided herein. 3. Heard learned counsel for the petitioners, learned Standing Counsel for the Public Service Commission and learned Government Pleader. 4. It is common case that the petitioners have been appointed as Higher Secondary School Teachers in Government Schools while they were continuing as High School Assistants. The said appointment is by transfer. wpc 27156/2009, etc. 2 ## 5. The qualification for the post of District Educational Officer provided under Rule 5 of the Special Rules is as follows: “District Educational Officer/ 2. By direct (a) Open Market Candidates: Asst. Director (Planning)/ (1) M.A./M.Sc. Degree I or II class from a Asst. Director (Office)/ recognised University; Asst. Secretary (Examination (2) B.Ed. I or II Class, Wing) (b) Training staff f Government and Aided Schools and Assistant Educational Officers; (1) B.A./B.Sc./First or Second Class of a recognised University; (2) First or Second Class B.Ed. degree of a recognised University; and (3) Ten years' approved service as(a) teacher in High or Training School or (b) Assistant Educational Officer or © in any of the above cadres taken together. Note 1 - A first or second class of a B.A./ B.Sc. shall not be insisted for those with a first or second class M.A./M.Sc. A I or II Class B.Ed. degree shall not be insisted in the case of candidates with I or II class M.Ed. degree.” Against item 3, “District Educational Officer”, one of the methods of appointment is by direct recruitment and Note 2 therein reads as follows: “Direct recruitment shall be made from open quota candidates and teaching staff of the Government schools and Aided schools and Assistant Educational Officers. 3 wpc 27156/2009, etc. It is emphasised by the learned counsel for the petitioners that the teaching staff of Government High Schools and aided schools are therefore entitled to submit application. What is required is only 10 years of approved service as teacher in High School or training school. It is therefore submitted that the petitioners have the required service of 10 years. Even though they have been appointed by transfer as HSST, the same has not been confirmed after the completion of the period of probation. Therefore, their lien remains in the post of H.S.A. 6. It is common case that the petitioners have participated in the preliminary test as well as the main examination. They have been included in the short list and have been invited for the interview also. When the certificates were submitted for verification, for the reason that they are working as HSSTs., the applications were rejected. Ext.P9 produced in W.P.(C) No.27156/2009 shows that the rejection is on the reason that the petitioner therein was working as H.S.A. at the time of submitting application and presently working as H.S.S.T. (Economics) and not qualified. Similar reasons have been stated in the other writ petitions also while rejecting their candidature. Learned counsel for the petitioners relied upon a Full Bench decision of this Court in **Balakrishnan Nair v. Ram** wpc 27156/2009, etc. 4 **Mohan Nair** (1998 (1) KLT 766 - FB). It is pointed out that going by the decision of the Full Bench, it can be seen that the petitioners retain their lien in the post of H.S.As. as they have not been confirmed in the post of H.S.S.Ts. Therefore, there is no ineligibility as far as the petitioners are concerned. It is further pointed out that for the purpose of Rule 5 they need only satisfy the requirement that they are members of the teaching staff of the school. No distinction has been made therein between a higher secondary school and a high school. It is therefore submitted that the distinction sought to be drawn cannot be accepted at all. Pursuant to the interim order dated 29.3.2010, they have participated in the interview. 7. The stand taken by the Public Service Commission in their counter affidavit filed in W.P.(C) No.27156/2009 is that the petitioners are not working as H.S.As. at the time of interview. It is pointed out that the candidate should be working under the department concerned in all stages of the selection. Accordingly, it is pleaded that the teachers working in aided High Schools, Government High Schools, etc. and Asst. Educational Officers come under the Education Department, whereas incumbents working as teachers in Higher Secondary Schools come under a different department, viz. Higher Secondary Education Department. The selection is made for filling up of the post of District Educational Officer coming under wpc 27156/2009, etc. 5 the Education Department and therefore the incumbents working as Higher Secondary School Teachers, are not eligible. In the counter affidavit filed by the Government also, the contention raised is the same, that the Higher Secondary Education Department is separate. 8. Hence, the contention raised is that there are two departments under the control of Secretary, General Education Department and the Special Rules will have to be understood in that manner. 9. Learned Standing Counsel for the Public Service Commission, while referring to Rule 8 of KS & SSR and the provisions of the Special rules, contended that rule 8 will be totally inapplicable in the case of the petitioners. My attention was invited to the meaning of the term 'lien' as well as certain definition clauses in Rule 2 of KS & SSR. What is highlighted is that the petitioners have been promoted to the post of HSST and they are in a different service altogether and therefore the question of retaining the lien as H.S.As. does not arise. 10. Evidently, under the Higher Secondary Department, the appointment of HSST is by transfer and it is not by promotion. Apart from that, as held by the Full Bench in **Balakrishnan Nair's case** (1998 (1) KLT 766 - FB) and going by the interpretation of Rule 8 of KS & SSR, their lien as H.S.A. is retained as they have not been confirmed as HSSTs. In 6 wpc 27156/2009, etc. these cases, when some of the petitioners submitted the applications, they were working as H.S.As. By the time the selection process reached the stage of interview, they have been appointed as HSSTs, but have not been confirmed. The petitioner in W.P.(C) No.27381/2009 even though was an HSST, was not confirmed. 11. Apart from that, the distinction sought to be drawn that the departments are different, may not help the respondentss in the light of the specific terms used in the Special Rules, viz. Kerala General Education Service Rules. Note 2 states that “direct recruitment shall be made from open quota candidates and teaching staff of the Government schools and aided schools and Assistant Educational Officers.” Rule 5(2)(b) also provides that “teaching staff of Government and aided schools” and Assistant Educational Officers having the prescribed qualification, can apply. No distinction between higher secondary school or high school is sought to be drawn in the Special Rules and the rules as such have not been amended taking out of its purview teachers from Higher Secondary Schools. Therefore, the teaching staff in various schools are described in general as teachers of Government and aided schools. In that view of the matter, merely because the Higher Secondary School Teachers come under the Higher Secondary Department, it cannot be said that they have ceased to wpc 27156/2009, etc. 7 be teaching staff of Government and aided schools for the purpose of the Special Rules applicable herein. The departments formed are for the better administrative purposes. 12. In the light of a recent decision of a Division Bench of this Court in **P. Sachidanandan and another v. State of Kerala and others** (2011 (2) KLJ 490), the petitioners are entitled to succeed. An identical question was considered wherein this Court was of the view that until the High School Assistants who are promoted as Higher Secondary School Teachers are regularised and confirmed, they will be entitled for promotion and other benefits as H.S.As. Paragraphs 1 and 2 of the above decision reads as follows: “The question raised in the Writ Appeal and the Original Petition is one and the same, that is, whether the High School Teachers promoted and posted on transfer basis to Higher Secondary School as teachers could before declaration of probation and confirmation claim posts of Headmaster, A.E.O. and other higher posts to which they were entitled but for the promotion they opted. We have heard counsel for both sides and also Government Pleader for the State and its agencies. 2. On going through the judgment under appeal, we notice that the learned single Judge only followed the Full Bench judgment wpc 27156/2009, etc. 8 of this Court and another decision of the Supreme Court wherein it is clearly stated that unless probation is declared and service regularised and confirmed, the promoted high school assistants cannot be treated as permanent teachers of Higher Secondary Schools. Both the writ petitioners in the writ petition disposed of by the learned single Judge by the common judgment were not made permanent Higher Secondary School Teachers. Before their regularisation and confirmation as Higher Secondary School Teachers, vacancies are in the very same high school for the post of Headmaster and also for A.E.O. in the area to which they were eligible by virtue of the seniority list of H.S.As. We do not find any ground to interfere with the judgment of the learned single Judge because, the principle is that until the promoted teacher is confirmed and regularised in the Higher Secondary School, he/she is always free to return to the original cadre, that is, high school again as teacher irrespective of whether it is a voluntary act or on account of failure to complete probation successfully in the Higher Secondary School. In other words, lien and service benefits and eligibility for promotion and other benefits as H.S.A. will always be available to the Higher Secondary School Teachers going on transfer posting to Higher Secondary Schools until they are regularised and confirmed in such schools. Admittedly, both the petitioners in the Writ Petition were found to be not made permanent Higher Secondary School Teachers and consequently learned single Judge found them eligible to claim wpc 27156/2009, etc. 9 the higher post to which they were eligible but for the promotion they opted, that is, post of Headmaster in the Higher Secondary School, A.E.O. etc. We, therefore, do not find any merit in this Writ Appeal. Consequently it is dismissed.” Therefore, the Division Bench was of the view that the lien and service benefits and eligibility for promotion and other benefits as H.S.A. will always be available to the Higher Secondary School Teachers going on transfer posting to Higher Secondary Schools until they are regularised and confirmed in such schools. Therefore, the said dictum squarely applies to the facts of this case. Thus, the legal issue raised, is covered in favour of the petitioners. 13. There is no case that the petitioners have been confirmed in the post of H.S.S.T. In this context, learned counsel for the petitioner in W.P. (C) No.27381/2009 submitted that the petitioner therein has been later promoted as Headmaster in high school itself, by Ext.11 order. Obviously, therefore, he was considered as a High School Assistant who had a lien in the erstwhile post of H.S.A. as his promotion to the post of Higher Secondary School Teacher has not been confirmed. 14. In the light of the above, the petitioners are entitled to succeed in the writ petition. The rejection orders impugned in all the writ petitions are 10 wpc 27156/2009, etc. quashed. It is declared that the petitioners are eligible and qualified to be considered as applicants for the post of District Educational Officer. As the petitioners have been interviewed and are liable to be included in the rank list pursuant to the interim order, further actions will be taken for considering them for advice and appointment, in terms of the Rules. The writ petitions are allowed as above. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/** After the pronouncement of the judgment, learned Standing Counsel for the Public Service Commission submitted that this Court may make it clear that the candidates already advised will not be affected by this judgment. It is made clear that the advices and appointments, if any, made will not be affected by the directions issued as per this judgment. ## **(T.R. Ramachandran Nair, Judge.)**