WA Nos. 769 & 733 of 2024 (Zubair P v Department of General Education; Santakumari M v PTM HSS, Thazhekode)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`&`** ## **`THE HONOURABLE MR. JUSTICE EASWARAN S.`** ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 ``` ``` WA NO. 769 OF 2024 ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.11190 OF 2023 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/RESPONDENT NO.5:`** ``` ZUBAIR.P AGED 48 YEARS HSST ECONOMICS, PTM HIGHER SECONDARY SCHOOL, THAZHEKODE, MALAPPURAM, PIN – 679352 ``` ``` BY ADVS. SOHAIL MOHAMMED ANSARY V.RAJENDRAN (SR.) M.S.MOHAMMED ANSARY AMEENA.R ``` ## **`RESPONDENTS/RESPONDENTS AND PETITIONER:`** - **`1 DEPARTMENT OF GENERAL EDUCATION REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001`** - **`2 THE DIRECTOR HIGHER SECONDARY EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001`** - **`3 REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, DOWN HILL, MALAPPURAM, PIN – 676519`** ``` 4THE MANAGER PTM HIGHER SECONDARY SCHOOL, THAZHEKODE, MALAPPURAM, PIN – 679352 ``` Was 769 &733/2024 2 ``` 5SANTHAKUMARI.M AGED 48 YEARS W/O.RAMADASAN.P, HST (ENGLISH), PTM HIGHER SECONDARY SCHOOL, THAZHEKODE, MALAPPURAM-679 352, RESIDING AT 'PANGUTHODI', ANAMANGAD P.O, MALAPPURAM DISTRICT,, PIN – 679357 ``` ``` BY ADVS. SAJI KURIACHAN V.A MUHAMMED M.SAJJAD(K/335/1997) T.K VIPINDAS, SR.GP ``` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.07.2024, ALONG WITH WA.733/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Was 769 &733/2024 3 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE EASWARAN S. ``` ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 ``` ``` WA NO. 733 OF 2024 ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.20130 OF 2022 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` ZUBAIR P. AGED 48 YEARS HSST ECONOMICS, PTM HSS, THAZHEKODE,MALAPPURAM-679 352., PIN – 679352 ``` ``` BY ADVS. SOHAIL MOHAMMED ANSARY AMEENA.R M.S.MOHAMMED ANSARY V.RAJENDRAN (SR.) ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001., PIN – 695001`** - **`2 REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, DOWN HILL, MALAPPURAM-676 519., PIN – 676519`** - **`3 THE MANAGER, PTM HSS, THAZHEKODE, MALAPPURAM-679 352., PIN - 679352`** - **`4 SANTHAKUMARI,`** Was 769 &733/2024 4 ``` HST ENGLISH, PTM HSS, THAZHEKODE, MALAPPURAM-679 352., PIN – 679352 ``` ``` BY ADVS. V.A MUHAMMED M.SAJJAD(K/335/1997) SAJI KURIACHAN T.K VIPINDAS, SR.GP ``` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.07.2024, ALONG WITH WA.769/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Was 769 &733/2024 5 ## **JUDGMENT** ## **W.A Nos.769 & 733 of 2024** (Dated, this the 18[th] day of July, 2024) ## **Easwaran S., J.** An intriguing question on the requirement of passing the State Eligibility Test which is mandatory for appointment as Higher Secondary School Teacher (in short “H.S.S.T”) has arisen before us. We are called upon to decide as to whether for appointment as H.S.S.T.(Jr) under Chapter XXXII Rule 6.2(24) -Economics, a person is required to pass the State Eligibility Test (in short “S.E.T”) in the concerned subject or not. 2. Succinctly the facts are as follows. Writ Petition (C) No.20130/22 is filed by one Sri.Zubair.P, challenging an order declining to grant approval of his appointment. Writ Petition (C) No.11190/23 was filed by one Santhakumari, a teacher, seeking for implementation of the order challenged by Sri.Zubair. For the sake of convenience, both these writ petitions were disposed of by a common judgment by the learned Single Judge and hence two appeals have been preferred by the appellant. 3. Sri.Zubair the appellant before us was appointed as Higher Secondary School Teacher on 15.07.2021. The appellant had a Was 769 &733/2024 6 Bachelor’s Degree in Economics, a Master’s Degree in Economics and B.Ed in Social Sciences and State Eligibility Test in Malayalam. Smt.Santhakumari.M, the 5[th] respondent in W.A.No.769/2024 (4[th] respondent in W.A.No.733/2024) entered service as an Upper Primary School Assistant on 01.11.1997 and thereafter promoted as High School Assistant (English) from 16.07.2005 onwards. Smt.Santhakumari possesses Degree – B.A.(Economics), Post Graduate Degree – M.A. (Economics) and B.Ed (Social Studies) and a pass in State Eligibility Test (Economics). Instead of appointing Smt.Santhakumari, the Manager appointed Sri.Zubair which led to the litigation before the Educational Authorities. Considering the rival contentions raised by the parties, the 2[nd] respondent by the order impugned found that, the appointment of Sri.Zubair, the appellant before us, cannot be approved and rejected the Revision Petition. Consequently, the Manager was directed to consider the rival claimant Smt.Santhakumari for appointment if she was otherwise eligible. Hence, the two writ petitions were filed, one by the appellant challenging the order and another by the rival claimant seeking for implementation of the said order. The learned Single Judge on considering the questions raised, found that, the petitioner in Writ Petition (C) No.11190/23 was entitled to succeed and accordingly issued direction to the respondents to consider her claim for Was 769 &733/2024 7 appointment as Higher Secondary School Teacher (Economics) by transfer in the school with effect from 01.06.2021 and grant her all consequential benefits, if she is found eligible. 4. We have heard Sri.V.Rajendran, the learned Senior Counsel, assisted by Sri.Sohail Mohammed Ansary, appearing for the appellant and Smt.Jensia P A, learned counsel appearing for the 5[th] respondent in W.A.No.769/2024 (4[th] respondent in W.A.No.733/2024) and the learned Government Pleader appearing for the State. We have considered the rival contentions raised across the bar. 5. The answer to the question posed before us will depend on the interpretation placed on Rule 6 of Chapter XXII KER. While deciding the said issue, we also are required to consider whether the interpretation placed by the learned Single Judge is correct or not? Chapter XXXII Rule 6 of the KER reads 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 the corresponding entry in column (4) there of. Sl. Category Method of Qualifications No. Appointment (1) (2) (3) (4) (21) XXXXXXX By Transfer and **(i)** Master’s Degree in the concerned by direct subject with not less than 50% marks (22) XXXXXXX recruitment from any of the Universities in Kerala Was 769 &733/2024 8 (23) XXXXXXX **(24) Economics** (25) XXXXXXX (26) XXXXXXX (27) XXXXXXX or a qualification recognised as equivalent thereto in the respective subject by a University in Kerala. **(ii)** (1) B.Ed. In the concerned subject 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 persons with B.Ed. Degree in the concerned subject, B.Ed. Degree acquiredin anyone 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 terms (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. (emphasis supplied) Chapter XXXII, Rule 6 deals with the qualifications. Clause 24 deals with the subject Economics. The aforesaid Rule is extracted for the sake of convenience. It is undisputed that, both the petitioners in the writ petitions are Post Graduates in the subject Economics. On the question of obtaining eligibility under SET, the appellant has obtained the said qualification in the subject Malayalam, whereas the 5[th] respondent in W.A.No.769/2024 (4[th] respondent in W.A.No.733/2024) has obtained the Was 769 &733/2024 9 said qualification in Economics. The appellant incidentally raised a question that, he was entitled for an exemption from the said qualification. Before going to the question as to whether the SET qualification should be in the same subject, it must be noted that, though the appellant has 17 years of service, he was on leave without allowance for five (5) years and was on deputation for two years one month and eighteen (18) days as a personal staff of a Minister and therefore, seven years one month and eighteen (18) days had to be deducted from the total service. Once the aforesaid period is deducted, the total service of the appellant comes to nine (9) years, ten (10) months and fourteen (14) days of approved teaching at high school level. Therefore, the claim of the appellant that he is entitled to exemption from obtaining the said qualification must be necessarily rejected. 6. Coming to the most crucial issue that has to be decided by us is whether the said qualification has to be in the same subject or not. The appellant placed reliance on the judgment of the Full Bench of this Court in **Manager, MPVHS School v. Girija [2003 (1) KLT 935]** along with Ext.P3 and P5 judgments produced along with WP(C) No.20130/2022. Ext.P3 judgment of the learned Single Judge in WP(C) No.33337/2011-N dealt with the question of passing of the State Eligibility Test. This Court was never called upon to consider the Was 769 &733/2024 10 question as to whether the said qualification was required in the concerned subject as well. The point of question to be decided by us is whether the learned Single Judge was justified in interpreting Rule 6 of Chapter XXXII KER to hold that SET must be in the concerned subject by not relying on the judgment of the Full Bench in **Girija (** _Supra_ **).** 7. Before going into the said issue, it will be better to bear in mind the well settled principles of interpretation. If the rule is clear and unambiguous, the intention of the legislature need not be gather with reference to the other rules We must remember that Chapter XXXI Rule 2 of KER deals with appointment of the High School Assistants, whereas Chapter XXXII is concerning the Higher Secondary School Teachers. The judgment of the Full Bench in **Girija (** _Supra_ **)** was concerned with the interpretation of Rule 2 of Chapter XXXI of KER. On a reading of the said Rule, it becomes evident that there is no insistence to obtain B.Ed in the concerned subject for appointment as HSA. However coming to Rule 6.2(24) of Chapter XXXII K.E.R, that is not the case. Therefore, we are of the view that interpretation placed by the Full Bench of this Court in **Girija (** _Supra_ **)** cannot come to the aid of the appellant in this case. Therefore, we find that the learned Single Judge was perfectly justified in finding that the Rule 6 of Chapter XXXII KER is differently worded from Rule 2 of Chapter XXXI KER. It is also Was 769 &733/2024 11 pertinent to note that, the post to which these two Rules apply are also different. 8. It is also advantageous to note that, SET is a mandatory qualification for those teachers, who had not completed ten (10) years of approved teaching experience. Therefore, without acquiring the said qualification, an incumbent cannot aspire for appointment as HSST(Jr). We have already held that the appellant does not have the ten (10) years of teaching service and the finding of the learned Single Judge on that point does not require any interference at all. Therefore, necessarily we must hold that acquisition of SET qualification is certainly mandatory for appointment as HSST(Jr). 9. It is also advantageous to refer to the prospectus issued by the LBS Centre for Science & Technology for the said examinations for the year 2021. A perusal of the prospectus shows that, the scheme of the test was for two papers. Paper-I is common for all candidates, whereas Paper-II is a test based on the subject specialization of the candidates in the Post Graduation (PG) Level. Dealing with Clause 5.1 which provides for the conditions of eligibility, it is pertinent to note that the prospectus specifically mentions that those who have acquired Master’s Degree in the subjects concerned with not less than 50% marks or equivalent grade and B.Ed Degree in any discipline from any one of the Was 769 &733/2024 12 Universities of Kerala are eligible to apply with certain exceptions. A reading of the prospectus would definitely show that, the SET examinations are subject specific. The persons taking SET examination in Malayalam would certainly have two papers based on Post Graduate qualifications. As stated above, Clause 5 of the prospectus specifically mentions the eligibility to appear in the test and the same would require 50% marks or equivalent and B.Ed Degree in any discipline. Therefore, a person taking test in Economics should have a Master’s Degree in Economics and a person taking test in Malayalam should have a Master’s Degree in Malayalam with not less than 50% marks. 10. In this context, it is important to note the stand of the State of Kerala. The State which is the author of the Rule takes a definite stand before the learned Single Judge that SET qualifications must be definitely in Economics and the said qualification in Malayalam cannot be construed as a qualification for appointment as HSST (Economics). When a doubt arises in the minds of the Court while interpreting the statutory rules, definitely the views of the author of the rule making authority could be relied on. We have referred to the stand taken by the State in their counter affidavit only to support our findings that, the author of the Rules themselves have clarified that the requirement to pass SET is in the concerned subject. Was 769 &733/2024 13 11. In view of the above discussion, we find that the views expressed/ findings of the learned Single Judge is neither perverse nor contrary to the statutes and does not call for any interference in exercise of the powers conferred in these intra-court appeals. Accordingly, the appeals fail and the same are dismissed. No order as to costs. **Sd/-** **AMIT RAWAL, JUDGE** **Sd/-** **EASWARAN S., JUDGE** MSA Was 769 &733/2024 14 ## **`APPENDIX OF WA 733/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1TRUE COPY OF GOVERNMENT LETTER DATED 8/1/2021 ```