W.P.(C) Nos. 24792 of 2012 and 28865 of 2012; The Manager, PTM Higher Secondary School, Thazhekode West, Perinthalmanna, Malappuram District and SMT. Saheera Parayil v The State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941** ## **WP(C).No.24792 OF 2012(Y)** ## **PETITIONER/S:** - **1 THE MANAGER, PTM HIGHER SECONDARY SCHOOL, THAZHEKODE WEST, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN-679 352.** - **2 SMT. SAHEERA PARAYIL, HSA(ENGLISH), PTM HIGHER SECONDARY SCHOOL, THAZHEKODE WEST, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN-679 352. BY ADV. SRI.R.K.MURALEEDHARAN** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA, REP. BY SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM, PIN-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-695 001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM-676 505.** - **4 THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM-676 505.** - **5 T. SHAJI MUHAMMAD MUSTHAFA, UPSA, PTM HIGHER SECONDARY SCHOOL, THAZHEKODE WEST, PERINTHALMANNA, MALAPPURAM DISTRICT-679 352.** **BY ADVS. R1 TO R4 - SRI. JESTIN MATHEW, GOVERNMENT PLEADER R5 - SRI.V.A.MUHAMMED SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-11-2019, ALONG WITH WP(C).28865/2012(G), THE COURT ON 11-12-2019 DELIVERED THE FOLLOWING:** **W.P.(C)Nos.24792 & 28865 of 2012 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941** ## **WP(C).No.28865 OF 2012** ## **PETITIONER/S:** **T. SHAJI MOHAMMED MUSTHAFA, S/O. MOHAMMED MASTER, AGED 37 YEARS, UPPER PRIMARY SCHOOL ASSISTANT, P.T.M HIGHER SECONDARY SCHOOL, THAZHEKODE, MALAPPURAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED** ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS,**| ||**JAGATHY, THIRUVANANTHAPURAM - 695 014.**| |**3**|**THE DEPUTY DIRECTOR OF EDUCATION,**| ||**DOWN HILL, MALAPPURAM - 676 505.**| |**4**|**THE DISTRICT EDUCATIONAL OFFICER,**| ||**MALAPPURAM DISTRICT - 676 505.**| |**5**|**THE MANAGER,**| ||**P.T.M HIGHER SECONDARY SCHOOL, THAZHEKODE WEST,**| ||**MALAPPURAM DISTRICT - 679 352.**| |**6**|**THE HEADMASTER,**| ||**P.T.M. HIGHER SECONDARY SCHOOL, THAZHEKODE WEST,**| ||**MALAPPURAM DISTRICT - 679 352.**| |**7**|**SMT. SAHEERA PARAYIL**| ||**HIGH SCHOOL ASSISTANT (ENGLISH),**| ||**P.T.M HIGHER SECONDARY SCHOOL, THAZHEKODE WEST,**| ||**MALAPPURAM DISTRICT - 679 352.**| **W.P.(C)Nos.24792 & 28865 of 2012 3** **BY ADVS. R1 TO R4 - SRI. JESTIN MATHEW, GOVERNMENT PLEADER R5 - SRI. R.K. MURALIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-11-2019, ALONG WITH WP(C).24792/2012(Y), THE COURT ON 11-12-2019 DELIVERED THE FOLLOWING:** **W.P.(C)Nos.24792 & 28865 of 2012 4** ## **JUDGMENT** The captioned writ petitions are materially connected in respect of a Government Order dated 20.09.2012 in a revision filed under Rule 92 of Chapter XIV-A Kerala Education Rules (K.E.R). Therefore, I heard them together and propose to deliver this common judgment. 2. W.P.(C) No. 24792 of 2012 is filed by the Manager of PTM Higher Secondary School and the H.S.A (English) teacher who are aggrieved by Ext.P6 Government Order specified above, produced in the said writ petition. Whereas, W.P.(C) No.28865 of 2012 is filed by the 5[th] respondent in the connected writ petition, who is the beneficiary of the above specified Government Order substantially. Brief Material facts for the disposal of W.P.(C) No.24792 of 2012 are as follows: 3. The 2[nd] petitioner is a graduate in English with B.Ed in English, who was appointed in the vacancy arose in the school on promotion of a teacher with effect from 01.06.2007 onwards, evident from Ext.P1 order of appointment. The appointment was not approved by the District Educational Officer, Malappuram, i.e., ## **W.P.(C)Nos.24792 & 28865 of 2012 5** the 4[th] respondent. The appeal preferred before the Deputy Director of Education was also declined. However, in the revision filed by the Manager before the Director of Public Instruction, i.e., the 2[nd] respondent, it was found that there were no protected teachers available in H.S.A (English) in the District, and thereupon, directed the District Educational Officer to approve the appointment and the appointment was approved with effect from 01.06.2007 onwards as per the proceedings dated 28.01.2010. 4. The 5[th] respondent who was working as Upper Primary School Assistant (U.P.S.A) submitted a representation to the District Educational Officer, through proper channel, stating that he is entitled to be appointed to the post in which the 2[nd] petitioner was appointed, since he is having the qualification of M.A. (English) and B.Ed (Social Science) and hence entitled to be promoted as H.S.A (English) in the vacancy arose with effect from 01.06.2007 onwards. The representation was rejected by the 4[th] respondent as per Ext.P2 dated 18.08.2007. The appeal preferred by the 5[th] respondent before the Deputy Director of Education was also rejected, evident from Ext.P4. Further appeal to the Director of Public Instruction **W.P.(C)Nos.24792 & 28865 of 2012 6** was rejected as per Ext.P5. However, in the revision filed before the Government, it was allowed as per Ext.P6 order dated 20.09.2012, which is under challenge in this writ petition. 5. W.P.(C) No.28865 of 2012 is filed by the 5[th] respondent in the other writ petition, seeking to quash the Government Order to the extent it is granting only notional appointment as H.S.A (English) on and with effect from 01.06.2007 and declining monetary benefits from that date, and for other related reliefs. The basic contention advanced by the petitioner in the said writ petition is that, when the vacancy arose on 01.06.2007 due to the promotion of one N.P. Purushothaman, H.S.A as Headmaster, petitioner possessed the required qualification and he was the seniormost claimant for the post since no Rule 51A claimant under Chapter XIV-A K.E.R was available, the Manager ought to have appointed the petitioner the only Rule 43 claimant under the aforesaid Chapter against that vacancy. Therefore, according to the petitioner therein, the notional benefits alone given by the Government Order from 01.06.2007 cannot be sustained under law. **W.P.(C)Nos.24792 & 28865 of 2012 7** 6. Separate counter affidavits are filed by the Government in the aforesaid writ petitions, justifying the stand adopted by the Government. 7. I have heard respective counsel appearing for the petitioners and the learned Government Pleader, and perused the pleadings and the documents on record. 8. The sole question to be considered is, whether any manner of interference is warranted to the Government Order dated 20.09.2012. The Government have examined the matter after hearing the respective parties and their counsel. According to the Government, Sri. Shaji Mohammed Mustafa, who is the 5[th] respondent in W.P.(C) No.24792 of 2012 is a rightful Rule 43 claimant for the post, since he had approved service in the U.P.S.A cadre with effect from 20.08.1998 in the school. At the time of occurrence of vacancy, he has the qualification of B.A. (Economics), B.Ed (Social Science), M.A. (Economics), M.A. (Sociology) and M.A. (English). As per Rule 2(2) of Chapter XXXI K.E.R., the qualification for H.S.A (English) is a degree in English language and Literature and B.Ed/BT/LT with English as optional subjects. The B.Ed/BT/LT with English as optional subject conferred or recognised by the Universities in Kerala. However, the rule ## **W.P.(C)Nos.24792 & 28865 of 2012 8** specifies that, in the absence of those with B.Ed/BT/LT with English as optional subject, the B.Ed/BT/LT in any other subject conferred or recognized by the Universities in Kerala will be considered. The Post Graduate degree in the subject or language concerned is considered as an alternative qualification of degree in such subject or language. 9. Therefore, according to the Government, Sri. Shaji Mohammed Mustafa has M.A. in English and B.Ed in Social Science, and since there were no other 43 claimants in the school with B.A. (English) with effect from 01.06.2007, he was the rightful candidate for the post of H.S.A (English) at that time. But the Manager appointed Smt. Saheera Parayil as H.S.A (English), the 2[nd] petitioner in W.P.(C) No.24792 of 2012, while Sri. Shaji Mohammed Mustafa was fully qualified for the post of H.S.A (English) from the date of occurrence of vacancy i.e., 01.06.2007. It is also declared by the Government that as per Rule 43, Chapter XIV-A K.E.R., the right of the claimant is automatic and hence Sri. Shaji Mohammed Mustafa was the rightful candidate to be appointed to the post of H.S.A (English) with effect from the occurrence of vacancy. However, the Manager blatantly violated the said rule and directly appointed ## **W.P.(C)Nos.24792 & 28865 of 2012 9** Smt. Saheera Parayil from the open market. It was under the said circumstances, Government directed the District Educational Officer, Malappuram to promote Sri. Shaji Mohammed Mustafa as H.S.A (English) notionally in the school with effect from the date of occurrence of vacancy, i.e., 01.06.2007. 10. The question to be considered is basically dependent upon Rule 2(2)(x), Chapter XXXI K.E.R, dealing with High School Assistant (English). Chapter XXXI deals with qualifications of Private School Teachers. Rule 2(2)(x) prescribes the following qualifications for H.S.A (English) as the law stood then: (i) A degree in English language and literature; and (ii) B.Ed./B.T./L.T. with English as optional subject, conferred or recognised by the Universities in Kerala; (iii) In the absence of those with qualification in item (ii) above, candidates with B.Ed/B.T/L.T in any other subject, conferred or recognised by the Universities in Kerala will be considered. A proviso is added to the said provision, as per the Gazette notification dated 23.04.2003 with effect from 22.08.1987, which read thus: **W.P.(C)Nos.24792 & 28865 of 2012 10** _“Provided that a post graduate degree in the subject or language concerned shall be considered as an alternative qualification of degree in such subject or language concerned for appointments as High School Assistant (Subject) and High School Assistant (Language), as the case may be”._ 11. The sum and substance of the case put forth by the Manager as well as Smt. Saheera Parayil is that, Sri. Shaji Mohammed Mustafa did not have the degree in English language and literature and he had only B.A. (Economics) and B.Ed. with Social Studies as optional subject conferred or recognised by the Universities in Kerala. It is an admitted fact that Sri. Shaji Mohammed Mustafa did not have the degree in English language and literature. But he had B.Ed with Social Studies as optional subject and M.A. in English, and that will confer a right to the said person to stake a claim to the post of H.S.A (English) on 01.06.2007 as the law stood then. Therefore, it is clear that, item (iii) of sub-clause (x) was a clear substitute to item (ii) above, and a degree in English language and literature is not a mandatory requirement, if a teacher possesses the Post Graduate degree in the subject or language concerned in accordance with the proviso thereto. ## **W.P.(C)Nos.24792 & 28865 of 2012 11** 12. So much so, consequent to the introduction of the proviso to rule 2(2)(x) specified above, Sri. Shaji Mohammed Mustafa became a qualified person, and it is to be noted that the said proviso was published in the Gazette on 23.04.2003, and has come into force on and with effect from 22.08.1987. Which thus means, Sri. Shaji Mohammed Mustafa had the alternative qualification in accordance with law when the vacancy arose. Therefore, taking into account the provisions of law, it can be seen that Sri. Shaji Mohammed Mustafa was a qualified person to acquire the post of H.S.A (English) on and with effect from 01.06.2007. This I say because, even though a basic degree in English language and literature is a mandatory requirement for appointment as H.S.A (English) as per Rule 2(2)(x)(i) Chapter XXXI along with item (ii) or item (iii) of sub-rule 2, since he had B.Ed with Social Studies, which is an optional qualification as per item (iii) of clause (x) of sub-rule 2 along with M.A. in English, protected under the proviso, he was fully qualified to be appointed. It is also equally correct that sub-clause (iii) of clause (x) was omitted later as per G.O.(P)No.381/2012/G.Edn. dated 30.11.2012 with effect from 05.01.2009. Which thus means, from the ## **W.P.(C)Nos.24792 & 28865 of 2012 12** date of the deletion coming into force, B.Ed/BT/LT with English as optional subject became mandatory. But the said deletion is adopted much after the vacancy occurred on 01.06.2007. Therefore, it is clear that, Sri. Shaji Mohammed Mustafa was a qualified person as is claimed by him, and in my considered opinion, the stand adopted by the educational authorities, right from the District Educational Officer, and up to the Director of Public Instruction were not in accordance with law, and the Government was right in allowing the revision as per the impugned order in question, holding that Sri. Shaji Mohammed Mustafa was qualified as on 01.06.2007. 13. Even though learned counsel appearing for the Manager has invited my attention to a Government Order dated 19.07.2005, specifying that those aspiring for the post of H.S.A (English) should have degree in English with B.Ed in English, I am of the considered opinion that, the said order is against the provisions of clause (x) of Rule 2(2) of Chapter XXXI K.E.R., and therefore, it has no sustenance under law. So much so, Government is vested with powers to issue executive orders under Article 162 of the Constitution, only if there are no guiding provisions under law to tackle any **W.P.(C)Nos.24792 & 28865 of 2012 13** specific situation. So also, the judgment pointed out by the learned counsel in ' _**D.V.M.N.N.M. Higher Secondary School v. Secretary to Government**_ ' [2009 (3) KLT 488] has no bearing to the issue since the question considered therein was in respect of existing High School Assistants in the school holding Degree in English and B.Ed degree with English as optional subject vis-a-vis a person with alternate qualifications namely M.A. in English and B.Ed in Natural Science. However, in the case at hand, it is by and between a person qualified to be appointed as a H.S.A and a person directly recruited from open market. Above all, it is clearly gatherable that Sri. Shaji Mohammed Mustafa is a Post Graduate in English and he has other degree and Master Degrees and therefore, it cannot be said that, his appointment would be detrimental to the students, as is contended by learned counsel for the Manager. Therefore, the petitioners in W.P.(C) No.24792 of 2012, i.e., the Manager as well as Smt. Saheera Parayil are not entitled to any relief as claimed in the writ petition. Accordingly, the said writ petition is dismissed and there will be a consequential direction to promote the 5[th] respondent as H.S.A (English) from ## **W.P.(C)Nos.24792 & 28865 of 2012 14** 01.06.2007, notionally. However, I am of the view, since Smt. Saheera Parayil continued in the post and secured, financial benefits, and in order to avoid further complexities, the findings in the Government order in question that Sri. Shaji Mohammed Mustafa is only entitled to notional appointment from 01.06.2007 is found to be substantially correct, fair and reasonable. Therefore, I am of the view, W.P.(C) No.28865 of 2012 filed by Shaji Mohammed Mustafa has also no sustenance and accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **W.P.(C)Nos.24792 & 28865 of 2012 15** ## **APPENDIX OF WP(C) 24792/2012** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/2007.** - **EXHIBIT P2 A TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 18/08/2007.** - **EXHIBIT P3 A TRUE COPY OF THE GO(P) 220/2005/G.EDN. DATED 19/07/2005.** - **EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION FROM THE 3RD RESPONDENT DATED 01/10/2007.** - **EXHIBIT P5 A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 14/02/2008.** - **EXHIBIT P6 A TRUE COPY OF THE GO(RT) NO.4431/2012/G.EDN. DATED 20/09/2012.** - **EXHIBIT P7 A TRUE COPY OF THE GO(P) NO.165/2008/G.EDN DATED 19/09/2008.** - **EXHIBIT P8 A TRUE COPY OF THE GO(P) NO.2/2009/G.EDN. DATED 05/01/2009.** - **EXHIBIT P9 A TRUE COPY OF THE GO(MS) NO.149/2003 DATED 06/06/2003.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R5(A) TRUE COPY OF THE HEARING NOTE DATED 27TH APRIL 2012.** **W.P.(C)Nos.24792 & 28865 of 2012 16** ## **APPENDIX OF WP(C) 28865/2012** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF BACHELOR OF ARTS DATED 20/03/1998.** **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF BACHELOR OF EDUCATION DATED 18/08/1999.** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF SET IN ENGLISH DATED 04/07/2007.** **EXHIBIT P4 TRUE COPY OF THE ORDER NO.B5-5083/07 DATED 18/08/2007 OF THE 4TH RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE ORDER NO. B2-31216/07 DATED 01/10/2007 OF THE DEPUTY DIRECTOR.** **EXHIBIT P6 TRUE COPY OF THE ORDER NO.EM(4)/74187/2007/DPI/K.DIS. DATED 14/02/2008 OF THE 2ND RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE GO(RT) NO.4431/2012/G.EDN. DATED 20/09/2012 OF THE GOVERNMENT.** **RESPONDENTS' EXHIBITS: NIL**