W.P.(C) Nos.20130 of 2022 & 11190 of 2023

W.P.(C)Nos.20130 of 2022 & 11190 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 14[TH] DAY OF MAY 2024 / 24TH VAISAKHA, 1946** **WP(C) NO. 20130 OF 2022** ## **PETITIONER:** **ZUBAIR P. HSST ECONOMICS, PTM HSS, THAZHEKODE, MALAPPURAM-679 352.** **BY ADVS. SRI AUGUSTINE JOSEPH SRI K.S.ROCKEY SRI TONY AUGUSTINE SRI GEORGE RENOY** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**REGIONAL DEPUTY DIRECTOR,**| ||**HIGHER SECONDARY EDUCATION,**| ||**DOWN HILL,**| ||**MALAPPURAM-676 519.**| |**3**|**THE MANAGER,**| ||**PTM HSS, THAZHEKODE,**| ||**MALAPPURAM-679 352.**| |**4**|**SANTHAKUMARI,**| ||**HST ENGLISH, PTM HSS,**| ||**THAZHEKODE, MALAPPURAM-679 352.**| ||**BY ADVS.**| ||**SRI JESUDASAN K X**| ||**SRI P.GOPAL**| ||**SRI.VENUGOPAL, GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.11.2023, ALONG WITH WP(C).11190/2023, THE COURT ON 14.5.2024 DELIVERED THE FOLLOWING:** W.P.(C)Nos.20130 of 2022 & 11190 of 2023 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 14[TH] DAY OF MAY 2024 / 24TH VAISAKHA, 1946 WP(C) NO. 11190 OF 2023** ## **PETITIONER:** **SANTHAKUMARI.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 ADV SRI P.GOPAL** ## **RESPONDENTS:** - **1 DEPARTMENT OF GENERAL EDUCATION REPRESENTED BY ITSSECRETARY, 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** - **4 THE MANAGER PTM HIGHER SECONDARY SCHOOL, THAZHEKODE, MALAPPURAM, PIN - 679352** - **5 ZUBAIR.P HSST ECONOMICS, PTM HIGHER SECONDARY SCHOOL, THAZHEKODE, MALAPPURAM, PIN - 679352** - **SRI.VENUGOPAL, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2023, ALONG WITH WP(C).20130/2022, THE COURT ON 14.5.2024 DELIVERED THE FOLLOWING:** W.P.(C)Nos.20130 of 2022 & 11190 of 2023 3 **“CR"** **T.R. RAVI, J. -------------------------------------------W.P.(C)Nos.20130 of 2022 & 11190 of 2023 -------------------------------------------Dated this the 14th day of May, 2024** ## **JUDGMENT** Both these writ petitions relate to appointment to the post of HSST (Economics) in the PTM Higher Secondary School, Thazhekode, Malappuram. The petitioner in WP(C)No.20130 of 2022 is the 5th respondent in WP(C)No.11190 of 2023 and the petitioner in WP(C)No.11190 of 23 is the 4th respondent in WP(C)No.20130 of 2022 and will hereinafter be referred to as Zubair P. and Santhakumari M., respectively. Both the petitioners in these writ petitions lay a claim for the post. 2. The appointment to the post of HSST (Economics) is governed by Rules 4 and 6 of Chapter XXXII of Kerala Education Rules (KER). Rule 4 speaks of the method of appointment of Higher Secondary School Teachers. As per Sl.No.2(1) of Rule 4, the appointment to the post of HSST can be by transfer from Junior Lecturer under the Management/Higher Secondary School Teacher W.P.(C)Nos.20130 of 2022 & 11190 of 2023 4 (Junior). Sl.No.2(2) says that the appointment can be 'by transfer' from High School Assistants who possess the requisite qualification under the Educational Agency. The petitioners in both these cases are claiming 'by transfer' appointment and the only dispute is regarding the qualification which is dealt with in Rule 6. Sl.No.2(24) of Rule 6 deals with the qualification required for appointment as HSST (Economics), which reads thus; “ **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.<br>No.<br>Category<br>Method of<br>Appointment<br>(1)<br>.<br>(2).<br>(3).<br>(21)<br>.<br>xxxxxxx<br>By Transfer and<br>by direct<br>recruitment<br>(22)<br>.<br>xxxxxxx<br>(23)<br>.<br>xxxxxxx<br>**(24)**<br>**.**<br>**Economics**<br>(25)<br>.<br>xxxxxxx|Qualifications<br>(4).| |---|---| ||**(i) **<br>Master's Degree in the| ||concerned subject with not| ||<br>less than 50% marks from| ||any of the Universities in| ||Kerala or a qualification| ||recognised as equivalent| ||thereto in the respective| ||subject by a University in| ||Kerala.| ||**(ii)**<br>(1) B. Ed. in the| ||concerned subject acquired| ||after a regular course of| |(26)<br>.<br>xxxxxxx|<br>study from any of the| |(27)<br>.<br>xxxxxxx|Universities in Kerala or a| ||qualification recognised as| **(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. W.P.(C)Nos.20130 of 2022 & 11190 of 2023 5 Ed. degree acquired in 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 items (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. 3. Admittedly, the petitioners in both these writ petitions have Post Graduate qualifications in (Economics). Sri Zubair has a B.Ed. in Social Science and Smt. Santhakumari has a B.Ed. qualification in Social Studies. When it comes to the pass in SET, Sri Zubair has passed SET (Malayalam), while Santhakumari has passed SET (Economics). Two questions arise for consideration on the pleadings; (i) whether SET should be in the concerned subject Economics or is it sufficient that the candidate has qualified SET in any subject and (ii) whether Sri Zubair is entitled to exemption from having SET qualification. W.P.(C)Nos.20130 of 2022 & 11190 of 2023 6 4. Heard Sri Augustine Joseph on behalf of the petitioner in W.P.(C)No.20130 of 2022, Sri P.Gopal on behalf of the petitioner in W.P.(C)No.11190 of 2023, Sri Jesudasan K.X. on behalf of the 3rd respondent in W.P.(C)No.20130 of 2022 and Sri Venugopal, Government Pleader on behalf of the official respondents/State. 5. I shall first consider the second question raised. Rule 10 of Chapter XXXII of KER deals with exemption in qualifications of SET. As per Rule 10(4), teachers who have completed 10 years of approved teaching service in the high school level, shall be exempted from passing the State Eligibility Test. The question is whether Zubair is entitled to an exemption. To claim exemption, he should have completed 10 years of approved teaching service at the high school level. Sri Zubair, admittedly, was promoted from the post of UPST and appointed under Rule 43 of Chapter XIVA of the KER as HSST with effect from 15.7.2004. He was appointed as HSST (Economics) on 15.7.2021. At first blush, he has 17 years of service as HST. However, it can be seen from the counter affidavit filed by the 1st respondent that Zubair was on deputation for two years, one month, and 18 days, as a personal staff of the Minister, and since he was not working as HSA during the said period, the W.P.(C)Nos.20130 of 2022 & 11190 of 2023 7 period mentioned above, cannot be treated as HST experience. Further, it is also stated in the counter affidavit that Zubair had availed leave without allowance for 5 years and the said period also cannot be treated as HST service. Thus, a period of 7 years, one month, and 18 days needs to be reduced from the period of 17 years and Zubair would have only 9 years, 10 months, and 14 days of approved teaching service in the high school level. The above averments in the counter affidavit have not been denied by Zubair by filing any reply. In the above circumstances, the only possible conclusion is that Zubair does not have the required 10 years of approved teaching service, entitling him to claim exemption from SET qualification. 6. Regarding the first question as to whether SET qualification should be in the concerned subject, Zubair relied on the judgments in WP(C)No.33337 of 2011 produced as Ext.P3 along with WP(C)No.20130 of 2022, the judgment of the Full Bench of this Court in **Manager, MPVHS School v. Girija [2003 (1) KLT 935]** and the judgment of a Division Bench of this Court in W.A.No.724 of 2014 produced as Ext.P5 along with WP(C)No.20130 of 2022 . 7. Ext.P3 judgment only says that 10 years’ approved W.P.(C)Nos.20130 of 2022 & 11190 of 2023 8 teaching service at the high school level need not be in the particular subject for which appointment is sought. The said judgment would not help Zubair since he does not have 10 years of approved teaching service. The judgment of the Full Bench in **Girija (supra)** and Ext.P5 judgment of the Division Bench, are concerning appointment to the post of HSA/HST. In **Girija** (supra), the Court considered Rule 2(2)(b) of Chapter XXXI KER which deals with qualification for appointment as a language teacher in the high school section. The Full Bench held that as far as the subject Hindi is concerned, there is no necessity for any departure from the requirements for appointment as a teacher for other languages and that there is no requirement that the B.Ed. should be in Hindi. The Court held that a reading of the Rules would show that there is no requirement that B.Ed. degree should be in a particular language or a particular subject. The Division Bench in Ext.P5 judgment also was concerned with a case where a person with B.Ed. English had claimed an appointment for the post of HSA Social Science. Neither the Full Bench nor the Division Bench in Ext.P4, were dealing with a case of appointment under Chapter XXXII and the dictums laid down cannot be applied for more reasons than one. Firstly, Rule 6 of W.P.(C)Nos.20130 of 2022 & 11190 of 2023 9 Chapter XXXII is worded differently from Rule 2 of Chapter XXXI. Secondly, the posts to which the above two rules apply are different. Thirdly, the judgments referred to deal with the requirement of B.Ed qualification in the concerned subject, while as far as Rule 6 is concerned, the Rule specifically says that the B.Ed. should be in the concerned subject, leaving no room for doubt as to the subject in which the training qualification should be. 8. Whether the requirement of SET qualification in the concerned subject, as in the case of B.Ed, should be applied when it comes to the test qualification for appointment to the post of HSST is the question to be considered. The contention is that while prescribing SET as a requirement, the Rule does not say that SET should be in the concerned subject and hence SET in Malayalam can also be considered as a sufficient qualification for appointment to the post of HSST (Economics). I do not think that the dictum laid down by the Full Bench or the Division Bench can be applied when it comes to the SET qualification. SET is a test qualification. Secondly, the conditions for appearing in the SET say that the candidates take the test based on the specialisation at the Post Graduate level. Ext.R4(a) produced along with the counter affidavit of the 4th W.P.(C)Nos.20130 of 2022 & 11190 of 2023 10 respondent in WP(C)No.20130 of 2022 is the prospectus for SET. The scheme of the test as per Ext.R4(a) is extracted below; ## “ **2. Scheme of the Test** . - 2.1 There shall be two papers for the **SET-JULY-2021** **==> picture [37 x 43] intentionally omitted <==** ## **Paper I** Paper I is common for all candidates. It consists of two parts, Part(A) General Knowledge and Part (B) Aptitude in Teaching. **==> picture [37 x 44] intentionally omitted <==** ## **Paper II** Paper II shall be a test based on the subject of specialisation of the candidate at the Post Graduate (PG) Level.” 9. The test is comprised of two papers and paper II is based on the subject for specialisation of the candidate at Post Graduate Level. For SET qualification in Economics, paper II of the test will be in Economics. As can be seen from paragraph 2.2 of Ext.R4(a), SET test is conducted in Economics. The person taking SET in Malayalam would have answered his paper II based on a Post Graduate qualification in Malayalam. Since SET itself is subject-specific, it is immaterial whether or not the Rule says SET in “concerned subject”. Clause 5 of Ext.R4(a) deals with the conditions for eligibility to appear in the test. Clause 5.1 specifically says that the Master’s W.P.(C)Nos.20130 of 2022 & 11190 of 2023 11 Degree should be in the subject concerned with not less than 50% marks or an equivalent and the B.Ed. degree can be in any discipline. So a person taking the test in Economics should have a Master’s Degree in Economics and a person taking the test in Malayalam should have a Master’s degree in Malayalam, with not less than 50% marks. 10. For the reasons stated above, in my opinion, SET can only be in the concerned subject and no other subject. The counter affidavit of the State in these writ petitions also specifically says that the SET must be in Economics and a qualification of SET Malayalam cannot be treated as a qualification for the post of HSST (Economics). The stand of the Government, in my opinion, is legally correct. As far as the qualification of Smt.Santhakumari is concerned, there is no dispute that she has all the required qualifications including SET qualification in Economics. 11. Before parting, I must endorse my appreciation for the help rendered by Sri P.C.Sasidharan as Amicus Curiae. 12. In the result, WP(C)No.20130 of 2022 is dismissed. WP(C)No.11190 of 2023 is allowed and Ext.P2 order dated 15.7.2021 issued by the 4th respondent appointing Sri Zubair P., W.P.(C)Nos.20130 of 2022 & 11190 of 2023 12 the 5th respondent in WP(C)No.11190 of 2023 as HSST (Economics) in the vacancy that arose on 1.6.2021 is quashed. It is declared that the 5th respondent is not qualified for appointment to the post of HSST in Economics in the vacancy that arose on 1.6.2021 in PTM Higher Secondary School, Thazhekode, Malappuram. There will be a direction to respondents 1 to 4 in WP(C)No.11190 of 2023 to consider the claim of Smt. Santhakumari for appointment as HSST (Economics) in the school with effect from 1.6.2021 and grant her appointment with all consequential benefits if she is found entitled. The findings in this judgment regarding the eligibility of Smt.Santhakumari shall also be considered while considering her claim for appointment to the post. Necessary orders shall be issued within two months of the date of receipt of a certified copy of this judgment. Sd/-Sd/- **T.R. RAVI JUDGE** dsn W.P.(C)Nos.20130 of 2022 & 11190 of 2023 13 ## **APPENDIX OF WP(C) 20130/2022** ## **PETITIONER EXHIBITS** **Exhibit P1** **TRUE COPY OF THE APPOINTMENT ORDER DATED 15.7.2021 OF THE PETITIONER.** **Exhibit P2** **Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED 18.12.2021 BEFORE THE 1ST RESPONDENT. Exhibit P3 TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.33337/2011 DATED 17.2.2012. Exhibit P4 TRUE COPY OF THE GOVERNMENT ORDER DATED 18.6.2022. Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 2.6.2014 IN W.A.NO.724/2014.** **RESPONDENT EXHIBITS** **Exhibit R4(a) TRUE COPY OF THE PROSPECTUS ISSUED BY THE LAL BAHADUR SASTHRI CENTRE FOR SCIENCE AND TECHNOLOGY FOR CONDUCTING THE STATE ELIGIBILITY TEST EXAMINATION - JULY - 2021.** **Exhibit R4(b) TRUE COPY OF THE CERTIFICATE TO THE POST GRADUATE DEGREE IN MA (ECONOMICS) DATED 19.3.2004 ISSUED BY THE ANNMALAI UNIVERSITY TO THE 4TH RESPONDENT.** **Exhibit R4(c) TRUE COPY OF THE ELIGIBILITY CERTIFICATE DATED 5.2.2004 ISSUED BY THE UNIVERSITY OF KERALA TO THE 4TH RESPONDENT.** **Exhibit R4(d) TRUE COPY OF THE CERTIFICATE DATED 17.3.2004 ISSUED BY THE GOVERNMENT OF KERALA, DIRECTORATE OF HIGHER SECONDARY EDUCATION. Exhibit R4(e) TRUE COPY OF THE OBJECTION DATED 16.7.2021 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE REGIONAL DEPUTY DIRECTOR, DEPUTY DIRECTORATE OF HIGHER SECONDARY EDUCATION, MALAPPURAM.** W.P.(C)Nos.20130 of 2022 & 11190 of 2023 14 ## **APPENDIX OF WP(C) 11190/2023** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE LETTER DATED 14.7.2021 SUBMITTED BY THE PETITIONER TO THE MANAGER OF THE SCHOOL-4TH RESPONDENT** **Exhibit P2 TRUE COPY OF THE ORDER DATED 15.7.2021 OF THE 4TH RESPONDENT ISSUED TO THE 5TH RESPONDENT** - **Exhibit P3 TRUE COPY OF THEOBJECTION DATED 16.7.2021 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT WITH COPY TO THE RESPONDENTS 1, 2 AND 4** - **Exhibit P4 TRUE COPY OF THEORDER OF THE GOVERNMENT GO(MS)NO.3672/2022/H.EDNDATED 18.6.2022** - **Exhibit P5 TRUE COPY OF THEPROSPECTUS ISSUED BY THE LALBAHADURSASTHRI CENTRE FOR SCIENCE AND TECHNOLOGY (FOR SHORT 'LBS') FOR CONDUCTING THE SET EXAMINATION-JULY-2021 DATED NIL** **Exhibit P6 TRUE COPY OF THECERTIFICATEOF THE PETITIONER IN MA (ECONOMICS) ISSUED BY THE ANNAMALAI UNIVERSITY DATED 19.3.2004 Exhibit P7 TRUE COPY OF THEELIGIBILITY CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA IN FAVOUR OF THE PETITIONER DATED 5.2.2004 Exhibit P8 TRUE COPY OF THEELIGIBILITY CERTIFICATEISSUED BY THE UNIVERSITY OF KERALA IN FAVOUR OF THE PETITIONER DATED 17.3.2004 Exhibit P9 TRUE COPY OF THE LETTER NO.ACD A4/4026/2022/HSE DATED 5.12.2022 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF GO(Rt) NO.4738/23/G.EDN DATED 19.08.2023 ISSUED BY GENERAL EDUCATION DEPARTMENT**