IN THE HIGH COURT OF KERALA AT ERNAKULAM
T.R. RAMACHANDRAN NAIR, J. W.P. (C) No. 33337 of 2011 Dated this the 17th day of February, 2012 Head Note:-
For Petitioner:-
For Respondents:-
J U D G M E N T 1. The competing claims between the petitioner and the sixth respondent for appointment as Higher Secondary School Teacher (Junior) (English) under the school managed by the fifth respondent, is the issue arising for consideration herein. The interpretation of Rule 6(2) of Chapter 32 KER and other Rules also arises for consideration. The petitioner is now working as HSA (English) in the school. Her academic qualifications are B.Sc. (Zoology), B.Ed., in Natural Science and M.A. in English. She is having B.Ed., in English and has passed State Eligibility Test in English also. 2. The petitioner was initially appointed as UPSA on 05-07-1992; promoted as HSA (Natural Science) on 04-08-1994 in a leave vacancy and in a regular vacancy as HSA (Natural Science) on 05-06-1995. Pursuant to the Government Order issued creating separate cadre of HSA (English), she was appointed by category change as HSA (English), as per Ext. P2 order dated 01-11-2003, with effect from 29-01-2004. 3. The qualifications of the sixth respondent are: MA in History, MA in English, B.Ed., in English and SET in history. Her initial appointment is as UPSA on 19-11-1984, promoted as HSA (SS) with effect from 01-06-1987 in which post she is continuing. 4. The Higher Secondary courses were sanctioned in the school in the year 2010-2011. As per the selection procedure prescribed for appointment as HSST Junior (English), the fifth respondent invited applications by notification dated 22-11-2011. An interview was conducted by the selection committee on 10-12-2011. The sixth respondent and one Smt. Bindu, the additional 7th respondent also participated in the interview. When the rank list was published, the sixth respondent was arrayed as rank No. 1, the petitioner as rank No. 2 and Smt. Bindu as rank No. 3. The petitioner contends that the sixth respondent is not having the mandatory qualification of SET in English and she is not working as HSA (English) and therefore is not entitled to get appointment as HSST Junior (English). 5. As far as the issue raised herein is concerned, the Manager, in the counter - affidavit contends that the method of appointment to the category of HSST Junior (English) is by transfer from qualified High School Assistants in the subject concerned. 25% of the total posts shall be filled up by appointment by transfer. It is pointed out that any qualified HSA can be appointed as HSST Junior subject to the selection procedure and the selection is not confined to teachers working as HSA (English) for appointment as HSST Junior (English). It is further pointed out that the sixth respondent is qualified for appointment as HSST Junior (English). She stood first in the interview. She has got more than 10 years approved service as HSA and thus is entitled for exemption from passing SET. 6. Similar is the contention raised by the sixth respondent in her counter - affidavit. The contention of the sixth respondent is that Rule 4 of Chapter32 KER which provides for the method of appointment of Higher Secondary School Teacher (Junior), if applied, it can be seen that a High School Assistant who is qualified for the concerned subject, can get appointment, which is satisfied by the sixth respondent. There is no challenge against the select list also. The sixth respondent being the seniormost qualified person is thus selected and appointed. 7. For considering the points raised by both parties, we will have to refer to the rules which call for interpretation. Rule 4 of Chapter32 KER provides for the method of appointment and it states as follows:
Serial No. (3) is the post of Higher Secondary School Teacher (Junior) and the method of appointment is provided as follows:
R.6 concerns qualifications which reads as follows:
As far as serial No. 2 is concerned, against the posts of HSST and HSST (Junior) in English, the fourth column therein provides for the qualifications as follows:
Exemption from SET is provided under Rule 10, under the heading “Exemption” and sub-rule (4) states as follows:
8. Heard learned counsel for the petitioner Smt. T. B. Remani, Shri N. Manoj Kumar, learned counsel for the fifth respondent, Shri. M. Sajjad, learned counsel for the sixth respondent, Shri. K. Jaju Babu, learned counsel for the additional 7th respondent and Smt. Lowsy A., learned Government Pleader. 9. The contention raised by the learned counsel for the petitioner is that the method of appointment is by transfer from “qualified HSA in the subject concerned.” It is therefore submitted that the subject concerned herein is “English” and the by transfer appointment can only be from qualified HSAs in service in that subject, meaning HSA (English) itself. Petitioner is working as HSA (English) having SET in English, which is the feeder category. My attention was invited to Rule 6 of Chapter32 KER wherein the qualifications are provided. Therein also, what is provided is: (i) Masters Degree in the concerned subject; and (ii) B.Ed. in the concerned subject. Therefore, learned counsel submits that the emphasis given is to the concerned subject and if that be so, HSAs other than HSA English cannot compete for selection. 10. The respondents dispute this contention by stating that if the interpretation of the petitioner is adopted, then the rule will have to be read as “by transfer from qualified HSAs in the “concerned subject”, instead of “subject concerned”. It is pointed out that the words used in Rule 4(3) are “subject concerned” and not “concerned subject”. Therefore, a person for appointment should be qualified in the subject concerned to which appointment is made and herein it is English. By referring to Rule 6 and the qualifications prescribed, learned counsel points out that therein, for by transfer appointment and for direct recruitment, the words “concerned subject” are used after the words “Masters Degree and B.Ed.” Therefore, the person should have the qualification in the concerned subject, being English, herein. 11. The question posed is thus of importance as it will have a bearing on the rights of the parties competing for the selection as HSST. One of the aspects pointed out by the learned counsel for the respondents is that the interpretation placed by them is the correct one, as otherwise item (ii) in Rule 4(3), viz. appointment from UPSA and LPSA will become otiose. Item (ii) against Rule 4(3) reads as follows:
Therein also, in the absence of HSAs, UPSA and LPSA in the subject concerned can be appointed. It is pointed out that as far as UPSA and LPSA are concerned, they are not appointed to any specified subject like English, Maths, etc. This aspect is highlighted in the counter - affidavit filed by the second respondent by pointing out that UPSAs - LPSAs are not teaching either Science, English, Maths or Languages in the school specifically and they are teaching all these subjects. It is pointed out that the words “subject concerned” therefore should get a reasonable interpretation in the light of the object and purport of the rule. 12. I find force in the submissions made by the learned counsel for the party respondents and learned Government Pleader. What is provided under Rule 4, item (3) as against the post of HSST, is appointment by transfer from qualified HSA in the “subject concerned”. 25% of the posts are filled up by the said method and going by Note 1, the said posts shall be filled up on seniority - cum - suitability basis and 75% shall be filled up by direct recruitment. A selection process was undertaken here. If, as contended by the learned counsel for the petitioner, teachers appointed as HSA (English) alone can compete for selection, then the rule would have been framed otherwise. The words “subject concerned” indicate the subject to which the selection is being made, i.e. HSST Junior (English) herein and not the category of post held subject - wise by the HSA who is competing for selection. The manner in which the rules are framed, viz. Rule 4 and Rule 6 are also important. As already noticed, in Rule 4(3) the words used are “subject concerned” and in Rule 6 with regard to qualification, it is Masters Degree or B.Ed., as the case may be of the “concerned subject”. Therefore, the qualification should be in the concerned subject, viz. English itself. The implications are thus clear. 13. As rightly pointed out by the learned counsel for the respondents, as far as UPSAs and LPSAs are concerned, they are not assigned any particular subject for teaching. Therefore, they should be qualified for appointment in the “subject concerned”, that means herein the post of HSST(Junior) (English). If it is not construed in this manner, then Item 2 against Rule 4(3), viz. filling up of the post by UPSA - LPSA cannot be given effect to at all in the absence of qualified hands under item (i), i.e. HSAs. 14. Evidently, therefore, Rule 4(3) can be understood only in one manner, i.e. an HSA should be qualified in the subject concerned to which the appointment is to be made and therefore any HSA in the school who is qualified to teach the subject in terms of the qualification prescribed under Rule 6, can compete for selection. 15. As far as the sixth respondent is concerned, regarding her academic qualification, there is no dispute and she is senior also. Therefore, while considering the method of appointment seniority - cum - suitability is the basic criteria. Then the other contested issue is whether she is having SET in English. Learned counsel for the petitioner points out that to claim exemption under Rule 10(4), the sixth respondent should have 10 years of approved teaching experience as HSA English itself and her tenure of service in any other subject will not help her, whereas learned counsel for the Manager, learned counsel for the sixth respondent and learned Govt. Pleader submit that what is provided under Rule 10(4) is an exemption of a general nature. 16. The rule provides that “teachers who have completed ten years of approved teaching service at the High School level shall be exempted from passing the State Eligibility Test”. What is provided under sub-rule (4) of Rule 10 is that one should have completed 10 years of approved teaching service at the High School level. But it is not specified that it should be in a particular subject to which the appointment is sought for. If the argument of the learned counsel for the petitioner is accepted, then it will require a re - writing of the rules. That method cannot be adopted, obviously, and a literal interpretation of the rule alone is required. If that be so, any teacher who has completed ten years approved teaching service at the High School level, will be exempted from passing the SET. The same is a general exemption, going by the provisions of the rule. It is not as if, as contended by the learned counsel for the petitioner that to claim exemption the sixth respondent should have worked as HSA English itself for 10 years. Therefore, the said contention also cannot be accepted. 17. No other point arises for consideration. There is no challenge against the ranking given in the rank list also. 18. By an interim order dated 16-12-2011, this Court permitted the sixth respondent to join the post subject to further orders to be passed in the writ petition and respondents 2 to 4 were directed not to approve the appoint of the sixth respondent until further orders. The writ petition is therefore dismissed. The proposal for approval of the sixth respondent can be processed by the concerned respondents in accordance with law. No costs. |
