Full Judgment Text
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CASE NO.:
Appeal (civil) 4480 of 2007
PETITIONER:
Valsala Kumari Devi M
RESPONDENT:
Director, Higher Secondary Education & Ors
DATE OF JUDGMENT: 25/09/2007
BENCH:
Tarun Chatterjee & P. Sathasivam
JUDGMENT:
JUDGMENT
CIVIL APPEAL NO. 4480 OF 2007
(Arising out of SLP (C) No. 19296 OF 2004)
P. Sathasivam, J.
1) Leave granted.
2) Valsala Kumari Devi M., High School Assistant, B.A.R.
High School, Bovikanan, Muliyar Post, Kasargode District,
Kerala, who lost her case before the High Court of Kerala
has filed the above appeal.
3) The brief facts, in nutshell, are as follows:
According to the appellant, she was originally working
as High School Assistant (hereinafter referred to as ’HSA’)
(Social Studies) in the B.A.R. Higher Secondary School,
Bovikanan. She was appointed as HSA (Social Studies) with
effect from 13.07.1990 which was duly approved by the
Manager, B.A.R. High School, Bovikanan (respondent No.4
herein). Respondent No.5 herein, namely, M.K.
Aravindakshan Nambiar, entered into service as HSA (Social
Studies) (Kannada Medium) with effect from 20.06.1991.
He is junior to the appellant in the category of HSA.
The appellant passed M.A. (History) in second class
from the University of Mysore. M.A. (History) degree of the
Mysore University has been recognized as equivalent to the
M.A. (History) degree of University of Calicut. A certificate
to that effect has also been issued by the Registrar,
University of Calicut certifying that M.A. (History) Degree of
the Mysore University is recognized as equivalent to M.A.
(History) Degree of the University of Calicut. She has been
awarded B.A. degree by the University of Calicut having
been duly certified to have passed in Economics main and
Political Science, Indian History as subsidiaries in the year
1980. She has also been awarded the degree of Bachelor of
Education (B.Ed) in English and History subjects by the
Karnataka University in recognition of the fulfillment of the
requirements for the said degree and according to her, she
passed the examination in April, 1981 in First Class. B.Ed.
degree of the University of Karnataka has been recognized
as equivalent to the B.Ed. degree of the University of Calicut
and a certificate to that effect has been issued to the
appellant by the Registrar of the University of Calicut. She
has also passed the Master of Arts (English) degree
examination held in December, 2002 from the Annamalai
University and she was placed in Second Class. She has
also passed the State Eligibility Test (SET) in History
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subject in June, 2000 and the Commissioner of Entrance
Examinations has certified that the appellant has passed
the SET prescribed as one of the qualifications for
appointment as Higher Secondary School Teacher, in short
HSST.
4) The Government issued Notification prescribing the
method of appointment for the post of Higher Secondary
School Teachers. The minimum qualification prescribed in
the Government Order for HSSTs is Second Class Master’s
Degree in the concerned subject, with B.Ed., for the time
being till Rules are framed for regular appointment. The
selection will be subject to seniority and suitability. The
appellant having secured second class Master’s degree in
History and B.Ed. degree in English and History is eligible
and qualified for appointment as HSST (History) in
Humanities Group-History, Geography, Economics,
Hindi/Malayalam as per the G.O. dated 27.06.1990.
5) A vacancy of HSST (History) arose in the B.A.R.
Higher Secondary School, Bovikanan during the academic
year 2000-01. The appellant and the 5th respondent applied
for appointment by promotion to the above said post. As
per G.O. dated 13.05.1998, 25% of vacancies in the post of
HSST in the Government Higher Secondary Schools and
Aided Higher Secondary Schools will be reserved for
appointment from qualified High School Assistants and
Primary School Teachers. It provides that the teachers
appointed from General Education Subordinate Service will
be treated as appointment by promotion and they will be
full-time teachers irrespective of the periods to be taught.
However, the remaining 75% vacancies earmarked for direct
recruitment in the Aided Higher Secondary Schools will be
done by the Management by a Staff Selection Committee.
According to the appellant, in the case of appointment by
promotion of the teachers from the General Education
Subordinate Service as HSST, the Staff Selection Committee
does not have any role and the same shall be made based
on seniority of HSAs who possess the prescribed
qualification for appointment as HSST.
6) It is the grievance of the appellant that the 4th
respondent \026 the Manager, overlooking the seniority and
eligibility of the appellant, appointed 5th respondent as
HSST (Humanities). Challenging the same, the appellant
filed O.P. No. 22902 of 2000 before the High Court of Kerala
which was disposed of by order dated 10.8.2000 directing
the Director, Higher Secondary Education,
Thiruvanthapuram, Kerala (respondent No.1 herein), to
consider and pass order on the representation made by the
appellant within a period of two months. Pursuant to the
said direction, she was called upon to appear for an
interview fixed for 30.03.2001. The appellant appeared for
the interview and produced all the original certificates to
prove her qualifications and eligibility. However, she was
informed by letter dated 05.04.2001 of the Manager, B.A.R.
High School, Bovikanan (respondent No.4) that she was not
selected for the post of HSST (History). Aggrieved by her
non-selection for promotion as HSST, the appellant filed
O.P. No. 13710 of 2001 which was disposed of by order
dated 26.02.2003 directing the Director, B.A.R. High
School, Bovikanan, to consider the grievance of the
appellant after affording her an opportunity of being heard.
Pursuant to the said direction, the appellant submitted a
fresh representation and finally the earlier order was once
again reiterated upholding the appointment of the 5th
respondent. The said order was challenged by the appellant
by filing W.P. (C) No. 21069 of 2003. The said writ petition
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was finally heard along with W.P. (C) No. 15674 of 2004
filed by the 5th respondent seeking for approval of his
appointment and payment of salary. The above said writ
petitions were jointly heard and W.P. (C) No. 21069 of 2003
was dismissed by judgment dated 22.6.2004 and Writ
Petition (C) No. 15674 of 2004 was disposed of by directing
the concerned respondents to approve the appointment of
5th respondent and to disburse his salary within two
months from the date of production of a copy of the
judgment. Being aggrieved by the above judgment, the
appellant preferred an appeal before the Division Bench of
the High Court of Kerala in W.A. No. 1265 of 2004 on
various grounds. By the impugned order dated 12.07.2004,
the Division Bench after finding that the selection shall be
made based on seniority and suitability upheld the decision
of the Selection Committee selecting the 5th respondent
confirmed the order of the learned single Judge and
dismissed the writ appeal filed by the appellant.
Questioning these orders, the present appeal has been
preferred before this Court.
7) We heard Mr. Romy Chacko, learned counsel,
appearing for the appellant and Mr. A. Raghunath, Mr. G.
Prakash and Mr. M.P. Vinod, learned counsel appearing for
the respondents.
8) The following questions arise for consideration in
this appeal:
(i) Whether the selection of 5th respondent for the post
of Higher Secondary School Teacher was made ignoring
the criteria of seniority and suitability envisaged under
G.O. (MS) No. 138/90/G.Edn. dated 27.06.1990?
(ii) Whether proficiency in Kannada a criteria for
appointment by promotion for the post of Higher
Secondary School Teacher in the absence of any such
stipulation in the Government Order dated 27.6.1990
more so when the medium of instruction in Higher
Secondary Schools is English?
(iii) Whether the Staff Selection Committee was
competent to make selection for appointment by
promotion to General Education Subordinate
Service when the power conferred on Staff Selection
Committee is restricted to selection by direct
recruitment alone?
(iv) Whether the expression "suitability" envisaged
under G.O. dated 27.06.1990 means suitability in
relation to qualification and requisite experience or
comparative assessment of suitability?
(v) Whether the Staff Selection Committee was justified
in acting on the dictates of the Parent Teacher
Association of the School rather than the criteria
provided under the G.O. dated 27.6.1990?
(vi) Whether the High Court was justified in upholding
the selection of 5th respondent in view of the
admitted fact that the appellant was senior to him
as High School Assistant?
In view of the fact that all the issues referred to above are
interconnected, they are being considered and disposed of
by the following judgment:
8) The subject relates to the appointment/selection for
the post of Higher Secondary School Teacher in History.
Before considering the merits of the claim made by the
appellant as well as by the 5th respondent, it is desirable to
refer to the relevant Government Orders issued by the
Government of Kerala. In G.O. (MS) No. 138/90/G.Edn.
dated 27.06.1990, the General Education (HSE)
Department issued a Notification prescribing certain
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conditions for appointment of teachers for Plus Two Higher
Secondary Course. The relevant clauses of the Government
Order are as follows:
"1\005\005\005............................................................
2\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005..
3\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.
4. The issues relating to the implementation of the
Plus Two Higher Secondary Course were examined in
detail and discussions were held with representatives
of all concerned. After careful consideration of all
aspects of the matter Government have decided to
introduce the Plus Two Course in selected schools in
1990-91. Government are pleased to issue the
following further instructions in the matter:-
(i)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
(ii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005..
(iii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.
(iv)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.
(v) The medium of instruction will be English.
(vi)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
(vii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.
(viii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
(ix)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
(x)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
(xi)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
(xii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.
Teachers:- The minimum qualifications for the higher
secondary schools teachers will be a second class Master’s
Degree in the concerned subject, with B.Ed. for the time
being till Rules are framed for regular appointment. The
teachers will be initially appointed on the basis of these
qualifications. The selection will be subject to seniority and
suitability. If sufficient number of qualified hands are not
available for appointment as teachers, candidates may be
recruited through the Employment Exchange.
5\005\005\005\005\005\005\005\005\005\005\005\005.
6\005\005\005\005\005\005\005\005\005\005\005\005.
7\005\005\005\005\005\005\005\005\005\005\005\005
8\005\005\005\005\005\005\005\005\005\005\005\005\005.."
The relevant clauses of G.O.(Ms) No. 162/98/G.Edn. dated
13.5.1998 issued by the General Education (T) Department
read as under:
"1\005\005\005\005\005\005\005\005\005\005..
2. The posts of Higher Secondary School teachers in
Government Higher Secondary Schools and Aided Higher
Secondary Schools will be filled up as follows:
i. 25% vacancies will be reserved for appointment from
qualified High School Assistants and Primary School
Teachers.
ii. The remaining 75% of posts in Government Schools will
be filled up by direct recruitment through the Public Service
Commission\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005
\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005\005\005\005
iii. Appointments to the 75% vacancies earmarked for direct
recruitment in the Aided Higher Secondary Schools will be
done by the management. If qualified teachers are not
available for appointment as mentioned in item (i) above,
the management will fill up such vacancies also by direct
recruitment. Selection of candidates for direct recruitment
in Aided Higher Secondary Schools will be done by a Staff
Selection Committee consisting of the Manager or his
representative, the Principal of the School and a
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Government nominee from the panel of officers consisting of
Deputy Director, Education, D.E.O. of the area and DIET
Principal of the District. The management can select a
nominee from among the above officers. The above officers
are permitted to attend the Staff Selection Committee
meeting without further sanction.
3\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005"
9) In view of the above Government Orders, let us consider
the claim of the appellant, the 5th respondent as well as the
decision taken by the Selection Committee and the orders
passed by the High Court. As stated earlier, since the
appellant was appointed as HSA w.e.f. 13.07.1990 and the 5th
respondent only from 20.6.1991, he is junior to the appellant
in the category of HSA. The particulars furnished clearly show
that the appellant possesses the requisite qualification for
being considered for the post of HSST. G.O. dated 27.6.1990
prescribes the minimum qualification for the Higher
Secondary School Teachers as second class Master’s Degree in
the concerned subject with B.Ed. We have already extracted
relevant clauses from the G.O. which make it clear that
medium of instruction will be English. As rightly pointed out
by learned counsel appearing for the appellant, the appellant
having secured second class Master’s degree in History and
B.Ed. Degree in English and History is fully qualified and
eligible for appointment as HSST (History) in Humanities
Group.
9) The Government Order dated 13.5.1998 makes it clear
that 25% of vacancies in the post of HSST in the Government
Higher Secondary Schools and Aided Higher Secondary
Schools will be reserved for appointment from qualified High
School Assistants and Primary School Teachers. It also
prescribes that the remaining 75% vacancies earmarked for
direct recruitment in the Aided Higher Secondary Schools will
be done by the Management and the selection of candidates
for direct recruitment in Aided Higher Secondary Schools will
be done by a Staff Selection Committee.
10) Government Order dated 27.6.1990 makes it clear that
the selection of teachers will be subject to seniority and
suitability and G.O. dated 13.5.1998 specifically prescribes
that the teachers appointed from General Education
Subordinate Service will be treated as appointment by
promotion. As stated earlier, the selection will be subject to
seniority and suitability and there is no dispute that the
appellant is senior to 5th respondent. She is eligible and
qualified for appointment by promotion to HSST. It is not the
case of the Management that she is unsuitable for promotion.
11) The expression "subject to seniority and suitability"
occurring in G.O. dated 27.6.1990 does not mean the
comparative assessment of suitability and it only means the
suitability for the particular post and the suitability is related
to the prescribed qualification and requisite experience. In
view of the distinction between the appointment by promotion
from General Education Subordinate Service and an
appointment to the 75% vacancies ear-marked for direct
recruitment, we are of the view that the finding arrived at by
the Director, Higher Secondary School, Thiruvananthapuram,
Kerala that seniority is not the criterion for ’appointment by
promotion to HSST’ is erroneous and is not in terms of the
Government Orders referred to above. Though in the order, it
is stated that the 5th respondent is more suitable than the
appellant, as rightly pointed out by learned counsel appearing
for the appellant, it has not been shown or indicated the
reasons or grounds for arriving such decision that the 5th
respondent was found more suitable than the appellant for the
post. We are also in agreement with the contention that the
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Director has mechanically accepted the decision of the
Selection Committee that the 5th respondent is more suitable
than the appellant without reference to selection for
appointment by promotion to HSST against 25% quota ear-
marked for qualified High School Assistants. We are of the
view that the Director has committed an illegality in upholding
the selection of the 5th respondent for appointment to the post
of HSST. Further the 5th respondent has been preferred to the
appellant for the reason that his main subject in B.A. is
History which is totally irrelevant for promotion to HSST from
among HSAs. In G.O. dated 27.6.1990 the qualification
prescribed is a second class Master’s Degree in the concerned
subject with B.Ed. It is relevant to point out that the
appellant and the 5th respondent have obtained M.A. Degree
from Mysore University and the 5th respondent took B.Ed with
Social Studies. The other reason given by the Selection
Committee for preferring 5th respondent is that he has
proficiency in English, Kannada and Malayalam whereas the
appellant has proficiency in English and Malayalam. As
rightly pointed out by learned counsel appearing for the
appellant, once the requirement of the prescribed qualification
is satisfied, the selection must be made on the basis of the
seniority and suitability and there is no scope for making
comparison of qualifications or comparative assessment of
suitability. The expression ’suitability’ means that a person to
be appointed shall be legally eligible and ’eligible’ should be
taken to mean ’fit to be chosen’.
12) In such circumstances, we are of the view that it was
improper on the part of the Selection Committee to make
selection taking into account the qualifications which are not
prescribed in the G.Os and by giving weightage to such
qualifications. The Selection Committee has also taken note of
the suggestion of the Parents Teachers Association that
persons having proficiency in Kannada should be preferred
when there is no such condition in the Government Order.
In other words, preference is to be given for proficiency in
Kannada which is not a requisite qualification. In our view,
ignoring the appellant who has been working as HSA in the
very same school and selecting the 5th respondent by giving
weightage for proficiency in Kannada which is not a condition
prescribed in the relevant Govt. orders by the Selection
Committee can not be sustained. It is based on
extraneous/irrelevant considerations.
13) In our view, the learned single Judge as well as the
Division Bench of the High Court on the mis-construction of
two G.Os. dated 27.06.1990 and 13.05.1998 prescribing
qualifications and mode of selection, committed an error in
upholding the selection of 5th respondent when the appellant
being fully qualified as well as senior to 5th respondent as
HSA.
14) Under these circumstances, we allow the appeal and set
aside the order dated 22.6.2004 passed by the learned single
Judge of the High Court in W.P.(C) Nos. 21069/2003 and
15674 of 2004 as well as the order dated 12.7.2004 passed by
the Division Bench of the High Court in W.A. No. 1265 of 2004
confirming the selection of the 5th respondent as HSST.
As a result of the above conclusion, we direct the authorities
to issue appropriate order in favour of the appellant within a
period of four weeks from the date of receipt of this judgment.
No order as to costs.