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1999 DIGILAW 29 (KER)

Basheer v. State of Kerala

1999-01-15

A.R.LAKSHMANAN, K.NARAYANA KURUP

body1999
Judgment :- AR. Lakshmanan, J. Heard Mr. K. Gopalakrishna Kurup for appellant and Mr. Alexander Thomas, Government Pleader for respondents. 2. The unsuccessful petitioner is the appellant in this appeal. He challenged Ext. P1 dated 26.12.1995 rejecting his application on the ground that B. P. Ed, of Bangalore University is not an approved qualification for the post of PET and therefore, his appointment was rejected. Under Ext. P3 it is clearly stated that under the G.O. (Rt) 4066/86/G.Edn. dated 18.11.1986 it was ordered that the appointments of the Madras and Mysore physical education certificate holders and B. P.E d, and M. P.E d, holders who took the course after June 1978 made in aided schools during the academic year 1983-84 will be approved as fully qualified from the date of their appointments and all re-appointments of such candidates who have got prior approved service in any aided schools will also be approved as fully qualified. In G.O. (MS) 78/87/G.Edn. dated. 31.1.1987 the Government have recognised the certificate in physical education of Karnataka and Tamil Nadu States as an alternative qualification for appointment as Physical Education Teachers in aided schools in the State with effect from 1984-85. When a few B. P.E d/M. P.E d, degree holders who have secured appointments aided schools after 1983-84 came to the notice of Government that their appointments have not been approved, a representation was made. They have represented that they were unware that these qualifications were not approved for appointment in aided schools when they were appointed and requested that they possess a superior qualification and therefore, their appointments should be approved. Government of Kerala, on examination of the matter in detail, passed G.O. (MS) 26/91/G.Edn. dated. 21.2.1991 and ordered that as a concession, the appointments of Physical Education Teachers possessing B. P. Ed./M. P.E d. already made till the end of academic year 1989-90 in the aided schools will be approved as fully qualified from the date of their appointments and their re-appointments will also be approved as fully qualified and fresh appointments of B.P.Ed./M .P. Ed. holders made from 1990-91 will not be approved. This G.O. was challenged in the Original Petition by the appellant/ petitioner. 3. Government filed a detailed counter opposing the Original Petition and submitted that in view of the policy decision of the Government Ext. holders made from 1990-91 will not be approved. This G.O. was challenged in the Original Petition by the appellant/ petitioner. 3. Government filed a detailed counter opposing the Original Petition and submitted that in view of the policy decision of the Government Ext. F3 cannot be quashed and that a declaration as prayed for by the appellants cannot be granted since the appellants are not eligible for appointment for Physical Education Teachers in aided schools after 1990. 4. K.S. Radhakrishnan, J. on a consideration of the papers placed before him came to the conclusion that the Government is right in restricting the concession till 1989-90 and that the appellant in the instant case was appointed in the year 1992 when there was no concession and that a mere fact that the appellant obtained a degree is not a ground for insisting approval of appointment of the appellant in the year 1992 when the policy formulated by the Government was in force. Learned Judge dismissed the writ petition on the ground that no legal right of the appellant/ petitioner has been infringed by the denial of appointment. The very same point was urged before us by the learned counsel for the appellant. We are of the opinion that the appeal has no merits. It is the specific stand of the Government that Physical Education Certificate holders passed out from the Physical Education Colleges in Kerala State have demanded that the qualifications of other States may not be recognised for appointment as Physical Education Teachers in the Schools in Kerala State and since there is no dearth of certificate holders in physical education who pass out from the institution in the State of Kerala the qualification of BY Ed, and MY Ed, secured from other States were not recognised as an alternative/equivalent/sufficient qualification for appointment as Physical Education Teachers in the U.P. High Schools in Kerala State. It is also submitted that the appointments of B. P.E d, holders were approved as under qualified till 31.3.1989. The appointments made during the period 1980-81 to 1983-84 were approved as fully qualified and the appointments made under 1983-84 have not been approved. The appointment of Physical Education Teachers who are certificate holders in Tamil Nadu and Karnataka State were approved on an yearly basis only and these qualifications were declared as alternative qualifications from 1984-85 onwards vide G.O.(MS) No. 78/87/G.Edn. dated 31.3.1987. The appointment of Physical Education Teachers who are certificate holders in Tamil Nadu and Karnataka State were approved on an yearly basis only and these qualifications were declared as alternative qualifications from 1984-85 onwards vide G.O.(MS) No. 78/87/G.Edn. dated 31.3.1987. The circumstances under which Government have issued Ext. P3 order has also been explained in the counter affidavit by the State. It was not the intention of the Government at any point of time to grant concessions to those who passed B.P. Ed /M.P. Ed, from Universities outside the State and therefore Ext. P3 was issued considering the pathetic plight of these teachers and on a systematic consideration, Government ordered the approval of the appointments with a specific direction to all concerned that the fresh appointments made after 1990-91 will not be approved. We are therefore of the opinion that there is no arbitrariness on the part of the Government and Ext. P3 Government Order extends concession as an act of grace to the teachers who were already appointed and so it does not mean that it should be extended to others beyond 1989-90 as well. We are also of the opinion that if persons from other States are also considered for appointment, it will adversely affect the employment opportunities of the diploma holders in Kerala State. It is stated that in this State courses for B.P. Ed, is being conducted by the Universities besides the said diploma course. In the circumstances diploma/ BY .Ed./ M. P. Ed. holders from other States cannot be considered for appointment if there are qualified hands having the prescribed qualification in the Kerala Education Rules are available in the State. It is also explained that appointments already made after 1984 were since approved on humanitarian grounds respective of the above restrictions. We are of the opinion that securing employment with the un recognised qualification will not justify the appellant's plea. Appointment to the post of Physical Education Teacher is expected to be made by the Managers strictly in accordance with the relevant provisions of the K.E.R. and in view of the fact that Government have not accepted the B P.E d./M.P.Ed . awarded by the Universities outside the State appellant's appointment is not liable to be approved. Appointment to the post of Physical Education Teacher is expected to be made by the Managers strictly in accordance with the relevant provisions of the K.E.R. and in view of the fact that Government have not accepted the B P.E d./M.P.Ed . awarded by the Universities outside the State appellant's appointment is not liable to be approved. In this context, we can safely and usefully rely on the judgment rendered by this Bench in W.A. 701/97 dated 5.1.1999 wherein it was held as follows: "It is by now well settled that the courts will be loathe to interfere with the decisions taken by academic bodies unless it is shown that the decision is perverse, arbitrary or patently illegal or malafide. In the absence of any such allegation it would normally be wise and safe for the courts to leave the decision of academic matters to experts and academic bodies who are more familiar with the problems they face than the courts generally can be. Unless it is established that there is clear violation of norms or rules governing the subject, it will not be a proper exercise of jurisdiction of this court to interfere in academic matters. The view we are taking is fortified by a Division Bench of this Court in the decision reported in Sugunan v. University of Kerala (1984 KLT 1086 DB) wherein it has been held that except in cases where a clear violation of the norms, statutory or otherwise, is discernible, the courts will not interfere with the assessment made by expert academic bodies, if such assessment is bonafide". The appellant has no case that the decision arrived at by the respondent State is vitiated by malafides. Therefore, we dismiss the Writ Appeal and confirm the judgment of the learned single judge however with liberty reserved to the appellant to approach the Government and the Government will consider the same and pass appropriate orders.