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2000 DIGILAW 111 (KER)

State of Kerala Etc v. M. Geetha Geethanjali Etc

2000-02-18

M.R.HARIHARAN NAIR, P.A.MOHAMMAD

body2000
Judgment :- MOHAMMED, J. The underlying question that arises for decision in this batch of cases is whether the B.Ed. holders are eligible to apply for the post of Lower Primary School (LPS)/Upper Primary School (UPS) Assistants in the Education Department of the State of Kerala. This question has been originally raised in the writ petition, O.P. No. 19187 of 1997 filed by a T.T.C. holder from Pathanamthitta district, inter alia praying for a declaration that B.Ed. as a training qualification is not equivalent to T.T.C. That writ petition was allowed by this Court ordering that B.Ed. holders who are not having T.T.C. and who have been included in the rank list should be deleted from it. It is against the said judgment the Writ Appeal No. 74/99 has been filed by the State of Kerala, the first respondent in the original petition, (we adopt this appeal as the leading case for the purpose of this judgment). Apprehending that the judgment in O.P. No. 19187 of 1997 would generally affect the B.Ed. holders in other districts as well, they filed connected writ appeals after obtaining leave from this Court inasmuch as they were not parties to the said writ petition. The T.T.C. holders indifferent districts have also filed the writ petitions which are being heard along with the writ appeals, challenging the inclusion of B.Ed. holders in the ranked list. The Kerala Public Service Commission issued Ext. P3 notification dated 22-11-1994 inviting applications for selection to the post of L.P.S./U.P.S. Assistants (Malayalam) for Pathanamthitta district. The qualifications prescribed for the post in Ext. P3 are as follows : (1) A pass in S.S.L.C. conducted by the Commissioner for Government Examination, Kerala or its equivalent andA pass in T.T.C. Examination conducted by the Commissioner for Government Examination Kerala or A pass in the Pre-degree Examination with Pedagogy as an elective subject conducted by the University of Kerala or A pass in Basic T.T.C. Examination (Malayalam) conducted by the Madras Government or A pass in Malayalam Vidhwan examination. The petitioner was qualified to apply for the post of U.P.S.A./L.P.S.A. inasmuch as she had passed S.S.L.C. Examination held in March 1990 and T.T.C. Examination held in 1994. She and similar others submitted applications pursuant to Ext. P3 notification. They also appeared for written test held on 25-8-1995 and later a short list was published on 20-9-1996. The petitioner was qualified to apply for the post of U.P.S.A./L.P.S.A. inasmuch as she had passed S.S.L.C. Examination held in March 1990 and T.T.C. Examination held in 1994. She and similar others submitted applications pursuant to Ext. P3 notification. They also appeared for written test held on 25-8-1995 and later a short list was published on 20-9-1996. The petitioner and others appeared for interview on 22-1-1997 and a rank list for Pathanamthitta district was published by the second respondent, Public Service Commission vide Ext. P6. Similar lists were published for other districts also. The petitioner's rank was 210 under the general category in Ext. P6 and she was not appointed. The reason, according to her was that the P.S.C. had entertained applications from B.Ed. holders who do not possess T.T.C. qualification required for the post. She therefore filed representation before the P.S.C. and in reply she was served with Ext. P7 letter dated 30-8-1997 as per which she was informed that P.S.C. had considered the applications from B.Ed holders on the basis of the various orders issued by the High Court and consequent decisions taken by the Government. The petitioner was again informed by P.S.C. vide Ext. P8 letter dated 23-9-1997 that B.Ed degree holders were considered for the appointment to the post of L.P.S./U.P.S. Assistants as per the existing rules and hence her request for appointment could not be complied with. It was in the aforesaid background the petitioner filed the writ petition before this Court.The main prayer contained in the writ petition is to 'declare that B.Ed. as a training qualification is not equivalent to TTC in the matter of appointment of Upper Primary/Lower Primary School Assistants'. There is a further prayer for declaration that a graduate or post-graduate will be eligible to be considered for appointment as U.P./L.P. School Assistants under Rule 3(A) and 4(a) of Chapter XXXI K.E.R. provided they possess any one of the training qualifications prescribed in Rules 3(1) and 4(1) of the Kerala Education Rules. In support of these prayers counsel for the petitioner argued before the learned single Judge that the objectives and methodology of T.T.C. were totally different from that of B.Ed. course. The former is concerned with small children in the age group of 5 to 12 whereas the latter is concerned with grown up children. In support of these prayers counsel for the petitioner argued before the learned single Judge that the objectives and methodology of T.T.C. were totally different from that of B.Ed. course. The former is concerned with small children in the age group of 5 to 12 whereas the latter is concerned with grown up children. Then T.T.C. holders are trained to teach all the subjects prescribed in the primary level. Therefore it was pleaded that in the absence of any stipulation in the notification of B.Ed. as a qualification for the post of L.P.S./U.P.S. Assistants (Malayalam) there was no justification for P.S.C. to entertain applications from B.Ed holders who were not having T.T.C. On the other hand it was pointed out on behalf of the respondents 1 and 2 before the Court that teachers having B.Ed qualification had been appointed as L.P.S./U.P.S. Assistants in Aided School and this Court in Mathew v. State of Kerala, 1992 2 KLT 116 approved the appointment of B.Ed holders as Lower Primary School Assistants. This view taken in this case has been affirmed by the Division Bench in Thulasibhai Amma v. Asst. Educational Officer, 1993 2 KLT 245. By virtue of the judgments of this Court and various Government Orders issued, the counsel for respondents 1 and 2 brought to our notice that the Public Service Commission entertained the applications from B.Ed holders for appointment to the post of L.P.S./U.P.S. Assistants in Government schools.During the pendency of the W.A. 744/99 against the judgment in O.P. No. 19187/97 the appellant, State of Kerala has filed interim petition, C.M.P. No. 3066 of 1999 praying for a direction to the Kerala Public Service Commission to advise candidates included in the ranked list of P.D. teachers available in the various districts of the State for filling up the existing vacancies of P.D. teachers in the primary section from T.T.C. hands and U.P. Section from B.Ed/T.T.C. hands during the academic year 1999-2000. After the hearing this Court by order dated 9th June, 1999 directed the Public Service Commission to advise candidates included in the ranked list for filling up the existing vacancies of P.D. teachers in L.P. section from T.T.C. hands and U.P. section from B.Ed/T.T.C. hands during the academic year 1999-2000 on receipt of fresh requisition from the concerned appointing authorities. After the hearing this Court by order dated 9th June, 1999 directed the Public Service Commission to advise candidates included in the ranked list for filling up the existing vacancies of P.D. teachers in L.P. section from T.T.C. hands and U.P. section from B.Ed/T.T.C. hands during the academic year 1999-2000 on receipt of fresh requisition from the concerned appointing authorities. This Court also made it clear that the said order will be provisional and subject to the final result of the writ appeals pending before this Court. As against the said interim order, though the petitioner flied a Special Leave Petition it was dismissed by the Supreme Court as per order dated 27-9-1999. Now W.A. 744/1997 along with other appeals are coming up before us in view of the order passed by us in C.M.P. No. 3066/99 on 9th June, 1999 directing to post the appeals for hearing. Before we undertake the study of the question of eligibility of B.Ed holders for selection and appointment to the post of L.P.S./U.P.S.A in Government schools, it is necessary to ascertain the relevant rules in that behalf. What we are dealing with in these cases is admittedly the appointment of teachers in Government schools which is outside the purview of 'aided school' as defined in Sections 2(1) or 2(7) of the Kerala Education Act. Chapter XXXI of the Kerala Education Rules framed under Section 36 of the Act relates to the qualifications of private school teachers. As far as the qualifications of teachers in Government schools are concerned, they are prescribed by Government by executive orders. In order to unify the qualifications of Government and aided school teachers, the Government have in consultation with the Kerala Public Service Commission issued G.O. (P) No. 76/80/G. Edn. dated 6-6-1980. By the said G.O. the Government ordered that qualification prescribed in Chapter XXXI for various teaching posts as indicated in the last column of the statement appended to the order will be applicable to the teaching posts in Government schools for future appointments. The relevant portion of the above G.O. is extracted hereunder."GOVERNMENT OF KERALA Abstract General Education-Teaching Posts in Government and Aided Schools- Unification of Qualifications-Orders issued. ---------------------------------------------------------------------- GENERAL EDUCATION (J) DEPARTMENT G.O. (P) No. 76/80G.Edn. Dated, Trivandrum 6th June, 1980 ------------------------------------------------------------------------ Read : 1. Lr. The relevant portion of the above G.O. is extracted hereunder."GOVERNMENT OF KERALA Abstract General Education-Teaching Posts in Government and Aided Schools- Unification of Qualifications-Orders issued. ---------------------------------------------------------------------- GENERAL EDUCATION (J) DEPARTMENT G.O. (P) No. 76/80G.Edn. Dated, Trivandrum 6th June, 1980 ------------------------------------------------------------------------ Read : 1. Lr. No. AII(5) 14875/79/G.Edn dated 2-5-1980 Secretary, Kerala Public Service Commission, Trivandrum Order The qualifications for aided school teachers as laid down in Chapter XXXI Kerala Education Rules have been prescribed in keeping with the modern educational requirements. But the existing qualifications for certain categories of Government School teachers are lower than those prescribed for aided school teachers. Government have for some time, been thinking of unifying the qualifications of Government and aided school teachers. They are accordingly pleaded to orders, in consultation with the Kerala Public Service Commission that the qualifications prescribed in Chapter XXXI for the various teaching posts as indicated in the last column of the statement appended to this order will be applicable to the teaching posts in Government schools for future appointments. These orders will not apply for posts already notified by the Public Service Commission for recruitment. 2. For special teachers coming under Drawing, Sewing etc. Group Diploma/Group Certificate has been prescribed as professional qualifications. Details of the group diploma/group certificate are contained in the circular No. H4-128441/74 dated 17-1-1975 of the Director of Public Instruction, a copy of which is appended. 3. The above orders supersede all the existing orders, prescribing qualifications for Government school teachers.By order of the Governor S. Nagarajan Special Secretary Qualifications of Teaching staff ------------------------------------------------------------------------------- Sl. Category Qualifications Existing for Qualifications prescribed No. Govt. School Teachers for Aided School Teachers (Ch. XXXI K.E.R.) ------------------------------------------------------------------------------- 3. UPSA/LPSA A pass in SSLC Exam. conducted LPSA/UPSA : A pass in SSLC Examn. by the Commissioner for Gover- conducted by the Commissioner nment Examinations, Kerala or for Government Examinations, its equivalent and a pass in Kerala or its equivalent and TTC Examn. conducted by the a pass in TT Examination Commissioner for Government conducted by the Commissioner Examinations, Kerala for Govt. Examns. Kerala (Explanation omitted.) OR A pass in the Pre-degree Examination with Pedagogy as an elective subject conducted by the University of Kerala OR A pass in Basic TTC Examination (Malayalam) conducted by the University of Kerala OR A pass in Basic T.T.C. Examination (Malayalam) conducted by the Madras Government. Examns. Kerala (Explanation omitted.) OR A pass in the Pre-degree Examination with Pedagogy as an elective subject conducted by the University of Kerala OR A pass in Basic TTC Examination (Malayalam) conducted by the University of Kerala OR A pass in Basic T.T.C. Examination (Malayalam) conducted by the Madras Government. (Explanations omitted.) In addition to the above Government order, the Standing Counsel for the Public Service Commission submits that the provisions contained in Rule 10(a)(ii) of the Kerala State & Subordinate Services Rules, 1958 is also relevant in the process of selection and appointment in the case of Government school teachers. The said Rule as amended by the Kerala State and Subordinate Services (Amendment) Rules, 1998 is as follows : 10. Qualifications : (a)(i) The educational or other qualifications, if any, required for a post shall be as specified in the Special Rules applicable to the service in which that post is included or as specified in the executive orders of Government in cases where Special Rules have not been issued for the post/service.(ii) Notwithstanding anything contained in these rules or in the Special Rules, the qualifications recognised by executive orders or standing orders of Government as equivalent to a qualification specified for a post, in the Special Rules or found acceptable by the Commission as per Rule 13(b)(i) of the said rules in cases where acceptance of equivalent qualifications is provided for in the rules and such of those qualifications which presuppose the acquisition of the lower qualification prescribed for the post, shall also be sufficient for the post." From clause (a)(i) what is relevant as far as the present case is concerned is that the educational or other qualifications, if any, required for a post shall be specified in the executive order. Thus the qualifications prescribed to the teaching staff of UPSA/LPSA by the above executive order are the same qualifications prescribed in Ext. P3 notification except to the extent of providing a pass in Malayalam Vidhwan Examination as an additional alternative to the pass of T.T.C. Examination conducted by the Commissioner for Government Examinations, Kerala. As far as training qualifications the candidate shall possess one of the four qualifications specified in Ext. P3. But no equivalent qualification to a pass in T.T.C. is provided in the above order or Ext. P3 notification. As far as training qualifications the candidate shall possess one of the four qualifications specified in Ext. P3. But no equivalent qualification to a pass in T.T.C. is provided in the above order or Ext. P3 notification. But as far as the educational qualification of a pass in S.S.L.C. Examination conducted by the Commissioner for Government Examinations, its equivalent qualification is allowed. The Kerala State and Subordinate Services Rules, 1958 have been framed by the Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Rule 10(a)(i) of the said Rules mandates that educational or other qualifications if any required for a post shall be as specified in the Special Rules applicable to the service in which that post is included or as specified in the executive orders of the Government in cases where special rules have not been issued for the post/service. Clause (ii) of Rule 10(a) as amended starts with a non-obstante clause and hence the rule contained in the K.S. & S.S. Rules or Special Rules, if any will not affect its operation. This provision does not in any manner prohibit the operation of Rule 13 dealing with special qualification. What Rule 10(a)(ii) envisages is that in cases where acceptance of equal qualification is provided for in the rules, the qualification found acceptable by the Commission as per Rule 13(b)(i) shall be sufficient for the post. Likewise such of those qualifications which presuppose the acquisition of the lower qualification prescribed for that post shall be sufficient acceptable qualification as an equivalent qualification. Can the candidate having B.Ed qualification pre-supposes the acquisition of qualification of pass in T.T.C. ? Not necessarily. It depends on the facts of each case. In order to acquire B.Ed qualification a candidate need not have a pass in T.T.C. He can straightaway join for B.Ed course after obtaining the degree. But a B.Ed holder may have a pass in T.T.C. not as a lower qualification but as a training qualification he may have obtained after the pass in S.S.L.C. Therefore, we cannot accept B.Ed qualification as a qualification which presupposes the acquisition of qualification of T.T.C. prescribed for the post.Article 16(1) of the Constitution guarantees equality of opportunity to all citizens in the matter of employment or appointment to any post under the State. The paramount object of this Article is to create a constitutional right to equality of opportunity for employment in public offices. Thus it being a constitutional right the qualification for appointment shall be sufficiently prescribed. In this context we must be able to perceive the prescription of qualification to a post or equivalent qualification is a difficult task. There may be Court judgments governing such qualification. It may also sometimes involve contestable issues. Often the authorities may be compelled to adopt 'acceptable qualifications'. The correctness of such action no doubt shall be tested in the premise of facts involved in each case. In view of the words 'matters relating to employment or appointment' it has been well laid down that the right guaranteed by Art. 16(1) includes the right to make an application for any post. It further guarantees a right to be considered on merits for the post for which an application has been made. (See : Krishan Chander Nayar v. Chairman Central Tractor Organisation, AIR 1962 SC 602, Gazula Dasaratha Rama Rao v. State of A.P., AIR 1961 SC 564. It is true that a candidate does not get any right to the post by merely submitting an application for the post, but a right is accrued in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. (See : P. Mahendran v. State of Karnataka, AIR 1990 SC 405 : (1990 Lab IC 369) at 412). In Subhash Chand Jain v. Delhi Electricity Supply Undertaking, 1979 3 SCC 786 : (1980 Lab IC 1189) at 787) the Supreme Court held thus (at Page 1190; of Lab IC) :-"It is well established law that qualifications for a particular post can be a rational differentia within the meaning of Article 16. It is equally clear that when a qualification has been prescribed for a post, that cannot be obliterated by posting those who do not have that qualification as against those who have that qualification." It is further held in Smt. Swaran Lata v. Union of India, 1979 3 SCC 165 : (1980 Lab IC (NOC) 8) that where a post has been advertised with such qualifications, those qualifications cannot be relaxed in any particular case without fresh advertisement or without changing the rules which are statutory. It is further held that where there are no statutory rules there is nothing to prevent the Government to stipulate certain qualifications in its advertisement or reserving power to relax qualifications in suitable cases. In spite of the inevitable position that flows from the existence of the rights under Art. 16(1) of the Constitution, this Court cannot totally jettison the effectiveness of the judgments of the Courts. Every citizen is presumed to know the law as interpreted by the Courts. While upholding the rights under Art. 16(1) there is a duty on this Court to galvanize the effectiveness of the Court judgments. What we require is ambivalence and every citizen must uphold it while asserting his rights. The learned single Judge while allowing the writ petition observed that the notification specifically mentions the qualification and therefore B.Ed is not a prescribed qualification. That being so, the P.S.C. should not have entertained the applications preferred by B.Ed holders since it was not a prescribed qualification. In support of the said conclusion the learned judge placed reliance on the decision in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, 1990 3 SCC 655. According to the learned Judge, this Court has taken a view that when a particular qualification is prescribed there is no justification in saying that an over-qualified candidate is desirable or required and that when advertisement mentions particular qualification, and if appointments are made in disregard to the same, it amounts to fraud on public. The learned Judge also referred to the following decisions : Shobha Menon v. Public Service Commission, 1994 1 KLT 986; Jayanthi v. P.S.C., 1996 2 KLT S.N. 72; Latha v. P.S.C., 1997 2 KLT 624 : (1998 Lab IC 1364) : Sadananda v. S.B.T., ILR 1996 3 Ker 780; Karnataka P.S.C. v. N. C. Hugar, 1981 1 SLR 469 : (1981 Lab IC 386) and Sujatha v. State of Kerala, 1998 2 KLT 809. The learned Judge finally held that in view of the principles laid down in the aforesaid decisions, B.Ed is not a qualification prescribed and therefore B.Ed holders are ineligible to apply. When the matter is thus considered only in the premise of Ext. P3 notification we cannot say that the learned Judge has committed any error in holding that P.S.C. is not justified in searching for an equivalent or better qualification. When the matter is thus considered only in the premise of Ext. P3 notification we cannot say that the learned Judge has committed any error in holding that P.S.C. is not justified in searching for an equivalent or better qualification. But we have before us other lively and stimulating issues for decision which we prefer to discuss presently.The interpretation given to Rules 3(1) and 4(1) of Chapter XXXI K.E.R. by this Court in Mathew v. State of Kerala, 1992 2 KLT 116; Thulasibhai Amma v. Asst. Educational Officer, 1993 (2) KLT 245 affords new dimension to the qualifications prescribed for appointment to the post of L.P.S.A./U.P.S.A. In fact these decisions were relied on by the Government as well as the P.S.C. for selecting B.Ed holders to the post of L.P.S.As/U.P.S.As. in Government schools as holding equivalent or acceptable qualifications. We have therefore to unveil the backdrop of Mathew's case (supra) and relevant provisions in Chapter XXXI of K.E.R. which contains qualifications of private school teachers. Rule 3. Upper Primary School : (1) Upper Primary School Assistant A pass in S.S.L.C. Examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent and T.T.C. Examination conducted by the Commissioner for Government Examinations, Kerala (Or a pass in Pre-degree Examination with Pedagogy as an elective subject conducted by the University of Kerala) (or a pass in Basic T.T.C. Examination (Malayalam) conducted by the Madras Government) 3A. Notwithstanding anything contained in sub-rule (1) of Rule 3 the Educational Officer shall be competent to approve the appointments of candidates possessing higher qualification provided they have any of the training qualification approved by the Government of Kerala. 4. Lower Primary School 1. Lower Primary School Assistant A pass in S.S.L.C. Examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent and a pass in T.T.C. Examination conducted by the Commissioner for Government Examinations, Kerala (or a pass in the Pre-Degree Examination with Pedagogy as an elective subject conducted by the University of Kerala)(or A pass in Basic T.T.C. Examination (Malayalam) conducted by the Madras Government). 4A. Notwithstanding anything contained in sub-rule (1) of Rule 4 the Educational Officer shall be competent to approve appointments of candidates possessing higher qualifications provided they have any of the training qualifications approved by the Government of Kerala. 4A. Notwithstanding anything contained in sub-rule (1) of Rule 4 the Educational Officer shall be competent to approve appointments of candidates possessing higher qualifications provided they have any of the training qualifications approved by the Government of Kerala. From Rules 3A and 4A it is crystal clear that the Educational Officer shall be competent to approve appointments of candidates possessing higher qualifications provided they have any of the training qualifications approved by the Government of Kerala. In view of these provisions the Educational Officers approved the appointment of B.Ed. holders as L.P.S.As. and U.P.S.As on the strength that it is a higher qualification to T.T.C. and also a training qualification recognised by the Government. However, the Government issued notification, G.O.Ms. 65/88/G.Edn dated 5-3-1988 which is as follows : "GOVERNMENT OF KERALA Abstract General Education - Training qualification for Lower Primary School Assistant and Upper Primary School Assistant - Teachers Training Course insisted - Orders issued. ---------------------------------------------------------------------- GENERAL EDUCATION(J) DEPARTMENT G.O. MS 65/88/G. Edn. Trivandrum, Dated 5-3-1988 ---------------------------------------------------------------------- Read : Petition from the Siksha Sastri Students, Kendriya Sanskritha Vidyapeetam, Guruvayoor Order In sub-rule 3A to Rule 3 and sub-rule 4A to Rule 4 in Chapter XXXI Kerala Education Rules, it is stated that notwithstanding anything contained in sub-rule (1) of Rule 3, and in sub-rule (1) of Rule 3, and in sub-rule (1) of Rule 4 respectively, the Educational Officer shall be competent to approve the appointments of candidates possessing higher qualification, provided they have any of the training qualifications approved by Government of Kerala. As per sub-rule (1) to Rule 3 in Chapter XXXI K.E.R, the qualifications prescribed for the post of Lower Primary School Assistant and Upper Primary School Assistant in aided schools are a pass in S.S.L.C. Examination conducted by Commissioner for Government Examination, Kerala or its equivalent and a pass in Teachers Training Certificate Examination - conducted by Commissioner for Government Examination, Kerala. Now it is found that Educational Officers are approving the appointment of B.Ed holders as Lower Primary School Assistants and Upper Primary School Assistants, on the assumption that it is a higher qualification to T.T.C. Government feel that it is not proper to appoint B.Ed holders as Lower Primary School Assistants, as they are not possessing the required basic training qualification, i.e. T.T.C. to teach in L.P. Schools and Upper Primary Schools. 2. 2. Therefore Government hereby clarify that persons possessing the basic qualification as teaching i.e. T.T.C. will alone be considered for appointment as Lower Primary School Assistants and Upper Primary School Assistants in aided schools even if they are having B.Ed qualification. By order of the Governor K. L. N. RAO Commissioner & Secretary to Govt." This is Ext. P1 order referred to in the judgment in Mathew's case 1992 (2) KLT 116. This order was stayed by the Government as per Ext. P2 order referred to in the said judgment which provides that the position prevailing before the date of Ext. P1 G.O. will continue in operation. By Ext. P2 order the Government have virtually directed the Educational Officers to approve the appointments of those who have not secured T.T.C. qualification. Though Ext. P2 order was challenged in Mathew's case the learned judge held that the Government have correctly stayed Ext. P1 order by issuing Ext. P2. In Mathew's case supra the Court observed thus : "As per Rr. 3(1) and 4(1) of Chapter XXXI K.E.R., T.T.C. is one of the basic qualifications for one to get appointment as L.P.S.A. or U.P.S.A. Rules 3A and 4A allow the Education Officers to approve appointments of candidates possessing higher qualifications provided they have any of the training qualifications approved by Government of Kerala. The training qualification approved by Government of Kerala contemplated by Rules 3A and 4A can only be training qualifications other than T.T.C. Government have nowhere stated that B.Ed is not a higher training Qualification than T.T.C. Nor have they got a case that B.Ed is not a training qualification. In this circumstance under Rr. 3A and 4A of Chapter XXXI K.E.R. Educational Authorities are to approve the appointments of B.Ed degree holders as Lower Primary School Assistants and Upper Primary School Assistants. The contrary view taken by the Government in Ext. P1 is against the provisions contained in Rules 3A and 4A."A Division Bench of this Court in Thulasibhai Amma v. Asst. Educational Officer, 1993 (2) KLT 245 affirmed the decision in Mathew's case and observed thus : "It will be noticed that in so far as the respondent-writ petitioner is concerned, she is a graduate and holds B.Ed degree and has passed Account Test (Lower). Educational Officer, 1993 (2) KLT 245 affirmed the decision in Mathew's case and observed thus : "It will be noticed that in so far as the respondent-writ petitioner is concerned, she is a graduate and holds B.Ed degree and has passed Account Test (Lower). What is now contended by the appellant before us is that the respondent-writ petitioner is not having TTC issued by the Board of Public Examination, for that is required under Rule 45A of Chapter XIV-A of the K.E.R. In Mathew v. State of Kerala, 1992 (2) KLT 116, one of us (Sreedharan, J) had occasion to deal with the above question. It was held in that case on a consideration of Rules 3(1), 3A., 4(1) and 4A of Chapter XXXI of the K.E.R. that educational authorities are bound to approve the appointments of B.Ed degree holders as Lower Primary School Assistants and Upper Primary School Assistants. In view of the above said decision of this Court, we are of the view that the respondent-writ petitioner falls within the latter part of Rule 45A, as she is having an equivalent training qualification prescribed for appointment as primary school Assistant." What is emerged from the above decisions is this : The Government have no case that B.Ed is not a training qualification. On the other hand, B.Ed. training qualification is approved by the Government. It is a higher training qualification than T.T.C. Therefore a person who is having the higher training qualification of B.Ed. is entitled to be appointed as L.P.S.A. or U.P.S.A. in private schools as well as Government schools. When the position thus emerges by the reason of this Court judgments, B.Ed holders cannot be said to be at fault in applying to the post of L.P.S./U.P.S.A. pursuant to Ext. P3 notification. No doubt they are not holding T.T.C. qualification as prescribed in Ext. P3 but their case is that they are having a higher training qualification of B.Ed. They further plead that when candidates with higher qualifications are available, choosing them instead of candidates with inferior qualification is not violation of Art. 14 or 16. (See : Arun Tewari v. Zila Mansavi Shikshak Sangh, AIR 1998 SC 331 : (1998 Lab IC 414)).On behalf of the B.Ed holders reliance was placed on the decision of the Supreme Court dated 16-3-1990 in Civil Appeal Nos. 1730-32/88 (C. K. Sasi and others v. Mathew and others). (See : Arun Tewari v. Zila Mansavi Shikshak Sangh, AIR 1998 SC 331 : (1998 Lab IC 414)).On behalf of the B.Ed holders reliance was placed on the decision of the Supreme Court dated 16-3-1990 in Civil Appeal Nos. 1730-32/88 (C. K. Sasi and others v. Mathew and others). That was a case which arose under the Special Rules for the Kerala Indigenous Medicine Subordinate Service. Rule 5 of the Special Rules prescribed qualifications for appointment to the post of Ayurveda Pharmacist Gr. II. The appellants before the Supreme Court did not possess either of the two qualifications prescribed under Rule 5 of the Special Rules but they had obtained the Diploma in Ayurveda Medicine i.e. D.A.M. (Kerala) as well as Diploma in Pharmacist (Madras). The Kerala Public Service Commission recognised DAM as a qualification equivalent to the qualification prescribed in the Special Rules. The Supreme Court placed reliance on Rule 13(b) of the K.S. & S.S.R. which reveals that the person who possesses either the special qualifications as prescribed by the Special Rules or an equivalent qualification is qualified to be appointed. It may be noticed here that Rule 13(b)(i) provides such other qualification as may be considered to be equivalent to special qualifications or special tests. The executive order dated 6-6-1980 in the present case prescribes the qualifications for appointment to LPSA/UPSA in Government School which is in the nature of Rule 45 of the Special Rules for the Kerala Indigenous Medicine Subordinate Service. The B.Ed holders did not have a pass in TTC examination. The applicability of Rule 13(v) of the K.S. & S.S.R. in the present case is beyond dispute. Therefore even if the executive order does not contain the provision for equivalent qualification, Rule 13(b)(i) can be applied in which case the commission can provide other qualification as may be considered to be equivalent. The Commission has exercised its discretion and ordered that B.Ed qualification is an equivalent qualification as found acceptable in the facts of the present case.The counsel for the writ petitioner has placed reliance on the decision of the Supreme Court in Tripura Sundari Devi's case 1990 (3) SCC 655 in order to project the argument that appointment of B.Ed holders to the post of L.P.S.A/U.P.S.A. is a fraud on the public. In the above decision the Supreme Court has laid down thus : "It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable." This case is clearly distinguishable on facts. The qualification prescribed in the advertisement for the post was a second class degree in M.A. and the respondent held a third class degree in M.A. However, on 27th December 1985 an order was issued wrongly by the appellant appointing her as a post-graduate teacher in Hindi. When the mistake was realised she was not allowed to join the service. Later the Tribunal in appeal allowed her to continue in service. The said order of the Tribunal was set aside by the Supreme Court. In the present case the persons selected are B.Ed holders who possess higher training qualification than T.T.C. They have applied to the post in view of the judgments of this Court referred to above and hence no fraud is involved. The point involved in the present case is a contestable issue and hence there is no question of fraud in appointing B.Ed holders to the post of L.P.S.A./U.P.S.A.We have pointedly noticed the appreciable shift in the stratagem of the Government in making the defence, may be due to agonising social problems involving pulls and pressures arising out of the prevalence of Court judgments and existing practice of approving the appointment of B.Ed holders to the post of L.P.S.A./U.P.S.A. as qualified persons. This is conspicuous from the plea made by the Government for leave to with-draw the Writ Appeal No. 1045 of 1992 filed against the judgment in Mathew's case supra 1992 (2) KLT 116. The said writ appeal was pending when the decision in Tulasibhai Amma's case 1993 (2) KLT 245 was rendered by the Division Bench on 18-6-1993. This is conspicuous from the plea made by the Government for leave to with-draw the Writ Appeal No. 1045 of 1992 filed against the judgment in Mathew's case supra 1992 (2) KLT 116. The said writ appeal was pending when the decision in Tulasibhai Amma's case 1993 (2) KLT 245 was rendered by the Division Bench on 18-6-1993. Now let us understand as to how the Government tackled the issue regarding the appointment of B.Ed holders as L.P.S.A./U.P.S.A. after the judgment of the Division Bench in the above case and this is evident from Ext. R2(a) dated 29-3-1997 produced by the Public Service Commission along with the counter-affidavit filed on 28-7-1998 Ex. R2(a) is reproduced hereunder. "Copy of letter No. 8159/JS/97/G.Edn dated 29-3-1997 from the Secretary to Government, General Education (J) Department, Thiruvananthapuram addressed to the Secretary, Kerala Public Service Commission, Pattom, Thiruvananthapuram-4. Sub : General Education - Appointment of trained graduates as LPSAs - Clarification sought for - reg. Ref : 1. Government Lr. No. 36178/J3/89/G.Edn dated 29-8-1992 2. Your letter No. A. II(4) 21392/89/GW dated 7-2-1997 In inviting a reference to the letter cited, I am directed to inform you as follows : In O.P. No. 4246/88, the High Court held that B.Ed holders can be appointed as LP School teachers and their appointments can be approved. This view was confirmed in W.A. No. 725/93 also.In O.P. No. 9562/93, the High Court held that the appointment of a trained graduate as LPSA can be approved. The writ appeal filed against the judgment in O.P. No. 4246/88 is still pending before the High Court. In the light of the above judgments Government have issued directions to all educational officers to approve the appointment of B.Ed holders as LPSAs and the present position is that B.Ed holders can also be appointed as LPSAs. Yours faithfully, Sd/- K. Somasekharan Nair Additional Secretary, For Secretary to Govt. What we could gather from Ext. R2(a) is that even though the above Writ Appeal was pending the Government have issued directions to all Educational Officers to approve the appointment of B.Ed holders as L.P.S.A. It was further instructed that the position at that time was that B.Ed holders can also be appointed as L.P.S.As. It was on the basis of Ext. R2(a) is that even though the above Writ Appeal was pending the Government have issued directions to all Educational Officers to approve the appointment of B.Ed holders as L.P.S.A. It was further instructed that the position at that time was that B.Ed holders can also be appointed as L.P.S.As. It was on the basis of Ext. R2(a) that the P.S.C. had adopted the B.Ed qualification as equivalent or acceptable qualification to T.T.C. and accordingly selected B.Ed holders also for appointment. The pendency of the W.A. No. 1045 of 1992 was pointed out in the first statement filed on behalf of the State on 18-12-1998. At that time Government did not express their desire to withdraw the said appeal. What they pleaded in the said counter-affidavit is that the trained graduates are also considered for appointment to the post of L.P.S.A. Considering the vast development in the field of Science, Mathematics etc. the syllabus and curriculum for U.P. school classes have undergone fundamental changes. Accordingly trained graduates were also considered for appointment to the post of U.P.S.A. In the writ appeal, W.A. No. 744 of 1999 a specific ground namely, the State has already filed a petition to withdraw W.A. No. 1045 of 1992 has been taken. That means Government have accepted the judgment of the learned single Judge in Mathew's case. Now the position is thus vividly clear. At the time of issuing Ext. P3 the position was different and it remained as a contestable issue for W.A. No. 1045 of 1992 was pending. That may be the reason for not prohibiting B.Ed holders from applying to the post as per the terms of Ext. P3. In the affidavit in support of the prayer to withdraw W.A. No. 1045 of 1992 it has been stated that after considering the entire aspect of the matter Government have decided to withdraw the appeal. This shows that the Government have finally accepted the position that B.Ed holders also can apply to the post of L.P.S.A. and U.P.S.A. in Government schools.No doubt this is a substitution or restyle of policy. Can we restrain the Government from transforming their policy ? Definitely not. The hopes and aspirations of the people, the changing needs of the society, the solution of vexed and complicated problems of the social events are indubitably the functions of the State. Can we restrain the Government from transforming their policy ? Definitely not. The hopes and aspirations of the people, the changing needs of the society, the solution of vexed and complicated problems of the social events are indubitably the functions of the State. The duty of the Court is solving disputes in relation to such problems of the society is paramount and it must function as an agile vibrant arbiter for balancing the conflicting pulls and pressures existing in the society. In this context the following observation of Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137 at 175 is appropriate. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule .............. ............. This is of the very essence of judicial duty." Lord McCluskey said : "Law is a social instrument. It embodies and enforces moral, social, political, cultural and economic choices. It translates these into rules which are intended to realise both ultimate and intermediate social goals." W. Friedmann said in 'Law in a Changing Society' (second edition) thus : "In a democracy, the interplay between social opinion and the law-moulding activities of the state is a more obvious and articulate one .................... Law is a predominant instrument of social engineering in which conflicting pulls of political philosophy operates." Julius Stone in 'Social Dimensions of Law and Justice' observed thus : "Since it is inevitable that appellate Judicial tasks must include the making of choices among alternatives for the time being open by law, citizens and officials may often find that the law turns out to be different, at the time of suit, from what it seemed to be when they acted. This may occur whenever a new ruling develops or clarifies the law, but the ensuing difficulties are greatest when the old rule relied on is directly overruled by the instant decision".We may have to adopt the higher law principle based on social vicissitudes considered in the framework of natural justice. It may otherwise be said social justice according to law. "At no period of legal history and in no other legal system has the law, and through it social life, been moulded with greater effect by higher law principles based on a specific interpretation of natural justice than American law. It may otherwise be said social justice according to law. "At no period of legal history and in no other legal system has the law, and through it social life, been moulded with greater effect by higher law principles based on a specific interpretation of natural justice than American law. Compared with English law there has been infinitely wider scope for judicial control of positive law." (W. Friedmann in Legal Theory, Fifth Edition) In the affidavit in support of the petition, C.M.P. No. 3066 of 1999 the definite case is that the Government have taken a policy decision on 2-6-1999 to appoint only persons having T.T.C. qualification in L.P. schools and B.Ed holders can also be appointed in U.P. schools along with T.T.C. hands. The Government further stated in the affidavit that necessary orders in this regard would be issued after complying with the procedural formalities like consultation with P.S.C. etc. When the writ appeal came up for hearing on 18-1-2000 this Court re-called the submission made by the State earlier and directed the appellant to file an affidavit detailing the steps taken by the Government to give effect to the policy decision taken on 2-6-1999. Pursuant to that the Government have filed an affidavit on 19-1-2000 wherein it is stated thus : "It is submitted that based on the policy decision taken by the Government on 2-6-1999 as stated above the Government addressed the P.S.C. as per letter No. 41188/J3/98G. Edn dated 16-6-1999 proposing to amend the qualifications of L.P.S.As. and U.P.S.As and it has been specifically stated therein the details of the amendment proposed. It has been requested therein to arrange to place the matter before the Commission and to intimate their advise to Government at the earliest .................... After the disposal of the SLP the matter was again taken up with the Public Service Commission on 18-12-1999 requesting to forward the advice of the Commission at an early date. Further action for giving effect to the policy decision taken by the Government on 2-6-1999 can be implemented after obtaining the advice of the P.S.C."In view of the above perceptible reposition of the Governmental policy the relief claimed in the writ appeal has to be moulded in exercise of our appellate judicial powers. Further action for giving effect to the policy decision taken by the Government on 2-6-1999 can be implemented after obtaining the advice of the P.S.C."In view of the above perceptible reposition of the Governmental policy the relief claimed in the writ appeal has to be moulded in exercise of our appellate judicial powers. Obviously because of the shift in policy the Government now plead that they may be allowed to withdraw the Writ Appeal No. 1045 of 1992 against the judgment in Mathew's case (supra). The Government Pleader submitted that in view of the provisions contained in Order XXIII, Rule 1 of the Code of Civil Procedure the appellant may be allowed to abandon their claim against the decision in Mathew's case. But this provision may not be strictly applicable to a proceeding under Article 226 of the Constitution in view of the Explanation to Section 141 of the C.P.C. added by the Amendment Act of 1976. At the same time the inherent power of the Court to pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court is always preserved and protected. The State had filed the said petition obviously invoking the provisions contained in Section 151, C.P.C. In a case where during the pendency of an appeal against the order in writ petition allowing it, the writ petitioner himself made a request that he would like to withdraw the petition on ground of public inconvenience, it was held by the Supreme Court that the High Court was not justified in not considering the withdrawal application and not passing orders thereon and allowing the appeal on merits. (See : Shaik Husain & Sons v. M. G. Kannaiah, AIR 1981 SC 1725. In the present case, in view of the shift in policy, the Government have accepted the decision in Mathew's case in the larger interest of the society, though they have filed an appeal against it initially. In such situation this Court cannot disallow the prayer made by them for withdrawal of the writ appeal. Therefore, we allow the petition, C.M.P. No. 1792 of 1999, to withdraw the Writ Appeal No. 1045 of 1992. The writ appeal is accordingly dismissed as withdrawn. In such situation this Court cannot disallow the prayer made by them for withdrawal of the writ appeal. Therefore, we allow the petition, C.M.P. No. 1792 of 1999, to withdraw the Writ Appeal No. 1045 of 1992. The writ appeal is accordingly dismissed as withdrawn. In view of the said withdrawal, O.P. No. 10062/92 where a similar question is involved is liable to be allowed.When the Writ Appeal No. 1045 of 1992 is thus subducted the judgment in Mathew's case has become final and conclusive. The said decision as affirmed by the Division Bench in Thulasibhai's case was holding the field with effect from 30th June, 1992. Ext. P3 notification was issued by the P.S.C. on 22-11-1994. We cannot assume that the P.S.C. or the Government was unfamiliar or unacquainted with the above Court judgment. On the contrary they had the full knowledge about the judgment and the applications filed by B.Ed holders were accepted by the P.S.C. on the ground that B.Ed qualification is an equivalent or acceptable training qualification. As also the T.T.C. holders in the State are cognisant of the situation that ensues from the judgment. No person can plead that the Court judgment has created prejudice or unfairness to him. 'Actus curiae memirum gravabit'. An act of the Court shall prejudice no man. This is the well-acclaimed rule. Had the gamut of the present exercise been circumscribed within the purview of Ext. P3 notification, we would not have much role to play. But when Ext. P3 is understood and interpreted within the framework of judgments in Mathew's case and Thulasibhai's case our exercise no doubt takes a new turn taking within its compass the disenrolling the Writ Appeal and transition of governmental policy regarding the qualifications required for appointment. The direction in the impugned judgment dated 25-1-1999 to cancel the advice list was stayed by this Court on 23-3-1999. Again this Court by an interim order directed the P.S.C. to advise candidates included in the rank list. The question is whether we should invalidate such appointments already made on the basis of a rigid interpretation to Ext. P3. Invalidation of the appointments at this distance of time no doubt will unsettle not only the entire family life of the appointees but whole working system adopted in the schools. If the appointments are not validated they have to face termination from service. P3. Invalidation of the appointments at this distance of time no doubt will unsettle not only the entire family life of the appointees but whole working system adopted in the schools. If the appointments are not validated they have to face termination from service. We therefore in the exercise of our expansive horizon as discussed hereinbefore refrain ourself from upsetting the appointments already made in paramount consideration of larger interest of social good.Notwithstanding the above, we have to advert to a forceful submission made by the Government Pleader and counsel for P.S.C. and B.Ed holders that non-impleadment of affected parties in the writ petition would totally nullify the judgment under appeal. In Prabodh Verma v. State of Uttar Pradesh, AIR 1985 SC 167 : (1985 Lab IC 1196) the Supreme Court held thus : "A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large." (See also : Jose Dhanapaul v. Thomas, 1996 3 SCC 587.) In this context it was pointed out that the learned single Judge had invalidated the appointment of B.Ed holders and directed the P.S.C. to cancel the advice list without impleading the affected parties. It can be seen that the writ petition has been filed only by one of the teachers in Pathanamthitta district. Ext. P3 refers to the vacancies in six districts and it is alleged that B.Ed holders in those districts are also affected. From the impugned judgment it is evident that the respondents impleaded are only the State and P.S.C. There is some controversy as to whether the writ petition had been filed in a representative capacity under Rule 148 of the High Court Rules. The case of the writ petitioner is that a petition was filed under Rule 148 following the procedure prescribed in that behalf. However, the Government, P.S.C. and B.Ed holders emphatically submit that the procedure had not been complied with and hence impleadment was not made. We need not go into the question any further since we do not propose to reject the writ petition on the ground of non-impleadment of necessary parties. However, the Government, P.S.C. and B.Ed holders emphatically submit that the procedure had not been complied with and hence impleadment was not made. We need not go into the question any further since we do not propose to reject the writ petition on the ground of non-impleadment of necessary parties. The reason is that after the filing of the writ appeal, large number of B.Ed holders in different districts apprehending reversion and termination filed writ appeals after obtaining leave from this Court. The case of all the affected B.Ed holders had been effectively presented before us. Therefore we do not propose to make the writ petitioner out of Court for the reason of non-impleadment of necessary parties in the original petition.In view of the decision taken by the Government on 2-6-1999, T.T.C. holders alone will be appointed to the post of Lower Primary School Assistant. No one is aggrieved by this decision. But the decision to appoint B.Ed holders also to the post of Upper Primary School Assistant according to the writ petitioner and others is disquieting. It is pointed out that B.Ed holders are not trained to give instructions in lower/upper primary classes. The syllabus and curriculum for B.Ed and T.T.C. are different and distinct and hence it is said that B.Ed holders are unfit to conduct classes at the primary level. But we cannot give much credence to this argument. If any special kind of instructions are required in primary classes as alleged by the writ petitioner, it can be provided by arranging in-service courses for the said purpose. In fact, Ext. P3 itself provides for in-service courses after the appointment. Such in-service course can be modulated so as to make B.Ed holders also to take classes in primary sections. This is the function of the departmental authorities and we only direct the Government to conduct in-service courses for the benefit of B.Ed holders who are appointed to equip themselves to impart instructions to the upper primary classes, if the circumstances found it necessary. The Government have expressed in the affidavit dated 19-1-2000 that they would frame rules in accordance with the decision taken on 2-6-1999 in consultation with the P.S.C. for future appointments of T.T.C. hands only in L.P. Schools and B.Ed holders and T.T.C. hands in U.P. Schools as expeditiously as possible. This is a solemn undertaking which should be implemented with extreme swiftness. This is a solemn undertaking which should be implemented with extreme swiftness. We do not want to keep the position uncertain and vague as far as future appointments are concerned. It is made clear that we have validated the appointments already made for apparent reasons referred to above. We therefore direct the Government to frame rules as above expeditiously, at any rate within a period of three months from today and to regulate all future selection and appointment accordingly.In view of the discussion hereinabove we hold that the rank list published by the P.S.C. for appointment to the post of U.P.S.A./L.P.S.A. (Malayalam) in Pathanamthitta district is valid. The direction given by the learned single Judge in the impugned judgment to the P.S.C. to re-arrange the rank list in Pathanamthitta district and to cancel all the appointments of B.Ed holders to the post of U.P.S.A. and L.P.S.A. is set aside. All the appointments of B.Ed holders so far made to the post of L.P.S.A./U.P.S.A. are declared valid. The judgment of the learned single Judge in O.P. No. 19187 of 1999 is accordingly set aside. In the result - (i) W.A. Nos. 744/99, 753, 787, 788, 789, 790, 791, 793, 805, 806, 842, 843, 844, 845, 846, 847, 848, 877, 866, 864, 865, 867, 769, 1231, 1230, 1167, 1232, 1396, 1525 and 1657 of 1999 and 201/2000 are allowed. (ii) W.A. No. 1045/92 is dismissed as withdrawn. (iii) O.P. Nos. 3725, 3661, 5042, 3680, 4065, 5316, 3192, 5893, 14780 and 4448 of 1999 are dismissed. and (iv) O.P. No. 10062/92 is allowed. Order accordingly.