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2001 DIGILAW 315 (KER)

Sindhu v. Kerala Public Service Commission

2001-06-21

K.K.USHA, KURIAN JOSEPH

body2001
Judgment :- Kurian Joseph, J. For appointment to the post of High School Assistant (Malayalam) in Government Service is it sufficient if a person possesses a basic degree in Malayalam and acquires a training qualification, B.Ed, in any other subject is the question that arises for consideration in these two cases. By Ext. P1 notification dated 19.3.1996 the Public Service Commission invited applications for appointment to the post of High School Assistant (Malayalam) in Education Department in Kasaragode District. The qualifications prescribed for selection to the above post are as follows: "A degree in Malayalam or graduation with Malayalam as one of the two optional subjects under Part II or Part III and b.Ed./B.T./L.T. conferred or recognised by the Universities in Kerala. or A title of Oriental learning in Malayalam awarded by the Universities in Kerala and certificate in Language Teachers Training issued by the Commissioner for Government Examinations, Kerala. 1RWH: Post-graduates in Malayalam are also eligible to apply provided they have B.Ed./B.T./ L.T. graduation." 2. Petitioners in the Original Petitions possesses a degree in B.A. with optional subject as Malayalam. However their B.Ed, is not with the optional subject as Malayalam. In B.Ed, degree obtained by them, the subjects which are grouped under Part A read thus: i) Education in Emerging India ii) Educational Psychology and Evaluation iii) Modern Trends in Indian Education iv) Educational Administration and School Management v) Teaching Method - Hindi . vi) Teaching method-(Optional) English Apparently Group B deals with practical examination under three heads, i) Lesson in special subject - Hindi, ii) Lesson in second subject, and iii) Teaching practice records. 3. On the basis of the clarification Ext. P5 issued by the Government that B.Ed. degree holders can be considered for appointment in the respective subject only if they possess basic degree in the concerned subject and only if they are specialised in the corresponding subject at B.Ed, level course, the petitioners were refused to be interviewed. It is at that stage they approached this court. Pursuant to the interim orders both the petitioners were provisionally interviewed and included in the select list subject to further orders from the Court. 4. A learned Single Judge of this Court by a detailed order dated 13.12.2000 referred these cases for being considered by a Division Bench. According to the learned judge the ratio in Girija v. State of Kerala, 2000 (3) KLT 658 requires reconsideration. 4. A learned Single Judge of this Court by a detailed order dated 13.12.2000 referred these cases for being considered by a Division Bench. According to the learned judge the ratio in Girija v. State of Kerala, 2000 (3) KLT 658 requires reconsideration. In the said decision while considering the case of appointment to the post of High School Assistant (Hindi) the learned Single Judge was of the view that persons who possess degree in Hindi need not have the above degrees in Hindi alone and such an interpretation is not possible going by the prescribed qualification. Abdul Gafoor, J. in the reference order was of the view that there is compartmentalisation in so far as the appointment of High School Assistants are concerned, so much so a High School Assistant appointed in one language is not qualified to teach another language except English and a High School Assistant appointed in one subject is not qualified to teach another subject; whereas there is no such specification of subject or language in the case of appointment as Upper Primary School Assistant or Lower Primary School Assistant. The purpose behind providing optional subject in B.Ed. according to the learned judge is to equip a candidate with knowledge of the methodology of teaching that particular optional subject and hence only a decree in a particular subject is prescribed as qualification for appointment as High School Assistant in the subject, according to the learned judge, it is only proper in the best interests of the students community to 'insist' that B.Ed, degree shall also be with the concerned optional subject and hence for an authoritative pronouncement the cases have been referred to the Division Bench. 5. It is the stand of the Public Service Commission that based on Ext. P5 Government communication B.Ed, degree holder of Dakshina Bharat Hindi Prachar Sabha can be considered for appointment to the concerned post provided he has a basic degree in the respective subject and has specialised in the corresponding subject at B.Ed, level course. Hence, a candidate who applied to the post of High School Assistant (Malayalam) should possess B.Ed, with Malayalam as optional subject. Ext. P1 is the notification published by the Public Service Commission. Hence, a candidate who applied to the post of High School Assistant (Malayalam) should possess B.Ed, with Malayalam as optional subject. Ext. P1 is the notification published by the Public Service Commission. As already mentioned in paragraph 1 above, the prescribed qualification is only a degree in Malayalam and a training qualification such as B.Ed./B.T./L.T. It is not specifically insisted therein that the said qualification of B.Ed./B.T./L.T. should be in the concerned subject, whereas in substitution of the training qualification what is prescribed is a title of Oriental learning in Malayalam awarded or recognised by the Universities in Kerala and a Certificate in Language Teachers Training issued by the Commissioner for Government Examinations, Kerala. Thus, it can be seen that for those who possess a degree in Malayalam or Malayalam as one of the two optional subjects under Part II or Part III, any one of the training qualifications from the trio- B.Ed./B.T./L.T. concerned or recognised by the Universities in Kerala is sufficient, whereas those who possess a title of Oriental learning in Malayalam are required to possess a Certificate in Language Teachers Training issued by the Commissioner for Government Examinations, Kerala. In other words, the training qualification with special thrust to teach a language as per the notification is insisted only to those who do not possess a degree in Malayalam but who have a title of Oriental learning in Malayalam. The qualification mentioned above is prescribed by the Public Service Commission as per a Government order G.O.(P) No. 76/80/G.Edn. dated 6th June, 1980, which is produced as Ext. Rl(b). The introductory paragraph of Ext. R1(b) reads as follows: "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 pleased to order, 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 6. These orders will not, apply for posts already notified by the Public 6. The qualification for appointment to the post of High School Assistant (Malayalam) prescribed under Ext. P1 notification issued by the Public Service Commission is the one notified by the Government in Ext. R1(b) order. The qualification thus prescribed in 1980 has not so far been amended. As held by a Division Bench of this Court in Jesilet v. State of Kerala, 1987 (2) KLT 984, once a rule fully and adequately prescribes qualifications for a post, the State Government in exercise of its executive powers cannot alter the qualifications for eligibility. Though not directly the issue was again considered by another Division Bench of this Court in the decision reported in Sree Sankaracharya University of Sanskrit v. Prasanna Kumari, I.L.R.1997 (1) Kerala 319.. At paragraph 30 of the said judgment it is held as follows: "Once the qualifications have appeared in the advertisement inviting applications, those qualifications cannot be changed unilaterally. The selection has to be made out of the candidates possessing those qualifications. Otherwise the selection is arbitrary and is liable to be interfered." 7. The qualification for appointment to the post of High School Assistant (Malayalam) notified in Ext. P1 is sought to be clarified by Ext. P5 Government letter dated 14.1.1991. It is a communication addressed by the Government to the Secretary Kerala Public Service Commission, Thiruvananthapuram. The operative portion of Ext. P5 reads as follows: 11sir, Sub:-General Education - Appointment as HSA Qualification - Clarification sought for -reg. ref:- your letter No. DRI(3)9920/84/GWdated5.12.1988 and 26.5.1989 I am to invite your attention to the reference cited. As per G.O.(MS) 177/87/G.Edn.dated 22.8.1987, post graduates in the concerned subjects or language are also eligible for appointment as HSA (Sub.) or HSA (Language) as the case may be. But in the case referred to in your letter dated 5.12.88, the candidate is having post graduation in Economics and B.Ed, in Physics, Maths and Technology. As he is not having B.Ed, in Social Studies, he is not eligible to be considered for appointment as HSA(SS). I am to inform you that the DBHPS is conducting B.Ed, in other subjects also apart from Hindi. Such B.Ed. As he is not having B.Ed, in Social Studies, he is not eligible to be considered for appointment as HSA(SS). I am to inform you that the DBHPS is conducting B.Ed, in other subjects also apart from Hindi. Such B.Ed. Degree holder can be considered for appointment in the respective subject, provided he has a basic degree in the concerned subject and have specialised in the corresponding subject at B.Ed, level course conducted by the DNHPS. Yours faithfully, Sd/ C.R. Mony, Deputy Secretary, For Secretary." It may be seen from Ext. P5 that it was a communication clarifying two querries. It was clarified that Dakshin Bharath Hindi Prachar Sabha was conducting B.Ed, in other subjects also apart from Hindi and such B.Ed. Degree awarded by the DBHPS can also be considered for appointment in the respective subject provided he has a basic degree in the concerned subject and has obtained B.Ed, in the corresponding subject. 8. It may be seen that it is a clarification issued by the Government in response to a letter dated 5.12.1988 from the Public Service Commission. For one thing it has to be noted that that communication does not deal with qualification for appointment to the post of High School Assistant (Malayalam) or for that matter of any language. That deals with only the case of appointment of teachers in respective subjects. That apart it has to be noted that it is only a communication from the Government to the Public Service Commission clarifying a doubt expressed by the Public Service Commission. It is not intended to be a general clarification. It cannot be treated as an amendment to Ext. R1(b) government order, whereby the qualifications were prescribed. So long as there is no amendment to the prescribed qualification, and so long as the notification only prescribes a training qualification without specifying any optional subject for the training qualification, it may not be proper for the court to read down the qualification as to have a restricted meaning to the prescription. We are certainly of the view that it is desirable to have a training qualification in the concerned subject/ language. But it is not so prescribed in the notification. In this context, it is significant to note that there is no such specification of optional subject in B.Ed, in Ext. R1(b) either for subjects or for any other language. We are certainly of the view that it is desirable to have a training qualification in the concerned subject/ language. But it is not so prescribed in the notification. In this context, it is significant to note that there is no such specification of optional subject in B.Ed, in Ext. R1(b) either for subjects or for any other language. The notification provides only that a candidate to be appointed as a High School Assistant should possess one of the three training qualifications, viz., B.Ed., B.T. or L.T. It is not clear as to whether there is any optional subject at all as far as B.T. and L.T. are concerned. It is also not in dispute that hitherto the Public Service Commission understood the notification as possessing any training qualification such as B.Ed./B.T./L.T. without insisting for a training qualification in the concerned optional subject. A communication by way of a letter of the Government addressed to the Public Service Commission cannot have the effect of a declaratory or clarificatory amendment of a notification. This is all the more so since the qualification for appointment to the post of High School Assistant (Malayalam) under R.2 of Chapter XXXI of the Kerala Education Rules, which is followed in the case of Government teachers under Ext. R1(b) still remains to be a basic degree in Malayalam and B.Ed./B.T./L.T. without specifying the said qualification in Malayalam itself. There is no valid notification clarifying or declaring that what is intended under the rule is a B.Ed, or B.T. or L.T. in the concerned optional subject, in the instant case Malayalam. All that apart it has also to be noted that the rule regarding qualifications is not under challenge in the proceedings and in a challenge against the rule there has also been no consideration as to the validity of the notification regarding qualification. Thus under the notification regarding qualification as it now stands the petitioners are qualified for appointment to the post of H.S.A. (Malayalam). We affirm the view taken by C.S. Rajan, J. in this regard in Girija's case (supra). 9. Thus so long as a candidate possesses a qualification which is notified and which qualification notified is in accordance with the rules, it cannot be said that such a candidate is not qualified for the only reason that training qualification is not in the concerned subject. 9. Thus so long as a candidate possesses a qualification which is notified and which qualification notified is in accordance with the rules, it cannot be said that such a candidate is not qualified for the only reason that training qualification is not in the concerned subject. So long as there is no prescription to that effect and so long as the rule/notification regarding qualification is not amended, it cannot be insisted that a candidate should possess training qualification in the concerned subject. As it is now found to be desirable to have the training qualification also in the concerned subject at B.Ed, level, and since the qualifications prescribed are of 1980, and as the Government is also of the said view we direct the Government to take appropriate steps immediately for suitably amending the rule. 10. Petitioners in the Original Petitions have admittedly a basic degree with optional subject as Malayalam. They also possess B.Ed, degree, though it is not with the optional subject as Malayalam. In such circumstances there will be a direction to the Public Service Commission to treat the petitioners as fully qualified for appointment to the post of High School Assistant (Malayalam) as notified as per Ext. P1. Original Petitions are disposed of accordingly. Copy of the judgment will be communicated to the third respondent.