2012 (2) KLJ 97, 2012 (1) KLT 829 High Court of Kerala T.R. RAMACHANDRAN NAIR S. Geetha., HAS (English) Versus State of Kerala, represented by Secretary to Government, General Education Department, Govt. Secretariat & Others W.P.(C) No. 33337 of 2011 (N) Decided On : 17-02-2012 Judgment : 1. The competing claims between the petitioner & the sixth respondent for appointment as Higher Secondary School Teacher (Junior) (English) under the school managed by the fifth respondent, is the issue arising for consideration herein. The interpretation of Rule 6(2) of chapter XXXII K.E.R. & other Rules also arises for consideration. The petitioner is now working as H.S.A. (English) in the school. Her academic qualifications are B.Sc. (Zoology), B.Ed. in Natural Science & M.A. in English. She is having B.Ed. in English & has passed State Eligibility Test in English also. 2. The petitioner was initially appointed as U.P.S.A. on 5.7.1992; promoted as H.S.A. (Natural Science) on 4.8.1994 in a leave vacancy & in a regular vacancy as H.S.A. (Natural Science) on 5.6.1995. Pursuant to the Government Order issued creating separate cadre of H.S.A (English), she was appointed by category change as H.S.A. (English), as per Ext.P2 order dated 1.11.2003, with effect from 29.1.2004. 3. The qualifications of the sixth respondent are: M.A. in History, M.A. in English, B.Ed. in English & SET in history. Her initial appointed is as U.P.S.A. on 19.11.1984, promoted as H.S.A. (SS) with effect from 1.6.1987 in which post she is continuing. 4. The Higher Secondary courses were sanctioned in the school in the year 2010-2011. As per the selection procedure prescribed for appointment as H.S.S.T. Junior (English), the fifth respondent invited applications by notification dated 22.11.2011. An interview was conducted by the selection committee on 10.12.2011. The sixth respondent & one Smt. Bindu, the additional 7th respondent also participated in the interview. When the rank list was published, the sixth respondent was arrayed as rank No.1, the petitioner as rank No.2 & Smt. Bindu as rank No.3. The petitioner contends that the sixth respondent is not having the mandatory qualification of SET in English & she is not working as H.S.A. (English) & therefore is not entitled to get appointment as H.S.S.T. Junior (English). 5. The petitioner contends that the sixth respondent is not having the mandatory qualification of SET in English & she is not working as H.S.A. (English) & therefore is not entitled to get appointment as H.S.S.T. Junior (English). 5. As far as the issue raised herein is concerned, the Manager, in the counter affidavit contends that the method of appointment to the category of H.S.S.T. Junior (English) is by transfer from qualified High School Assistants in the subject concerned. 25% of the total posts shall be filled up by appointment by transfer. It is pointed out that any qualified H.S.A. can be appointed as H.S.S.T. Junior subject to the selection procedure & the selection is not confined to teachers working as H.S.A. (English) for appointment as H.S.S.T. Junior (English). It is further pointed out that the sixth respondent is qualified for appointment as H.S.S.T. Junior (English). She stood first in the interview. She has got more than 10 years approved serviced as H.S.A. & thus is entitled for exemption from passing SET. 6. Similar is the contention raised by the sixth respondent in her counter affidavit. The contention of the sixth respondent is that Rule 4 of Chapter XXXII K.E.R. which provides for the method of appointment of Higher Secondary School Teacher (Junior), if applied, it can be seen that a High School Assistant who is qualified for the concerned subject, can get appointment, which is satisfied by the sixth respondent. There is no challenge against the select list also. The sixth respondent being seniormost qualified person is thus select list also. The sixth respondent being the seniormost qualified person is thus selected & appointed. 7. For considering the points raised by both parties, we will have to refer to the rules which call for interpretation. Rule 4 of Chapter XXXII K.E.R. provides for the method of appointment & it states as follows: “4. Method of appointment:-Appointment to the various categories specified in Column (2) of the Table below shall be made by the method of appointment specified against each in column (3) thereof:” Serial No.(3) is the post of Higher Secondary School Teacher (Junior) & the method of appointment is provided as follows: “1. (i) By transfer from qualified High School Assistants in the subject concerned under the Educational Agency. (i) By transfer from qualified High School Assistants in the subject concerned under the Educational Agency. (ii) In the absence of qualified hands under item (i) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants in the subject concerned under the Educational Agency. 2. By direct recruitment. Note:- (i) 25% of the total posts shall be filled up by the method specified in Item (1) above on seniority - cum suitability basis & 75% of such post shall be filled up by direct appointment. (ii) When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under item 1 above, such vacancies also shall be allotted for direct appointment.” (2) in the table below under the method specified in column (3) unless he possess the qualifications prescribed in the corresponding entry in column (4) thereof.” Rule 6 concerned qualifications which reads as follows: “6. Qualifications:- No person shall be eligible for appointment to the category in column As far as serial No.2 is concerned, against the posts of HSST & HSST (Junior) in English, the forth column therein provides for the qualifications as follows: “(1) Masters Degree in the concerned subject with not less than 50% marks from any of the Universities in Kerala or a qualification recognized as equivalent thereto in the respective subject by any University in Kerala. (II) (1) B.Ed. in the concerned subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognized as equivalent there to by a University in Kerala. (2) In the absence of persons with B.Ed. degree in the concerned subject, B.Ed. degree acquired in any one of the subjects under the concerned Faculty as specified in the Act/Statutes of any of the Universities in Kerala; (3) In the absence of persons with B.Ed. degree as specified in items (1) & (2) above, persons with B.Ed. degree in any subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognized as equivalent there to by any one of the Universities in Kerala. degree as specified in items (1) & (2) above, persons with B.Ed. degree in any subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognized as equivalent there to by any one of the Universities in Kerala. (III) Pass in the State Eligibility Test for the Post of Higher Secondary School Teacher conducted by Government of Kerala or by the agency authorized by the State Government.” Exemption from SET is provided under Rule 10, under the heading “Exemption” and sub-rule (4) states as follows: “4. Teachers who have completed ten years of approved teaching service at the High School level shall be exempted from passing the State Eligibility Test.” 8. Heard learned counsel for the petitioner Smt. T.B. Remani, Shri N. Manojkumar, learned counsel for the fifth respondent, Shri M. Sajjad, learned counsel for the sixth respondent, Shri K. Jaju Babu, learned counsel for the additional 7th respondent & Smt. Lowsy A., learned Government Pleader. 9. The contention raised by the learned counsel for the petitioner is that the method of appointment is by transfer from “qualified H.S.A. in the subject concerned.” It is therefore submitted that the subject concerned herein is “English” and the by transfer appointment can only be from qualified H.S.As. in service in that subject, meaning H.S.A. (English) itself. Petitioner is working as H.S.A. (English) having SET in English, which is the feeder category. My attention was invited to Rule 6 of Chapter XXXII K.E.R. wherein the qualifications are provided. Therein also, what is provided is: (i) Masters Degree in the concerned subject; & (ii) B.Ed. in the concerned subject. Therefore, learned counsel submits that the emphasis given is to the concerned subject and if that be so, H.S.As. other than H.S.A. English cannot compete for selection. 10. The respondents dispute this contention by stating that if the interpretation of the petitioner is adopted, then the rule will have to be read as “by transfer from qualified H.S.As. in the “concerned subject”, instead of “subject concerned”. It is pointed out that the words used in Rule 4(3) are “subject concerned” & not “concerned subject”. Therefore, a person for appointment should be qualified in the subject concerned to which appointment is made & herein it is English. in the “concerned subject”, instead of “subject concerned”. It is pointed out that the words used in Rule 4(3) are “subject concerned” & not “concerned subject”. Therefore, a person for appointment should be qualified in the subject concerned to which appointment is made & herein it is English. By referring to Rule 6 and the qualifications prescribed, learned counsel points out that therein, for by transfer appointment & for direct recruitment, the words “concerned subject” are used after the words “Masters Degree and B.Ed.” Therefore, the person should have the qualification in the concerned subject, being English, herein. 11. The question posed is thus of importance as it will have a bearing on the rights of the parties competing for the selection as H.S.S.T. One of the aspects pointed out by the learned counsel for the respondents is that the interpretation placed by them is the correct one, as otherwise item (ii) in Rule 4(3), viz. appointment from UPSA and LPSA will become otiose. Item (ii) against Rule 4(3) reads as follows: “(ii) In the absence of qualified hands under item (i) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants in the subject concerned under the Educational Agency.” Therein also, in the absence of H.S.As., UPSA and LPSA in the subject concerned can be appointed. It is appointed out that as far as UPSA and LPSA are concerned, they are not appointed to any specified subject like English, Maths, etc. This aspect is highlighted in the counter affidavit filed by the second respondent by pointing out that UPSAs/LPSAs are not teaching either Science, English, Maths or Languages in the school specifically & they are teaching all these subjects. It is pointed out that the words “subject concerned” therefore should get a reasonable interpretation in the light of the object & purport of the rule. 12. I find force in the submissions made by the learned counsel for the party respondents and learned Government Pleader. What is provided under rule 4, item (3) as against the post of HSST, is appointment by transfer from qualified H.S.A. in the “subject concerned”. 25% of the posts are filled up by the said method and going by Note 1, the said posts shall be filled up on seniority - cum - suitability basis & 75% shall be filled up by direct recruitment. A selection process was undertaken here. 25% of the posts are filled up by the said method and going by Note 1, the said posts shall be filled up on seniority - cum - suitability basis & 75% shall be filled up by direct recruitment. A selection process was undertaken here. If, as contended by the learned counsel for the petitioner, teachers appointed as H.S.A. English alone can compete for selection, then the rule would have been framed otherwise. The words “subject concerned” indicate the subject to which the selection is being made, i.e. HSST Junior (English) herein and not the category of post held subject-wise by the H.S.A. who is competing for selection. The manner in which the rules are framed, viz. Rules 4 and 6 are also important. As already noticed, in Rule 4(3) the words used are “subject concerned” and in Rule 6 with regard to qualification, it is Masters Degree or B.Ed. as the case may be of the “concerned subject”. Therefore, the qualification should be in the concerned subject, viz. English itself. The implications are thus clear. 13. As rightly pointed out by the learned counsel for the respondents, as far as UPSAs and LPSAs are concerned, they are not assigned any particular subject for teaching. Therefore, they should be qualified for appointment in the “subject concerned”, that means herein the post of H.S.S.T.(Junior) English. If it is not construed in this manner, then Item 2 against Rule 4(3), viz. filling up of the post of UPSA/LPSA cannot be given effect to at all in the absence of qualified hands under item (i), i.e. H.S.As. 14. Evidently, therefore, Rule 4(3) can be understood only in one manner, i.e. an H.S.A. should be qualified in the subject concerned to which the appointment is to be made and therefore any H.S.A. in the school who is qualified to teach the subject in terms of the qualification prescribed under Rule 6, can compete for selection. 15. As far as the sixth respondent is concerned, regarding her academic qualification, there is no dispute and she is senior also. Therefore, while considering the method of appointment seniority-cum-suitability is the basic criteria. Then the other contested issue is whether she is having SET in English. 15. As far as the sixth respondent is concerned, regarding her academic qualification, there is no dispute and she is senior also. Therefore, while considering the method of appointment seniority-cum-suitability is the basic criteria. Then the other contested issue is whether she is having SET in English. Learned counsel for the petitioner points out that to claim exemption under Rule 10(4), the sixth respondent should have 10 years of approved teaching experience as H.S.A. English itself and her tenure of service in any other subject will not help her, whereas learned counsel for the Manager, learned counsel for the sixth respondent and learned Govt. Pleader submit that what is provided under Rule 10(4) is an exemption of a general nature. 16. The rule provides that “teachers who have completed ten years of approved teaching service at the High School level shall be exempted from passing the State Eligibility Test”. What is provided under sub-rule (4) of Rule 10 is that one should have completed 10 years of approved teaching service at the High School level. But it is not specified that it should be in a particular subject to which the appointment is sought for. If the argument of the learned counsel for the petitioner is accepted, then it will require a re-writing of the rules. That method cannot be adopted, obviously, and a literal interpretation of the rule alone is required. If that be so, any teacher who has completed ten years approved teaching service at the High School level, will be exempted from passing the SET. The same is a general exemption, going by the provisions of the rule. It is not as if, as contended by the learned counsel for the petitioner that to claim exemption the sixth respondent should have worked as H.S.A. English itself for 10 years. Therefore, the said contention also cannot be accepted. 17. No other point arises for consideration. There is no challenge against the ranking given in the rank list also. 18. By an interim order dated 16.12.2011, this Court permitted the sixth respondent to join the post subject to further orders to be passed in the writ petition and respondents 2 to 4 were directed not to approve the appoint of the sixth respondent until further orders. The writ petition is therefore dismissed. 18. By an interim order dated 16.12.2011, this Court permitted the sixth respondent to join the post subject to further orders to be passed in the writ petition and respondents 2 to 4 were directed not to approve the appoint of the sixth respondent until further orders. The writ petition is therefore dismissed. The proposal for approval of the sixth respondent can be processed by the concerned respondents in accordance with law. No costs.