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2019 DIGILAW 861 (KER)

State of Kerala, Rep. by Secretary, General Education Department v. Abitha K.

2019-10-26

A.M.SHAFFIQUE, T.V.ANILKUMAR

body2019
JUDGMENT : A.M. SHAFFIQUE, J. 1. The State and its Authorities had preferred this appeal, challenging the judgment dated 6.10.2016 in W.P. (C) No. 11910/2016. The writ petition was filed by the 1st respondent herein inter alia seeking the following reliefs: “(i) declare that the petitioner's appointment as HSA (Physical Science) w.e.f. 27.06.2012 is liable to be approved and the petitioner is entitled to pay and allowances accordingly or in the alternative. (ii) declare that the petitioner is entitled to approval of service as HSA (Physical Science) w.e.f. 03.06.2013 on regular basis and entitled to pay and allowances accordingly. (iii) issue a writ in the nature of certiorari, or any other appropriate writ, direction or order calling for the records of Exhibit P5, P7 & P8 orders and quash the same. (iv) issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing respondents 2 and 3 to approve the appointment of petitioner as sought for and grant pay and allowances accordingly, dehors reliance on Exts.P12 and P13. (v) issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing 1st respondent to consider and pass orders on representation evidenced by Exts.P9 & P10 within such time as may be fixed by this Honourable Court.” 2. The short facts of the case are as under and the parties are described as shown in the writ petition unless otherwise stated: The petitioner is a graduate in Biochemistry with Chemistry and Microbiology as subsidiary subjects. She was appointed as H.S.A. (Physical Science) in the school managed by the 4th respondent on 27.6.2012 and by order dated 03.06.2013 she was appointed in the very same post in the retirement vacancy of another teacher. The Educational Authorities did not approve her appointment on the ground that she does not have the required qualification which resulted in Exts. P5, P7 and P8 orders. As per the Educational Authorities, a teacher, to be appointed as H.S.A (Physical Science) should have Chemistry or Physics as a main subject for their graduation, which the petitioner does not possess. The Educational Authorities did not approve her appointment on the ground that she does not have the required qualification which resulted in Exts. P5, P7 and P8 orders. As per the Educational Authorities, a teacher, to be appointed as H.S.A (Physical Science) should have Chemistry or Physics as a main subject for their graduation, which the petitioner does not possess. The learned Single Judge by the impugned judgment observed that when a graduation in Biochemistry is a requisite qualification for attending B.Ed course in Physical Science, the Government was not justified in insisting that those who have Physics and Chemistry as main subjects alone can be appointed as H.S.A. (Physical Science). 3. The learned Government Pleader while impugning the aforesaid judgment submits that even according to the petitioner, there is no dispute regarding the essential qualification for the said post. The learned Single Judge was in fact diluting the essential qualification. The very relief sought for was a declaration that the appointment of the petitioner was liable to be approved. Her request in her representation given as Ext.P6 is that a special order should be passed by the Government approving her appointment, despite the fact that she does not have the qualification as specified under the Rules. The learned Government Pleader also placed reliance on a Division Bench judgment of this Court in Swapna Sukumar vs. State of Kerala, 2013 (3) KLT 53 and also Kerala Public Service Commission and Another vs. Divya P. and Another, 2016 (4) KHC 321 (DB). 4. On the other hand, the learned counsel appearing for the petitioner while supporting the judgment of the learned Single Judge submits that, taking into account the factual circumstances involved in the matter, it is only appropriate that no interference is required to the judgment delivered by the learned Single judge. The learned Single Judge had taken into account the fact that when a graduation in Biochemistry is the basic qualification for obtaining B.Ed in Physical Science, permitting such a candidate to become a H.S.A. in Physical Science does not amount to any interference with the Government orders and the basic qualification prescribed under the Statute. The learned counsel also submitted that the judgment in Swapna Sukumar (supra) and Divya P. (supra) had been decided on its own facts which may not be applicable to the factual aspects involved in the present case. 5. The learned counsel also submitted that the judgment in Swapna Sukumar (supra) and Divya P. (supra) had been decided on its own facts which may not be applicable to the factual aspects involved in the present case. 5. There is no dispute about the fact that the qualification prescribed under the Rule 2(2)(a) of Chapter XXXI KER is that H.S.A. (Subject) should have a degree in the concerned subject and B.Ed/B.T/L.T conferred or recognised by the Universities in Kerala. Apparently, there is no graduate course in Physical Science as such. The Government has issued G.O. (Ms) No. 141/88/G.Edn dated 13.9.1988 prescribing the qualifications for the post of H.S.A. (Core Subjects), thereby indicating that it should be a degree in the concerned subject and B.Ed/B.T/L.T conferred or recognised by the Universities in Kerala. With reference to H.S.A. (Physical Science) the academic qualification was prescribed as Physics or Chemistry or Home Science as main subject for graduation. The aforesaid order underwent modification in the year 2009 as per G.O. (Ms) 227/2009/G.Edn by which, for the qualification prescribed for H.S.A (Physical Science), Home Science was deleted. Therefore there cannot be any dispute about the fact that as per provisions of KER read with the Government Orders, the academic qualification required for a teacher of H.S.A. (Physical Science) is a degree in Physics or Chemistry and B.Ed/B.T/L.T. Apparently, the petitioner does not have such a qualification. She is having a degree in Biochemistry. The Division Bench of this Court has considered this issue earlier also in Swapna Sukumar (supra). That was a case in which a judgment of the Administrative Tribunal came to be challenged. The petitioners contended that the direction issued by the Kerala Public Service Commission that an aspirant to the post of HSA (Physical Science) should have studied Physics and Chemistry at graduate level or at post graduate level came to be challenged. This Court while considering the relevant Government Orders held at paragraphs 11 and 12 as under: “11. Now, the Tribunal had rightly noticed that the crux of the Government decision in GO (MS) No. 227/09/G.Edn. contains the reflection of its wisdom that Physics has to be taught in the High School classes by a teacher who has studied Physics at the graduate level and that, otherwise, that would adversely affect the quality of teaching Physics in High School classes. contains the reflection of its wisdom that Physics has to be taught in the High School classes by a teacher who has studied Physics at the graduate level and that, otherwise, that would adversely affect the quality of teaching Physics in High School classes. It was that reason that led the Government to remove Home Science from the list of main subjects included against High School Assistant (Physical Science). Remember; GO (MS) No. 141/88/G.Edn. was issued when the Universities in Kerala offered degree with one main subject and two subsidiary subjects. The concept of triple main or multiple main subjects, as would have then been available in other Universities, was then, just not there in the Universities in Kerala. GO (MS) No. 141/88/G.Edn. was issued having only in view, the Universities in Kerala and the qualifications awarded by them or recognised by them. When a student takes Physics as a main subject, the then available subsidiaries were Chemistry and Mathematics. Later, Electronics was also brought in. When Chemistry is opted as the main subject, Physics and Mathematics were to be the subsidiaries. These are matters of knowledge in public domain and we take judicial notice of those situations. Hence, we have no doubt in our mind that it was visioned by the Government while issuing GO (MS) No. 141/88/G.Edn., that one who takes Chemistry as main subject would necessarily learn Physics as a subsidiary subject at graduate level and one who takes Physics as main subject would necessarily learn Chemistry as a subsidiary subject. The expression of such vision and mind of governance through the executive decision of the Government, contained in G.O. (MS) No. 227/09/G.Edn. clearly underlines the rationale of the necessity and the requirement that, one who is to teach Physical Science to the High School students should be one who has studied Physics and Chemistry, at least, at the graduate level. All that the PSC has done to arrive at the impugned decision is to give effect to the Governmental decisions and the logical reasoning, as reflected on a conjoint reading of GO (MS) No. 141/88/G.Edn. and GO (MS) No. 227/09/G.Edn., in the backdrop of the Tribunal's reasoning and decision contained in its order dated 19.6.2012 in O.A. No. 370 of 2012. and GO (MS) No. 227/09/G.Edn., in the backdrop of the Tribunal's reasoning and decision contained in its order dated 19.6.2012 in O.A. No. 370 of 2012. We find no infirmity in it because, the fundamental purpose sought to be achieved is the larger interest of the future generation of students who have to learn Physical Science; meaning thereby, Physics and Chemistry; and would, then have to aspire for pastures beyond. 12. The question then, would be as to whether the present exercise by the PSC amounts to infraction of the notification that it had issued. The afore-quoted extract from that notification shows that a degree in the concerned subject is what is prescribed. Concerned subject is Physical Science. There is no graduation in Physical Science. Therefore, we have to understand the prescription in the PSC notification to be in conformity with GO (MS) No. 141/88/G.Edn. and GO (MS) No. 227/09/G.Edn. which are executive orders of the Government, to whose service the recruitment is proposed. Those Government Orders governed the field of selection and appointment to the category of High School Assistants (Physical Science). The prescription in the PSC's notification that “applicants should have taken Physics/Chemistry/Home Science as main subject for graduation” does not mean that whatever be the subsidiary subjects, a graduate in Physics or Chemistry can be treated as qualified, even without having undergone a course of study of Physics and Chemistry at the graduate level. This view is fortified by the view surging from the second sentence in Note 3 in the PSC's notification, which says that degree in Geology (main) with Physics and Chemistry as subsidiary subjects and B.Ed. degree (Physical Science) can also be considered as an alternative qualification. Hence, we have no doubt that the thrust is on study of Physics and Chemistry at least at the graduate level, for one to be an HSA (Physical Science). If it were to be insisted that a graduate in Geology main, has to study both Physics and Chemistry as subsidiary subjects, there is no rationale to say that a graduate with Physics main, without Chemistry at least as a subsidiary subject, and a Chemistry graduate, without Physics as at least a subsidiary subject, would fall within the zone of choice. A plain reading of the PSC's notification does not lead to any conclusion that its stand impugned before the Tribunal is faulty on any count. A plain reading of the PSC's notification does not lead to any conclusion that its stand impugned before the Tribunal is faulty on any count. It is not contrary to the PSC's notification. Not only that, the PSC's notification cannot stand independent of GO (MS) No. 141/88/G.Edn. and GO (MS) No. 227/09/G.Edn. Remember; the PSC could not have issued any notification prescribing a qualification different from the decisions of the Government relating to the prescription of qualification. In the absence of statutory rules, the executive decisions of the Government as contained in those Government Orders govern. All taken together, the impugned decision of the Tribunal does not merit interference at our hands in exercise of authority under Article 227 of the Constitution. It does not work injustice.” The original petition was finally dismissed. 6. Of course, Swapna Sukumar (supra) lays down the law on the subject and there cannot be a deviation from the law laid down by the Division Bench. Nothing has been brought before this Court to doubt the judgment in Swapna Sukumar (supra). In fact, the learned Single Judge, though had referred to Swapna Sukumar (supra), the purpose and intend of the said judgment has not been adverted to. If it had been adverted to, a different view would not have been taken. It is settled law that when a qualification is prescribed by way of Rules or Orders as the case may be, every authority is bound to comply with the said Rules or Orders. In this case, though it was not specifically mentioned in KER, that for H.S.A. (Physical Science) graduation in Physics and Chemistry is mandatory, by the Government Orders of the year 1988 and 2009, which also is permissible in terms of KER, the qualification has been clearly spelled out. If the said qualification is diluted in any manner as held in Swapna Sukumar (supra), it will affect the students substantially. The learned Single Judge has proceeded on the basis that when Biochemistry is a subject for B.Ed course in Physical Science, why not it be considered as qualification for H.S.A. as well. But it is for the Government to ultimately decide the issue and it is not for the Court to dilute the essential qualification in any manner. The learned Single Judge has proceeded on the basis that when Biochemistry is a subject for B.Ed course in Physical Science, why not it be considered as qualification for H.S.A. as well. But it is for the Government to ultimately decide the issue and it is not for the Court to dilute the essential qualification in any manner. Though the learned counsel for the 1st respondent had relied upon another Government Order dated 6.6.2019 produced as Annexure R1(c), it does not have any relevance to the factual aspects involved in this case. 7. In the result, this writ appeal is allowed. We set aside the judgment of the learned Single Judge. The writ petition shall stand dismissed.