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2025 DIGILAW 710 (KER)

Bini Das Wife Of Starsea. g, Hsa(english) v. State Of Kerala

2025-03-24

HARISANKAR V.MENON

body2025
JUDGMENT : HARISANKAR V. MENON, J. These three connected writ petitions are filed by teachers working under the Corporate Educational Agency having two schools represented by the 5 th respondent in W.P(C) No.19189 of 2022 and W.P(C) No.24150 of 2022. 2. The petitioner in W.P(C) No.19189 of 2022 states that she got regular appointment as the UPSA with effect from 03.06.1996 as evidenced by Ext.P1 and later promoted as HSA (Physical Science) with effect from 01.06.1998 as evidenced by Ext.P2. She states that during 2008-09, though the post of HSA(PS) was reduced, she was accommodated against HSA(English) vacancy. She is stated to have been granted an appointment as HSST(English) against a leave vacancy from 01.06.2009 to 18.07.2012. From 19.07.2012, the petitioner was reverted as UPSA and from 03.06.2013, promoted as HSA(English). During 2007-08, the petitioner states that an open vacancy in HSA(English) arose and since the petitioner hadby that time acquired the qualification required for holding the post of HSA(English), she gave a representation seeking category change relying on Ext.P3 Government Order dated 16.07.2003 and Ext.P4 Government Order dated 01.11.2003. In the above circumstances, in 2012, after the leave vacancy to which she was appointed as HSST(English) ceased to exist, the petitioner ought to have been reverted as HSA(English) on account of the claim for category change as noticed above. The Director of Public Instruction issued Ext.P6 order refusing the benefit of category change to the petitioner. The petitioner is again promoted as HSA(English) from 03.06.2013 as evidenced by Ext.P7. The Government considered the claim of the petitioner, along with the claim raised by another teacher, pursuant to Ext.P13, finding that the petitioner is a Rule 51A claimant, that she is entitled to appointment as HSA (English) under Rule 2(2) (proviso) of Chapter XXXI of the Kerala Education Rules (KER), that she is entitled for category change, etc. It is seeking implementation of Ext.P13, W.P.(C) No.31643of 2019 was filed by the petitioner. In the meantime, the 6 th respondent (K.M.Sathimol), who is another teacher under the same management had challenged certain proceedings by which her claims for accommodation as HSA in additional vacancy were rejected. This Court, by Ext.P14, had directed the issue to be considered. On the afore basis, the Government issued Ext.P15 wherein the petitioner was directed to be appointed as HSA(English) from 15.07.2008. This Court, by Ext.P14, had directed the issue to be considered. On the afore basis, the Government issued Ext.P15 wherein the petitioner was directed to be appointed as HSA(English) from 15.07.2008. On the basis of the afore, the DEO issued Ext.P16 order dated 01.06.2022 refusing to extend the benefit to the petitioner and extending the benefit to the 6 th respondent. It is in such circumstances that the petitioner has filed W.P(C) No.19189 of 2022 seeking to challenge Ext.P16 issued as above to the extent the said order regularises the service of the 6 th respondent from 19.07.2012 to 02.06.2013. 3. The 6 th respondent in W.P(C) No.19189 of 2022 - K.M.Sathimol, has filed W.P(C) No.24150 of 2022 seeking to challenge Ext.P12 order dated 05.04.2022 (Ext.P15 in W.P(C) No.19189 of 2022), Ext.P13 order dated 01.06.2022 by the DEO (Ext.P16 in W.P(C) No.19189 of 2022) and Ext.P14 order dated 16.09.2019 by the Government (Ext.P13 in W.P(C) No.19189 of 2022). 4. I have heard Sri.S.Ramesh, the learned counsel for the petitioner in W.P(C) Nos.31643 of 2019 and 19189 of 2022, Sri.M.R.Anison for the petitioner in W.P(C) No.24150 of 2022, Sri.P.Sreekumar, the learned senior counsel for the 7 th respondent and Sri.N.Satheesh for the 8 th respondent in W.P(C) No.24150 of 2022. 5. The first issue arising for consideration is with reference to the claim of the petitioner in W.P(C) No.19189 of 2022. As already noticed, she contends that she was entitled to a category change as HSA(English) and hence ought not to have been reverted as UPSA from 19.07.2012 to 02.06.2013. True, this contention is accepted by the Government in Ext.P13 order dated 16.09.2019. The afore order is also challenged by the petitioner in W.P(C) No.24150 of 2022. The primary finding in the said order is with reference to the provisions of the proviso to Rule 2(2) of Chapter XXXI of the KER. Rule 2 of Chapter XXXI provides for the qualifications required for the High School Teachers. Rule 2(2)(B)(x) provides the qualification required for an HSA(English). B.Ed. with English as an optional subject is an obligatory qualification. It is further true that the first proviso thereto “provided that a post-graduate degree in the subject or language concerned shall be considered as an alternative qualification of degree in such subject or language concerned for appointment as HSA”. Rule 2(2)(B)(x) provides the qualification required for an HSA(English). B.Ed. with English as an optional subject is an obligatory qualification. It is further true that the first proviso thereto “provided that a post-graduate degree in the subject or language concerned shall be considered as an alternative qualification of degree in such subject or language concerned for appointment as HSA”. But this proviso would apply only in lieu of the requirement of the degree prescribed under Rule 2(2)(B)(x)(i). The requirement for B.Ed. is under item No.(ii) and the proviso, in my opinion, does not cover the afore situation. The position is made clear with reference to the deletion of item No.(iii) of Rule 2(2)(B)(x), whereby those who were having B.Ed. in any other subject were entitled for consideration in the absence of teachers with B.Ed. in English. Therefore, from 05.01.2009, on account of the deletion of Item No.(iii), there cannot be any doubt that a B.Ed. in English was essential for appointment to the post of HSA(English), and to that extent, the very basis of the findings contained in the order dated 16.09.2019 cannot be relied on by the petitioner in W.P(C) No.19189 of 2022. The order entitling the petitioner for category change, requires to be set aside insofar as the same is challenged in W.P(C) No.24150 of 2022, and I do so. 6. The other issue arising for consideration is with reference to the claims of the petitioner in W.P(C) No.24150 of 2022. As noticed earlier, the petitioner has sought to challenge Ext.P12 order dated 05.04.2022 issued by the Government by which the appointment of the petitioner as HST(SS) for various periods was not approved. Ext.P13 issued by the 4 th respondent to the extent of not approving the appointment of the petitioner as HST(SS) for the period from 15.07.2008 to 14.07.2009 and Exts.P16 and P17 dated 02.03.2023 and 21.08.2024 issued by respondents 2 and 1 respectively are also under challenge. 7. In this connection, I notice that the petitioner had raised a claim for accommodation as HSA in the additional vacancy that arose in the Sivagiri High School, Varkala, from 1998 to 1999. By Ext.P12 the petitioner is directed to be accommodated in the vacancy and to approve her appointment with effect from 18.06.2007 without adjudicating the claim to continue in the school without any reversion from 1998 onwards. By Ext.P12 the petitioner is directed to be accommodated in the vacancy and to approve her appointment with effect from 18.06.2007 without adjudicating the claim to continue in the school without any reversion from 1998 onwards. Noticing that the consideration in Ext.P12 was flawed, this Court on 29.09.2023 had directed the Government to consider the petitioner’s claim for protection with the opportunity being extended to the other teachers-respondents 6 to 8. It is on that basis, Ext.P17 order dated 21.08.2024 is issued by the Government, which is sought to be challenged in this writ petition. 8. A reading of Ext.P17 order shows that the Government has, apart from extracting the contentions raised by the teachers and the DEOs, virtually not carried out any independent consideration of the rival claims. The Government appears to have merely provided a stamp of approval to the report presented by the departmental authorities. This, in my opinion, goes against the spirit of the directions of this Court in the order dated 29.09.2023. 9. I further notice that the claim of the petitioner is to be considered along with the rival claims made by party respondents 6 to 8. The consideration of these rival claims involves the evaluation of various factual aspects, which is to be resolved by the Government alone and not in writ jurisdiction under Article 226 of the Constitution of India. This is especially so, when Ext.P17 does not consider any of the claims between the petitioner and respondents 6 to 8. Resultantly, these writ petitions are disposed of as under: W.P(C) Nos.19189 of 2022 and 31643 of 2019 are dismissed. Exts.P12 and P15 in W.P(C) No.24150 of 2022, to the extent of upholding the claim of the 6 th respondent for a category change, is set aside. Ext.P17 in W.P(C) No.24150 of 2022, issued by the Government is also set aside, directing the Government to revisit the entire issue with notice and opportunity to the petitioner and respondents 6 to 8, as expeditiously as possible, at any rate, within a period of four months from today.