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2025 DIGILAW 804 (KER)

Rincy A. v. State Of Kerala

2025-04-02

N.NAGARESH

body2025
JUDGMENT : 1. These three writ petitions raise the question of legality of Government Order dated 29.10.2022 on approval of appointments made to the post of UPST in the MT UP School, Alayamon, Anchal. The parties to the writ petitions and exhibits marked are referred to as they are referred to and marked in W.P.(C) No.35286/2022. 2. The petitioner in W.P.(C) No.35286/2022 is a UPST appointed in the Aided School of which the 5 th respondent is the Manager. The petitioner has B.Sc, B. Ed and K.TET qualifications. The petitioner was appointed as UPST on 01.12.2021 against a retirement vacancy which arose on and from 01.04.2020. The 4 th respondent-AEO rejected approval to the appointment as per Ext.P2. In Ext.P2, it was stated that the appointment of the 6 th respondent, a Rule 51B claimant, made in the same vacancy earlier was declined but the Manager did not withdraw the proposal for appointment of the 6 th respondent. The 6 th respondent had filed petitions before higher authorities. 3. The petitioner states that the 6 th respondent was appointed earlier as UPST in the vacancy arose on 01.04.2020 as the husband of the 6 th respondent died while in service, in harness. The appointment was made on 15.07.2021. The 6 th respondent did not possess K-TET qualification and therefore the educational authorities refused approval to her appointment. Thereafter, the Manager appointed the petitioner in the said vacancy and subsequently the Manager has withdrawn the proposal of the appointment of the 6 th respondent on 14.02.2022. 4. The 6 th respondent did not possess K-TET and therefore her appointment was not approved. The Manager therefore had withdrawn the appointment of the 6 th respondent. The educational authorities should not have declined approval to the appointment of the petitioner as per Ext.P2 on the ground that petition filed by the 6 th respondent was pending before the higher authorities. 5. The Manager filed appeal against Ext.P2 order of the AEO before the 3 rd respondent. The 3 rd respondent rejected the appeal on the very same ground as per Ext.P5 order dated 17.03.2022. Ext.P5 order was challenged by the Manager before the 2 nd respondent-Director of General Education filing revision petition. The revision petition was also dismissed on the same grounds as per Ext.P6 order dated 25.05.2022. The 3 rd respondent rejected the appeal on the very same ground as per Ext.P5 order dated 17.03.2022. Ext.P5 order was challenged by the Manager before the 2 nd respondent-Director of General Education filing revision petition. The revision petition was also dismissed on the same grounds as per Ext.P6 order dated 25.05.2022. The further statutory revision filed by the Manager under Rule 92 Chapter XIVA KER was also rejected by the Government as per Ext.P9 order dated 29.10.2022. 6. The petitioner states that Ext.P9 order holding that Rule 51B claimant appointed on 15.07.2021 as UPST is exempted from possessing K-TET qualification is illegal and violative of Section 23 of the Right of Children to Free and Compulsory Education Act , 2009. In State of U.P. v. Anand Kumar Yadav [2017 (4) KLT OnLine 2154 (SC)], the Hon’ble Apex Court has held that any relaxation of the minimum educational qualification can only be made by the Central Government. This Court also has held in the judgment in Beena K. v. State of Kerala and others [ 2018 (2) KLT 191 ] that NCTE alone is having the power to relax the qualification. Therefore, Ext.P9 is liable to be quashed. 7. W.P.(C) No.42242/2022 has been filed by the 5 th respondent-Manager of the School challenging the very same Ext.P9 order dated 29.10.2022. The 5 th respondent urged that Ext.P9 order holding that Rule 51B claimant appointed on 15.07.2021 as UPST is exempted from possessing K-TET qualification, is illegal and unsustainable. The 1 st respondent- State of Kerala ought to have found that the 6 th respondent- Teacher is not qualified for appointment as UPST in the vacancy which arose on 01.04.2020. 8. W.P.(C) No.6147/2023 has been filed by the 6 th respondent seeking to declare that she is entitled to get approval to her appointment as UPST from 15.07.2021 and that she is entitled to get salary for the period during which she was kept out of employment by the 5 th respondent from 09.11.2021 till she is reappointed as UPST. 9. The 6 th respondent stated that her husband died in harness on 22.12.2006 while working as Sanskrit Teacher in the School. The 6 th respondent filed application for compassionate appointment under Rule 51B. A vacancy of UPST arose only on 01.06.2020. Due to Covid-19 pandemic and lockdown, the vacancy was filled up only on 15.07.2021 appointing the 6 th respondent. The 6 th respondent stated that her husband died in harness on 22.12.2006 while working as Sanskrit Teacher in the School. The 6 th respondent filed application for compassionate appointment under Rule 51B. A vacancy of UPST arose only on 01.06.2020. Due to Covid-19 pandemic and lockdown, the vacancy was filled up only on 15.07.2021 appointing the 6 th respondent. The 3 rd respondent-DEO rejected approval to the appointment of the 6 th respondent holding that the petitioner is not qualified in K-TET. After rejection of approval by the DEO, the 5 th respondent-Manager mala fide appointed the petitioner in the place of the 6 th respondent. 10. The 6 th respondent filed appeal before the 3 rd respondent-DEO challenging rejection of approval. The 3 rd respondent, however, confirmed the order of the AEO. The 5 th respondent thereafter issued proceedings dated 14.02.2022 withdrawing the proposal made in favour of the petitioner. 11. The 6 th respondent argued that the appointment of the petitioner is illegal as there was restriction for appointment in view of the interim order passed by this Court in W.P.(C) No.19808/2021. The petitioner possessed BA and B.Ed when she was appointed as UPST. Subsequently, she secured K-TET qualification in the examination conducted in February, 2022. Ext.P2 is therefore liable to be set aside and respondents 4 and 5 are compellable to implement Ext.P3 Government Order. 12. The Special Government Pleader, relying on the counter affidavit filed on behalf of the 1 st respondent, submitted that guidelines for conducting TET was issued as per Notification dated 11.02.2011. Claimants under Rule 51A and Rule 51B Chapter XIVA KER as on the date of GO (25.07.2012) were exempted from acquiring K-TET. Since Government of India informed that only those candidates who qualified the TET may be considered for appointment as Teachers, the TET was made mandatory for appointments from the academic year 2012-2013. The State has given exemptions only in accordance with the exemptions granted by the NCTE. A dependent can apply for a post under the Scheme of Compassionate Appointment only as per his qualifications at the time of submitting application. 13. The State has given exemptions only in accordance with the exemptions granted by the NCTE. A dependent can apply for a post under the Scheme of Compassionate Appointment only as per his qualifications at the time of submitting application. 13. The counsel for the 5 th respondent relied on the judgment of this Court in Mehaboob v. State of Kerala [ 2022 (4) KLT 653 ] wherein this Court has held that promotion cannot be made on the basis of old rules when the vacancy fell prior to the coming into force of the amended rules. Relying on the Full Bench judgment of this Court in Mohanan v. Director of Homeopathy [ 2006 (3) KLT 641 (FB)], the counsel for the 5 th respondent-Manager argued that whether a candidate has requisite qualification for selection and appointment has to be considered taking into account the qualifications possessed when the selection and appointment are done. 14. The counsel also relied on the judgment of the Apex Court in State of Himachal Pradesh v. Raj Kumar [2022 (3) KLT OnLine 1034] to urge the point. 15. The counsel for the petitioner adverting to the judgment of the Hon’ble Apex Court in Anand Kumar Yadav (supra) submitted that the object and purpose of introducing the TET is to ensure that a Teacher who embarks upon instructing students of Primary and Upper Primary Classes is duly equipped to fulfill the needs of the students, understands the relevance of education for a child and can contribute to the well rounded development of the child. 16. This Court in the judgment in Bhinumol v. Sreeja [2024 KLT OnLine 2328] has observed that one time exemption from K-TET qualification was granted only for the academic year 2012-2013 and not for infinite period or subsequent academic years keeping in view of the provisions of Section 23 of the Right of Children to Free and Compulsory Education Act , 2009. This Court held that the power to grant exemption only vests with the Central Government. 17. I have heard the learned counsel for the petitioners and the learned Special Government Pleader representing the official respondents. 18. The 6 th respondent was appointed as UPST on 15.07.2021. Approval was declined to the appointment of the 6 th respondent on 09.09.2021. This Court held that the power to grant exemption only vests with the Central Government. 17. I have heard the learned counsel for the petitioners and the learned Special Government Pleader representing the official respondents. 18. The 6 th respondent was appointed as UPST on 15.07.2021. Approval was declined to the appointment of the 6 th respondent on 09.09.2021. The 5 th respondent-Manager submits that the proposal for appointment of the 6 th respondent was therefore withdrawn and the petitioner was appointed against the said vacancy on 01.12.2021. The educational authorities declined approval to the appointment of the petitioner holding that the 6 th respondent has approached higher authorities aggrieved by the rejection of approval of her appointment. The 6 th respondent is a Rule 51B claimant. It is urged on behalf of the 6 th respondent that she being a Rule 51B claimant, the K-TET qualification cannot be applied to her. 19. Guidelines for conducting TET was issued as per Notification dated 11.02.2011 by the NCTE. The Government of Kerala issued GO(P) No.244/2012/GEdn dated 25.07.2012 ordering that Teachers appointed against regular vacancies on or before 31.03.2012 during the academic year 2011-2012, claimants under Rule 51A and 51B, Chapter XIVA KER were exempted from acquiring K-TET. However, when the Government of India informed the State Governments that only those candidates who qualify the TET may be considered for appointment as a Teacher, the Government of Kerala also made K-TET mandatory for appointments from 2012-2013. 20. A dependent can apply for a post under the Scheme for appointment on compassionate grounds only as per his qualification at the time of submitting application. Such appointment can be only to a post for which the dependent satisfies the qualification requirements. In the case of the 6 th respondent, the husband of the 6 th respondent passed away on 22.12.2006 and application for employment assistance was made soon thereafter. The 6 th respondent was appointed on 15.07.2021. 21. As the NCTE has made K-TET mandatory for appointment of School Teachers, the mandate of NCTE will prevail and no Teacher without TET can be appointed as a Teacher. Admittedly, the 6 th respondent did not possess K-TET qualification at the time of making application for compassionate appointment or at the time of getting appointment on 15.07.2021. Subsequent acquisition of K-TET qualification by the 6 th respondent is of no consequence. Admittedly, the 6 th respondent did not possess K-TET qualification at the time of making application for compassionate appointment or at the time of getting appointment on 15.07.2021. Subsequent acquisition of K-TET qualification by the 6 th respondent is of no consequence. It is to be noted that the 5 th respondent-Manager had subsequently withdrawn the proposal for appointment of the 6 th respondent as Teacher, for want of K-TET qualification. 22. When the 6 th respondent did not possess qualification necessary for appointment as UPST, the respondents were not justified in declining approval to the appointment of the petitioner as UPST on the ground that the 6 th respondent had taken up the matter before higher authorities. This should be especially so when the Manager has stated that he has withdrawn the proposal in respect of appointment of the 6 th respondent. In the circumstances, Ext.P9 order of the 1 st respondent cannot be sustained. 23. Ext.P9 is therefore quashed. The respondents are directed to approve the appointment of the petitioner under Ext.P1 as UPST. Necessary orders shall be passed within a period of one month. W.P.(C) Nos.35286/2022 and 42242/2022 are disposed of as above. W.P.(C) No.6147/2023 is dismissed.