Partly allowed

Nancy Devassy, v. the State of Kerala

Kerala HC27 Oct 2022WP(C)/15042/2021

Case brief

AI extract

What is this about?

This writ petition challenges orders rejecting the petitioner's appointment as UPST due to language qualifications and the 1:1 protected teacher ratio. The Single Judge held no Malayanam study requirement under rules, and a Division Bench clarified degree + B.Ed sufficiency. New Government orders allow appointment with a declaration. The court quashed rejection orders and directed approval subject

What did the court decide?

Exts. P2, P4, P6, P7, P9 quashed; direction to respondents 1-4 to consider appointment with effect from 01/06/2017 subject to Manager complying with Exts. P12 and P13.

Nancy Devassy, Vs the State of Kerala — Education and Admissions | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 27^TH DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944

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WP(C) NO. 15042 OF 2021

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PETITIONER:

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NANCY DEVASSY,
AGED 38 YEARS, D/O.DEVASSY K.C., AGED 38 YEARS,
UPST, ST.JOSEPH HSS, MATHILAKAM, THRISSUR-680 684.
(RESIDING AT KALLARACKAL HOUSE, MANAKULANGARA P.O.
THRISSUR 680 684.
BY ADVS.
T.T.MUHAMOOD
V.E.ABDUL GAFOOR
A.MOHAMMED SAVAD
T.R.VISHNU

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RESPONDENTS:

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1THE STATE OF KERALA,
REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.

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2THE DIRECTOR OF GENERAL EDUCATION,
DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
THIRUVANANTHAPURAM-695 014.
3THE DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF THE DDE, THRISSUR-680 684.
4THE DISTRICT EDUCATIONAL OFFICER,
OFFICE OF THE DEO, IRINJALAKKUDA-680 121.
5THE MANAGER,
ST.JOSEPH'S H.S.S., MATHILAKAM, THRISSUR-680 685.
BY ADVS.
SHERRY J. THOMAS
JOEMON ANTONY
SMT SAROJINI GP

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THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION
ON27.10.2022,THECOURTONTHESAMEDAYDELIVEREDTHE
FOLLOWING:

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W.P.(C) No.15042 OF 2021

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JUDGMENT

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The petitioner states that she is presently working as UPST in St.Joseph’s H.S.S, Mathilakam, an Aided Higher Secondary School managed by the 5th respondent and governed by the provisions of the Kerala Education Act & Rules. She asserts that she was appointed with effect from 01/06/2017 on the strength of Ext.P1 order. The petitioner asserts that the proposal for approval was rejected by the District Educational Officer on the ground that the petitioner has not studied Malayalam language as a medium of instruction at any of the levels of education. It is also stated that the appointment is to be made by the Manager in the ratio of 1:1 by appointing a protected teacher in the light of G.O.(P) No.199/2016/G.Edn dated 03/12/2016.

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The appeal preferred by the petitioner and the Manager was rejected by the educational authorities and the same was finally confirmed by the Government. The assertion of the petitioner is that the reasons stated by the Government cannot be sustained in the light of the law laid down by this Court in Ext. P11 judgment. The petitioner would further assert that the contention of the respondent while rejecting the proposal of approval that the Manager was bound to comply with G.O.(P)

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W.P.(C) No.15042 OF 2021

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No.199/2016/G.Edn dated 03/12/2016 and that the protected teachers are to be appointed in the ratio of 1:1 cannot be sustained in the light of Ext.P12 and P13, wherein the Government has granted relaxation, subject to the condition that the manager executes the bond. It is in the afore circumstances that the writ petition is filed seeking the following reliefs:

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(i) issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P9 order issued by the 1st respondent.

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(ii) issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P2, P4 and P6.

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(iii) issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P7.

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(iv) issue a writ of mandamus or any other appropriate order or direction, directing the respondents 1 to 4 to approve the appointment of the petitioner as UPST w.e.f 01/06/2017.

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The 3rd respondent has filed a counter affidavit wherein it is

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stated that the approval was rejected on the ground that the manager has not appointed a protected teacher in the additional division vacancy by complying with the conditions of 1:1 ratio in the additional division vacancies. The other reason is that the petitioner has not studied Malayalam at any level of study.

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In the counter affidavit filed by the 5th respondent, it is stated

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that the petitioner, not having studied Malayalam language either under Part-I or Part-II or as a medium of instruction through the regular course of

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W.P.(C) No.15042 OF 2021

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studies, the proposal for approval was rejected. It is further contended that

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there is no anomaly in the proceedings issued by the 5th respondent.

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I have heard Sri. T.T. Muhammood, the learned counsel

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appearing for the petitioner, Sri. Shery J. Thomas, the learned counsel appearing for the 5th respondent and the learned Government Pleader.

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Two reasons are stated in the impugned orders for declining approval to the appointment of the petitioner. The first reason is that the petitioner has not studied Malayalam language either under Part-I or Part-II as a medium of instruction through a regular course of studies. I find that the learned Single Judge of this Court had occasion to consider the very same issue and by judgment dated 07/09/2016 in W.P.(C).No. 29317 of 2016, this Court held that when the express provisions of the KER do not mandate that the person should have studied Malayalam language in SSLC for the purpose of obtaining an appointment, the respondent would not be justified in insisting for the same on the basis of certain Government orders. It was also held that Government orders prescribing the qualifications cannot supplant the qualifications prescribed in the rules, and in the event of conflict, it is the rule that should prevail. It appears that the judgment rendered by the learned single Judge was taken up in an appeal and division bench of this Court in a judgment dated 07/08/2017 in W.A.No. 135 of 2017

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W.P.(C) No.15042 OF 2021

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had observed as follows:

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Heard. It is no doubt true that Ext.P4 contains a stipulation that the candidates, who have not studied the regional language ‘Malayalam’ either under Part I or Part II or as Medium of Instruction of S.S.L.C., would not be appointed to the post of UPSA. However, Ext. P4 has been subsequently clarified by Ext. P5 dated 4.6.2002, as rightly pointed out by the counsel for the first respondent. Going by Ext. P5, possession of a degree in any subject and B.Ed conferred by or recognised by the Universities in Kerala is sufficient qualification for being appointed as UPSA. Admittedly, the first respondent possesses the said qualifications.

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We also notice that she is a person, who has passed her B.A.Degree in Literature with ‘Malayalam’ as second language. Therefore, the fact that she has sufficient proficiency in malayalam cannot be disputed. She is also a person whose mother tongue is Malayalam. Therefore, we find absolutely no justification for the rejection of approval to her appointment, as done in Ext. P2. The learned Single Judge has therefore rightly interfered with the said proceedings and directed reconsideration of the said question.

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I find that in Ext.P9 order, the Secretary has noted that the petitioner has successfully passed the course conducted by the Kerala State Literacy Mission Authority in 2019. Furthermore, it appears that the petitioner is teaching English in an English medium section of the UP section. In that view of the matter, the first reason stated in the order of rejection cannot be sustained.

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Insofar as the second reason stated in the order is concerned, I find that the Government has now come up with Ext.P12 and P13 orders granting benefits to teachers like the petitioner. Clause 4(2) of Ext.P12

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W.P.(C) No.15042 OF 2021

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reads as under:

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മാേനജർ അധ�ാപക ബാ�ിൽ നി�ം നിയമാ��തം നിയമിേ�� ഒഴിവിേല�് സംര�ിതാധ�ാപകെന നിയമി� ഉ�രവാ�കേയാ ഭാവിയി��ാ�� ഒഴിവിേല�് നിയമി�ാെമ� സത��ാവന നൽകുകേയാ െച��തീയതി�തൽ നിലവി�� െക.ഇ.ആർ. വ�വ�കളിൽ താൽ�ാലിക ഇളവ്നൽകി നിയമി�െ��ജീവന�ാർ�് നിയമനാംഗീകാരംനൽകാവു�താണ്. ഇവനട�ിലാ��ലംഉ�ാകാ�� ടി�ിക സാ��ികാ��ല��ൾ േനാഷണൽ ആയിരി�ു�താണ്.

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The Government has ordered that in the event of the Manager submitted a declaration, approval can be granted provided all other

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conditions are satisfied. In Ext.P13 order, paragraph No. 2 it has been

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stated thus:

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2016-17 �തൽ 2019-2020 വെരഅധികത�ികകളിൽ നിയമിതരായവ�െട കാര��ിൽ, സംര�ിതാധ�ാപക നിയമനം സംബ�ി�് േകാടതി വിധികൾ�് വിേധയമായിഭാവിയിൽ നിയമനംനട�െമ�സത��ാവനന��െവ�ിൽ നിയമന തീയതി �തൽ േനാഷണലായി അംഗീകാരം നൽകാവു�താണ്. ഇതിനാവശ�മായ സ�തപ��ിെ� മാ�ക സർ�ാർ ഉ�രവിെ� അടി�ാന�ിൽ ത�ാറാ�ി നിയമപരിേശാധന നട�ി െപാ�വിദ�ാഭ�ാസ ഡയറ�ർ നൽേക�താണ്. നിയമന തീയതിഏതായാ�ംസാ��ികആ��ല��ൾ�് 06/02/2021 �േശഷേമഅർഹത ഉ�ായിരി�ക��. ഇ�ാര�ംവ��മാ�ി��ഉ�രവ്െപാ�വിദ�ാഭ�ാസഡയറ�ർ നൽകുകയും അത് ബ�െ��വർ പാലി�ുകയും േവണം.

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Sri. Shery J. Thomas, the learned counsel appearing for the 5th

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respondent, submitted that the 5th respondent has no objection in acting in accordance with Exts.P12 and P13.

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In that view of the matter, I am of the view that the matter requires reconsideration at the hands of the 1st respondent. The following directions

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W.P.(C) No.15042 OF 2021

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are issued.

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a) Exts. P2, P4, P6, P7 and P9 orders will stand quashed.

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b) There will be a direction to respondents 1 to 4 to consider grant

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of approval to the appointment of the petitioner as UPST with effect from 01/06/2017, subject to the condition that the 5th respondent acts in terms of Exts.P12 and P13.

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c) Appropriate decisions shall be taken by the competent among respondents in terms of the directions above within three months from the date of receipt of a copy of this judgment.

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Sd/RAJA VIJAYARAGHAVAN V JUDGE

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anm

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W.P.(C) No.15042 OF 2021

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APPENDIX OF WP(C) 15042/2021

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PETITIONER EXHIBITS

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`Exhibit`	`P1` `TRUE COPY OF ORDER DATED 01.06.2017 ISSUED BY` `THE 5TH RESPONDENT APPOINTING THE PETITIONER` `AS UPSA.`
`Exhibit`	`P2` `TRUE COPY OF ORDER NO. B4-4531/17/L.DIS DATED` `31.08.2018 ISSUED BY THE 4TH RESPONDENT.`
`Exhibit`	`P3` `TRUE COPY OF APPEAL MEMORANDUM SUBMITTED BY` `THE MANAGER BEFORE THE 3RD RESPONDENT ON` `26.09.2018.`
`Exhibit`	`P4` `TRUE COPY OF ORDER NO. B2-9531/2018 DATED` `19.02.2019 ISSUED BY THE 3RD RESPONDENT.`
`Exhibit`	`P5` `TRUE COPY OF REVISION PETITION SUBMITTED BY` `THE PETITIONER BEFORE THE 2ND RESPONDENT` `ON13.05.2019.`
`Exhibit`	`P6` `TRUE COPY OF ORDER NO.` `DPI/4895/2019-EC5/L.DIS. DATED 29.5.2019` `ISSUED BY THE 2ND RESPONDENT.`
`Exhibit`	`P7` `TRUE COPY OF ORDER NO. SJM,/HS-01/2019/K.DIS` `DATED 05.07.2019 ISSUED BY THE 5TH` `RESPONDENT.`
`Exhibit`	`P8` `TRUE COPY OF JUDGMENT DATED 09.07.2019 IN WPC` `18693/19.`
`Exhibit`	`P9` `TRUE COPY OF GO (RT) NO. 2791/2021/G.EDN` `DATED 18.05.2021.`
`Exhibit`	`P10` `TRUE COPY OF GO (MS) NO. 67/2018/G.EDN.DATED` `22.05.2018.`
`Exhibit`	`P11` `TRUE COPY OF JUDGMENT DATED 07.09.2016 IN`
	`WPC.N.29317/2016 PASSED BY THIS HON'BLE`

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W.P.(C) No.15042 OF 2021

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COURT.

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Exhibit P12TRUE COPY OF G.O. (P) NO. 4/21/G.EDN. DATED
06.02.2021.

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Exhibit P13TRUE COPY OF GOVERNMENT LR.NO.
J2/87/2020/G.EDN DATED 25.02.2021.

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RESPONDENTS EXHIBITS : NIL

Nancy Devassy, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Nancy Devassy, v. the State of Kerala

Case brief

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