Rincy a., Vs State of Kerala

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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WEDNESDAY, THE 2^ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947

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WP(C) NO. 35286 OF 2022

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PETITIONER:

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RINCY A., AGED 36 YEARS UPSA, MTUP SCHOOL, ALAYAMON, ANCHAL, KOLLAM PIN-691 324 (RESIDING AT THENGAZHIKATHU VEEDU, PUTHAYAM, KARUKONE PO, PIN-691 306).

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BY ADV S.SANTHOSH KUMAR

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, GENERAL DEPARTMENT, EDUCATION SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001.

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2 DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN-695 014.

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3 THE DISTRICT EDUCATIONAL OFFICER, O/O. DISTRICT EDUCATIONAL OFFICER, PUNALUR, KOLLAM. PIN- 691305.

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4 ASST. EDUCATIONAL OFFICER, O/O. ASST. EDUCATIONAL OFFICER, ANCHAL, KOLLAM, PIN 691306.

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5 THE MANAGER, MTUP SCHOOL, ALAYAMON, ANCHAL, KOLLAM PIN-691 324.

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6 SMT. DIVYA P,

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DIVYA SADANAM(PULLAMKATTIL), THUVAYOOR NORTH, MANAKKALA PO, PATHANAMTHITTA, PIN- 691 551.

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BY ADVS. PRASANTH SUGATHAN, R5 P.RAVEENDRAN, R6 B.BIPIN VARSHA BHASKAR(K/487/2004) THRESSY THOMAS(K/000161/2017) ANUPAMA SIBI(K/698/2019) SRI. P. SANTHOSH KUMAR, SPL.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2025, ALONG WITH WP(C).6147/2023 & 42242/2022, THE COURT ON 02.04.2025 DELIVERED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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WEDNESDAY, THE 2^ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947

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WP(C) NO. 42242 OF 2022

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PETITIONER:

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THE MANAGER, MTUP SCHOOL ALAYAMON ANCHAL, KOLLAM, PIN 691324. REPRESENTED BY RAHIM. M AGED 62 YEARS, S/O MEERASAHIB, CURRENTLY RESIDING AT GREEN VIEW, KARUKONE P.O.,- 691306, POWER OF ATTORNEY HOLDER FOR ABDUL SALIM ,AGED 80 YEARS , S/O.KUNJUVAVAKUNJU, PERMANENTLY RESIDING AT AVOORAYYATH NO 2 NEETHI NAGAR, OPP. KRISTURAJ SCHOOL, PATTATHANAM, KOLLAM ,PIN -691021, CURRENTLY RESIDING AT P.O BOX NO 46700 UAE.

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BY ADVS. S.PRASANTH (AYYAPPANKAVU) VARSHA BHASKAR THRESSY THOMAS

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001.

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2 DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN-695 014.

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3 THE DISTRICT EDUCATIONAL OFFICER, O/O DISTRICT EDUCATIONAL OFFICER, PUNALUR, KOLLAM. PIN-691305

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4 ASST. EDUCATIONAL OFFICER O/O ASST. EDUCATIONAL OFFICER, ANCHAL, KOLLAM, PIN 691306.

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5 SMT. DIVYA P, DIVYA SADANAM (PULLAMKATTIL) THUVAYOOR NORTH, MANAKKALA P.O PATHANAMTHITA, 691551.

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6 RINCY A

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UPSA, MTUP SCHOOL, ALAYAMON ANCHAL, KOLLAM, PIN -691324, RESIDING AT THENGAZHIKATHU VEEDU, PUTHAYAM KARUKONE P.O -691306

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BY ADVS.

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P.RAVEENDRAN, R5 S. SANTHOSH KUMAR, R6 BABY SUJATHA(K/1648/2000), R6 SRI.P. SANTHOSH KUMAR, SPL.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2025, ALONG WITH WP(C).35286/2022 AND CONNECTED CASES, THE COURT ON 02.04.2025 DELIVERED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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WEDNESDAY, THE 2^ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947

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WP(C) NO. 6147 OF 2023

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PETITIONER:

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DIVYA P., AGED 40 YEARS W/O.LATE V.S.ABHILASH, UPST , MTUPS, ALAYAMON, KOLLAM, PIN-691106 ( PRESENTLY OUT OF EMPLOYMENT), RESIDING AT PULLAMKATTIL, THURAVUR NORTH, MANAKKALA P.O, ADOOR, PATHANAMTHITTA DISTRICT, PIN - 691551

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BY ADVS. P.RAVEENDRAN B.BIPIN ARUN BOSE

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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2 THE DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THRIUVANANTHAPURAM, PIN - 695014

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3 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATION OFFICER, PUNALUR, KOLLAM DISTRICT,, PIN - 691305

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4 THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, ANCHAL, KOLLAM DISTRICT, PIN - 691306

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5 THE MANAGER, MTUP SCHOOL, ALAYAMOM, ANCHAL, KOLLAM DISTRICT, PIN - 691106

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6 RINCY.A., THENGEZHIKATHU VEEDU, PUTHAYAM, KARUKONE P.O, PATHANAMTHITTA, PIN - 691306

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BY ADVS. S.PRASANTH (AYYAPPANKAVU), R5 S.SANTHOSH KUMAR, R6 VARSHA BHASKAR ANUPAMA SIBI BABY SUJATHA SRI. P. SANTHOSH KUMAR, SPL.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2025, ALONG WITH WP(C).35286/2022 AND CONNECTED CASES, THE COURT ON 02.04.2025 DELIVERED THE FOLLOWING:

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N. NAGARESH, J.

W.P.(C) Nos.35286 & 42242 of 2022

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and 6147of 2023

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Dated this the 2^nd day of April, 2025

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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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

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marked are referred to as they are referred to and marked in W.P.(C) No.35286/2022.

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The petitioner in W.P.(C) No.35286/2022 is a UPST appointed in the Aided School of which the 5^th respondent

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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

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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.

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The petitioner states that the 6^th respondent

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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.

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The 6^th respondent did not possess K-TET and therefore her appointment was not approved. The Manager

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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.

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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 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.

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The petitioner states that Ext.P9 order holding

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that Rule 51B claimant appointed on 15.07.2021 as UPST is exempted from possessing K-TET qualification is illegal and

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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.

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W.P.(C) No.42242/2022 has been filed by the

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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 respondentState of Kerala ought to have found that the 6^th respondentTeacher is not qualified for appointment as UPST in the vacancy which arose on 01.04.2020.

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W.P.(C) No.6147/2023 has been filed by the

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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.

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The 6^th respondent stated that her husband

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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

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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.

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The 6^th respondent filed appeal before the 3^rd

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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.

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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.

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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

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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.

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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

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requisite qualification for selection and appointment has to be considered taking into account the qualifications possessed when the selection and appointment are done.

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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.

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The counsel for the petitioner adverting to the

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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.

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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

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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.

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I have heard the learned counsel for the petitioners and the learned Special Government Pleader representing the official respondents.

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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

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claimant, the K-TET qualification cannot be applied to her.

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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.

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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

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22.12.2006 and application for employment assistance was made soon thereafter. The 6^th respondent was appointed on 15.07.2021.

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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. 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.

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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

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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.

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Ext.P9 is therefore quashed. The respondents

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are directed to approve the appointment of the petitioner under

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Ext.P1 as UPST. Necessary orders shall be passed within a period of one month.

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W.P.(C) Nos.35286/2022 and 42242/2022 are

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disposed of as above. W.P.(C) No.6147/2023 is dismissed.

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Sd/-

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N. NAGARESH, JUDGE

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aks/28.03.2025

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APPENDIX OF WP(C) 35286/2022

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PETITIONER'S EXHIBITS

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Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 01/12/2021 ISSUED BY THE 5TH RESPONDENT ALONG WITH DECLARATIONS FILED BY THE 5TH RESPONDENT BEFORE THE 4TH RESPONDENT, AEO FOR APPROVAL OF APPOINTMENT. Exhibit P2 TRUE COPY OF ORDER C/22783/2021 DATED 11/01/2022 ISSUED BY THE 4TH RESPONDENT. Exhibit P3 TRUE COPY OF ORDER NO: C/15009/2021 DATED 09/09/2021 OF THE 4TH RESPONDENT. Exhibit P3 A TRUE COPY OF ORDER NO: M/2/2022 DATED 14/02/2022 OF THE 5TH RESPONDENT. Exhibit P4 G.O (P) NO.70/12/G.EDN DATED 01/03/2012 ISSUED BY THE 1ST RESPONDENT. Exhibit P5 TRUE COPY OF THE ORDER NO: B1/ 197165/2022 DATED 17/03/2022 OF THE 3RD RESPONDENT. Exhibit P6 TRUE COPY OF THE ORDER NO: F4/236344/2022 DATED 25/05/2022 PASSED BY THE ADDL. DIRECTOR OF GENERAL EDUCATION. Exhibit P7 TRUE COPY OF THE REVISION PETITION DATED 30/05/2022 FILED BY THE 5TH RESPONDENT MANAGER BEFORE THE 1ST RESPONDENT. Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 15/06/2022 IN W.P(C) NO. 19318/2022. Exhibit P9 TRUE COPY OF G.O(RT) NO.6231/2022/GEDN DATED 29/10/2022 ISSUED BY THE 1ST

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RESPONDENT

Exhibit P10 TRUE COPY OF THE GO(P) NO: 244/12/G EDN. DATED 25/07/2012 OF THE 1ST RESPONDENT.

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Exhibit P11 TRUE COPY OF GO (P) NO: 294/2012/G EDN. DATED 20/09/2012 OF THE 1ST RESPONDENT.

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Exhibit P12 TRUE COPY OF THE LETTER DATED 28/05/2022 OF THE 1ST RESPONDENT TO THE 2ND RESPONDENT.

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RESPONDENT'S EXHIBITS

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TRUE COPY	OF	THE PROVISIONAL
CERTIFICATE	ISSUE	D TO THE 6TH
RESPONDENT	SHO	WING SUCCESSFUL
COMPLETION OF	K	TET CONDUCTED IN
FEBRUARY 2022.

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PETITIONER'S EXHIBITS

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Exhibit P13 True copy of the appointment order dated 02/06/2003 issued by the 5th respondent to Smt Shalini O

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APPENDIX OF WP(C) 42242/2022

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PETITIONER'S EXHIBITS

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Exhibit P1	A TRUE COPY OF THE DATED 01/12/2021 PETITIONER	APPOINTMENT ISSUED BY	ORDER THE
Exhibit P2	A TRUE COPY OF ORDER 11/01/2022 ISSUED BY	C/22783/2021 THE 4TH RESPO	DATED NDENT
Exhibit P3	TRUE COPY OF ORDER DATED 09/09/2021 RESPONDENT	NO. C/1500 ISSUED THE	9/2021 4TH
Exhibit P3(A):	TRUE COPY OF ORDER 14/02/2022 ISSUED BY	NO M/2/2022 THE PETITIONE	DATED R.
Exhibit P4	A TRUE COPY OF G.O ( DATED 01/03/2012 IS RESPONDENT	P) NO. 70/12 SUED BY TH	/G.EDN E 1ST
Exhibit P5	A TRUE COPY OF B1/197165/2022 DATED BY THE 3RD RESPONDENT	THE ORDER 17/03/2022	NO: ISSUED
Exhibit P6	A TRUE COPY OF F4/236344/2022 DATED BY THE ADDL DIRE EDUCATION (ACADEMIC)	THE ORDER 25/05/2022 CTOR OF G	NO: ISSUED ENERAL
Exhibit P7	A TRUE COPY OF THE DATED 30/05/2022 PETITIONER BEFORE THE	REVISION PE FILED BY 1ST RESPONDE	TITION THE NT
Exhibit P8	A TRUE COPY OF T 15/06/2022 IN W.P(C)	HE JUDGMENT NO. 19318/202	DATED 2.
Exhibit P9	A TRUE COPY O NO.6231/2022/G.EDN D THE 1ST RESPONDENT.	F THE G ATED 29/10/20	.O(RT) 22 OF

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Exhibit P10 A TRUE COPY OF THE GO(P) NO: 244/12/G EDN. DATED 25/07/2012 Exhibit P11 A TRUE COPY OF GO (P) NO: 2942012/G EDN. DATED 20/09/2012 Exhibit P12 A TRUE COPY OF THE LETTER DATED 28/05/2022 OF THE 1ST RESPONDENT. Exhibit P13 A TRUE COPY OF THE CERTIFICATE DATED 30-01-2014 ISSUED BY THE SECRETARY, NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS Exhibit P14 THE TRUE COPY OF INTERIM ORDER DATED 04.11.2022 IN W.P (C) 35286 OF 2022

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APPENDIX OF WP(C) 6147/2023

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PETITIONER'S EXHIBITS

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Exhibit-P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 01.12.2021 ISSUED BY THE 5TH RESPONDENT.

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Exhibit-P2 TRUE COPY OF THE PROCEEDINGS BY THE MANAGER MTUPS NO.M/2/2022 DATED 14.2.2022. Exhibit-P3 TRUE COPY OF THE ORDER NO. G.O(RT) NO.6231/2022/GEDN DATED 29.10.2022 BY THE FIRST RESPONDENT. Exhibit-P4 TRUE COPY OF THE INTERIM ORDER DATED 23.09.2021 IN W.P.(C)NO.19808 OF 2021 OF THIS HON’BLE COURT.

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Exhibit-P5 TRUE COPY OF THE PROVISIONAL CERTIFICATE ISSUED TO THE PETITIONER SHOWING SUCCESSFUL COMPLETION OF K-TET CONDUCTED IN FEBRUARY 2022. Exhibit P6 TRUE COPY OF THE ORDER G.O(P)NO. 244/12/G.EDN DATED 25.7.2012.

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RESPONDENT'S EXHIBITS

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Exhibit R6 (b) True copy of the Revision Petition dated 30/05/2022 filed by the 5th respondent before the state government. Exhibit R6 (d) True copy of the appointment order dated 01/12/2021 issued by the 5th respondent Manager. Exhibit R6 (a) True copy of appointment order dated 02/06/2003 issued by the 5th respondent to Smt. Shalini O.

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Exhibit R6 (c) True copy of the order number C/15009/2021 dated 09/09/2021 of the 4th respondent.

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