IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 OP.No. 21996 of 1999(R) ------------------------------ PETITIONER(S): --------------- T.M. GEETHA, LECTURER IN EDUCATIONAL PSYCHOLOGY, GOVERNMENT INSTITUTE FOR ADVANCED STUDY IN EDUCATION, TRICHUR – 20. BY ADV. MR.P.RAMAKRISHNAN MR.C.ANIL KUMAR RESPONDENT(S): --------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARYT TO GOVERNMENT, DEPARTMENT OF EDUCATION, TRIVANDRUM. 2. THE DIRECTORATE OF COLLEGIATE EDUCATION, TRIVANDRUM. 3. THE PRINCIPAL, INSTITUTE OF ADVANCED STUDY IN EDUCATIN, TRICHUR. MS. SMITHA SUKUMAR - GOVERNMENT PLEADER FOR R1 &2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 21996 of 1999 ORDER ON C.M.P.NO.36230 OF 1999 AND I.A.NO.11776/07 IN O.P.NO.21996 OF 1999 CLOSED. 2.2.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF ADVICE FOR APPOINTMENT RECEIVED BY petitioner DT. 15.11.96 AS LECTURER. EXT.P2: COPY OF APPOINTMENT ORDER DT. 31.12.96 ISSUED TO PETITIONER BY R2. EXT.P3: COPY OF RANK LIST OF SELECTED CANDIDATES ISSUED BY PSC EFFECTIVE FROM 1.11.96. EXT.P4; COPY OF NOTIFICATION FOR SELECTION BY PSC IN GAZETTEE DT. 11.8.87. EXT.P5: COPY OF DEGREE CERTIFICATE OF PETITIONER DT. 10.12.1987. EXT.P6: COPY OF RANK CERTIFICATE OF PETITIONER ISSUED BY CALICUT UNIVERSITY DT. 26.6.80. EXT.P7: COPY OF MEMORANDUM OF MARK LIST OF PETITIONER DT. 21.4.80. EXT.P8: COPY OF RELIEVING ORDER ISSUED TO PETITIONER DTD 14.1.97. EXT.P9; COPY OF CERTIFICATE FROM ANNAMALA UNIVERSITY DT. 14.12.90. EXT.P10: COPY OF MEMO OF CHARGES ISSUED TO PETITIONER BY R2 DT 3.8.99. EXT.P11: COPY OF RANK LIST CAME INT FORCE ON 20/10/87. EXT.P12: COPY OF LETTER DATED 25.11.88 OF THE MINISTRY OF HUMAN RESOURCES DEVELOPMENT (DEPARTMENT OF EDUCATION). EXT.P13: COPY OF LETTER DATED 17/12/91 OF THE STATE OF TAMIL NADU. EXT.P14: COPY OF A LETTER DATED 6/12/90 RECEIVED FROM THE CALICUT UNIVERSITY. OP.No. 21996 of 1999 EXT.P15; COPY OF THE RELEVANT PAGES FROM THE WEBSITE OF THE KERALA UNIVERSITY. RESPONDENT'S EXHIBITS EXT.R1(a): COPY OF LETTER NO.AC/C3/1551/97 DATED 28.4.97. EXT.R1(b): COPY OF LETTER NO.Ca-1/L1/4151/97 DATED 18-8-97. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.21996 OF 1999 ---------------------------------------- Dated this the 2nd day of February, 2009 JUDGMENT In 1987, the Kerala Public Service Commission invited applications from eligible candidates for selection to the post of Lecturer in Educational Psychology in the Institute of Advanced Studies in Education, Thrissur, which is a Government organisation. The petitioner was originally working as a High School Assistant. Appointment to the post of Lecturer in Educational Psychology in the said Institute was by selection through P.S.C. At the relevant time, the qualifications prescribed for the said post were; “Lecturer Recruitment (1) M.A/M.Sc.Psychology I or (Educational by transfer II Class with specialisation Psychology) or in Educational Psychology By direct of any University recognised by the Universities in Kerala. (2) M.Ed I or II Class. or (i) M.A./M.Sc.I or II Class in any subject of any University recognised by the Universities in Kerala. O.P.No.21996/99 2 (ii) M.Ed.I or II Class with advanced Educational Psychology as a subject of study of any University recognised by the Universities in Kerala”. The petitioner possessed M.A. Degree in Psychology from Annamalai University, as evidenced by Ext.P5 dated 10.12.1987. That degree was obtained through correspondence course. She had passed M.Ed. Degree from the University of Calicut with first rank as evidenced by Ext.P6 rank certificate. Pursuant to the selection process undergone by the petitioner, the PSC by Ext.P1 advice memo dated 15.11.1996 advised the petitioner for appointment. By Ext.P2 appointment order dated 31.12.1996, the petitioner was appointed to the post. At the relevant time, the petitioner was working as Senior Lecturer in the 'DIET'. By Ext.P8, she got herself relieved from that post and joined the Institute as Lecturer in Educational Psychology. Subsequently, the petitioner was served with Ext.P10 memo of charges directing the petitioner to show cause as to why the petitioner's O.P.No.21996/99 3 appointment should not be cancelled under Rule 13(a) of Part II of KS & SSR for the reason that the petitioner does not possess the requisite qualification for appointment as Lecturer in Educational Psychology. The petitioner is challenging Ext.P10 in this original petition. 2. The petitioner raises several contentions against Ext.P10. First is that Section 13(a) of Part II of KS & SSR does not confer any power on either the appointing authority or the Government to cancel an appointment made pursuant to advice by the PSC. The only provision in the KS & SSR is Rule 3(c) conferring power on the PSC to cancel the advice made by the PSC, which action has to be taken within one year from the date of advice. According to the petitioner, KS & SSR does not confer any power on the appointing authority or the Government to cancel an appointment made on advice from the PSC. The petitioner would further contend that at no time the petitioner suppressed any material facts either from the PSC or from the appointing authority. She had produced a degree certificate validly obtained from a recognised university before the PSC. The PSC had accepted the same as valid O.P.No.21996/99 4 qualification and advised the petitioner for appointment which cannot now be termed as one on the basis of any suppression or fraud on the part of the petitioner, without which the petitioner's appointment cannot be cancelled by the Government. The petitioner further submits that a Division Bench of this Court had, in somewhat similar circumstances, in State of Kerala V. Suja Kumari [2006(1) KLT 846] held that on such technical grounds it may not be justified to upset such appointments, which would be in the interest of none. The petitioner also points out that there is dearth of qualified candidates in the particular faculty and therefore the Government itself had amended the special rules changing the qualifications as Masters degree in the concerned subject or discipline with at least 55% marks or its equivalent and good academic records instead of MA/M.Sc Psychology I or II Class with specialisation in Educational Psychology of any University recognised by the Universities in Kerala. It is further pointed out that the petitioner had acquired a recognised qualification in so far as the petitioner has subsequently obtained Master's Degree in Sociology from Madhurai Kamaraj University, which O.P.No.21996/99 5 is an alternate qualification mentioned in the special rules as was obtaining at the time of petitioner's appointment. The petitioner, therefore, submits that the proceedings initiated by Ext.P10 are totally without jurisdiction and in any event, unjust and therefore, liable to be set aside. The petitioner, therefore, seeks the following reliefs: “a) a writ of certiorari or other appropriate writ, quashing Ext.P10 and all proceedings of the respondents leading thereto, b) hold that petitioner is qualified to hold the present position held by her and Ext.P1 & P2 are valid in every respect and is not to be interfered with, c) direct that the proceedings proposed should in no way be completed putting her to prejudice in her status and employment, and d) be pleased to pass such interim orders as are deemed necessary on the facts of the case”. 3. A counter affidavit has been filed by the 1st respondent seeking to justify Ext.P10. The contention raised in the counter affidavit is that under Rule 13(a) of Part II of KS & SSR no person is eligible for appointment to any service, clause, category or grade or any post borne on the cadre thereof unless he or she possesses the said special O.P.No.21996/99 6 qualification as prescribed in this behalf in the special rules. The petitioner's MA degree by correspondence course is not recognised by any University in Kerala and therefore the petitioner does not possess the qualification prescribed in the special rules. It is perfectly within the competency of the Government and the appointing authority to cancel an appointment which is against the Rule 13(a) which only has been done by Ext.P10 is the contention in the counter affidavit. 4. I have considered the rival contentions in detail. 5. At the outset I must note that Ext.P10 is issued as a memo of charges with a statement of allegations as follows: “(1) That whereas the Special Rules have prescribed the qualification of I or II Class MA/M.Sc. degree in Psychology recognized by the Universities in Kerala, that you do not possess the requisite qualification. (2) That when you were directed to produce recognition Certificate from the University of Kerala by the Principal Institute of Advance Study in Education, you did not produce the recognition letter from the University”. As such, Ext.P10 is in the nature of disciplinary proceedings. Disciplinary proceedings can be initiated only for misconduct O.P.No.21996/99 7 committed by an employee while in service. In the counter affidavit, the 1st respondent has no case that disciplinary proceedings have been initiated against the petitioner which can only be under the Kerala Civil Services (Classification, Control and Appeal) Rules. They are relying merely on Rule 13 (a) of Part II of KS & SSR. It does not confer any power on the appointing authority or the Government to cancel an appointment pursuant to the advice of the PSC, that too after more than three years. Here, the petitioner was appointed as early as on 3.12.1996. Ext.P10 has been issued on 3.8.1999, almost three years after the appointment of the petitioner. Rule 3(c) of Part II of KS & SSR confers power on the PSC to cancel an advice made by the PSC on any mistake. But that power has to be exercised within one year from the date of advice. The learned Government Pleader admits that in fact the PSC has been addressed for cancellation of the advice and they have informed that, in view of efflux of time, Rule 3(c) cannot be invoked and left it to the appointing authority and the Government to take appropriate action. The learned Government Pleader was not able to show me any provision O.P.No.21996/99 8 anywhere in the service rules applicable, whereby the appointing authority or the Government has powers to cancel an appointment made on the advice of the PSC, even if under a mistake, that too after about three years. That being so, I have considerable doubt regarding the validity of Ext.P 10, which is termed as a memo of charges. Memo of charges as I have already stated can only be in respect of a misconduct. Ext.P10 does not disclose that the petitioner was guilty of any misconduct. Ext.P10 does not even allege that the petitioner had suppressed any material facts or made any misrepresentation regarding qualifications to the PSC. Without a misconduct having been committed, no disciplinary proceedings can also be initiated against the petitioner. In fact the statement of allegations mentioned in Ext.P10 does not disclose any misconduct committed by the petitioner. 6. Even apart from that, I find that in somewhat similar circumstances, a Division Bench of this Court had taken a view in favour of similarly placed petitioner in Sujakumari's case (Supra). In that case, the question which arose was whether a person, who obtained a B.Ed degree by O.P.No.21996/99 9 correspondence course to the post of Higher Secondary School Teacher, can be terminated from service after appointment on the ground that the B.Ed degree obtained by correspondence course is not a qualification recognized for such appointment to the post of Higher Secondary School Teacher. In that case, in paragraph 10, the Division Bench held thus: “10. The petitioners concerned had been working as Higher Secondary School Teacher for over 4 years and had the benefit of a judgment, whereunder they could have hoped for regularisation. It is not as if they are unfit to impart lessons altogether, they are having Masters Degree in the subject, and degree in education by a recognised method. On technical grounds, it may not therefore be justifiable to upset the position and throw them out as it will be in the interest of none. We uphold the judgment”. I am satisfied that the ratio of that decision can be applied to the present case, especially in view of the fact that as per the special rules as it presently stands, the petitioner is actually qualified and the petitioner has in fact further obtained the alternate qualification which was sufficient even as per the special rules which was in force at the time of appointment. As held by the Division Bench in that decision, it is not as if the O.P.No.21996/99 10 petitioner is unfit to impart lessons in Educational Psychology altogether in so far as the petitioner is having a Master’s Degree in Educational Psychology. Therefore, on technical grounds, it may not therefore, be justifiable to upset the position and throw the petitioner out, after all these years as it will be in the interest of none. Accordingly, the original petition is allowed and Ext.P10 is quashed. It is declared that the petitioner is entitled to continue as Lecturer in Educational Psychology pursuant to Ext.P2 appointment order as if she is duly qualified for the post. S. SIRI JAGAN, JUDGE Acd O.P.No.21996/99 11