IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WP(C).No. 1214 of 2008() -------------------------------------- PETITIONER(S): ------------------------ DR.NICEMOL SEBASTIAN, HSST (SENIOR) IN MATHEMATICS, GOVERNMENT MEDICAL HIGHER SECONDARY SCHOOL, KOZHIKODE. BY ADV. MR.P.C.SASIDHARAN RESPONDENT(S): ------------------------ 1. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. MR.ALEXANDER THOMAS,SC, KPSC FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON 09/06/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.1214/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTIFICATION DT. 17.12.2006. P2:- COPY OF THE CERTIFICATE OF DEGREE AWARDED BY THE ANNAMALAI UNIVERSITY. P3:- COPY OF THE CERTIFICATE ISSUED BY THE SREE SANKARACHARYA UNIVERSITY. P4:- COPY OF THE MEMO ISSUED BY THE COMMISSION TO THE PETITIONER. P5:- COPY OF THE SERVICE CERTIFICATE ISSUED BY THE COMPETENT AUTHORITY. P6:- COPY OF THE REPRESENTATION SUBMTITED BY THE PETITIONER BEFORE THE COMMISSION. P7:- COPY OF THE MEMO ISSUED BY THE COMMISSION. P8:- COPY OF THE RECOGNITION ORDER ISSUED BY THE JOINT SECRETARY TO GOVERNMENT, STATE OF TAMIL NADU. P9:- COPY OF THE REPRESENTATION DT. 31.12.07. P10:- COPY OF THE LIST OF RECOGNISED UNVIERSITIES PUBLISHED BY THE P.S.C. P11:- COPY OF THE COMMUNICATION ISSUED BY THE U.G.C. DT. 6.5.08. P12:- COPY OF THE COMMUNICATION DT. 15.4.2008. P13:- COPY OF THE NOTIFICATION APPEARED IN THE BULLETIN PUBLISHED BY THE COMMISSION 29.1.09. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.1214 of 2008-T - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2009. JUDGMENT The petitioner is aggrieved by the communication Ext.P7 issued by the Public Service Commission by which her application for appointment to the post of Lecturer in Educational Psychology stands rejected. 2. Ext.P1 is the notification published by the Public Service Commission inviting application for appointment in the above post. The appointment is by recruitment by transfer from among Headmasters and High School Assistants in the Kerala General Education Subordinate Service and Teachers of Government Higher Secondary Schools having the qualifications and experience prescribed for the post. 3. The qualification prescribed as per the notification is the following: “(1)Master's Degree in the concerned subject or discipline with atleast 55% (fifty five) marks or its equivalent and good academic records; (2) M.Ed. Degree with knowledge of special methods of teaching the subject; (3) Three years teaching experience in schools or colleges after wpc 1214/2008 2 acquiring the professional qualification. (4) Must have passed a comprehensive test specifically conducted for the purpose by U.G.C. or any agency duly constituted by the State Government in this behalf. When qualifications are equal, preference shall be given to candidates who possess adequate knowledge in Malayalam.” There is a Note to the said para which is to the following effect: “For recruitment to various posts of Lecturers, Degrees awarded by the Universities recognised by the U.G.C. alone shall be considered.” The petitioner is having the following qualifications: M.Sc. Degree in Mathematics, M.A. Degree in Applied Psychology and M.Ed. She was awarded the Doctoral Degree in Education in the year 2006 and has also acquired National Eligibility Test. 4. The petitioner was appointed as H.S.A. (Maths) on the advice of the Public Service Commission in the year 1990. Her probation in that cadre was declared on 18.9.1992. While holding the said post, she was appointed as H.S.S.T. in Maths on 24.10.2002 and was subsequently promoted as H.S.S.T. (Senior) on 15.7.2003. She has completed the period of probation in the cadre of both HSST (Junior) and HSST (Senior) but no formal orders have been passed declaring her probation. wpc 1214/2008 3 5. In Ext.P7, three reasons have been pointed out, viz. that after acquiring the qualification in M.A. Psychology, three years experience has not been acquired, probation has not been declared in the post of HSST and that the M.A. Psychology Degree is one obtained by Distance Education and no equivalency certificate issued by any of the Universities in Kerala, has been produced. 6. Learned counsel for the petitioner submitted that all these three reasons are not sustainable. The experience required is after acquisition of M.Ed. qualification which is the professional degree, whereas the post graduate qualification in M.A. Psychology is the academic degree. Therefore, the first reason is not correct. The probation of the petitioner as H.S.A. has already been declared and therefore the objection that in the HSST post it is not declared, cannot be a reason to reject the application. It is pointed out that going by the notification and the Note to clause 6 therein, Degrees awarded by Universities recognised by the U.G.C. alone will be considered. Annamalai University is one of the Universities recognised by the U.G.C. and therefore equivalency certificate is not required. In support of the said argument, learned counsel for the petitioner has also produced Ext.P10 published by the Public Service Commission showing the names of recognised Universities and Annamalai University wpc 1214/2008 4 finds a place there. Ext.P11 is the reply given by the Joint Secretary to the University Grants Commission stating that Annamalai University, Tamil Nadu has been established by an act of State Legislature and empowered to award degrees as specified under Section 22 of the U.G.C. Act, 1956. Ext.P12 is the reply given by the Additional Director and Public Information Officer of the Directorate of Collegiate Education, which will show that the professional qualification required is M.Ed. 7. In the counter affidavit filed by the Public Service Commission, the rejection of the application is supported. 8. Learned counsel for the petitioner submitted that the method of acquiring qualification by Distance Education is a well accepted method and there is no stipulation in the notification that such a qualification should be one recognised by any of the Universities in Kerala and in the absence of the same, going by the decisions of Division Benches of this Court in Mujeeb Rahman v. State of Kerala (2005 (1) KLT 680 and Public Service Commission v. Abdul Rasheed (2007 (3) KLT 881), the Commission cannot insist that there should have been recognition by the Universities in Kerala. 9. In Mujeeb Rahman's case (2005 (1) KLT 680), this court held wpc 1214/2008 5 that the relevant rules make no distinction between M.A. Degree obtained through regular course of study and through distant education. The qualifications provided in the rule considered in the said case only provided that M.A. Degree recognised as equivalent by any of the Universities in the State of Kerala, will be the required one. In that view of the matter, the Bench was of the view that the application of the petitioners shall not be rejected for the reason that they have obtained Master's Degree through correspondence course provided those degrees have also been recognised by any of the Universities in the State of Kerala. In the subsequent decision in Public Service Commission's case (2007 (1) KLT 881), it was held that the Public Service Commission cannot weed out candidates who had not undergone course in 10 + 2+ 3 pattern or not obtained degree through regular course of study. There, the basic qualification provided is a Degree in Arabic and B.Ed./B.T./L.T. conferred or recognised by the Universities in Kerala. Herein, going by the qualification that is prescribed, the requirement is that it should be a Degree awarded by the Universities recognised by the U.G.C. alone. In that view of the matter, the objection raised in Ext.P7 that equivalency certificate issued by any of the Universities in Kerala should be produced, cannot be sustained. 10. Learned counsel for the petitioner is right in submitting that the wpc 1214/2008 6 experience required is after acquiring M.Ed. qualification. M.A. Psychology is an academic degree and it is not a professional degree. Professional degree for teaching is M.Ed. She has got the required experience after acquisition of M.Ed. qualification which is evident from the pleadings also. The argument of the learned counsel for the petitioner is supported by Ext.P12 reply by the Public Information Officer of the Directorate of Collegiate Education. Therefore, the said reason pointed out in Ext.P7 also cannot be sustained. 11. Then the other question is whether in the absence of declaration of probation as HSST, the application could be accepted. Ext.P5 is the copy of the Service Certificate submitted by the petitioner along with the application. It shows that she is working as HSST, but her probation has not been declared. Even though the learned counsel for the petitioner submitted that the petitioner should be treated as a person seeking appointment by transfer from H.S.A. post, since her application is evidently submitted while working as HSST and as she has not raised a separate claim to treat her as H.S.A. either in Ext.P5 or in Ext.P9 submitted by her, the said argument cannot be accepted. Ext.P9 is the detailed representation submitted by her after rejection of the application. Even though she has objected to the rejection of the application on the ground that her probation wpc 1214/2008 7 has not been declared, the stand taken in Ext.P9 is that she has only completed the period of probation and the delay in the matter cannot be taken against her. It is therefore prayed in Ext.P9 that she may be treated as a regular teacher in Government service. Therefore, it is not a case where she is seeking to treat her as H.S.A., but she has maintained the stand that she has already completed the period of probation as HSST and the non declaration of probation is not due to any fault on her part. 12. Learned counsel for the Public Service Commission relied upon Rule 2(13) of KS & SSR defining 'recruitment by transfer', in support of his argument. Going by the proviso to the said rule, “wherein the Special Rules for a service provide for recruitment by transfer to any class or category thereof from any specified class or category of another service, a candidate shall, unless the recruitment is made from a post carrying an identical scale of pay, be a full member or an approved probationer of the class or category so specified.” 13. Going by the recent decision of a Division Bench of this court in Manju Varghese v. State of Kerala (2009 (1) KLT 722), only a full member or an approved probationer is eligible to be considered for appointment by transfer. In that view of the matter also, the petitioner whose probation has not been declared, will not be eligible. wpc 1214/2008 8 14. Evidently, the petitioner has sought for an appointment by transfer from the post of HSST only. Admittedly, the period of probation has not been declared. In that view of the matter, the rejection of the application for the said reason cannot be said to be unsustainable. 15. Apart from the same, it is submitted by the learned counsel for the Commission that the selection pursuant to Ext.P1 notification was not completed and fresh notification has been issued in the Gazette dated 29.1.2009, a copy of which was made available for perusal. Four vacancies have been notified in Educational Psychology. In the light of the said development also, the petitioner is not entitled for a direction to accept her candidature for filling of the post notified as per Ext.P1. The writ petition fails and it is accordingly dismissed. (T.R. Ramachandran Nair, Judge.) kav/