IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 WP(C).No. 33619 of 2007(B) ----------------------------------------- PETITIONER(S): -------------------------- MINI VENUGOPAL, D/O. T.K. VENUGOPAL, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), GOVERNMENT HIGHER SECONDARY SCHOOL,KULATHUMMEL, TRIVANDRUM-695 572. BY ADVS. SRI.T.C.MOHANDAS, SMT.S.CHITHRA, SRI.T.M.SUNIL. RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS,SHANTHI NAGAR, TRIVANDRUM-1. 3. THE DEPUTY DIRECTOR OF EDUCATION, TRIVANDRUM. R1 TO R3 BY GOVERNMENT PLEADER SRI. P.M.MANOJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON 14/03/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.33619/2007 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPLICATION TD. 22/07/2005. P2: COPY OF THE REPRESENTATION DTD. 16/10/2006. P3: COPY OF THE JUDGMENT DTD. 7/12/2006. P4: COPY OF THE ORDER DTD. 20/04/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.33619 of 2007 ------------------------------- Dated this the 14th day of March, 2011 J U D G M E N T The petitioner is presently working as High School Assistant in Government Higher Secondary School, Kulathummel in Thiruvananthapuram District. She was appointed as High School Assistant in A.V.High School, Ponnani, an aided high school, with effect from 21.6.1993. While she was working as High School Assistant in the said aided high school, she was selected and appointed as High School Assistant in Government service, as per order dated 22.12.2004 and she joined duty on 19.1.2005. 2. While the petitioner was working in A.V.High School, Ponnani, the Government issued the Special Rules for the Kerala Higher Secondary Education State Service, 2001 and the Special Rules for the Kerala Higher Secondary Education Subordinate Service, 2001 and they came into force on 16.4.2001. As per the said special rules, a pass in the State Eligibility Test conducted by the Government of Kerala or by the W.P.(C) No.33619 of 2007 2 agency authorised by the State Government was prescribed as a qualification for appointment as Higher Secondary School Teacher. Rule 10 of the Special Rules for the Kerala Higher Secondary Education State Service, 2001 provided for exemption from passing the State Eligibility Test to certain categories of persons. Rule 10 as it originally stood is quoted below:- 10. Exemptions – (1)Those persons who have passed the State Level Eligibility Test for post of College Lecturers conducted by Government of Kerala are exempted from passing the State Eligibility Test for Higher Secondary School Teacher. (2) Those persons who have passed the National Eligibility Test/Junior Research Fellowship shall be exempted from passing the State Eligibility Test. (3) Persons with Ph.D/M.Phil/M.Ed. Degree shall be exempted from passing the State Eligibility Test provided the M.Phil in the concerned subject should be one awarded by any of the Universities in Kerala or recognised as equivalent thereto by any of the Universities in Kerala.” Rule 9 of the Special Rules for the Kerala Higher Secondary Education Subordinate Service, 2001 as it originally stood also provided for such exemption. It is quoted below:- W.P.(C) No.33619 of 2007 3 “9. Exemption – (1) Those persons who have passed the State Level Eligibility Test for the post of College Lecturers conducted by Government of Kerala are exempted from the State Eligibility Test for Higher Secondary School Teachers. (2) Those persons who have passed National Eligibility Test/Junior Research Fellowship shall be exempted from passing the State Eligibility Test. (3) Persons with Ph.D/M.Phil/M.Ed. Degree shall be exempted from passing the State Eligibility Test provided the M.Phil. In the concerned subject be one awarded by any of the Universities in Kerala or recognised as equivalent by any of the Universities in Kerala. 3. Shortly after the above referred sub rules were framed and issued, Chapter XXXII was introduced in the Kerala Education Rules with effect from 12.11.2001. Rule 10 of Chapter XXXII of the Kerala Education Rules also contain a similar provision for exemption from passing the State Eligibility Test to certain categories of persons. Rule 10 as it originally stood is quoted below:- 10. Exemption:- (1) Those persons who have passed the State Level Eligibility Test for post of College Lecturers conducted by Government of Kerala are exempted from passing the State Eligibility Tests for Higher Secondary School Teacher. W.P.(C) No.33619 of 2007 4 (2) Those persons who have passed the National Eligibility Test/Junior Research Fellowship shall be exempted from passing the State Eligibility Test. (3) Persons with Ph.D/M.Phil/M.Ed. Degree shall be exempted from passing the State Eligibility Test provided the M.Phil in the concerned subject is awarded by any of the Universities in Kerala or recognised as equivalent thereto by any of the Universities in India. 4. By G.O.(P) No.37/2005/G Edn dated 4.2.2005, published in the Kerala Gazette dated 4.2.2005, clause (4) was incorporated in Rule 10 of the Special Rules for the Kerala Higher Secondary Education State Service,2001. Clause 10(4) reads as follows:- “10(4) Teachers who have completed ten years of approved teaching service at the High School level in the General Education Subordinate Service shall be exempted from passing the State Eligibility Test for Higher Secondary School Teacher”(emphasis supplied) Like wise, clause (4) was incorporated in Rule 9 of the Special Rules for the Kerala Higher Secondary Education Subordinate Service, 2001 as per G.O.(P) No.36/2005/G Edn dated 4.2.2005, published in the Kerala Gazette dated 4.2.2005. Clause 9(4) reads as follows:- W.P.(C) No.33619 of 2007 5 “9(4) Teachers who have completed ten years of approved teaching service at the High School level in the General Education Subordinate Service shall be exempted from passing the State Eligibility Test.” (emphasis supplied) Rule 10 of Chapter XXXII of Kerala Education Rules was also amended by introducing sub-rule (4) therein. Rule 10(4) of Chapter XXXII reads as follows:- 10(4) Teachers who have completed ten years of approved teaching service at the High School level shall be exempted from passing the State Eligibility Test. 5. The Director of Higher Secondary Education thereafter issued a notification No.Ad.B2-8722/2005/HSE dated 30.5.2005, inviting applications from Higher Secondary School Teachers/Upper Primary School Assistants/Lower Primary School Assistants in Government service as on 31.7.2005, who possess the prescribed qualifications, for appointment by transfer as Higher Secondary School Teacher/Higher Secondary School Teacher(Junior). The petitioner thereupon submitted Ext.P1 application dated 22.7.2005 in which she claimed exemption from passing the State Eligibility Test on the ground W.P.(C) No.33619 of 2007 6 that she has 10 years of approved teaching service at the high school level. Since the petitioner had not passed the State Eligibility Test and was not eligible for exemption under the rules, her application was not considered and her name was not included in the final seniority list of High School Assistants published by the Director of Higher Secondary Education along with his proceedings dated 15.6.2006. The petitioner thereupon submitted Ext.P2 representation before the Government complaining about the non inclusion of her name in the said list. She contended that as she has 10 years of approved teaching service at high school level, by virtue of her service in A.V.High School, Ponnani, since 21.6.1993, she is exempted from passing the State Eligibility Test. She thereafter filed W.P.(C) No.31905 of 2006 in this Court seeking a direction to the Government to consider her appeal wherein she had sought inclusion of her name in the final seniority list. The said writ petition was disposed of by this Court on 7.12.2006 by directing the Government to consider Ext.P2 representation in accordance with law, after affording the petitioner and any other person W.P.(C) No.33619 of 2007 7 who would be affected by the outcome of Ext.P2, an opportunity of being heard, within a period of ten weeks from the date of receipt of a copy of the judgment. The Government thereafter considered Ext.P2 representation (Ext.P4 in W.P.(C) No.31905 of 2006) and passed Ext.P4 order rejecting the petitioner's claim for inclusion in the seniority list of qualified departmental teachers for appointment as Higher Secondary School Teacher. Ext.P4 is under challenge in this writ petition. 6. It is contended that under the Special Rules for the Kerala Higher Secondary Education State Service and the Kerala Higher Secondary Education Subordinate Service, teachers who have completed 10 years of approved teaching service at the high school level are exempted from passing the State Eligibility Test; that the words “in the General Education Subordinate Service” qualify the teachers and not the length of service, and therefore, Ext.P4 order is liable to be set aside. It is further contended that if the words 'in the General Education Subordinate Service' qualifies teachers who are eligible for exemption, then the rule granting exemption would become W.P.(C) No.33619 of 2007 8 arbitrary and liable to be declared invalid as offending Articles 14 and 16 of the Constitution of India. It is also contended that there is no justification to draw a distinction between the experience gained by teachers who have approved teaching service at the high school level in aided schools and the experience gained by the teachers serving at the high school level in Government schools. It is contended that the qualifications for appointment as High School Assistant in Government/Aided schools are one and the same and that the mere dissimilarity in the method of appointment is not a valid ground to confine the benefit of exemption to Government school teachers only. 7. The Director of Higher Secondary Education has sworn to a counter affidavit dated 3.12.2008, wherein it is contended that though the qualifications prescribed for appointment as High School Assistant in aided schools and in Government service are the same, the method of appointment is different, and therefore, the teaching experience gained by High School Assistants working in aided schools cannot be equated W.P.(C) No.33619 of 2007 9 with the teaching experience gained by teachers of Government schools. It is stated that as the petitioner has not passed the State Eligibility Test, she was not eligible for exemption and therefore her name was not included in the seniority list of qualified departmental teachers for appointment as Higher Secondary School Teacher. It is also stated that the approved teaching service at the high school level must be in the General Education Subordinate Service. The petitioner has filed a reply affidavit dated 15.3.2009 reiterating her contentions. 8. The writ petition came up for hearing before me initially on 3.4.2009. On that day, I directed the Secretary to Government, General Education Department, to file an affidavit explaining the meaning of the term “10 years of approved teaching service at high school level in the General Education Subordinate Service occurring in sub-rule (4) of Rule 9 of the Kerala Higher Secondary Education Subordinate Service Rules, 2001 and in sub-rule (4) of Rule 10 of the Kerala Higher Secondary Education State Service Rules, 2001.” Such an affidavit was directed to be filed on or before 22.5.2009. When W.P.(C) No.33619 of 2007 10 the writ petition came up for hearing on 25.5.2009, the learned Government Pleader sought two weeks further time to file the affidavit. The said request was allowed and the respondents were granted time till 15.6.2009 to file an affidavit. Pursuant to the said direction, the Under Secretary to Government, General Education Department has filed an affidavit dated 29.6.2009. In paragraph 6 thereof, it is stated as follows:- “6. As per G.O.(P) No.26/2005/General Education dated 4.2.2005 and G.O.(P) No.37/2005/General Education dated 4.2.2005, the Kerala Higher Secondary Education Subordinate Service Rules 2001 has been amended. As per Rule 9(4) of the amended Rules the teachers who have completed ten years of approved teaching service in the General Education Subordinate Service shall be exempted from passing the State Eligibility Test. It is stipulated that ten years approved teaching service is necessary in General Education Subordinate Service. It is submitted that while amending the special rules for Kerala Higher Secondary Education State Service and Kerala Higher Secondary Education Subordinate Service a mistake was occurred in Rule 10(4) and 9(3) respectively of the above Special Rules in stating that Kerala General Education Subordinate Service. It is submitted that the service intended in Kerala General Education Service and not Kerala General Education Subordinate Service. It is submitted that there is no Kerala Education Subordinate Service under the W.P.(C) No.33619 of 2007 11 Government of Kerala. What was intended in Kerala Education Service and not otherwise, the above mistake was an inadvertent mistake and steps are being taken for correcting the above mistake by issuing suitable amendment. HSAs/UPSAs/LPSAs who were in General Education Subordinate Service as on 31.7.2005 and possess the requisite qualification prescribed in the Special Rules, for appointment by transfer as Higher Secondary School Teacher/Higher Secondary School Teacher (Jr.) Smt.Mini Venugopal, the petitioner had applied as per the notification. She has not passed the State Eligibility Test. She joined as High School Assistant in General Education Subordinate Service only on 19.1.2005. As on 31.7.2005 she had only 6 months approved teaching service under General Education Service. Hence the provision of exemption from SET is not applicable to her. She was not included in the seniority list of eligible High School Assistants.”(emphasis supplied) 9. Later, the first respondent filed I.A.No.8989 of 2009 to withdraw the said counter affidavit. It is stated therein that the statement in the affidavit dated 29.6.2009 that there is no service known as 'Kerala General Education Subordinate Service' is factually incorrect; that a service known as Kerala General Education Subordinate Service is included as item 12 B in Schedule II to the Kerala Civil Services (Classification, W.P.(C) No.33619 of 2007 12 Control and Appeal) Rules, 1960 and that in such circumstances, the respondents may be permitted to withdraw the counter affidavit dated 29.6.2009 and to file a fresh counter affidavit. The said application was filed on 20.7.2009. Two days later, a counter affidavit dated 20.7.2009 sworn to by the Joint Secretary to Government, General Education Department was also presented. Paragraphs 9, 10 and 11 thereof are extracted below:- “9. As per G.O.(P) No.36/2005/G.Edn. Dated 4.2.2005 and G.O.(P) No.37/2005 General Education dated 4.2.2005, the Kerala Higher Secondary Education Subordinate Service Rules, 2001 has been amended and as per the amended provision, the teachers who have completed ten years of approved teaching service at the High School Level in the General Education Subordinate Service shall be exempted from passing State Eligibility Test. 10. As the post of High School Assistant in Aided School do not come under the purview of General Education Subordinate Service, the service rendered by the petitioner in aided school and Government School cannot be put together. 11. Even though the basic qualification for appointment to the post of High School Assistant in both Aided and Government schools are same the mode of selection and appointment in both cases are entirely different and hence both the W.P.(C) No.33619 of 2007 13 services cannot be taken together. Even though both categories of teachers are performing the same duties the former category is only Government paid employees while the latter category is Government employee. It is submitted that Rule 2 Sub Rule 15 of the KS & SSR define “Service”. It means a group of persons classified by the State Government or Subordinate Service as the case may be. Part II of Kerala Civil Service (Classification Control and Appeal) Rules classifies the services of State Service and Subordinate Services. Rule 7 classifies State Service which means that the State Services shall consist of the services included in Schedule I and Rule 8 classifies subordinate services which means the Subordinate Services shall consist of the services included in the Schedule II. In schedule II of KCS (C C & A) Rules Serial No.12 B is the Kerala General Education Subordinate Service. Therefore the Kerala General Education Service is coming under the Subordinate Services. The Special Rules for Kerala Education Subordinate Services were issued as per G.O.(P) No.186/72 S.Edn. Dated 22.12.1972. In the above rules, Rule 3 provides that no High School Assistant shall be considered for being selected for posting as an Assistant Educational Officer unless he has passed the test in Kerala General Education Act and Rules. The above Rule 3 was omitted by G.O.(P) No.58/80/G.Edn dated 22.5.1980. The reason for omission of Rule 3 was that the posts of Assistant Educational officer was earlier in the Kerala Education Subordinate Service and subsequently it was included in the State Rules. From Rule 3 it is evident that the posts of High School Assistant is coming under the Kerala General Education Subordinate Services. It is W.P.(C) No.33619 of 2007 14 submitted that even though the Special Rules for Kerala General Educational Subordinate Service issued as per G.O. dated 22.12.1972 posts which are coming under the Kerala General Education Subordinate Service has not been specifically mentioned therein. In Rule 10 of Kerala State and Subordinate Service Rules provides that Educational or other qualifications if any required for a post shall be specified in the Special Rules applicable to the service in which that post is included or as specified in the executive orders of the Government, in cases where Special Rules have not been issued for posts/Services. It is submitted that the posts of High School Assistant is coming under the Kerala General Education Subordinate Service and the method of appointment of High School Assistant in Government Schools are prescribed in the Government Orders. It is further submitted that the posts of High School Assistant is in the General Education Subordinate Service and 10 years approved teaching experience at the High School level in the General Education Subordinate Service is a must for exemption from passing the State Eligibility test. Therefore, the contentions and averments made in the writ petition is devoid of force and merit and the same is liable to be dismissed with costs.”(emphasis supplied) The substance of the said counter affidavit is that the post of High School Assistant in aided schools does not come within the purview of the General Education Subordinate Service, and therefore, the service rendered by the petitioner in an aided W.P.(C) No.33619 of 2007 15 school cannot be reckoned for the purpose of grant of exemption. 10. I heard the learned counsel appearing on both sides. I have also gone through the pleadings and the materials on record. The dispute involved in the writ petition centers around the interpretation to be placed on the term 'General Education Subordinate Service'. The short question that arises for consideration is whether aided school teachers are members of the General Education Subordinate Service and whether they are entitled to be benefit of exemption contemplated in rule 10(4) of the Special Rules for the Kerala Higher Secondary Education State Service, 2001 and Rule 9(4) of the Special Rules for the Kerala Higher Secondary Education Subordinate Service, 2001, in the matter of passing the State Eligibility Test. The contention of the petitioner is that the term 'General Education Subordinate Service' qualifies only teachers in Government service and that it has nothing to do with the teaching experience of 10 years at high school level which exempts such teachers from passing the State Eligibility W.P.(C) No.33619 of 2007 16 Test. In the alternative, it is contended that unless such an interpretation is placed on the rules, the rules will become arbitrary and liable to be declared invalid as offending Articles 14 and 16 of the Constitution of India. It is contended that when persons similarly situated are treated differently by the Government giving exemption only to a few, such exemption will be liable to be struck down as discriminatory. 11. Rule 10 (4) of the Special Rules for the Kerala Higher Secondary Education State Service, 2001 and rule 9(4) of the Special Rules for the Kerala Higher Secondary Education Subordinate Service, 2001 stipulate that teachers who have completed ten years of approved teaching service at the high school level in the General Education Subordinate Service shall be exempted from passing the State Eligibility Test. The petitioner entered Government service on 19.1.2005. Prior to that, she was serving as High School Assistant in an aided school from 21.6.1993 onwards. The contention of the petitioner is that the service rendered by her in the aided school qualifies her for exemption from passing the State Eligibility Test. I am W.P.(C) No.33619 of 2007 17 afraid, the said contention cannot be countenanced. Rule 7 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 states that the State Services shall consist of the services included in Schedule I. Rule 8 thereof stipulates that the Subordinate Services shall consist of the services included in Schedule II to the said rules. The Kerala General Education Service is included as Item 12B in Schedule I and the Kerala General Education Subordinate Service is included as Item 12B in Schedule II to the said rules. Rule 2(f) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, states that 'Services' means a group of persons classified by the State Government as a State or Subordinate Service, as the case may be. Going by the said definition and the fact that the Kerala General Education Subordinate Service is a service included in the list of Subordinate Services, it is evident that by rule 10 (4) of the Special Rules for the Kerala Higher Secondary Education State Service and rule 9 (4) of the Special Rules for the Kerala Higher Secondary Education Subordinate Service, the Government intended to exempt only those teachers who have W.P.(C) No.33619 of 2007 18 completed ten years of approved teaching service at the high school level in the General Education Subordinate Service from passing the State Eligibility Test. The petitioner became a member of the General Education Subordinate Service only on 19.1.2005, when she joined duty in Government service pursuant to the appointment order dated 22.12.2004. Therefore, on a plain reading of the rules, the service of the petitioner after such appointment at the high school level alone can be reckoned for the purpose of computing the length of service required for grant of exemption under rule 10 (4) of the Special Rules for the Kerala Higher Secondary Education State Service and rule 9 (4) of the Special Rules for the Kerala Higher Secondary Education Subordinate Service. The petitioner does not admittedly satisfy the said requirement. Therefore, the Director of Higher Secondary Education was perfectly right in issuing Ext.P4 order. 12. Then the question is whether the grant of exemption to Government school teachers alone is arbitrary or discriminatory. As noticed earlier, the petitioner was an aided W.P.(C) No.33619 of 2007 19 school teacher who was governed by Chapter XXXII of the Kerala Education Rules till she joined duty in Government service on 19.1.2005. If the petitioner had continued as teacher in an aided school, she would have been exempted from passing the State Eligibility Test as contemplated in sub-rule(4) of Rule 10 of Chapter X of Kerala Education Rules on completing 10 years of service at the high school level, viz., in the year 2003. She later left the aided school and joined Government service in the year 2005. Though the provisions of the Special rules for the Kerala Higher Secondary Education Subordinate Service, 2001 and the Special Rules for the Kerala Higher Secondary Education State Service, 2001 quote above contemplate grant of exemption to Government school teachers also, only teachers who have completed 10 years Government service are exempted from passing the State Eligibility Test for appointment as Higher Secondary School Teacher. The petitioner challenges the said provision as arbitrary and discriminatory on the ground that aided school teachers who have a similar length of service are not given the benefit of exemption. The said contention is W.P.(C) No.33619 of 2007 20 raised on the ground that the qualifications for appointment as High School Teacher and the duties of a high school teacher are the same, whether it be in the private sector or in the Government service. It is also contended that the salary and allowances paid to the high school teachers is also identical. In my opinion that by itself is