IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 WP(C).No. 377 of 2007(T) ---------------------------- PETITIONER: -------------- BENNY V.J., HSST (CHEMISTRY), ST. MARY'S COLLEGE H.S.S., SULTHAN BATHERY, KUPPADI POST. BY ADV. SRI.BENOY THOMAS RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM. 3. MANAGER, ST.MARY'S COLLEGE H.S.S., SULTHAN BATHERY, KUPPADI POST. BY SMT. NISHA BOSE, GOVERNMENT PLEADER FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.377/2007 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF M.SC CERTIFICATE ISSUED BY THE BHARATHIAR UNIVERSITY, COIMBATORE DTD. 5.3.04. EXT. P1(a) : COPY OF MARK LISTIN M.SC DEGREE ISSUED BY BHARATHIAR UNIVERSITY, COIMBATORE DTD. 16.7.03. EXT. P1(b) : COPY OF MARK LIST IN M.SC DEGREE ISSUED BY BHARATHIAR UNIVERSITY, COIMBATORE DTD. 18.6.03. EXT. P1(c) : COPY OF B.ED CERTIFICATE ISSUED BY MAHATMA GANDHI UNIVERSITY DTD. 26.6.01. EXT. P1(d) : COPYOF RELEVANT PORTION OF ADMISSION TICKET SHOWING THE ROLL NUMBER OF PETITIONER ISSUED BY LBS CETNRE FOR SCIENCE AND TECHNOLOGY. EXT. P1(e) : COPY OF RELEVANT PORTION OF RESULTS PUBLISHED IN DEEPIKA DAILY DTD. 25.12.02. EXT. P2 : COPY OF G.O.(MS) 289/99/G.EDN DTD. 25.11.99 ISSUED BY R1. EXT. P2(a) : COPYOF G.O.(MS) 268/99/G.EDN DTD. 3.11.99 ISSUED BY R1. EXT. P2(b) : COPY OF G.O.(MS) 341/99/G.EDN DTD. 30.12.99 ISSUED BY R1. EXT. P3 : COPY OF JUDGMENT DTD. 6.6.03 IN W.A. 890/03 OF DB OF THIS COURT. EXT. P4 : COPY OF PROSPECTUS OF STATE ELIGIBILITY TEST ISSUED BY DIRECTOR OF LBS CENTRE FOR SCIENCE AND TECHNOLOGY DTD. 10.10.02. EXT. P5 : COPY OF G.O.(MS) 368/02/G.EDN DTD. 12.11.02 ISSUED BY R1. EXT. P6 : COPY OF JUDGMENT DTD. 5.12.03 IN WP(C) 38022/03 OF THIS COURT. EXT. P6(a) : COPY OF ORDER DTD. 8.12.03 IN I.A.15709/03 IN WP(C) 38022/03 OF THIS COURT. WP(C).No.377/2007 EXT. P6(b) : COPY OF ORDER DTD. 12.12.03 IN WP(C) 39308/03 OF THIS COURT. EXT. P7 : COPY OF APPOINTMENT ORDER DTD. 16.12.03 ISSUED BY R3 TO PETITIONER. EXT. P8 : COPY OF JUDGMENT DTD. 13.2.06 IN W.A.90/04 OF DB OF THIS COURT. EXT. P9 : COPY OF PROCEEDINGS No.69602/SCE/05/G.EDN DTD.20.4.06 ISSUED BY R1. EXT. P10 : COPY OF ORDER G.O.(Rt) 4365/06/G.EDN DTD. 7.10.06 ISSUED BY R1. EXT. P11 : COPY OF LETTER ISSUED BY PRINCIPAL TO PETITIONER. EXT. P12 : COPY OF GOVT. ORDER. EXT. P13 : COPY OF RELEVANT PART OF CONDITIONS FOR ELIGIBILITY FOR NET 2011. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.377 OF 2007 --------------------------------------- Dated this the 17th day of November, 2011. J U D G M E N T The challenge in this writ petition is against Exts.P9 and P10 orders passed by the Government. 2. The petitioner is working as Higher Secondary School Teacher (Chemistry) in the St.Mary's College HSS, Sulthan Bathery with effect from 16.12.2003. According to the petitioner, on the date of interview, he was having all the academic qualifications including 1st class Post Graduate Degree in Chemistry awarded by the Bharathiar University, Coimbatore. Ext.P1 is the copy of the M.Sc Degree Certificate and Exts.P1(a) and P1(b) are the mark lists of the M.Sc examination. Copy of the B.Ed Degree Certificate awarded by the Mahatma Gandhi University is produced as Ext.P1(c). 3. The problem faced by the petitioner with regard to the non approval of appointment is concerned with the requirement of pass in the State Eligibility Test (SET) for the post of H.S.S.T W.P.(C) No.377/2007 2 conducted by the Government. The petitioner appeared for the SET examination conducted in December 2002 and was declared to have passed the same. 4. With regard to the eligibility of persons to appear for the SET examination, the Government had prescribed certain guidelines. Ext.P2 Government Order dated 25.11.1999 had made certain conditions for exemption. In paragraph 3 of Ext.P2, it is stated as follows: “.........Those who have acquired B.Ed but are studying in the final year/semester of the Masters' Degree Courses, the examination of which will be conducted within a period of six months from the date of the test will also be permitted to appear subject to the condition that the results of the test will be published only after the results of the Masters Degree Examination are published and the certificates are produced. The candidates will have to produce such a certificate from their Head of Institution along with the application. There will be no restriction in the number of chances to appear for the eligibility test and there will not be any time limit as to the validity of the result of the test once passed by the candidate”. 5. In fact, later the Government Order Ext.P5 introduced one more condition namely, the SET Certificate will be issued W.P.(C) No.377/2007 3 only if they qualify the P.G./B.Ed Examinations in that chance itself and on production of the Provisional Certificate. As far as the petitioner is concerned, he appeared for the SET examination conducted in December 2002 and the result was announced on 25.12.2002. He cleared the SET examination but he failed in one paper in the P.G. Examination, the result of which was announced on 13.01.2003. He wrote the supplementary examination in the failed paper in April 2003 and passed the same. But the SET certificate was not issued in the light of Exts.P4 and P5. This resulted the petitioner filing a writ petition before this Court. This Court, by Ext.P6 judgment, disposed of the same directing to issue the SET certificate if the petitioner has passed the final M.Sc examination within four months. This was the subject matter of challenge by the State in a Writ Appeal and by Ext.P8 judgment, the directions of the learned Single Judge were set aside. In the meanwhile, the petitioner was appointed in the light of Ext.P6(b) interim order passed in W.P.(C) No.39308/ 2003. After considering the fact that he was appointed thus, the Division Bench, while disposing of the Writ Appeal, in paragraph 8 W.P.(C) No.377/2007 4 of Ext.P8 judgment, directed as follows. “8. The learned counsel for the 1st respondent- petitioner submits that since he had already passed the P.G. Examination and on the strength of his passing SET, he had obtained employment as a Higher Secondary School Teacher, he would loose his job, if he is not allowed to keep the result of the SET which he had passed in December 2002. Now that all the conditions such as passing of P.G. and B.Ed. have been satisfied, this court may take a lenient view and direct the appropriate authorities to issue the SET Certificate. That is a matter which the Government may consider in the facts and circumstances of the case. The petitioner may file a representation before the Government in this regard detailing his predicament and the Government may consider, in exercise of powers if any, vested in them, whether the petitioner can be allowed to keep the result of the SET which he had passed. Alternately, it may also be considered as to whether the petitioner can be allowed to retain his employment, if he passes the SET in the next chance. Of course we do not express any opinion regarding the same. It would be perfectly open to the Government to decide the matter in accordance with law, if it is within their powers to do so”. 6. Ext.P9 is the order that is passed by the Government on the representation submitted by the petitioner. By Ext.P10 order, the petitioner was given one more chance to pass SET W.P.(C) No.377/2007 5 afresh, failing which it was ordered that his services will be terminated and the appointment will not be approved. 7. Learned counsel for the petitioner submitted that in Ext.P9 what was considered by the Government is only the effect of Ext.P5 and the conditions therein. Of course, the said aspect is covered by the judgment Ext.P8 itself. It is submitted that the petitioner's request mainly is to relax the condition in Ext.P5 so that he could get the SET certificate released for enabling him to get the approval of the appointment. 8. Evidently, in Ext.P9 what is considered by the Government is the effect of the prospectus and the conditions under which the candidates appeared for the examination. Learned Government Pleader submitted that all the aspects have been considered by the Government in Exts.P9 and P10. 9. A reading of Ext.P9 will show that the question whether the conditions in Ext.P5 could be relaxed has not been specifically considered. Learned counsel for the petitioner submitted that the Government itself by Ext.P12 order dated 17.12.2001 has clarified that all the teachers appointed on regular basis prior to W.P.(C) No.377/2007 6 14.11.2000 will be exempted from the acquisition of State Eligibility Test qualification for being appointed as Higher Secondary School Teachers in view of the judgment of the Supreme Court referred to therein. It is submitted that as far as the petitioner is concerned, he has already passed the SET examination. Therefore, it is pointed out that what is required is only relaxation of the conditions in Ext.P5 in the light of the peculiar circumstances in which the petitioner is placed. 10. It is submitted that the petitioner is continuing in the post without any approval and without getting salary and he is the only bread winner of the family. It is further submitted that the hardship to which he has been put in really requires examination of the matter sympathetically by the Government to save him from the predicament of losing his job. 11. The petitioner has produced Ext.P13 scheme of NET examination where, the learned counsel for the petitioner points out that, the conditions therein are more favourable to the candidates. 12. It is upto the petitioner to file an appropriate W.P.(C) No.377/2007 7 representation before the Government specifically for relaxation of the conditions in Ext.P5 for enabling him to get the SET certificate released. Therefore, I am not going into the merits of the reasons adopted in Exts.P9 and P10. If the petitioner files an appropriate representation along with a copy of this judgment within a period of one month, the same will be considered and appropriate decision will be taken, after hearing the petitioner, within a further period of three months and the question whether the conditions in Ext.P5 could be relaxed will be specifically addressed by the Government after considering the circumstances relating to the appointment of the petitioner. Such a decision will be taken untrammelled by the view taken in Exts.P9 and P10. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp