IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 3958 of 2008(U) ---------------------------------------- PETITIONER(S): -------------------------- SINI K.S., D/O.K.C,.SATHYAPALAN, AGED 33 YEARS, RESIDING AT KALLISSERY HOUSE, KONGORPILLY P.O., ERNAKULAM-683 525. BY ADVS. SRI.A.JAYASANKAR, SRI.MANU GOVIND. RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF HIGHER SECONDARY EDUCATION, SECRETARIAT,TRIVANDRUM. 2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM PALACE, TRIVANDRUM. R1 BY GOVERNMENT PLEADER SMT. NISHA BOSE R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/11/2011 ALONG WITH WPC NO. 34731 OF 2010, THE COURT ON 30/11/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.3958/2008 U APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF NOTIFICATION DTD. 14/11/05 BY 2ND RESPONDENT. P2: COPY OF LETTER DTD. 02/07/07 BY 2ND RESPONDENT. P3: COPY OF COVERING LETTER DTD. 12/07/07 SENT TO 2ND RESPONDENT. P4: COPY OF THE ORDER DTD. 08/04/2009 ISSUED BY THE 2ND RESPONDENT. P5: COPY OF MEMO NO.GA 1/12/156/07 DTD.02/02/2008 FROM CALICUT UNIVERSITY. P6: COPY OF COMMUNICATION DTD. 21/03/2011 FROM PIO, M.G.UNIVERSITY. P7: COPY OF COMMUNICATION DTD. 19/02/2011 FROM PIO, CALICUT UNIVERSITY. P8: COPY OF COMMUNICATION DTD. 16/03/2011 FROM PIO, UNIVERSITY OF KERALA. P9: COPY OF COMMUNICATION DTD. 23/04/2011 FROM PIO, KANNUR UNIVERSITY ALONG WITH THE REQUEST UNDER RIA. P10: COPY OF COMMUNICATION DTD. 07/04/2011 FROM PIO, KERALA UNIVERSITY ALONG WITH REQUEST UNDER RIA. P11: COPY OF COMMUNICATION NO.PRO/PIO/RTI/1237/2011 DTD.09/06/2011 FROM PIO, KERALA UNIVERSITY ALONG WITH THE REQUEST UNDER RIA. P12: COPY OF COMMUNICATION NO.ACA4/2/RTI/907/2011 DTD. 17/06/2011 FROM PIO, M.G.UNIVERSITY ALONG WITH THE REQUEST UNDER RIA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 3958/2008 & 34731/2010 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2011. JUDGMENT In both the writ petitions, the petitioner is the same. She is seeking employment to the post of Higher Secondary School Teacher (Social Work) based on her applications. 2. The petitioner belongs to Hindu-Thiyya community. In W.P.(C) No.3958/2008 Ext.P1 dated 14.11.2005 is the notification issued by the Public Service Commission. The petitioner applied for the post. It is averred that on finding that her name is not included in the rank list, the writ petition has been filed. By an interim order dated 04.2.2008, the petitioner was directed to be interviewed provisionally. 3. In W.P.(C) No.34731/2010 the notification is dated 30.10.2010 which is issued inviting applications for two N.C.A. vacancies, one for Ezhava and one for Muslim. The same is under challenge in this writ petition, as far as Ezhava candidate for HSST (Social Work) is concerned. 4. The point raised by the petitioner herein is that even though the post notified is HSST (Social Work), there are no B.Ed. holders in the said subject, viz. Social Work. The qualification required for the post stipulates W.P.(C).Nos. 3958/2008 & 34731/2010 -:2:- among other the following with regard to B.Ed. : (i) B.Ed. in the concerned subject obtained from any of the Universities in Kerala through regular course of study; (ii) in the absence of candidates having B.Ed. in the concerned subject, those having B.Ed. in the concerned faculty will be considered and; (iii) in the absence of candidates specified as items (i) and (ii), persons with B.Ed in any subject. It is submitted that the B.Ed. obtained by the petitioner is in Mathematics. The candidates from categories (i) and (ii) are absent. Therefore, the petitioner is also eligible. According to the petitioner, 8 vacancies were notified and 12 persons were invited for interview. 5. The stand taken by the Public Service Commission is that category No.1, viz. persons with B.Ed. in the concerned subject, are not available and therefore persons having B.Ed. in the concerned faculty, were interviewed. The concerned faculty is Social Studies and persons having B.Ed. with Social Studies, were interviewed on 7.2.2008. Four vacancies alone were reported and sufficient number of candidates were also interviewed. Therefore, the Commission need not go into the third category. It is submitted that the petitioner possesses B.Ed. in Mathematics and M.Ed. in Mathematics Education and the said qualification can be considered only in W.P.(C).Nos. 3958/2008 & 34731/2010 -:3:- the absence of B.Ed. in the concerned subject/faculty as per the Special Rules. 6. Reliance is also placed on two judgments of this Court, viz. W.A. No.1508/2003 and W.P.(C) No.19998/2003 wherein it is stated that only in the absence of candidates in the first and second categories, the third category need be considered. The same is the contention raised in W.P.(C) No.34731/2010, in the counter affidavit. 7. Chapter XXXII of the Kerala Education Rules provides for the method of appointment and qualification of teachers and non teaching staff in aided higher secondary schools. The qualification prescribed under Rule 6, item (29) for the post of HSST (Social Work) is the following: “(29) Social Work By transfer and by (i) Master's Degree in the concerned subject with direct appointment not less than 50% marks from any of the Universities in Kerala or a qualification recognised as equivalent thereto in the respective subject by a University in Kerala (ii) (1) B.Ed. in the concerned subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by a University in Kerala. (2) In the absence of persons with B.Ed.Degree in the concerned subject. B.Ed. Degree acquired in any one of the subjects under the concerned Faculty as specified in the Acts/Statutes of any of the Universities in Kerala. W.P.(C).Nos. 3958/2008 & 34731/2010 -:4:- (3) In the absence of persons with B.Ed. degree as specified in terms (1) and (2) above, persons with B.Ed. Degree in any subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by any of the Universities in Kerala. Note:- (1) In the absence of B.Ed. Degree holders, candidates having Master's Degree with not less than 50% marks and who have pased the State Eligibility Test will be considered. Preference will be given to those who have acquired Ph.D./M.Phil Degree or have qualified at Junior REsearch Fellowship or National Eligibility Test. The Teachers appointed under this provision will have to acquire B.Ed. at their own expense within 5 years from the date of entry in service. (2) Persons who have acquired M.Ed. in the subject concerned recognised by any University in Kerala are exempted from acquiring B.Ed.” The same qualifications are provided in the notifications herein also. Learned counsel for the petitioner invited my attention to the stipulations as far as the second category is concerned. It is submitted that in the absence of persons under the first category, B.Ed. degree should be one acquired in any one of the subjects under the concerned faculty, as specified in the Act/Statutes of any of the Universities in Kerala. My attention was also invited to the relevant provisions of the Calicut, Kerala as well as Mahatma W.P.(C).Nos. 3958/2008 & 34731/2010 -:5:- Gandhi University Statutes. It is pointed out that there is no faculty which includes the subject 'Social Studies'. But MSW is a faculty in common, in all the Universities. 8. The learned counsel for the petitioner attempted a comparative study of the Degrees under the relevant Faculties. As far as the Calicut University is concerned, Chapter 10 of the Calicut University First Statutes states the following: “1. Degrees The Degrees in the Faculty of Humanities (Including Philosophy shall be:- Bachelor of Arts B.A. Master of Arts M.A. Master of Social Work M.S.W. Master of Letters M.Litt. Master of Philosophy M.Phil Doctor of Philosophy Ph.D. Doctor of Letters D.Litt.” Chapter 13 of the Kerala University First Statutes give the details of the faculty of Social Sciences as follows: “1. Degrees:- The Degrees in the Faculty of Social Sciences shall be:- Bachelor of Arts B.A. Bachelor of Arts (Honours) B.A. (Hons.) Master of Arts M.A. Master of Social Work M.S.W. Master of Letters M.Litt. Master of Philosophy M.Phil Doctor of Philosophy Ph.D. Doctor of Letters D.Litt.” W.P.(C).Nos. 3958/2008 & 34731/2010 -:6:- In Mahatma Gandhi University Statutes, the faculty is known as Faculty of Social Sciences. The Degrees awarded are provided under Chapter 14 as follows: “Bachelor of Arts B.A. Master of Arts M.A. Master of Social Work M.S.W. Master of Letters M.Litt. Master of Philosophy M.Phil. Doctor of Philosophy Ph.D. Doctor of Letters D.Litt.” The above will show that Master of Social Work has been included in the Faculty of Humanities in the Calicut University First Statutes and, in the Kerala University First Statutes and Mahatma Gandhi University Statutes, it is included in the Faculty of Social Sciences. The subject Social Studies is not specifically mentioned in any of these faculties. 9. Therefore, the question is whether, in the absence of the specification of the said subject in any Faculty, B.Ed. in Social Studies could be considered under category 2. It is evident from the relevant rules that for persons coming under category 2, B.Ed. should be acquired in any one of the subjects under the concerned Faculty as specified in the Acts/Statutes of any of the Universities in Kerala. The Public Service Commission has no case that Social Studies is a subject specifically included in any faculty under the Statutes of any of the Universities. But W.P.(C).Nos. 3958/2008 & 34731/2010 -:7:- the learned Standing Counsel for the Commission submitted that Social Studies will be one coming under the faculty of Humanities. It is submitted that the post notified is for appointment of HSST (Social Work). The subjects Social Studies and Social Work are some what similar. Therefore, the choice made by the Commission of persons having B.Ed. in Social Studies rather than going into the third category, viz; B.Ed. in any subjects, cannot be said to be illegal. 10. In fact, learned counsel for the petitioner submitted that the petitioner is not against consideration of persons having B.Ed. in Social Studies, but it is emphasised that they can be considered only as belonging to the third category under the notification, viz. B.Ed. in any subject. It is therefore submitted that along with them, the petitioner who is having B.Ed. in Mathematics, also has to be considered. The said argument is raised in the light of the fact that under any of the University Statutes, Social Studies is not seen as a subject included in the faculty of Humanities or Social Sciences. Hence, according to the learned counsel, persons having B.Ed in Social Studies and B.Ed in other subjects will come within the 3rd category, alone. 11. A reading of the details given in the respective University Statutes, plainly show that MSW finds a place in the Faculty of Humanities W.P.(C).Nos. 3958/2008 & 34731/2010 -:8:- as well as Faculty of Social Sciences. The persons having B.Ed. in Social Work are absent, since there is no course offering B.Ed. in Social Work in Kerala. Therefore, the acceptability of B.Ed. in Social Studies under category 2, viz. B.Ed. acquired in a subject under the concerned faculty, as specified in the University Act/Statutes will have to be considered. Herein, the Commission has made a choice of persons having B.Ed. in Social Studies, but as seen already, the same is not a subject specifically mentioned in any faculty in any of the University Laws. 12. It is well settled that the Court cannot substitute its views, in the absence of specific terms in the Statute, and therefore the matter will have to be left to the wisdom of the authorities concerned. Herein, the Commission has taken their stand as noted already and the petitioner has raised a forceful argument that the said stand is not correct. 13. Since it is a matter concerning the requirement of qualification for appointment in Higher Secondary Schools, it is only proper that this important issue is considered by the Government itself which is the appointing authority. This can be done, especially in the light of Rule 10 of Kerala State & Subordinate Service Rules. Even though the Government is a party respondent, no counter affidavit has been filed. W.P.(C).Nos. 3958/2008 & 34731/2010 -:9:- 14. In that view of the matter, the writ petitions are disposed of in the following terms: The Government will consider the various aspects in the light of the prescriptions made in the notifications herein and take an appropriate decision. The point to be considered is whether persons having B.Ed. in Social Studies will come within the second or third category under the notification, Ext.P1 which provides that in the absence of persons having B.Ed. in the concerned subject, B.Ed. degree acquired in any one of the subjects under the concerned Faculty as specified in the Acts/Statutes of any of the Universities in Kerala and in the absence of categories (i) and (ii), B.Ed. in any subject. Therefore, after notice to the petitioner and the Commission, and after getting various details from respective Universities in the State, if found necessary, an appropriate decision will be taken within a period of six months from the date of receipt of a copy of this judgment. If ultimately, the petitioner's plea is found in her favour, her claim will be considered accordingly for grant of reliefs. 15. In W.P.(C) No.34731/2010, there is an interim order dated 8.12.2010 allowing the petitioner to participate in the selection process subject to the result of the writ petition. The notification therein is for filling up of two NCA vacancies of Ezhava and Muslim. If ultimately, the W.P.(C).Nos. 3958/2008 & 34731/2010 -:10:- petitioner succeeds, the claim of the petitioner for inclusion in the rank list will be considered by the Commission in accordance with law, as per the directions if any issued by the Government. No costs. (T.R. Ramachandran Nair, Judge.) kav/