IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 WP(C).No. 25408 of 2004(Y) -------------------------------------- PETITIONER: ------------------- AJI.A.,AGED 36,D/O. K.VASUMATHY, PUTHEN VEEDU,KOTTIYAM P.O.,KOLLAM,NOW WORKING AS HSST (HINDI),SNDP HIGHER SECONDARY SCHOOL, KARAMVELI,NELLIKKALA P.O.,PATHANAMTHITTA. BY ADV. MR.BENOY THOMAS. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. MANAGER,SNDP HIGHER SECONDARY SCHOOL, KARAMVELI,NELLIKKALA P.O.,PATHANAMTHITTA. R1 & R2 BY SR. GOVT. PLEADER SMT. T.B. REMANI, R3 BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADV.SMT.NITA.N.S. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2009, ALONG WITH W.P.(C). NO. 26257 OF 2004 AND CONNECTED CASES,THE COURT ON 14/10/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.25408/2004-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPROVAL ORDER OF THE PETITIONER AS HSST (JR-HINDI) ISSUED BY THE R.2. DTD. 30/11/2002. EXT.P.2: COPY OF THE INTERIM ORDER PASSED BY THE HONOURABLE SUPREME COURT IN SLP. 18236-37/98 DTD. 07/12/99. EXT.P.3: COPY OF THE M.A. DEGREE CERTIFICATE OF THE PETITIONER ISSUED BY THE UNIVERSITY OF KERALA DTD. 25/11/93. EXT.P.4: COPY OF THE M.PHIL DEGREE CERTIFICATE OF THE PETITIONER ISSUED BY THE UNIVERSITY OF KERALA DTD. 22/01/96. EXT.P.5: COPY OF THE G.O.(MS).NO.273/1998/G. EDN. DTD. 15/07/1998. EXT.P.6: COPY OF THE G.O.(MS).NO.381/2000/G. EDN. DTD. 16/11/2000. EXT.P.7: COPY OF THE DECREE PASSED BY THE HONOURABLE SUPREME COURT IN C.A.(C).NO.7158/1998 DTD. 14/11/2000. EXT.P.8: COPY OF THE G.O.(MS).NO.389/2000 G. EDN. DTD. 25/11/2000 ISSUED BY R.1. EXT.P.9: COPY OF THE G.O.(RT).NO.102/2004/G. EDN. DTD.07/01/2004. EXT.P.10: COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN W.P.(C). NO.20546/04 DTD. 30/07/2004. EXT.P.11: COPY OF THE G.O.(MS).NO.298/2000/G. EDN. DTD. 25/08/2000. EXT.P.12: COPY OF THE G.O.(MS).NO.353/2000/G. EDN. DTD. 28/10/2000. EXT.P.13: COPY OF THE G.O.(MS).NO.289/1999/G. EDN. DTD. 25/11/1999. EXT.P.14: COPY OF THE AFFIDAVIT FILED BY THE GOVERNMENT BEFORE THE HONOURABLE SUPREME COURT IN CON. CASE NO. 77/00 IN CIVIL APPEAL. NO. 7158/1999 DTD. NIL. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 25408/2004-Y, 26257/2004-A, 12884/2005-H, 28816/2006-E, 28557/2006, 19400/2007-H, 23229/2007-M and 9510/2009-G - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2009. JUDGMENT These writ petitions concern a common issue, viz. the claim for exemption from acquiring B.Ed. for regularisation as HSST in the respective schools wherein, the petitioners are working. Therefore, they are disposed of by a common judgment. First I will deal with the following cases for convenience. The documents are referred to as produced in W.P. (C) No.12884/2005. W.P.(C) Nos.25408/2004, 12884/2005, 28816/2006, 19400/2007, 23229/2007 and 9510/2009 2. Writ petitioners herein are M.Phil. holders and apparently they claim equal treatment with Ph.D. holders for the purpose of exemption. Many of the petitioners had approached this court earlier seeking for the same relief and this court by various judgments, had directed the Government to consider their claim as raised in the respective representations. The resultant order passed by the Government refusing to grant exemption, are under challenge in these writ petitions. The Government allowed a further time of two years to them for acquiring B.Ed. wpc 25408/2004, etc. 2 with a stipulation that further annual increment will be given only after acquisition of B.Ed. It is also stipulated that no further extension will be granted in this regard on any account. It is in these circumstances the petitioners have filed these writ petitions. 3. Heard Shri Benoy Thomas, learned counsel for the petitioners and Shri Muhamood T.T. and Smt. T.B. Remani, learned Govt. Pleaders appearing for the respondents. 4. The genesis of the dispute is from the stage of initial appointment itself. All these petitioners were appointed before coming into force of the statutory rules, in accordance with the qualifications prescribed as per the Govt. Orders in force at the relevant point of time. All of them have completed nearly 8 to 9 years of service. They have been appointed between 13.5.1998 (the date on which G.O.(MS) No.162/98/G.Edn. was issued) and 14.11.2000, the date of the judgment of the Apex Court in Dollichan's case (M.M. Dollichan v. State of Kerala and others - AIR 2001 SC 216). 5. It may not be necessary to narrate the individual details in respect of various petitioners, for considering the common issue. The petitioner in W.P.(C) No.23229/2007 who was appointed pursuant to the Govt. Order dated 13.5.1998, resigned from the post with effect from 5.12.2007 to join aided college service. All the petitioners, except the petitioner in W.P.(C) wpc 25408/2004, etc. 3 No.9510/2009, possessed M.Phil degree at the time of their appointment and the petitioner in W.P.(C) No.9510/2009 acquired M.Phil subsequent to her appointment. 6. The qualifications prescribed for appointment as HSST by the Government was Second Class Postgraduate degree in concerned subject with B.Ed. Later on, the Government considered the request of Ph.D. holders and those who have acquired M.Phil and JRF/NET, etc. that may also be appointed as HSST. This was permitted by the Government as per G.O.(Ms) No.273/98/G.Edn. dated 15.7.1998 (produced as Ext.P5 in W.P.(C).No.12884/2005). It was ordered that candidates having Ph.D., M.Phil, JRF/NET will be eligible for appointment as Plus two teachers subject to the condition that they have to provide a written undertaking that they will acquire B.Ed. within a period of three years. Accordingly, the petitioners were appointed. 7. The Supreme Court had passed an interim order dated 7.12.1999 in S.L.P.(Civil) No.18236-18237/1998, copy of which has been produced in the writ petitions (Ext.P4 in W.P.(C) NO.12884/2005). The Apex Court directed that “if suitable qualified candidates among the existing teachers already working are available in those schools, they may be appointed purely on adhoc basis as a stop gap arrangement subject to further orders. These persons shall be appointed on the recommendation of a selection wpc 25408/2004, etc. 4 committee constituted by the Manager or his representative of the school, Princpal of the School and a Government nominee from the panel of officers consisting of Deputy Director of Education, DEO of the area and DIET Principal of the District.” It was further directed that, “if such suitable candidates are not available, then the teachers may be appointed from the open market also on adhoc basis as stop gap arrangement at the recommendation of the aforesaid Selection Committee. All the candidates will be informed that their appointment is purely on adhoc basis and subject to the final outcome of the appeals.” C.A. Nos.7154-7155, 7158, 7159- 7177, etc. were finally disposed of by the Apex Court by the judgment in Dollichan's case (AIR 2001 SC 216). Since great reliance is placed by the petitioners on the important directions issued in the said judgment, they are extracted below: “(1) All the teachers in the Private Schools who have been appointed during the pendency of these cases pursuance to the interim order dated 7.12.1999 would be held to be duly appointed to the post and their services will not be annulled. (2) All the teachers who have been appointed also in the Government Schools pursuance to the order dated 1.2.1999 shall also be held to be duly appointed and those appointments will not be annulled. wpc 25408/2004, etc. 5 (3) If there has been any appointment made pursuance to the Government Order of 13.5.1998 as on today those appointments also would continue and will not be annulled. (4) There will be no further appointment from any source either in the Private School or in the Government Schools from today for a period of three months.” In terms of the decree passed by the Apex Court, the Government passed G.O.(MS) No.389/2000/G.Edn. dated 25.11.2000 granting approval of appointment of HSST's (Ext.P7 in W.P.(C).No.12884/2005). It was specified in the said Govt. Order thus: “1) The appointment of all the Higher Secondary School teachers in the aided schools who have been appointed on an adhoc basis during the pendency of the cases in pursuance to the interim order dated 7.12.1999 will be regularised; 2) The appointment of the higher secondary school teachers in Government schools in pursuance to the order dated 1.2.99 will also be regularised; 3) Any appointments made in pursuance to the Government order dated 13.5.98 and continuing as on the date of the judgment of the Supreme Court will also be regularised; and 4) No further appointments can be made from any source either in Government or Aided Schools from the date of the judgment for a period of 3 months. The Special Rules governing to appointment of teachers in higher secondary will be finalised within the above time limit.” wpc 25408/2004, etc. 6 Accordingly, the service of the petitioners were also regularised. It is the contention of the petitioners that regularisation thus granted is without imposing any condition that they should pass B.Ed. within three years and therefore presently the Government cannot insist that they should acquire B.Ed., as now insisted in the impugned order. 8. One of the Government Orders to be noticed herein, in this context, is G.O.(MS) No.381/2000/G.Edn. dated 16.11.2000 (Ext.P8) wherein it was specified that “the period of exemption for acquiring B.Ed. allowed vide Govt. Order dated 13.5.1999 is extended for a further period of two years.” The petitioners further rely upon G.O.(MS) NO.298/2000/G.Edn. dated 25.8.2000 (Ext.P12) wherein, while introducing SET qualification, it was specified that candidates having Ph.D., M.Ed. or M.Phil and those who have passed NET/JRF are not required to pass the SET. It is therefore contended that the petitioners who are having M.Phil, were treated at par with Ph.D. holders. 9. The trump-card of the argument raised by the learned counsel for the petitioners is G.O.(MS) No.353/2000/G.Edn. dated 28.10.2000 (Ext.P13) whereby Ph.D. holders were exempted from acquiring B.Ed. qualification. This apply to such persons who were appointed prior to the introduction of the statutory rules, obviously. It is pursuant to the above Govt. Order, that the petitioners sought a similar treatment as regards the wpc 25408/2004, etc. 7 acquisition of B.Ed. qualification, from the Government. It is accordingly, the representations were filed. Initially, they were rejected as per Ext.P15 produced in W.P.(C) No.12884/2005. Subsequently, the Government as per Ext.P16 produced therein, extended the time to all such persons for acquiring B.Ed. upto 1.11.2006. These were challenged before this court and this court, as already noted, directed the Government to reconsider the matter in the light of the contentions raised in the representation. 10. Thus, the position that emerges is that the petitioners who are continuing as HSST's are not having B.Ed. and they seek a permanent exemption, being M.Phil holders. The grounds of attack are various. The first and foremost contention is that M.Phil holders were treated at par with Ph.D. holders from time to time even in regard to the non requirement of passing SET and therefore they should get the benefit of the order granted in favour of Ph.D. holders. All the categories, viz. Ph.D. holders, M.Phil holders, etc. are similarly placed, they are integrated into the same group of HSST's and are to be treated similarly. There is no rationale nor nexus with the object sought to be achieved by denying them permanent exemption. The Government cannot treat them differently while favouring the Ph.D. holders. B.Ed cannot be termed as an essential qualification. 11. The next important contention is that going by the directions issued in Dollichan's case by the Apex Curt (AIR 2001 SC 216), the wpc 25408/2004, etc. 8 petitioners are entitled to be regularised. Their services are not liable to be annulled for any reason whatsoever going by directions 1 and 3 therein. Thirdly, it is contended that even the Government has granted complete exemption from passing B.Ed. to Ph.D. holders who are appointed before 14.11.2000, the date of judgment in Dollichan's case and who have acquired Ph.D. by a Government Order dated 21.10.2000. Therefore, persons who are appointed prior to 14.11.2000 like the petitioners, have to be treated as a class itself and therefore there cannot be a distinguishable reason for meting out a different treatment to them. Otherwise, it will be in violation of Article 14 of the Constitution of India. Since all the teachers appointed are covered by the directions in Dollichan's case also, the petitioners cannot be singled out for a differential treatment. All of them were treated at par with SET qualified candidates also, and are therefore entitled for identical treatment, in the matter of granting exemption from B.Ed. 12. The respondents have filed counter affidavits in various writ petitions. The stand taken in the counter affidavits uniformly is that the appointments and grant of approval were made with a specific condition that the petitioners should acquire B.Ed. within the time limit provided. Further extensions have also been granted. It is also pointed out that even going by the Govt. Order dated 15.7.1998, the appointees had to give a wpc 25408/2004, etc. 9 written undertaking that they will acquire B.Ed. within a period of three years. The petitioners have been appointed on the basis of the written declaration stating their willingness to acquire B.Ed. qualification. Therefore, the claim for regularisation without acquiring the said qualification, cannot be acceded to. They will have to acquire B.Ed. for regularisation in service. Substantially, the contention raised, therefore, is that B.Ed. being an essential qualification, there cannot be a permanent exemption in relaxation of the qualification in favour of persons like the petitioners. 13. Therefore, the principal question to be considered is whether the petitioners are entitled for any permanent exemption in view of the various developments relied upon by the petitioners in the writ petitions. To appreciate the argument raised by the learned counsel for the petitioners, it is important to trace out the position available in terms of the various Govt. Orders. In G.O.(Ms) No.273/98/G.Edn. dated 15.7.1998, the Government considered the request of the Association of Ph.D. holders and those who have acquired M.Phil and JRF for appointment as Higher Secondary Teachers. It was specified that those categories will also be eligible for appointment as Plus two teachers subject to the condition that they have to provide a written undertaking that they will acquire B.Ed. within a period of three years. In G.O.(Ms) No.289/99/G.Edn. dated 25.11.1999, the wpc 25408/2004, etc. 10 Government prescribed the guidelines for the conduct of the SET. It was provided that those who have acquired Ph.D., M.Ed., or M.Phil and those who have passed the NET/JRF will be exempted from passing the test, provided the M.Phil in the concerned subject should be awarded by any of the Universities in Kerala or recognised as equivalent by any of the Universities in Kerala. Therefore, going by the said order, Ph.D. and M.Phil were treated alike for granting exemption from appearing for SET. In G.O. (Ms) No.298/2000/G.Edn. dated 25.8.2000 also, it was specified that candidates who have acquired Ph.D., M.Ed. or M.Phil and those who have passed NET/JRF shall be treated on par with SET qualified hands in the matter of appointments as Higher Secondary School Teachers in Government and aided schools. It is in the midst of the above, that the Government, as per G.O.(Ms)No.353/2000/G.Edn. dated 28.10.2000 granted exemption to the Ph.D. holders from acquiring B.Ed. for appointment as HSST. This order was issued in modification of the Govt. Order dated 15.7.1998. This exemption was granted after considering the representation submitted by Ph.D. holders. 14. The argument raised by the learned counsel for the petitioners is that Ph.D. holders and M.Phil holders, etc. were all governed by the Govt. Order dated 15.7.1998 and the uniform condition as applicable to them was that they should acquire B.Ed. within three years. They were treated alike wpc 25408/2004, etc. 11 for the purpose of exemption from SET. It is only by a later Govt. Order that Ph.D. holders were permanently exempted. The question is whether as a matter of right, the petitioners can claim the benefit of permanent exemption. 15. One thing that is important, is that the acquisition of B.Ed. is an essential qualification for appointment as HSST, going by the Govt. Orders which were in force prior to the coming into force of the statutory rules and even after the adoption of the statutory rules. It cannot be disputed that even going by the Govt. Orders which were passed and referred to earlier, the Government treated B.Ed. as an essential qualification to be obtained by persons who are appointed as HSST. The petitioners have been appointed in terms of the Govt. Orders in force at the relevant time and in terms of the interim orders passed by the Apex Court. 16. The justification for granting exemption to Ph.D. holders is not forthcoming in any of the counter affidavits filed by the Government. But still, one thing is important, that even though they are also working as HSST's, they are holders of Ph.D., a different qualification from those acquired by the petitioners. In the light of the scenario that is emerging, it can be clearly seen that in granting permanent exemption to Ph.D. holders, the Government sought to treat them differently. Of course, going by the principles settled by the Apex Court in various decisions, Article 14 strikes wpc 25408/2004, etc. 12 at arbitrariness and any action which results in discrimination, cannot be supported. It is true that the petitioners and the Ph.D. holders who were appointed as HSST 's form a homogeneous class of HSST's. All of them were appointed with a specific condition that they should acquire B.Ed. within a specified time which was being extended from time to time. When we consider the acquisition of B.Ed. as one of essential character, the question is whether the petitioners can claim exemption as a matter of right. Several considerations may arise in such circumstances. 17. It is of importance to notice that the power to grant exemption has to be exercised by the Government after analysing various aspects germane to the issue. When the Government, after a consideration of the various contentions raised by the petitioners, is of the view that the petitioners cannot be granted a permanent exemption, as B.Ed. is an essential qualification, the question is whether this court could interfere in such a decision on the plea that Ph.D. holders were given a benefit by the Government. Even going by the impugned order, while rejecting the representation of the petitioners, the Government was of the view that the appointments of the petitioners have been approved with the support of their written undertaking. It is for this reason also, that the Government found that there is no reason to exempt the petitioners from acquiring B.Ed. When the qualification is one found to be essential, the discretion is wpc 25408/2004, etc. 13 perfectly with the Government to take a decision whether exemption could be granted as a matter of course at the request of the parties. When we notice the background of various Govt. Orders, whereby the courses were sanctioned and teachers were sought to be appointed, there had not been any emphasis on appointment of teachers by relaxing the respective qualifications. Essentially, that is a matter for the Government alone to consider and see whether any relaxation should be granted. But the petitioners who were M.Phil holders, were beneficiaries of the Govt. Order dated 15.7.1998. Going by the original scheme of things, M.Phil holders, Ph.D. holders, etc. were not entitled for appointment as a matter of right, as their qualifications were not in accordance with the executive orders for appointment as HSST's. But still, the Government extended a concession by Govt. Order dated 15.7.1998 that they will be appointed provided they express their willingness to acquire B.Ed. within a period of three years. It is of importance to notice, therefore, that even in the very order under which they were found eligible to be appointed, this condition was imposed. 18. Therefore, I am of the view that the stand taken by the Government that the petitioners are not entitled to be granted exemption from acquiring B.Ed., cannot be found fault with. The order is one passed after a detailed consideration of the various aspects also. wpc 25408/2004, etc. 14 19. The attack made by the learned counsel for the petitioners is on the ground of discriminatory treatment. True, that M.Phil holders, after their appointment as HSST, form part of the homogeneous class of HSST's. The Government has treated them differently by refusing to grant exemption. When we consider B.Ed. as an essential qualification, which is the stand taken by the Government also in the counter affidavit, normally a permanent exemption as the one given herein in favour of Ph.D. holders, could not have been thought of. What are the reasons which persuaded the Government to grant permanent exemption to Ph.D. holders, are not detailed in any of the counter affidavits also. Still, it is true that Ph.D. holders are the beneficiaries of an order passed in their favour. Even if the Government is found to have passed an order of exemption to a particular class, it could be attacked only on the ground of malafides, extraneous reasons, etc.. The question of discrimination arises only if persons who are alike, and are grouped together, are treated differently. Obviously, Ph.D. holders are persons having a Doctorate Degree in certain subjects and the qualifications of the petitioners are quite different. Therefore, even if they form a homogeneous class of HSST's, the qualifications of the respective teachers differ. Therefore, the complaint of discrimination has to be understood in the above factual position. wpc 25408/2004, etc. 15 20. In fact, the classification of persons on the basis of higher qualification, is a reasonable one, as held by the Apex Court. (See T.R. Kothandaraman v. T.N. Water Supply and Drainage Board - (1994) 6 SCC 282 and Shailendra Dania v. S.P. Dubey - (2007) 5 SCC 535). Therefore, even if the official respondents have not indicated the reasons which prompted them to grant exemption to Ph.D. holders from acquiring B.Ed., the petitioners cannot complain that they have been treated differently for granting a particular benefit. The question is whether, as a matter of right, the petitioners could therefore claim that since they were also appointed in a like manner, they should also get the benefit of exemption. As noticed already, the qualification of B.Ed. is an essential one and therefore the Government thought that the persons like the petitioners are not entitled to be granted permanent exemption. The said reason cannot be faulted also. Even though the petitioners have raised a contention that B.Ed. is not an essential qualification, that contention cannot be accepted. Under the executive orders and presently under the statutory rules, one of the essential qualifications prescribed is B.Ed. in the respective subjects along with some other specifications. Therefore, the said contention also cannot be accepted. 21. The next important argument to be considered is that going by the judgment in Dollichan's case (AIR 2001 SC 216), the appointment of wpc 25408/2004, etc. 16 the petitioners cannot be annulled at all and therefore they stand automatically regularised even if they have not acquired B.Ed. The dispute that was considered in the above decision by the Apex Court was one concerning the method of appointment, and not the qualification for appointment. The Government Order dated 13.5.1998 prescribe the various modalities for filling up of the post of Higher Secondary School Teachers. The Apex Court, from time to time, issued interim orders during the pendency of the appeals and in the final judgment various directions have been issued. It is clear from paragraphs 2 and 3 of the final order itself that the issue raised was one regarding the method of recruitment of teachers. Therefore, it is evident that the directions contained in the final order, viz. (1) and (3), will govern cases where appointments have been made in terms of the Govt. Order dated 13.5.1998 and pursuant to the interim order dated 7.12.1999, and all