IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 WP(C).No. 16617 of 2010(B) --------------------------------------- PETITIONER(S): ----------------------- V.E. SHEBI, H.S.A. ENGLISH, R.M.V. HIGHER SECONDARY SCHOOL, PERINJANAM, CHAVAKKAD EDUCATIONAL DISTRICT,THRISSUR DISTRICT. BY ADV. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD, SRI.P.MOHANDAS (ERNAKULAM), SRI.MATHEW SUNNY, SRI.ANOOP.V.NAIR. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT. GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 4. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, 5. THE MANAGER, R.M.V. HIGHER SECONDARY SCHOOL, PERINJANAM. R1 TO R4 BY GOVT. PLEADER MR.V. MANU. R5 BY ADV. SRI.M.V.THAMBAN, SRI.R.REJI, SMT.THARA THAMBAN, SRI.B.BIPIN, SMT.REVATHY P.NAIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C) NO. 16617/2010-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GOVERNMENT ORDER DATED 05/01/2009. EXT.P2: COPY OF THE JOINING REPORT DATED 02/06/2003. EXT.P3: COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DATED 11/11/2003. EXT.P4: COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 29/10/2004. EXT.P5: COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 22/04/2005. EXT.P6: COPY OF THE REVISION PETITION FILED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT DATED 31/05/2005. EXT.P7: COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 10/06/2009. EXT.P8: COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 11/06/2009. EXT.P9: COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN WP(C) NO. 20607/2009 DATED 22/07/2009. EXT.P10: COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 06/04/2010. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 16617 of 2010-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2011. JUDGMENT The petitioner, whose appointment has not been approved as H.S.A. (English), is aggrieved by the various orders issued by the statutory authorities and finally by the Government. 2. The petitioner was appointed as H.S.A. (English) by the fifth respondent on 2.6.2003 in the retirement vacancy of one Smt. K.R. Rathy. The petitioner is having the qualification of Degree in English Language and Literature with B.Ed. in Malayalam. Ext.P1 is the copy of the Govt. Order fixing the qualifications for the post of H.S.A. (English). It is pointed out that the qualifications as prescribed therein, are fulfilled by the petitioner. 3. The proposal for approval was rejected by Ext.P3 order, which has been confirmed in appeal as per Ext.P4, in revision by Ext.P5 and in further revision as per Ext.P10 by the Government. Learned counsel for the petitioner submitted that there is a delay of 97 days in submitting the proposal to the District Educational Officer from the part of the Manager. It is stated that the petitioner fulfills the qualifications prescribed under wpc 16617/2010 2 Ext.P1 and the findings in Ext.P3 that he is not a qualified person, is not correct. It is pointed out that persons having B.Ed. in subjects other than English are also entitled to be appointed in the absence of persons in category NO.2 in Ext.P1, viz. persons having B.Ed./B.T./L.T. with English as optional subject. 4. In the appeal filed before the Deputy Director of Education, it appears that there was a delay of 5 days in filing the same, and that was the reason for rejecting it and nothing was considered on the merits. But the Director of Public Instruction, in Ext.P5, approved the order passed by the District Educational Officer on both grounds. In Ext.P10 order, the Government even though found that the Deputy Director can condone the delay upto six months, and there is a further power on the Director of Public Instruction to condone the delay, it was found that the reason for the delay pointed out by the Manager cannot be accepted. Therefore, the main question is whether the delay ought to have been condoned and whether the petitioner is qualified. 5. The qualification for appointment as H.S.A. (English) is specified in Sub-rule (2)(b) of Rule 2 of Chapter XXXI K.E.R. At the relevant time the rule read as follows: wpc 16617/2010 3 “(i) A degree in English Language and Literature, and (ii) B.Ed/B.T./L.T. with English as optional subject, conferred or recognised by the Universities in Kerala., (iii) In the absence of those with qualification in item (ii) above, candidates with B.Ed/B.T./L.T. in any other subject, conferred or recognised by the Universities in Kerala will be considered.” Therefore the degree in English with B.Ed/B.T./L.T. with English as optional subject is required going by items (i) and (ii). It is specified in item (iii) that in the absence of persons having any qualification under item (ii), candidates with B.Ed./B.T./L.T. in any other subject will be considered. 6. Herein, the definite case of the Manager as evident from the pleadings, is that even though he took efforts to get a person having B.Ed. in English, that did not succeed and therefore the petitioner was appointed. The said contention of the Manager is referred to in para 9 of the order passed by the Government as per Ext.P10. 7. Before this Court, the fifth respondent Manager has filed a counter affidavit. It is averred in para 4 that even though enquiry was made to find out a teacher possessing B.Ed. Degree with English, but none was available and therefore he was compelled to appoint the petitioner. With regard to the delay in submitting the proposal for approval, it is explained by the Manager that it was due to unavoidable reasons, as he had to leave wpc 16617/2010 4 the State for Gulf countries for some personal reasons. 8. In the counter affidavit filed by the fourth respondent in para 9 it is mentioned that the Manager has not taken any effort to find out a fully qualified hand to the post of H.S.A. (English) through media or through the employment exchange. In fact, there is no case that any such procedure has been prescribed under the relevant rules or by any circulars. Ext.P6 is the copy of the revision petition filed by the Manager before the Government. Therein, it has been clearly stated that the Manager notified the vacancy by inviting applications from candidates possessing B.A. with English Language and Literature and B.Ed. with English as optional subject by notification in the locality. No application has been received from candidates possessing B.Ed. with English as optional subject, since there were dearth of such candidates at that time. Since the vacancy had to be filled up urgently, the petitioner was appointed. 9. Evidently, in the light of the statutory rules, it cannot be said that the petitioner is not having the qualifications, as in the absence of persons having B.Ed. in English, any person having B.Ed. in any other subject could have been appointed. Therefore, it cannot be said that the petitioner was not having the qualification for appointment and therefore the said finding in Exts.P3 and P5 is not correct. As the Manager has taken efforts wpc 16617/2010 5 to find out a person having B.Ed. in English and as it is reiterated that he could not get a proper person with such qualification, the alternate method adopted which is permitted under the rules, cannot be faulted. 10. The next question is with regard to the refusal to condone the delay of 97 days in filing the application for approval. Under Rule 8(2) of Chapter XIV-A K.E.R., within a period of fifteen days from the date of effect of the staff fixation order by which the additional posts are sanctioned or within fifteen days from the date of joining duty of the candidates whichever is earlier, the Manager will have to forward the particulars and documents along with three copies of appointment order duly signed by the Manager and the Teacher. Under the first proviso, the Deputy Director of Education is given power to condone the delay upto six months and the Director in other cases. It is stated that the Deputy Director of Education or the Director, as the case may be, for reasons to be recorded in writing, can condone the delay. 11. Herein, there was only a delay of 97 days and the Deputy Director of Education was competent to condone the delay. The order passed by the Deputy Director refusing to condone the delay has been produced as Ext.P8 which was also under challenge before the Government in the revision petition. Evidently, he has not considered the matter on wpc 16617/2010 6 merits. The date of the order is 11.6.2009 and he has only observed that “since the appeal filed against the order passed by the District Educational Officer, has been rejected”, the application is rejected. 12. The Government has only observed that the reasons for delay submitted by the Manager, cannot be regarded as a valid ground to condone the delay. What is projected by the Manager as a reason is that he had to leave the State for Gulf countries for personal reasons. The bonafides for the Manager has not been disputed by the Deputy Director or by the Government. There is no case that he has not left the State to the Gulf countries. In that view of the matter, the reasons stated for not condoning the delay cannot be accepted, since there is power to condone the delay upto six months for the Deputy Director of Education and for the Director in other cases. It is evident that the Rules have envisaged a situation wherein merely because of such delay the right of a person for getting approval of appointment shall not be defeated. 13. Since it is already found that the petitioner is having the qualification for appointment, the right of the petitioner for getting approval cannot be denied only for the delay on the part of the Manager in submitting the proposal. In Ext.P10 order, the Government refers to a letter issued by the District Educational Officer that if the appointment of the wpc 16617/2010 7 petitioner is approved, then it may affect another teacher who has approved service from 11.11.2005. But the Government has not entered any finding on that aspect. Evidently, the petitioner's right will have to be considered independently. For all these reasons, the writ petition is allowed and Exts.P3, P4, P5, P8 and P10 are quashed. The appointment of the petitioner will be approved and there will be a direction to the District Educational Officer to pass appropriate orders within a period of six weeks from the date of receipt of a copy of this judgment. It is made clear that on such approval, the petitioner will be entitled for other consequential benefits including monetary benefits. No costs. (T.R. Ramachandran Nair, Judge.) kav/