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CASE NO.: Appeal (civil)  4480 of 2007

PETITIONER: Valsala Kumari Devi M

RESPONDENT: Director, Higher Secondary Education & Ors

DATE OF JUDGMENT: 25/09/2007

BENCH: Tarun Chatterjee & P. Sathasivam

JUDGMENT: JUDGMENT

CIVIL APPEAL NO.        4480            OF 2007 (Arising out of SLP (C) No. 19296 OF 2004)

P. Sathasivam, J.

1)      Leave granted.  2)      Valsala Kumari Devi M., High School Assistant, B.A.R.  High School, Bovikanan, Muliyar Post, Kasargode District,  Kerala, who lost her case before the High Court of Kerala  has filed the above appeal.

3)      The brief facts, in nutshell, are as follows: According to the appellant, she was originally working  as High School Assistant (hereinafter referred to as ’HSA’)  (Social Studies) in the B.A.R. Higher Secondary School,  Bovikanan.  She was appointed as HSA (Social Studies) with  effect from 13.07.1990 which was duly approved by the  Manager, B.A.R. High School, Bovikanan (respondent No.4  herein).  Respondent No.5 herein, namely, M.K.  Aravindakshan Nambiar, entered into service as HSA (Social  Studies) (Kannada Medium) with effect from 20.06.1991.   He is junior to the appellant in the category of HSA.                   The appellant passed M.A. (History) in second class  from the University of Mysore.  M.A. (History) degree of the  Mysore University has been recognized as equivalent to the  M.A. (History) degree of University of Calicut.  A certificate  to that effect has also been issued by the Registrar,  University of Calicut certifying that M.A. (History) Degree of  the Mysore University is recognized as equivalent to M.A.  (History) Degree of the University of Calicut.  She has been  awarded B.A. degree by the University of Calicut having  been duly certified to have passed in Economics main and  Political Science, Indian History as subsidiaries in the year  1980.  She has also been awarded the degree of Bachelor of  Education (B.Ed) in English and History subjects by the  Karnataka University in recognition of the fulfillment of the  requirements for the said degree and according to her, she  passed the examination in April, 1981 in First Class.  B.Ed.  degree of the University of Karnataka has been recognized  as equivalent to the B.Ed. degree of the University of Calicut  and a certificate to that effect has been issued to the  appellant by the Registrar of the University of Calicut.  She  has also passed the Master of Arts (English) degree  examination held in December, 2002 from the Annamalai  University and she was placed in Second Class.  She has  also passed the  State Eligibility Test (SET) in History

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subject in June, 2000 and the Commissioner of Entrance  Examinations has certified that the appellant has passed  the SET prescribed as one of the qualifications for  appointment as Higher Secondary School Teacher,  in short  HSST.   4)              The Government issued Notification prescribing the  method of appointment for the post of Higher Secondary  School Teachers.  The minimum qualification prescribed in  the Government Order for HSSTs is Second Class Master’s  Degree in the concerned subject, with B.Ed., for the time  being till Rules are framed for regular appointment.  The  selection will be subject to seniority and suitability.  The  appellant having secured second class Master’s degree in  History and B.Ed. degree in English and History is eligible  and qualified for appointment as HSST (History) in  Humanities Group-History, Geography, Economics,  Hindi/Malayalam as per the G.O. dated 27.06.1990.   5)              A vacancy of HSST (History) arose in the B.A.R.  Higher Secondary School, Bovikanan during the academic  year 2000-01.  The appellant and the 5th respondent applied  for appointment by promotion to the above said post.  As  per G.O. dated 13.05.1998, 25% of vacancies in the post of  HSST in the Government Higher Secondary Schools and  Aided Higher Secondary Schools will be reserved for  appointment from qualified High School Assistants and  Primary School Teachers.  It provides that the teachers  appointed from General Education Subordinate Service will  be treated as appointment by promotion and they will be  full-time teachers irrespective of the periods to be taught.   However, the remaining 75% vacancies earmarked for direct  recruitment in the Aided Higher Secondary Schools will be  done by the Management by a Staff Selection Committee.   According to the appellant, in the case of appointment by  promotion of the teachers from the General Education  Subordinate Service as HSST, the Staff Selection Committee  does not have any role and the same shall be made based  on seniority of HSAs who possess the prescribed  qualification for appointment as HSST.    6)              It is the grievance of the appellant that the 4th  respondent \026 the Manager, overlooking the seniority and  eligibility of the appellant, appointed 5th respondent as  HSST (Humanities).  Challenging the same, the appellant  filed O.P. No. 22902 of 2000 before the High Court of Kerala  which was disposed of by order dated  10.8.2000 directing  the Director, Higher Secondary Education,  Thiruvanthapuram, Kerala (respondent No.1 herein), to  consider and pass order on the representation made by the  appellant within a period of two months.     Pursuant to the  said direction, she was called upon to appear for an  interview fixed for 30.03.2001.  The appellant appeared for  the interview and produced all the original certificates to  prove her qualifications and eligibility.  However, she was  informed by letter dated 05.04.2001 of the Manager, B.A.R.  High School, Bovikanan (respondent No.4) that she was not  selected for the post of HSST (History).  Aggrieved by her  non-selection for promotion as HSST, the appellant filed  O.P. No. 13710 of 2001 which was disposed of by order  dated 26.02.2003 directing the Director, B.A.R. High  School, Bovikanan, to consider the grievance of the  appellant  after affording her an opportunity of being heard.   Pursuant to the said direction, the appellant submitted a  fresh representation and finally the earlier order was once  again reiterated upholding the appointment of the 5th  respondent.  The said order was challenged by the appellant  by filing W.P. (C) No. 21069 of 2003.  The said writ petition

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was finally heard along with W.P. (C) No. 15674 of 2004  filed by the 5th respondent seeking for approval of his  appointment and payment of salary.  The above said writ  petitions were jointly heard and W.P. (C) No. 21069 of 2003  was dismissed by judgment dated 22.6.2004 and Writ  Petition (C) No. 15674 of 2004 was disposed of by directing  the concerned respondents to approve the appointment of  5th respondent and to disburse his salary within two  months from the date of production of a copy of the  judgment.  Being aggrieved by the above judgment, the  appellant preferred an appeal before the Division Bench of  the High Court of Kerala in W.A. No. 1265 of 2004 on  various grounds.  By the impugned order dated 12.07.2004,  the Division Bench after finding that the selection shall be  made based on seniority and suitability upheld the decision  of the Selection Committee selecting the 5th respondent  confirmed the order of the learned single Judge and  dismissed the writ appeal filed by the appellant.   Questioning these orders, the present appeal has been  preferred before this Court.  7)              We heard Mr. Romy Chacko, learned counsel,  appearing for the appellant and Mr. A. Raghunath, Mr. G.  Prakash and Mr. M.P. Vinod, learned counsel appearing for  the respondents. 8)              The following questions arise for consideration in  this appeal: (i)     Whether the selection of 5th respondent for the post  of Higher Secondary School Teacher was made ignoring  the criteria of seniority and suitability envisaged under  G.O. (MS) No. 138/90/G.Edn. dated 27.06.1990? (ii)    Whether proficiency in Kannada a criteria for  appointment by promotion for the post of Higher  Secondary School Teacher in the absence of any such  stipulation in the Government Order dated 27.6.1990  more so when the medium of instruction in Higher  Secondary Schools is English? (iii)   Whether the Staff Selection Committee was  competent to make selection for appointment by  promotion to General Education Subordinate  Service when the power conferred on Staff Selection  Committee is restricted to selection by direct  recruitment alone? (iv)    Whether the expression "suitability" envisaged  under G.O. dated 27.06.1990 means suitability in  relation to qualification and requisite experience or  comparative assessment of suitability? (v)     Whether the Staff Selection Committee was justified  in acting on the dictates of the Parent Teacher  Association of the School rather than the criteria  provided under the G.O. dated 27.6.1990? (vi)    Whether the High Court was justified in upholding  the selection of 5th respondent in view of the  admitted fact that the appellant was senior to him  as High School Assistant? In view of the fact that all the issues referred to above are  interconnected, they are being considered and disposed of  by the following judgment: 8)              The subject relates to the appointment/selection for  the post of Higher Secondary School Teacher in History.   Before considering the merits of the claim made by the  appellant as well as by the 5th respondent, it is desirable to  refer to the relevant Government Orders issued by the  Government of Kerala.  In G.O. (MS) No. 138/90/G.Edn.  dated 27.06.1990, the General Education (HSE)  Department issued a Notification prescribing certain

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conditions for appointment of teachers for Plus Two Higher  Secondary Course.  The relevant clauses of the Government  Order are as follows: "1\005\005\005............................................................ 2\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.. 3\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005. 4.  The issues relating to the implementation of the  Plus Two Higher Secondary Course were examined in  detail and discussions were held with representatives  of all concerned.  After careful consideration of all  aspects of the matter Government have decided to  introduce the Plus Two Course in selected schools in  1990-91.  Government are pleased to issue the  following further instructions in the matter:- (i)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 (ii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.. (iii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005. (iv)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005. (v) The medium of instruction will be English. (vi)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 (vii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005. (viii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 (ix)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 (x)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 (xi)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 (xii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005. Teachers:- The minimum qualifications for the higher  secondary schools teachers will be a second class Master’s  Degree in the concerned subject, with B.Ed. for the time  being till Rules are framed for regular appointment.  The  teachers will be initially appointed on the basis of these  qualifications.  The selection will be subject to seniority and  suitability.  If sufficient number of qualified hands are not  available for appointment as teachers, candidates may be  recruited through the Employment Exchange. 5\005\005\005\005\005\005\005\005\005\005\005\005. 6\005\005\005\005\005\005\005\005\005\005\005\005. 7\005\005\005\005\005\005\005\005\005\005\005\005 8\005\005\005\005\005\005\005\005\005\005\005\005\005.."                     The relevant clauses of G.O.(Ms) No. 162/98/G.Edn. dated  13.5.1998 issued by the General Education (T) Department  read as under: "1\005\005\005\005\005\005\005\005\005\005.. 2.  The posts of Higher Secondary School teachers in  Government Higher Secondary Schools and Aided Higher  Secondary Schools will be filled up as follows: i. 25% vacancies will be reserved for appointment from  qualified High School Assistants and Primary School  Teachers. ii. The remaining 75% of posts in Government Schools will  be filled up by direct recruitment through the Public Service  Commission\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005 \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005\005\005 iii. Appointments to the 75% vacancies earmarked for direct  recruitment in the Aided Higher Secondary Schools will be  done by the management.  If qualified teachers are not  available for appointment as mentioned in item (i) above,  the management will fill up such vacancies also by direct  recruitment.  Selection of candidates for direct recruitment  in Aided Higher Secondary Schools will be done by a Staff  Selection Committee consisting of the Manager or his  representative, the Principal of the School and a

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Government nominee from the panel of officers consisting of  Deputy Director, Education, D.E.O. of the area and DIET  Principal of the District.  The management can select a  nominee from among the above officers.  The above officers  are permitted to attend the Staff Selection Committee  meeting without further sanction. 3\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005" 9)      In view of the above Government Orders, let us consider  the claim of the appellant, the 5th respondent as well as the  decision taken by the Selection Committee and the orders  passed by the High Court.  As stated earlier, since the  appellant was appointed as HSA w.e.f. 13.07.1990 and the 5th  respondent only from 20.6.1991, he is junior to the appellant  in the category of HSA.  The particulars furnished clearly show  that the appellant possesses the requisite qualification for  being considered for the post of HSST.  G.O. dated 27.6.1990  prescribes the minimum qualification for the Higher  Secondary School Teachers as second class Master’s Degree in  the concerned subject with B.Ed.   We have already extracted  relevant clauses from the G.O. which make it clear that  medium of instruction will be English.  As rightly pointed out  by learned counsel appearing for the appellant, the appellant  having secured second class Master’s degree in History and  B.Ed. Degree in English and History is fully qualified and  eligible for appointment as HSST (History) in Humanities  Group. 9)      The Government Order dated 13.5.1998 makes it clear  that 25% of vacancies in the post of HSST in the Government  Higher Secondary Schools and Aided Higher Secondary  Schools will be reserved for appointment from qualified High  School Assistants and Primary School Teachers.  It also  prescribes that the remaining 75% vacancies earmarked for  direct recruitment in the Aided Higher Secondary Schools will  be done by the Management and the selection of candidates  for direct recruitment in Aided Higher Secondary Schools will  be done by a Staff Selection Committee. 10)     Government Order dated 27.6.1990 makes it clear that  the selection of teachers will be subject to seniority and  suitability and G.O. dated 13.5.1998 specifically prescribes  that the teachers appointed from General Education  Subordinate Service will be treated as appointment by  promotion.  As stated earlier, the selection will be subject to  seniority and suitability and there is no dispute that the  appellant is senior to 5th respondent.  She is eligible and  qualified for appointment by promotion to HSST.  It is not the  case of the Management that she is unsuitable for promotion.    11)     The expression "subject to seniority and suitability"  occurring in G.O. dated 27.6.1990 does not mean the  comparative assessment of suitability and it only means the  suitability for the particular post and the suitability is related  to the prescribed qualification and requisite experience.  In  view of the distinction between the appointment by promotion  from General Education Subordinate Service and an  appointment to the 75% vacancies ear-marked for direct  recruitment, we are of the view that the finding arrived at by  the Director, Higher Secondary School, Thiruvananthapuram,  Kerala that seniority is not the criterion for ’appointment by  promotion to HSST’ is erroneous and is not in terms of the  Government Orders referred to above.  Though in the order, it  is stated that the 5th respondent is more suitable than the  appellant, as rightly pointed out by learned counsel appearing  for the appellant, it has not been shown or indicated the  reasons or grounds for arriving such decision that the 5th  respondent was found more suitable than the appellant for the  post.  We are also in agreement with the contention that the

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Director has mechanically accepted the decision of the  Selection Committee that the 5th respondent is more suitable  than the appellant without reference to selection for  appointment by promotion to HSST against 25% quota ear- marked for qualified High School Assistants.  We are of the  view that the Director has committed an illegality in upholding  the selection of the 5th respondent for appointment to the post  of HSST.  Further the 5th respondent has been preferred to the  appellant for the reason that his main subject in B.A. is  History which is totally irrelevant for promotion to HSST from  among HSAs. In G.O. dated 27.6.1990 the qualification  prescribed is a second class Master’s Degree in the concerned  subject with B.Ed.  It is relevant to point out that the  appellant and the 5th respondent have obtained M.A. Degree  from Mysore University and the 5th respondent took B.Ed with  Social Studies.  The other reason given by the Selection  Committee for preferring 5th respondent is that he has  proficiency in English, Kannada and Malayalam whereas the  appellant has proficiency in English and Malayalam.  As  rightly pointed out by learned counsel appearing for the  appellant, once the requirement of the prescribed qualification  is satisfied, the selection must be made on the basis of the  seniority and suitability and there is no scope for making  comparison of qualifications or comparative assessment of  suitability.  The expression ’suitability’ means that a person to  be appointed shall be legally eligible and ’eligible’ should be  taken to mean ’fit to be chosen’.   12)     In such circumstances, we are of the view that it was  improper on the part of the Selection Committee to make  selection taking into account the qualifications which are not  prescribed in the G.Os and by giving weightage to such  qualifications.  The Selection Committee has also taken note of  the suggestion of the Parents Teachers Association that  persons having proficiency in Kannada should be preferred  when there is no such condition in the Government Order.     In other words, preference is to be given for proficiency in  Kannada which is not a requisite qualification. In our view,  ignoring the appellant who has been working as HSA in the  very same school and selecting the 5th respondent by giving  weightage for proficiency in Kannada which is not a condition  prescribed in the relevant Govt. orders by the Selection  Committee can not be sustained.  It is based on  extraneous/irrelevant considerations. 13)     In our view, the learned single Judge as well as the  Division Bench of the High Court on the mis-construction of  two G.Os. dated 27.06.1990 and 13.05.1998 prescribing  qualifications and mode of selection, committed an error in  upholding the selection of 5th respondent when the appellant  being fully qualified as well as senior to 5th respondent as  HSA. 14)     Under these circumstances, we allow the appeal and set  aside the order dated 22.6.2004 passed by the learned single  Judge of the High Court in W.P.(C) Nos. 21069/2003 and  15674 of 2004 as well as the order dated 12.7.2004 passed by  the Division Bench of the High Court in W.A. No. 1265 of 2004  confirming the selection of the 5th respondent as HSST.          As a result of the above conclusion, we direct the authorities  to issue appropriate order in favour of the appellant within a  period of four weeks from the date of receipt of this judgment.   No order as to costs.