Deepa Elizabeth Mathew vs State Of Kerala
2021 Latest Caselaw 20387 Ker

WP(C) NO. 17623 OF 2021             1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
        FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                        WP(C) NO. 17623 OF 2021
PETITIONER/S:

            DEEPA ELIZABETH MATHEW,
            AGED 43 YEARS,
            TRAINING SCHOOL ASSISTANT (SCIENCE), AMM TTI & UP
            SCHOOL, MARAMON, PATHANAMTHITTA-689 549.

            BY ADVS.
            M.VISHNUPRIYA
            C.B.ABHINAVA



RESPONDENT/S:

    1       STATE OF KERALA,
            REPRESENTED BY SECRETARY TO THE GOVERNMENT, GENERAL
            EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM-695 001.

    2       DIRECTOR OF GENERAL EDUCATION,
            OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHI,
            THIRUVANANTHAPURAM-695 001.

    3       DEPUTY DIRECTOR OF EDUCATION,
            OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
            PATHANAMTHITTA, THIRUVALLA, PATHANAMTHITTA-689 101.

    4       DISTRICT EDUCATIONAL OFFICER,
            OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA,
            PATHANAMTHITTA-689 101.

    5       THE MANAGER,
            AMM TTI & U.P. SCHOOL, MARAMON, PATHANAMTHITTA-689 549.

    6       PRINCIPAL,
            AMM TEACHERS TRAINING INSTITUTES UP SCHOOL, MARAMON,
            PATHANAMTHITTA-689 549.
 WP(C) NO. 17623 OF 2021          2



    7     INDHU P. THOMAS,
          HIGH SCHOOL ASSISTANT (NATURAL SCIENCE), ON DEPLOYMENT
          TO BLOCK RESOURCE CENTRE, KOZHNCHERI.

          BY ADV K.B.GANGESH


          SRI BIJOY CHANDRAN, SR GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 17623 OF 2021                   3

                                    JUDGMENT

Under challenge in this Writ petition is Exhibit P5 order passed by the 4th

respondent rejecting the approval of the petitioner as Training School Assistant

('TSA' for short) in the Science stream in the AMM TTI and UP School, Maramon.

The rejection of approval was on the ground that the 7th respondent, who is a

High School Assistant ('HAS' for short) in the Natural Science (NS) category is on

deployment and for the failure to produce the approved seniority list.

2. The petitioner states that she is working as TSA (Science) at AMM

Teachers Training Institute, Maramon, an aided institution managed by the 5th

respondent. She was appointed in the aforesaid post by Exhibit P1 order on

15/07/2021. According to the petitioner, the qualification prescribed for

appointment as teacher educator/Training School Asst is post-graduation and

M.Ed. with 50% marks. Only those candidates who are having post-graduation in

philosophy, sociology and psychology are exempted from the requirements of

having M.Ed. qualification and for those subjects, the candidates are required to

have only B.ELEd., B.Ed or D.ELEd. with 50% marks. The petitioner has Post-

Graduation in Physics and is also having an M.Ed. in Science Education and is

therefore fully qualified to hold the post of TSA (Science). Reliance is placed on

Exhibits P3 and P4 certificates issued by Mahatma Gandhi University to

substantiate the said contention.

3. The petitioner contends that when there was undue delay in granting

approval of appointment as TSA (Science), the petitioner made an enquiry with

the office of the 4th respondent. She was informed that as per the staff fixation

order of the AMM TTI & UP School for the academic year 28/06/2018, a post of

HSA (NS) was reduced and the excess teacher, who is stated to be the 7th

respondent, was deployed in view of the existing Government order granting

protection to those teachers who were appointed and approved up to the

academic year 2014 - 2015.

4. The petitioner contends that the 7th respondent, who was ordered to

be deployed pursuant to the staff fixation conducted in the school for the year

2018-2019 is not having M.Ed., a qualification which is mandatory for being

appointed as TSA (Science) in view of Exhibit P2 norms prescribed by the NCTE

and the law laid down by this Court in various judgements. It is further contended

that the post of TSA is not the promotion post of HSA and therefore, the two

posts fall into two different categories and are not interchangeable. It is

contended that even if a reduction of post occurs in the cadre of HSA, the junior-

most teacher in the cadre of HSA must be retrenched and it cannot be based on

common seniority of Training School Assistants and High School Assistants.

5. According to the petitioner, ignoring all these aspects, the 4th

respondent has rejected the approval of the petitioner as per Exhibit P5 order. It

is contended that the order passed by the 4th respondent cannot be sustained in

the light of the law laid down in Exhibits P8 and P9 judgments, the cases in which

the respondent Management and the 4th respondent were parties.

6. It is in the afore circumstances that the petitioner is before this Court

seeking the following reliefs:

(i) To call for the records leading to the issuance of Ext.P5 order of the 4th respondent and be pleased to set aside the same by issuing a writ of certiorari.

(ii) to issue a writ of mandamus directing the 4th respondent to approve the appointment of the petitioner as Training School Assistant (Science) w.e.f 15.07.2021 on the basis of Ext.P1 appointment order

(iii) To declare that petitioner is having all the requisite qualification to be appointed as TSA (Natural Science) in the light of Ext.P2 order of the NCTE and Exts.P6,P7 and P8 judgments.

(iv) To declare that the post of TSA Science cannot be filled up by recalling a deployed H.S.A. Natural Science in the light of Ext.P8 judgment of this Hon'ble Court.

(v) To declare that in view of Ext.P6 to P8 judgments and Ext.P2 norms prescribed by the NCTE, the post of TSA Science can only been filled up by persons having post Graduation with MEd qualification on the subject.

7. Sri Fayaz, the learned counsel appearing for the petitioner submitted that

in so far as a Training School Assistant is concerned, the teachers should have

Post Graduate qualification and M.Ed. with 50% marks as provided under the

National Council for Teacher Education. The 7th respondent is only having Post

Graduation with B.Ed qualification and is not qualified to be appointed as TSA

(Science). Relying on Exhibit P9 judgment of the Division Bench, it is contended

that the post of HSA and TSA are not interchangeable and if a teacher in the

school section is found excess, she will have to be either deployed or adjusted in

any vacancies under the Management.

8. I have heard the learned Government Pleader and also Sri. Gangesh the

learned counsel appearing for the party respondent.

9. In the impugned order it is stated that the petitioner was appointed on

15.7.2021 in the retirement vacancy of Smt.Susamma George, who had

superannuated on 31.3.2021 while working as TSA ( Science). The District

Educational Officer on perusal of the proposal of appointment noticed that the 7th

respondent, who was working as a Science Teacher in the MMA HS, Maramon,

under the very same Corporate Management had been deployed to the BRC,

Kozhencherry. The reason stated for rejecting the approval is that the 7th

respondent is on deployment and that the approved seniority list was not

produced. This Court had occasion to hold that as far as a TSA is concerned,

Teachers should have Post Graduate qualification as provided under the National

Council for Teacher Education Act and also M.Ed. with 50% marks. When the

qualifications for a TSA and HSA are different, merely because the schools come

under the same Corporate Management and a common seniority list is being

prepared, there cannot be any interchange among the Teachers employed as TSA

and HSA. As far as an HSA is concerned, the minimum qualification is only

graduation with B.Ed and M.Ed. is not an essential qualification. In the case on

hand, there are two schools under the same Corporate Management, one is a

High School and the other is a Training Institute. A Division Bench of this Court in

Exhibit P9 judgment, while considering the question as to whether a common

seniority list can be prepared by the Management with reference to Teachers in

the Training Institute as well as in the High School under the same Management,

had occasion to hold that the post of HSA and TSA cannot be equated together

merely on account of the fact that the pay scales are the same. The qualifications

are different. For becoming a TSA, one requires a Postgraduate Degree, which is

not an essential qualification for the post of HSA. In that view of the matter, I am

of the considered opinion that the 4th respondent was not justified in issuing

Exhibit P5 order and in calling for a combined seniority list.

Resultantly, Exhibit P5 will stand quashed and there will be a direction to

the 4th respondent to consider the proposal submitted by the Manager in the light

of the law laid down by this Court in Exhibits P6 to P9 judgments. Orders, as

directed above, shall be passed expeditiously, in any event, within a period of

three months from the date of production of a copy of this judgment. It would be

open to the petitioner to produce a copy of the writ petition along with the

judgment before the concerned respondent for further action.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE NS

APPENDIX OF WP(C) 17623/2021

PETITIONER (S) EXHIBITS:

Exhibit P1 PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT APPOINTING THE PETITIONER AS TSA (SCIENCE) DATED 15.7.2021.

Exhibit P2 PHOTOCOPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION ISSUED BY THE NCTE DATED 28.11.2014 PRESCRIBING THE MINIMUM QUALIFICATIONS FOR APPOINTMENT TO THE POST OF TEACHER EDUCATOR/TSSA.

Exhibit P3 PHOTOCOPY OF THE MSC PHYSICS CERTIFICATE ISSUED BY THE MAHATMA GANDHI UNIVERSITY IN RESPECT OF THE PETITIONER DATED 23.5.2001.

Exhibit P4           PHOTO COPY OF M ED (SCIENCE EDUCATION)
                     CERTIFICATE ISSUED BY THE MAHATMA GANDHI
                     UNIVERSITY IN RESPECT OF THE PETITIONER
                     DATED 31.5.2016.

Exhibit P5           PHOTOCOPY OF ORDER NO.B1/24917/2021 DATED
                     13.8.2021 ISSUED BY THE 4TH RESPONDENT.

Exhibit P6           PHOTOCOPY OF THE JUDGMENT IN WPC
                     NO.24405/2015 DATED 8.12.2015.

Exhibit P7           PHOTOCOPY OF THE JUDGMENT IN WPC
                     NO.2558/2017 AND CONNECTED CASES.

Exhibit P8           PHOTOCOPY OF THE JUDGMENT IN WPC
                     NO.34590/2018 DATED 4.4.2019.

Exhibit P9           PHOTOCOPY OF THE JUDGMENT IN WA.NO.1365/2019
                     DATED 18.11.2019.

RESPONDENT (S) EXHIBITS:   NIL