Ashlymol Saju vs State Of Kerala
2024 Latest Caselaw 16395 Ker

Kerala High Court

Ashlymol Saju vs State Of Kerala on 11 June, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     TUESDAY, THE 11TH DAY OF JUNE 2024 / 21ST JYAISHTA, 1946
                       WP(C) NO. 36707 OF 2023
PETITIONERS:

    1     ASHLYMOL SAJU
          AGED 28 YEARS
          D/O. SAJU K. K., AGED 28 YEARS, PARAYIL HOUSE,
          ATHIRAMPUZHA P.O. KOTTAYAM, PIN - 686562

    2     JISNA THOMAS
          AGED 25 YEARS
          D/O. THOMAS P. JOSEPH, AGED 25 YEARS PUTHUKULANGARA
          HOUSE, PANGADA P.O. PAMPADY KOTTAYAM, PIN - 686502

          BY ADV P.S.SIDHARTHAN


RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY PRINCIPAL SECRETARY DEPARTMENT OF
          GENERAL EDUCATION ROOM NO 206, 2ND FLOOR, SOUTH
          SANDWICH BLOCK GOVERNMENT SECRETARIAT
          THIRUVANANTHAPURAM, PIN - 695001

    2     ASSISTANT EDUCATIONAL OFFICER
          OFFICE OF THE ASSISTANT EDUCATIONAL OFFICE MANKOMPU SUB
          DISTRICT, MANKOMPU P.O. KUTTANAD TALUK ALAPPUZHA,
          PIN - 688503

    3     ASSISTANT EDUCATIONAL OFFICER
          OFFICE OF THE ASSISTANT EDUCATION OFFICE PUTHENANGADY,
          KOTTAYAM WEST SUB DISTRICT KOTTAYAM, PIN - 686001

    4     THE MANAGER
          CORPORATE MANAGEMENT OF SCHOOLS ARCHDIOCESE OF
          CHANGANASSERY, PASTORAL CENTER CHANGANACHERRY,
          PIN - 686101

          BY ADV
          ADV PREMCHAND R NAIR - GOVERNMENT PLEADER
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 36707 OF 2023
                                      2



                              JUDGMENT

The petitioners have approached this Court, seeking the

following reliefs:

"i. Call for records leading to Exhibit P8 and Exhibit P9 and issue a writ of certiorari quashing Exhibit P8 and Exhibit P9 as the same are illegal arbitrary and violative of Article 14 of the Constitution of India.

ii. Issue a writ of mandamus commanding the 2nd and 3rd respondents to consider and pass orders Exhibit P6 and Exhibit P7 applications filed by the 4th respondent manger for approval of appointment of petitioners in the light of Exhibit P12 and Exhibit P13.

iii dispense with filing of the translation of vernacular documents. iv. Issue such other orders or directions as are deemed fit by this Hon'ble Court."

iv Issue such other orders or directions as are deemed fit by this Hon'ble Court.

2. The grievances of the petitioners are as follows:

The petitioners, are holding a one year Diploma course

conducted by the Dakshina Bharat Hindi Prachar Sabha, Madras WP(C) NO. 36707 OF 2023

namely, "Praveen", in Hindi. The petitioners were appointed as

the part time language Hindi Teachers by the 4 th respondent

Corporate Manager, in their school as evidenced by Ext.P2 and

P4 appointment orders. The 4th respondent submitted the

proposals for approval of appointment as evidenced by Ext.P6

and P7 before the 2nd and 3rd respondents. The grievance of the

petitioner is that, the said proposals of appointments are not being

approved by the 2nd and 3rd respondents, mainly because of

Ext.P8 Government Order dated 07.03.2019, as per which, one

of the essential qualifications for appointment was fixed as two

year Diploma course in the concerned subject. As the petitioners

have undergone a one-year Diploma course, the qualifications of

the petitioners are not in tune with Ext.P8, according to the

respondents. The Writ Petition was submitted in such

circumstances seeking the reliefs mentioned above.

3. A statement has been placed on record on behalf of

the 1st respondent disputing the contentions raised by the

petitioners in the writ petition.

WP(C) NO. 36707 OF 2023

4. Heard, Sri.P.S.Sidharthan, the learned counsel

appearing for the petitioner and Sri.Premchand R.Nair, the

learned Government Pleader appearing for the State.

5. The main contention raised by the learned counsel for

the petitioner is that, Ext.P8 and the stipulations contained therein

cannot be treated as an embargo in approving the appointment of

the petitioner. It is specifically contended by the learned counsel

for the petitioner that, as per Rule 3(2)(iii) of Chapter XXXI of

KER, the following qualifications are prescribed for the said post;

"(iii) Hindi-- A Degree in Hindi conferred or recognised

by the Universities in Kerala; or

A title of Oriental learning in Hindi awarded or

recognised by the Universities in Kerala, or

Praveen of the Dakshina Bharat Hindi Prachar

Sabha, Madras with a pass in S.S.L.C. Examination

conducted by the Commissioner for Government

Examinations, Kerala its equivalent or

Sahityacharya of Kerala Hindi Prachar Sabha with a WP(C) NO. 36707 OF 2023

pass in S.S.L.C. Examination conducted by the

Commissioner for Government Examinations, Kerala

or its equivalent or

[R.B.V. of the Dakshina Bharat Hindi Prachar Sabha

with a pass in S.S.L.C. Examination conducted by the

Commissioner for Govt. Examinations, Kerala or its

equivalent; or

A pass in Hindi Bhooshan Examination of the Kerala

Hindi Prachar Sabha with a pass in the S.S.L.C.

Examination conducted by the Commissioner for

Government Examinations; Kerala or its equivalent]".

6. One of the essential qualifications is "Praveen of

Dakshina Bharat Hindi Prachar Sabha, Madras" with a pass in

S.S.L.C Examinations, conducted by the Commissioner for

Government Examinations, Kerala or its equivalent. There is no

dispute on the fact that, the petitioners possess the said

qualification. According to the petitioner, so long as the Rules

governing the essential qualification for the post have not been

amended, the appointment of the petitioners cannot be denied WP(C) NO. 36707 OF 2023

approval on the ground that they do not have the necessary

qualification, by placing reliance upon Ext.P8, which is only an

executive order.

7. However, the crucial aspect to be noticed is that the

specific contention raised by the respondents in their counter

affidavit is that Ext.P8 has been issued, in view of the stipulations

contained in the Right of Children for Free and Compulsory

Education Act, 2009. The relevant averments in the statement

submitted by the first respondent read as follows:

"4. In exercise of the powers conferred by Section 23(1) of Right of Children for Free and Compulsory Education Act 2009, NCTE issued Notification No. F.No.61-03/20/2010/NCTE(N&S) dated 23.08.2010 whereby two year Diploma in Elementary Education has been made minimum qualification for teachers in Class 1 to 8. Accordingly as per G.O(Ms) No.30/2019/GEDN Dated 07.03.2019, Government have enhanced the duration of existed Diploma in Language Education (Hindi/Sanskrit/Arabic/Urda) (DLEd)courses conducted by the Commissioner for Government Examinations, Kerala, from One year to Two years and renamed it as 'Diploma in Elementary WP(C) NO. 36707 OF 2023

Education"( D.EL.ED) (Hindi/Sanskrit/Arabic/Urdu) from the year 2019-20. A pass in 2 year Diploma in Elementary Education (Hindi/Sanskrit/Arabic/Urdu) course and the qualifications prescribed for admission to the 2 year D.ELEd (Hindi/Sanskrit/Arabic/Urdu) courses, as provided in the Government Order above, are made mandatory for the appointment of Hindi/Sanskrit/Arabic/Urdu teachers in Primary Schools/Primary wing of the school.

5.xxxx

6.In this case G.O(Ms)No.30/2019/GEDN dated 07-

03-2019 Government have laid down a condition that a pass in 2 year Diploma in Elementary Education (Hindi/Sanskrit/Arabic/Urdu) course is made mandatory for primary language teachers in accordance with the qualification prescribed by NCTE. Government is finalizing the process of amendment of Rules including relaxation admissible to persons like petitioners, in consultation with Law Department. It is submitted that Government is taking all effort to finalize the notification process at the earliest."

Since Ext.P8 was passed, on the basis of the statutory

stipulations contained in the Right of Children for Free and WP(C) NO. 36707 OF 2023

Compulsory Education Act 2009, the contentions raised by the

petitioners cannot be accepted. However, at this juncture, the

learned counsel for the petitioners brought the attention of this

Court to G.O.(Ms) No.59/2024/GEDN dated 10.06.2024, wherein

the Government granted exemption to certain classes of persons,

from the conditions stipulated in Ext.P8. As per clauses 4 and 5 of

the same, the persons who are already given appointments till

2023-24 on the basis of the qualifications prescribed as per the

relevant rules shall be exempted from obtaining two-year

qualification. As the petitioners herein were appointed during the

academic year 2023-24, they are coming within the purview of the

said Government Order. Therefore, in the light of the aforesaid

Government Order, it is only proper that, the case of the

petitioners, be re-considered by the authorities concerned.

In such circumstances, Exts.P6 and P7 are hereby quashed

with a direction to the 2nd and 3rd respondents to re-consider the

question of approval of the appointments of the petitioners, as

evidenced by Exts.P2 and P4, by taking note of the G.O.(Ms) WP(C) NO. 36707 OF 2023

No.59/2024/GEDN dated 10.06.2024. The orders in this regard

shall be passed within a period of one month from the date of

receipt of a copy of this judgment, after hearing the petitioners and

the fourth respondent.

This writ petition is disposed of as above.

Sd/-

ZIYAD RAHMAN A.A. JUDGE scs WP(C) NO. 36707 OF 2023

APPENDIX OF WP(C) 36707/2023

PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE PROVISIONAL CERTIFICATE OF THE 1ST PETITIONER ISSUED BY THE DAKSHINA BHARAT HINDI PRACHAR SABHA, MADRAS DATED 29.03.2023 EXHIBIT P2 THE TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER DATED 02.06.2023 EXHIBIT P3 THE TRUE COPY OF THE PROVISIONAL CERTIFICATE OF THE 2ND PETITIONER ISSUED BY THE DAKSHINA BHARAT HINDI PRACHAR SABHA, MADRAS DATED 29.03.2023 EXHIBIT P4 THE TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER DATED 02.06.2023 EXHIBIT P5 THE TRUE COPY OF THE STATEMENT OF CHANGE OF STAFF ISSUED BY 4TH RESPONDENT EXHIBIT P6 THE TRUE COPY OF THE APPLICATION OF THE 1ST PETITIONER SUBMITTED BY THE 4TH RESPONDENT THROUGH SAMANVAYA PORTAL EXHIBIT P7 THE TRUE COPY OF THE APPLICATION OF THE 2ND PETITIONER SUBMITTED BY THE 4TH RESPONDENT THROUGH SAMANVAYA PORTAL EXHIBIT P8 THE TRUE COPY OF THE GOVERNMENT ORDER NO 30/19/GED ISSUED BY THE OFFICE OF THE 1ST RESPONDENT DATED 07.03.2019 EXHIBIT P9 THE TRUE COPY OF ORDER NO GE -

JR1/34/2023 - G.EDN ISSUED BY THE OFFICE OF THE 1ST RESPONDENT DATED 24.08.2023 EXHIBIT P10 THE TRUE COPY OF THE ELIGIBILITY CERTIFICATE OF THE 1ST PETITIONER DATED 11.10.2023 EXHIBIT P11 THE TRUE COPY OF THE ELIGIBILITY CERTIFICATE OF THE 2ND PETITIONER WP(C) NO. 36707 OF 2023

DATED 12.08.2022 EXHIBIT P12 THE TRUE COPY OF THE GAZETTE NOTIFICATION FOR CATEGORY NO 606 OF 2022 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION DATED 30.12.2022 EXHIBIT P13 THE TRUE COPY OF GAZETTE NOTIFICATION FOR CATEGORY NO 140 OF 2023 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION DATED 15.07.2023