and Another Vs. State of Kerala & Ors  Insc 143 (5 March 2003)
Kumar & D.M. Dharmadhikari. Dharmadhikari J.
appeals have been preferred by the candidates seeking recruitment to the post
of lower primary/upper primary teachers in the Government Schools of the State
questioned their non-selection to the post due to inclusion of B.Ed. candidates
in the select list prepared by the Public Service Commission of the State of Kerala. Their contention before the High
Court was that in the advertisement issued for recruitment to the post of
teachers in Government Primary Schools, B.Ed. is not the prescribed
qualification and only candidates with prescribed educational qualifications of
Teachers Training (Certificate) (shortly referred to as TTC) were entitled to
compete for the selection and seek appointment.
Single Judge of the High Court of Kerala by judgment dated 25.1.1999 allowed
the petition of the present appellants holding that B.Ed. candidates could not
have been included in the select or rank list as they were not eligible under
the terms of the advertisement. The learned single judge issued directions to
the State Public Commission to prepare the rank list afresh by excluding B.Ed.
candidates. A further direction was issued that all orders of appointment
issued in favour of B.Ed. degree holders be cancelled. The relevant part of the
directions given by the learned single judge deserves to be reproduced:
the above mentioned circumstances, Original Petition succeeds and it is
declared that B.Ed. holders who are not having TTC and who have been included
in the rank list should be deleted from the rank list. Accordingly, there will
be a direction to the Public Service Commission to rearrange the rank list in
the Pathanamthitta District, after excluding above- mentioned persons. This
exercise should be done within a period of one month from the date of receipt
of a copy of this judgment.
will also be a direction to the PSC to cancel the advice which has already been
made as far as B.Ed. holders are concerned who are not having TTC and there
will be a direction to the Government to cancel the appointment already made to
all those persons whose advice are to be cancelled by the PSC.
Petition is allowed to the above extent." By the impugned judgement dated
18.2.2000, the Division Bench of the High Court in Writ Appeals and Original
Writ Petition before it, preferred by the B.Ed. candidates (who are private
respondents before us), upheld the decision of the learned single judge that
under the terms of the advertisement, the B.Ed. candidates were not qualified
to compete for the post. Despite this strangly it upset the directions made in favour
of the present appellants as TTC candidates, because of an undertaking given by
the State of Kerala that they would be suitably
amending the Rules of recruitment for providing avenues of recruitment to B.Ed.
degree holders as teachers in Government Primary Schools.
relevant part of the observations with reasoning and conclusion drawn by the
division bench in its order to allow the appeal of the B.Ed. candidates also
needs to be reproduced:
learned judge finally held that in view of the principles laid down in the
aforesaid decisions, B.Ed is not a qualification prescribed and therefore B.Ed.
holders are ineligible to apply. When the matter is thus considered only in the
premise of Ext.P3 notification we cannot say that the learned judge has
committed any error in holding that PSC is not justified in searching for an
equivalent or better qualification. But we have before us other lively and
stimulating issues for decision which we prefer to discuss presently.
Government have expressed in the affidavit dated 19.1.2000 that they would
frame rules in accordance with the decision taken on 2.6.1999 in consultation
with the PSC for future appointments of TTC hands only in LP Schools and B.Ed.
holders and TTC hands in UP Schools as expeditiously as possible. This is a
solemn undertaking which should be implemented with extreme swiftness. We do
not want to keep the position uncertain and vague as far as future appointments
are concerned. It is made clear that we have validated the appointments already
made for apparent reasons referred to above. We therefore direct the government
to frame rules as above expeditiously, at any rate within a period of three
months from today and to regulate all future selections and appointments
view of he discussion herein above we hold that the rank list published by the
PSC for appointment to the post of UPSA/LPSA (Malayalam) in Pathanamthitta
district is valid.
direction given by the learned single judge in the impugned judgment to the PSC
to re-arrange the rank list in Pathanamthitta district and to cancel all the
appointments of B.Ed. holders to the post of UPSA and LPSA is set aside.
the appointments of B.Ed. holders so far made to the post of LPSA/UPSA are
declared valid. The judgment of the learned single judge in OP No.19187 of 1999
is accordingly set aside." Aggrieved by judgment of the division bench,
the present appellants who are holders of TTC and have not been able to get
selected for the post of lower/upper primary teachers have approached this
Court in these appeals.
advertisement which was published in the Notification in the Gazette dated
22.11.1994, the qualifications for the post of lower/upper primary teachers
were prescribed thus:
Pass in SSLC conducted by the Commissioner for Government Examination, Kerala,
or any other equivalent qualification.
Pass in TTC conducted by the Commissioner for Government Examinations, Kerala,
or pass in Pre-degree of Kerala University with pedagogy as optional subject or
pass in basic TTC examination (Malayalam) conducted by the Government of Madras
or pass in Malayalam Vidhvan examination.
counsel appearing for the appellants contends that when the terms of
advertisement, quoted above, are very clear to indicate that B.Ed. degree is
not the prescribed qualification, such candidates were clearly ineligible to
compete and they could not have been allowed to take up the selection test and
to be included in the select list. Learned counsel placed before us two
judgments of Kerala High Court in Thulasibhai Amma vs. Asst. Educational
officer [1993 (2) KLT 245] and Mathew vs. State of Kerala [1992 (2) KLT 116]
and pointed out that those decisions were wrongly referred to and relied by the
division bench for allowing the appeal of the B.Ed. candidates and directing
the authorities to suitably amend the Rules. Those judgments related to
recruitment to the post of primary teachers in private primary schools aided by
the Government and to which the provisions of Kerala Education Act and Rules
to Government Primary Schools is regulated by a Government Resolution or Order
and this legal position is not in dispute.
counsel appearing for the State of Kerala, the State Public Service Commission
and some of the private respondents have strongly urged that B.Ed.
qualification is a higher qualification than TTC and as in the process of
recruitment of primary teachers in Government Primary Schools, candidates with B.Ed.
degree were allowed to compete, the division bench was right in not upsetting
the select list and the appointment of B.Ed. candidates on undertaking given by
the authorities to suitably amend the recruitment Rules.
behalf of the State of Kerala, learned counsel pointed out that pursuant to the
directions of the division bench, Kerala Education Rules framed under the Kerala
Education Act of 1958 have been amended and for Upper Primary Teaches now along
with TTC, B.Ed./BT/LT of recognized Universities of Kerala have also been
prescribed as qualifications with effect from the date of Notification i.e.
not disputed before us by the parties that Kerala Education Act of 1958 and the
Kerala Education Rules framed thereunder regulate recruitment to the posts of
teachers in private schools aided by the Government. It is not brought to our
notice that correspondingly the Government Memorandum or Order which regulated
recruitment to Government Primary Schools has also been amended to prescribe B.Ed.
and equivalent degree qualification as eligibility qualification for the post.
find absolutely no force in the argument advanced by the respondents that B.Ed.
qualification is a higher qualification than TTC and therefore, the B.Ed.
candidates should be held to be eligible to compete for the post. On behalf of
appellants, it is pointed out before us that Trained Teachers Certificate is
given to teachers specially trained to teach small children in primary classes
whereas for B.Ed. degree, the training imparted is to teach students of classes
degree holders, therefore, cannot necessarily be held to be holding
qualification suitable for appointment as teachers in primary schools. Whether
for a particular post, the source of recruitment should be from the candidates
with TTC qualification or B.Ed. qualification, is a matter of recruitment
policy. We find sufficient logic and justification in the State prescribing
qualification for post of primary teachers as only TTC and not B.Ed. Whether B.Ed.
qualification can also be prescribed for primary teachers is a question to be considered
by the authorities concerned but we cannot consider B.Ed. candidates, for the
present vacancies advertised, as eligible.
division bench in the impugned order upheld the decision of the single judge
that in terms of the advertisement, B.Ed. candidates were not eligible to take
up the selection and to be included in the rank list. We fail to understand
that having thus upheld the decision of the learned single judge what was the
justification for the division bench to refer to statutory recruitment Rules
applicable to teachers in private primary schools, aided by the Government and
the judgments rendered by the High Court in their cases, for reversing the
judgment of the Single Judge and maintaining the Rank List including names of
the B.Ed. candidates and their appointments on the basis of rules yet to be
behalf of respondents, it is submitted that since large number of B.Ed.
candidates were allowed to compete and actual appointment orders were also
issued in their favour, the division bench has tried to adjust the equities
between the parties.
and law are twin brothers and law should be applied and interpreted equitably
but equity cannot over-ride written or settled law. The division bench forgot
that in extending relief on equity to B.Ed. candidates who were unqualified and
yet allowed to compete and seek appointments contrary to the terms of the
advertisement, it is not redressing the injustice caused to the appellants who
were TTC candidates and would have secured a better position in the Rank List
to get appointment against the available vacancies, had B.Ed. candidates been
excluded from the selections. The impugned judgment of the division bench is both
illegal, inequitable and patently unjust. The TTC candidates before us as
appellants have been wrongly deprived of due chance of selection and
appointment. The impugned judgment of the division bench, therefore, deserves
to be set aside and of the learned single judge restored.
counsel for the respondent states that two interim orders were made by this
Court during the pendency of Special Leave Petitions and after grant of leave
for these appeals. The relevant orders dated 3.7.2000 and 1.3.2001 read as
Order dated 3.7.2000 "Taken on Board. Issue notice.
appointment in the meanwhile made will be subject to the result of any order
passed in this SLP." Court Order dated 1.3.2001 ".
Rao, learned Senior Counsel submitted on behalf of the State of Kerala that TTC holders alone will be
appointed in the vacancies arising in respect of lower primary schools (LPS).
This will continue for the future posts also until otherwise decided by this
Court. He submitted that so far as upper Primary Schools (UPS) are concerned,
until otherwise decided, TTC holders as well as B.Ed. holders will be
considered and the Public service Commissin (PSC) will select the persons out
of this as one category who are more competent among them for appointment. We
make it clear that all such appointments made after 3.7.2000 will be treated as
only provisional appointments and be subject to the final result of the
order will apply only to non-private schools." Learned counsel for the
private respondents relying on the above orders of this Court, submits that
since the B.Ed. candidates have been appointed after amendment of the Rules and
on the statement made by the counsel for the State and the Public Service
Commission, this Court should not upset the appointment of B.Ed. candidates
have held that the impugned judgment of the division bench is liable to be set
aside and that of the single judge maintained. Having thus reached a conclusion
in favour of the present appellants who are TTC candidates, it would be highly
unreasonable to deny them relief merely because of the interim orders or
arrangements made thereby this Court: Under the aforesaid two orders, B.Ed.
candidates were allowed to be appointed only provisionally. We take note of the
fact that all the B.Ed. appointees are not before us and even though all B.Ed.
candidates who have been arrayed as respondents to these appeals, have been
served with notices of these appeals, only a few of them are represented
through counsel. In these circumstances, we would restrict the relief to the
candidates who were petitioners before the learned single judge including the
exercise of preparation of a fresh Rank List directed to by the learned single
judge shall be undertaken and after fresh list is prepared by exclusion of B.Ed.
candidates, if the appellants get the necessary rank against available
vacancies at the relavant time, they would be given appointment and to make
room for them, by terminating appointment, if necessary, of B.Ed. candidates
who might have been selected in their places.
we allow these appeals. The impugned judgment dated 18.2.2000 of the division
bench is set aside and order of the learned single judge dated 25.1.1999 is
restored with the modification made above. Since the petitioners in the High Court
and in this Court have been waiting for selection and appointment, so long, let
the directions made by the learned single judge as modified by this Court be
carried out with expedition and within an outer limit of four months. The
appellants will also be entitled to get costs from the respondents State of Kerala with Counsel's fee as per rules.