V ALSALA KUMARI DEVI M. v. DIRECTOR, HIGHER SECONDARY EDUCATION AND ORS.,

Citation: [2007] 10 S.C.R. 294

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, P. SATHASIVAM

Case summary

V ALSALA KUMARI DEVI M. v. DIRECTOR, HIGHER SECONDARY EDUCATION AND ORS.,.pdf

Judgment text

VALSALA KUMAR! DEVI M. -Jv. DIRECTOR, HIGH~R SECONDARY EDUCATION AND ORS. ,. SEPTEMBER 25, 2007 [TARUN CHATTERJEE AND P. SATHASIVAM, JJ. ) Service Law-Selection-Bypromotion-Post ofHSST (Higher 'I:- Secondary School Teacher)-Sought to be filled up by promotion of qualifiedHAS (High SchoolAssistant)----G. Osprescribing qualifications and mode ofselection-Both Appellant and 5th Respondent working as HAS, applied-Selection of5th Respondent though Appellant was ·senior~hallenge against-Held: Selection was basedon extraneous/ irrelevant considerations-It was improper on part ofSelection Committee to take into account qualifications not prescribed in the G. Os. and ignore Appellant who was fully qualified as well as senior to 5th respondent. Words andPhrases- 'Suitability', 'Eligible '-Meaning of-In the context ofselection/appointment in servicejurisprudence-Discussed In the Higher Secondary Schoolin question, a postofHSST(Higher Secondary School Teacher) fell vacant.

~ppellant as well as the 5th Respondent, both of whom were working as HAS (High School Assistant) in the very same school at the relevant 'time, applied for appointment by promotion to the said post. 5th Respandent was appointed as HSST. AppeDantftled writ petition contending thatthe 4th respondent (Manager) appointed 5th Respondent overlooking the seniority and eligibility ofAppellant. High Court, however, upheld t~e selection of5th respondent. Hence the present appeal. ~" Allowing the appeal, the Court HELD: 1. 1. 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 VALSALA KUMARI DEVI M. v. DIRECTOR, HIGHER 295 SECONDARY EDUCATION the appellant in the category ofHSA. The particulars furnished clearly show that the appellant possesses the requisite qualification for being considered for the post ofHSST. Government Order dated 27. 6.

1990 prescribes the minimum qualification for the HigherSecondarySchool Teachers as second class Master's Degree in the concerned subject with B. Ed. The appellant having secured second class Master's degree in History and B. Ed. Degree in English and History was fully qualified and eligible for appointment as HSST (History) in Humanities Group. [Para 9. 1] [303-H; 304-A, B, C] 1. 2. The Government Order dated 13. 5. 1998 makes it clearthat 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 ofcandidates for direct recruitment in Aided HigherSecondary Schools will be done by a StaffSelection Committee. [Para 9. 2] [304-C, D, E] 1. 3.

Government Order dated 27. 6. 1990 makes it clear that the selection ofteachers will be subject to seniority and suitability and G. O. dated 13. 5. 1998 specifically prescribes that the teachers appointed from General Education SubordinateServicewill be treated as appointment by promotion. 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 ofthe Management that she is unsuitable for promotion. [Para 10] (304-E, F, G] 1. 4. 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 ! he 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, the finding arrived at by the Director, Higher Secondary School that · seniority is not the criterion for 'appointment by promotion to HSST' is erroneous and is not in terms ofthe Government Orders. Though in the order, it is stated that the 5th respondent is more suitablethan the appellant, it has not been shown orindicated the reasons or grounds for arriving at such decision. [Para 11] (304-G, H; 305-A, BJ 1. 5. The Director has mechanically accepted the decision ofthe Selection Committee that the 5th respondent is more suitab~e than the appellantwithout reference to selection for appointment by promotion to HSST against 25% quota ear-marked for qualified High School Assistants. The Director committed an illegality in upholding the selection ofthe 5th respondent for appointment to the post ofHSST.

Furtherthe 5th respondent has been preferred to the appellant for the reason thathis main subject in B. A. is Historywhich is totally irrelevant for promotion to HSSTfrom among HSAs. In G. O. dated27. 6. 1990 the qualification prescribed is a second class Master's Degree in the concerned subjectwith B. Ed. The appellantand the 5th respondent have obtained M. A. Degree from Mysore University and the 5th respondent tookB. Ed. with SocialStudies. The other reason given by the Selection Committee for preferring5th respondent is that he has proficiency in English, Kannada andMalayalamwhereas the appellanthas proficiency in English and Malayalam. Once the requirement of the prescribed qualification is satisfied, the selection must be made on the basis ofthe 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 'fitto be chosen'. (Para 11) (305-C,D,E,F,G] 2. ltwas improper on the partofthe Selection Committee to make selection taking into account the qualifications which are not prescribed in theG. Os and by givingweightage to such qualifications. The Selection )- . Committee has also taken note of the suggestion of the Parents Teachers Association thatpersons having proficiency in Kannada should be preferred when there is no such condition in the GovernmentOrder. Ignoring the appellant who has been working as HSA in thevery same school and selecting the 5th respondent by giving weightage for proficiencyinKannadawhich isnotacondition prescribedintherelevant Govt orders by the Selection Committee can not be sustained. It is. based on extraneous/irrelevant considerations. [Para 12) [305-H; 306-A,B, CJ · 3. 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 appellantwas fully qualified as well as seniorto 5th respondent as HSA. [Para 13) [306-C,DI CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4480 of 2007. From the Judgment and Order dated 12. 7. 2004 ofthe High Court ofKerala at Emakulam in W. A. No. 1265of2004. Romy Chacko for the Appellant. A. Raghunath, G. Prakash, Beena Prakash, P. K. Jayakrishnan, M. P. Vinod, Dileep Pillai and Ajay K. Jain for the Respondents. The Judgment ofthe Court was delivered by 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 ofKerala has filed the above appeal.

(3) The brieffacts, 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 Univ_ersity of ~ysore. 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 ofCalicut certifying that M. A.

(History) Degree ofthe Mysore University is recognized as equivalent to M. A. (History) Degree ofthe University ofCalicut. She has been awarded B. A. degree by the University ofCalicut 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 Kamataka University in recognition ofthe fulfillment o~the requirement:S 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 Kamataka has been recognized as equivalent to the B. Ed. degree ofthe University ofCalicut and a certificate to that effect has been issued to th~ appellant by the Registrar ofthe University ofCalicut. 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) iri History subject in June, 2000 and the Commissioner ofEntrance Examinations has certified that the appellant has passed the SET prescribed as one ofthe 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.

j (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% ofvacancies in the post ofHSST 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 ofthe 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 StaffSelection Committee.

According to the appellant, in the case ofappointment by promotion of the teachers from the General Education Subordinate Service as HSST, the StaffSelection 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 ofthe appellant that the 4th respondent-the • Manager, overlooking the seniority and eligibility ofthe appellant, appointed 5th respondent as HSST (Hwnanities). Challenging the same, the appellant filed O. P. No. 22902 of2000 before the High Court ofKerala which was disposed ofby order dated 10. 8. 2000 directing the Director, Higher Secondary Education, Thiruvanthapuram, Kerala (respondent No. I 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 ofthe 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 of2001 which was disposed of by <mier dated 26. 02. 2003 directing the Director, B. A. R. High School, Bovikanan, to consider the grievance ofthe ·appellant after affording her an opportunity ofbeing heard. Pursuant to the said direction, the appellant submitted a fresh representation and finally the earlier order was once -~again reiterated upholding the appointment ofthe 5th respondent. The said order was challenged by the appellant by filing W. P. (C) No. 21069 of 2003. The said writ petition was finally heard along with W. P. (C) No.

15674 of 2004 filed by the 5th respondent seeking for approval ofhis appointment and payment ofsalary. The above said writ petitions were jointly heard and W. P. (C) No. 21069 of2003 was dismissed by judgment dated 22. 6. 2004 and Writ Petition (C) No. 15674of2004·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 ofa copy of the judgment. Being aggrieved by the above judgment, the appellant preferred an appeal before the Division Bench ofthe High Court ofKerala in W. A. No. 1265 of2004 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 ofthe Selection Committee selecting the 5th respondent confirmed the order ofthe 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 questi<? ns arise for consideration in this appeal: (i) Whether the selection of5th respondent for the post ofHigher 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 ofHigher Secondary School Teacher in the ~ absence ofany 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 VALSALA KUMARI DEVI M. v.

DIRECTOR, HIGHER 301 make selection for appointment by promotion to General Education Subordinate Service when the power conferred on StaffSelection Committee is restricted to selection by direct recruitment alone? (iv) Whether the expression "suitability" envisaged under G. 0. dated 27. 06. 1990 means suitability in relation to qualification and requisite experience or comparative assessment of suitability? (v) Whether the StaffSelection Committee wasjustified in acting on the dictates ofthe Parent Teacher Association ofthe School rather than the criteria provided under the G. O. dated 27. 6. 1990? (vi) Whether the High Court wasjustified in upholding the selection of5th respondent in view ofthe admitted fact that the appellant was senior to him as High School Assistant?

In view ofthe fact that all the issues referred to above are interconnected, they are being considered and disposed ofby 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 ofthe 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 conditions for appointment ofteachers for Plus Two Higher Secondary Course. The relevant clauses of the Government Order are as follows: "l ..................................................................... 2................................................................. 3.................................................................. . 4.

The issues relating to the implementation ofthe Plus Two Higher Secondary Course were examined in detail and discussions were ---~ held with representatives of all concerned. After careful consideration ofall aspects ofthe 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)........................................................ . (ii)........................................................ "') ' (111 ••••••. •••••••••••••••••••••... •. ••••••••••••. ••••••••• (iv)............................................. '. ....... .. (v) The medium ofinstruction will be English. (vi)........................................................... . (vii)........................................................... .. (viii)........................................................... . (ix).......................................................... ..

(x)........................................................... . (xi)........................................................... . (xii)........................................................ .. Teachers:- The minimum qualifications for the highersecondary 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 subjectto seniority and suitability. Ifsufficient number ofqualified hands are not available for appointment as teachers, candidates may be recruited through the Employment Exchange. 5................................... .. 6................................... .. 7.................................... 8......................................... " The relevant clauses of G. O. (Ms) No. 162/98/G. Edn. dated 13. 5.

1998 issued by the General Education (I) Department read as under: "I ................................ 2. The posts ofHigher Secondary School teachers in Government Higher Secondary Schools and Aided Higher Secondary Schools -Y 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% ofposts in Government Schools wiU be filled ~p _by direct recruitment through the Publ~c Service Comm1ss1on............................................. .................. . (iii) Appointments to the 75% vacancies earμiarked for direct recruitment in the Aided Higher Secondary Schools will be done by the management. Ifqualified 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 StaffSelection Committee consisting of the Manager or his representative, the Principal ofthe School and a Government nominee from the panel of officers consisting of Deputy Director, Education, D. E. O. ofthe area and DIET Principal ofthe District. The management can select a nominee from among the above officers. The above officers are permitted to attend the StaffSelection Committee meeting without further sanction. 3......................................................... " (9. 1. ) In view ofthe above Government Orders, let us consider the claim ofthe appellant, the 5th respondent as well as the dedsion 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. ~t 304 SUPREME COURT RJ;:PORTS [2007] I0 S. C. R. 13. 07. 1990 and the 5th respondent only from 20. 6.

1991, he is junior to the appellant in the category ofHSA. The particulars furnished clearly ·~show that the appellant possesses the requisite qualification·for being considered for the post ofHSST. G. 0. 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. 0. which make it clear that medium ofinstruction will be English. As rightly pointed out by learned counsel appearing for the appellant, the appellant having s~ured 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. 2. ) 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 Teacherli. It also prescribes that the remaining 75% vacancies eannru:ked for direct recruitment in the Aided Higher Secondary Schools will be done by the Management and the selection ofcandidates for direct recruitment in Aided Higher Secondary Schools will be done by StaffSelection Committee. (10) Government Order dated 27. 6. J990 makes it clear that the selection ofteachers 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 ofthe Management that she is unsuitable for promotion. (11) The expression "subject to seniority ~d 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 ofthe 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 ofthe 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 - -Y 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 Director has mechanically accepted the decision ofthe Selection Committee that tl1e 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 ofthe view that the Director has committed an illegality in upholding the selection ofthe 5th respondent for appointment to the post ofHSST. Further the 5th respondent has been I 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. witl1 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 ofthe prescribed qualification is satisfied, the selection must be made on the basis ofthe seniority and suitability and there is no scope for making comparison of qualifications or comparative assessment ofsuitability. 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 ofthe 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 ofthe 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 oftwo G. Os. dated 27. 06. 1990 and 13. 05. 1998 prescribing qualifications and mode of selection, committed an error in upholding the selection of5th respondent when the appellant being fully qualified as well as senior to 5th respondent asHSA. (14) Under these circtimstances, we allow the appeal and set aside the order dated 22. 6. 2004 passed by the learned single Judge ofthe High Court in W. P. (C) Nos. 21069/2003 and 15674 of2004 as well as the order dated 12. 7. 2004 passed by the Division Bench ofthe High Court in W. A. No. 1265 of2004 confirming the selection ofthe 5th respondent as HSST. As a result ofthe above condusion, we direct the authorities to issue appropriate order in favour ofthe appellant within a period of four weeks from the date ofreceipt ofthis judgment. No order as to costs. B. B. B. Appeal all~~ed.