IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1214 of 2008()
1. DR.NICEMOL SEBASTIAN, HSST (SENIOR)
... Petitioner
Vs
1. THE KERALA PUBLIC SERVICE COMMISSION,
... Respondent
2. THE STATE OF KERALA, REPRESENTED
For Petitioner :SRI.P.C.SASIDHARAN
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :09/06/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.1214 of 2008-T
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Dated this the 9th day of June, 2009.
JUDGMENT
The petitioner is aggrieved by the communication Ext.P7 issued by
the Public Service Commission by which her application for appointment to
the post of Lecturer in Educational Psychology stands rejected.
2. Ext.P1 is the notification published by the Public Service
Commission inviting application for appointment in the above post. The
appointment is by recruitment by transfer from among Headmasters and
High School Assistants in the Kerala General Education Subordinate
Service and Teachers of Government Higher Secondary Schools having the
qualifications and experience prescribed for the post.
3. The qualification prescribed as per the notification is the
following:
“(1)Master’s Degree in the concerned subject or discipline with
atleast 55% (fifty five) marks or its equivalent and good academic
records;
(2) M.Ed. Degree with knowledge of special methods of teaching the
subject;
(3) Three years teaching experience in schools or colleges after
wpc 1214/2008 2
acquiring the professional qualification.
(4) Must have passed a comprehensive test specifically conducted for
the purpose by U.G.C. or any agency duly constituted by the State
Government in this behalf. When qualifications are equal,
preference shall be given to candidates who possess adequate
knowledge in Malayalam.”
There is a Note to the said para which is to the following effect:
“For recruitment to various posts of Lecturers, Degrees awarded by
the Universities recognised by the U.G.C. alone shall be
considered.”
The petitioner is having the following qualifications: M.Sc. Degree in
Mathematics, M.A. Degree in Applied Psychology and M.Ed. She was
awarded the Doctoral Degree in Education in the year 2006 and has also
acquired National Eligibility Test.
4. The petitioner was appointed as H.S.A. (Maths) on the advice of
the Public Service Commission in the year 1990. Her probation in that
cadre was declared on 18.9.1992. While holding the said post, she was
appointed as H.S.S.T. in Maths on 24.10.2002 and was subsequently
promoted as H.S.S.T. (Senior) on 15.7.2003. She has completed the period
of probation in the cadre of both HSST (Junior) and HSST (Senior) but no
formal orders have been passed declaring her probation.
wpc 1214/2008 3
5. In Ext.P7, three reasons have been pointed out, viz. that after
acquiring the qualification in M.A. Psychology, three years experience has
not been acquired, probation has not been declared in the post of HSST and
that the M.A. Psychology Degree is one obtained by Distance Education
and no equivalency certificate issued by any of the Universities in Kerala,
has been produced.
6. Learned counsel for the petitioner submitted that all these three
reasons are not sustainable. The experience required is after acquisition of
M.Ed. qualification which is the professional degree, whereas the post
graduate qualification in M.A. Psychology is the academic degree.
Therefore, the first reason is not correct. The probation of the petitioner as
H.S.A. has already been declared and therefore the objection that in the
HSST post it is not declared, cannot be a reason to reject the application. It
is pointed out that going by the notification and the Note to clause 6
therein, Degrees awarded by Universities recognised by the U.G.C. alone
will be considered. Annamalai University is one of the Universities
recognised by the U.G.C. and therefore equivalency certificate is not
required. In support of the said argument, learned counsel for the petitioner
has also produced Ext.P10 published by the Public Service Commission
showing the names of recognised Universities and Annamalai University
wpc 1214/2008 4
finds a place there. Ext.P11 is the reply given by the Joint Secretary to the
University Grants Commission stating that Annamalai University, Tamil
Nadu has been established by an act of State Legislature and empowered to
award degrees as specified under Section 22 of the U.G.C. Act, 1956.
Ext.P12 is the reply given by the Additional Director and Public
Information Officer of the Directorate of Collegiate Education, which will
show that the professional qualification required is M.Ed.
7. In the counter affidavit filed by the Public Service Commission,
the rejection of the application is supported.
8. Learned counsel for the petitioner submitted that the method of
acquiring qualification by Distance Education is a well accepted method
and there is no stipulation in the notification that such a qualification should
be one recognised by any of the Universities in Kerala and in the absence of
the same, going by the decisions of Division Benches of this Court in
Mujeeb Rahman v. State of Kerala (2005 (1) KLT 680 and Public
Service Commission v. Abdul Rasheed (2007 (3) KLT 881), the
Commission cannot insist that there should have been recognition by the
Universities in Kerala.
9. In Mujeeb Rahman’s case (2005 (1) KLT 680), this court held
wpc 1214/2008 5
that the relevant rules make no distinction between M.A. Degree obtained
through regular course of study and through distant education. The
qualifications provided in the rule considered in the said case only provided
that M.A. Degree recognised as equivalent by any of the Universities in the
State of Kerala, will be the required one. In that view of the matter, the
Bench was of the view that the application of the petitioners shall not be
rejected for the reason that they have obtained Master’s Degree through
correspondence course provided those degrees have also been recognised
by any of the Universities in the State of Kerala. In the subsequent decision
in Public Service Commission’s case (2007 (1) KLT 881), it was held that
the Public Service Commission cannot weed out candidates who had not
undergone course in 10 + 2+ 3 pattern or not obtained degree through
regular course of study. There, the basic qualification provided is a Degree
in Arabic and B.Ed./B.T./L.T. conferred or recognised by the Universities
in Kerala. Herein, going by the qualification that is prescribed, the
requirement is that it should be a Degree awarded by the Universities
recognised by the U.G.C. alone. In that view of the matter, the objection
raised in Ext.P7 that equivalency certificate issued by any of the
Universities in Kerala should be produced, cannot be sustained.
10. Learned counsel for the petitioner is right in submitting that the
wpc 1214/2008 6
experience required is after acquiring M.Ed. qualification. M.A.
Psychology is an academic degree and it is not a professional degree.
Professional degree for teaching is M.Ed. She has got the required
experience after acquisition of M.Ed. qualification which is evident from
the pleadings also. The argument of the learned counsel for the petitioner
is supported by Ext.P12 reply by the Public Information Officer of the
Directorate of Collegiate Education. Therefore, the said reason pointed out
in Ext.P7 also cannot be sustained.
11. Then the other question is whether in the absence of declaration
of probation as HSST, the application could be accepted. Ext.P5 is the
copy of the Service Certificate submitted by the petitioner along with the
application. It shows that she is working as HSST, but her probation has
not been declared. Even though the learned counsel for the petitioner
submitted that the petitioner should be treated as a person seeking
appointment by transfer from H.S.A. post, since her application is evidently
submitted while working as HSST and as she has not raised a separate claim
to treat her as H.S.A. either in Ext.P5 or in Ext.P9 submitted by her, the
said argument cannot be accepted. Ext.P9 is the detailed representation
submitted by her after rejection of the application. Even though she has
objected to the rejection of the application on the ground that her probation
wpc 1214/2008 7
has not been declared, the stand taken in Ext.P9 is that she has only
completed the period of probation and the delay in the matter cannot be
taken against her. It is therefore prayed in Ext.P9 that she may be treated as
a regular teacher in Government service. Therefore, it is not a case where
she is seeking to treat her as H.S.A., but she has maintained the stand that
she has already completed the period of probation as HSST and the non
declaration of probation is not due to any fault on her part.
12. Learned counsel for the Public Service Commission relied upon
Rule 2(13) of KS & SSR defining ‘recruitment by transfer’, in support of
his argument. Going by the proviso to the said rule, “wherein the Special
Rules for a service provide for recruitment by transfer to any class or
category thereof from any specified class or category of another service, a
candidate shall, unless the recruitment is made from a post carrying an
identical scale of pay, be a full member or an approved probationer of the
class or category so specified.”
13. Going by the recent decision of a Division Bench of this court in
Manju Varghese v. State of Kerala (2009 (1) KLT 722), only a full
member or an approved probationer is eligible to be considered for
appointment by transfer. In that view of the matter also, the petitioner
whose probation has not been declared, will not be eligible.
wpc 1214/2008 8
14. Evidently, the petitioner has sought for an appointment by
transfer from the post of HSST only. Admittedly, the period of probation
has not been declared. In that view of the matter, the rejection of the
application for the said reason cannot be said to be unsustainable.
15. Apart from the same, it is submitted by the learned counsel for
the Commission that the selection pursuant to Ext.P1 notification was not
completed and fresh notification has been issued in the Gazette dated
29.1.2009, a copy of which was made available for perusal. Four vacancies
have been notified in Educational Psychology.
In the light of the said development also, the petitioner is not entitled
for a direction to accept her candidature for filling of the post notified as per
Ext.P1. The writ petition fails and it is accordingly dismissed.
(T.R. Ramachandran Nair, Judge.)
kav/