GIGI ZACHARIAS Vs. STATE OF KERALA

JUDGEMENT

(1.) The question involved in all these cases is the same and hence we are disposing of all these cases by a common judgment. O.P. 7209/02 is treated as the leading case in which counter affidavit has been filed by the respondents 1 to 3.

(2.) Original Petition was preferred by three High School Assistants who are working in aided schools in the State of Kerala. They are aggrieved by the introduction of the State Eligibility Test (SET) as an essential qualification for appointment to the post of Higher Secondary School Teacher in various aided schools by the Kerala Educational Amendment Rules, 2001. Alternatively they also sought for a declaration that they are entitled to be considered for appointment by transfer / promotion as Higher Secondary School Teachers on the basis of their educational qualification in respect of the vacancies which arose prior to 9.11.2001, the date on which the rules came into force. They also sought for a declaration that the special qualification of passing SET cannot be enforced in respect of appointment by transfer / promotion to vacancies of Higher Secondary School Teachers (HSSTs) in aided Schools which arose prior to coming into force of statutory rules. Various other incidental reliefs were also sought for. A detailed counter affidavit has been filed on behalf of respondents 1 to 3 justifying the introduction of the rules and the action taken on the basis of the direction of the Supreme Court in M.M. Dolichan and Others v. State of Kerala and Others, 2001 (1) SCC 151 . Before we deal with the validity or otherwise of the Rules we may refer certain facts which led to the introduction of the Kerala Educational (Amendment) Rules, 2001.

(3.) The Higher Secondary System of Education, popularly known as Plus - two Course was introduced in the State during 1990-91 as part of the National Education Policy to replace the Pre degree Course in a phased manner. In the beginning, during the academic year 1990-91 only 31 Government High Schools were sanctioned with Higher Secondary Courses and complete delinking of the Pre degree System was achieved during 2000-2001 with sanctioning of Higher Secondary Courses in 932 Government and Aided High Schools, thus creating Higher Secondary seats commensurate with pre - existing Pre degree seats available in the State. Delinking of Pre degree Course from the College was on the basis of the Pre degree Course (Abolition) Act, 1997. The qualification which was originally prescribed when the Higher Secondary Scheme was introduced as per G.O. (MS) No.138/90 / G.Edn. dated 27.6.1990 for the post of HSSTs was a second class masters degree in the concerned subject with B.Ed. and the selection was subject to seniority and suitability. If sufficient qualified hands were not available direct recruitment could be resorted to. Government vide G.O. (MS) No. 162/98 / G.Edn. dated 13.5.1998 ordered apportionment of specified quota for direct recruitment by transfer from among qualified lower level teachers in the matter of appointment to the post of HSSTs. It was ordered that 75% of the vacancies of HSSTs both in the Government and aided Higher Secondary Schools would be earmarked for direct recruitment whereas the remaining 25% would be set apart for appointment by transfer from among qualified lower level teachers. Subsequently vide G.O. (MS) No. 268/99 / G.Edn. dated 3.11.1999 Government had decided to conduct a State Eligibility Test for selection and appointment of HSSTs. Government later constituted an expert committee for recommending the desirability of conducting such a test. Expert committee submitted their report and on the basis of the report Government issued G.O.(MS) No. 289/99 / G.Edn. dated 25.11.1999 prescribing SET as a necessary qualification for appointment as HSST. It was also ordered that those HSSTs whose appointments were already approved or whose approvals are awaited would be exempted from passing SET provided they were appointed prior to the date of the Government Order. Later Government issued G.O. (MS) No. 3441/99 / G.Edn. dated 30.12.1999 and ordered that in modification to the earlier orders to the effect that SET would be essential qualification for all the appointment of HSSTs made after 1995-96. It was also clarified that those who were appointed prior to the academic year 1995-96 would be exempted from acquiring the SET qualification.