Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE15H DAY OF JANUARY201525TH POUSHA, 1936 WP(C).No. 10560 of 2010 (T) ---------------------------- PETITIONER : ------------------ G.SOBHA, MUSIC TEACHER, S.N.V. GIRLS HIGH SCHOOL, PARAVUR, KOLLAM DISTRICT. BY ADVS.SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN SRI.T.ISSAC RESPONDENTS : ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION, DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.
3. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM.
4. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM.
5. THE MANAGER, S.N.V.GIRLS HIGH SCHOOL, PARAVUR, KOLLAM DISTRICT.
6. SMT.R.ALAKA, H.S.A. (ENGLISH), S.N.V.GIRLS HIGH SCHOOL, PARAVUR, KOLLAM DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER MR. THOMAS JOHN AMBOOKAN R5 BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN R6 BY SRI.KURIAN GEORGE KANNANTHANAM SENIOR ADVOCATE BY ADV. SRI.TONY GEORGE KANNANTHANAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON1501-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: bp WP(C).No. 10560 of 2010 (T) APPENDIX PETITIONER'S EXHIBITS : P1: COPY OF THE MARK LIST DT299/2004 ISSUED BY ANNAMALAI UNIVERSITY TO THE PETITIONER. P2: COPY OF THE REPRESENTATION DT293/2005 SUBMITTED BY THE PETITIOENR TO THE R5. P3: COPY OF THE MARK LIST DT309/2005 ISSUED BY ANNAMALAI UNIVERSITY TO THE PETITIONER. P4: COPY OF THE PROVISIONAL CERTIFICATE DT309/2005 ISSUED BY ANNAMALAI UNIVERSITY TO THE PETITIONER. P5: COPY OF THE REPRESENTATION NDT1410/2005 SUBMITTED BY THE PETITIONER TO THE HEADMISTRESS OF THE SCHOOL. P5(A): COPY OF THE REPRESENTATION DT1810/2005 SUBMITTED BY THE PETITIONER TO R5. P6: COPY OF THE DEGREE (M.A) CERTIFICATE DT2510/2005 ISSUED BY ANNAMALA UNIVERSITY TO THE PETITIONER. P7: COPY OF THE FIRST AND2D PAGE OF THE PETITIONER'S SERVICE BOOK. P8: COPY OF THE REPRESENTATION DT3110/2005 SUBMITTED BY THE PETITIONER TO THE R4. P9: COPY OF THE ORDER
NO. B5/11718/05 DT317/2006 ISSUED BY THE R4. P10: COPY OF THE APPEAL DT228/2006 FILED BY THE PETITIONER BEFORE THE R3. P11: COPY OF THE ORDER
NO. B6/20026/06 DT2710/2007 ISSUED BY THE R3. P12: COPY OF THE REVISION PETITION DT2811/2007 FILED BY THE PETITIONER BEFORE THE R2. P13: COPY OF THE ORDER
NO.ET(1)59778/06/DPI/K.DIS DT125/2008 ISSUED BY THE R2. P14: COPY OF THE REVISION PETITION DT305/2008 SUBMITTED BY THE PETITIONER BEFORE THE R1. P15: COPY OF THE ORDER
G.O(RT) NO. 650/2010/G.EDN DT102/2010 ISSUED BY THE R1. RESPONDENT'S EXHIBITS : NIL. //TRUE COPY// P.S. TO JUDGE bp A.M.SHAFFIQUE, J * * * * * * * * * * * * W.P.C.No.10560 of 2010 ---------------------------------------- Dated this the 15th day of January 2015
JUDGMENT
Petitioner, who was appointed as a Music teacher in the school managed by the 5th respondent, has filed this writ petition challenging Exts.P9, P11, P13 and P15 by which the educational authorities had approved the appointment of the 6th respondent as H.S.A (English) with effect from 17/10/2005.
2. The facts involved in the writ petition would disclose that the petitioner acquired B.Ed Degree during March 2003 and thereafter she obtained Degree in M.A.English as on 30/09/2005. While the petitioner was undertaking the M.A course, a vacancy had arisen in the School to the post of H.S.A (English) as on 01/04/2004. Apparently, the petitioner was not qualified for the said post during the relevant time. In the meantime, management appointed the 6th respondent as H.S.A (English) by way of W.P.C.No.10560/2010 2 direct recruitment with effect from 17/10/2005. Petitioner staked a claim with reference to the aforesaid appointment of the 6th respondent inter alia contending that the petitioner had acquired the necessary qualification as on 30/09/2005.
3. The educational authorities took the view that as on the date of occurrence of the vacancy, petitioner was not qualified and therefore a claim under Rule 43 does not arise. This view was consistently upheld by the higher authorities which is now challenged by the petitioner.
4. It is inter alia contended by the 5th respondent that the petitioner cannot stake a claim based on Rule 43. That apart, the fact that she had acquired qualification, was brought to the notice of the management only on 18/10/2005. 6th respondent contends that she was appointed in the school with effect from 17/10/2005 and by virtue of Rule 43 Note 2 thereof, petitioner, admittedly, was not qualified at the time of occurrence of vacancy and cannot stake a claim at all. W.P.C.No.10560/2010 3 5. Heard Learned counsel for the petitioner, learned counsel appearing for respondents 5 and 6 and the learned Government Pleader. Rule 43 along with Note 2 reads as under:
"3. Subject to rules 44, 45 and 51A and considerations of efficiency and any general order that may be issued by the Government,vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available: Provided that in the case of promotion to the post of High School Assistant (Subject), the minimum subject requirements alone need be satisfied, to safeguard the interests of trained graduates who are awaiting promotions as High School Assistants. Provided further that where a Headmaster or a teacher who has been promoted under this rule faces retrenchment for want of vacancy, he shall be reverted to the category of post from which he has been promoted provided he is not eligible for protection in the retrenched post as per the orders issued by the Government from time to W.P.C.No.10560/2010 4 time. Note:- (1) xxxx Note:- (2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy." 6. It is not in dispute that the petitioner was not qualified as on 01/04/2004, the date on which the vacancy had arisen. Petitioner in the writ petition submits that the vacancy had arisen on 01/06/2004, and even on that date admittedly she was not qualified.
7. The 6th respondent was appointed by a selection process which was initiated much before the petitioner acquired the qualification of H.S.A (English). According to the Management, they waited till 17/10/2005 after completing the selection procedure since they were waiting for the staff fixation order to be issued by the educational authorities. It is apparent from the facts involved in the matter that the selection process was conducted much prior to the petitioner acquiring the qualification. Therefore, W.P.C.No.10560/2010 5 going by Note 2 of Rule 43 as well as other factual circumstances, petitioner was not a person who was qualified to be appointed either at the time when the vacancy had arisen or at the time when the selection process has been done. Under such circumstances, petitioner cannot challenge the order impugned. There being no merit in the writ petition, the same is dismissed. (sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.10560/2010 6 W.P.C.No.10560/2010 7