IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 WA.No. 1335 of 2008 --------------------- AGAINST THE JUDGEMENT IN OP.38612/2002 Dated 12/03/2008 .................... APPELLANT(S): PETITIONER -------------- REENA NARAYANAN NAIR UPPER PRIMARY SCHOOL ASSISTANT W/O. ASOK KUMAR, AGED 35 YEARS, SREE KRISHNA HIGHER SECONDARY SCHOOL, GURUVAYOOR. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): RESPONDENTS --------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, TRIVANDRUM-14 3. THE DEPUTY DIRECTOR OF EDUCATION AYYANTHOLE, THRISSUR DISTRICT 4. THE DISTRICT EDUCATIONAL OFFICER CHAVAKKAD, THRISSUR DISTRICT 5. THE MANAGER SREE KRISHNA HIGHER SECONDARY SCHOOL GURUVAYOOR, THRISSUR DISTRICT 6. SMT. M. DEEPA HIGH SCHOOL ASSISTANT (SOCIAL STUDIES) SREE KRISHNA HIGHER SECONDARY SCHOOL GURUVAYOOR, THRISSUR DISTRICT GOVERNMENT PLEADER FOR R1 TO 4 SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R6 SRI.M.RAJAGOPALAN FOR R6 SRI.B.UNNIKRISHNA KAIMAL FOR R6 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ W.A.No.1335 of 2008 ------------------------------------------------------ Dated: AUGUST 30, 2010 JUDGMENT Basheer, J. The appellant was appointed as an Upper Primary School Assistant in Sree Krishna Higher Secondary School, Guruvayoor, on July 2, 1999. However, her appointment was approved by the Deputy Director of Education only on June 26, 2001, of course, with retrospective effect from July 2, 1999, viz. the date of appointment itself. But in the meanwhile a retirement vacancy of High School Assistant (Social Studies) arose in the school on June 1, 2001. The Manager of the school appointed respondent No.6 against the said vacancy on August 28, 2000. The order of this appointment was approved by the Departmental Officer on August 4, 2001. 2. The appellant staked a claim for the above post of High School Assistant (Social Studies) on the plea that as on the date of arising of that vacancy, she was eligible to have been promoted and appointed, as she had the requisite qualification apart from being a senior incumbent in the post of Upper Primary School Assistant. 3. The above claim made by the appellant was repelled by the Director of Public Instruction (respondent No.2) and the Government. W.A.No.1335 of 2008 2 The orders issued by the above authorities in Exts.P5 and P7 respectively, were challenged by the appellant before the learned Single Judge apart from the order of appointment of respondent No.6 (Ext.P4). The learned Single Judge dismissed the writ petition holding that the view taken by the Government cannot be faulted in the facts and circumstances of the case. 4. The short question that arises for consideration in this appeal is whether the claim raised by the appellant for promotion and appointment to the post of HSA (Social Science) with effect from June 1, 2000 is valid and sustainable. 5. As has been noticed already, appointment of the appellant as UPSA got statutory recognition only on June 26, 2001 with retrospective effect from the date of her appointment viz. July 2, 1999. Therefore there can be no doubt that the appellant can be deemed to have been holding the post of UPSA with effect from July 2, 1999 itself. 6. The fact that a vacancy of HSA (Social Science) arose in the school due to retirement of an incumbent on June 1, 2000 is beyond controversy. It is also the admitted position that respondent No.6 was appointed against that vacancy on August 28, 2000. As on the date of appointment of respondent No.6, the order of appointment of the appellant was awaiting approval before the statutory authority. W.A.No.1335 of 2008 3 According to the appellant the delay in approval of her appointment was not due to any fault on her part and such delay cannot be to her detriment. She has a further case that approval of her appointment was delayed intentionally, in order to give undue advantage and benefit to respondent No.6. She further contended that her claim ought to have been considered in terms of the provisions contained in Rule 43 of Chapter XIV-A of Kerala Education Rules. She also sought the benefit of the Government Order in G.O.(MS)No.177/88/General Education dated December 7, 1988 in this context. According to the appellant the said Government Order enabled a graduate in English like the appellant, to be appointed as HSA(Social Studies). 7. Sri K.R.B.Kaimal, learned senior counsel who appears for respondent No.6 submits that the appellant cannot get the benefit of G.O.(MS)No.177/88/General Education referred to above under any circumstances. A perusal of the above order will show that there is considerable weight in the above submission made by the learned senior counsel. 8. It is on record that the vacancy which arose on June 1, 2000 was a retirement vacancy of HSA (Social Science) and not that of an HSA(English). What is envisaged under the Government Order referred to above is only giving some impetus to teaching of English language in High School classes. It was proposed that a separate W.A.No.1335 of 2008 4 cadre of HSA (English) for improving the standard of English be created exclusively for teaching English language in the High School classes. The proposal was to create such a cadre gradually, and in such a way that while sanctioning additional/new post of HSA (Social Studies), it must be ensured that there is atleast one graduate teacher in English language. The Government Order will further show that if an additional post of HSA (Social Science) is created and if there is no HSA in English language and literature on the rolls, the post will be sanctioned as HSA (English). 9. It is beyond controversy that as on June 1, 2000 there existed a post of HSA (English) in the school. There was an incumbent teacher as HSA (English) as on 1.6.2000, the date on which the vacancy in question arose. More importantly, no additional or new post was sanctioned in the school. The Government in Ext.P7 order had adverted to this aspect and found that the contention raised by the appellant relying on the above Government Order cannot be sustained at all. 10. The learned Single Judge had also dealt with the above aspect while repelling the contention raised by the learned counsel for the appellant. Having carefully perused the above Government Order, we do not find any error in the view taken by the learned Single Judge. 11. In this context it may be pertinent to note that the appellant W.A.No.1335 of 2008 5 had pressed into service Ext.P11 Government Order G.O.(MS) No.141/88/G.Edn. dated September 13, 1988 on the plea that graduation in English language and literature would be a sufficient qualification for appointment to the post of HSA (Social Studies). But this contention was repelled by the learned Single Judge since admittedly the said Order had been amended or modified by the Government by deleting the qualification in English language and literature in the year 2005 itself. Further, it is the admitted position that no amendment to the Kerala Education Rules had been brought into effect pursuant to issuance of the above Government Order. Going by the provisions contained in Chapter XXXI, a degree in English language and literature has not been treated as a requisite qualification for appointment to the post of HSA (Social Studies), though in Ext.P11 the Government had incorporated the above qualification also, as a sufficient qualification. However, learned counsel for the appellant contends that going by the provisions contained in Sub-rule (2) of Rule 8 of Chapter XIV-A of Kerala Education Rules, the statutory authority, while approving the appointment of a teacher, is bound not only by the provisions of the Act and the Rules, but also the orders, if any, issued by the Government or the Director from time to time. 12. We are afraid the above contention is too far fetched W.A.No.1335 of 2008 6 especially on the face of Ext.P11 order itself. In the said order the Government had issued a direction to the Director of Public Instruction to forward to the Government a draft amendment to be incorporated in the Kerala Education Rules in tune with the above Government Order. As has been mentioned earlier, no such amendment was made to the Rules. Therefore, the contention now raised by the learned counsel for the appellant that going by Ext.P11 order of the Government, the qualification possessed by the appellant would have been sufficient to appoint her as HSA cannot be accepted. 13. As we have already noticed, the main contention raised by the appellant was that she was entitled to be promoted and posted as HSA (English) against the vacancy of HSA ( Social Science) that arose on June 1,2000 in the light of G.O.(MS)No.177/88/General Education. However, the said contention was repelled since, admittedly, the Government had not sanctioned any additional or new post of HSA in the school. 14. There is yet another aspect of the matter. It is on record that appellant had been appointed as HSA ( English) with effect from June 1, 2003. 15. Having carefully considered the entire materials available on record, we do not find any reason to interfere with the impugned judgment passed by the learned Single Judge. There is no merit in W.A.No.1335 of 2008 7 any of the contentions raised by the appellant. The appeal fails and it is accordingly dismissed. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-