IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 WP(C).No. 31541 of 2004(E) -------------------------- PETITIONER(S): --------------- EVILIN LOUIS, HIGH SCHOOL ASSISTANT (SOCIAL STUDIES), ST.JOSEPH'S HIGH SCHOOL, MATHILAKAM, THRISSUR DISTRICT. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.M.K.PRADEEPKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR (EDUCATION), THRISSUR. 4. DISTRICT EDUCATIONAL OFFICER, IRINJALAKKUDA. 5. MANAGER, ST.JOSEPH'S HIGH SCHOOL, MATHILAKAM, THRISSUR DISTRICT. 6. GRACIA PAUL, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), ST.JOSEPH'S HIGH SCHOOL, MATHILAKAM, THRISSUR DISTRICT. 7. N.L.SALINA, HIGH SCHOOL ASSISTANT (NATURAL SCIENCE), ST.JOSEPH'S HIGH SCHOOL, MATHILAKAM, THRISSUR DISTRICT. ADV. SRI.V.A.MUHAMMED FOR R5 SRI.K.E.HAMZA FOR R.5 GOVERNMENT PLEADER SRI. P. NANDAKUMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 31541/2004. ------------------------------------------------------------------ EXT.P1 TRUE COPY OF GOVT. ORDER DT. 14.4.1988. EXT.P2 ORDER DT. 22.10.1988. EXT.P3 ORDER DT. 23.12.1988. EXT.P4 GOVT. ORDER DT. 14.2.1990. EXT.P5 JUDGMENT IN O.P.2367/90 DT. 21.11.1995. EXT.P6 GOVT. LETTER DT. 16.11.1990. EXT.P7 GOVT. ORDER DT. 6.6.1987. EXT.P8 CIRCULAR DT. 31.7.1974. EXT.P9 GOVT. LETTER DT. 25.6.1981. EXT.P10 REPRESENTATION DT. 26.12.2001. EXT.P11 JUDGMENT IN O.P. 1620/91 DT. 11.12.2002. EXT.P12 HEARING NOTE DT. 9.3.2004. EXT.P13 GOVT. ORDER DT. 25.8.2004. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R5(a) ORDER IN CIVIL APPEAL NO.1257/1990 OF THE SUPREME COURT. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 31541 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 16th day of November, 2010. J U D G M E N T The petitioner is now working as a HSA (Social Studies) in the 5th respondent school, which is an aided school. She is aggrieved by Ext. P13 order rejecting her request for promotion as HSA (SS) with effect from 10.6.1981. She also seeks payment of salary for the period from 1.7.1986 to 14.7.1990 during which she actually worked as HSA (SS) . The issue arises in the following factual situation: There arose a vacancy of a High School Assistant in the school on 1.6.1981 on account of a Physical Science Teacher having been promoted as Headmaster. According to the petitioner, the petitioner was entitled to be promoted to that post under Rules 43 and 51A of Chapter XIV-A of KER. But the petitioner was not given that promotion. Subsequently, that person who was promoted as Headmaster took long leave and another HSA (SS) was promoted to the post of Headmaster for the period from 1.7.1988 to 14.7.1990. The teacher who was on long leave returned and a litigation arose as to who is eligible to hold the post. Ultimately, the Supreme Court held that the Physical Science Teacher is entitled to hold the post of headmaster. Consequently, the Social Studies Teacher was reverted. But, the excess salary and allowance paid to the Social Studies teacher for the period from 1.7.1988 to 14.7.1990 was not recovered from him. Consequent to his reversion as Social Studies Teacher, the petitioner had also to be reverted. But, the petitioner was not given the very same treatment like the person who replaced the petitioner on reversion in the matter of payment of salary for the period she worked. In the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i. Issue a writ of certiorari or any other appropriate writ, order W.P.C. No. 31541/2004 -: 2 :- or direction calling for the records leading to Ext. P13 and quash the same. ii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 5 to give the petitioner promotion as H.S.A (Social Studies) with effect from 10.6.1981 and give her all consequential service benefits or in the alternative promote her as H.S.A (Social Studies) at least with effect from 31.10.1986 and give her all consequential service benefits within a time limit to be fixed by this Hon'ble Court. iii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 5 to pay the petitioner the salary and allowances of the post of H.S.A for the period from 1.7.1988 to 14.7.1990 during which she actually worked as H.S.A (Social Studies) within a time limit to be fixed by this Hon'ble Court.” 2. I have heard all parties. 3. As far as the claim for promotion to the petitioner in the vacancy which arose on 10.6.1981 is concerned, admittedly, that vacancy arose as a result of a Physical Science Teacher having been promoted as Headmaster. The question as to what is the law to be applied in such cases has been finally settled by the Supreme Court in Deepa Augustine v. Geetha Alex, 2008(2) KLT 771 (SC). In paragraph 4 of that decision, the Supreme Court has held thus: “However, now the situation has changed. We have been informed that N.K. Thressiamma has since been superannuated and the appellant is still working as a Physical Science Teacher. Therefore, no useful purpose will be served by examining the effect of Full Bench judgment. However, the Full Bench has already observed that the Government should re-examine the matter in the light of the decision given by the Full Bench. However, we may observe that whenever the question of promotion arises, the first question which is tobe examined is the subject requirement of that vacancy and the person should be appointed who has the minimum qualification for teaching that subject. To illustrate the point: in case a vacancy arises for a subject of Physical Science against that person who possess minimum qualification for teaching the Physical Science should be recruited and not a person who belongs to Social Studies. This will be doing a great harm to the interest of W.P.C. No. 31541/2004 -: 3 :- the students. The paramount consideration should be the interest of the students that the person who is being appointed to teach subject should possess minimum qualification of that subject.” (Emphasis supplied) The ratio of that decision squarely applies to the facts before us. Admittedly, the petitioner has qualifications to teach only Social Studies. The vacancy arose as a result of a Physical Science teacher having been promoted. Therefore, going by the above decision, the petitioner is not entitled to be promoted to that vacancy of a Physical Science teacher. 4. But, it is a different question when it comes to the question of payment of salary as applicable to High School Assistant (SS) for the period from 1.7.1988 to 14.7.1990, when the petitioner occupied that post on account of the incumbent having been promoted as Headmaster. That promotion was cancelled only on account of a decision by the Supreme Court. Admittedly, the excess salary paid to him as Headmaster was not recovered from him. That being so, there is no logic in denying salary due to the petitioner as a HSA for the period the petitioner worked in that post. Admittedly, the school has derived benefit from the petitioner's teaching in that vacant post. If the petitioner was not promoted to that post, another teacher should have been paid the salary of HSA. As such, the Government does not lose any money if the petitioner is paid salary for the period she worked insofar as nobody else has to be paid salary in that post for the said period. In the above circumstances, there is no justice in denying salary to the petitioner in the post of HSA for the period from 1.7.1988 to 14.7.1990. Accordingly, to that extent, Ext. P 13 is quashed and the writ petition is disposed of with a direction to the 4th respondent to take W.P.C. No. 31541/2004 -: 4 :- steps to disburse salary due to the petitioner in the post of HSA for the period from 1.7.1988 to 4.7.1990. The respondents shall see that the petitioner gets the same within one month from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/