IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 WP(C).No. 29877 of 2007(F) ---------------------------------------- PETITIONER(S): ----------------------- M.RANI MATHEW, AGED 40 YEARS, W/O.JOSE CHRISTOPHER XAVIER, UPPER PRIMARY SCHOOL ASSISTANT ST.RAPHAEL'S HIGH SCHOOL, EZHUPUNNA, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA, ALAPPUZHA DISTRICT. 3. THE MANAGER, ST.RAPHAEL'S HIGH SCHOOL, EZHUPUNNA, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 4. SR.LISSAMMA JOB, PART-TIME LANGUAGE TEACHER (HINDI), (NOW PROMOTED AS HIGH SCHOOL ASSISTANT (HINDI), ST.RAPHAEL'S HIGH SCHOOL, EZHUPUNNA, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 5. SMT.M.V.SREEKALA, HIGH SCHOOL ASSISTANT (HINDI), ST.RAPHAEL'S HIGH SCHOOL, EZHUPUNNA, CHERTHALA TALUK, ALAPPUZHA DISTRICT. R1 R2 BY GOVT. PLEADER SRI.T.T.MUHAMOOD R 3 & R4 BY ADV. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) R4 BY SRI.LUIZ GODWIN D'COUTH R5 BY ADV. SRI.K.P.CHANDRASEKHAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/02/2011, ALONG WITH WPC NO. 18136 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.29877/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PETITION FILED BEFORE THE MANAGER OF THE SCHOOL BY THE PETITIONER DTD. 30.5.2005. P2:- COPY OF THE ORDER NO.B1.77/2006 OF THE DIST. EDL. OFFICER, CHERTHALA DTD. 13.2.2006. P3:- COPY OF THE G.O.(RT) NO.2038/2003/G.EDN. OF THE GOVERNMENT DTD. 3.6.2003. P4:- COPY OF THE G.O.(RT) NO.5832/05/G1. EDN. OF THE GOVERNMENT DTD. 16.12.2005. P5:- COPY OF THE DECISION REPORTED IN 1972 K.L.J. 761 DTD. 20.7.1972. P6:- COPY OF THE DECISION REPORTED IN 1993 (1) K.L.T. 893 DTD. 17.3.1993. P7:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP.(C) 18966/2006 DTD. 19.7.2006. P8:- COPY OF THE NOTICE NO.31398/E1/06/G.EDN. OF THE GOVERNMENT DTD. 27.10.2006. P9:- COPY OF THE HEARING NOTES SUBMITTED BY THE PETITIONER DTD. 13.11.2006. P10:- COPY OF THE G.O.(RT) NO.3874/07/G.EDN. OF THE GOVERNMENT DTD. 20.8.07. P11:- COPY OF THE DECISION REPORTED IN 1999 (3) K.L.T. 275 DTD. 14.7.1999. P12:- COPY OF THE DECISION REPORTED IN 2006 (3) K.L.T. (SHORT NOTES) CASE NO.95 PAGED NO.69 12 7.2006. P13:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. NO.719/2002 DTD. 18.12.2006. P14:- COPY OF THE ORDER NO.O&M5/23815/08/DPI/K.DIS. OF THE DIRECTOR DTD. 10.4.2008. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.29877/2007-F & 18136 /2010-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of February, 2011. JUDGMENT In W.P.(C) No.29877/2007 the petitioner challenges the promotion of respondents 4 and 5 as H.S.A. (Hindi). The fourth respondent is the petitioner in W.P.(C) No.18136/2010. 2. The petitioner in W.P.(C) No.29877/2007 is now working as a U.P.S.A. who was appointed from 5.6.1995. She is having the qualification B.A. and B.Ed. in Hindi. A retirement vacancy arose in the post of H.S.A. (Hindi) on 1.6.2005. According to the petitioner, she alone is fully qualified under Rule 43-B of Chapter XIV-A K.E.R. 3. As per Rule 43-B(1), the fourth category in the order of preference is Regular Primary Teachers having the prescribed qualifications. It is the contention of the petitioner that respondents 4 and 5 are part time Lower Grade Language teachers and they are not covered by any preferential clauses in Rule 43B(1) of the K.E.R. The fourth respondent in W.P.(C) No.29877/2007 who is the petitioner in W.P.(C) No.18136/2010, is working as a part time Hindi Teacher from 5.6.2002. wpc 29877/2007 & 18136/2010 2 According to the petitioner, she is junior to the petitioner also. Even though application was filed before the Manager, the same was not considered favourably . By Ext.P2 the District Educational Officer rejected the claim of the petitioner. The view taken is that the fourth respondent comes within the third category above that of the petitioner. Appeals and revisions were filed and finally the Government by Ext.P10 order, repelled the contentions of the petitioner and found that the fourth respondent is the rightful claimant in terms of the preference provided under Rule 43B(1) of Chapter XIV-A K.E.R. 4. Shri Hamza, learned counsel for the petitioner mainly raised two arguments. It is pointed out that part time language teachers are not covered by any part of Rule 43B(1). It is also pointed out that going by Rule 43, the appointment has to be done in terms of seniority and the petitioner being senior, the same test will have to be applied for the purpose of appointment, as H.S.A. 5. Per contra, learned Govt. Pleader, Shri T.T. Muhamood and learned counsel appearing for the fourth respondent Shri P. Santhosh Kumar submitted that part time language teachers will be covered by item (iii) in the order of preference and therefore the fourth respondent is entitled to wpc 29877/2007 & 18136/2010 3 have appointment as H.S.A. 6. Rule 43B(1) shows the order of preference as follows: “(i) Lower Grade Language Teachers who have the prescribed qualifications in that Language for promotion to the post of High School Assistants in their language at the time of occurrence of vacancy and who had given option in writing as per G.O.(Ms) NO.612/64/Edn. dated 10.11.1964 to continue as Lower Grade Language Teachers. (ii) Part time High School Assistant in that Language (iii) Other Lower Grade language Teachers in that Language. (iv) Regular Primary Teachers having the prescribed qualifications. (v) Craft and Specialist Teachers having the prescribed qualifications. (vi) If no teacher with the prescribed qualifications is available in the categories mentioned above, Lower Grade Language Teachers in any other Language having the prescribed qualifications. Note:- Promotion under this sub-rule shall be made according to seniority from persons possessing the prescribed qualifications at the time of occurrence of vacancy.” Item (i) refers to Lower Grade Language Teachers, that means, full time language teachers also; item (ii) refers to part time H.S.A.; item (iii) refers to other lower grade language teachers. Herein, learned counsel for the wpc 29877/2007 & 18136/2010 4 petitioner submits that, the same can only be full time language teachers. But the words “full time” or “part time” are not specifically stated in item (iii), but the words “lower grade language teacher” is qualified by the word “other”. Therefore, the remaining categories of lower grade language teachers, whether they are full time or part time, will be covered by item (iii). Apart from that, item (i) will cover full time teachers. Therefore, definitely this is a case where part time lower grade language teachers will be covered by item (iii) and the petitioner's claim comes only in the fourth category, viz. regular primary teachers having the prescribed qualifications. 7. Even though learned counsel for the petitioner wanted me to read into item (iii), the words “full time”, this Court will not be justified in supplying words into a particular provision. Apart from that, there is no other provision under the said Chapter or any other part of the statute prohibiting the promotion of a part time language teacher as H.S.A. If that be so, it is not a case of any omission of the words “full time” in item(iii) of Rule 43B(1) of the Rules. Therefore, the orders passed by the authorities are perfectly legal and valid and the petitioner cannot get a march over the fourth respondent. In that view of the matter, the challenge raised in W.P.(C) wpc 29877/2007 & 18136/2010 5 No.29877/2007 fails. 8. In W.P.(C) No.18136/2010, the petitioner seeks for a direction to the fourth respondent to implement the directions in Exts.P1 and P2 orders. Appropriate action will be taken in the matter to see that the approval is granted within a period of two months from the date of receipt of a copy of this judgment and consequential monetary benefits also will be disbursed. W.P.(C) No.29877/2007 is dismissed and W.P.(C) No.18136/2010 is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/