IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 27985 of 2008(F) ------------------------------------ PETITIONER(S): ------------------------- K.LEELAMMA, HEADMISTRESS, KUTTIKADU UPPER PRIMARY SCHOOL, KUTTIKADU P.O., KADAKKAL, KOLLAM DISTRICT. BY ADVS. MR.LEGY ABRAHAM MR.C.N.SIVANKUTTY RESPONDENT(S): ---------------------------- 1. SHRI.D.JOHNKUTTY, U.P.S.A. KUTTIKADU UPPER PRIMARY SCHOOL, KUTTIKADU P.O., KADAKKAL,KOLLAM DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (L) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695001. 3. THE DIRECTOR PUBLIC INSTRUCTION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 4. THE DISTRICT EDUCATIONAL OFFICER, PUNNALUR 5. THE ASSISTANT EDUCATIONAL OFFICER, CHADYAMANGALAM. 6. THE MANAGER, KUTTIKADU UPPER PRIMARY SCHOOL, KUTTIKADU P.O., KADAKKAL, KOLLAM DISTRICT. ADV. MR.M.V.THAMBAN FOR R1 BY GOVERNMENT PLEADER MR.T.T.MUHAMOOD FOR R2-5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2009, ALONG WITH WPC NO. 5136 OF 2009 THE COURT ON 03/07/2009 THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 27985/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT NO.K.DIS.F4/72450/2005/DPI DT. 31.3.06. P2:- COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT NO.B-1694/06/D.DIS. DT. 24.5.06. P3:- COPY OF THE ORDER G.O.(RT0 NO.3817/08/G.EDN. DT. 22.8.08 OF THE 2ND RESPONDENT. P4:- COPY OF THE ORDER OF THE GOVERNMENT G.O.(MS)/92/88/G.EDN. DT. 2.5.88. P5:- COPY OF THE LETTER NO.1824/05 DT. 3.6.05 OF THE A.E.O. CHADAYAMANGALAM TO THE DY. SECRETARY, K.P.S.C. P6:- COPY OF THE CERTIFICTE NO.8506/05 DT. 4.6.05 ISSUED BY K.P.S.C. P7:- COPY OF THE ORDER CERTIFICATE NO.8507/05 DT. 4.6.05 ISSUED BY K.P.S.C. P8:- COPY OF THE REVISION FILED BY THE PETITIONER BEFORE THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DT. 2.5.06. P9:- COPY OF THE REVISION FILED BY THE PETITIONER BEFORE THE MINISTER FOR EDUCATION DT. 16.8.0.6. P10:- COPY OF THE SHASTRI DEGREE CERTIFICATE ISSUED BY RASTRIA SANSKRIT SANSTHAN DT. 28.7.83. P11:- COPY OF THE SHIKSHA SHASTRI DEGREE CERTIFICATE ISSUED BY THE RASTRIA SANSKRIT SANSTHAN DT. 21.7.87. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.27985/08-F & 5136/2009-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of July, 2009. JUDGMENT The rival claimants for promotion to the post of Headmaster in an Upper Primary school are the petitioners in these writ petitions. The petitioner in Writ Petition No.27985/2008 is aggrieved by Ext.P3 order by which the Government rejected her revision petition and further directed the Director of Public Instruction to take necessary steps to promote the first respondent as Headmaster with effect from 1.4.2005. The first respondent is the petitioner in Writ Petition No.5136/2009, who has filed the said writ petition mainly seeking to implement the order passed by the Government. The status of parties is given here as they are arrayed in Writ Petition No.27985/2008. 2. The vacancy arose on 1.4.2005 consequent on the retirement of one Smt. B. Lalithamma on 31.3.2005. The first respondent was promoted and posted as Headmaster with effect from 1.4.2005 by virtue of the acquisition of test qualification earlier than the petitioner, even though the petitioner is senior to him. The same was approved by the 5th respondent, WPC 27985/08 & 5136/09 2 Asst. Educational Officer. In a complaint filed by the petitioner, the Director of Public Instruction instructed the Manager to consider the promotion of the petitioner and accordingly she was promoted as Headmistress with effect from 24.4.2006 as per Ext.P1 order. Ext.P2 is the order passed by the Asst. Educational Officer approving the said appointment in terms of the direction issued by the Director of Public Instruction. This was challenged in revision petition before the second respondent by the first respondent, which resulted in Ext.P3 order. 3. In Ext.P3, the Government found that the first respondent is fully qualified as he is a graduate with B.Ed. and he acquired test qualification before 1.4.2005. The reason stated by the Director of Public Instruction that he had not completed 15 years of service as on the date of promotion, was not accepted by the Government, after finding that there is no insistence in Rules 45 and 45B(i) of Chapter XIV-A K.E.R. for 15 years service for promotion. Regarding the qualification of the petitioner, viz. Sasthri and Siksha Sasthri degree obtained by her, it was held that the said degree obtained by her in 1983 and 1987 has not the status of a degree as the said University was declared as deemed University only in the year 2002. WPC 27985/08 & 5136/09 3 4. Heard learned counsel for the petitioner, learned counsel appearing for the first respondent and the learned Govt. Pleader. 5. Learned counsel for the petitioner submitted that the Government found against the petitioner only for want of a degree, which is incorrect in the light of Ext.P4 Government Order dated 2.5.1988, whereby the Government ordered that Siksha Sasthri Degree holders will be eligible for appointment as LPSA and UPSA in aided school and therefore the petitioner satisfies the said condition. 6. Learned counsel appearing for the first respondent pointed out that Ext.P4 will not be of any help to the petitioner, since the Government has recognised the eligibility of holders of Siksha Sasthri Degree only for appointment as LPSA and UPSA and not as Headmaster. It is further pointed out that herein, the date of occurrence of vacancy is 1.4.2005 and as on that date the petitioner had not acquired the test qualification provided under Rule 45B of Chapter XIV-A K.E.R. It is pointed out that the result of the test was published only on 5.4.2005 even though she had appeared for the test earlier. She is also not having a Degree or B.Ed. Degree. 7. The first respondent has also filed a counter affidavit. The first question is whether the petitioner satisfies the academic qualification. The WPC 27985/08 & 5136/09 4 Siksha Sasthri Degrees awarded enables the holders to be eligible for appointment as LPSA and UPSA only, going by Ext.P4. There is no stipulation therein that such degree holders are eligible to be promoted as Headmasters or that the said Degrees could be treated as equivalent qualification for the post of Headmistress. Apart from that, the Government found that she had acquired the qualification in the year 1983 and 1987 and as on that date Rashtriya Sanskrit Sanathan was not declared as a deemed University, whereas the declaration came only in 2002. In the light of the view taken above also, Ext.P3 cannot be faulted. 8. The further question is whether the petitioner had acquired the test qualification required under Rule 45B of Chapter XIV-A K.E.R. In ground B of the writ petition even though the petitioner had averred that she is having the test qualification, no details have been furnished. After the filing of the counter affidavit by the first respondent disputing the same, the petitioner has filed a reply affidavit wherein it is reiterated that as on 1.4.2005 she is fully qualified. It is averred in the reply affidavit that she has passed the department test in January, 2005. Ext.P6 is the true copy of the certificate issued by the Public Service Commission which is dated 4.6.2005 and Ext.P7 is also dated 4.6.2005. In Writ Petition No.5136/2009 WPC 27985/08 & 5136/09 5 also, along with the counter affidavit, the petitioner in Writ Petition No.27985/2008 who is the 6th respondent therein, has produced these two certificates in support of her plea. Ext.R6(c) is the certificate issued by the Principal of the concerned school where she appeared for the test. That only shows that she appeared for the test held on 4.1.2005 and 14.1.2005. Along with I.A.No.7819/2009 in Writ Petition No.5136/2009, the petitioner therein has produced Ext.P11 letter of the Kerala Public Service Commission stating that the date of publication of the result of the Department Test during January, 2005 is 5.4.2005, which clinches the issue against the petitioner in W.P.(C) No.27985/2008. Ext.P12 is the copy of the seniority list of teachers of the school dated 31.3.2005 wherein also the only entry relating to the 6th respondent (petitioner in Writ Petition No.27985/2008) is that a certificate dated 4.6.2005 has been produced. 9. Therefore, as far as the above aspect is concerned, it is clear that the result was published only on 5.4.2005. The vacancy arose consequent on retirement of the Headmaster, on 1.4.2005. Therefore, as on that date she was not qualified. The first respondent has clearly fulfilled the conditions laid down in Rules 45 & 45B of Chapter XIV-A K.E.R. 10. Learned counsel for the petitioner submitted that going by Rule WPC 27985/08 & 5136/09 6 28 (bbb) of the KS & SSR, she will be deemed to have passed the test in January 2005 itself and therefore as on the date of occurrence of the vacancy she is qualified. This contention is reiterated in the additional counter affidavit filed in Writ Petition No.5136/2009. The said contention is no longer available in the light of the decision of the Division Bench of this court in Balakrishnan v. A.E.O., Vadakara (2005 (4) KLT 64), taking the view that the benefit of the said provision is not applicable to aided school teachers. Further, all the conditions to apply the said rule are not satisfied here, as there will be change of duties by promotion as Headmaster. 11. In the light of the above, it is clear that the petitioner was not qualified as on the date of occurrence of vacancy, viz. 1.4.2005. She had not completed 50 years of age also on that date. She passed the Department Test only on 5.4.2005. In that view of the matter also as she is not a person who was eligible to be promoted for want of test qualification also, the order passed by the Government as per Ext.P3 is perfectly justified. Therefore, upholding Ext.P3 order, Writ Petition No.27985/2008 is dismissed and Writ Petition No.5136/2009 is allowed. Consequently, there will be a declaration that the petitioner in Writ Petition No.5136/2009 is WPC 27985/08 & 5136/09 7 fully qualified to be promoted as Headmaster as on 1.4.2005. There will be a direction to the respondents to implement Ext.P3 order and promote the petitioner in Writ Petition No.5136/2009 as Headmaster with effect from 1.4.2005. He will be entitled for all consequential benefits including arrears of salary accordingly. No costs. (T.R. Ramachandran Nair, Judge.) kav/