IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 WP(C).No. 12260 of 2004(H) ------------------------ PETITIONER : ------------------ DEEPA AGUSTINE, HSA (PHYSICAL SCIENCE), ST.MICHAEL'S HIGH SCHOOL, KUDAVACHOOR, AMBIKA MARKET P.O., KOTTAYAM DISTRICT. BY ADVS. SMT.V.P.SEEMANDINI, SENIOR ADVOCATE SRI.T.R.RAJESH RESPONDENTS : ------------------------ 1. STATE OF KERALA, REP: BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KADATHURUTY, KOTTAYAM DISTRICT. 4. THE MANAGER, ST.MICHAEL'S HIGH SCHOOL, KUDAVACHOOR, AMBIKA MARKET P.O., KOTTAYAM DISTRICT. 5. GEETHA ALEX, HSA (PHYSICAL SCIENCE) ST.MICHAEL'S HIGH SCHOOL, KUDAVACHOOR, AMBIKA MARKET P.O., KOTTAYAM DISTRICT. ...2/- WP(C).No. 12260 of 2004(H) -2- 6. N.K.THRESSIAMMA, HSA (SOCIAL STUDIES), ST.MICHAEL'S HIGH SCHOOL, KUDAVACHOOR, AMBIKA MARKET P.O., KOTTAYAM DISTRICT. R1 TO R3 BY GOVT. PLEADER SRI. P. NANDAKUMAR R5 BY ADV. SRI.K.N.CHANDRABABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...3/- WP(C).No. 12260 of 2004(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE GOVT. ORDER G.O.(RT) 2874/93/G.EDN. DATED 11.8.1993. EXT.P2 : COPY OF THE G.O.(RT) 3261/94/G.EDN. DATED 27.8.94. EXT.P3 : COPY OF THE COMMON JUDGMENT DATED 12.7.1996 IN O.P. 17472/94. EXT.P4 : COPY OF THE NOTICE DATED 9.11.2001 ISSUED BY SUPREME COURT. EXT.P5 : COPY OF THE ARGUMENT NOTE 3.8.2001 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P6 : COPY OF THE G.O.(RT) 705/2002/G1/EDN. DATED 1.4.2002. EXT.P7 : COPY OF THE TIME TABLE OF THE SCHOOL. EXT.P8 : COPY OF THE G.O.(RT) NO. 1248/92/G.EDN.DATED 6.4.1992. RESPONDENT'S EXHIBITS: EXT.R5(a) : COPY OF THE ORDER DATED 22-11-1991 ISSUED BY THE 3RD RESPONDENT. EXT.R5(b) : COPY OF THE APPOINTMENT ORDER ALONG WITH THE APPROVAL BY THE 3RD RESPONDENT. //TRUE COPY// P.A. TO JUDGE Mn S.SIRI JAGAN, J. ----------------------------------------- W.P.(C).No.12260 of 2004 ---------------------------------------- Dated this the 29th day of October, 2010. JUDGMENT The petitioner was appointed as High School Assistant in Physical Science in the 4th respondent's School in a promotion vacancy. The educational authority refused to approve that appointment on the ground that the 6th respondent had a better claim under Rule 43 of Chapter XIVA of the Kerala Education Rules for preferential appointment by promotion to that vacancy. Consequently on 28.11.1991 the service of the petitioner was terminated. Petitioner filed a revision before the Government. By Ext.P1 order, the government rejected the revision petition. Petitioner filed O.P No.12756 of 1996 in which Ext.P1 order was set aside and the Government was directed to reconsider Ext.P1 order. In the meanwhile, there arose another vacancy of H.S.A (Physical Science) in which the Manager appointed the 5th respondent. The question of approval of that appointment was considered along with the earlier revision petition of the petitioner in accordance with the directions in O.P No.12756 of 1996, pursuant to which Ext.P2 order was passed wherein the claim of the petitioner for appointment in preference to the 6th W.P.(C).No.12260 of 2004 2 respondent was upheld. The respondents 4 and 5 filed O.P.No.164 of 1995 and O.P No.15463 of 1994 challenging Ext.P2 order. The petitioner filed O.P.No.17472 of 1994 for implementation of Ext.P2 order by Ext.P3 judgment. In the above three O.Ps a learned Judge of this Court upheld the claim of the petitioner. Consequently the petitioner was directed to be paid salary for the period from 29.10.1991 to 21.12.1991 and 1.9.1994 onwards. Pursuant to that the petitioner was re-instated and the salary as directed was also paid. The respondents 4 and 5 challenged the Ext.P3 judgment in a writ appeal which was referred to a Full Bench. The Full Bench, in the decision of Philomina v. Babu Varghese, (2001 (2) KLT 519) set aside Ext.P3 judgment and directed the Government to reconsider the matter. Pursuant to that Ext.P6 order was passed rejecting the petitioner's claim. Petitioner has filed this writ petition challenging Ext.P6 order contending that even as per the Full Bench Decision, the petitioner is entitled to be appointed in the vacancy to which she was appointed on 28.10.1991. The petitioner had also filed a SLP before the Hon'ble Supreme Court against the Full Bench Decision. The Supreme Court finally disposed of the SLP filed by the petitioner by the judgment in W.P.(C).No.12260 of 2004 3 Deepa Augustine V. Geetha Alex (2008(2)KLT 771 (SC)) upholding the petitioner's contentions and directing the competent authority to consider the matter and pass appropriate orders in accordance with law. In the above circumstances, the petitioner submits that in so far as the Supreme Court has set aside the Full Bench decision, Ext.P6 order passed as per the direction in the Full Bench decision does not hold good and, therefore, Ext.P6 order should be quashed and the appropriate authority should be left to consider matter as directed in the Supreme Court judgment. 2. I have heard the parties. 3. The Supreme Court, in the judgment in Deepa Augustine V. Geetha Alex, 2008 (2) KLT 771 (SC) held as follows:- “We have heard learned counsel for the parties. These appeals by special leave are directed against the judgment and order dated 25th May, 2001 passed by the Full Bench of the High Court of Kerala at Ernakulam in W.A.No.s1065-1068 of 1996. The Kerala High Court has examined the proviso to Rs.43 of the Kerala Service Rules, 1959(sic) (Kerala Education Rules) and observed: “Thus if a vacancy had arisen in the post of Science Teacher, necessarily, the Science Teacher had to be promoted. But what prompted the Government to introduce the Proviso is the complaint made by certain sections of teachers that in the exigencies of service promotions may be made considering the seniority of the teacher even though he may not be qualified in the subject in which vacancy arose. It is to implement such a position W.P.(C).No.12260 of 2004 4 that the Proviso was enacted. An argument was advanced stating that the earlier circulars had been withdrawn and hence, they cannot be looked into to ascertain the meaning of the words “subject requirement” and finally they concluded:- “In view of the above, we direct the Government to reconsider Ext.P7 and pass appropriate orders within two months from today in the light of the principles held in the judgment. Original Petition is disposed of”. 2. Ext.P7 is an order passed by the Kerala Government in a petition filed by the appellant before us on a remand made by the Kerala High Court in a writ petition filed by the appellant. In that, on 27th August, 1994 the Government passed the following order:- In the above circumstances Government order that the action of the Manager, St.Michael's High School, Kudavachoor, Ambika Market P.O. in appointing Smt.N.K.Thressiamma a Social Studies hand in the vacancy of a Physical Science teacher will be set aside. The Manager will appoint a proper Physical Science hand. While doing so, the Manager will prefer claims if any put in by Smt.Deepa Augustine, who was appointed by the Manager earlier and terminated subsequently. In the case of Smt.Geetha Alex who claims a right to be appointed as H.S.A.(Physical Science) from 1993-94, the Manager will examine the issue as per subject ratio and available periods for physical.” 3. In this background we have to examine the case of the appellant. The appellant was initially appointed as High School Assistant (Physical Science) on probation on 28th October, 1991 in the vacancy of K.T.Thomas who was promoted as a Head Master. This was protested by N.K.Thressiamma, a teacher in the Social Studies in the Upper Primary Section. Therefore, the appointment of appellant was not approved by the District Education Officer. Against that, the appellant filed an appeal before the Government which was rejected. Aggrieved against that, she preferred a Revision Petition before the State Government. There also she failed. Thereafter, she filed a Writ Petition before the High Court and the High Court remanded the matter back to the Government and the Government thereafter passed the order on 27th August, 1994 (Ext.P-7) and directed the Manager to consider the case of Deepa Augustine against the Physical Science vacancy. This order was challenged by N.K.Thressiamma and many other petitions were filed. A Full Bench was constituted to examine the scope of Rule 43 and the Proviso along with the order passed by the Government dated 27th August, 1994. In that context, the Full Bench passed the order as quoted above. W.P.(C).No.12260 of 2004 5 4. 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 to be 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 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. However, now we need not dilate on S.43 and the Proviso thereunder because N.K.Thressiamma who is from Social Studies has already superannuated and the appellant is working in the Physical Science, the authorities may consider the appointment of the appellant in Physical Science subject as she said to possess necessary qualification. We leave it to the competent authority to consider the matter of the appellant and pass appropriate orders in accordance with law. The appeals are accordingly, disposed of.” 4. In view of the judgment, Ext.P6 has no legs to stand in so far as the Full Bench Decision, as directed in Ext.P6 order has been passed does not hold good any more. Accordingly Ext.P6 is quashed. In view of the Supreme Court Judgment it is for the competent authority to comply with the directions therein promptly. W.P.(C).No.12260 of 2004 6 The writ petition is disposed of as above. S.SIRI JAGAN, JUDGE mns