IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 25176 of 2005(V) -------------------------- PETITIONER(S): --------------- GEETHA C.B., H.S.A. MATHEMATICS, TAGORE MEMORIAL HIGHER SECONDARY SCHOOL, VELLORA, P.O. VELLORA, KANNUR DISTRICT. BY ADV. SRI.C.MURALIKRISHNAN (PAYYANUR) SRI.M.SASINDRAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT. DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DIRECTORATE OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE MANAGER, TAGORE MEMORIAL HIGHER SECONDARY SCHOOL, VELLORA, P.O. VELLORA, KANNUR DIST. 4. SHAJAN K.J., TEACHER, TAGORE MEMORIAL HIGHER SECONDARY SCHOOL, VELLORA, P.O. VELLORA, KANNUR DISTRICT. GOVERNMENT PLEADER SRI. P.K. RAVIKRISHNAN FOR R1 & R2 SRI.BENOY THOMAS FOR R4 SRI.M.V.AMARESAN FOR R3 SRI.V.N.RAMESAN NAMBISAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF APPOINTMENT ORDER DATED 13.1.1992 ISSUED BY 3RD RESPONDENT TO THE PETITIONER. EXT.P2 APPOINTMENT ORDER DATED 1.6.1992 ISSUED TO THE PETITIONER BY THIRD RESPONDENT. EXT.P3 TRUE COPY OF THE CERTIFICATE DATED 18.3.2002 AWARDING M.SC. TO THE PETITIONER BY ANNAMALAI UNIVERSITY. EXT.P4 TRUE COPY OF THE CERTIFICATE ISSUED BY 2ND RESPONDENT WARDING SET TO THE PETITIONER. EXT.P5 TRUE COPY OF THE APPLICATION DATED 8.6.2001 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT. EXT.P6 TRUE COPY OF THE REQUEST DATED 13.1.2003 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT THROUGH PROPER CHANNEL. EXT.P7 TRUE COPY OF THE REPRESENTATION DATED 13.1.2001 ADDRESSED TO 2ND RESPONDENT WHICH WAS REFUSED TO BE FORWARDED BY THE HEADMISTRESS. EXT.P8 TRUE COPY OF POSTAL RECEIPT DATED 14.1.2003 EXT.P9 TRUE COPY OF REPRESENTATION DATED 17.5.2005 SUBMITTED TO 2ND RESPONDENT. EXT.P10 TRUE COPY OF GO(MS) 341/99/G.EDN. DATED 30.12.1999 EXT.P11 TRUE COPY OF GO (Rt) NO. 3168/2000/G.EDN. DATED 31.7.2000 EXT.P12 TRUE COPY OF G.O.(MS) NO. 298/2000 G.EDN. DATED 25.8.2000 EXT.P13 TRUE COPY OF G.O. (MS) NO. 389/2000/G.EDN. DATED 25.11.2000 4TH RESPONDENT'S EXHIBITS: EXT.R4(a) TRUE COPY OF THE ORDER OF UPGRADATION OF THIRD RESPONDENT'S HIGH SCHOOL AS HIGHER SECONDARY. EXT.R4(b) TRUE COPY OF THE STAFF FIXATION ORDER OF THIRD RESPONDENT SCHOOL PERTAINING TO THE YEAR 2000-01 AND 2001-02. EXT.R4(c) TRUE COPY OF M.SC. DEGREE CERITIFICATE OF THE FOURTH RESPONDENT ISSUED BY KANNUR UNIVERSITY. EXT.R4(d) TRUE COPY OF B.ED. DEGREE CERTIFICATE OF THE FOURTH RESPONDENT. EXT.R4(e) TRUE COPY OF JUDGMENT IN WA 2245 OF 2002 DATED 22.1.2003 AND CONNECTED CASES. EXT.R4(f) TRUE COPY OF THE ORDER IN SLP 7224 OF 2003 DATED 7.5.2003 EXT.R4(g) TRUE COPY OF G.O.(MS) NO. 199/2003 GEN.EDN. DATED 24.7.2003 EXT.R4(h) TRUE COPY OF THE APPROVAL ORDER DATED 21.11.2003 EXT.R4(i) TRUE COPY OF JUDGMENT IN WPC 14946 OF 2004 DATED 23.1.2007 EXT.R4(j) TRUE COPY OF THE APPROVAL ORDERS DATED 31.5.2007, 23.10.2007 AND 5.8.2008 EXT.R4(k) TRUE COPY OF JUDGMENT IN WPC 28789 OF 2003 DATED 6.12.2006 TRUE COPY C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 25176 OF 2005 -------------------------------------------- Dated this the 10th day of June, 2009 JUDGMENT W.P.C. is filed by the petitioner challenging the appointment of the fourth respondent as Higher Secondary School Teacher under the quota reserved for HSAs. Petitioner's case is that petitioner was senior in service as HSA over the fourth respondent and therefore she is eligible for promotion before fourth respondent is promoted. Vacancy arose on 15.7.2001 when the fourth respondent who was found to have post-graduate degree in Maths was appointed two days thereafter, that is, on 17.7.2001. It is clear from Ext.P9 submitted by the petitioner to the Director of Higher Secondary Education that her MSc. results were published only on 5.9.2001 and she produced Ext.P3 degree certificate which shows that degree certificate was issued on 18.3.2002. Therefore admittedly petitioner did not have qualification as on the date on which vacancy arose that is on 15.7.2001 whereas fourth respondent had the requisite qualification for appointment. In Ext.P9 petitioner raised further objection that fourth respondent did not have 2 SET qualification as on the date of appointment, which is factually correct. However, counsel for the fourth respondent submitted that the position is made clear by this Court by holding that in the absence of eligible hands having SET qualification, post-graduates can be appointed. It is stated that fourth respondent has later acquired SET qualification. I do not think this Court should consider eligibility of fourth respondent to be appointed as Higher Secondary School Teacher without SET qualification on 17.7.2001 when he was appointed because petitioner who claims preference over the fourth respondent did not have required qualification on that date which she acquired only much later as is evident from Ext.P3 certificate issued by the University. Petitioner's claim for appointment based on seniority itself is not tenable because seniority has relevance only when contesting parties have requisite qualification. In this case since fourth respondent had the qualification when the vacancy arose, he is entitled to be appointed, if there is no other person senior to him in the faculty with required qualification. Petitioner had the seniority, but did not have the qualification when the vacancy arose. Therefore fourth respondent was 3 rightly appointed without considering the petitioner who did not have qualification for appointment. I also notice that appointment given to the fourth respondent on 17.7.2001 is questioned in this Petition after a long delay of four years. For the reasons stated above, I do not find any justification to interfere with the appointment of the fourth respondent. W.P.C. is therefore dismissed. (C.N. RAMACHANDRAN NAIR) Judge kk 4