IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 WP(C).No. 7312 of 2008(U) ----------------------- PETITIONER : -------------------- S. USHAKUMARI, HEADMISTRESS, EVANS U.P.SCHOOL, PARASALA, THIRUVANANTHAPURAM-695 502. BY ADVS. SRI.B.RAGUNATHAN SRI.V.V.MATHEW SRI.R.SRINATH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. DIRECTOR OF PUBLIC INSTRUCTION, JAGATHI, THIRUVANANTHAPURAM-695 014. 3. DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA, THIRUVANANTHAPURAM-695 121. 4. ASSISTANT EDUCATIONAL OFFICER, PARASALA, THIRUVANANTHAPURAM-695 502. 5. MANAGER, EVANS UPS (SCHOOLS), PARASALA, THIRUVANANTHAPURAM-695 502. 6. SMT. P.J.USHA KUMARI, HIGH SCHOOL ASSISTANT (SS), EVANS HIGH SCHOOL, PARASALA, THIRUVANANTHAPURAM-695 502. R1 TO R4 BY GOVT. PLEADER SMT. N. SUDHA DEVI R5 BY ADVS. SRI.BABU VARGHESE SRI. T.J. THOMAS SMT. MANJU ANTONEY R6 BY ADVS. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE SRI.P.K.MANOJKUMAR SMT.SUSHYA RAJAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2010, ALONG WITH WPC NO. 7327 OF 2008, THE COURT ON 18/02/2011 DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 7312 of 2008(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE LETTER DTD. 1.4.2006, OF THE 6TH RESPONDENT. EXT.P2 : COPY OF THE LETTER DTD. 15.5.2006 OF THE 5TH RESPONDENT. EXT.P3 : COPY OF THE ORDER OF THE 3RD RESPONDENT DTD. 31.7.2006. EXT.P4 : COPY OF THE REVISION PETITION DTD. 4.8.2006. EXT.P5 : COPY OF THE HEARING NOTE DTD. 1.11.2006. EXT.P6 : COPY OF THE ORDER DTD 8.11.2006 OF THE 2ND RESPONDENT. EXT.P7 : COPY OF THE G.O DATED 30.3.2007. EXT.P8 : COPY OF THE REVISION PETITION DTD 14.11.2006. EXT.P9 : COPY OF THE LETTER DATED 8.2.2007 OF THE 2ND RESPONDENT. EXT.P10 : COPY OF THE JUDGMENT DATED 12.6.2007 IN WP(C) NO. 12161 OF 2007-W. EXT.P11 : COPY OF THE REPRESENTATION DATED 24.7.2007. EXT.P12 : COPY OF THE NOTE SUBMITTED BY THE PETITIONER. EXT.P13 : COPY OF THE G.O DATED 16.2.2008. EXT.P14 : COPY OF THE G.O. DATED 25.1.2008. RESPONDENT'S EXHIBITS: EXT.R1(a) : PHOTOSTAT COPY OF THE GOVERNMENT ORDER G.O(RT) NO. 2989/08/G.EDN DATED 30-6-2008 ISSUED BY THE GOVT. EXT.R1(b) : PHOTOSTAT COPY OF THE ORDER NO. 50/2006 DATED 30-3-2006 ISSUED BY THE MANAGER, EVANS SCHOOLS, PARASSALA. EXT.R1(c) : PHOTOSTAT COPY OF THE RELINQUISHMENT OF 1ST RESPONDENT CLAIM FOR APPOINTMENT AS H.S.A. DATED 1-4-2006 SUBMITTED BY THE 1ST RESPONDENT TO THE MANAGER, EVANS SCHOOLS PARASSALA. Contd... EXT.R1(d) : PHOTOSTAT COPY OF THE RELINQUISHMENT OF 1ST RESPONDENT CLAIM FOR APPOINTMENT AS H.S.A. NO. F-1204/06 DATED 10-4-2006 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER, PARASSALA, TO THE MANAGER, EVANS UPS, PARASSALA. EXT.R1(e) : PHOTOSTAT COPY OF THE ORDER ISSUED BY THE A.E.O PARASSALA, NO. F-1508/06 DATED 10-4-2006 TO THE MANAGER, EVANS SCHOOLS, PARASSALA. EXT.R1(f) : PHOTOSTAT COPY OF THE PROCEEDINGS NO. 53/2006 DATED 19-4-2006 ISSUED BY THE MANAGER, EVANS SCHOOLS PARASSALA TO THE 1ST RESPONDENT. EXT.R1(g) : PHOTOSTAT COPY OF THE GOVERNMENT LETTER NO. 9124/S3/05/G.EDN DATED 25-4-2005 ISSUED BY THE GOVERNMENT TO THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. EXT.R1(h) : PHOTOSTAT COPY OF THE REPRESENTATION DATED 24-4-2006 SUBMITTED BY THE 1ST RESPONDENT TO THE ASSISTANT EDUCATIONAL OFFICER, PARASSALA. EXT.R1(i) : PHOTOSTAT COPY OF THE ORDER NO. F.1703/2006/K.DIS DATED 17-5-2006 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER, PARASSALA. EXT.R1(j) : PHOTOSTAT COPY OF THE ORDER NO. F/1204/2006 DATED 16-5-2006 ISSUED BY THE A.E.O., PARASSALA TO THE 1ST RESPONDENT. EXT.R1(k) : PHOTOSTAT COPY OF THE ORDER NO. 65/2006 DATED 15-5-2006 ISSUED BY THE MANAGER, EVANS SCHOOLS, PARASSALA TO THE A.E.O., PARASSALA, TRIVANDRUM. EXT.R1(l) PHOTOSTAT COPY OF THE ORDER NO. B6-5241/2006 DATED 31-7-2006 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA. //TRUE COPY// P.S. TO JUDGE Mn T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 7312/2008-U & 7327/2008-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of February, 2011. JUDGMENT W.P.(C) No.7327/2008 is filed by the Manager and W.P.(C) No.7312/2008 is filed by the Headmistress of a school. The dispute is with regard to the claim for the post of Headmistress between the petitioner in W.P.(C) No.7312/2008 and the 6th respondent therein who is the first respondent in W.P.(C) No.7327/2008 filed by the Manager. The facts of the cases and exhibits are mentioned herein as available in W.P.(C) No.7327/2008. 2. The Manager contends that the school is one which is entitled to have minority status under Article 30(1) of the Constitution of India. Two vacancies arose in the school, viz. one vacancy of H.S.A. (Social Science) due to the retirement of Smt. Joylet Ruby and the other vacancy arose on 1.5.2006 consequent on the voluntary retirement of the Headmistress. The Manager, by Ext.P1 order, promoted the first respondent to the post of H.S.A. (SS) with effect from 1.4.2006. It is the case of the Manager that the first respondent accepted the promotion as evident from Ext.P2 letter wherein she requested the Manager to allow her to continue as UPSA till wpc 7312 & 7327/2008 2 reopening of the school for the academic year 2006-2007. This was made on the pea that no appointment could be made during vacation. Subsequently, the Manager received Ext.P3 letter from the Asst. Educational Officer, forwarding the relinquishment of promotion by the first respondent. It is contended that the relinquishment is not permissible as per the rules. When the vacancy arose in the post of Headmistress, the Manager promoted the petitioner in W.P.(C) No.7312/2008, (7th respondent in W.P.(C) No.7327/2008) as she was working as UPSA in the school. The proposal for approval was rejected by the Asst. Educational Officer as per Ext.P6 order stating that the first respondent is the seniormost graduate UPSA. It was also stated that the appointment of Smt. S. Nabeesathu Beevi as Headmistress with retrospective effect from 1.6.2004 has not been approved and hence, there is no established vacancy of Headmistress with effect from 1.5.2006. 3. Two writ petitions, viz. W.P.(C) Nos.12238/2006 and 13978/2006 filed by the first respondent were disposed of by Ext.P9 judgment, whereby this Court directed the District Educational Officer to consider the matters. The District Educational Officer rejected the claim of the petitioner in W.P. (C) No.7312/2008 as per Ext.P10 order and accepted the claim of the first respondent as she is yet to be promoted as H.S.A. and was having the wpc 7312 & 7327/2008 3 qualification also. The revision petition filed by the Manager was allowed by the Director of Public Instruction as per Ext.P14 order which was challenged before the Government and the Government by Ext.P15 allowed the revision petition filed by the first respondent, without hearing anybody. This was quashed in W.P.(C) No.12300/2007 with a direction to pass fresh orders after hearing all parties. Ext.P20 is the final order passed by the Government, allowing the revision petition filed against Ext.P14 order. 4. The Government took the view that the promotion of the first respondent on 1.4.2006 as H.S.A. did not come into effect in the light of Rule 7A(2) of Chapter XIV-A K.E.R.. No promotion could have been made on the last working day. Therefore, as on the date of occurrence of vacancy of Headmistress, the first respondent was available for promotion to the said post and she was qualified in terms of the rules also. 5. Heard learned Senior Counsel Shri Babu Varghese for the Manager, Shri B. Reghunathan appearing for the 7th respondent and petitioner in W.P.(C) No.7312/2008, Shri P.K. Manojkumar, learned counsel for the first respondent and Smt. N. Sudha Devi, learned Govt. Pleader. 6. Learned Senior Counsel Shri Babu Varghese argued that when the wpc 7312 & 7327/2008 4 vacancy arose on 31.3.2006, the first respondent was eligible to be promoted as H.S.A. The qualification for promotion has to be considered as on the date of occurrence of vacancy and accordingly she was promoted. She also accepted the promotion as evident from the letter given by her. The relinquishment of promotion cannot be accepted, as it is not valid. Therefore, as on the date of occurrence of vacancy to the post of Headmistress, she is already promoted as H.S.A. It is further pointed out that the school being a minority institution, the Manager is having ample power to promote a person of their choice, herein being the 7th respondent in W.P.(C) No.7327/2008. It is further pointed out that the decision taken by the Government is too hasty and even though the view of the Law Department was sought for, the Government straight away issued the order and the relevant page of the Note files have been produced as Ext.P19. 7. The above arguments are supported by the learned counsel appearing for the promotee Shri B. Reghunathan. Learned counsel for the first respondent relied upon Rule 7A(2) of Chapter XIV-A K.E.R. to submit that no appointment order could be issued on the last working day and therefore the promotion as H.S.A. never took place. Various other contentions have also been raised and both sides relied upon various decisions of this Court. wpc 7312 & 7327/2008 5 8. Ext.P1 order is dated 30.3.2006, wherein the first respondent is promoted in the retirement vacancy as H.S.A. (SS) from 1.4.2006. By Ext.P2 letter the first respondent pointed out that as per the rules in the K.E.R., no appointment of teachers other than Headmaster, can be made during vacation and therefore, she requested that she may be allowed to continue as UPSA till reopening. The Asst. Educational Officer forwarded her relinquishment letter as per Ext.P3, to the Manager. The same is dated 10.4.2006. Ext.P5 is the order dated 27.4.2006 by which the seventh respondent was promoted as Headmistress with effect from 1.5.2006. 9. The Government, by Ext.P20 took the view after considering various aspects that: (a) the promotion given to the first respondent as H.S.A. is in gross violation of Rule 7A(2) of Chapter XIV-A K.E.R. Therefore, the same is void ab initio; (b) the first respondent has not held the post of H.S.A. at any time and the relinquishment is immaterial. Therefore, she has to be treated as never been promoted as H.S.A. Both the first respondent and the 7th respondent are U.P.S.As. as on 1.5.2006. Rule 45 of Chapter XIV-A K.E.R. provides for preference for a graduate teacher over a senior undergraduate teacher. The first respondent is a senior graduate teacher and the 7th respondent is an under graduate teacher. Therefore, the first respondent is eligible to be promoted as Headmistress. wpc 7312 & 7327/2008 6 10. Much arguments have been raised on the importance of the date of occurrence of vacancy and the effect of Rule 7A(2) of Chapter XIV-A K.E.R. Rule 7A(2) provides as follows: “(2) Posts that may fall vacant on the closing date shall not be filled up till the reopening date except in the case of posts of non-vacation staff.” Sub-rule (3) provides that “vacancies, the duration of which is less than one academic year, shall not be filled up.” By relying upon the decision of this Court in Mini Joseph v. Director of Public Instruction (2005 (4) KLT SN page 15, Case No.17), Shri Babu Varghese, learned Senior Counsel submitted that Rule 7A(2) applies only for filling up of temporary vacancies and herein it is a permanent vacancy. The other rule relevant is Rule 43 of Chapter XIV-A K.E.R. under which the first respondent was promoted. It provides that “vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available.” Note (2) provides that “ promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy.” It is pointed out that since promotions have to be made in terms of the qualification at the time of occurrence of vacancy, there is no illegality in granting promotion to the wpc 7312 & 7327/2008 7 first respondent as H.S.A. from 1.4.2006. The decision of this Court in Manager, MDPS U.P. School and others v. Paulose E.A. and others (ILR 2010 (2) Ker. 89) is also relied upon, in this context. 11. Evidently, if the promotion has taken effect from 1.4.2006 in favour of the first respondent, then she will be deemed to be working as H.S.A. from 1.4.2006 and will not be eligible to be promoted as Headmistress. Shri Babu Varghese submitted that Rule 7A(2) will not apply in the light of the dictum laid down in Mini Joseph's case (2005 (4) KLT SN page 15, case No.17). Therein, it was held thus: “Sub-rules (2) and (3) of R.7 as already indicated, can have application only in cases of posts falling vacant on the closing date and in the cases of temporary vacancies duration of which is two months or less.” Learned counsel appearing for the first respondent relied upon another decision of a learned Single Judge of this Court with regard to the interpretation of Rule 7A(2), viz. Manju v. State of Kerala (2005 (1) KLT SN page 98, case No.122) wherein the view taken is that it is a statutory interdiction against filling up of the vacancy till reopening date. The dictum laid down therein is as follows: “All that sub-r. (2) of R.7A provides is that the posts that may fall wpc 7312 & 7327/2008 8 vacant on the closing date shall be left unfilled till the reopening date. A proper understanding of the said sub-rule will show that it concedes the situation that the vacancy occurs immediately on the vacation of office of an incumbent who superannuates on the closing date but a statutory interdiction is imposed against filling up of that vacancy till the reopening date. Sub-r(2) of R.7A of Chapter XIV(A) K.E.R. does not envisage postponement of date of occurrence of vacancy.” 12. The question is whether Rule 7A(2) will apply only to temporary vacancies. The facts of the case in Mini Joseph (2005 (4) KLT SN page 15, Case No.17) shows that therein the vacancy arose on 5.2.1996. The approval was objected for the reason that the duration of the vacancy till closing date of the school is less than 60 days. It was contended that the said view is not correct, since the appointment is in a permanent vacancy which arose due to retirement. The finding that the duration of the vacancy is less than 60 days, was also disputed. 13. The learned Judge in para 9 of the judgment, after referring to sub-rules (2) and (3) of Rule 7A, held thus: “Rule 7A(2) can have application only in the matter of appointments to posts which fall vacant on the closing date of the academic year and rule 7A(3) shall have application only regarding appointments to vacancies the duration of which is two months or less. Neither sub- wpc 7312 & 7327/2008 9 rule (2) nor sub-rule (3) of Rule 7A can have application in the case of appointments to regular vacancies or permanent vacancies. The vacancy which arose due to the promotion of Smt. P.T. Annamma as Headmistress was not a vacancy which was to fall vacant by the end of the academic year 1995-96; nor was it a vacancy the duration of which was less than two months. The appointment of Smt. Annamma even the Government concedes, was against a post which was duly sanctioned as per the staff fixation order pertaining to the academic year 1995-96. That being the position, petitioner's claim that she became part of the regular establishment cannot be turned down. This further means that at least till 15th July of the next year when the staff fixation order relating to the next year is promulgated, the petitioner's appointment will continue as will be seen when Rule 12 of Chapter XXIII is carefully analysed.” As is clear from the facts of the case, the vacancy arose not on the last working day and the finding is also that the vacancy was not one which fell vacant by the end of the academic year. Evidently, therefore, sub-rule (2) had no application. The rejection of approval was mainly relying upon sub- rule (3). The view taken by this Court is that vacancy exits at least till 15th July of the next academic year and therefore it is beyond two months. Of course, it was held that sub-rules (2) and (3) can have application only in the case of post falling vacant on the closing date of the academic year and in the case of temporary vacancies, the duration of which is two months or wpc 7312 & 7327/2008 10 less. A close reading of the judgment will show that emphasis was given on the concept under sub-rule (3) and therefore the dictum cannot be understood as one taking the view that sub-rule (2) applies only for temporary vacancies. This is clear from the judgment of the Division Bench in W.A. No.1826/2005 which arose from the same case. The Division Bench also noticed that the vacancy arose on 1.2.1996 consequent on the voluntary retirement of the Headmaster and the vacancy was filled up on 5.2.1996. The Bench took the view finally that “since the vacancy was having a duration of more than five months, i.e. from 1.2.1996 to 15.7.1996, her appointment is not hit by sub-rule (3) of Rule 7A. So, her appointment is liable to be approved from 5.2.1996 to the closing date of the school during that year. Therefore, it was held that reliance placed on sub-rule (3) for rejecting the approval is not correct. Hence, the dictum laid down in Mini Joseph's case (2005 (4) KLT SN page 15, case No.17) was mainly with respect to the interpretation of sub-rule (3) and that it relates to temporary vacancies. 14. In Manju's case (2005 (1) KLT SN page 98, case No.122) the question was considered with respect to the interpretation of Rule 7A(2) itself wherein this Court held that even though the vacancy occurs on the closing date, a statutory interdiction is imposed against filling up of the wpc 7312 & 7327/2008 11 vacancy till the reopening date. 15. A reading of the full text of the judgment shows the following: One Shri Jathavedan Namboodiri retired on 31.3.2002. A vacancy of H.S.A. (Maths) thus arose on 1.4.2002. One Smt. Manju who did not possess B.Ed. qualification, became qualified on 4.4.2002. She contended that the vacancy occurs only on the reopening date, i.e. 5.6.2002 and therefore she is entitled to be appointed. The rival claimant Smt. Resmi was a rule 51A claimant who was having B.Ed. degree and was qualified as on 1.4.2002. This Court considered the effect of the Note (2) to Rule 43 also and considered the question whether eligibility has to be considered as on the date of occurrence of vacancy or on 5.6.2002. It was held thus in para 7: “To answer this, Rule 7A of Chapter XIV(A) provides the clue. Sri Jathavedan Namboodiri retired from a permanent post in the A.N. of 31.3.2002. The post held by him fell vacant on that day. All that Sub-rule (2) of Rule 7A provides is that the posts that may fall vacant on the closing date shall be left unfilled till the reopening date. A proper understanding of the said sub-rule will show that it concedes the situation that the vacancy occurs immediately on the vacation of office of an incumbent who superannuates on the closing date but a statutory interdiction is imposed against filling up of that vacancy till the reopening date. sub-rule (2) of Rule 7A wpc 7312 & 7327/2008 12 of Chapter XIV(A) K.E.R. does not envisage postponement of date of occurrence of vacancy. In that view of the matter, the post held by Sri Jathavedan Namboodiri till his retirement on 31.3.2002, fell vacant on that day. So much so, it is the indisputable position that on that day Ms. Resmi, the petitioner in W.P.(C) No.31330/2003, was the person available to be appointed against that vacancy since admittedly, on that day, Ms. Manju did not possess the B.Ed. qualification which she obtained only on 4.4.2002. Accordingly, I do not find any illegality in the orders impugned in W.P.(C) No.31330/2003.” Therefore, for considering the eligibility for filling up of the post between the respective claimants, the date of occurrence of vacancy has to be considered. But this Court clearly held that in the light of Rule 7A(2) the post could be filled up only on 5.6.2002 which is evident from the following finding in para 3 which is extracted below: “Rule 7A(2) provides that posts hat may fall vacant on the closing date shall not be filled up till the reopening date except in the case of posts of non-vacation staff. Therefore, the vacancy that occurred by the superannuation of Sri. Jathavedan Namboodiri on 31.3.2002 could have been filled up only on 5.6.2002 which is the reopening date for the school in that year.” 16. Shri Babu Varghese, learned Senior Counsel relied upon the decision of the Apex Court in Smitha Johny v. Josny Varghese (ILR wpc 7312 & 7327/2008 13 2010 (4) Ker. 533) to contend that the date of eligibility for promotion is the date of occurrence of vacancy itself. Therein, the facts of the case show the following: One Smt. Josney Varghese sought promotion to the post of H.S.A. (English) as she was a qualified UPSA in the vacancy which arose on 1.4.2005. The Manager wanted to recall a teacher who was on protection, viz. the fourth respondent therein and later on, he took the view that the petitioner was having superior qualification and wanted to withdraw the request to recall the protected teacher. This was objected to by the department. The writ petition was dismissed, upholding the right of the protected teacher. 17. A Division Bench of this Court in W.A. No.1925/2005 considered the question with regard to eligibility as on the date of occurrence of vacancy. The additional fifth respondent also raised a claim on the basis of the date of acquisition of B.Ed. degree on 29.6.2005. The Division Bench therefore considered whether the vacancy arises on 1.4.2005 or only on 15.7.2005. In the course of discussion it was held with reference to Rule 7A(2) as follows in para 11: “But we do not think the above argument is impressive, since the indication given by Rule 7A(2) of Chapter XIV-A of the Kerala Education Rules appears to be that posts do fall vacant on the wpc 7312 & 7327/2008 14 closing date, but they are to be filled up only by the reopening date. Though not specific, this is a guideline, which could be satisfactorily followed.” It was held that the date of occurrence of vacancy being 1.4.2005, the additional fifth respondent was not qualified. This judgment was challenged before the Apex Court and the judgment therein is reported in Smitha Johny 's case (ILR 2010 (4) Ker. 533). The Apex Court also held that candidates with requisite qualification as on the date of occurrence of vacancy, alone are eligible to be promoted. In para 13 it was held thus: “It is not in dispute that as per Rule 43 of Chapter XIV-A of the Kerala Education Rules, a U.P.S.A. who is qualified for the post of H.S.A. has a claim for promotion to the post of HSA against a vacancy arising in the same School. As per Note (2) under Rule 43, promotion under the said rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy (emphasis supplied). It is not disputed that as on 1st April, 2005, the petitioner, Smt. Smitha Johny, did not possess the prescribed qualifications for the post of H.S.A. (English) whereas the Respondent No.1 Smt. Josny Varghese did possess the qualifications. It is clear from the pleadings in the case that as on 1st April, 2005, Smt. Josny Varghese was the only U.P.S.A. working in the School who was qualified for promotion as H.S.A. (English). Even according to the petitioner, she acquired the qualification of B.Ed. in English