IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WP(C).No. 14473 of 2005(W) -------------------------- PETITIONER(S): --------------- SMT.REMA, UPPER PRIMARY SCHOOL ASSISTANT, HIGHER SECONDARY SCHOOL VALAYANCHIRANGARA, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.S.EASWARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION (E) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM. 4. THE MANAGER, HIGHER SECONDARY SCHOOL, VALAYANCHIRANGARA, KOTHAMANGALAM, ERNAKULAM DISTRICT. 5. SMT.SUJA, HIGH SCHOOL ASSISTANT (HINDI), HIGHER SECONDARY SCHOOL, VALAYANCHIRANGARA. 6. SMT.HEMALATHA, LOWER GRADE (HINDI) TEACHER, HIGHER SECONARY SCHOOL, VALAYANCHIRANGARA. GOVERNMENT PLEADER SMT.M.R.SREELATHA FOR R1-3 SRI.G.G.MANOJ FOR R5 SRI.K.JAJU BABU FOR R6 SRI.BIJU .C. ABRAHAM FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 14473/05. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER DTD.11.4.03 BY R2. P2. COPY OF THE ORDER DTD.27.6.03 BY R4. P3. COPY OF THE REPRESENTATION DTD.13.6.03 TO R3. P4. COPY OF THE ORDER DTD.22.8.03 BY R3. P5. COPY OF THE APPEAL DTD.1.10.03 BEFORE R2. P6. COPY OF THE ORDER DTD.3.6.04 BY R2. P7. COPY OF THE REVISION PETITION DTD.23.6.04 BEFORE R1. P8. COPY OF THE GOVT. ORDER DTD.14.3.05 BY R1. RESPONDENT(S)' EXHIBITS: R5A. COPY OF THE APPOINTMENT ORDER DTD.25.8.97. R5B. COPY OF THE APPOINTMENT ORDER DTD.12.9.01 OF R5. R5C. COPY OF THE -DO- 5.6.02. R5D COPY OF THE -D0- 10.09.02 -DO- R5E. COPY OF THE -DO- 2.6.03 -DO- R6A. COPY OF THE APPOINTMENT ORDER DTD.1.9.02 BY R4 TO R6. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 14473 of 2005 ================== Dated this the 16th day of March, 2010 J U D G M E N T After putting in service in a leave vacancy for the period from 14.11.2000 to 28.2.2001 as a UPSA in the 4th respondents' school, the petitioner was appointed in a regular vacancy with effect from 6.6.2001. She is continuing as such. She is a post graduate in Hindi and has also passed Hindi Vidhwan Examination of the Dakshin Bharath Hindi Prachar Sabha. Therefore, she is qualified to be appointed as an L.G. Hindi Teacher and H.S.A (Hindi). Vacancies of L.G. Hindi Teacher arose in the school on 31.3.2001 and 10.9.2002. The petitioner requested the manager to consider her for appointment to the post of L.G. Hindi Teacher, which was refused to be considered on the ground that both UPSA and L.G. Hindi Teacher carry the same scale of pay. On 31.3.2003, a permanent vacancy of H.S.A. (Hindi) arose in the school. The petitioner filed representation dated 13.6.2003 before the manager seeking promotion to that post. The manager rejected the petitioner's request, by Ext.P2 dated 27.6.2003. Simultaneously the petitioner had also represented to the 3rd respondent-DEO, who passed Ext.P4 order dated 22.8.2003 rejecting the petitioner's claim. In that vacancy the manager appointed the 5th respondent in recognition of her right under Rule 43. Along with the w.p.c.14473/05 2 claim for appointment to the post of H.S.A. (Hindi), the petitioner also requested the manager to consider the petitioner for appointment to the vacancy of L.G. Hindi Teacher, which arose consequent to the promotion of the 5th respondent as H.S.A. (Hindi). However, the manager appointed the 6th respondent, who is stated to be the daughter-in-law of the manager. On both counts, the petitioner challenged Ext.P4 order of the DEO before the 2nd respondent-Director of Public Instruction, by filing Ext.P5 appeal. Pursuant to the orders of this Court in W.P.(C). No.7299/2004, the 2nd respondent considered the appeal and passed Ext.P6 order dated 3.6.2004, rejecting the claim of the petitioner on both counts. Challenging Exts.P4 and P6, the petitioner filed W.P.(C).No.17747/2004 before this Court. This Court relegated the petitioner to the remedy by way of revision before the Government. Pursuant thereto, the petitioner filed Ext.P7 revision petition before the Government, which also was rejected by Ext.P8 order dated 14.3.2005. The petitioner is challenging Exts.P4, P6 and P8 in this writ petition. 2. The 5th respondent worked as an L.G. Hindi Teacher in a temporary vacancy for the periods from 28.5.1997 to 30.3.1998 and 12.9.2001 to 28.2.2002. She was appointed in a regular vacancy with effect from 5.6.2002. The 5th respondent was promoted in a leave vacancy as H.S.A (Hindi) for the period from 10.9.2002 to 10.12.2002. w.p.c.14473/05 3 She was reverted as an L.G. Hindi Teacher from 11.12.2002 and she continued to work as such till 1.6.2003. From 2.6.2003 onwards she was appointed in a regular vacancy H.S.A. (Hindi), for which the petitioner has laid a claim. As I have stated, in the resultant vacancy on promotion of the 5th respondent as H.S.A. (Hindi), the 6th respondent was appointed in recognition of her claim under Rule 51A of the XIV-A of the KER, she having been earlier worked as L.G. Hindi Teacher in a temporary vacancy, which arose on 10.9.2002. 3. The petitioner raises two contentions. First is that the petitioner is entitled to be preferred for the post of H.S.A. (Hindi) in view of the provisions of Rule 43B of Chapter XIVA of KER. According to the petitioner, although by Rule 43B, for promotion to the post of H.S.A., language L.G. Teachers have been given preference over regular primary teachers, going by Note to Rule 43B(1), when there are candidates in more than one category, then promotion shall be made according to the seniority, from persons possessing the prescribed qualifications. Therefore, according to the petitioner, since the petitioner is senior to the 5th respondent, applying the Note to Rule 43B(1), the petitioner should have been preferred to the 5th respondent. Regarding the post of L.G. Hindi Teacher given to the 6th respondent, the petitioner would contend that the petitioner is entitled to be considered in accordance with the seniority as between the w.p.c.14473/05 4 UPSAs and L.G. Hindi Teachers in so far as if that claim is not considered, the petitioner would have to remain as UPSA for ever, without any chance for promotion as H.S.A., since it would always be the L.G. Hindi Teacher who would be preferred for appointment as H.S.A. (Hindi). Therefore, according to the petitioner, the petitioner should have been considered for appointment to the post of L.G. Hindi Teacher vacated by the 5th respondent instead of the 6th respondent. 4. The respondents have filed counter affidavits disputing the contentions of the petitioner. According to them, going by Rule 43B, language teachers have first preference for being considered for promotion to the post of H.S.A. and only if there is no L.G. Language teacher, other categories mentioned in Rule 43B can even be considered for promotion. Therefore, according to the respondents, the promotion of the 5th respondent to the post of H.S.A. (Hindi) is perfectly in accordance with the rules and cannot be challenged by the petitioner who has no preferential claim in respect thereof. Regarding the post of L.G. Hindi Teacher, the respondents would contend that the 6th respondent being a Rule 51A claimant, she has to be preferred to the petitioner who has no such preferential claim for the post of L.G. Hindi Teacher. 5. I have considered the rival contentions in detail. 6. Rule 43B of Chapter XIV A of the KER reads thus: w.p.c.14473/05 5 “43.B. (1) Notwithstanding anything contained in rule 43, posts of full time High School Assistants in a particular Language shall be filled up by promotion in the following order of preference: (i) Lower Grade Language Teachers who have the prescribed qualifications in that Language for promotion to the post of High School Assistants in that language at the time of occurrence of the vacancy and who had given option in writing as per G.O (Ms).No.612/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. (2) If qualified teachers as mentioned in sub-rule (1) are not available in schools under the same Educational agency for promotion to the post of High School Assistants in that language, qualified candidates from out side may be appointed to that post.” On a reading of the same, I do not find any support therein for the contention raised by the petitioner. If the contention raised by the petitioner that if candidates are available in more than one category mentioned in Rule 43B, going by the Note, promotion has to be made in accordance with the seniority of all persons inter-se in all categories, then, the preference given in 43B (1) would be totally meaningless. Note to Rule 43B(1) would only mean that among more than one w.p.c.14473/05 6 candidate in each category mentioned in 43B(1) promotion shall be based on seniority. There cannot be consideration of inter se seniority between the persons in the six categories mentioned therein for that purpose. Once there is an L.G. Language Teacher available for promotion, that teacher has to be preferred first to the exclusion of other five categories mentioned therein. The petitioner belongs to the fourth category and, as such, she cannot claim preference over the 5th respondent, who has a better claim than the petitioner under Category (i). As such, I do not find any merit in the first contention of the petitioner. 7. Regarding the second point, I note that the 6th respondent obtained a 51A claim in view of her appointment as an L.G. Hindi Teacher in a leave vacancy which arose on 10.9.2002. Of course, the petitioner had requested the manager to appoint the petitioner in that vacancy. But unfortunately for the petitioner, the petitioner did not pursue that request. Had the petitioner pursued her request, I could have held that the manager was bound to consider the application of the petitioner also for appointment to the post of L.G. Hindi Teacher as a direct recruit, like any other qualified person. The manager could not have rejected the application of the petitioner, simply because the petitioner was working as a UPSA in the school and the post of UPSA carries the same scale of pay as L.G Hindi Teacher. As I have already w.p.c.14473/05 7 stated, the petitioner did not choose to pursue her request for appointment to that post. She again resurrected her claim only in Ext.P3 dated 13.6.2003, almost an year later. As such, that claim of the petitioner cannot now be considered validly. Then as between the petitioner and the 6th respondent for the post of L.G. Hindi Teacher, the 6th respondent has a better claim as a Rule 51A claimant. Therefore, the petitioner cannot have a better claim for the post of L.G. Hindi teacher as against the 6th respondent. As such, the second contention of the petitioner also fails. However, in case any further vacancy of L.G. Hindi Teacher arises in the school and the petitioner requests for being considered for that post, the manager is bound to consider her application as a direct recruit along with other eligible candidates. Such right of the petitioner can be denied only if a candidate having preferential claim under any of the rules in Chapter XIV-A also applies. With the above observations, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.14473/05 8