IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 W.A.No. 1645 of 2009 -------------------------------------- AGAINST THE JUDGEMENT IN WPC.27985/2008 Dated 03/07/2009 .................... APPELLANT//PETITIONER: -------------------- K. LEELAMMA, HEADMISTRESS, KUTTIKADU UPPER PRIMARY SCHOOL, KUTTIKADU P.O., KADAKKAL, KOLLAM DIST. BY ADV. SRI.LEGY ABRAHAM RESPONDENT(S)/RESPONDENTS: ----------------------- 1. SHRI D. JOHNKUTTY UPSA, 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, THIRUVANANTHAPURA -01. 3. THE DIRECTOR PUBLIC INSTRUCTION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -01. 4. THE DISTRICT EDUCATIONAL OFFICER, PUNNALUR. 5. THE ASSISTANT EDUCATIONAL OFFICER, CHADAYAMANGALAM. 6. THE MANAGER, KUTTIKADU UPPER PRIMARY SCHOOL, KUTTIKADU P.O., KADAKKAL, KOLLAM DISTRICT. R1 BY ADV. SRI.M.V.THAMBAN R2 TO R5 BY GOVT. PLEADER SMT. R. BINDU. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. No.1645 of 2009 ------------------------------ Dated this, the 29th day of July, 2009 JUDGMENT Balakrishnan Nair, J. The dispute raised in this appeal is concerning the claim for appointment to the post of Headmaster in the 6th respondent's school, in the vacancy which arose on 1.4.2005. The appellant and the first respondent are the rival claimants. Admittedly, the appellant is senior, but she obtained one of the obligatory qualifications, namely, Accounts Test (Lower) only after 1.4.2005. Though, she appeared for the test in January, 2005, its result was published only on 5.4.2005. If that be so, she got the said essential qualification for the post only on 5.4.2005. The first respondent, who is a duly qualified hand, was available for promotion on 1.4.2005, when the vacancy arose. It is settled position in law that the claim of the incumbent for promotion should be considered with reference to the qualification obtained on the date of occurrence of vacancy. This general principle has been incorporated in Rule 43 of W.A.No.1645 of 2009 - 2 - Chapter XIVA of the Kerala Education Rules by way of an amendment. Note (2) has been added to Rule 43, which reads as follows: “Promotion under this Rule shall be made from persons possessing the prescribed qualification at the time of occurrence of the vacancy”. In view of the above position, the claim of the first respondent for promotion as Headmaster has been rightly upheld. In the result, the Writ Appeal fails and it is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy) P.S. TO JUDGE.