IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 WP(C).No. 21339 of 2008(M) -------------------------- PETITIONER: --------------- AJITHA.K, AGED 44, W/O.LAKSHMANAN, HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), AZHIKODE HIGH SCHOOL, P.O. AZHIKODE, KANNUR. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ----------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR.P.O, KANNUR-2. 4. THE DISTRICT EDUCATIONAL OFFICER, KANNUR.P.O, KANNUR-2. 5. K. MEERA, UPPER PRIMARY SCHOOL ASSISTANT, AZHIKODE HIGH SCHOOL, P.O. AZHIKODE, KANNUR. 6. THE MANAGER, AZHIKODE HIGH SCHOOL, P.O. AZHIKODE, KANNUR DISTRICT. BY ADV. SRI.P.K.RAVISANKAR FOR R5 GOVT.PLEADER SRI.T.T.MOHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.21339/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER. EXT.P2: TRUE COPY OF THE ORDER NO.K.DIS.B3/5941/99 OF THE DIST.EDL.OFFICER. EXT.P3: TRUE COPY OF THE ORDER NO.K.DIS.B4-25085/99 OF THE DY.DIRECTOR OF EDN. EXT.P4: TRUE COPY OF THE ORDER NO.EM3-26226/2007/DPI/D.DIS. OF THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF THE G.O(RT).NO.2273/08/G.EDN. OF THE GOVERNMENT. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 21339 OF 2008 M ==================== Dated this the 16th day of September, 2008 J U D G M E N T Petitioner was appointed as a Physical Education Teacher w.e.f. 1/12/88 and the 5th respondent commenced service as UPSA from 2/6/92. Subsequently, a vacancy in the category of HSA(SS) arose w.e.f 1/6/99. On the basis that the petitioner was qualified and eligible in terms of Rule 43 of Chapter XIV A of the KER, petitioner was appointed to that vacancy. According to the petitioner, her appointment was approved by the DEO as per Ext.P1. 2. Against the appointment of the petitioner, the 5th respondent approached the DEO, but however, her claim was rejected by Ext.P2. A revision was filed to the Deputy Director and that was also rejected by Ext.P3. The 5th respondent pursued the matter before the DPI and by Ext.P4, the revision filed by the 5th respondent was allowed and the DPI set aside the appointment of the petitioner. The petitioner moved the Government in revision and that was rejected by Ext.P5 and it is seeking to quash Exts. P4 and P5, this writ petition has been filed. 3. Counsel for the petitioner refers me to Rule 43 of Chapter XIV WPC 21339/08 :2 : A KER and contends that admittedly, the petitioner was senior and that in terms of Rule 43, 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. It is stated that so long as there is no feeder category prescribed in the Rule, specialist teacher like the petitioner satisfying the seniority criteria is entitled to be promoted irrespective of the availability of UPSA, LPSA etc. On this basis, it is argued that the appointment of the petitioner to the vacancy of HSA(SS) which arose on 1/6/99 cannot be faulted. 4. On the other hand, the learned counsel for the 5th respondent contends that in terms of note to Rule 43, a teacher in a lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of post provided he has the prescribed qualification and if there is no teacher with the prescribed qualification in the lower grade of pay of the category of post to which promotions are to be made. It is stated that since the 5th respondent is qualified and is available in the lower grade of pay, the petitioner is not eligible for the benefit of Rule 43 as claimed by her. It is also contended that the seniority referred to in Rule 43 has to be the seniority as per the seniority WPC 21339/08 :3 : list maintained as required under Rule 34 of Chapter XIV A read with Rule 3 of Chapter 23. 5. As already noticed, it was by Ext.P4 order of the DPI that the appointment of the petitioner was invalidated. This order has been confirmed by Ext.P5 order passed by the 1st respondent. The reasoning given by the DPI in Ext.P4 is as follows: The case has been examined in detail. Rule 34(b) states that in the case of Upper Primary schools and Lower Primary schools a combined seniority list of teachers if any specified in clause (iii), (iv) and (v) of Rule 3, Chapter XXIII KER shall be prepared ie UPSA, LPSA and language teachers. Specialist teachers are not included in this seniority list. As per note (1) Rule 43 Chapter XIV A KER, a teacher in lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of post, if he has the prescribed qualification and if there is no teacher with the prescribed qualification in the lower grade of pay of the category of post to which promotions are to be made. In Rule 43 B Chapter XIV A KER specialist teachers are placed below UPSA and LPSA in the order of preference for promotion to the post of H.S.A. (Language). Even though in the present case the claim is against the post of H.S.A. core subject, when read with note (1) Rule 43 Chapter XIV A KER, it is clear that qualified specialist teachers are eligible for promotion as H.S.A only in the absence of UPSA and LPSA. Hence Smt.K.Meera should have been promoted and appointed against the vacancy of H.S.A.(SS) with effect from 1.6.99 instead of Smt.Ajitha. Smt.Ajitha has been working as H.S.A. With effect from 1.6.99. Smt.K.Meera has worked as H.S.A. only with effect from2.6.2004. In the circumstance, Smt.K.Meera is allowed notional promotion as H.S.A.(SS) from 1.6.99 to 1.6.2004. The promotion appointment of Smt.K.Ajitha as H.S.A (SS) is revised with effect from 2.6.04 directing no recovery of salary paid as H.S.A. from 1.6.99 to 1.6.2004. The District Educational Officer, Kannur will take necessary action accordingly. The appeal of Smt.K.Meera is disposed of as above invoking the power conferred under Rule 8 A WPC 21339/08 :4 : Chapter XIV A KER. 6. On appreciating the reasons stated in Ext.P4 and examining the same in the context of Rule 43 Chapter XIV A, I am not persuaded to take a view different from the view taken by the DPI in Ext.P4, which has been confirmed in Ext.P5. As rightly pointed out Specialist Teacher is not included in the seniority list of UPSA, LPSA or language teachers and note (1) Rule 43 also has been relied on. It is on that basis that the claim of the 5th respondent has been upheld. In Ext.P5 again, the Government have also taken note of these aspects and they have also compared the training qualification for appointment as UPSA and has stated that the same is different from what is prescribed for specialist teacher. In my view, the reasons stated in Exts. P4 and P5 are unassailable and the conclusion in these two orders are liable to be upheld. I do not find any merit in this writ petition. Writ petition is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp