IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 WP(C).No. 27045 of 2010(E) -------------------------------- PETITIONER: -------------- T.R.HEMALATHA, W/O.G.SUDHARAKARAN, AGED 41 YEARS, UPSA, D V M N N M H S SCHOOL, MARANALLOOR, (VIA) NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ----------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, KILLIPPALAM, TRIVANDRUM-16. 4. THE DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA, POST NEYYATTINKARA, TRIVANDRUM DISTRICT-695 121. 5. THE MANAGER, D V M N N M H S SCHOOL, MARANALLOOR-695 121, (VIA) NEYYATTINKARA, TRIVANDRUM DISTRICT. 6. THE HEADMASTER, D V M N N M H S SCHOOL, MARANALLOOR-695 121, (VIA) NEYYATTINKARA, TRIVANDRUM DISTRICT. WP(C).No. 27045/2010 7. SMT.P.R.SREEJA, HIGH SCHOOL ASSISTANT (ENGLISH), D V M N N M H S SCHOOL, MARANALLOOR-695 121, (VIA) NEYYATTINKARA, TRIVANDRUM DISTRICT. ADDL. R8 SRI. MANOJ KUMAR, MADHAVA VILASAM, MALAYIKKADA P.O. MANCHAVILAKAM - 695 503, NEYYATTINKARA TRIVANDRUM DISTRICT. (ADDITIONAL 8TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 19.11.2011 IN I.A. 14977/2010). BY ADVS. SRI.K.JAJU BABU FOR R7 SRI. BRIJESH MOHAN FOR R7 SMT.M.U.VIJAYALAKSHMI FOR R7 SRI.G.S.REGHUNATH FOR R5 SMT. NISHA BOSE, GOVERNMENT PLEADER FOR R1 TO R4. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.27045/2010 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF APPOINTMENT ORDER AND APPROVAL THEREOF BY THE District Educational Officer DATED 3.8.09. EXT. P2 : COPY OF JUDGMENT OF THIS COURT IN WP(C) 36664/07 DTD. 3.7.09. EXT. P3 : COPY OF PETITION FILED BEFORE GOVT. DTD. 9.9.09. EXT. P4 : COPY OF HEARING NOTE DTD. NIL. EXT. P5 : COPY OF LETTER No.B3/7253/09 OF District Educational Officer DTD. 30.1.10. EXT. P6 : COPY OF G.O.(Rt) 3700/10/G.EDN OF GOVT. DTD. 18.8.10. EXT. P7 : COPY OF G.O.(Ms) 275/99/G.EDN OF GOVT. DTD. 9.11.99. EXT. P8 : COPY OF DECISION REPORTED IN 2007(2) KLT SN 63 CASE 85 DTD. 14.7.06. EXT. P9 : COPY OF DECISION REPORTED IN 2009(4) KHC 296 (DB) DTD. 30.9.09. EXT. P10 : COPY OF DECISION REPORTED IN 2009(4) ILR 205(KER.) DTD. 17.9.09. 7TH RESPONDENT'S EXHIBITS: EXT. R7(a) : COPY OF APPOINTMENT ORDER DTD. 13.12.06 ISSUED BY R5 IN FAVOUR OF R7. EXT. R7(b) : COPY OF BA DEGREE CERTIFICATE DTD. 31.1.01 ISSUED BY UNIVERSITY OF KERALA IN FAVOUR OF R7. EXT. R7(c) : COPY OF B.ED DEGREE CERTIFICATE DTD. 28.2.06 ISSUED BY UNIVERSITY OF KERALA IN FAVOUR OF R7. 5TH RESPONDENT'S EXHIBITS: EXT. R5(a) : COPY OF G.O.No.220/2005. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.27045 OF 2010 --------------------------------------- Dated this the 19th day of November, 2011. J U D G M E N T This writ petition is filed by the petitioner aggrieved by Ext.P6 order passed by the Government. 2. The petitioner claims that she is qualified to be appointed as H.S.A (English). A vacancy due to the resignation of one teacher arose in the school on 30.11.2005. It was filled up by direct recruitment, by appointing one Sri.Manoj from 02.01.2006. He left the school in December 2006 and thereafter, the 7th respondent was appointed as H.S.A (English) from 13.12.2006. 3. It is the case of the petitioner that the petitioner is a claimant under Rule 43 of Chapter XIV-A of Kerala Education Rules and therefore, the appointment of the 7th respondent cannot be justified. 4. Learned counsel for the petitioner submitted that the approval of appointment of the petitioner as U.P.S.A is from W.P.(C) No.27045/2010 2 02.06.2004 as evident from Ext.P1. Therefore, the petitioner was a rightful claimant for promotion. It is submitted that the petitioner's qualification is M.A in English and B.Ed in Natural Science and therefore, the petitioner will fit in with the alternate qualification for appointment as H.S.A (English). 5. Learned counsel appearing for the 7th respondent submitted that the petitioner is only a beneficiary of Ext.P2 judgment for sustaining the appointment of U.P.S.A. It is pointed out that as on the date of occurrence of vacancy, the petitioner was working as H.S.A (English) and not U.P.S.A in the school and there was a dispute regarding the said appointment which was ultimately settled by this Court by Ext.P2 judgment dated 03.07.2009. 6. A reading of Ext.P2 judgment will show that this Court found that the petitioner was not qualified for appointment as H.S.A (English) and ultimately, the appointment was set aside and this Court directed consideration of her appointment in the vacancy left by one Smt.Salini as U.P.S.A who was directed to be promoted as H.S.A (English) and it is only because of the W.P.(C) No.27045/2010 3 observations in the judgment, the petitioner could obtain the appointment as U.P.S.A. It is, therefore, submitted by the learned counsel for the 7th respondent that the petitioner cannot raise a retrospective claim under Rule 43 as the petitioner was not a Rule 43 claimant as on the date of appointment of the 7th respondent. The petitioner has filed a reply affidavit. A reading of Ext.P6 order passed by the Government shows the following: 7. Seven posts of H.S.A (English) were available from the academic year 2004-05 onwards as per the staff fixation orders. Against these seven posts, only five H.S.As(English) were working and two excess H.S.As in other subjects were adjusted in the remaining two vacancies. Sri.Abhilash was one among these five H.S.As (English). He resigned from service with effect from 30.11.2005 and one Sri.Manoj Kumar was appointed in that vacancy and he left the school on 28.11.2006. His appointment was not approved. The petitioner was accommodated in the post of U.P.S.A in the light of the observations made by this Court in Ext.P2 judgment. She is not a claimant under Rule 51A or W.P.(C) No.27045/2010 4 Rule 43 for the post of H.S.A (English) as on the date of appointment of the 7th respondent. Going by the report of the District Educational Officer, there were no claimants under Rule 43, 51A, 51B and 9A under the Management as on 13.12.2006. 8. Learned counsel for the petitioner while attacking the view taken by the Government submitted that the petitioner was available in the school. Even though at that time she was working as H.S.A (English), the Manager should have recognised her right. Evidently, a claim under Rule 43 is one for promotion. As on the date of appointment of the 7th respondent, the petitioner was not working as U.P.S.A in the school. She was already appointed as H.S.A (English) in the school which was the subject matter of litigation before this Court. At that point of time, the petitioner was pitted against one Smt.Salini who was a U.P.S.A having the qualification for promotion as H.S.A (English) and one Sri.Ani. This Court in paragraph 9 of Ext.P2 judgment upheld the claim of Smt.Salini for promotion under Rule 43 of Chapter XIV-A K.E.R. In the vacancy under direct recruitment W.P.(C) No.27045/2010 5 the respective qualification of petitioner and Sri.Ani were examined and it was held that petitioner is having B.Ed in Natural Science whereas Sri.Ani was having B.Ed in English. It was thus held that the petitioner cannot be considered for appointment. A direction was issued to promote Smt.Salini as H.S.A (English) and to approve the appointment of Sri.Ani. 9. Regarding the fate of the petitioner, this Court in paragraph 10 observed as follows: “The learned counsel for Hemalatha makes a fervent plea that the Manager may be directed to accommodate Smt.Hemalatha in the vacancy left by Salini on her promotion as HSA. I am sure that the Manager having put Smt.Hemalatha in this unenviable position, would do the needful for saving her from the predicament insofar as she is already beyond the upper age limit prescribed for appointment as HSA. This shall be done, as expeditiously as possible, at any rate, within one month from the date of promotion of Salini”. 10. Therefore, the impact of the said observations is only that the petitioner could get accommodation in the post of U.P.S.A left by Smt.Salini. If at all an appointment was secured by the petitioner as U.P.S.A, it is only pursuant to the judgment dated 03.07.2009. Even though the learned counsel for the W.P.(C) No.27045/2010 6 petitioner submitted that retrospective approval will help the petitioner to claim the post of H.S.A (English) in the vacancy which arose in 2006, I am not satisfied that on the peculiar facts of this case, such a claim could be advanced by the petitioner. Of course, the petitioner had obtained approval with retrospective date. But, as on the date of occurrence of vacancy she was already working as H.S.A (English) in the school. Any claim under Rule 43 will have to relate to the date of occurrence of vacancy. The change of circumstances now pleaded by her arose because of the impact of the judgment alone. The vacancy of U.P.S.A actually arose only when Smt.Salini was promoted. Therefore, it cannot be said that petitioner is a claimant under Rule 43 in the strict terms of the said Rule also. Therefore, the Government was right in entering a finding in Ext.P6 that as on the date of appointment of the 7th respondent, there was no claimant under Rule 43. The question whether the petitioner is therefore qualified for appointment as H.S.A (English) need not be gone into by this Court in this writ petition, even though such a contention has been raised by the Manager in the counter W.P.(C) No.27045/2010 7 affidavit. Evidently, the 7th respondent is qualified for appointment as H.S.A (English). 11. Learned counsel for the petitioner relied upon Exts.P8 and P9 judgments of this Court in support of the plea that being a Rule 43 claimant, the petitioner is entitled for appointment as H.S.A (English). A reading of Ext.P9 judgment in Writ Appeal No.1654/2009 will show that the appellant therein was appointed as U.P.S.A in a maternity leave vacancy from 06.06.2002 to 17.10.2002. A regular vacancy in the cadre of U.P.S.A arose on 02.09.2002. She obtained approval for the initial appointment by order dated 12.06.2003. In the meanwhile, the 1st respondent was appointed in the regular vacancy available. This Court upheld the right of the petitioner since the petitioner was continuing even though without approval. 12. The principle therein cannot have any application on the facts of this case. In Ext.P10 judgment also, what was considered by this Court is the right of a candidate who was working in a temporary vacancy of non teaching staff in an aided college to claim appointment in a regular vacancy. There cannot W.P.(C) No.27045/2010 8 be any application herein of those principles in the facts of this case. The facts herein are peculiar in that petitioner's appointment as U.P.S.A is only because of the observations made by this Court in Ext.P9 judgment. I do not find any reason to accept the argument of the learned counsel for the petitioner. In that view of the matter, I do not find any reason to interfere with the order Ext.P6. This writ petition is dismissed. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp