IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 WA.No. 321 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.7327/2008 Dated 18/02/2011 .................... APPELLANT(S): / PETITIONER -------------- THE MANAGER, EVANS SCHOOL, PARASSALA THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.BABU VARGHESE, SENIOR ADVOCATE SRI.JOHNSON T. JOHN RESPONDENT(S): / RESPONDENTS --------------- 1. P.J.USHA KUMARI, H.S.A (SSA) EVANS SCHOOL, PARASSALA 695 002. 2. THE ASST EDUCATIONAL OFFICER PARASSALA 695 002. 3. THE DISTRICT EDUCATIONAL OFFICER PARASSALA 695 002. 4. THE DEPUTY DIRECTOR OF EDUCATION THIRUVANANTHAPURAM 695 001. 5. THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM 695 001. 6. THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL EDUCATION GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 7. S.USHA KUMARI HEADMISTRESS, EVANS U.P.SCHOOL, PARASSALA 695 002 MS.T.B.REMANI, GOVERNMENT PLEADER MR.B.RAGHUNATH MR.P.K.MANOJ KUMAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/03/2011, ALONG WITH WA NO.324/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ---------------------------------- W.A.Nos.321 & 324 of 2011 --------------------------------- Dated, this the 7th day of March, 2011 J U D G M E N T Ramachandran Nair, J. Connected Writ Appeals, one filed by the Manager of the School and the other by the senior most teacher holding charge of the Head Mistress, pertain to the claim of another teacher in the very same school with higher qualifications for appointment to the post of Head Mistress. 2. We have heard learned counsel appearing for appellants in both the Writ Appeals and also the learned Government Pleader who took notice on admission and argued the matter for the Government and educational authorities. Parties and documents referred in this judgment are with reference to W.A.No.321/2011, which is filed by the Manager of the School. 3. Appellant's School is a combined Upper Primary School and High School. A retirement vacancy of high school teacher arose in the school on 31/03/2006. Since the post had to be filled up with effect from 01/04/2006, the appellant appointed the 1st respondent W.A.Nos.321 & 324 of 2011 -2- on promotion from the UP school because she was holding the required educational qualifications, namely, Graduation with B.Ed degree to be appointed on promotion as high school teacher. When the appellant issued letter of appointment to the 1st respondent promoting her from the UP school to the High School as teacher, she wrote Ext.P2 letter requesting the appellant to allow her to continue as UP school teacher until reopening of the School in the next academic year i.e. 2006-07. It is seen from Ext.P2 that the 1st respondent has specifically pointed out to the appellant that no appointment of teachers other than Head Masters could be made during vacation. Even though the relevant Rule is not stated by her in Ext.P2, both sides brought to our notice Rule 7A(2) of Chapter XIV A of the Kerala Educational Rules (hereinafter referred to as the Rules for short) as the Rule prohibiting appointment of teachers during vacation. Even though the Head Master of the UP School also retired from the appellant's School on 30/04/2006 leaving vacancy of the Head Master to be filled up with effect from 01/05/2006, the appellant instead of considering the 1st respondent for promotion to the post of Head Mistress, appointed the 7th respondent who was the senior most teacher of the School as the Head Mistress. In this W.A.Nos.321 & 324 of 2011 -3- context, it is to be pointed out that by virtue of the Graduation and B.Ed degree the 1st respondent has, she has preference in appointment as Head Mistress in the UP School by virtue of Rule 45 of Chapter XIVA of the Rules. The appointment of the 7th respondent by the appellant as Head Mistress of the UP school in preference to the 1st respondent was questioned by her before the Assistant Educational Officer, who declined to approve the 7th respondent's appointment by the appellant as Head Mistress. Even though the appellant was successful in revision filed before the Director of Public Instructions, the Government on further revision reversed the order of the DPI vide Ext.P20 upholding the claim of the 1st respondent with direction to the appellant to appoint the 1st respondent, who has B.A & B.Ed Degrees, as Head Mistress of the UP School by virtue of the provision contained in Rule 45 of Chapter XIVA of the Rules above stated. It is against this order of the Government, the appellant and the 7th respondent filed Writ Petitions before this Court. The learned Single Judge however upheld the Government's order and dismissed the Writ Petitions against which these Writ Appeals are filed. 4. Learned Senior Counsel appearing for the appellant W.A.Nos.321 & 324 of 2011 -4- Manager of the School submitted that Rule 7A of Chapter XIVA of the Rules which refers to appointment of temporary teachers, does not apply to appointment of teachers on regular basis including promotion post from UP school teacher to High School teacher. In this context, he has referred to note 2 to Rule 43 of Chapter XIVA of the Rules, which provides for filling up of higher posts with qualified persons with effect from the date on which vacancy arose in the higher grade and submits that going by Rule 43, the 1st respondent is eligible to be promoted as High School Teacher from the post of UP School Teacher with effect from the date on which the High School Teacher's post fell vacant i.e. on 01/04/2006. He has also relied on two Single Bench judgments of this Court rendered in OP No.16838/97 & WP(C) No.18545/2004 & connected case, decisions of the Supreme Court in Smitha Johny v. Josny Varghese and others, reported in ILR 2010(4) Kerala 533 and in Jenany J.R. v. S.Rajeevan & Ors., reported in AIR 2010 SC 1622. 5. Shri.B.Reghunath, learned counsel appearing for the 7th respondent, who has filed the connected Writ Appeal, supported the contentions raised by the learned Senior counsel for the appellant Manager. He has also pointed out that the 7th respondent is the W.A.Nos.321 & 324 of 2011 -5- senior most teacher of the School eligible to be promoted as Head Mistress of the U.P.School in the vacancy that arose on 01/05/2006 but for the preferential claim of the 1st respondent based on the then prevailing Rule 45, which recognises entitlement of teachers with Graduation and B.Ed degree for appointment to the post of Head Master of the UP School. The arguments advanced by the appellant and the 7th respondent before the learned Single Judge were turned down by him holding that Rules 7A(2) & (3) are mandatory, and so much so, the vacancy of the Head Master that arose before the actual promotion of the 1st respondent should go to her because of the higher educational qualifications i.e. B.A. and B.Ed degrees she had over the 7th respondent by virtue of Rule 43 of the Rules. 6. On going through the judgments relied on by the appellant Manager and the 7th respondent, we notice that none of the Courts have considered the real impact and scope of Rules 7A(2) and (3) of the Rules. On the other hand, what was concluded in these decisions is that a person eligible to be promoted is entitled to the promotion post with effect from the date on which the vacancy arose in the higher grade or post. In this case, the claimant W.A.Nos.321 & 324 of 2011 -6- for the post of HSA, which is promotion post from the post of UPSA, is the 1st respondent, who does not have a case that she is not given promotion as HSA with effect from the date on which the post of HSA fell vacant, which was in fact offered to her by the appellant Manager. On the other hand, her case is that by virtue of the embargo contained in Rule 7A(2), a vacation staff, namely teacher, cannot be appointed in any school during vacation, and in compliance with the Rule, she requested the Manager to defer her appointment till the beginning of the next academic year i.e. from 01/06/2006 onwards. Probably the 1st respondent made such a request as she was aware of the vacancy of the Head Mistress arising in the UP School with effect from 01/05/2006, which she obviously had desired to get. Therefore, the only question to be considered is whether the claim of the 1st respondent is tenable and if so the learned Single Judge was right in confirming the decision of the Government declaring the 1st respondent's eligibility. 7. We notice an apparent conflict on the scope of Rule 43 as explained by this Court in different judgments and by the Supreme Court to the effect that a promotion post has to be filled up with effect from the date on which the vacancy arose and Rule W.A.Nos.321 & 324 of 2011 -7- 7A(2) which imposes an embargo on managements from appointing vacation staff, namely teachers, during vacation. Learned Senior counsel for the Manager contended that since the UP school teacher's entitlement to be promoted as high school teacher on the date on which the vacancy of the teacher arose in the High School is recognised, then necessarily, the scope of Rule 7A(2) is to limit it to appointment of temporary teachers, or in other words, Rule 7A(2) does not apply to appointment of teachers on promotion basis. Learned Government Pleader, on the other hand, contended that the embargo under Rule 7A(2) is unconditional and it applies to appointment of every teacher during vacation irrespective of whether it is an appointment by promotion or whether it is a regular appointment or a temporary appointment. 8. Before proceeding to decide this issue, irrespective of whether Rule 7A(2) applies to appointment of permanent teacher or not, and irrespective of our interpretation to the scope of the said Rule, we feel the 1st respondent is entitled to be posted as Head Mistress for the simple reason that there is nothing in the Rule to compel a qualified UP school teacher with B.A and B.Ed degrees to join as high school teacher merely because the Manager has offered W.A.Nos.321 & 324 of 2011 -8- such a post to the teacher. In fact, in this case what the 1st respondent has done is that she vide Ext.P2 requested the appellant to defer her appointment as High School teacher for two months by allowing her to continue as UP School teacher, which was in fact not declined by the appellant. As already pointed out as above, the 1st respondent is under no compulsion to accept the promotion offered to her from the post of UP school teacher to that of the high school teacher. In other words, she has the option either to accept the post of HSA or to claim the post of Head Mistress, which fell vacant immediately in the UP school with effect from 01/05/2006. So much so, we feel when the appointment of the 1st respondent from the UP school teacher to High School teacher by way of promotion was deferred on her request by the appellant, it was his duty to comply with Rule 45, by which the 1st respondent has a preferential claim for appointment as UP school Head Mistress in the vacancy that arose from 01/05/2006 onwards. So much so, irrespective of whether Rule 7A(2) applies to appointment of permanent teachers by promotion or otherwise during vacation or not, the 1st respondent's claim to the post of Head Mistress is independently tenable by virtue of operation of the then existing Rule 45, under W.A.Nos.321 & 324 of 2011 -9- which admittedly, the 1st respondent has a preferential claim over the 7th respondent for appointment as the Head Mistress of the UP School. So much so, we uphold the judgment of the learned Single Judge, who upheld Ext.P20 order of the Government issued in favour of the 1st respondent. 9. Since the scope of Rule 7A(2) has come up for our consideration and since the two Single Bench judgments referred to above do not deal with the issue, we feel we should clarify the position. Rules 7A(2) and (3) are extracted hereunder for easy reference:- “7A (1) xxxxx (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. (3) Vacancies, the duration of which is less than one academic year, shall not be filled up.” The position canvassed by the learned Senior counsel appearing for the appellant as well as the learned counsel appearing for the 7th respondent is that the above Rule applies only to temporary posts of teachers in the school and does not apply to promotion posts and regular appointments. Learned Government Pleader appearing for the State contended that the Rule is a complete embargo against appointment of teachers during vacation W.A.Nos.321 & 324 of 2011 -10- and only non vacation staff and Head Masters could be appointed during the vacation. We are in agreement with the contention of the learned Government Pleader because the purpose of the Rule is to avoid Government paying salary and financial benefits to teachers appointed during vacation but remain unemployed until reopening of the educational institution. The Rule does not make any distinction between those appointed directly and those came on promotion from lower grades. If the post has to be filled up through promotion certainly the eligibility will be with effect from the date of arising the vacancy, but appointment could be made by virtue of the prohibition under Rule 7A(2) only with effect form the date of reopening of the School. So much so, even if the 1st respondent opted to become as HSA on promotion from the UP school, she would have been entitled to be appointed only with effect from 01/06/2006 by virtue of Rule 7A(2) above stated. The contention raised by the appellant with reference to Sub Rule (3) of Rule 7A that the prohibition is only against the appointment of temporary teachers is unacceptable because under the Rule, temporary appointment is impermissible during vacation at all. So much so, in our view, Rule 43 which recognises the right of promotion to a W.A.Nos.321 & 324 of 2011 -11- person to the higher grade from the date on which the vacancy arises in the higher post is subject to Rule 7A(2) in the sense that so far as teachers eligible for promotion during vacation are concerned, the effective date of posting to the promotion post by virtue of Rule 7A(2) will be the date of commencement of the next academic year. In other words, a UP School teacher claiming promotion to the post of High School Teacher on account of vacancy that arises during vacation in the School can claim appointment only with effect from the beginning of the next academic year. However, this does not effect the relative claim of those becoming eligible for promotion. In other words, appointment should be made with reference to the date on which the person becomes eligible for promotion, which means that first becoming eligible for the post arising in vacation is the first to be considered for appointment. In this view of the matter, we uphold the judgment of the learned Single Judge and dismiss these Writ Appeals. (C.N.RAMACHANDRAN NAIR, JUDGE) (BHABANI PRASAD RAY, JUDGE) jg