Smitha Johny vs Josny Varghese And Ors

2. As mentioned hereinabove, the Respondent No.1, writ petitioner, who was serving in St. George's High School, Arakkunnam, as Upper Primary School Assistant, hereinafter referred to as "UPSA", claimed promotion to a vacancy, which, according to her, had occurred in HSA (English) on 1st April, 2005. On the other hand, the Petitioner was appointed as Lower Primary School Assistant, hereinafter referred to as "LPSA", on 21st June, 2000, in the said School and was serving in such capacity throughout. At the time of entering into service, the Petitioner was a graduate in English 3 and had also obtained Teachers' Training Certificate (TTC). Subsequently, the Petitioner also acquired a B.Ed. degree in English from the Kerala University.

4. Consequently, with effect from 1st April, 2005, a vacancy arose in the post of HSA (English) and according to the writ petitioner/Respondent No.1, such vacancy was required to be filled up by a qualified English Teacher. The Manager of the School, however, without understanding the Government Order correctly, requested recall of the Respondent No.4, a protected HSA (Social Science), but such request was turned down. Thereupon, the writ petitioner/Respondent No.1 submitted a representation that she be promoted to the said post under Rule 43 of Chapter XIV-A of the Kerala Education Rules. Although, according to the writ petitioner/Respondent No.1, no sanction was required for the said purpose and the Manager was free to promote her, the Respondent No.4, Smt. Valsamma Pathrose, was recalled and she rejoined her duties. In the writ petition the Respondent No.1, therefore, prayed for a writ in the nature of Mandamus or direction commanding the respondents, 5 the Deputy Director (Education), Civil Station, Kakkanad, the District Educational Officer, Ernakulam, Kerala, and the Manager of the School to promote her to the post of HSA (English), as on the date of the occurrence of the vacancy on 1st April, 2005, she was the only qualified candidate amongst the UPSA Cadre, who could be given such promotion. A further prayer was made for a writ in the nature of Mandamus to command the aforesaid respondents not to post Valsamma Pathrose in the vacancy which had arisen in the post of HSA (English), with effect from 1st April, 2005.

5. The writ petition filed by the Respondent No.1 was rejected by the learned Single Judge on 27th July, 2005, upon holding that since Smt. Alice Mathew was promoted as Head Mistress on 31st March, 2005 while she was holding the post of HSA (Social Science), the vacancy created on account of her promotion was also to be treated as that of HSA (Social Science), notwithstanding the fact that she 6 had been functioning as HSA (English). Accordingly, Valsamma Pathrose, a protected HSA (Social Science) teacher working in a Government School would have to be recalled, as otherwise, the Manager would have to appoint a new teacher in the resultant vacancy of UPSA, if the Respondent No.1 was promoted as HSA (English).

6. Aggrieved by the order of the learned Single Judge, the Respondent No.1 filed a writ appeal, being WA No.1925/2005. At this stage it may be pointed out that on 15th June, 2005, the Petitioner herein got herself impleaded as Respondent No.5 in the writ petition filed by the Respondent No.1 herein claiming that the actual date of vacancy, was 15.7.2005, the date on which the staff fixation order was to take effect, and that she was fully qualified and was the senior-most in the cadre of HSA (English) for promotion as HSA (English) in the vacancy caused by the promotion of Smt. Alice Mathew to the post of Head Mistress. According to 7 her, although, she may not have possessed the requisite B.Ed. degree on 1st April, 2005, when Smt. Alice Mathew was promoted to the post of Head Mistress, subsequently she acquired the said qualification when the results of the B.Ed. examination for the year 2005 was published by the Kerala University on 29th June, 2005.

7. The Writ Appeal filed by the Respondent No.1 was allowed on 20th June, 2006, upon holding that when the vacancy occurred on 1st April, 2005, the Petitioner herein did not possess the B.Ed. qualification, though she may have been senior to the writ petitioner/Respondent No.1 and that it was incorrect on the part of the Petitioner to suggest that the vacancy had arisen from the date of the staff fixation order. The Division Bench, accordingly, dismissed the claim of the Petitioner herein and held that the vacancy was of HSA (English). Furthermore, in view of the Government Order dated 7th January, 2002, the Manager was not 8 required to fill up the post of HSA with a protected teacher. However, the Division Bench also held that since Valsamma Pathrose had rejoined service, it would not be proper to upset the arrangement. Accordingly, the Division Bench indicated as follows :

14. Hence, the next question is whether a vacancy of HSA (English) arose in the School on 1st April, 2005, as contended by the Respondent No.1. According to the staff fixation for the academic year 2004-05, there was only one post of HSA (Social Science) in the St. George High School, Arakkunnam. As against one sanctioned post, there were two teachers, Smt. Alice Mathew and Smt. P.P. Leelamma, working as HSA (Social Science). Since Smt. Alice Mathew was senior to Smt. P.P. Leelamma, Smt. Alice Mathew was rightly accommodated in the only post of HSA (Social Science). Since there was a sanctioned post of HSA (English) and since, as per Annexure P1 G.O.(MS) No.11/2002/G.Edu. dated 7th January, 2002, the creation of the new cadre of HSA (English) should not cause retrenchment of existing HSAs in the core subjects, the management and the education authorities allowed Smt. P.P. Leelamma to continue in the School against the sanctioned post of HSA (English), though she was not qualified for 16 the post of HSA (English). Later, in the vacancy of Headmistress which arose on 1st April, 2005, Smt. Alice Mathew, HSA (Social Science) was promoted w.e.f. 1st April, 2005. Consequent on the said promotion of Smt. Alice Mathew as Headmistress, the post of HSA (Social Science) held by her was vacated by her w.e.f. 1st April, 2005. But a vacancy of HSA (Social Science) did not actually arise, as Smt. P.P. Leelamma was already available in the School to occupy the post of HSA (Social Science) vacated by Smt. Alice Mathew. If Smt. P.P. Leelamma was accommodated in the only post of HSA (Social Science) w.e.f. 1st April, 2005, the only vacancy available as on 1st April, 2005 was in the post of HSA (English). Thus, a vacancy of HSA (English) arose in the School on 1st April, 2005. Smt. Valsamma Pathrose, who was not qualified for the post of HSA (English) and who was working as HSA (Social Science) in a Government School as a protected teacher, could not be accommodated in the 17 post of HSA (English). During the academic year 2004-05, Smt. P.P. Leelamma, HSA (Social Science) had been allowed to continue in the School against the post of HSA (English) in terms of Annexure P1 Government Order dated 7th January, 2002 to avoid her retrenchment. Such a benefit could not be claimed by Smt. Valsamma Pathrose who was working in another School and who did not face any retrenchment on account of the creation of the cadre of HSA (English). Thus, the post of HSA (English) fell vacant on 1st April, 2005, when Smt. Alice Mathew, HSA (Social Science) was promoted as Headmistress w.e.f. 1st April, 2005 and Smt. P.P. Leelamma was accommodated in the resultant vacancy of HSA (Social Science). When the vacancy of HSA (English) arose on 1st April, 2005, the Respondent No.1, Smt. Josny Varghese, was the only U.P.S.A. qualified for the post of HSA (English) and hence she was entitled to be promoted against the said vacancy. Though the Petitioner Smt. Smitha Johny 18 was senior to the respondent, she was not qualified for the post of HSA (English) as on 1st April, 2005 and hence, she had no claim for promotion to the said vacancy.

8. The review petition filed for reviewing the judgment was also dismissed on 2nd August, 2006.

17. In our view, the decision of the Division Bench of the High Court does not call for any interference and the Special Leave Petition is, therefore, dismissed.

18. There will, however, be no order as to costs.