A.R Geetha v. Director of Higher Education, Thiruvananthapuram; Manager, B S S H S Kollengode; K V Ravindran; State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938 ## **W.A.No. 254 of 2014 IN** ## **WP(C).37335/2010** AGAINST THE JUDGMENT IN WP(C) 37335/2010 of HIGH COURT OF KERALA DATED 18-03-2013 ## APPELLANT/PETITIONER: A.R GEETHA D/O.LATE DR A R MENON, AGED 50 YEARS, HIGHER SECONDARY SCHOOL TEACHER(ENGILISH)B S S H S S KOLLENGODE,PALAKKAD DIST, RESIDING AT “PRIYAMVADA",PULINKOOTTATHARA, KOLLENGODE, PALAKKAD DIST. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH RESPONDENTS/RESPONDENTS: 1 THE DIRECTOR OF HIGHER EDUCATION THIRUVANANTHAPURAM-695001 2. THE MANAGER - B S S H S S KOLLENGODE, (FORMERLY RAJA'S HIGH SCHOOL) KOLLENGODE, PALAKKAD DIST-678506 3. SRI K V RAVINDRAN H S S T (PHYSICS)B S S H S S KOLLENGODE, PALAKKAD DIST-678506 4. STATE OF KERALA REPRESENTED BY THE SECRETARY GENERAL, EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANTHAPURAM695001. R3 BY ADV. SRI.SAJAN VARGHEESE K. R3 BY ADV. SRI.LIJU. M.P R BY SRI.V.A.MUHAMMED R1 & 4 BY GOVERNMENT PLEADER MR. POAUL ABRAHAM VAKKANAL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & SHIRCY V.,JJ.** ## **==============================** ## **W.A. No. 254 of 2014** ## **==============================** ## **Dated this the 16[th] day of November, 2016** ## **JUDGMENT** ## **Antony Dominic,J.** The unsuccessful petitioner in W.P.(C) No.37335 of 2010 is the appellant. Although writ petition was filed with prayers to quash Exts.P9 and P13 and to direct the respondents to give her benefits accrued to her from 24.11.2000, having regard to the retirement of the appellant from service in the academic year 2015-16, the claim now raised is confined to her entitlement to be treated as HSST with effect from 14.2.2001. 2. The appellant was appointed as a UPSA in the school of the 2[nd] respondent with effect from 18.9.1989. Subsequently, she was promoted as HSA with effect from 2.7.1991. Still later, Higher Secondary Section was sanctioned to the school and a post of HSST (English) was WA 254/2014 2 created in the school in the academic year 2000-2001. It is also the case of the appellant that she obtained post graduation in English with effect from 24.11.2000 and was thus qualified for appointment as HSST (English). It is stated that in the meanwhile, the Government had imposed ban on appointment during the period from 15.11.2000 to 13.2.2001. It is on that basis that the appellant now claims that she ought to have been appointed as HSST with effect from 14.2.2001 on the lifting of the ban on 13.2.2001. 3. However, insofar as this claim now raised by the appellant is concerned, we find that in the judgment of the Apex Court in **M.M.Dolichan v. State of Kerala (AIR 2001 SC 216),** the Supreme Court had, inter alia, ordered that there shall be no further appointment from any source either in the private schools or in the Government schools for a period of three months. The Supreme Court also ordered that the State Government shall bring into force WA 254/2014 3 the statutory recruitment rules for appointments in the Higher Secondary Section in the Schools within the three months period specified by it, where after recruitment to the vacancies in the Higher Secondary Grade could be dealt with in accordance with the Statutory Rules to be implemented. Further it was also ordered that if for any unforeseen circumstances, Statutory Rules cannot be notified and brought into force within the aforesaid period of three months and there exists any necessity for immediate recruitment of teachers, then it would be open for the parties to move the Supreme Court for appropriate directions. 4. It is the admitted case of the parties that in pursuance of the orders of the Supreme Court mentioned above, the Rules contained in Chapter XXXII of K.E.R. were notified on 12.11.2001 and before that none obtained any order from the Supreme Court for filling up any post. As per WA 254/2014 4 Rule 4 of Chapter XXXII of K.E.R., the post that was created in the academic year 2000-2001 could be filled up in the bytransfer category of 25% only by transferring qualified HSAs. The qualification laid down in Rule 6 included pass in the State Eligibility Test. The appellant cleared State Eligibility Test only in December, 2002 and was appointed as HSST in the by-transfer quota only with effect from 29.1.2003. It is in that post that she continued till her retirement during the academic year 2015-2016. 5. Therefore, as on 14.2.2001, the date from which the appellant claims her entitlement to be treated as HSST, not only that the ban on appointment as a result of the Apex Court order was in force, but also that she became qualified for appointment in terms of the Special Rules only in December, 2002. In such a situation, she could not have got appointed as HSST with effect from 14.2.2001 as claimed by her. Insofar as her claim that the third WA 254/2014 5 respondent, her junior was promoted as Principal with effect from 2.2.2005 is concerned, there also, so long as she was only an HSST (Junior), she was not in the feeder category post and could not have aspired for promotion to the post of Principal. 6. Learned counsel for the appellant placed reliance mainly on Annexure A Government Order dated 7.5.2007 to contend that during the ban period, several persons were appointed and that appointments of such persons were approved by the Director. A reading of Annexure-A Government Order shows, the submissions of the learned counsel to be factually correct. However, so long as the ban order imposed by the Government followed by the Supreme Court order were in force, even if the irregular appointments were made and such appointments were approved by the Director, such acts of the officers being illegalities, the same cannot be relied on by the appellant as a precedent to claim WA 254/2014 6 parity. Therefore, we are not in a position to direct the respondents to extend the benefit of such illegality to the appellant also. 7. In such circumstances, since as on 14.2.2001, the appellant was unqualified, who could not have been appointed, the learned Judge cannot be faulted for declining the reliefs in the writ petition. We cannot find any reason to interfere with the judgment under appeal. The appeal fails and it is dismissed. **Sd/ANTONY DOMINIC JUDGE** Sd/- **SHIRCY V. JUDGE** **ks.** True copy P.S. (Hr.Gr.)To Judge WA 254/2014 7 WA 254/2014 8