C.M. Stella v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941** ## **WA.No. 107 of 2019** **AGAINST THE JUDGMENT DATED 3.12.2018 IN WP(C) 30873/2013 OF HIGH COURT OF KERALA** ## **APPELLANT:** **C.M.STELLA AGED 47 YEARS HIGHER SECONDARY SCHOOL TEACHER (MATHS), ST.JOSEPH'S HIGHER SECONDARY SCHOOL, MATHILAKAM, THRISSUR DISTRICT - 680 685.** **BY ADVS. SRI.T.T.MUHAMOOD SRI.A.MOHAMMED SAVAD SRI.A.RENJIT SRI.C.Y.VINOD KUMAR SRI.V.E.ABDUL GAFOOR** ## **RESPONDENTS:** **1 P.L.RASMI AGED 41 YEARS W/O.K.A.ROLINESS, HIGHER SECONDARY SCHOOL TEACHER (MALAYALAM), ST.JOSEPH'S HIGHER SECONDARY SCHOOL, MATHILAKAM, THRISSUR DISTRICT - 680 685. 2 STATE OF KERALA REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, EDAPPALLY, ERNAKULAM - 682 024.** **WA.No. 107 of 2019 2** **4 THE MANAGER ST.JOSEPH'S HIGHER SECONDARY SCHOOL, MATHILAKAM, THRISSUR DISTRICT - 680 685.** **BY ADVS. SRI.K.C.ELDHO SR GP SRI A.J.VARGHESE SRI.SHERRY J. THOMAS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The appellant and the first respondent claimed the third vacancy of Higher Secondary School Teacher (Jr) {for brevity HSST hereafter} which arose in the 4[th] respondent school wherein both of them were working as High School Assistants (HSA). 2. The appellant was working as a HSA(Mathematics) having qualification of B.Sc, B.Ed and M.Sc in that subject. The Post Graduate qualification in Mathematics was obtained only on 16.9.2011. The first respondent had a graduate and B.Ed qualification in Mathematics and Post Graduate qualification in Malayalam. She was working as HSA (Malayalam) in the aided school. Admittedly, the appellant was senior to the first respondent, having been appointed as a HSA(Mathematics) on 5.8.1996 and the first respondent appointed as a HSA(Malayalam) on 22.6.1998 from which date there is approved service, which alone can be reckoned for seniority. 3. The courses in the Higher Secondary section were sanctioned by the Government on 20.7.2010 which sanction order also provided for appointment of HSST's temporarily as Guest ## **WA.No. 107 of 2019 4** Lecturers. Later, by Ext P1 dated 24.10.2011 produced in the Writ Petition 1510 posts of HSST Juniors, 110 posts of HSST and 146 posts of Principals were created in the Higher Secondary Schools in Thrissur and northern districts. The 4[th] respondent's school was in Thrissur District and pursuant to Ext P1 obtained sanction of 10 posts of HSST Junior and 1 post of HSST. As per Rule 4 of Chapter XXXII of the Kerala Education Rules (KER) 25% reservation had to be given to the existing qualified teachers in the High School, Upper Primary or Lower Primary Section. A ratio of 1:3 was provided by which out of four the first post was to be conceded to by-transfer appointment from qualified hands in High School, Upper Primary or Lower Primary Section. The appellant was appointed by the Manager, which was unsuccessfully challenged by the first respondent before the educational authorities. Before this Court the first respondent was successful, as the learned Single Judge found the claim of the first respondent to be worthy of consideration going by Note (2) of Rule 43 of Chapter XIV A K.E.R. The appellant impugn the aforesaid judgment. 4. The learned counsel for the appellant at the outset contends that Rule 43 and Chapter XIVA of the K.E.R, has absolutely no application in so far as the appointment and service ## **WA.No. 107 of 2019 5** conditions of the HSST's which are regulated by Chapter XXXII. It is pointed out that as early as in 2006 a Division Bench of this Court in **Pathanapuram Taluk Samajam Corporate Management Schools v Sreelatha (2006(3) KLT 867)** held that Chapter XIVA is not applicable to the Higher Secondary Section of an aided school. Therein the claim of Rule 51B on the basis of the death of an employee in an aided school in the High School Section, was declined to be considered in the higher secondary section. It is also pointed out that Rule 5 of Chapter XXXII by a note specifically speaks of a selection process and in such circumstances, there could be no application of Chapter XIVA and the determination has to be on the basis of seniority. The appellant had acquired the qualification on 16.9.2011 after which the posts were created, notification for selection was published and the actual selection was carried out. Anexure-A dated 18.11.2011 is the publication calling for applications and Annexure-B dated 5.12.2011 shows the proceedings of the interview conducted. The learned counsel also relies on the judgment of this Court in W.P(C) No.31505 of 2013 ( **Divya.S** v **State of Kerala and others** ) dated 26[th] October, 2015 wherein reference was made to Ext P1 and the date for determining the acquisition of qualification was found to be the date of that ## **WA.No. 107 of 2019 6** particular order, ie: 24.10.2011. The appellant asserts that her appointment to the third post, has to be affirmed. 5. The learned counsel for the first respondent took us through Ext P1 to argue for the date of retrospective creation being relevant for consideration. It is pointed out that the Government Order refers to three other orders of 20.7.2010, 31.7.2010 and 6.8.2011 which shows the chronology of the events which occurred on the Higher Secondary Section being created. The order read as item No.3 in Ext P1 sanctioned posts in Government Schools. Likewise, by Ext P1 dated 24.10.2011, the Government had created the posts with retrospective effect from 6.8.2011 and had sanctioned the same for various schools in Thrissur and north Kerala. The crucial date for consideration of acquisition of qualification hence is 6.8.2011 on which date admittedly the appellant did not have the required qualification. The learned counsel would further urge that even if Rule 43 is not applicable to the Higher Secondary Section the decisions of this Court and Hon'ble Supreme Court clearly indicate that Note (2) in Rule 43 is the general principle applicable across the board to all promotions of by-transfer appointments wherein seniority is the criteria and there is also prescribed definite qualifications for such appointments either by promotion or by-transfer. The learned ## **WA.No. 107 of 2019 7** counsel has placed reliance on the following judgments. **Padmanabhan Nair v Dy.Director (1991(1) KLT 337(F.B), Jenany v Rajeevan (2010 (2) KLT 630 (SC), Henry Gomez v Government of Kerala (1993 (2) KLT 883), Varghese & others v State of Kerala & others (1981 KLT 458(F.B).** 6. The learned Senior Government Pleader would support the case of the appellant which has been allowed by the Educational Authority and the Government and would rely on the decisions of the Apex Court in **State of Tripura and others v Nikhil Ranjan Chakraborty and others ((2017)3 SCC 646), Deepak Agarwal and another v State of Uttar Pradesh and others ((2011)6 SCC 725).** 7. The appellant admittedly is the senior having been appointed on 5.8.1996 as a HSA(Mathematics). The appellant also satisfies all the criteria with respect to qualification as provided in Rule 6 of Chapter XXXII of K.E.R. She has a Graduation, B.Ed and Post Graduation in the subject which she is teaching in the aided school and now called upon to teach in the Higher Secondary Section. The first respondent also is qualified to the third post by reason of the exceptions granted under Rule 6 in so far as the essential qualification for HSST (Jr); which however would be applicable only if there are no other qualified ## **WA.No. 107 of 2019 8** hands. 8. Rule 6 stipulates that for appointment as HSST (Jr.) or HSST, a teacher should have Post Graduation in the subject as also B.Ed in that subject itself. In the event of absence of persons with B.Ed degree in the concerned subject; B.Ed degree acquired in any one of the subjects under the concerned faculty would be sufficient. The first respondent does not have a B.Ed degree in the subject in which she has Post Graduation and is teaching in the High School Section ie: in Malayalam. However, clause 1(ii)(3) of serial No.2 under Rule 6 of Chapter XXXII further prescribes that in the event of absence of persons with B.Ed degree in the concerned subject or in one of the subjects under the concerned faculty; a B.Ed in any subject acquired after regular course of study would be sufficient. Hence, if the appellant's claim to the third post of HSST (Jr.) sanctioned in the 4[th] respondent school is not allowed, then necessarily the first respondent would be qualified to be appointed to that post. If the appellant is found qualified on the relevant date, the 1[st] respondent would not be entitled to claim the exception since the appellant has qualified B.Ed & M.Sc in the relevant subject; ie: Mathematics. 9. The entire controversy revolves around the date ## **WA.No. 107 of 2019 9** of acquisition of qualification of the appellant. We do not agree with the appellant that merely because Rule 43 and Chapter XIVA are not applicable to the Higher Secondary Section, there can be a go by given, to the general principles of requirement of holding of required qualification at the time of occurrence of vacancy. _**Henry Gomez and Janany**_ (both supra) considered the issue with reference to the K.E.R as it applies to an aided school upto the High School level and Rule 43 Note (2) was relied on; which according to the appellant cannot apply to the higher secondary section. It is also relevant that Rule 2 of Chapter XXXII a non- obstante clause makes the method of appointment and qualification of teachers and non teaching staff to Higher Secondary Schools in the State to be as prescribed in this Chapter, which excludes the provisions otherwise in the K.E.R. But the Full Bench in _**Varghese**_ (supra) spoke on and declared the general principle that the relevant date for determining the question of promotion should be the date of occurrence of vacancy and not the date of filling up; the latter being definite and the former being left to arbitrary exercise by the appointing authority. We respectfully bow to the above proposition, a general principle applicable in service jurisprudence in so far as the appointment or promotion to a post with a required qualification. ## **WA.No. 107 of 2019 10** Such a principle also would advance transparency and ensure that there is no nepotism in so far as the appointing authority delaying the selection so as to enable a favoured person to acquire the required qualification for the post. 10. We have to look at the facts of the case, based on the principles so laid down by the Full Bench of this Court. We again look at Ext P1 which is dated 24.10.2011. The retrospective effect, from 6.8.2011 is for creation of the posts and not for sanctioning the same. Merely by reason of the creation of so many vacancies there could be no appointment made, since there should be sanction of posts which has to be made by the Educational Authorities to the individual schools. There being no details available as to such sanction and the same being possible only after the creation for the purposes of this case we will adopt the date of Ext P1 as the date of occurrence of vacancy. The retrospective effect given is only to create such posts, in tandem with the creation of posts in Government Schools. But for that no consequence arises from such retrospective effect given. The Guest Lecturers who were continuing from 6.8.2011 will not be confirmed in that posts nor would a new appointee be entitled to even notional consideration of appointment with retrospective effect from 6.8.2011. It is also pertinent that the creation of ## **WA.No. 107 of 2019 11** posts alone would not enable the Manager to make an appointment. On the facts of this case especially looking at Ext P1 and the retrospective effect given for creation of posts, we find that the principle in so far as the qualification being required at the time of the occurrence of vacancy, would be satisfied if the candidate who seeks appointment by-transfer has acquired the qualification on 24.10.2011 ie: the date of Ext P1. There could be no arbitrary exercise carried out by the Appointing Authority; here the Manager, of delaying the selection, since prior to Ext. P1 there could be no selection made. 11. Admittedly, the appellant had produced a provisional certificate dated 16.9.2011 indicating her Post Graduate qualification in Mathematics acquired from Madurai Kamaraj University. Provisional certificate being dated 16.9.2011 definitely the publication of results would have been earlier to that. Even if the date of the certificate is taken, the appellant is found qualified on the date of Ext P1 ie: 24.10.2011. We reiterate that there was no possibility or opportunity for the Manager to have conducted a selection prior to 24.10.2011 and there cannot be found any delay having been occasioned only for the purpose of enabling the appellant to acquire the Post Graduate qualification. On the above findings, we set aside the **WA.No. 107 of 2019 12** judgment of the learned Single Judge and confirm the orders of the Educational Authorities. Writ Appeal would stand allowed. We see that Ext.P7 order No.B4/20328/RDD/HSE/EKM/ 2012 dated 10.10.2012 has been passed giving effect to the judgment in the Writ Petition. The judgment having been reversed, Ext.P7 would stand set aside and the Educational Authorities would restore the position of the appellant to the 3[rd] post filled up on by-transfer appointment as per the creation of posts by Ext.P1 and sanction of eleven posts to the 4[th] respondent school. The parties will be left to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **V.G.ARUN, JUDGE** cms ## **WA.No. 107 of 2019 13** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A TRUE COPY OF NOTIFICATION DATED 18/11/2011 PUBLISH IN KERALA KAUMUDI DAILY NEWS PAPER. ANNEXURE B TRUE COPY OF SELECTION CHART PREPARED BY SELECTION COMMITTEE SHOWING THE DETAILS OF THE CANDIDATES WHO APPEARED FOR INTERVIEW PURSUANT TO THE NOTIFICATION. ANNEXURE C TRUE COPY OF ORDER NO.B4/20327/RDDE/HSE/2011 DATED 26/11/2012, APPROVING THE APPOINTMENT OF THE APPELLANT AS HSST (JR) ISSUED BY THE RDD, ERNAKULAM. ANNEXURE D TRUE COPY OF ORDER NO.A5(B4) 4244/2013/RDD/HSE/EKM DATED 13/07/2015 ISSUED BY THE RDD, ERNAKULAM. ANNEXURE E TRUE COPY OF STAFF-FIXATION ORDER NO.B2/17624/RDD/HSE/EKM/2011 DATED 28/01/2012 ISSUED BY THE RDD, ERNAKULAM. RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE** **cms**