Nisha Dayanandan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933** ## **WPC.No. 1999 of 2010 (Y)** **----------------------------------** ## **PETITIONER(S):** ## **------------------------** **NISHA DAYANANDAN,UPPER PRIMARY SCHOOL ASSISTANT,A.B.VILASAM HIGHER SECONDARY SCHOOL MUHAMMA,ALAPPUZHA DISTRICT.** **BY ADVS.SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN** ## **RESPONDENT(S):** ## **----------------------- -** **1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **3. THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA.** **4. THE MANAGER,A.B.VILASAM HIGHER SECONDARY SCHOOL,MUHAMMA,CHERTHALA ALAPPUZHA DISTRICT.** **5. SMT.N.K.SUPRIYA,U.P.S.A,NOW WORKING AS H.S.A ENGLISH,A.B.VILASAM HIGHER SECONDARY SCHOOL MUHAMMA,CHERTHALA,ALAPPUZHA DISTRICT.** - **R1 BY GOVT. PLEADER SMT.LOWSY A. R4 BY SRI.K.JAJU BABU R4 BY SRI.T.R.SADEESAN R5 BY SRI.V.A.MUHAMMED R5 BY SRI.K.E.HAMZA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-01-2012, THE COURT ON 25/01/2012 DELIVERED THE FOLLOWING: tss** ## **W.P.(C) NO.1999/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE ORDER NO.B3-5432/07/K.DIS. DTD. 1.10.2007 ISSUED BY THE 3RD RESPONDENT.** ## **P2:- COPY OF THE LETTER NO.ET(2) 23860/08/DPI DTD. 23.5.2008 OF THE 2ND RESPONDENT TO THE 4TH RESPONDENT.** **P3:- COPY OF THE ORDER NO.B3-7409/07/L.DIS DTD. 8.8.08 ISSUED BY THE 3RD RESPONDENT.** **P4:- COPY OF THE STAFF FIXATION ORDER NO.B3-4148/2007/DEO(C) DTD. 6.11.2007 ISSUED BY THE 3RD RESPONDENT IN RESPECT OF THE HIGH SCHOOL UNDER THE MANAGEMENT OF THE 4TH RESPONDENT FOR THE YER 2007-08.** ## **P5:- COPY OF THE REVISION PETITION DTD. 15.9.08 FILED BY THE 4TH RESPONDENT BEFORE THE IST RESPONDENT.** **P6:- COPY OF THE LETTER NO.B3/7964/07 DTD.1 7.3.2009 OF THE 3RD RESPONDENT TO THE 3RD RESPONDENT.** **P7:- COPY OF THE ORDER G.O.(RT) 190/2010/G.EDN. DTD. 11.1.2010 ISSUED BY THE IST RESPONDENT.** **P8:- COPY OF THE JUDGMENT DTD. 2.9.09 OF THIS HONOURABLE COURT IN WA. 260/08.** **P9:- COPY OF THE G.O.(MS) 11/2002/G.EDN. DTD. 7.1.2002 AND THE ENDORSEMENT NO.113/50520/01/DPI/K.DIS DTD. 31.1.2007 OF THE D.P.I.** **P10:- COPY OF THE G.O.(P) 220/2005/G.EDN. DTD. 19.7.2005.** ## **P11:- COPY OF THE RELEVANT PORTION OF THE CONCERNED GOVERNMENT FILED OBTAINED BY THE PETITIONER'S HUSBAND UNDER RIGHT TO INFORMATION ACT.** ## **RESPONDENT'S EXHIBITS** **R5(a):- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT WP(C) NO.16954/2005 DTD. 29.8.2005.** **R5(b):- COPY OF THE ORDER NO.67852/E3/07/G.EDN. OF THE GOVERNMENT DTD. 1.7.08.** **R5(c):- COPY OF THE ORDER 495/E2/08/G.EDN. OF THE GOVERNMENT DTD 20.2.08. R5(d):- COPY OF THE G.O.(P) NO.2/2009/G.EDN. OF THE GOVERNMENT DTD. 5.1.2009.** ## **tss** ## **W.P.(C) NO.1999/2010** **R5(e):- COPY OF THE APPOINTMENT ORDER OF THE PETITIONER SMT.NISHA DAYANANDAN DT. 1.6.2009.** **R5(f):- COPY OF THE APPOINTMENT ORDE OF THE 5TH RESPONDENT ALONG WITH APPROVAL ORDER NO.B3/2542/09/K.DIS DTD. 11.10.2007. OF THE DISTRICT EDL. OFFICER DT. 18.1.2010** **R5(g):- COPY OF THE DISTRIBUTION OF PERIODS INTRODUCED AS PER NOTE DTD. 12.7.1985.** **R5(h):- COPY OF THE CIRCULAR NO.547/J1/87/G.EDN. OF THE GOVERNMENT DTD. 22.8.1987.** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 1999 of 2010-Y** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 25th day of January, 2012** ## **JUDGMENT** The petitioner and the fifth respondent herein have been working as U.P.S.As. in A.B. Vilasam Higher Secondary School, Muhamma, Alappuzha District. When a vacancy of H.S.A. (Social Science) occurred, the fifth respondent was promoted as H.S.A. (English) instead of the petitioner who is qualified to be promoted as H.S.A. (Social Science). The said dispute was finally adjudicated by the Government as per Ext.P7, in favour of the fifth respondent which is under challenge in this writ petition. The initial orders Exts.P2 and P3 are in favour of the petitioner. 2. The question that arises for consideration is: who is the rightful claimant for promotion under Rule 43 of Chapter XIV-A K.E.R.? As far as the qualification of the respective parties are concerned, the petitioner is having the qualification of B.A. in Economics and B.Ed. in Social Science, whereas the fifth respondent is having the qualification of B.A. in English, B.Ed. in Malayalam and M.A. in Malayalam. The vacancy arose from 1.7.2007, when Smt. N. Lekha, H.S.A. (Social Science) voluntarily retired from service on 30.6.2007, in the post of H.S.A.(S.S.). WPC.1999/2010 2 3. The petitioner's contentions are mainly the following: The staff fixation order for the year 2006-2007 sanctioned 17 posts of H.S.A., the details of which are the following: “Science Maths Social Science English 5 4 4 4 (including 3 H.S.As.(N.S.) accommodated in the posts of H.S.As. English)” In the year 2007-2008 also 17 posts were sanctioned, like that of the year 2006-2007. As far as Social Science is concerned, there were four H.S.As., out of which one took voluntary retirement. The Manager filled up the vacancy by promoting the fifth respondent as H.S.A. (English) on 11.10.2007. She is not qualified to be promoted as H.S.A. (English), as she is not having B.Ed. in English. There was no vacancy in the post of H.S.A. English, as all the sanctioned four posts of H.S.A. English were being occupied by four teachers itself. 4. In answer to the representation filed by the petitioner, by Ext.P2, the second respondent Director of Public Instruction directed the Manager to appoint the petitioner, being the rightful claimant under Rule 43 of Chapter XIV-A K.E.R. The District Educational Officer, by Ext.P3 rejected the request for approval of appointment of the fifth respondent on WPC.1999/2010 3 two grounds; (i) that the post of H.S.A. English is not vacant; and (ii) that the fifth respondent is not having B.Ed. in English and the petitioner is the better claimant. Ext.P4 is the staff fixation order for the year 2007-2008. 5. Heard learned Senior Counsel for the petitioner Shri K.R.B. Kaimal, Shri K. Jaju Babu, learned counsel appearing for the Manager, Shri K.E. Hamsa, learned counsel appearing for the fifth respondent and learned Government Pleader, Smt. Lowsy A. 6. Learned Senior Counsel appearing for the petitioner submitted that the reasons stated by the Government in Ext.P7 cannot be sustained. It is pointed out that as far as H.S.A. Social Science is concerned, four sanctioned posts are there and the vacancy arose in one of the posts and there is no vacancy in the post of H.S.A. English. The fifth respondent was promoted wrongly and the reason stated by the Government that the promotion of the fifth respondent will better the imparting of instructions in English language, is totally incorrect. It is submitted that there cannot be any conversion of the post of H.S.A. Social Science to that of H.S.A. English for adjusting the fifth respondent, as the staff fixation order was never varied also. Reliance is placed on the decision of the Apex Court in **Deepa Augustine v. Geetha Alex** (2008 (2) KLT 771 SC), in support of the WPC.1999/2010 4 plea of the petitioner. 7. Learned counsel for the fifth respondent, Shri K.E. Hamsa submitted that going by the proviso to Rule 43 of Chapter XIV-A K.E.R. what is important is satisfaction of the minimum subject requirement and subject ratio is not relevant here. The number of periods of H.S.A. Social Science can be handled by three H.S.As. along with the Headmistress and in English there is only one qualified H.S.A. out of the four teachers and the remaining three posts have been occupied by three H.S.A.(Natural Science) hands. It is therefore submitted that the view taken by the Government that academic standard will have to get preference, is correct. With regard to the qualification of the fifth respondent, it is submitted that the qualifications prescribed as per rules will show that in the absence of any person having B.Ed. in English, B.Ed. hands in other subjects could be accepted and therefore the fifth respondent is perfectly qualified. 8. Learned counsel for the Manager, Shri K. Jaju Babu submitted that out of the four posts of H.S.A. English, one fully qualified H.S.A. alone is there and three posts are occupied by H.S.A. Natural Science hands and therefore the fifth respondent was appointed as H.S.A. English. 9. The sole question therefore is whether the vacancy of H.S.A. WPC.1999/2010 5 Social Science could have been filled up by appointing an H.S.A. English on the pretext that the same will help the handling of English periods more effectively. 10. The staff fixation order Ext.P4 will show that in respect of Social Science and English four posts each have been sanctioned. As far as the creation of separate cadre of H.S.A. English is concerned, Ext.P9 is the Government Order dated 7.1.2002 by which the cadre was proposed to be created. It was stipulated in para 3(a) therein that “a new cadre of H.S.A. (English) will be created in the Aided and Government Schools by reallocating the periods of English now allocated to the core subjects (Maths, Science and Social Studies) in a phased manner, without causing retrenchment of existing H.S.As. (core subjects). The new cadre will be created by appointing/promoting qualified hands against the vacancies caused by retrenchment/additional division/Resignation/leave observing the minimum subject ratio requirement between Maths, Science and Social Studies with a view to achieve the object of distribution of posts envisaged in the table given in the appendix.” Therefore, the creation of the cadre of H.S.A. (English) has to be in a phased manner by re-allocating the periods of English allocated to the core subjects, without causing retrenchment of WPC.1999/2010 6 existing H.S.As. (core subjects). Prior to the introduction of H.S.A. English cadre, the periods in English were being handled by teachers in H.S.A. (cores subjects). 11. In the school herein, three H.S.A. Natural Science hands have been accommodated against the three posts of H.S.A. English and therefore all the four posts of H.S.A. English are thus occupied. The vacancy arose in the post of H.S.A. Social Science alone, due to the voluntary retirement of one teacher. The staff fixation order has not been varied at all by any process known to law and there was no challenge against the staff fixation order also. 12. For promoting a person as H.S.A. English, evidently therefore, there should be a vacancy in the posts sanctioned, out of the four. The adjustment made by the Manager now will make the number of H.S.As. English hands as five including the three who have been adjusted from H.S.A. Natural Science. 13. As the vacancy in question is an established vacancy in the post of H.S.A. Social Science, naturally the petitioner who is qualified for promotion as H.S.A. Social Science, had to be promoted, which was the view taken by the District Educational Officer in Ext.P3. The subject ratio WPC.1999/2010 7 that is provided is 1 : 1 : 1 : 1. In the light of the argument raised by Shri K.E. Hamsa that the minimum subject requirement alone is required, the said aspect will also have to be examined. The first proviso to Rule 43 to Chapter XIV-A K.E.R. states as follows: “Provided that in the case of promotion to the post of High School Assistant (Subject), the minimum subject requirements alone need be satisfied, to safeguard the interests of trained graduates who are awaiting promotions as High School Assistants.” A Full Bench of this Court in **Philomina v. Babu Varghese** (2001 (2) KLT 519 - FB), while interpreting the words “subject requirement” in the said proviso, was of the view that it cannot be read as “subject ratio”. In para 11, it was held as follows: “The subject ratio cannot be equated with the subject requirement. Even now in fixing the staff strength, we are told that each teacher is directed to take 25 periods a week. It is on that basis that the staff strength was made. No doubt, the appointments are made now merely on the basis of subject requirement, but on the basis of subject ratio. But because of this, can we say that there is nothing as “subject requirement”. According to us, the words “subject requirement” appearing in the Proviso cannot be read as subject ratio as per the Circular. Further, we are of the view that the Proviso is careful in stating that the benefit of the Proviso can be given only when sufficient number of teachers is available in the WPC.1999/2010 8 core subject in which vacancies arise. It is only after considering all these things that the senior teacher in core subject can be promoted. We don't endorse the view that if subject ratio is not followed, the quality of teaching will go down. It is one of the principles in service law that sufficient avenues should be provided for the promotion of the members of service. If they are allowed to stagnate in a particular post, it will affect the efficiency in their service. It is taking into all these things that the Proviso has been introduced. Hence, we don't agree with the decision in _Babu Varghese v. Manage_ r - 1994 (1) KLT 557 and _Padminikutty v. D.E.O., Ottappalam_ - 1996 (1) KLT 397.” 14. Thereafter, the matter went up to the Apex Court and the decision is reported in **Deepa Augustine's case** (2008 (2) KLT 771 - SC). Therein, while considering the issue, the Apex Court held as follows in para 4: “However, we may observe that whenever the question of promotion arises, the first question which is to be examined is the subject requirement of that vacancy and the person should be appointed who has the minimum qualification for teaching that subject. To illustrate the point, in case a vacancy arises for a subject of Physical Science against that person who possess minimum qualification for teaching the Physical Science should be recruited and not a person who belongs to Social Studies. This will be doing a great harm to the interest of the students. The paramount consideration should be the interest of the students that WPC.1999/2010 9 the person who is being appointed to teach subject should possess minimum qualification of that subject.” Therefore, the Apex Court was of the view that the subject requirement will have to be examined when a vacancy arises and the person having the minimum qualification to teach that subject should be promoted, otherwise it will be doing great harm to the interest of the students. The illustration given therein will also show that the filling up of vacancy should be subjectwise and a person who is having the qualification to teach the concerned subject, should be appointed and that the paramount consideration should be the interest of the students, so that the promotee should have the minimum qualification to teach that subject. The said view, therefore, will govern the matter. 15. What is projected by the respondents is the fact that in Social Science 79 periods are available, out of which the Headmistress can handle 10 and the remaining 69 periods can be handled by three Social Science H.S.As. In English 91 periods are there and only one regular H.S.A. English is there and therefore the promotion of H.S.A. English will be justified. 16. This interpretation of the subject requirement will defeat the purpose of staff fixation orders. Only four posts of H.S.A. English have been sanctioned. How the Manager can convert one H.S.A. Social Science WPC.1999/2010 10 as H.S.A. English, is not explained at all. The fact that four posts of H.S.A. English are occupied by four teachers, is also not disputed. Prior to the introduction of the H.S.A. English posts, the periods of English were handled by H.S.A. (core subjects) hands. The three H.S.A. Natural Science hands have been adjusted in continuation of this exercise itself, who evidently, will be competent to handle periods in English. Therefore, the 91 periods in English are handled by the four H.S.As. It is not as if one H.S.A. English qualified hand alone is handling the 91 periods. 17. Therefore, it can be seen that the justification sought to provide more teachers in H.S.A. English has no support from the staff fixation order. If at all any additional H.S.A. English hand was required, that could have been done only by making suitable arrangements within the four posts sanctioned. It was not done by the Government also. As far as the filling up of posts vacancy-wise is concerned, it can be seen that since the vacancy arose was in the post of H.S.A. Social Science, the petitioner who was eligible and qualified, had to be promoted. Therefore, the view taken in Ext.P7 that if one more H.S.A. English is appointed, that will help to teach English in a better way, is not having any statutory support. 18. In this context, Shri K.E. Hamsa, learned counsel for the fifth WPC.1999/2010 11 respondent submitted, by relying upon the judgment of a Division Bench of this Court in W.A. No.1126/2009 that the Government has got power under Rule 3 of Chapter I K.E.R. to dispense with or relax the requirements of any rule which causes undue hardship in a particular case. That was a case where the upper age limit under Chapter XXIV-A for appointment of non teaching staff, was relaxed by the Government by invoking the rule, so as to save the appointment of the fourth respondent therein. The context therein is totally different from the one herein. Herein, the power of relaxation has not been invoked at all. The said judgment cannot help to support the order Ext.P7. 19. The vehement question further argued by the learned Senior Counsel for the petitioner is that even the promotion order cannot be justified, for want of qualification of the fifth respondent also. The fifth respondent is having B.A. in English, B.Ed. in Malayalam and M.A. in Malayalam. In Chapter XXXI, Rule 2 (x) of K.E.R., the qualification for the post of H.S.A. (English) is as follows: “( **x) High School Assistant (English)** :- (i) A degree in English language and literature; and (ii) B.Ed/B.T./L.T. with English as optional subject, conferred or recognised by the Universities in Kerala; WPC.1999/2010 12 (iii) in the absence of those with qualification in item (ii) above, candidates with B.Ed/B.T.,/L.T. in any other subject, conferred or recognised by the Universities in Kerala will be considered. Provided that a post graduate degree in the subject or language concerned shall be considered as an alternative qualification of degree in such subject or language concerned for appointments as High School Assistant (Subject) or High School Assistant (Language) as case may be.” Learned Senior Counsel for the petitioner lays stress on sub-rule (iii) of Rule 2 and submitted that persons having B.Ed. in other subjects, means other core subjects like Science, Maths and Social Science and not other languages. It is pointed out that number of qualified persons having B.Ed. in English can be obtained if a proper notification is issued inviting applications which was never done herein and hence there is no justification to take shelter under clause (iii). The intention of the sub-rule is to provide a qualified teacher having B.Ed. in English apart from degree in the concerned subject. It is also submitted that by appointing a person having B.Ed. and Post Graduation in Malayalam, the requirement will not be satisfied. Persons acquiring B.Ed. in other subjects will be studying those subjects with English language as the medium and hence are better placed, than the fifth respondent who is having B.Ed. in Malayalam. Hence, clause WPC.1999/2010 13 (iii) cannot save the fifth respondent. 20. In reply to the above argument, Shri K.E. Hamsa, learned counsel for the fifth respondent submitted that B.Ed. in any subject can be accepted if a person with B.Ed. in English is not available. It is pointed out that item (iii) of sub-clause (x) to sub rule 2(b) of Rule 2 was deleted only by notification dated 5.1.2009 by the Government which is evident from Ext.R5(d) and therefore as on the date of occurrence of vacancy herein, the unamended provision was there and the Manager was right in accepting the qualification of the fifth respondent as one B.Ed. in any other subjects. 21. This aspect requires detailed consideration only if the question is whether the post can be considered as one to be filled up by appointing an H.S.A. English hand itself. Herein, going by the legal position as discussed above, it can be seen that the vacancy could have been filled up only by an H.S.A. Social Science hand. Therefore, I am not going into in detail into the above said aspect. The appendix to Ext.P9 will show that in schools where 17 divisions are there, the posts that could be sanctioned for Social Science is four and English also is four, apart from three for Physical Science, two for Natural Science and four for Mathematics, making the total to 17. This is the subject requirement that is provided in the Appendix WPC.1999/2010 14 to Ext.P9, by which the H.S.A. English cadre was created. Therefore, it is clear that in terms of the same, the staff fixation order was issued. Therefore, by promoting the petitioner alone, the subject requirement provided will be satisfied. Merely because the Headmistress could be assigned 10 periods, it cannot be said that three H.S.A. Social Science alone are required, when the sanctioned posts are four. 22. In the light of the above, the promotion granted to the fifth respondent by the Manager cannot be supported and consequently Ext.P7 order also cannot be sustained, especially since the view taken is not having any statutory support. 23. It appears that the petitioner was later appointed as H.S.A. Social Science from 1.6.2009 as per Ext.R5(e) in a later vacancy, which appointment has been approved already with effect from 9.9.2010 and the appointment of the fifth respondent as H.S.A. English has been approved pursuant to Ext.P7 order, as per Ext.R5(f) order. Since the petitioner is entitled to succeed, she will have to be promoted as H.S.A. Social Science in the vacancy which arose from 1.7.2007 and the fifth respondent's promotion will have to be readjusted to the later vacancy. 24. The writ petition is therefore allowed. Ext.P7 is quashed. There WPC.1999/2010 15 will be a direction to the Manager to appoint the petitioner as H.S.A. Social Science in the vacancy which arose consequent on the voluntary retirement of Smt. N. Lekha in the academic year 2007-2008 and produce the order before the District Educational Officer within a period of three weeks from the date of receipt of a copy of this judgment and the District Educational Officer will approve the same within a period of one month thereafter. She will be entitled for all consequential benefits. The salary paid to the fifth respondent in the post of H.S.A. will not be recovered. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**