Sathikumar K., Santosh Kumar, Shafi M.M., Suresh Kumar, Sreelatha K.K., Babu K., Saji S., Thomas George v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930** **WP(C).No. 30591 of 2007(P)** **----------------------------------------** **PETITIONERS:** - **-----------------------** **1. SATHIKUMAR K., AGED 40 YEARS,** - **S/O. KUNJAN,HIGHER SECONDARY SCHOOL TEACHER, S.M.V.G.H.S.S., THIRUVANANTHAPURAM.** **2. SANTHOSH KUMAR, AGED 45 YEARS,** - **S/O. RAGHAVAN NAIR,HIGHER SECONDARY SCHOOL TEACHER, G.H.S.S., KALANJOOR, PATHANAMTHITTA.** **3. SHAFI M.M., AGED 46 YEARS,** - **S/O. MUHAMMED MUSTAFFA, HIGHER SECONDARY SCHOOL TEACHER, G.M.B.H.S.S. ATTINGAL, TRIVANDRUM.** **4. SURESH KUMAR, AGED 41 YEARS, S/O. KRISHNAN NAIR C.M., HIGHER SECONDARY SCHOOL TEACHER, S.N.V.G.H.S.S., KADAKKAVUR,TRIVANDRUM.** **5. SREELATHA K.K., AGED 42 YEARS,** - **W/O. D.HARIKUMAR, HIGHER SECONDARY SCHOOL TEACHER, G.H.S.S., THOTTAKKONAM, PATHANAMTHITTA, HIGHER SECONDARY SCHOOL TEACHER.** **6. BABU K., AGED 39 YEARS, HIGHER SECONDARY SCHOOL TEACHER, G.G.H.S.S. MAVELIKKARA, HIGHER SECONDARY SCHOOL TEACHER.** **7. SAJI S., S/O. SAINLABDEEN, AGED 37 YEARS, HIGHER SECONDARY SCHOOL TEACHER, G.H.S.S., KARUNAGAPPALLY, KOLLAM DISTRICT.** **8. THOMAS GEORGE, S/O. P.N. GEORGE, AGED 44 YEARS, HIGHER SECONDARY SCHOOL TEACHER, G.G.H.S.S., ADOOR, PATHANAMTHITTA,** **BY ADV. SRI.P.V.MOHANAN** _Kss_ **2/-** **...2.....** ## **WPC.NO.30591/2007 P** **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION (U) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, TRIVANDRUM, HOUSING BOARD BUILDING, SANTHI NAGAR,TRIVANDRUM.** **3. THE CONVENER, DEPARTMENTAL PROMOTION COMMITTEE FOR PROMOTION TO THE CATEGORY OF PRINICIPALS, DEPARTMENT OF HIGHER SECONDARY EDUCATION TRIVANDRUM. (SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM).** **GOVERNMENT PLEADER SRI.T.T.MOHAMMED FOR R1,2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT ON 21/10/2008 DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.30591/2007 P** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE FINAL SENIORITY LIST OF HIGHER SECONDARY SCHOOL TEACHERS. EXT.P2: COPY OF THE GO(MS) NO.43/2005/G.EDN. DTD.11/02/2005. EXT.P3: COPY OF THE G.O.(MS) NO.11/2006/G.EDN. DTD. 6/01/2006. EXT.P4: COPY OF THE CIRCULAR NO.A.D.SPECIAL CELL/2938/2007/HSE. EXT.P5: COPY OF THE REPRESENTATION DTD. 3/09/2007. EXT.P6: COPY OF THE REPRESENTATION DTD. 3/09/2007.** ## **RESPONDENT'S EXHIBITS: N I L** ## **/TRUE COPY/** ## **P.S.TO JUDGE** _Kss_ ## **ANTONY DOMINIC, J. =============== W.P.(C) NO. 30591 OF 2007 (P) ====================** ## **Dated this the 21[st] day of October, 2008** ## **J U D G M E N T** Petitioners are working in the cadre of Higher Secondary School Teachers. In this writ petition, they are seeking a direction to the respondents to convene the DPC for promotion to the cadre of Principals in Higher Secondary Education State Service and to consider their claim for promotion to the post of Principal. 2. Briefly stated, facts of the case are that Ext.P1 is the seniority list of Higher Secondary School Teachers appointed upto 12/6/01 and were in service as on 30/9/2003. This seniority list containing 1408 candidates, was published on 25/5/2004 and the petitioners are included at Sl.Nos.159, 686, 693, 697, 708, 713, 743 and 747 respectively. Appointment to the post of Principal in Higher Secondary Schools is governed by the Kerala Higher Secondary Education Service Rules, 2001 (hereinafter referred to as Special Rules for short). In the Special Rules, for the post of Principal, the method of appointment prescribed is 1) by promotion from Higher Secondary School Teachers and 2) by transfer from qualified Headmasters of High Schools in the Kerala General Education Service. Rule further provides that the posts are to be filled up in the **WPC 30591/07** **:2 :** method indicated above, in the ratio of 2:1 and that if qualified candidates are not available for appointment, by any one of the aforesaid two methods, such vacancies shall be filled up by the other method. Qualifications prescribed are 1) Masters Degree with not less than 50% marks from any of the Universities in Kerala or 2) B.Ed Degree from any Universities in Kerala or a qualification recognised as equivalent thereto by any University in Kerala and 3) Minimum approved teaching experience of 12 years. As per the note attached to the Rule, preference shall be given based on the teaching experience at Higher Secondary School level. 3. The claim for appointment to the post of Principals in the Higher Secondary Schools came up for consideration of this Court in a batch of writ petitions, which were disposed of by a Full Bench in **Aided** ## **Higher Secondary School Teachers Association v. State of Kerala** **(2005(1) KLT 94)** . The Full Bench directed the Government to give sanction and approval to the post of Principal so that no Higher Secondary School in the State shall work without a regular Principal. The Managers were also directed to make appointments on the basis of the Rules framed as per Chapter XXXII K.E.R and submit the same for approval of the **WPC 30591/07** **:3 :** Government. 4. In purported compliance of the judgment referred to above, the Government issued Ext.P2 order dated 11/2/2005 in which, among others it was ordered that creation of the post of Principal will also be considered separately. Thereafter Ext.P3 Government Order was issued on 6/1/2006 ordering creation of 1225 posts of Principal for the 1225 Higher Secondary Schools in the State (Government and Aided) by upgrading corresponding number of Higher Secondary School Teacher (Senior) posts. 5. Petitioners submit that even now, there are 698 vacant posts of Principals in the Higher Secondary schools. According to them, these vacancies have to be apportioned in the ratio of 2:1 by promotion and transfer. It is stated that though 465 posts are to be filled up by promotion and 233 posts by transfer, in the latter category only 65 candidates are available and therefore, the balance 168 should go to the promotion quota. Thus, it is contended that 633 posts are available to be filled up from among the Higher Secondary School Teachers. Petitioners state that among the 1408 candidates included in Ext.P1, only 698 are still **WPC 30591/07** **:4 :** in service and that 633 vacancies referred to above should be filled up from the candidates in Ext.P1. They would also contend that at the instance of some union activists, the respondents are proposing to fix a cut off date of 6/1/2006 when Ext.P3 order was issued to determine the eligibility on that basis and by that process, an attempt is being made to exclude them from the zone of consideration. 6. Counter affidavit has been filed by the 2[nd] respondent. It is stated that the post of Principals were created on 6/1/2006 by Ext.P3 order. But however, the promotion to the post had to be kept in abeyance on account of the interim order passed by this Court in WP(C) No.25462/06. It is stated that the writ petition was dismissed as withdrawn only on 26/9/07 and that the respondents are in the process of preparing a list of eligible Higher Secondary school Teachers for promotion to the post of Principals. It is stated that “all efforts will be taken to promote eligible Higher Secondary school Teachers to the post of Principals in all the 698 Government Higher Secondary Schools on the prescribed time scale at the earliest”. 7. In para 7, it is also stated that the confidential records of all **WPC 30591/07** **:5 :** Higher Secondary Schools included in the seniority list and those in service as on 6/1/2008 are being collected and that the Directorate have sought some clarification from the Government about the service which can be reckoned for computing approved teaching experience as envisaged in the Special Rules and that select list can be finalised only on the basis of the clarification which is awaited. It is also stated that after getting the clarification, select list will be placed before the DPC, which will be convened for preparation of the select list for promotion to the post of Principal. 8. It is further stated that the petitioners did not have 12 years approved teaching experience as on 6/1/2006 when the vacancies arose and that they can be considered for promotion only after acquiring 12 years approved teaching experience as on the date of occurrence of vacancy. They are also relying on Rule 28 (iA) Part II KS & SSR to contend that a person who was not qualified at the time of occurrence of vacancy, is not entitled to be included in the select list for appointment against that vacancy. On this basis, it is stated that the petitioners can be considered only to posts which become vacant after their acquiring the qualification **WPC 30591/07** **:6 :** for the post of Principals and that since they were not qualified as on 6/1/2006, there is no denial of their claim for promotion. 9. From the facts as stated above, it is obvious that even according to the respondents, 698 vacancies are in existence which are to be filled up as per the Special Rules. The respondents have also admitted that they have already initiated steps for filling up the posts and that once clarification is obtained from the Government, the matter will be placed before the Departmental Promotion Committee for preparing the select list. Though the respondents are also not disputing the eligibility of the petitioners for promotion to the post of Principals, their contention appears to be that since the petitioners were not qualified as on 6/1/2006, they are not entitled to be considered against those vacancies. To sustain this plea, they are also relying on Rule 28 (iA) Part II KS & SSR. 6/1/2006 is the date on which Ext.P3 order was issued by the Government creating 1225 posts of Principals of Higher Secondary Schools in the State. If as on that date, sufficient candidates were available to be promoted to those vacancies, petitioners can have no claim. But that does not appear to be the case here. This appears to be a case where though there were **WPC 30591/07** **:7 :** vacancies, sufficient eligible candidates were not available to be considered for promotion. 10. If that be so, the question that arises for consideration is that when a block of vacancies arise and sufficient number of candidates are not available, whether the candidates who become eligible subsequently, are entitled to be considered for those vacancies which are already in existence. This contention is no more open to doubt in view of the law laid down by the Full Bench of this Court in **Varghese and others v.State of Kerala and others** ( **1981 KLT 458)** . In that judgment, referring to the Division Bench judgment in **Ravindranath v. Calicut University (1977 (Lab.I.C 1127)** , the Full Bench held that if there is a vacancy and subsequently a person becomes qualified for being promoted to such vacancy, he would be entitled to be considered for promotion in that vacancy. It was also been held that if there is no vacancy when a person becomes qualified for promotion and a vacancy arise while he remains qualified, as and when such vacancy arises, his case for promotion calls for consideration. This principle has been followed by a subsequent Division Bench in **Padmanabhan Nair v. Deputy Director (1999 (1) KLT** **WPC 30591/07** **:8 :** **337)** , where on the basis that when the 3[rd] respondent therein became qualified, a vacancy of Headmaster was available, his claim for promotion to that existing vacancy was upheld by the Division Bench. 11. If that be the position in law, the fact that the petitioners were not qualified as on 6/1/2006, does not make any difference. Once they have become qualified subsequently, they are entitled to be considered against the existing vacancies for promotion. This claim of the petitioners also cannot be defeated relying on Rule 28(iA) of Part II KS & SSR as their case is saved by the note attached thereto. 12. In view of the admitted position that vacancies are in existence and that steps are already initiated by the respondents, the respondents are liable to take necessary action for convening the DPC and fill up such of those vacancies which are available in the promotion quota. The fact that they are awaiting clarification from the Government regarding the reckoning of the experience is no reason to defer regular promotion indefinitely. 13. Therefore, the writ petition is disposed of directing that the respondents shall convene DPC for promotion to the post of Principal in **WPC 30591/07** ## **:9 :** Higher Secondary Education State Service and consider the claim of the petitioners and other similarly situated persons. This shall be done, as expeditiously as possible, at any rate within 6 months of production of a copy of this judgment. **ANTONY DOMINIC, JUDGE** Rp