High Court of KeralaSingle Judge2016-01-13Disposition of petitions: two petitions dismiss...

Svetlana D. Bhai v. State of Kerala and others

Case / Petition Number:WP(C). Nos. 29540 of 2014 (N); 31090 of 2014 (I); 15184 of 2015 (W)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-01-13
Court Decision / Holding: WP(C) Nos.29540 of 2014 and 31090 of 2014 dismissed; WP(C) No.15184 of 2015 allowed; Krishnan to be appointed as HSST (Junior) (History) with effect from 01.06.2010; Svetlana’s challenge disposed of with costs; salary remedy for Krishnan to be claimed from the Manager.
Final Disposition: Disposition of petitions: two petitions dismissed; one petition allowed with directions for appointment; costs awarded; salary remedy to be pursued separately.

Parties to the Case

Appellants / Petitioners

Svetlana D. Bhai
Bini Krishnan

Respondents

State of Kerala
Secretary to Government, Department of General Education
Director of Higher Secondary Education
Regional Deputy Director, Higher Secondary Education, Thiruvananthapuram
Manager, Seethi Sahib Memorial Higher Secondary School, Theyyalingal
Bini Krishnan

Legal Representation & Advocates

Counsels for Petitioners

• Kaleeswaram Raj
• V.A. Muhammed
• S. Sajjad
• K.K. Mohammed Ravuf

Counsels for Respondents

• M.J. Rajasree

Case Synopsis & Summary

The writ petitions concern rival claims to the post of HSST (Junior) History at Seethi Sahib Memorial Higher Secondary School, Theyyalingal (an aided institution). The Manager appointed Svetlana D. Bhai by direct appointment to HSST (Junior) (History). A competing claim was raised by Bini Krishnan, an HSA (Social Studies), who sought by-transfer promotion to the vacancy arising when a HSST was promoted to Principal and another HSST upgraded; she argued she fulfilled the essential qualifications and had a regular course of study. The petitions focused on two issues: whether Krishnan possessed the B.Ed by a regular course, and whether her status as a leave substitute in the relevant year disqualified her for promotion. The court examined Ext.P4 (B.Ed from University of Mysore) and Ext.P20 (Transfer Certificate showing regular study), noting the absence of evidence suggesting distance education, and Ext.P1 (staff fixation) showing Krishnan’s regular incumbency since 2002. It held Krishnan’s regular status and regular B.Ed requirement were satisfied; the reliance on the Indu T.K. decision to exclude her was rejected, as Indu T.K. does not apply to these facts. The court upheld the Deputy Director of Education’s order in WP(C) Nos.29540/2014 and 31090/2014, dismissed Svetlana’s challenge, and allowed WP(C) No.15184/2015, directing Krishnan to be appointed as HSST (Junior) (History) with effect from 01.06.2010, while the salary remedy rests with the Manager; costs imposed.

Legal Doctrines & Maxims

Regular course of study for B.Ed as essential for HSST (Junior) appointment
Leave vacancy vs regular cadre; by-transfer eligibility depends on regular incumbency
Indu T.K. principle distinguished/not applicable to these facts

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that Krishnan had a regular B.Ed and long-standing regular service, making her eligible for HSST (Junior) by-transfer; Indu T.K. doctrine was not applicable to her case since the vacancy was not a mere leave vacancy, and the HSA’s regular incumbency should be recognized. Svetlana’s challenge argued that direct appointment to HSST could undermine seniority and eligibility. The two-pronged eligibility analysis focused on qualifications (regular B.Ed) and service status (regular vs leave substitute).

Contentions of Respondents

The respondents contended Krishnan did not satisfy the regular B.Ed requirement and that the vacancy arose in the leave context; they relied on Indu T.K. and related doctrines. They argued Svetlana’s direct appointment was valid and that the 1:4 ratio and cadre rules governed promotions; the leave-substitute status, if any, affected eligibility. They urged dismissal of Krishnan’s by-transfer claim to preserve the Manager’s appointment.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Indu T.K.	—	Distinguished	Court held Indu T.K. has no application to the present facts.
T.K. v. Sharafudeen M. and others	2011 (2) KLT 368	Mentioned Only	Cited in background; not directly applied to the decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937** ## **WP(C).No. 29540 of 2014 (N)** ## **PETITIONER:** **SVETLANA D.BHAI, AGED 37 YEARS H.S.S.T. (HISTORY) SEETHI SAHIB MEMORIAL HIGHER SECONDARY SCHOOL THEYYALINGAL, THEYYALINGAL P.O., MALAPPURAM - 676 320.** ## **BY ADV. SRI.KALEESWARAM RAJ** **RESPONDENTS:** ## **1. STATE OF KERALA** - **REPRESENTED BY SECRETARY TO GOVENMENT DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION DIRECTORATE OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDING, SANTHI NAGAR THIRUVANANTHAPURAM - 695 001.** **3. THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION DEPARTMENT THIRUVANANTHAPURAM - 695 001.** ## **4. THE MANAGER** - **SEETHI SAHIB MEMORIAL HIGHER SECONDARY SCHOOL THEYYALLINGAL, THEYYALINGAL P.O., TIRUR TALUK MALAPPURAM - 676 320.** ## **5. BINI KRISHNAN** - **H.S.A (S.S) SEETHI SAHIB MEMORIAL HIGHER SECONDARY SCHOOL THEYYALINGAL, THEYYALINGAL P.O., TIRUR TALUK MALAPPURAM - 676 320.** **BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD SRI.K.K.MOHAMED RAVUF BY GOVERNMENT PLEADER SMT. M.J. RAJASREE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-01-2016, ALONG WITH WPC. 31090/2014 AND WPC. 15184/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 29540 of 2014 (N)** ## **APPENDIX** |**PETITIONER'S**|**EXHIBITS :-**|**EXHIBITS :-**| |---|---|---| |**-----------------------------------**||| |**EXT.P1**|**-**|**COPY OF THE COPY OF THE APPOINTMENT ORDER**| |||**DATED 16.08.2010.**| |**EXT.P2**|**-**|**COPY OF THE JUDGMENT DATED 18.06.2014 IN WPC**| |||**NO. 30729/2011.**| |**EXT.P3**|**-**|**COPIES OF THE RELEVANT PAGES OF THE ATTENDANCE**| |||**REGISTER.**| |**EXT.P4**|**-**|**COPY OF THE B.ED DEGREE PERTAINING TO THE 5TH**| |||**RESPONDENT.**| |**EXT.P5**|**-**|**COPY OF THE DEGREE CERTIFICATES (B.S HISTORY & B.ED**| |||**SOCIAL SCIENCE) OF THE PETITIONER.**| |**EXT.P6**|**-**|**COPY OF THE LETTER DATED 01.06.2012.**| |**EXT.P7**|**-**|**COPY OF THE ORDER DATED 15.10.2014.**| |**RESPONDENTS'**||**EXHIBITS:- NIL**| |**---------------------------------------**||| **//TRUE COPY//** **P.A. TO JUDGE** **sp** **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W ---------------------------------Dated this the 13[th] day of January, 2016** ## **JUDGMENT** The petitioners in W.P(C). Nos.29540 of 2014 and 15184 of 2015 are rival claimants to the post of HSST (Junior) (History) in the Seethi Sahib Memorial Higher Secondary School, Theyyalingal, an aided School; the Manger of which filed WP(C) No.31090 of 2014. The Manager appointed one Svetlana D Bhai as HSST (Junior) (History) in the respondent School by direct appointment. An HSA (Social Studies) in the very same School Bini Krishnan had a claim for by-transfer appointment to the vacancy, which arose on 01.06.2010. _W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W_ **2** 2. The admitted facts are that, the vacancy arose on one of the HSSTs being promoted as Principal and the HSST (Junior) (History) being upgraded as HSST, consequent to which, there was a vacancy in the post of HSST (Junior). It is also an admitted fact that going by the ratio of 1:4, the HSA had a claim to be posted as HSST (Junior) by virtue of her seniority in the High School. 3. The contention raised by the direct recruit and the Manager is that the HSA (Social Studies) did not satisfy the eligibility requirement for appointment as an HSST (Junior). The disability is raised on two aspects; one on the question of whether the HSA (Social Studies) had completed the B.Ed. course as a regular course and the second contention is that the HSA (Social Studies) was a leave substitute in the High School and she would be disentitled from seeking promotion as per the decision of this Court in **Indu** _W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W_ **3** ## **T.K. v. Sharafudeen M. and others [2011 (2) KLT** **368].** Hence, this Court has looked into only two contentions raised by the rival claimants and the Manager. 4. The learned counsel for the Manager asserts that the HSA (Social Studies) has the duty to convince the Manager that she had undergone regular course of study to obtain the B.Ed. Degree. Specifically, the distinction with respect to the requirement for appointment to the post of HSA and the requirement to the post of HSA is pointed out to show that the latter requires the qualification to be obtained after a regular course of study. 5. At the outset, it is to be noticed that, though the HSA (Social Studies) was admitted to be the senior most, entitled to appointment HSST [Junior], she was never asked to produce any evidence, as to whether she had undergone a regular post of study or not. The B.Ed. _W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W_ **4** Certificate of the HSA (Social Studies) is produced at Ext.P4 in WP(C) No.29540 of 2014, wherein, she is said to have acquired a Bachelor of Education Degree from the University of Mysore, having attended the examination held in the year 2007. 6. The HSA (Social Studies) in WP(C) No.15184 of 2015 has produced Ext.P20 Transfer Certificate issued by one Onkarmal Somani College of Education, wherein she is said to have studied between 04.11.1999 and 30.09.2000 in subjects of History and Geography. It is pertinent that the Certificate issued by the University of Mysore does not indicate whether the course was under the Distance Education Scheme, which is usually indicated if that is the case. The Transfer Certificate produced by the HSA (Social Studies) in her writ petition further indicate that she had undergone a regular course of study in a College affiliated to the University. In such circumstance, the HSA (Social _W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W_ **5** Studies) cannot be said to have been disentitled for reason of her not possessing the essential qualification. 7. The next contention raised, based on the aforecited judgment, is that the petitioner was continuing as a 'leave substitute'. It is to be specifically noticed that the HSST therein, who had sought for affirmation of her appointment by by-transfer method, had been an incumbent in the leave vacancy in the High School Section, which was only a temporary appointment, continued for the period of the leave. As far as the HSA (Social Studies) herein is concerned, the staff fixation order is produced as Ext.P1 in WP(C) No.31090 of 2014. The HSA is also seen to be a regular incumbent in the rolls of the School, having been so appointed on 15.07.2002 as an HSA (Social Studies). The appointment has also been regularly approved as is indicated from the endorsement in Ext.P19 in WP(C) No.15184 of 2015. _W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W_ **6** 8. The contention raised is that, in the subject academic year, when the vacancy arose, the HSA (Social Studies) was a substitute in the leave vacancy. A reading of Ext.P1 staff fixation order produced in WP(C) No.31090 of 2014 would indicate that there was a division fall and the HSA (Social Studies) would have been thrown out, but for the fact that a senior HSA (Social Studies) had proceeded on leave. In such circumstance, the regular hand was accommodated in the vacancy arising on leave, that cannot be said to be the appointment in a leave vacancy, but however retention of a regular hand in the rolls of the School, for reason of a senior having proceeded on leave. In such circumstance, the decision in **Indu T.K.** has no application. For all the above reasons, the order of the Deputy Director of Education bearing No.H/8793/2014/RDD/ MLPM/HSE dated 15.10.2014 produced as Ext.P7 in _W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W_ **7** WP(C) No.29540 of 2014 and as Ext.P5 in WP(C) No.31090 of 2014 is upheld. The said writ petitions are dismissed. WP(C) No.15184 of 2015 is allowed and the petitioner therein is directed to be given the appointment as HSST (Junior) (History) with effect from 01.06.2010. Parties are left to suffer their respective costs. The petitioner in WP(C) No.15184 of 2015 would be left her remedy to claim the salary from the Manager. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/13/01/16