V.V. Enitt vs State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943** ## **WP(C) NO. 30378 OF 2013** ## **PETITIONER:** V.V. ENITT, AGED 43 YEARS W/O T.PAUL VARGHESE,UPPER PRIMARY SCHOOL ASSISTANT,CHAMY AIYER HIGHER SECONDARY SCHOOL,PERUVEMBA,PALAKKAD DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR ## **RESPONDENTS:** |1|THE STATE OF KERALA| |---|---| ||REPRESENTED BY ITS SECRETARY TO GOVERNMENT,GENERAL| ||EDUCATION DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM-| ||695001.| |2|THE DIRECTOR OF HIGHER SECONDARY EDUCATION| ||HOUSING BOARD BUILDINGS,SANTHI| ||NAGAR,THIRUVANANTHAPURAM-695001.| |3|THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY| ||EDUCATION, EDAPPALLY,ERNAKULAM DISTRICT-682024.| |4|THE MANAGER, CHAMY AIYER HIGHER SECONDARY| ||SCHOOL,PERUVEMBA,PALAKKAD DISTRICT-678506.| |5|SRI.R.BAGYANATHAN,HIGHER SECONDARY SCHOOL| ||TEACHER(ECONOMICS)(NOT APPROVED),CHAMY AIYER HIGHER| ||SECONDARY SCHOOL,PERUVEMBA,PALAKKAD DISTRICT-678506.| ||BY ADVS.| ||GOVERNMENT PLEADER| ||DR.GEORGE ABRAHAM| **2** ## **WP(C) NO. 30378 OF 2013** G.P V. VENUGOPAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 30378 OF 2013** **3** ## **JUDGMENT** The petitioner – who is working as an Upper Primary School Teacher in “ Chamy Aiyer Higher Secondary School”, Palakkad, has approached this Court impugning the “by-transfer” promotion given to the 5[th] respondent by the 4[th] respondent – Manager of the School, asserting that he was not qualified to be granted the said benefit at the time when the vacancy of Higher Secondary School Teacher (junior) arose. 2. According to the petitioner, the vacancy in question must be construed to have arisen on 06/08/2011 because, through Ext.P5 order dated 24.102011, the Government created the said post specifically with effect from that date, along with various other posts in different Schools in the State of Kerala. 3 The petitioner thus asserts that unless the 5[th] respondent can demonstrate to be qualified on 06.08.2011, he could not have been appointed by the Manager; and thus prays that Exts.P8 and P12 orders, granting him the said benefit and approval to the same respectively, be quashed. **WP(C) NO. 30378 OF 2013** **4** 4. I have heard Smt.P.A.Jenzia – learned counsel appearing for the petitioner; Dr.Geroge Abraham – learned counsel appearing for the 5[th] respondent and the learned Government Pleader, appearing for the Official respondents– Sri.V.Venugopal. 5. Smt.P.A.Jenzia began her submissions relying on a judgment of a learned Judge of this Court in _**M.Anitha and Another Vs. State of Kerala and Others**_ (WPC No.38571/2017), in which, she pointed out, it has been declared that the vacancy should be construed to have arisen on 06.08.2011 and therefore, that unless a candidate is found fully qualified on that day, he or she cannot stake claim to be appointed to it “by-transfer”. Smt.P.A.Jenzia submitted that since the facts of this case are analogous to the facts noticed by the learned Judge in the afore judgment, the petitioner is entitled to be granted similar relief and thus prayed that this writ petition be allowed. 6. In reply Dr.George Abraham – appearing for the 5[th] respondent, submitted that the afore cited judgment will have to **WP(C) NO. 30378 OF 2013** **5** be construed as being _per incuriam_ because, even prior to it, a learned Division Bench of this Court in _**Stella C.M. v. P.L.Resmi and Others**_ [2019 (3) KLT 599] had declared the law affirmatively that the qualification required for being appointed would have to be on 24.10.2011, which is the date of Ext.P5 order and not on 06.08.2011, which is the date from which the creation of the post had been given retrospective effect. The learned counsel submitted that since _**M.Anitha**_ (s _**upra)**_ had been delivered by the learned Judge of this Court without noticing the binding precedent in _**Stella C.M (supra),**_ the petitioner cannot seek any benefit arising from the former. He, therefore, prayed that this writ petition be dismissed. 7. The learned Government Pleader – Sri.V.Venugopal, submitted that the Government is also of the view that the relevant date, for reckoning the qualification, is 24.10.2011 – which is the date of Ext.P5 order; and not 06.08.2011. He added that the 5[th] respondent is admitted to have obtained this qualification at least on 29.09.2011, and hence that he was entitled to be appointed to **WP(C) NO. 30378 OF 2013** **6** the vacancy in question. He explained that even though the Final Degree Certificate of the said respondent, namely Ext.R5(b) is dated 09.11.2011, the provisional Degree Certificate produced by him before the competent Authority was dated 29.09.2011 and therefore, that he satisfied the qualifications on that date. He submitted that, therefore, since the Government was considering the attainment of qualifications by the candidates on 24.10.2011, the 5[th] respondent was found fully qualified and that it was, therefore, that his approval to his appointment was granted. 8. I have evaluated the afore submissions on the touchstone of the various materials available on record. 9. It is the specific case of the petitioner that _**M.Anitha (supra)**_ covers the field from the stand point of the factual circumstances pleaded and admitted. However, as rightly stated by Sri.George Abraham, _**M.Anitha (supra)**_ has been delivered by a learned Judge of this Court without noticing _**Stella C.M (supra)**_ which is a judgment of a learned Division Bench, in which the declarations of law have been affirmatively made as order: **WP(C) NO. 30378 OF 2013** **7** _The entire controversy revolves around the date of acquisition of qualification of the appellant. We do not agree with the appellant that merely because R.43 and Chapter XIV – A 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 R.43 Note (2) was relied on; which according to the appellant cannot apply to the higher secondary section. It is also relevant that R.2 of Chapter XXXII a non-obstante clause makes the method of appointment and qualification of teachers and non-reaching 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 insofar as the appointment or promotion to a post with a required qualification. Such a principle also would advance transparency and ensure that there is no nepotism insofar as the appointing authority delaying the selection so as to enable a favoured person to acquire the required qualification for the post._ _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_ **WP(C) NO. 30378 OF 2013** **8** _again look at Ext.P1 which is dated 24.10.2011. The retrospective effect, from 06.08.2011 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 06.08.2011 will not be confirmed in that posts nor would a new appointee be entitled to even notional consideration of appointment with retrospective effect from 06.08.2011. It is also pertinent that the creation of 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 insofar 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 i.e. 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._ 10. It is, therefore, ineluctable that what has been declared **WP(C) NO. 30378 OF 2013** **9** by the learned Division Bench, after specifically assessing Ext.P5 Government Order, is that qualifications will have to be seen to have been attained by a candidate on 24.10.2011 and not 06.11.2011, as has been asserted by the petitioner. 11. Obviously, therefore and since the petitioner has no case that the 5[th] respondent was not qualified at least on 29.09.2011 – being the date of his provisional degree certificate, I cannot find favour with the petitioner’s contentions based on ## _**M.Anitha (supra).**_ When I say as afore, I am certainly cognizant of the adscititious submissions of Smt.P.A.Jenzia, relying upon the Full Bench judgment of this Court in _**Varghese and others vs. State of Kerala**_ [1981 KLT 458 (FB) that the qualification will have to be acquired on the date on which the vacancy arises. There can be no dispute about this. However, in _**Stella C.M (supra),**_ interpreting Ext.P5 Government Order, it has been declared that the requirement of qualification being acquired at the time of occurrence of vacancy would stand satisfied if the candidate, who **WP(C) NO. 30378 OF 2013** **10** seeks appointment “by-transfer” had acquired it on 24.10.2011, which is the date of the said order. It is pertinent that the declarations in _**Stella C.M (supra)**_ were made after noticing all the earlier precedents, and adverting to the specific facts involved in this matter – that the Government Order, namely Ext.P5, herein was issued on 24.10.2011, creating the posts retrospectively with effect from 06.08.2011. Obviously, therefore, since the _**Stella C.M (supra)**_ covers the field, on an interpretation of the specific Government Order, I am certain that I am also bound by the same; and consequently, am of the view that the petitioner cannot be entitled to seek any relief based on _**M.Anitha (supra).**_ In the afore circumstances and for the reasons above, and being guided by the judgment of the learned Division Bench in _**Stella C.M (supra),**_ I dismiss this writ petition, without granting any relief to the petitioner. Sd/- ## **DEVAN RAMACHANDRAN** **JUDGE** SAS/03/08/2021 **WP(C) NO. 30378 OF 2013** **11** ## **APPENDIX OF WP(C) 30378/2013** PETITIONER'S ANNEXURE |EXT.P1|TRUE COPY OF THE APPOINTMENT ORDER OF THE| |---|---| ||PETITIONER DATED 19.6.1993| |EXT.P2|TRUE COPY OF THE CERTIFICATE OF MASTER OF| ||ARTS ISSUED BY THE ANNAMALAI UNIVERSITY| ||DATED 10.1.2001| |EXT.P3|TRUE COPY OF THE ELIGIBILITY CERTIFICATE| ||ISSUED BY THE KERALA UNIVERSITY DATED| ||27.11.2000| |EXT.P4|TRUE COPY OF THE CERTIFICATE OF SET| ||ISSUED BY THE KERALA GOVERNMENT DATED| ||17.3.2004.| |EXT.P5|TRUE COPY OF THE G.O.| ||(RT)NO.211/2011/G.EDN.DATED 24.10.2011 OF| ||THE GOVERNMENT| |EXT.P6|TRUE COPY OF THE APPEAL FILED BEFORE THE| ||3RD RESPONDENT DATED 05.03.2012| |EXT.P7|TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT| ||DATED 9-3-2012.| |EXT.P8|TRUE COPY OF THE ORDER| ||NO.B4/8299/RDD/HSE/2012 OF THE 3RD| ||RESPONDENT DAZTEAD 31.5.2012.| |EXT.P9|TRUE COPY OF THE ORDER| ||NO.B4/19290/2011/HSE DATED 26.3.2013 OF| ||THE 3RD RESPONDENT| |EXT.P10|TRUE COPY OF THE APPEAL FILED BEFORE THE| ||GOVERNMENT DATED 11.10.2012| |EXT.P11|TRUE COPY OF THE JUDGMENT IN W.P.| ||(C)25406/2012-A DATED 30.10.2012| **WP(C) NO. 30378 OF 2013** **12** |EXT.P12|TRUE COPY OF THE G.O.| |---|---| ||(RT),5108/2013/G.EDN.DATED 29.11.2013 OF| ||THE GOVERNMENT| |EXT.P13|TRUE COPY OF THE INTERIM ORDER IN W.P.| ||(C)26233/2013-D DATED 28.10.2013| |EXT.P14|TRUE COPY OF THE HEARING NOTES SUBMITTED| ||BEFORE THE GOVERNMENT WITHOUT ANNEXURES| |RESPONDENTS' EXHIBITS|| |EXHIBIT R5A|A COPY OF THE DETAILS PUBLISHED IN THE| ||OFFICIAL WEBSITE OF THE UNIVERSITY| |EXHIBIT R5B|A COPY OF THE DEGREE CERTIFICATE DATED| ||9.11.2011| |EXHIBIT R5C|A COPY OF THE NOTIFICATION PUBLISHED IN| ||THE MALAYALA MANORAMA DATED 2ND NOVEMBER,| ||2011| |EXHIBIT R5D|A COPY OF THE CIRCULAR DATED 15.11.2011| ||OSSIED BY THE REGIONAL DEPUTY DIRECTOR,| ||HIGHER SECONDARY EDUCATION| |EXHIBIT R5E|A COPY OF THE PROCEEDINGS OF THE REGIONAL| ||DEPUTY DIRECTOR, HIGHER SECONDARY| ||EDUCATION DATED 18.12.2013| |EXHIBIT R5F|A COPY OF THE INTERIM ORDER IN W.P.(C)| ||NO.28054/13| |EXHIBIT R5G|A COPY OF THE JUDGMENT IN W.P.(C)| ||NO.28054/13| |EXHIBIT R3A|TRUE COPY OF THE EARLIER| ||ACD.B5/47005/HSE/2010 DATED 15.11.2011|