Deepa Augustine Vs. Geetha Alex & Ors.  INSC 838 (8 May 2008)
SUPREME COURT OF INDIA RECORD OF
PROCEEDINGS CIVIL APPEAL NO(s). 7944-7947 OF 2001 DEEPA AUGUSTINE Appellant (s)
VERSUS GEETHA ALEX & ORS. Respondent(s) (With appln(s) for PERMISSION TO FILE
ADDITIONAL AFFIDAVIT and office report ) Date: 08/05/2008 These Appeals were
called on for hearing today.
HON'BLE MR. JUSTICE A.K. MATHUR
HON'BLE MR. JUSTICE AFTAB ALAM For Appellant(s) Mr. B.V. Deepak, Adv.
for M/S. T.T.K. Deepak &
For Respondent(s) Mr. Romy
Mr. G. Prakash ,Adv UPON hearing
counsel the Court made the following ORDER The appeals are disposed of in terms
of the signed order.
(Sukhbir Paul Kaur) (P.S. Tyagi)
Court Master Court Master (Signed Order is placed on the file) IN THE SUPREME
COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.7944-7947 OF 2001
DEEPA AUGUSTINE Appellant(s) Versus GEETHA ALEX & ORS. Respondent(s) ORDER
We have heard learned counsel for the parties.
These appeals by special leave are
directed against the judgment and order dated 25th May, 2001 passed by the full
bench of the High Court of Kerala at Ernakulam in W.A. Nos. 1065-1068 of 1996.
The Kerala High Court has examined the proviso to Rule 43 of the Kerala Service
Rules, 1959 and observed :
"Thus, if a vacancy had
arisen in the post of Science Teacher, necessarily, the Science Teacher had to
be promoted. But what prompted the Government to introduce the Proviso is the
complaint made by certain sections of teachers that in the exigencies of
service promotions may be made considering the seniority of the teacher even
though he may not be qualified in the subject in which -2- vacancy arose. It is
to implement such a position that the Proviso was enacted. An argument was advanced
stating that the earlier circulars had been withdrawn and hence, they cannot be
looked into to ascertain the meaning of the words "subject
requirement" and finally they concluded :- "In view of the above, we
direct the Government to reconsider Ext. P7 and pass appropriate orders within
two months from today in the light of the principles held in this judgment.
Original Petition is disposed of."
Exhibit P-7 is an order passed by
the Kerala Government in a petition filed by the appellant before us on a
remand made by the Kerala High Court in a writ petition filed by the appellant.
In that, on 27th August, 1994 the Government passed the following order :-
"In the above circumstances Government order that the action of the
Manager, St. Michael's High School, Kudavachoor, Ambika Market P.O. in
appointing Smt. N.K.
Thressiamma a Social Studies hand
in the vacancy of a Physical -3- Science teacher will be set aside. The Manager
will appoint a proper Physical Science hand. While doing so, the Manager will
prefer claims if any put in by Smt. Deepa Augustine, who was appointed by the
Manager earlier and terminated subsequently. In the case of Smt. Geetha Alex
who claims a right to be appointed as H.S.A. (Physical Science) from 1993- 94,
the Manager will examine the issue as per subject ratio and available periods
In this background we have to
examine the case of the appellant. The appellant was initially appointed as
High School Assistant (Physical Science) on probation on 28th October, 1991 in
the vacancy of K.T. Thomas who was promoted as a Head Master. This was
protested by N.K. Thressiamma, a teacher in the Social Studies in the Upper
Primary Section. Therefore, the appointment of appellant was not approved by
the District Education Officer. Against that, the appellant filed an appeal
before the Government which was rejected. Aggrieved against that, she preferred
a Revision Petition before the State Government.
There also she failed. Thereafter,
she filed -4- a Writ Petition before the High court and the High Court remanded
the matter back to the Government and the Government thereafter passed the
order on 27th August, 1994 (Ex.P-7)and directed the Manager to consider the
case of Deepa Augustine against the Physical Science vacancy. This order was
challenged by N.K. Thressiamma and many other petitions were filed. A Full
Bench was constituted to examine the scope of Rule 43 and the Proviso along
with the order passed by the Government dated 27th August, 1994. In that
context, the Full Bench passed the order as quoted above.
However, now the situation has
changed. We have been informed that N.K. Thressiamma has since been
superannuated and the appellant is still working as a Physical Science Teacher.
Therefore, no useful purpose will be served by examining the effect of Full
Bench Judgment. However, the Full Bench has already observed that the
Government should re-examine the matter in the light of the decision given by
the Full Bench.
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 -5- 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 the person
who is being appointed to teach subject should possess minimum qualification of
However, now we need not dilate on
Section 43 and the Proviso thereunder because N.K. Thressiamma who is from
Social Studies has already superannuated and the appellant is working in the
Physical Science, the authorities may consider the appointment of the appellant
in Physical Science subject as she said to possess necessary qualification. We
leave it to the competent authority to consider the matter of the appellant and
pass appropriate orders in accordance with law.
The appeals are accordingly,