Smitha Johny Vs Josny
Varghese & Ors.
J U D G M E N T
ALTAMAS KABIR, J.
1.
1.
The Respondent No.1 herein sought a direction from the educational authorities
to promote her as High School Assistant (English), hereinafter
referred to as "HSA (English)", in a vacancy which, according to her,
had arisen on 1st April, 2005. One Smitha Johny, who was not initially
impleaded in the writ petition, got herself imp leaded as
Respondent No.5 and has filed the Special Leave Petition questioning the
judgment and order dated20th June, 2006, passed by the Kerala High Court at Ernakulam
in Writ Appeal No.1925 of 2005 and order dated 2nd August, 2006, passed by the
said High Court in Review Petition No.568 of 2006.
2.
2.
As mentioned hereinabove, the Respondent No.1,writ petitioner, who was serving
in St. George’s High School, Arakkunnam, as Upper Primary School Assistant,
hereinafter referred to as "UPSA", claimed promotion to a vacancy,
which, according to her, had occurred in HSA (English) on 1st April,2005. On
the other hand, the Petitioner was appointed as Lower Primary School Assistant,
hereinafter referred to as "LPSA", on 21st June, 2000, in the said
School and was serving in such capacity throughout. At the time of entering into
service, the Petitioner was a graduate in English and had also obtained
Teachers' Training Certificate (TTC). Subsequently, the Petitioner also
acquired a B.Ed. degree in English from the Kerala University.
3.
3.
The Writ Petitioner/Respondent No.1 claimed that she was a graduate in
the English language and had a B.Ed. degree and was, therefore, fully qualified
to be promoted to the post of HSA(English) in terms of the aforesaid Government
Order. It is also her case that one post of HAS (English) had been sanctioned
in terms of the staff fixation order for the year 2004-05. However, one Smt.
Alice Mathew, HSA (Social Science) who was not qualified as HSA (English), had
been permitted to continue in the post of HSA (English) to avoid retrenching
her. In the meantime, Smt. Lissy George K., Head Mistress of the School took voluntary
retirement with effect from 31st March,2004.Smt. Alice Mathew, being the
senior-most HSA, was accommodated against that vacancy.
4.
Consequently,
with effect from 1st April, 2005,a vacancy arose in the post of HSA (English) and
according to the writ petitioner/Respondent No.1,such vacancy was required to
be filled up by a qualified English Teacher. The Manager of the School, however,
without understanding the Government Order correctly, requested recall of the
Respondent No.4, a protected HSA (Social Science),but such request was turned
down. Thereupon, the writ petitioner/RespondentNo.1 submitted are presentation
that she be promoted to the said post under Rule 43 of Chapter XIV-A of the Kerala
Education Rules. Although, according to the writ petitioner/Respondent No.1,no sanction
was required for the said purpose and the Manager was free to promote her, the Respondent
No.4, Smt. Valsamma Pathrose, was recalled and she rejoined her duties. In the
writ petition the RespondentNo.1, therefore, prayed for a writ in the nature of
Mandamus or direction commanding the respondents, the Deputy Director
(Education), Civil Station, Kakkanad, the District Educational Officer, Ernakulam,
Kerala, and the Manager of the School to promote her to the post of HSA
(English), as on the date of the occurrence of the vacancy on 1st April,2005,
she was the only qualified candidate amongst the UPSA Cadre, who could be given
such promotion. A further prayer was made for a writ in the nature of Mandamus
to command the aforesaid respondents not to post Valsamma Pathrose in the
vacancy which had arisen in the post of HSA(English), with effect from 1st
April, 2005.
5.
The
writ petition filed by the Respondent No.1was rejected by the learned Single
Judge on 27thJuly, 2005,uponholdingthat since Smt. Alice Mathew was promoted as
Head Mistress on 31st March,2005 while she was holding the post of HSA (Social
Science), the vacancy created on account of her promotion was also to be
treated as that of HSA(Social Science), notwithstanding the fact that she 6had
been functioning as HSA(English).Accordingly, Valsamma Pathrose, a protected HSA(Social
Science) teacher working in a Government School would have to be recalled, as
otherwise, the Manager would have to appoint a new teacher in the resultant
vacancy of UPSA, if the Respondent No.1was promoted as HSA (English).
6.
Aggrieved
by the order of the learned Single Judge, the Respondent No.1 filed a writ appeal,
being WANo.1925/2005. Atthisstage it may be pointed out that on 15th June,
2005, the Petitioner herein got herself imp leaded as Respondent No.5 in the writ
petition filed by theRespondentNo.1herein claiming that the actual date of vacancy,
was 15.7.2005, the date on which the staff fixation order was to take effect,
and that she was fully qualified and was the senior-most in the cadre of HSA
(English) for promotion as HSA (English) in the vacancy caused by the promotion
of Smt.Alice Mathew to the post of Head Mistress. According to her, although, she
may not have possessed the requisite B.Ed. degree on 1st April, 2005, when Smt.
Alice Mathew was promoted to the post of Headmistress, subsequently she
acquired the said qualification when the results of the B.Ed. examination for the
year 2005 was published by the Kerala University on 29th June, 2005.
7.
The
Writ Appeal filed by the Respondent No.1was allowed on 20th June, 2006, upon
holding that when the vacancy occurred on 1st April, 2005, the Petitioner herein
did not possess the B.Ed. qualification, though she may have been senior to the
writ petitioner/Respondent No.1 and that it was in correct on the part of the
Petitioner to suggest that the vacancy had arisen from the date of the staff
fixation order. The Division Bench, accordingly, dismissed the claim of the
Petitioner hereinand heldthat the vacancy was of HAS (English). Furthermore, in
view of the Government Order dated 7th January, 2002, the Manager was not
8required to fill up the post of HSA with a protected teacher. However, the Division
Bench also heldthatsinceValsammaPathrosehadrejoined service, it would not be proper
to upset the arrangement. Accordingly, the Division Bench indicated as follows
:
".........Therefore,
wehold thatthe Petitioner/Appellant was not liable to be overlooked for
promotion being the only qualified hand. We are not unsettling the present
arrangements, since because of the subsequent development that a vacancy of HSA
has arisen during the current year. The appellant should be accommodated
thereto, for the reason that she had been denied her rightful claims during the
last school year, and she is entitled to the benefits of the declaration, we
have made above. The Writ Appeal is disposed of as above."
8.
The
review petition filed forreviewing the judgment was also dismissed on 2nd
August, 2006.
9.
It
is against the said two orders that the present Special Leave Petition has been
filed by Smitha Johny, who was imp leaded as Respondent No.5in the writ
proceedings.
10.
The
case sought to be made out on behalf of the Petitioner is that the vacancy
which had arisen on account of the promotion given to Smt. Alice Mathe won 1st
April, 2005, should have been for an HSA(Social Science) and not for an HSA
(English), as held by the High Court, since Smt. Alice Mathew was an HSA
(Social Science) during the academic year2004-05, when the vacancy had
occurred. Learned counsel appearing in support of the Special Leave Petition
submitted that the Division Bench of the High Court had erred in holding
otherwise. In this regard, reference was made to Rule 12 of the Kerala
Education Rules which deals with the strength of teaching staff. Learned
counsel pointed out that the actual attendance on the date of visit of
authorized persons, plus five per cent of the roll strength, not exceeding the
roll strength of each class alone, is to be reckoned as the effective strength
of the School for fixing the number of divisions and the strength of staff. Furthermore,
the staff sanctioned by the Competent Authority during the previous year would
continue till the14th of July of the succeeding year. Learned counsel submitted
that since the vacancy had occurred on 1stApril, 2005, during the continuance
of the staff sanctioned by the Competent Authority, the vacancy caused by the
promotion of Smt. Alice Mathew ahead Mistress should have been for an HSA (Social
Science Teacher)since Smt.Alice Mathew was holding the said post at the time of
her elevation. Learned counsel submitted that the Petitioner had been wrongly
denied her right to be promoted as HAS (Social Science) being the senior-most
High School Assistant in the School.
11.
Learned
counsel appearing for the respondent urged that the relief prayed for by the Petitioner
was misconceived since on the date of the vacancy, the Petitioner did not even possess
the B.Ed. qualification. The submission made on her behalf that the vacancy would
be deemed to have been created not from the date of the vacancy, but from the
date of the staff fixation order, is entirely misconceived, as has been held by
the Division Bench of the High Court, while disposing of the appeal preferred
by the Respondent No.1 herein.
12.
Having
considered the submissions made on behalf of the respective parties, we are not
inclined to interfere with the impugned judgment of the High Court since, in
our view, the High Court has correctly analysed the position consequent upon
the elevation of Smt. Alice Mathew as Headmistress of the School. The Division
Bench of the High Court has dealt with the provisions of Rule 7A(2)of Chapter
XIV-A of the Kerala Education Rules, which provides that the posts which fell
vacant on closing date are to be filled up only by there opening date. The High
Court has rightly held that the staff fixation order for the ensuing year did
not result in reduction of posts available and that it could not be disputed
that the vacancy came to exist because of the promotion of Smt. Alice Mathew.
Moreover, since the Petitioner did not have the B.Ed. qualification as was
required as an essential requisite on 1st April, 2005, we agree with the High
Court that she was not eligible for being considered for filling up the
vacancy.
13.
Rule43of
ChapterXIV- Aof the Kerala Education Rules as it stood at the relevant time and
was relied upon by the Writ Petitioner/Respondent No.1, is extracted below : "43.
Subject to Rules 44 and 45 and considerations of efficiency and any general
order that may be issued by the Government, vacancies in any higher grade of
pay shall be filled up by promotion of qualified hands in the lower grade
according to seniority, if such hands are available: Provided that in the case
of promotions to the post of High School Assistant (subject), the minimum subject
requirements alone need be satisfied, to safeguard the interest of trained
graduates who are awaiting promotions as High School Assistants. Note.- (1) A
teacher in a lower grade of pay in one category of post is eligible for
promotion to a higher grade of pay in another category of post provided:(i) he has
the prescribed qualifications; and(ii) there is no teacher with the prescribed
qualifications in the lower grade of pay of the category of post to which
promotions are to be made. Note.- (2) Promotion under this rule shall be made
from persons possessing the prescribed qualifications at the time of occurrence
of vacancy."It is not in dispute that as per Rule 43 of Chapter XIV-A of
the Kerala Education Rules, a U.P.S.A. who is qualified for the post of HSA has
a claim for promotion to the post of HAS against a vacancy arising in the same School.
As per Note (2) under Rule 43, promotion under the said rule shall be made from
persons possessing the prescribed qualifications at the time of occurrence of
vacancy (emphasis supplied). It is not disputed that as on 1st April, 2005, the
Petitioner,
14.
Smt.
Smitha Johny, did not possess the prescribed qualifications for the post of HSA
(English), whereas the RespondentNo.1Smt.Josny Varghese did possess the qualifications.
It is clear from the pleadings in the case that as on 1st April, 2005, Smt.
Josny Varghese was the only U.P.S.A. working in the School who was qualified
for promotion as HSA(English).Even according to the Petitioner, she acquired
the qualification of B.Ed. in English only on 1st July, 2005. Hence, if a
vacancy of HAS (English) arose in the School on 1st April, 2005,the Respondent No.1
Josny Varghese, being the only U.P.S.A. qualified for the post of HSA
(English),was entitled to be promoted against the said vacancy in preference to
the Petitioner Smt. Smitha Johny who, though senior to Smt. Josny Varghese, was
not qualified for the post of HSA (English) on the date of occurrence of the
vacancy. Hence, the next question is whether a vacancy of HSA (English) arose
in the School on 1stApril, 2005, as contended by the Respondent No.1.According
to the staff fixation for the academic year 2004-05, there was only one post of
HSA(Social Science) in the St. George High School, Arakkunnam. As against one
sanctioned post, there were two teachers, Smt. Alice Mathew and Smt.
P.P.Leelamma, working as HSA (Social Science). Since Smt. Alice Mathew was senior
to Smt. P.P. Leelamma, Smt. Alice Mathew was rightly accommodated in the only
post of HSA (Social Science). Since there was a sanctioned post of HSA
(English) and since, as per Annexure P1 G.O.(MS) No.11/2002/G.Edu. dated
7thJanuary, 2002, the creation of the new cadre of HSA(English) should not
cause retrenchment of existing HSAs in the core subjects, the management and
the education authorities allowed Smt. P.P. Leelamma to continue in the School
against the sanctioned post of HSA (English), though she was not qualified for the
post of HSA (English). Later, in the vacancy of Headmistress which arose on 1st
April, 2005, Smt.AliceMathew, HAS (Social Science)was promoted w.e.f. 1st April,2005.
Consequent on the said promotion of Smt. Alice Mathew as Headmistress, the post
of HSA(Social Science) held by her was vacated by her w.e.f. 1st April, 2005.
But a vacancy of HSA (Social Science) did not actually arise, as Smt. P.P.
Leelamma was already available in the School to occupy the post of HSA (Social Science)vacated
by Smt.Alice Mathew. If Smt.P.P.Leelamma was accommodated in the only post of
HSA(Social Science) w.e.f. 1st April, 2005, the only vacancy available as on
1st April, 2005 was in the postof HSA(English).Thus, a vacancy of HSA(English)
arose in the School on 1st April, 2005.Smt. Valsamma Pathrose, who was not
qualified for the post of HSA (English) and who was working as HSA (Social
Science) in a Government School as a protected teacher, could not be
accommodated in the post of HSA (English).During the academic year2004-05, Smt.
P.P. Leelamma, HSA (Social Science)had been allowed to continue in the School against
the post of HSA (English) in terms of Annexure P1Government Order dated 7th
January, 2002 to avoid her retrenchment. Such a benefit could not be claimed by
Smt. Valsamma Pathrose who was working in another School and who did not face any
retrenchment on account of the creation of the cadre of HSA(English).Thus, the post
of HSA(English) fell vacant on 1st April, 2005, when Smt. Alice Mathew, HSA
(Social Science) was promoted as Headmistress w.e.f. 1st April, 2005 and Smt.
P.P.Leelamma was accommodated in the resultant vacancy of HSA (Social
Science).When the vacancy of HSA(English) arose on 1st April, 2005, the
RespondentNo.1, Smt. Josny Varghese, was the only U.P.S.A. qualified for the
post of HSA (English) and hence she was entitled to be promoted against the
said vacancy. Though the Petitioner Smt. Smitha Johny was senior to the
respondent, she was not qualified for the post of HSA (English) as on 1st
April, 2005and hence, she had no claim for promotion to the said vacancy.
15.
There
is no legal basis for the contention of the Petitioner that the vacancy of HSA
(English)would have arisen only on 15th July, 2005, when the staff fixation for
the academic year 2005-06 was made. Admittedly, a post of HSA (English)was
sanctioned for the School in the staff fixation for the year 2004-05. No
appointment was made against the said post of HSA (English) as one excess
HSA(Social Science) was allowed to continue in the School against the said post,
to avoid her retrenchment. As per Rule 12 of Chapter XXIII of the Kerala
Education Rules, the staff sanctioned by the competent authority during the
previous year shall continue till the14thofJuly of the succeeding year. Therefore,
the post of HSA(English)sanctioned in the staff fixation for the year 2004-05
continued till 14th of July, 2005.Whenthe excess HSA(Social Science) Smt. P.P.Leelamma,
who was continuing against the post of HSA (English), was accommodated in the
vacancy of HSA (Social Science) which arose on 1st April,
2005,duetothepromotion of Smt.Alice Mathew, HSA(Social Science) as
Headmistress, the post of HSA(English) would fall vacant w.e.f. 1st April,
2005and the Respondent No.1, being the only U.P.S.A. qualified for the post of HSA
(English), was entitled to be promoted in the said vacancy.
16.
The
directions ultimately given by the Division Bench have not been questioned by
the RespondentNo.1 herein possibly because of the fact that while expressing unwillingness
to unsettle the settled position, the High Court was also of the view that
since the Respondent No.1 was the only qualified hand, she was entitled to be considered
for promotion, particularly since a vacancy of HSA had occurred during the said
period. The Division Bench gave a direction that the Respondent No.1should be
accommodated therein.
17.
In
our view, the decision of the Division Bench of the High Court does not call for
any interference and the Special Leave Petition is, therefore, dismissed.
18.
There
will, however, be no order as to costs.
................................................J.(ALTAMAS
KABIR)
................................................J.(CYRIAC
JOSEPH)
New
Delhi
Dated:22.10.2010
Back