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2001 DIGILAW 758 (KER)

Aravindakshan v. M. VS Secretary To Government

2001-12-20

BELLUR NARAYANASWAMY SRIKRISHNA, M.RAMACHANDRAN

body2001
JUDGMENT 1. This is one of vestigial vintage case which has fortunately seen the end today. 2. The petitioner was directly appointed as a High School Assistant (Mathematics) in the 5th respondent's school. Respondents 6 and 7 were also working as teachers in the said school, though teaching different subjects. During the academic year 1988-89 a vacancy of High School Assistant (Mathematics) occurred in the 5th respondent's School. This Was on the strength of the staff fixation under the applicable circulars of the Education Department. The management of the 5th respondent appointed the petitioner to the said Vacancy as High School Assistant (Mathematics) and issued an appointment Order, dated 8th June 1988. The said appointment order specifically provided that the appointment was subject to the provisions of the Kerala Education Act and the Rules contained therein and such other rules or orders issued from time to time by the Government or other competent authorities. The appointment order specifically certified that there was no qualified teacher existing in service under the educational agency who was eligible for promotion to the vacancy for which the appointment was made. When approval was sought from the authorities of the Education Department for approval of the petitioner's appointment, the District Educational Officer by his order Ext. P-3 dated 20th January 1989 declined to grant approval to the direct appointment of the petitioner as H.S.A. (Mathematics) with effect from 8th June 1988 for the additional post sanctioned for the year 1988-89 in the 5th respondent's school. He pointed out that there was one vacancy of H.S.A. in the High School, the incumbent appointed against the vacancy (petitioner) was a graduate in Mathematics, and as per the subject ratio, there were five sanctioned posts for Mathematics, but only four Mathematics hands. He highlighted the proviso to R.43 of Chapter XIV A of the Kerala Education Rules (hereinafter referred to as 'the Rules'), which was brought into force from 10th October 1988 and held that the minimum subject requirement for Mathematics as also Social Studies and Science in the school was already satisfied and hence the appointment of a fresh Mathematics hand was not justified. Consequently, he refused to grant approval to the appointment of the petitioner. The petitioner carried an appeal to the Deputy Director of Education. This appeal was rejected by the Deputy Director of Education by his Order dated dated 989 at Ext. P-5. Consequently, he refused to grant approval to the appointment of the petitioner. The petitioner carried an appeal to the Deputy Director of Education. This appeal was rejected by the Deputy Director of Education by his Order dated dated 989 at Ext. P-5. The Deputy Director of Education in his appellate order highlighted the proviso to R.43 of Chapter XIV A of the Rules that when there are trained graduates of Lower grade awaiting promotion they can be promoted to any posts of H.S.A. (Core Subject) if the minimum subject requirements are satisfied. According to the Deputy Director, the minimum subject requirements of Mathematics, Social Studies and Science were satisfied; since two claimants under R.43 in the Upper Primary Section (one Economics main and the ether Chemistry main) were there, unless relinquishment letters in the prescribed form were submitted by the said claimants, the appointment order issued to the petitioner could not be approved. The petitioner filed a further appeal to the Director of Public Instruction, which was also rejected by the Order dated 28th July 1989 at Ext. P-7, We may point out here that appeals were also similarly filed by the Manager of the 5th respondent school and and those appeals were also disposed of by common orders passed by the concerned authorities. Finally, a petition was filed by the petitioner before the State Government, which also came to be rejected on 17th October, 1989 by Ext. P-10 order. Being aggrieved, the petitioner is before this court. 3. The crux of the issue is, what is the meaning to be given to the newly inserted proviso to R.43 of Chapter XIV A of the Rules? Mr. Ramakumar, learned Counsel for the petitioner, emphasized the opening part of R.43 and contended that it was subject to the provisions of R.44 and 45 which meant that any person could not be appointed as High School Assistant in any vacancy of teacher of a subject, unless he was qualified la leach that particular subject. In other words, his contention that, if the vacancy is that of a Mathematics teacher no one other than a Mathematics graduate could he appointed. The argument no doubt is prima facie attractive. We may confess that it attracted earlier Division Benches also. But, as pointed out by the Full Bench of this court in Philomina v. Babu Varghese, 2001 KLT 519 : ILR 2001(2) Ker. The argument no doubt is prima facie attractive. We may confess that it attracted earlier Division Benches also. But, as pointed out by the Full Bench of this court in Philomina v. Babu Varghese, 2001 KLT 519 : ILR 2001(2) Ker. 409, reading the rule in such a manner as suggested by Mr. Ramakumar would totally negate the legal effect of the proviso added to the rule with effect from 6th January 1987. 4. R.43 as it stood at the material time read as under: "43. Subject to R.44 and 45 and consideration of efficiency 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 promotion to the post of High School Assistant (subject), the minimum subject requirements alone need be satisfied, to safeguard the interests 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." In Philomina's case (supra), the Full Bench was called upon to consider the correctness of the view of another Division Bench which had taken precisely the view which Mr. Ramakumar canvassed and, for support, relied on the Judgment in Babu Varghese v. Manager 1994 (1) KLT 557 . The Full Bench rejected the contention and pointed out that the words 'subject requirement' appearing in the proviso cannot be read as 'subject ratio'. Further, the Division Bench was of the view that the proviso had carefully stated that the benefit of the proviso can be given only when sufficient number of teachers are available in the core subject in which vacancies arise. It is only after considering all these things that the senior teacher in the core subject can be promoted. Further, the Division Bench was of the view that the proviso had carefully stated that the benefit of the proviso can be given only when sufficient number of teachers are available in the core subject in which vacancies arise. It is only after considering all these things that the senior teacher in the core subject can be promoted. It is one of the principles in service law that sufficient avenues should foe provided for the promotion of the members of service. If they are allowed to stagnate in a particular post, it will affect the efficiency in their service. It is taking into all these things that the proviso has been introduced. Hence, the Full Bench did not agree with the decision in 1994 (1) KLT 557 and 1996 (1) KLT 397 . The Full Bench pointed out that normally, if a vacancy arises of a teacher teaching a particular subject, it could be accepted that a teacher teaching the same subject or qualified in the same subject would be promoted as H.S.A. The proviso is intended to ensure that sufficient avenue of promotion is left open to other qualified graduate H. S. As. Hence, the proviso provides that as long as the subject minimum requirements are satisfied, it is permissible to fill a vacancy of H.S. A. in one particular subject by a teacher of other subject, as long as the incumbent is otherwise qualified to hold the post of H.S. A. Mr. Ramakumar emphasises the words 'qualified hands' and contends that this could only mean that the incumbent to be promoted to a vacancy of H.S. A. should be qualified in the same subject. We disagree. In our view, the expression 'qualified' is used to prescribe that the H.S. A. should have the minimum qualification required for holding the post of H.S. A. in any subject. This being the intendment of the rule, the contention of Mr. Ramakumar on both grounds has to be rejected. 5. In the result, we see no error in the orders of the departmental authorities at Exts. P-5, P-8 and P-10 by which the claim of the petitioner was rejected at all levels. This being the intendment of the rule, the contention of Mr. Ramakumar on both grounds has to be rejected. 5. In the result, we see no error in the orders of the departmental authorities at Exts. P-5, P-8 and P-10 by which the claim of the petitioner was rejected at all levels. In our view, the departmental authorities rightly held that the petitioner could not have been appointed directly in the vacancy of H.S.A. (Maths.) When other qualified trained graduate in the lower grades were available, particularly when the subject minimum requirement of Mathematics was satisfied. That it was satisfied is a matter which has been carefully assessed by the departmental authorities and it is not for us to take any different view in the matter. 6. We may, in passing, mention that the petitioner has already joined service somewhere else and this petition, though pending from 1989, has been pressed by Mr. Ramakumar only for the purpose of claiming arrears. In the View that we are taking, there is no question of the petitioner's appointment being approved by the departmental authorities; there cannot be any question of the petitioner being entitled to arrears under the rules. In the result, the Original Petition is dismissed. No order as to costs.