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2018 DIGILAW 983 (KER)

P. L. Rasmi v. State of Kerala

2018-12-03

N.NAGARESH

body2018
JUDGMENT : The issue arising for consideration in the writ petition is the seniority between the petitioner and the contesting 4th respondent and their eligibility for appointment by transfer to the post of Higher Secondary School Teacher. 2. The petitioner contends that she was appointed as HSA (Malayalam) on 28.08.1997 in St. Joseph's High School, Mathilakam, though the approval in respect of the said appointment was granted only from 22.06.1998. The petitioner acquired all the requisite qualifications for appointment as HSST (Malayalam) by April, 1997. The petitioner contends that the 4th respondent, who was also working in the same school, acquired the requisite qualifications for appointment as HSST only by September, 2011. When Plus Two course was started in the school on 13.08.2010, there occurred three vacancies of HSST in the school, with effect from 06.08.2011. The petitioner immediately represented to the Manager on 22.11.2011 to promote the petitioner as HSST (Malayalam) under 25% quota earmarked for “by transfer”. The petitioner represented before the Regional Deputy Director of Higher Secondary Education also. The petitioner was, in fact, selected for appointment as per Ext.P4 proceedings of the Selection Committee and the petitioner was appointed as HSST (Malayalam) from 08.12.2011 onwards. 3. The petitioner contends that four teachers were selected under the 25% “by transfer” quota and the petitioner ranked third among them. The date of occurrence of vacancy was 06.08.2011. A.P. Laly, P.J. Dominic Savio and the petitioner were qualified for appointment to the post of HSST as on the date of occurrence of vacancy. The petitioner contended that without considering the eligibility aspects, the Regional Deputy Director of Higher Secondary Education rejected the request of the petitioner to approve her appointment, as per Ext.P7. The petitioner thereupon filed Ext.P8 revision petition before the Government. As the revision petition remained unattended, the petitioner filed W.P.(C) No.27474/2012 before this Court. This Court disposed of the writ petition directing the 1st respondent-State of Kerala to pass appropriate orders on the revision, in accordance with law. 4. Consequently, the 1st respondent conducted a hearing of the affected parties. The 1st respondent was of the opinion that the 4th respondent has entered in service as HSA on 05.08.1996 whereas, the petitioner entered in service only on 27.08.1997. 4. Consequently, the 1st respondent conducted a hearing of the affected parties. The 1st respondent was of the opinion that the 4th respondent has entered in service as HSA on 05.08.1996 whereas, the petitioner entered in service only on 27.08.1997. The 4th respondent's date of commencement of continuous service was with effect from 02.06.1997 whereas, the date of commencement of continuous service of the petitioner was only with effect from 22.06.1998. The 4th respondent acquired all the eligibility conditions for appointment to the post of HSST by 16.09.2011. The vacancy was notified only on 18.11.2011. The selection was conducted on 05.12.2011. According to the 1st respondent, the 4th respondent was fully qualified for appointment as HSST when the selection was conducted on 05.12.2011 and she was senior to the petitioner. On these premises, the 1st respondent rejected the contention of the petitioner that the petitioner has a superior claim over the 4th respondent. The petitioner has challenged Exts.P7 and P10 orders and has prayed to command the Regional Deputy Director to approve the appointment of the petitioner as HSST (Malayalam) from 08.12.2011 onwards against the third post/vacancy under 25% quota and grant her consequential benefits. 5. The 4th respondent contested the writ petition by filing a detailed counter affidavit. According to the respondent, 4th she entered in service as HSA (Mathematics) from 05.08.1996 whereas, the petitioner entered in service as HSA (Malayalam) only on 28.08.1997. The appointment of the 4th respondent was approved earlier, before the appointment of the petitioner was approved. The respondent acquired Post Graduation in Mathematics in August, 2011 from Madurai Kamaraj University and a Provisional Certificate and Equivalency Certificate from Mahatma Gandhi University dated 27.10.2011 were issued. It is the contention of the 4th respondent that the petitioner is not qualified for the post of HSST (Malayalam) since she has no Degree in Malayalam and B. Ed in Malayalam. The petitioner's Degree is in Mathematics and she possessed B.Ed also in Mathematics. Only the petitioner's Post Graduation was in the subject Malayalam. Therefore, the contention of the 4th respondent is that the petitioner is not qualified for the post of HSST (Malayalam) whereas, the 4th respondent is fully qualified for appointment as HSST (Mathematics). The 4th respondent further contended that the petitioner cannot have any claim against another teacher in another subject. Only the petitioner's Post Graduation was in the subject Malayalam. Therefore, the contention of the 4th respondent is that the petitioner is not qualified for the post of HSST (Malayalam) whereas, the 4th respondent is fully qualified for appointment as HSST (Mathematics). The 4th respondent further contended that the petitioner cannot have any claim against another teacher in another subject. There is no conflict of interest between the petitioner and the 4th respondent, as the petitioner cannot aspire for appointment to the post of HSST (Mathematics). 6. I have heard Advocate K.C. Eldho appearing for the petitioner, Advocate S. Sujin appearing for the 4th respondent and the learned Government Pleader. According to the learned counsel for the petitioner, the legal position regarding the qualification as on date of arising of vacancy has been considered by a Division Bench of this Court in Henry Gomez v. Government of Kerala [ 1993 (2) KLT 883 ] and this Court held that it is the date on which the vacancy arose is crucial for deciding the eligibility of the aspirants. Ext.P10 is against the dictum laid down by this Court. The learned counsel for petitioner further contended that respondents 1 and 2 did not take into account Note (2) of Rule 43 of Chapter XIV A of the Kerala Education Rules. The Note clearly mandates that promotion under the Rule shall be made from persons possessing the prescribed qualifications at the time of the occurrence of vacancy. The counsel for the petitioner further contends that in spite of specific reference made by the petitioner in Ext.P8, respondents 1 and 2 have not considered the aspect of the date on which the vacancy arose and the date on which the 4th respondent acquired the eligibility qualifications. The learned counsel for the petitioner relied on the judgment of the Apex Court in Jenany v. Rajeevan [2010 (2) KLT 630 (SC)], a Full Bench judgment of this Court in Varghese and others v. State of Kerala and others [ 1981 KLT 458 (FB)] and the judgment in Prem Chandran v. Deputy Director of Education [2001 (3) KLT S.N. 22 (C.No.29)] also. 7. The counsel for the 4th respondent reiterated that the 4th respondent had acquired all the eligibility qualifications when selection was made. 7. The counsel for the 4th respondent reiterated that the 4th respondent had acquired all the eligibility qualifications when selection was made. The 4th respondent is senior to the petitioner taking into account both, the date on which they entered in service as also the date from which they commenced continuous service. The petitioner is not qualified at all to be appointed as HSST (Malayalam) as her Degree and B.Ed were not in the subject Malayalam. To the contrary, the 4th respondent has all the qualifications for appointment as HSST (Mathematics) and the subject in which the 4th respondent acquired the requisite qualifications is Mathematics. Advocate S.Sujin further urged that the petitioner cannot challenge the appointment of the 4th respondent to the post of HSST (Mathematics) since she has no claim for that post and there is no conflict of interest between the petitioner and the 4th respondent in the matter of filling up the vacancy of HSST (Mathematics). The learned counsel for the 4th respondent submitted that the writ petition has been filed by the petitioner on wrong appreciation of law and facts and it is only to be dismissed. 8. I have perused the pleadings and considered the arguments made by the counsel for the petitioner and respondents. Note (2) appended to Rule 43 of Chapter XIV A of the Kerala Education Rules, 1959 reads as follows:- “Note:-(2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy.” The issue as to which would be the relevant date for possessing prescribed qualification for appointment to the posts governed by the Kerala Education Act, 1958 came up for consideration before the Apex Court in Jenany v. Rajeevan [2010 (2) KLT 630 (SC)]. Considering the facts involved in the said case, the Apex Court came to the conclusion that the relevant date would be the date when the vacancy had arisen and not the date when a candidate actually joined the service. Considering the rules involved in the matter, the Apex Court considered a passage from Craies on Statute Law to the following effect:- “'.... Considering the rules involved in the matter, the Apex Court considered a passage from Craies on Statute Law to the following effect:- “'.... It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed' … that in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory.” The Apex Court accordingly held that looking at the matter from all angles, the judgment impugned therein has to be set aside. The judgment of the Apex Court squarely covers the issue. 9. The issue regarding the crucial date relevant for considering the eligibility for appointment/promotion came up for consideration before a Full Bench of this Court in Varghese and others v. State of Kerala and others [ 1981 KLT 458 (FB)]. Though the issue dealt with in the said judgment of the Full Bench was coming under the Kerala State and Subordinate Services Rules, the principle of law is relevant here. The Full Bench held that- “It is the time of occurrence of vacancy that should be relevant for determining the question of promotion and not the time the order of promotion is passed. The relevant date must be definite and not depending upon the volition of the authorities as otherwise the determination would be arbitrary. If it were to be the date of promotion that is to be relevant for determining the title to such promotion the rule is capable of arbitrary exercise. Even if it is honest exercise that would be arbitrary because the fate of the service career will depend in each instance upon the time taken by the concerned authority in passing the order of promotion.” Coming to the said conclusion, the Full Bench took into account the decision in James Thomas v. Chief Justice [ 1977 KLT 622 ] also. 10. In Henry Gomez (supra), a Division Bench of this Court again considered the issue in great elaboration and the Division Bench held that - “The relevant date must be definite and not depend upon the volition of the authorities. 10. In Henry Gomez (supra), a Division Bench of this Court again considered the issue in great elaboration and the Division Bench held that - “The relevant date must be definite and not depend upon the volition of the authorities. Otherwise the determination on the claim for promotion would be arbitrary. If the qualification is to be decided with reference to the date of promotion, it will certainly lead to arbitrary exercise of power. Another Full Bench of this Court in Varghese & others v. State of Kerala & Ors. 1981 KLT 458 went into the question as to what should happen in a situation where there was none qualified on the date of occurrence of the vacancy and a junior becomes qualified subsequently. It took the view that there will be no difference whether the vacancy existed already or the vacancy occurred after the junior became qualified. If there was a vacancy as and when a person becomes qualified for being promoted to such vacancy, he would be entitled to be considered for promotion to that vacancy. If there was no vacancy when a person becomes qualified for promotion and vacancy arose while he would remain qualified, his case for promotion is to be considered as and when vacancy arose.” The said Division Bench judgment would apply to the case on hand also. 11. It may be noted that the issue involved in the present case stems from sanctioning large number of vacancies with effect from 06.08.2011 consequent to the introduction of Plus Two course in Kerala. In such circumstances, exactly an identical issue came up for consideration before this Court in Radhakrishnan v. Director of Higher Secondary Education and others [W.P.(C) Nos.865/2014, 31505/2013 and 1837/2014]. In similar circumstances, a learned Single Judge of this Court held that identification of qualified hands has to be made on the date of occurrence of vacancy and this is so, with a definite purpose, to ensure that already qualified hands are to be appointed to the vacancies and the Manager does not wait for an unqualified hand to acquire such qualification. The learned Single Judge further held that what has been stated with respect to the vacancies equally applies in the case of new sanctioned posts also. The learned Single Judge further held that what has been stated with respect to the vacancies equally applies in the case of new sanctioned posts also. Therefore, in view of the aforesaid decisions of the Apex Court, Full Bench and Division Bench of this Court, one cannot harbour any doubt as to the relevant date for satisfying the eligibility conditions for appointment/promotion to a post. 12. The contention of the counsel for the 4th respondent is that though the date of occurrence of vacancy is taken as the relevant date, the petitioner will still not be eligible for appointment to the post of HSST (Malayalam). It is the contention of the 4th respondent that for appointment to the post of HSST (Malayalam), Masters Degree and B.Ed of the concerned teacher should also be in Malayalam. The petitioner does not hold B.Ed Degree in Mathematics. To the said argument, the counsel for the petitioner sought to rely on Rule 6(2) Chapter XXXII of KER dealing with Method of Appointment and Qualifications of Teachers and Non-teaching Staff in Aided Higher Secondary Schools, which reads as follows:- Higher Secondary School Teacher and Higher Secondary School Teacher (Junior) in By Transfer and by direct appointment (i) Masters Degree in the concerned subject with not less than 50% marks from any of the Universities in Kerala or a qualification recognised as equivalent thereto in the respective subject by any University in Kerala. (1) English (2) Communicative English (3) Malayalam (4) Hindi (5) Arabic (6) Urdu (7) Tamil (8) Kannada (9) Sanskrit (ii) (1) B. Ed in the concerned subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by a University in Kerala. (2) In the absence of persons with B.Ed degree in the concerned subject, B.Ed degree acquired in any one of the subjects under the concerned Faculty as specified in the Acts/Statutes of any of the Universities in Kerala. (3) In the absence of persons with B.Ed degree as specified in items (1) and (2) above, persons with B.Ed degree in any subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by any one of the Universities in Kerala. (3) In the absence of persons with B.Ed degree as specified in items (1) and (2) above, persons with B.Ed degree in any subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by any one of the Universities in Kerala. (iii) Pass in the State Eligibility Test for the Post of Higher Secondary School Teacher conducted by Government of Kerala or by the agency authorised by the State Government. The Rule is clear that in the absence of persons with B.Ed Degree in the concerned subject, B.Ed Degree acquired in any one of the subjects under the concerned faculty, can be accepted. Therefore, in the absence of candidates holding Post Graduation and B.Ed in Malayalam, there is nothing wrong in selecting the petitioner for appointment to the post of HSST (Malayalam) though his Graduation and B.Ed is in another subject. The contention of the 4th respondent in this regard is, therefore, unsustainable. 13. In view of all the above reasons, I find that the writ petition filed by the petitioner is only to be allowed. Accordingly, Exts.P7 and P10 orders of the respondents are set aside. The 2nd respondent is directed to approve the appointment of the petitioner as per Exts.P4 and P5 to the post of Higher Secondary School Teacher (Malayalam) with effect from 08.12.2011 onwards against the third post under 25% quota. The petitioner will be entitled to consequential benefits, if any, also. Writ petition is allowed as above.