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2024 DIGILAW 733 (KER)

Surekha. K, W/o Surendran. P. v. State Of Kerala

2024-06-25

ZIYAD RAHMAN A.A.

body2024
JUDGMENT : THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. This Writ Petition is submitted by the petitioner, who is working as U.P.S.T. in the School managed by the 5th respondent, being aggrieved by the promotion granted to the 6th respondent as H.S.T.(Social Science). According to the petitioner, the 6th respondent lacks necessary qualifications as prescribed, to be appointed as H.S.T. (Social Science). 2. The facts which led to the filing of this Writ Petition are as follows: The petitioner is a holder of Degree and Post Graduation in Economics with B.Ed in Social Science and K.TET 3 in Social Science. Based on the qualifications, she was appointed as U.P.S.T. in the School by the 5th respondent on 12.06.2018, and as per Ext.P1, the appointment was also approved. The 6th respondent was also working as a U.P.S.T. in the said School, and she is a Post Graduate in Commerce. She also possesses a degree in Commerce. She does not have K.TET 3 for teaching Social Science in High School classes, but she possesses SET qualification in Commerce, a mandatory qualification for teaching for the Higher Secondary section. Consequent to the retirement of the Headmistress on 31.05.2023, Sri. Gireeshkumar P.C., the senior most teacher working as HST (Social Science) in the said school, has been promoted and posted as Headmaster in the said School on 1.6.2023. Thereupon, a vacancy of H.S.T. (Social Science) arose and the petitioner submitted a request for promotion as she was the senior-most among the qualified UPSTs in the School at the relevant time. However, without considering the claim of the petitioner, the 5th respondent appointed the 6th respondent as HST (Social Science). 3. According to the petitioner, even though the qualification of Degree and Post Graduation in Commerce was treated as an essential qualification for HST initially, later, as per Ext.P3 Government order dated 21.09.2022, the qualifications of Degree and B.Ed in Commerce and Music, were excluded from the essential qualifications for HSA/HST(Social Science). Subsequently, Ext.P3 G.O.(Ms)234/2022 G.Edn dated 19.12.2022 was issued granting exemption in respect of certain classes of Commerce graduates and B.Ed holders. The said Government order is produced as Ext.P4. Subsequently, Ext.P3 G.O.(Ms)234/2022 G.Edn dated 19.12.2022 was issued granting exemption in respect of certain classes of Commerce graduates and B.Ed holders. The said Government order is produced as Ext.P4. As per the same, the following categories of persons were exempted from the operation of Ext.P3 Government order the said persons are: i) The persons who were appointed in Government and aided schools prior to the date of Ext.P2 Government Order; ii) The persons who had applied and attended the examinations on the basis of the notification issued by the Public Service Commission for filling up the vacancies of HSA (Social Science); iii) The persons who have acquired B.Ed in Social Science after acquiring the degree in Commerce and Music and those already undergoing B.Ed in Social Science after acquiring Degree and B.Ed in Social Science. iv) The persons who have acquired rights under Rules 43 51A and 51B of Chapter XIVA of KER before the date of Ext.P3 Government Order. 4. According to the petitioner, the 6th respondent, who holds a degree and B.Ed in Commerce, is not coming under any of the exempted categories as per Ext.P4 order, and hence is not entitled to be appointed as HST (Social Science). The Writ Petition was submitted in such circumstances challenging the appointment of the 6th respondent as HST. 5. A counter affidavit has been submitted by the 6th respondent wherein it was contended that as per Ext.R6(d) Government Order GO(Ns)No.141/88/G.Edn dated 13.09.1988, the Government has re-grouped the HSA in core subjects in which a degree in Commerce is one of the academic qualifications for HST (Social Science). In Ext.R6(e), the same was further clarified by stating that, as per Ext.R6(d) Government Order dated 16.02.2011, Commerce is an alternative qualification for HSA (Social Science). It was also averred that as far as the lack of qualification of K.TET is concerned, the same also cannot be a disqualification as far as the 6th respondent is concerned, since she possesses the SET qualification and as per Ext.R6(g) Government Order dated 30.08.2016, the candidates who qualified SET is exempted from acquiring the K.TET qualification. It was also averred that as far as the lack of qualification of K.TET is concerned, the same also cannot be a disqualification as far as the 6th respondent is concerned, since she possesses the SET qualification and as per Ext.R6(g) Government Order dated 30.08.2016, the candidates who qualified SET is exempted from acquiring the K.TET qualification. It was also pointed out that, the petitioner is a person who had secured the right to get promotion under Rule 43 Chapter XIVA of KER as on the date of Ext P3 GO and therefore she comes under the class of persons who were exempted as per Clause No.4 of Ext.P4 order. In such circumstances, the dismissal of the Writ Petition was sought. 6. A reply affidavit was submitted in the Writ Petition in response to the averments contained in the counter affidavit submitted by the 6th respondent. 7. The 4th respondent, the Officer who passed the Ext.P9 order, which is under challenge in this Writ Petition, filed a counter affidavit defending the findings in the said order. 8. Heard Smt. Shameena Salahudheen, the learned counsel appearing for the petitioner, Sri. Premchand R. Nair, the learned Government Pleader for respondents 1 to 4 and Sri. R.K.Muraleedharan, the learned counsel for the 6th respondent. 9. The question that arises for consideration is whether the 6th respondent has the necessary qualifications to be appointed as the HST (Social Science). There is no dispute regarding the factual circumstances of the case and the qualifications of the petitioner and the 6th respondent. Admittedly, the 6th respondent has a Degree and B.Ed in Commerce and SET qualification in Commerce. Section 10 of the Kerala Education Act contemplates that, the Government shall prescribe the qualifications to be possessed by persons for appointment as teachers in Government and private schools. In exercise of the same, the qualifications were prescribed by the Government. As far as HSA (Social Science) (Now HST (Social Science) is concerned, initially as per Ext.R6(d) Government Order, i.e., GO(Ms)No.141/88/G.Edn. Dated 13.09.1988, while grouping various subjects as the core subjects for social science, commerce was also included. However, as per Ext.P3, the said Government Order dated 13.09.1988 has been modified by excluding the qualification in the subject of Commerce from the purview of the qualifications for appointment as HSA Social Science. In Ext.P3 Government Order, Ext.R6(d) Government Order is referred to as reference No.2. However, as per Ext.P3, the said Government Order dated 13.09.1988 has been modified by excluding the qualification in the subject of Commerce from the purview of the qualifications for appointment as HSA Social Science. In Ext.P3 Government Order, Ext.R6(d) Government Order is referred to as reference No.2. Therefore, by virtue of Ext.P3, all persons having a Degree and B. Ed in Commerce are excluded and, therefore, are prevented from seeking appointment from the post of HSA (Social Science). 10. However, after considering the representations submitted by certain classes of candidates, Ext.P4 Government Order dated 19.12.2022 was issued, wherein, certain classes of persons with qualifications in Commerce were granted exemption from the purview of Ext.P3 Government Order. As far as the 6th respondent is concerned, the specific contention raised by her is that she is entitled to an exemption by virtue of Clause (4) therein, which provides that persons who have secured a right under Rules 43, 51A and 51B of Chapter XIVA of KER, as on the date of Ext.P3 Government Order shall stand exempted from the purview of Ext.P3 Government Order. 11. The specific contention raised by the learned counsel for the 6th respondent is that, by virtue of her seniority, the petitioner had obtained a right under Rule 43 Chapter XIVA of KER to get promoted as HST and, therefore, the fact that the 6th respondent has the Degree and B. Ed in Commerce subject, cannot be a reason to deny appointment to her. According to her, the 5th respondent Manager and the 4th respondent DEO rightly recognized her qualifications, and she was promoted, which was duly approved as well. Therefore, no interference is warranted, it was contended. 12. Of course, it is true that Ext.P4 Government Order specifically contemplated certain exemptions for the persons who have acquired rights under Rule 43 as of the date of Ext.P3 Government Order, i.e., on 21.09.2022. However, the crucial aspect to be noticed in this case is that, the vacancy to which the 6th respondent was appointed arose only on 1.6.2023, consequent to the promotion of Sri. Gireeshkumar P.C., as the Headmaster of the School, which is after the date of the Ext P3 Government Order. However, the crucial aspect to be noticed in this case is that, the vacancy to which the 6th respondent was appointed arose only on 1.6.2023, consequent to the promotion of Sri. Gireeshkumar P.C., as the Headmaster of the School, which is after the date of the Ext P3 Government Order. Therefore, the contention raised by the learned counsel for the petitioner is that, the 6th respondent did not accrue any right under Rule 43 Chapter XIVA of KER to get promoted as HST as on the date of Ext.P3 ie. 21.09.2022, since the vacancy arose only on 1.6.2023. 13. After carefully going through the statutory stipulations contained in this regard, I find some force in the said contention. In order to consider the said question, the stipulations contained in Rule 43 Chapter XIVA of KER are to be carefully examined, which read as follows: “43. Subject to rule 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 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. Provided further that where a Headmaster or a teacher who has been promoted under this rule faces retrenchment for want of vacancy, he shall be reverted to the category of post from which he has been promoted provided he is not eligible for protection in the retrenched post as per the orders issued by the Government from time to time 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 Note (2), it is specifically mentioned that the promotion under these Rules shall be made from persons possessing the prescribed qualification at the time of occurrence of vacancy. Here, the question that arises is with respect to the qualifications/lack of qualifications of the 6th respondent as on the date of occurrence of vacancy. Of course, clause (4) of Ext.P4 grants exemption to candidates who have secured a right under Rule 43 to get a promotion, as on the date of Ext.P3 Government Order. Thus, what is to be considered in this case is whether the 6th respondent accrued that right as on the date of Ext.P3, i.e. 21.09.2022. 14. It is to be noted in this regard that, clause (4) of Ext.P4 grants exemption to the persons accrued a right under three Rules, ie. Rules 43, 51A and 51B. As far as the persons covered by Rules 51A and 51B are concerned, they will accrue a right to get an appointment, the moment they complete the minimum tenure of temporary service or on the death of the person on whom the candidate was dependent, respectively. Therefore, the acquisition of the rights of the candidates coming under Rules 51A and 51B are not dependent upon the date of occurrence of vacancies to be filled up, even though the implementation of the same or materialisation of the benefits of such rights would depend upon the priorities/preferences applicable to the next arising vacancy. Thus, they would accrue a right to get an appointment under the relevant provisions mentioned above if the essential conditions referred to above are satisfied, as the accrual of the right is not subject to any other contingencies. 15. On the other hand, as far as the candidates seeking the benefit of Rule 43 are concerned, the date of occurrence of vacancy has a crucial relevance. This is mainly because, for getting a right under Rule 43, he must be a senior-most person and also must have the qualification as on the date of occurrence of vacancy. This necessitates, (1) the existence of vacancy, (2) seniority as on the date of the occurrence of vacancy and (3) the qualifications as on the date of occurrence of vacancy. This necessitates, (1) the existence of vacancy, (2) seniority as on the date of the occurrence of vacancy and (3) the qualifications as on the date of occurrence of vacancy. The seniority and the qualification can be considered only when the vacancy actually arises. Therefore, the right to claim promotion under Rule 43 will accrue on a person only on the date on which the vacancy arises, provided he has the seniority and the qualifications as on the said date. As per Note (2), the necessity to have prescribed qualification as on the date of the occurrence of vacancy is specifically stipulated. Moreover, in Rule 43 itself, the words used are “shall be filled up by promotion of qualified hands in the lower grade according to seniority”. In Note (2), it is clearly mentioned that the promotion under this Rule shall be made from the persons possessing the qualification at the time of occurrence of vacancies. Therefore, since Rule 43 specifically uses the word “promotion of qualified hands in the lower grade according to seniority” and Note (2) specifically contemplates that the qualification prescribed shall be as “at the time of occurrence of vacancy”, unless the candidate is having seniority and the prescribed qualification as on the date of occurrence of vacancy, such candidate cannot be treated as eligible, to be given the benefit of Rule 43. 16. Here, in this case, the exemption provided as per Ext.P4 Government Order is only to those persons who have already acquired the right under Rule 43 as on the date of Ext.P3 order, i.e. 21.9.2022, whereas the vacancy to which the 6th respondent was appointed, arose only on 1.6.2023. When the qualification of the 6th respondent is taken into account as on the date of 21.09.2022, she will not fall under the said exemption, as she did not accrue the right to get an appointment under Rule 43 as on the date of Ext.P3, since no vacancy was in existence at the relevant time, to reckon the seniority or qualification. Therefore, by virtue of Ext.P3, her qualification is excluded from the essential qualifications for being considered for promotion. Thus, as the 6th respondent did not accrue any right under Rule 43 to get promoted, as on 21.9.2022, the 6th respondent cannot be treated as a qualified hand, to be appointed to fill up the vacancy that arose on 1.6.2023. Therefore, by virtue of Ext.P3, her qualification is excluded from the essential qualifications for being considered for promotion. Thus, as the 6th respondent did not accrue any right under Rule 43 to get promoted, as on 21.9.2022, the 6th respondent cannot be treated as a qualified hand, to be appointed to fill up the vacancy that arose on 1.6.2023. In this regard, a decision has been relied on by the learned counsel for the petitioner, i.e., Smitha Johny v. Josny Varghese [2010(4)KLT SN 69 (C.No.80)SC wherein it has been categorically observed by the Honourable Supreme Court that, the promotion under Rule 43 shall be made from the persons possessing prescribed qualification as on the date of occurrence of vacancy. The observations in the above decision fortify the view taken by this court. 17. Thus, after considering all the relevant aspects, I am of the view that the promotion granted to the 6th respondent cannot be treated as legally sustainable as she did not have the prescribed qualification as on the date of occurrence of the vacancy. Therefore, Ext. P9 order is hereby set aside, and respondents 2 to 5 are directed to revert the 6th respondent to the post of UPST, and the 5th respondent is directed to promote the petitioner to the said post, if she is otherwise eligible for the same. The said respondents are directed to issue necessary orders for promoting the petitioner herein as HST (Social Science) in the vacancy that arose on 1.6.2023 and approving the same, if the petitioner is otherwise eligible for the same. The orders in this regard shall be passed within a period of one month from the date of receipt of a copy of the same.