Smitha Johny vs Josny Varghese And Ors

according to her, had arisen on 1st April, 2005. 2

One Smitha Johny, who was not initially impleaded

in the writ petition, got herself impleaded as

Respondent No.5 and has filed the Special Leave

Petition questioning the judgment and order dated

20th 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. 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 3

and had also obtained Teachers' Training

Certificate (TTC). Subsequently, the Petitioner

also acquired a B.Ed. degree in English from the

Kerala University.

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 HSA

(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

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/Respondent No.1 submitted a

representation 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 Respondent

No.1, therefore, prayed for a writ in the nature of

Mandamus or direction commanding the respondents, 5

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.1

was rejected by the learned Single Judge on 27th

July, 2005, upon holding that 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 6

had 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.1

was promoted as HSA (English).

6. Aggrieved by the order of the learned Single

Judge, the Respondent No.1 filed a writ appeal,

being WA No.1925/2005. At this stage it may be

pointed out that on 15th June, 2005, the Petitioner

herein got herself impleaded as Respondent No.5 in

the writ petition filed by the Respondent No.1

herein 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 7

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 Head

Mistress, 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.1

was 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

incorrect 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

herein and held that the vacancy was of HSA

(English). Furthermore, in view of the Government

Order dated 7th January, 2002, the Manager was not 8

required to fill up the post of HSA with a

protected teacher. However, the Division Bench also

held that since Valsamma Pathrose had rejoined

service, it would not be proper to upset the

arrangement. Accordingly, the Division Bench

indicated as follows :

".........Therefore, we hold that the 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 for reviewing 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 9

Smitha Johny, who was impleaded as Respondent No.5

in 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 Mathew

on 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 year

2004-05, 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 10

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 the

14th of July of the succeeding year. Learned counsel

submitted that since the vacancy had occurred on 1st

April, 2005, during the continuance of the staff

sanctioned by the Competent Authority, the vacancy

caused by the promotion of Smt. Alice Mathew as

Head 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 HSA

(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. 11

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

a closing date are to be filled up only by the

reopening date. The High Court has rightly held

that the staff fixation order for the ensuing year 12

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. Rule 43 of Chapter XIV-A of 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 13

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 HSA 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 14

1st April, 2005, the Petitioner, Smt. Smitha Johny,

did not possess the prescribed qualifications for

the post of HSA (English), whereas the Respondent

No.1 Smt. 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 HSA

(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. 15

14. Hence, the next question is whether a

vacancy of HSA (English) arose in the School on 1st

April, 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 7th

January, 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 16

the post of HSA (English). Later, in the vacancy of

Headmistress which arose on 1st April, 2005, Smt.

Alice Mathew, HSA (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

post of 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 17

post of HSA (English). During the academic year

2004-05, 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 P1

Government 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 Respondent

No.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 18

was senior to the respondent, she was not qualified

for the post of HSA (English) as on 1st April, 2005

and 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 the 14th of July of the

succeeding year. Therefore, the post of HSA

(English)sanctioned in the staff fixation for the 19

year 2004-05 continued till 14th of July, 2005.

When the 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,

due to the promotion of Smt. Alice Mathew, HSA

(Social Science) as Headmistress, the post of HSA

(English) would fall vacant w.e.f. 1st April, 2005

and 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 Respondent

No.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 20

Bench gave a direction that the Respondent No.1

should 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