Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION(C) No.20822 of 2006
Smitha Johny … Petitioner
Vs.
Josny Varghese & Ors. … Respondents
J U D G M E N T
ALTAMAS KABIR, J.
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,
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according to her, had arisen on 1 April, 2005.
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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
th
20 June, 2006, passed by the Kerala High Court at
Ernakulam in Writ Appeal No.1925 of 2005 and order
nd
dated 2 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
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her, had occurred in HSA (English) on 1 April,
2005. On the other hand, the Petitioner was
appointed as Lower Primary School Assistant,
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hereinafter referred to as “LPSA”, on 21 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
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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
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voluntary retirement with effect from 31 March,
2004. Smt. Alice Mathew, being the senior-most
HSA, was accommodated against that vacancy.
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st
4. Consequently, with effect from 1 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,
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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
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date of the occurrence of the vacancy on 1 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
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effect from 1 April, 2005.
5. The writ petition filed by the Respondent No.1
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was rejected by the learned Single Judge on 27
July, 2005, upon holding that since Smt. Alice
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Mathew was promoted as Head Mistress on 31 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
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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
th
pointed out that on 15 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
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her, although, she may not have possessed the
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requisite B.Ed. degree on 1 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
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Kerala University on 29 June, 2005.
7. The Writ Appeal filed by the Respondent No.1
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was allowed on 20 June, 2006, upon holding that
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when the vacancy occurred on 1 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
th
Order dated 7 January, 2002, the Manager was not
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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
nd
judgment was also dismissed on 2 August, 2006.
9. It is against the said two orders that the
present Special Leave Petition has been filed by
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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
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on 1 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
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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
th
14 of July of the succeeding year. Learned counsel
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submitted that since the vacancy had occurred on 1
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.
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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
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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
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essential requisite on 1 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
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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
st
1 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
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the case that as on 1 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
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on 1 July, 2005. Hence, if a vacancy of HSA
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(English) arose in the School on 1 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.
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14. Hence, the next question is whether a
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vacancy of HSA (English) arose in the School on 1
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
th
per Annexure P1 G.O.(MS) No.11/2002/G.Edu. dated 7
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
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the post of HSA (English). Later, in the vacancy of
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Headmistress which arose on 1 April, 2005, Smt.
Alice Mathew, HSA (Social Science) was promoted
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w.e.f. 1 April, 2005. Consequent on the said
promotion of Smt. Alice Mathew as Headmistress, the
post of HSA (Social Science) held by her was
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vacated by her w.e.f. 1 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
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(Social Science) w.e.f. 1 April, 2005, the only
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vacancy available as on 1 April, 2005 was in the
post of HSA (English). Thus, a vacancy of HSA
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(English) arose in the School on 1 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
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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
th
Government Order dated 7 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
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(English) fell vacant on 1 April, 2005, when Smt.
Alice Mathew, HSA (Social Science) was promoted as
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Headmistress w.e.f. 1 April, 2005 and Smt. P.P.
Leelamma was accommodated in the resultant vacancy
of HSA (Social Science). When the vacancy of HSA
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(English) arose on 1 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
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was senior to the respondent, she was not qualified
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for the post of HSA (English) as on 1 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)
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would have arisen only on 15 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
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shall continue till the 14 of July of the
succeeding year. Therefore, the post of HSA
(English)sanctioned in the staff fixation for the
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th
year 2004-05 continued till 14 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
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HSA (Social Science) which arose on 1 April, 2005,
due to the promotion of Smt. Alice Mathew, HSA
(Social Science) as Headmistress, the post of HSA
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(English) would fall vacant w.e.f. 1 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