G. Sudharma vs State of Kerala

A.K. Jayasankaran Nambiar, J.—This writ petition is filed by the petitioner who was appointed as UPSA in the aided School managed by the 3rd respondent on 06.06.1989. She was latter appointed as HSA (Social Studies) in the said School with effect from 01.09.1994. The reversion of the petitioner as UPSA, consequent to the staff fixation order in the School for the academic year 1998-99 was challenged by her and the proceedings culminated in Ext. P2 order of the 1st respondent, which is the same as Ext. P9 order in W.P. (C). No. 13689 of 2009 that was dismissed by me today by a separate judgment. In that judgment, the validity of Ext. P2 order was upheld. In view of the said judgment, the petitioner stands to get the benefit of the order dated 27.06.2007, passed by the 1st respondent, whereby she was promoted as HSA (Social Studies) in the School with effect from 15.07.1998.

In the present writ petition, the petitioner challenges Ext. P3 order of the 1st respondent whereby the 4th respondent was appointed as HSA (English) in the said School with effect from 01.12.2011. The challenge in the writ petition against the said appointment of the 4th respondent is on the ground that, to the vacancy that arose on 01.12.2011, vis-a-vis the petitioner and the 4th respondent, the petitioner had a superior claim since, aside from the fact that she was an HSA in (Social Studies), she was also a claimant under Rules 43 and 51A of the KER. The contention, therefore, is that on account of her superior claim under Rules 43 and 51A, she should have been preferred over the 4th respondent while making appointments to the post of HSA (English) on 01.12.2011. The petitioner also has a case that the 4th respondent is overaged and hence, for that reason also, she could not have been appointed with effect from 01.12.2011 to the post in question.

A counter affidavit has been filed on behalf of the 4th respondent wherein it is pointed out that the 4th respondent was appointed as HSA (English) with effect from 01.06.2009 against the vacancy that arose consequent to the promotion of Smt. Rohini as Headmistress. Although the vacancy to the post of HSA (English) existed in the School from 01.06.2009, the appointment of the 4th respondent to the said post would not approved by the District Education Officer, Kannur, on the ground that there were other HSA''s in core subjects who had approved service as on 16.11.2002 and who had to be accommodated in preference to the 4th respondent. It was under those circumstances, that Smt. P. Sindhu who was HSA (Maths) and who was a protected teacher was retained in the post of HSA (English). Subsequently, the aforesaid Smt. Sindu was transferred to a new vacancy of HSA (Maths) which arose in the School on 01.12.2011 consequent to the promotion of Sri. Rajesh, HSA (Maths) as a Higher Secondary School Teacher. This led to the vacancy of HSA (English) arising with effect from 01.12.2011 and insofar as the 4th respondent was the only qualified candidate for the post at that stage, she came to be appointed as HSA (English) against the said vacancy. It is pointed out that as between the 4th respondent and the petitioner, the 4th respondent is the only candidate who stood qualified for the post of HSA (English) as on 01.12.2011. Reference is made to Sections 10 and 11 of the Kerala Education Act as also Chapter 31 Rule 2(X) of the Kerala Education Rules to emphasis that only those HSA''s who had the specified qualification under the rules could be appointed as HSA (English) and the petitioner who was admittedly HSA in (Social Studies) could not be held qualified for appointment to the vacancy that arose in the post of HSA in English on 01.12.2011. My attention is also invited to the notification GO(P). No. 2/2009/Gen. Edn. Dated 05.01.2009, whereby the Government had deleted item 3 of Sub Clause to Sub Rule 2(b) of Rule (2) Chapter XXXI KER resulting in the provision, for appointment of candidates with B.Ed/B.T/L.T. in any other subjects to the post of HSA (English), being deleted from the rules. The contention of the 4th respondent therefore is that the petitioner could not, notwithstanding his claim under Rules 43 or 51 A of the KER, be considered for the post of HSA (English) against the vacancy that arose on 01.12.2011.

I have heard Sri. Kaleeswaram Raj, learned counsel for the petitioner, Sri. O.V. Radhakrishnan, the learned Senior counsel appearing on behalf of 4th respondent and Sri. A.J. Jose Aedaiodi, the learned Government Pleader appearing on behalf of respondents 1 to 3.

On a consideration of the rival submissions and the facts and circumstances of the case, I find that the contentions of the petitioner in this writ petition must necessarily fail. The petitioner was admittedly a HSA in Social Studies. The vacancy that arose in the School on 01.12.2011 was to the post of HSA (English). Notwithstanding the claim of the petitioner as HSA under Rules 43 and 51 A of the KER, the fact remains that in order to aspire for appointment to the post of HSA (English), the petitioner must necessarily have been qualified in accordance with the Kerala Education Act and Rules. In the instant case, the petitioner being HSA (Social Studies), and not possessed of the necessary qualifications for the post of HSA (English), there was no legal right in the petitioner to seek appointment to the post of HSA (English) against the vacancy that arose on 01.12.2011. In this view of the matter, the prayers sought for in the writ petition cannot be granted. The writ petition fails and is accordingly dismissed.

While rejecting the claim of the petitioner in the writ petition, I make it clear that insofar as I have already upheld the validity of Ext. P2 order in my judgment in W.P. (C). No. 13689 of 2009, the petitioner''s appointment as HSA with effect from 15.07.1998 must be held legal and valid. Accordingly, respondents 1 and 2 shall work out the consequential benefits that are due to the petitioner, pursuant to Ext. P2 order of the 1st respondent, and disburse them to the petitioner within a period of three months from the date of receipt of a copy of this judgment.