IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14473 of 2005(W)
1. SMT.REMA, UPPER PRIMARY SCHOOL
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. THE MANAGER, HIGHER SECONDARY SCHOOL,
5. SMT.SUJA, HIGH SCHOOL ASSISTANT (HINDI),
6. SMT.HEMALATHA, LOWER GRADE (HINDI)
For Petitioner :SRI.S.EASWARAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :16/03/2010
O R D E R
S.SIRI JAGAN, J.
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W.P.(C).No. 14473 of 2005
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Dated this the 16th day of March, 2010
J U D G M E N T
After putting in service in a leave vacancy for the period from
14.11.2000 to 28.2.2001 as a UPSA in the 4th respondents’ school, the
petitioner was appointed in a regular vacancy with effect from
6.6.2001. She is continuing as such. She is a post graduate in Hindi
and has also passed Hindi Vidhwan Examination of the Dakshin
Bharath Hindi Prachar Sabha. Therefore, she is qualified to be
appointed as an L.G. Hindi Teacher and H.S.A (Hindi). Vacancies of
L.G. Hindi Teacher arose in the school on 31.3.2001 and 10.9.2002.
The petitioner requested the manager to consider her for appointment
to the post of L.G. Hindi Teacher, which was refused to be considered
on the ground that both UPSA and L.G. Hindi Teacher carry the same
scale of pay. On 31.3.2003, a permanent vacancy of H.S.A. (Hindi)
arose in the school. The petitioner filed representation dated
13.6.2003 before the manager seeking promotion to that post. The
manager rejected the petitioner’s request, by Ext.P2 dated 27.6.2003.
Simultaneously the petitioner had also represented to the 3rd
respondent-DEO, who passed Ext.P4 order dated 22.8.2003 rejecting
the petitioner’s claim. In that vacancy the manager appointed the 5th
respondent in recognition of her right under Rule 43. Along with the
w.p.c.14473/05 2
claim for appointment to the post of H.S.A. (Hindi), the petitioner also
requested the manager to consider the petitioner for appointment to
the vacancy of L.G. Hindi Teacher, which arose consequent to the
promotion of the 5th respondent as H.S.A. (Hindi). However, the
manager appointed the 6th respondent, who is stated to be the
daughter-in-law of the manager. On both counts, the petitioner
challenged Ext.P4 order of the DEO before the 2nd respondent-Director
of Public Instruction, by filing Ext.P5 appeal. Pursuant to the orders of
this Court in W.P.(C). No.7299/2004, the 2nd respondent considered
the appeal and passed Ext.P6 order dated 3.6.2004, rejecting the
claim of the petitioner on both counts. Challenging Exts.P4 and P6, the
petitioner filed W.P.(C).No.17747/2004 before this Court. This Court
relegated the petitioner to the remedy by way of revision before the
Government. Pursuant thereto, the petitioner filed Ext.P7 revision
petition before the Government, which also was rejected by Ext.P8
order dated 14.3.2005. The petitioner is challenging Exts.P4, P6 and
P8 in this writ petition.
2. The 5th respondent worked as an L.G. Hindi Teacher in a
temporary vacancy for the periods from 28.5.1997 to 30.3.1998 and
12.9.2001 to 28.2.2002. She was appointed in a regular vacancy with
effect from 5.6.2002. The 5th respondent was promoted in a leave
vacancy as H.S.A (Hindi) for the period from 10.9.2002 to 10.12.2002.
w.p.c.14473/05 3
She was reverted as an L.G. Hindi Teacher from 11.12.2002 and she
continued to work as such till 1.6.2003. From 2.6.2003 onwards she
was appointed in a regular vacancy H.S.A. (Hindi), for which the
petitioner has laid a claim. As I have stated, in the resultant vacancy
on promotion of the 5th respondent as H.S.A. (Hindi), the 6th
respondent was appointed in recognition of her claim under Rule 51A
of the XIV-A of the KER, she having been earlier worked as L.G. Hindi
Teacher in a temporary vacancy, which arose on 10.9.2002.
3. The petitioner raises two contentions. First is that the
petitioner is entitled to be preferred for the post of H.S.A. (Hindi) in
view of the provisions of Rule 43B of Chapter XIVA of KER. According
to the petitioner, although by Rule 43B, for promotion to the post of
H.S.A., language L.G. Teachers have been given preference over
regular primary teachers, going by Note to Rule 43B(1), when there
are candidates in more than one category, then promotion shall be
made according to the seniority, from persons possessing the
prescribed qualifications. Therefore, according to the petitioner, since
the petitioner is senior to the 5th respondent, applying the Note to
Rule 43B(1), the petitioner should have been preferred to the 5th
respondent. Regarding the post of L.G. Hindi Teacher given to the 6th
respondent, the petitioner would contend that the petitioner is entitled
to be considered in accordance with the seniority as between the
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UPSAs and L.G. Hindi Teachers in so far as if that claim is not
considered, the petitioner would have to remain as UPSA for ever,
without any chance for promotion as H.S.A., since it would always be
the L.G. Hindi Teacher who would be preferred for appointment as
H.S.A. (Hindi). Therefore, according to the petitioner, the petitioner
should have been considered for appointment to the post of L.G. Hindi
Teacher vacated by the 5th respondent instead of the 6th respondent.
4. The respondents have filed counter affidavits disputing the
contentions of the petitioner. According to them, going by Rule 43B,
language teachers have first preference for being considered for
promotion to the post of H.S.A. and only if there is no L.G. Language
teacher, other categories mentioned in Rule 43B can even be
considered for promotion. Therefore, according to the respondents,
the promotion of the 5th respondent to the post of H.S.A. (Hindi) is
perfectly in accordance with the rules and cannot be challenged by the
petitioner who has no preferential claim in respect thereof. Regarding
the post of L.G. Hindi Teacher, the respondents would contend that the
6th respondent being a Rule 51A claimant, she has to be preferred to
the petitioner who has no such preferential claim for the post of L.G.
Hindi Teacher.
5. I have considered the rival contentions in detail.
6. Rule 43B of Chapter XIV A of the KER reads thus:
w.p.c.14473/05 5
“43.B. (1) Notwithstanding anything contained in rule 43, posts of
full time High School Assistants in a particular Language shall be filled up
by promotion in the following order of preference:
(i) Lower Grade Language Teachers who have the prescribed
qualifications in that Language for promotion to the post of High School
Assistants in that language at the time of occurrence of the vacancy and
who had given option in writing as per G.O (Ms).No.612/Edn. dated
10.11.1964 to continue as Lower Grade Language Teachers.
(ii) Part time High School Assistant in that Language
(iii) Other Lower Grade language Teachers in that Language.
(iv) Regular Primary teachers having the prescribed
qualifications
(v) Craft and Specialist teachers having the prescribed
qualifications
(vi) If no teacher with the prescribed qualifications is available in
the categories mentioned above, Lower Grade Language Teachers in any
other Language having the prescribed qualifications.
Note:-Promotion under this sub-rule shall be made according to
seniority from persons possessing the prescribed qualifications at the
time of occurrence of vacancy.
(2) If qualified teachers as mentioned in sub-rule (1) are not
available in schools under the same Educational agency for promotion to
the post of High School Assistants in that language, qualified candidates
from out side may be appointed to that post.”
On a reading of the same, I do not find any support therein for the
contention raised by the petitioner. If the contention raised by the
petitioner that if candidates are available in more than one category
mentioned in Rule 43B, going by the Note, promotion has to be made
in accordance with the seniority of all persons inter-se in all categories,
then, the preference given in 43B (1) would be totally meaningless.
Note to Rule 43B(1) would only mean that among more than one
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candidate in each category mentioned in 43B(1) promotion shall be
based on seniority. There cannot be consideration of inter se seniority
between the persons in the six categories mentioned therein for that
purpose. Once there is an L.G. Language Teacher available for
promotion, that teacher has to be preferred first to the exclusion of
other five categories mentioned therein. The petitioner belongs to the
fourth category and, as such, she cannot claim preference over the 5th
respondent, who has a better claim than the petitioner under Category
(i). As such, I do not find any merit in the first contention of the
petitioner.
7. Regarding the second point, I note that the 6th respondent
obtained a 51A claim in view of her appointment as an L.G. Hindi
Teacher in a leave vacancy which arose on 10.9.2002. Of course, the
petitioner had requested the manager to appoint the petitioner in that
vacancy. But unfortunately for the petitioner, the petitioner did not
pursue that request. Had the petitioner pursued her request, I could
have held that the manager was bound to consider the application of
the petitioner also for appointment to the post of L.G. Hindi Teacher as
a direct recruit, like any other qualified person. The manager could not
have rejected the application of the petitioner, simply because the
petitioner was working as a UPSA in the school and the post of UPSA
carries the same scale of pay as L.G Hindi Teacher. As I have already
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stated, the petitioner did not choose to pursue her request for
appointment to that post. She again resurrected her claim only in
Ext.P3 dated 13.6.2003, almost an year later. As such, that claim of
the petitioner cannot now be considered validly. Then as between the
petitioner and the 6th respondent for the post of L.G. Hindi Teacher,
the 6th respondent has a better claim as a Rule 51A claimant.
Therefore, the petitioner cannot have a better claim for the post of
L.G. Hindi teacher as against the 6th respondent. As such, the second
contention of the petitioner also fails. However, in case any further
vacancy of L.G. Hindi Teacher arises in the school and the petitioner
requests for being considered for that post, the manager is bound to
consider her application as a direct recruit along with other eligible
candidates. Such right of the petitioner can be denied only if a
candidate having preferential claim under any of the rules in Chapter
XIV-A also applies.
With the above observations, this writ petition is dismissed.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
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