IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30591 of 2007(P)
1. SATHIKUMAR K., AGED 40 YEARS,
... Petitioner
2. SANTHOSH KUMAR, AGED 45 YEARS,
3. SHAFI M.M., AGED 46 YEARS,
4. SURESH KUMAR, AGED 41 YEARS,
5. SREELATHA K.K., AGED 42 YEARS,
6. BABU K., AGED 39 YEARS,
7. SAJI S., S/O. SAINLABDEEN,
8. THOMAS GEORGE, S/O. P.N. GEORGE,
Vs
1. STATE OF KERALA,
... Respondent
2. THE DIRECTOR,
3. THE CONVENER,
For Petitioner :SRI.P.V.MOHANAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :21/10/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 30591 OF 2007 (P)
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Dated this the 21st day of October, 2008
J U D G M E N T
Petitioners are working in the cadre of Higher Secondary School
Teachers. In this writ petition, they are seeking a direction to the
respondents to convene the DPC for promotion to the cadre of Principals in
Higher Secondary Education State Service and to consider their claim for
promotion to the post of Principal.
2. Briefly stated, facts of the case are that Ext.P1 is the seniority
list of Higher Secondary School Teachers appointed upto 12/6/01 and were
in service as on 30/9/2003. This seniority list containing 1408 candidates,
was published on 25/5/2004 and the petitioners are included at
Sl.Nos.159, 686, 693, 697, 708, 713, 743 and 747 respectively.
Appointment to the post of Principal in Higher Secondary Schools is
governed by the Kerala Higher Secondary Education Service Rules, 2001
(hereinafter referred to as Special Rules for short). In the Special Rules,
for the post of Principal, the method of appointment prescribed is 1) by
promotion from Higher Secondary School Teachers and 2) by transfer from
qualified Headmasters of High Schools in the Kerala General Education
Service. Rule further provides that the posts are to be filled up in the
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method indicated above, in the ratio of 2:1 and that if qualified candidates
are not available for appointment, by any one of the aforesaid two
methods, such vacancies shall be filled up by the other method.
Qualifications prescribed are 1) Masters Degree with not less than 50%
marks from any of the Universities in Kerala or 2) B.Ed Degree from any
Universities in Kerala or a qualification recognised as equivalent thereto by
any University in Kerala and 3) Minimum approved teaching experience of
12 years. As per the note attached to the Rule, preference shall be given
based on the teaching experience at Higher Secondary School level.
3. The claim for appointment to the post of Principals in the
Higher Secondary Schools came up for consideration of this Court in a
batch of writ petitions, which were disposed of by a Full Bench in Aided
Higher Secondary School Teachers Association v. State of Kerala
(2005(1) KLT 94). The Full Bench directed the Government to give
sanction and approval to the post of Principal so that no Higher Secondary
School in the State shall work without a regular Principal. The Managers
were also directed to make appointments on the basis of the Rules framed
as per Chapter XXXII K.E.R and submit the same for approval of the
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Government.
4. In purported compliance of the judgment referred to above,
the Government issued Ext.P2 order dated 11/2/2005 in which, among
others it was ordered that creation of the post of Principal will also be
considered separately. Thereafter Ext.P3 Government Order was issued
on 6/1/2006 ordering creation of 1225 posts of Principal for the 1225
Higher Secondary Schools in the State (Government and Aided) by
upgrading corresponding number of Higher Secondary School Teacher
(Senior) posts.
5. Petitioners submit that even now, there are 698 vacant posts
of Principals in the Higher Secondary schools. According to them, these
vacancies have to be apportioned in the ratio of 2:1 by promotion and
transfer. It is stated that though 465 posts are to be filled up by
promotion and 233 posts by transfer, in the latter category only 65
candidates are available and therefore, the balance 168 should go to the
promotion quota. Thus, it is contended that 633 posts are available to be
filled up from among the Higher Secondary School Teachers. Petitioners
state that among the 1408 candidates included in Ext.P1, only 698 are still
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in service and that 633 vacancies referred to above should be filled up
from the candidates in Ext.P1. They would also contend that at the
instance of some union activists, the respondents are proposing to fix a cut
off date of 6/1/2006 when Ext.P3 order was issued to determine the
eligibility on that basis and by that process, an attempt is being made to
exclude them from the zone of consideration.
6. Counter affidavit has been filed by the 2nd respondent. It is
stated that the post of Principals were created on 6/1/2006 by Ext.P3
order. But however, the promotion to the post had to be kept in abeyance
on account of the interim order passed by this Court in WP(C)
No.25462/06. It is stated that the writ petition was dismissed as
withdrawn only on 26/9/07 and that the respondents are in the process of
preparing a list of eligible Higher Secondary school Teachers for promotion
to the post of Principals. It is stated that “all efforts will be taken to
promote eligible Higher Secondary school Teachers to the post of
Principals in all the 698 Government Higher Secondary Schools on the
prescribed time scale at the earliest”.
7. In para 7, it is also stated that the confidential records of all
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Higher Secondary Schools included in the seniority list and those in service
as on 6/1/2008 are being collected and that the Directorate have sought
some clarification from the Government about the service which can be
reckoned for computing approved teaching experience as envisaged in the
Special Rules and that select list can be finalised only on the basis of the
clarification which is awaited. It is also stated that after getting the
clarification, select list will be placed before the DPC, which will be
convened for preparation of the select list for promotion to the post of
Principal.
8. It is further stated that the petitioners did not have 12 years
approved teaching experience as on 6/1/2006 when the vacancies arose
and that they can be considered for promotion only after acquiring 12
years approved teaching experience as on the date of occurrence of
vacancy. They are also relying on Rule 28 (iA) Part II KS & SSR to contend
that a person who was not qualified at the time of occurrence of vacancy,
is not entitled to be included in the select list for appointment against that
vacancy. On this basis, it is stated that the petitioners can be considered
only to posts which become vacant after their acquiring the qualification
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for the post of Principals and that since they were not qualified as on
6/1/2006, there is no denial of their claim for promotion.
9. From the facts as stated above, it is obvious that even
according to the respondents, 698 vacancies are in existence which are to
be filled up as per the Special Rules. The respondents have also admitted
that they have already initiated steps for filling up the posts and that once
clarification is obtained from the Government, the matter will be placed
before the Departmental Promotion Committee for preparing the select
list. Though the respondents are also not disputing the eligibility of the
petitioners for promotion to the post of Principals, their contention appears
to be that since the petitioners were not qualified as on 6/1/2006, they are
not entitled to be considered against those vacancies. To sustain this plea,
they are also relying on Rule 28 (iA) Part II KS & SSR. 6/1/2006 is the
date on which Ext.P3 order was issued by the Government creating 1225
posts of Principals of Higher Secondary Schools in the State. If as on that
date, sufficient candidates were available to be promoted to those
vacancies, petitioners can have no claim. But that does not appear to be
the case here. This appears to be a case where though there were
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vacancies, sufficient eligible candidates were not available to be
considered for promotion.
10. If that be so, the question that arises for consideration is that
when a block of vacancies arise and sufficient number of candidates are
not available, whether the candidates who become eligible subsequently,
are entitled to be considered for those vacancies which are already in
existence. This contention is no more open to doubt in view of the law laid
down by the Full Bench of this Court in Varghese and others v.State of
Kerala and others (1981 KLT 458). In that judgment, referring to the
Division Bench judgment in Ravindranath v. Calicut University (1977
(Lab.I.C 1127), the Full Bench held that if there is a vacancy and
subsequently a person becomes qualified for being promoted to such
vacancy, he would be entitled to be considered for promotion in that
vacancy. It was also been held that if there is no vacancy when a person
becomes qualified for promotion and a vacancy arise while he remains
qualified, as and when such vacancy arises, his case for promotion calls for
consideration. This principle has been followed by a subsequent Division
Bench in Padmanabhan Nair v. Deputy Director (1999 (1) KLT
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337), where on the basis that when the 3rd respondent therein became
qualified, a vacancy of Headmaster was available, his claim for promotion
to that existing vacancy was upheld by the Division Bench.
11. If that be the position in law, the fact that the petitioners were
not qualified as on 6/1/2006, does not make any difference. Once they
have become qualified subsequently, they are entitled to be considered
against the existing vacancies for promotion. This claim of the petitioners
also cannot be defeated relying on Rule 28(iA) of Part II KS & SSR as their
case is saved by the note attached thereto.
12. In view of the admitted position that vacancies are in
existence and that steps are already initiated by the respondents, the
respondents are liable to take necessary action for convening the DPC and
fill up such of those vacancies which are available in the promotion quota.
The fact that they are awaiting clarification from the Government
regarding the reckoning of the experience is no reason to defer regular
promotion indefinitely.
13. Therefore, the writ petition is disposed of directing that the
respondents shall convene DPC for promotion to the post of Principal in
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Higher Secondary Education State Service and consider the claim of the
petitioners and other similarly situated persons. This shall be done, as
expeditiously as possible, at any rate within 6 months of production of a
copy of this judgment.
ANTONY DOMINIC, JUDGE
Rp