IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 1057 of 2002
1. K.K.VISWANATHAN, THE MANAGER,
... Petitioner
2. HANEESH KUMAR, H.S.S.T (ENGLISH),
Vs
1. THE DIRECTOR OF HIGHER SECONDARY
... Respondent
2. SANTHAMMA S., H.S.A.(NAT.SCIENCE),
For Petitioner :SMT.V.P.SEEMANDINI
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.A.ABDUL GAFOOR
The Hon'ble MRS. Justice K.HEMA
Dated : 01/07/2005
O R D E R
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K.A.ABDUL GAFOOR & K.HEMA, JJ.@@
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Dated this the 1st, July, 2005@@
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.HE 1
Abdul Gafoor, J.@@
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We will deal with the Writ Appeal first. It will
resolve the dispute in the Original Petitions.
2. The issue is whether the first appellant
ought to have appointed the second respondent as Higher
Secondary School Teacher (English) against the vacancy
earmarked for inservice candidates on commencement of the
academic year 1999-2000 during which five vacancies of
such teachers had been filled up.
3. As per Exhibit P2 order prescribing method of
appointment, twenty-five per cent of the vacancies shall
be earmarked for qualified High School Assistants and
Primary School Teachers working under the management.
The first appellant is the Manager of the School
concerned. The Higher Secondary course was started in
the year 1998. During that year 12 posts were
sanctioned. The first appellant did not fill up all the
vacancies. Post of Higher Secondary School Teacher
(Hindi) was kept vacant. Even though the petitioner in
O.P.No.12706 of 2003 was in service as UPSA(Hindi), he
was not promoted against that vacancy. He claims that he
was qualified during the year 1998-99 even on the
strength of Exhibit P2 Government Order in that Original
Petition.
4. During the year 1999-2000 out of the five
vacancies to be filled up, one was that of Higher
Secondary School Teacher (English) and another was Higher
Secondary School Teacher (Hindi) which was vacant from
the previous year onwards. The first appellant preferred
the petitioner in O.P.No.12706 of 2003, a Hindi Teacher
in the quota for inservice candidates and filled up the
other posts including that of English Teacher by direct
recruitment. Against the post of English Teacher the
second appellant was appointed. This was objected to by
the second respondent in the Writ Appeal contending that
she, being senior to the petitioner in O.P.No.12706 of
2003, ought to have been preferred for appointment
against the post of English Teacher setting it apart to
inservice candidates. It was filled up by direct
recruitment. In other words, it is contended that when
steps for filling up five vacancies were taken up during
the year 1999-2000, 25% thereof should have been given
for inservice candidates and while considering such
incumbents the person with lengthier service among the
aspirants should have been considered first and the
remaining 75% should have been reserved for direct
recruitment. In such a situation, the second respondent,
who had lengthier service ought to have been appointed as
Higher Secondary School Teacher (English), rather than
the petitioner in O.P.No.12706 of 2003 appointed as
Higher Secondary School Teacher (Hindi). The department
found this contention in favour of the second respondent
as is seen from Exhibit P7, of course, on a different
reason based on an interim order passed by the Supreme
Court on 7.12.1999. But the facts remain that the junior
hand, namely, the petitioner in O.P.No.12706 of 2003 was
preferred for appointment from among existing teachers in
the school on 2.8.1999 and the second appellant was
directly appointed as English Teacher with effect from
2.8.1999. Therefore, the position of the rules or
orders, obtainable as on that date, ought to have been
considered.
5. Exhibit P7 was challenged on that count by
the second respondent. Even if the position on 2.8.1999
or 28.9.1999 is taken note of, no order is produced
before us to show that the petitioner in O.P.No. 12706
of 2003 was having lengthier service than the second
respondent. On the other hand it is admitted that the
second respondent is, in any way, senior to the
petitioner in O.P.No.12706 of 2003. Therefore, he ought
to have been considered for the post for which he was
qualified rather than preferring a junior hand like the
petitioner in O.P.No.12706 of 2003.
6. At this juncture, it is submitted on behalf
of the first appellant that Exhibit P2 order prescribing
the ratio of 25:75 between promotion and direct
recruitment does not stipulate that the Manager should
fill up first the post to which senior incumbent is
entitled. When there is no such stipulation for
regulating appointment or promotion based on seniority in
Exhibit P2 or in any other order, the Manager being the
authority invested with power to make appointment and
promotion of his own staff, has to follow a reasonable
method. The reasonable method is that when there are
several teachers belonging to different subjects entitled
for consideration to few vacancies, those posts to which
senior incumbents are to be considered shall be set apart
for quota of inservice candidates, so that senior
incumbent shall not be superseded by a junior incumbent.
Otherwise it will be arbitrary and discriminatory.
7. Admittedly, there were five vacancies to be
filled up during the year 1999-2000. One shall be from
among the existing teachers on any count following
Exhibit P2. The eligible persons at that point of time,
were the second respondent and the petitioner in
O.P.No.12706 of 2003. The former was senior. He was
qualified for the post of English Teacher. That was
available. The latter was junior. He was qualified for
the post of Hindi Teacher. That was also available. But
the Manager could prefer only one incumbent following the
reasonable method. Senior shall be preferred,
ordinarily. No extraordinary situation is pointed out.
So the Manager ought to have appointed the second
respondent.
8. At this juncture, the contention of the
petitioner in O.P.No.12706 of 2003, the Hindi teacher,
that he was even qualified during the year 1998-99 for
appointment to the post of Hindi Teacher which was kept
vacant is to be considered. If he was eligible during
the year 1998-99, necessarily, there would have been no
vacancy in the year 1999-2000 for appointing an inservice
candidate including the second respondent. The averments
in O.P.No.12706 of 2003 is that he was qualified in the
year 1998-99, as evidenced by Exhibit P2 marked therein.
It is only a proceedings of the Director of Higher
Secondary Education. He cannot prescribe qualification
for a post. It has to be done by Government. It is
clear from Exhibit P2 that the circular referred to
therein applies only to appointments in departmental
Schools. Admittedly, the school concerned is an aided
Higher Secondary School. So Exhibit P2 cannot advance
the case of the petitioner any more. On the other hand,
we see from Exhibit R3(a) produced along with the counter
affidavit of the third respondent, who is none other than
the second respondent in the other Original Petition that
the petitioner therein became qualified for appointment
as Higher Secondary School Teacher only on the strength
of Exhibit R3(a) order dated 20.9.1999. He did not
possess B.Ed. in Hindi. He had passed only LTT
qualification. It is prescribed as sufficient
qualification for the post of Higher Secondary School
Teacher only as per Exhibit R3(a) dated 20.9.1999. That
means, during the year 1998-99 the petitioner in
O.P.No.12706 of 2003 was not qualified to be promoted as
High Secondary School Teacher (Hindi) as he did not have
B.Ed. Degree. That petitioner was appointed by the
Manager as H.S.S. Teacher(Hindi) only with effect from
28.9.1999 after he became qualified only just ten days
ago as per Exhibit R3(a) dated 20.9.1999. Even before
that, a qualified hand like the second respondent was
available for being appointed as English Teacher. But in
the existing vacant post the second appellant was
appointed on 2.8.1999. At that time the petitioner in
O.P.No.12706 of 2003 was not even qualified for
promotion. The post reserved to be filled up by
inservice candidates ought to have been filled up by
appointing the second respondent on 2.8.1999 itself when
an English hand has been appointed. Therefore, we find
that there is nothing for interference with the impugned
judgment in W.A.No.1057 of 2002 and in O.P.No.12706 of
2003. In other words, the second respondent in the Writ
Appeal will have to be taken as duly appointed, for
purpose of seniority, on a date earlier than the
appointment of the junior incumbent, the petitioner in
O.P.No.12706 of 2003, who was continued at the volition
of the Manager as Higher Secondary School Teacher, though
on promotion against a vacancy reserved for direct
recruitment, which is not impugned by anybody else.
Therefore, W.A.No.1057 of 2002 and O.P.No.12706 of 2003
stand dismissed.
9. Necessarily, when this declaration is there,
O.P.No.7823 of 2003 filed by the second respondent in the
Writ Appeal stands allowed to the limited extent that she
shall be recorded as senior to the petitioner in
O.P.No.12706 of 2003 for the purpose of seniority and
other benefits except arrears of salary. In the light of
the aforesaid finding it is only appropriate that the
Government shall consider payment of salary to the second
appellant, but with no attendant benefits, if no other
incumbent had been paid against the sanctioned post of
English Teacher during the relevant period he had
actually worked.
K.A.ABDUL GAFOOR, JUDGE@@
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.HE 2
K.A.ABDUL GAROOR
&
K.HEMA, JJ.
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W.A.NO.1057 OF 2002
O.P.NO.7823 OF 2003
&
O.P.NO.12706 OF 2003
.SP 2.5
.SP 2.5
JUDGMENT
1ST JULY, 2005