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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. KUNHIKRISHNAN, J.
Secretary Corporate Management of Schools under the Society of the Order of Sacred Transfiguration Pathanapuram, Kollam – Petitioner
Versus
State of Kerala – Respondent
W.P. (C) No. 3810 of 2022
Decided On : 07-02-2023
Kerala Education Rules, 1959 - Rule 43 - Right to Education Act, 2009 - Entitled a preferencial appointment - Order of promotion - Whether a claimant is entitled a preferencial appointment in super-session to an executive order passed by Government - Right of a teacher under Rule 43 Chapter XIV (A) KER cannot be infringed by state through an executive order.
Findings of the Court:
Vacancies which occurred can be filled up only after appointing protected teachers equal to number of teachers appointed during period because of additional vancies - There is no dispute on that and same is clear from Ext.P2 order of promotion of 2nd petitioner - It may be true that, because of promotion of 2nd petitioner from post of UPSA, arising vacancy in UPSA may have to be filled up as per G.O(P) - But G.O(P) is not applicable to retirement vacancy of HSA(NS) in which 2nd petitioner was promoted as a statutory Rule 43 claimant - Therefore prayers in this writ petition are to be allowed.
Result: Petition allowed.
JUDGMENT :
P.V. KUNHIKRISHNAN, J.
1. Short point to be decided in this case is whether a claimant under Rule 43 of Chapter XIV (A) of the Kerala Education Rules, 1959 (hereinafter referred to as “KER”) is entitled a preferencial appointment in super-session to an executive order passed by the Government as per G.O. (P) No. 10/10/G.Edn dated 12.01.2010 (in short “G.O. (P) 10/10”).
2. The 1st petitioner is the Corporate Management having several schools in different districts of the State, which is conferred with minority status by the National Commission for Minority Institutions of Government of India as per Ext.P1 order. The 2nd petitioner, Ms. Jolly Alex, was appointed as the Upper Primary School Assistant (in short “UPSA”) by the 1st petitioner with effect from 16.11.1989. The said appointment was approved by the department from the actual date of appointment. The 2nd petitioner, after her approval of appointment, worked in different schools under the 1st petitioner's management and was working at St. Stephen's High School, Pathanapuram till her promotion. The 1st petitioner promoted the 2nd petitioner as High School Assistant (Natural Science) [in short “HSA(NS)”] and posted her to Mount Tabor High School, Pathanapuram with effect from 01.06.2010 as per Ext.P2 order. The promotion was effected in a retirement vacancy caused due to the retirement of one A.T. Annamma with effect from 31.03.2010. It is the case of the petitioners that, being a claimant under Rule 43 of Chapter XIV (A), KER, the 2nd petitioner’s promotion as HSA (NS) with effect from 01.06.2010 is liable to be approved as per the statutory provisions of KER. The proposal for approving the promotion of the 2nd petitioner as HSA (NS) at Mount Tabor High School, Pathanapuram was submitted to the 4th respondent, the District Educational Officer, Kollam. The 4th respondent rejected the approval of promotion of the 2nd petitioner on the ground that the Manager had not complied with the stipulations contained in G.O. (P) 10/10 and has not executed any Bond. Ext.P3 is the order of the 4th respondent. Ext.P3 order was challenged before the 3rd respondent, The Deputy Director of Education, Kollam, by the Manager, but the 3rd respondent also took the stand that since the 1st petitioner Manager has not complied with the directions contained in G.O. (P) 10/10, it is not possible to grant approval of promotion to the 2nd petitioner as HSA (NS) with effect from 01.06.2010 and thereby rejected the appeal as per Ext.P4 order. After Ext.P4 order, the 2nd petitioner's promotion as HSA (NS) was approved by the 4th respondent with effect from 01.06.2011 in the light of G.O. (P) No. 199/2011/G.Edn dated 01.10.2011 and also in the light of Order No. H2/35920/2011/DPI dated 14.12.2011 issued by the 2nd respondent. Ext.P5 is the order. It is the case of the petitioners that the 2nd petitioner was working as UPSA with approval from the year 1989 onwards. Thus, she became a claimant under Rule 43 of Chapter XIV (A) KER and hence she is eligible for promotion in the next arising vacancy under the 1st petitioner's management. It is the further case of the petitioners that the other Government Orders directing the appointment of protected teachers in additional vacancies will not have any overriding effect over the 2nd petitioner’s claim, since she is a statutory claimant under Rule 43 of Chapter XIV (A), KER. Therefore, the contention of the petitioners is that the 2nd petitioner is entitled to get her promotion approved with effect from 01.06.2010 itself. It is the case of the 2nd petitioner that, after the approval of her promotion as HSA (NS) by Ext.P5 with effect from 01.06.2011, she was behind respondents 3 and 4 for getting her promotion approved with effect from 01.06.2010 itself, but the 2nd petitioner was informed that the Government is issuing a comprehensive order on the basis of the judgments of this Court which was filed challenging G.O. (P) No. 199/2011/G.Edn dated 01.10.2011.
Right of a teacher under Rule 43 Chapter XIV (A) KER cannot be infringed by state through an executive order.
The main legal point established in the judgment is that promotions are to be made from persons possessing the prescribed qualifications at the time of occurrence of the vacancy, and the interpretati....
Promotion eligibility requires the satisfaction of qualifications at the time of vacancy, with amendments to rules applied retrospectively when appropriate.
Point of Law : Rule 8 of Chapter XIVA KER which deals with procedure with respect to approval of appointments.
The court affirmed deemed approval for teacher appointments due to the respondent's failure to act within legal timelines and ruled that objections for rejection were legally invalid.
The provisions of the Kerala Education Rules govern appointments, and while familial claims exist, they do not override statutory norms for educational appointments.
Rule 44 reads as appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared.
The right to be considered for promotion is a fundamental right, and delay or laches in approaching the court/Tribunal may not always be considered as fatal to the legitimate claim of the aggrieved p....
Right to preferential appointment envisaged therein accrues only to a teacher who has been “relieved” in any of the circumstances mentioned in the Rule.
The lack of a vacancy in a specific teaching subject in the Higher Secondary section does not disqualify an eligible Headmaster from appointment by transfer as Principal under the Kerala Education Ru....
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