IMPORTANT POINT
The qualifications for promotion under Rule 43 of the Kerala Education Act must be satisfied at the time of the vacancy's occurrence, and any promotion granted without meeting these qualifications is legally unsustainable.

JUDGMENT :

THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

This Writ Petition is submitted by the petitioner, who is working as U.P.S.T. in the School managed by the 5th respondent, being aggrieved by the promotion granted to the 6th respondent as H.S.T.(Social Science). According to the petitioner, the 6th respondent lacks necessary qualifications as prescribed, to be appointed as H.S.T. (Social Science).

2. The facts which led to the filing of this Writ Petition are as follows: The petitioner is a holder of Degree and Post Graduation in Economics with B.Ed in Social Science and K.TET 3 in Social Science. Based on the qualifications, she was appointed as U.P.S.T. in the School by the 5th respondent on 12.06.2018, and as per Ext.P1, the appointment was also approved. The 6th respondent was also working as a U.P.S.T. in the said School, and she is a Post Graduate in Commerce. She also possesses a degree in Commerce. She does not have K.TET 3 for teaching Social Science in High School classes, but she possesses SET qualification in Commerce, a mandatory qualification for teaching for the Higher Secondary section. Consequent to the retirement of the Headmistress on 31.05.2023, Sri. Gireeshkumar P.C., the senior most teacher working as HST (Social Science) in the said school, has been promoted and posted as Headmaster in the said School on 1.6.2023. Thereupon, a vacancy of H.S.T. (Social Science) arose and the petitioner submitted a request for promotion as she was the senior-most among the qualified UPSTs in the School at the relevant time. However, without considering the claim of the petitioner, the 5th respondent appointed the 6th respondent as HST (Social Science).

3. According to the petitioner, even though the qualification of Degree and Post Graduation in Commerce was treated as an essential qualification for HST initially, later, as per Ext.P3 Government order dated 21.09.2022, the qualifications of Degree and B.Ed in Commerce and Music, were excluded from the essential qualifications for HSA/HST(Social Science). Subsequently, Ext.P3 G.O.(Ms)234/2022 G.Edn dated 19.12.2022 was issued granting exemption in respect of certain classes of Commerce graduates and B.Ed holders. The said Government order is produced as Ext.P4. As per the same, the following categories of persons were exempted from the operation of Ext.P3 Government order the said persons are:

i) The persons who were appointed in Government and aided schools prior to the date of Ext.P2 Government Order;

ii) The persons who had applied and attended the examinations on the basis of the notification issued by the Public Service Commission for filling up the vacancies of HSA (Social Science);

iii) The persons who have acquired B.Ed in Social Science after acquiring the degree in Commerce and Music and those already undergoing B.Ed in Social Science after acquiring Degree and B.Ed in Social Science.

iv) The persons who have acquired rights under Rules 43 51A and 51B of Chapter XIVA of KER before the date of Ext.P3 Government Order.

4. According to the petitioner, the 6th respondent, who holds a degree and B.Ed in Commerce, is not coming under any of the exempted categories as per Ext.P4 order, and hence is not entitled to be appointed as HST (Social Science). The Writ Petition was submitted in such circumstances challenging the appointment of the 6th respondent as HST.

5. A counter affidavit has been submitted by the 6th respondent wherein it was contended that as per Ext.R6(d) Government Order GO(Ns)No.141/88/G.Edn dated 13.09.1988, the Government has re-grouped the HSA in core subjects in which a degree in Commerce is one of the academic qualifications for HST (Social Science). In Ext.R6(e), the same was further clarified by stating that, as per Ext.R6(d) Government Order dated 16.02.2011, Commerce is an alternative qualification for HSA (Social Science). It was also averred that as far as the lack of qualification of K.TET is concerned, the same also cannot be a disqualification