Promotion must be based on qualifications existing at the time of vacancy, per Rule 43, regardless of later qualifications or exemptions.

JUDGMENT :

S. MANU, J.

1. Petitioner was appointed in a regular vacancy of U.P.S.A. in the U.P. section of the Ramanattukara Higher Secondary School on 1.6.2016. Petitioner was holding B.A., M.A.(History), T.T.C and B.Ed. She passed KTET category III in 2013 and category II in 2014. She passed SET also in 2016.

2. In the academic year 2018-19, in the High School Section, three additional posts of H.S.As. were sanctioned vide Staff Fixation Order dated 10.7.2018. However, only the post of H.S.A. (Physical Science) was filled up by the 3^rd respondent and other two posts were kept vacant. Claim of the petitioner is that as on the date of occurrence of vacancy of H.S.A. (Social Science), 10.7.2018 she was the only U.P.S.A. qualified to be promoted and appointed as H.S.A. (Social Science). Petitioner had the KTET qualification as also all other qualifications for getting promoted as H.S.A. She therefore claimed that she was an eligible Rule 43 claimant.

3. Petitioner submitted a representation to 3^rd respondent on 21.6.2018, when she anticipated sanctioning of a post of H.S.A. (Social Science) requesting that when the vacancy will be filled up she may be considered for promotion. However, the post was not filled up and on 13.10.2018, Manager issued Ext.P10 letter intimating the petitioner that her request would be discussed on merit as per Rules, at the time of effecting promotion to the post of H.S.A.(Social Science). Petitioner thereafter submitted a representation to the 2^nd respondent also. She approached this Court after submitting the representations. She sought a direction to the respondents to fill up the vacancy of H.S.A. (Social Science) by promoting her and another direction preventing the 2^nd respondent from approving the appointment of H.S.A. (Social Science) of any person other than the petitioner.

4. During the pendency of this writ petition, Manager appointed the additional 4^th respondent as H.S.A. (Social Science). Petitioner impleaded her as an additional respondent. Respondents 2 to additional 4^th respondent filed separate counter affidavits.

5. I have heard Adv.Chinnu Maria, learned counsel for the petitioner, Adv.Dr.George Abraham, learned counsel for the additional 4^th respondent and Adv.Tony Augustine, learned Government Pleader.

6. Learned counsel for the petitioner submitted that at the time of occurrence of vacancy of H.S.A. (Social Science) petitioner was fully qualified for promotion. She submitted that the petitioner was a claimant under Rule 43 of Chapter XIV-A of the KER. Relying on the note under the Rule, she contended that when a qualified hand is available at the time of occurrence of vacancy, promotion cannot be denied to the qualified teacher. The petitioner raised her claim by submitting a representation to the Manager. However, filling up of the post was deliberately delayed and the 4^th respondent was promoted to the post after she acquired KTET qualification. The learned counsel pointed out that the 4^th respondent acquired KTET qualification in category III only with effect from 21.10.2018. She submitted that the exemption granted from acquiring KTET qualification cannot be relied on by the Manager or the 4^th respondent, as the exemption was intended only to protect the teachers who were appointed without KTET qualification and not to defeat the claims of the qualified hands. The learned counsel relied on the following judgments:-

1. Smitha Johny v. Josny Varghese and Others, (2010) 13 SCC 414

2. Kochuthresia Linda O.D. v. State of Kerala and Others, W.P. (C) No. 4048/2