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2019 Supreme(Online)(KER) 5196
HIGH COURT OF KERALA
Devan Ramachandran, J
SREENEGESH – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/23112/2009
GOVERNMENT PLEADER SRI.LEGY ABRAHAM SRI.M.SAJJAD SRI.V.A.MUHAMMED SRI.S.DILIP-GP
A vacancy not filled due to the absence of qualified candidates allows the first qualified applicant who claims their entitlement post-qualification to seek appointment.
Headnote:
Appointment - HSA (English) - KER Chapters and Rules - The court emphasized the necessity for the authorities to reconsider the petitioner's qualifications post the vacancy acknowledgment, affirming that if the vacancy remained unfilled, the first qualified candidate should be prioritized for appointment.
Fact of the Case:
The petitioner sought appointment as HSA (English) after becoming qualified on 29/09/2007 for a vacancy that arose on 15/07/2005, which remained unfilled. Despite his qualification, the school manager appointed another candidate instead, prompting the petitioner to challenge the decision.
Finding of the Court:
The court found that the petitioner was indeed qualified on the date he informed the school management and that the vacancy was still open. The authority had to reconsider the earlier decisions in light of this fact.
Issues: Whether the petitioner is entitled to appointment as HSA (English) given that he was not qualified when the vacancy originally arose, but was qualified at the time the vacancy remained unfilled.
Ratio Decidendi: The necessary consideration is that a person can claim entitlement to appointment only if they were qualified after the vacancy arose and it remained unfilled, as per judicial precedents.
Final Decision: The writ petition is ordered, directing reconsideration of the petitioner’s claim by the competent authority.
JUDGMENT
The petitioner claims appointment to the post of HSA (English) in KKM Higher Secondary School, Palakkad, which is managed by the 4th respondent, in preference to the 6th respondent.
2. The facts involved in this case are in a very narrow compass.
3. The petitioner says that he was appointed as an HSA (English)
on 05/06/2006 against a vacancy that arose on 15/07/2005, but concedes that he was not qualified at that time, since he had not acquired B.Ed in English then. He admits that his appointment was not approved for this reason and that the Educational Authorities have, therefore, rejected his appointment. His assertion is that, thereafter, he became qualified on 29/09/2007 and that he had intimated the Manager and the Head Master of the School, vide Ext.P4 request, which, he says, was received by them on 29/09/2007. The petitioner contends that the vacancy, which arose on 15/07/2005, continued to be unfilled even on that date and therefore, that he was entitled to be promoted to the post of HSA (English) on the very next day he became qualified; but that the Manager still appointed the 6th respondent with effect from 01/10/2007, in violation of all the provisions of the Kerala Education Acts and Rules, (KER).
4. The petitioner also has a corollary contention that the appointment of 6th respondent was, in fact, not with effect from 01/10/2007 but only with effect from 01/11/2007 and he relies on Exts.P5, P6 and P12 in substantiation of this contention. The petitioner therefore, says that the Ext.P11 order, issued by the Government, granting approval to the 6th respondent, rejecting the earlier contrary order of the DPI, is illegal and unlawful.
5. I have heard Sri. Sajan Varghese, learned counsel appearing for the petitioner; Sri. Rajasekharan Nair, learned counsel appearing for the 6th respondent; Sri. Liji Vadakkedom, learned counsel for the 5th respondent-Headmaster of the School and the learned Government Pleader appearing for respondents 1 to 3.
6. The facts, as narrated above are not really in dispute. The fact that the vacancy arose on 15/07/2005 is admitted; so is the fact that the 6th respondent was appointed only after 29/09/2007, be it on 01/10/2007 or 01/11/2007. The question, therefore, that arises immediately is whether the petitioner, who claims to have been qualified on 29/09/2007 and who claims to have intimated this factum through Ext.P4 to the Manager and Headmaster of the school, should have been appointed either under Rule 43, Chapter 14(A) of the KER or otherwise to the available post of HSA (English). The petitioner asserts that since he became qualified at least on 29/09/2007 and since the vacancy that arose on 15/07/2005 remained unfilled even on that date, he was entitled to be appointed as HSA (English) on the very next day. Contrary to this, the stand of the Manager appears to be that since the petitioner was not qualified on the date of arising of the vacancy, he cannot claim entitlement to be appointed subsequently to that post and therefore that Ext.P11 order of the Government is irreproachable.
7. Sri. Rajasekharan Nair, the learned counsel appearing for the
6th respondent also affirms the stand taken by the Manager of the School, but adds that there is nothing on record to show that the petitioner was qualified even on 29/09/2007 and contends that, in any event of the matter, it is now well settled that if the petitioner was not qualified on the date on which the vacancy arose, he cannot claim appointment thereafter.
8. In refutation of the afore submissions, the learned counsel appearing for the petitioner relies upon the judgment of a Full Bench of this Court in Padmanabhan Nair Vs. Dy. Director, (1991 (1) KLT 337 (F.B.)) to contend that it is now settled declaration of law that if on the date of arising of the vacancy, there were no one qualified for appointment, then the person who becomes qualified first thereafter would be entitled to be considered for appointment. He says that in this
