Kerala High Court
Sreedhania.C.M vs The State Of Kerala on 16 July, 2025
2025:KER:53060
W.P.(C).No.7178 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 16TH DAY OF JULY 2025 / 25TH ASHADHA, 1947
WP(C) NO. 7178 OF 2019
PETITIONER:
SREEDHANIA.C.M.,
U.P.S.A, RAMANATTUKARA HIGHER SECONDARY SCHOOL,
VIDIARANGODI P.O, RAMANATTUKARA, PIN-673633,
RESIDING AT MADATHIL HOUSE, AZHINHILAM P.O,
FEROKE COLLEGE VIA, KOZHIKODE.
BY ADVS.
SHRI.KALEESWARAM RAJ
SRI.VARUN C.VIJAY
SMT.A.ARUNA
KUM.THULASI K. RAJ
SMT.RIYA RAYMOL IYPE
SMT.MAITREYI SACHIDANANDA HEGDE
ADV CHINNU MARIA
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE DISTRICT EDUCATIONAL OFFICER,
MALAPPURAM-673101.
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W.P.(C).No.7178 of 2019
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3 THE MANAGER,
RAMANATTUKARA HIGHER SECONDARY SCHOOL,
RAMANATTUKARA, MALAPPURAM DISTRICT, PIN-673633.
*ADDL.R4. SMT.SINDHU.S.WARRIER
H.S.A(S.S)(UNAPPROVED),
UPSA RHS, RAMANATTUKARA, MALAPPURAM 673 633
*(ADDL.R4 IS IMPLEADED AS PER ORDER DATED
04.09.2019 IN IA NO.2/19 IN W.P.(C) 7178/19.)
BY ADVS.
SHRI.R.K.MURALEEDHARAN
DR.GEORGE ABRAHAM
OTHER PRESENT:
ADV TONY AUGUSTINE, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P.(C).No.7178 of 2019
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S.MANU, J.
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W.P.(C).No.7178 of 2019
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Dated this the 16th day of July, 2025
JUDGMENT
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 3rd 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 2025:KER:53060 W.P.(C).No.7178 of 2019 4 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 3rd 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 2025:KER:53060 W.P.(C).No.7178 of 2019 5 another direction preventing the 2nd 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 4th respondent as H.S.A. (Social Science). Petitioner impleaded her as an additional respondent. Respondents 2 to additional 4th 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 4th 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 2025:KER:53060 W.P.(C).No.7178 of 2019 6 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 4th respondent was promoted to the post after she acquired KTET qualification. The learned counsel pointed out that the 4th 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.4048/2018 dtd.03.08.2022];
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3. Surekha.K. v. State of Kerala [2024 KHC 666]. She hence prayed that the respondents 1 to 3 may be directed to grant promotion to the petitioner with effect from the date of occurrence of vacancy of H.S.A. (Social Science).
7. The learned counsel appearing for the 4th respondent submitted that though the petitioner and the 4 th respondent were appointed as U.P.S.A.s on the same date, the 4th respondent is senior in age. She was born on 3.5.1978; whereas the petitioner's date of birth is 30.5.1985. He hence submitted that the 4th respondent was to be treated as senior in the post of U.P.S.A. undoubtedly. He referred to the Government Orders granting exemption from passing KTET and submitted that the exemption granted put the petitioner and 4th respondent at the same level as on the date of occurrence of vacancy. The Manager did not fill up the vacancy as the Government Orders prevalent at that time mandated filling up of newly created 2025:KER:53060 W.P.(C).No.7178 of 2019 8 posts following 1:1 ratio and it was obligatory to appoint protected teachers. He submitted that the 4th respondent who was senior by virtue of her age in the post of U.P.S.A. was chosen for promotion as H.S.A. (Social Science) by the Manager when it was decided to fill up the post. He also submitted that at the time of promotion the 4 th respondent was fully qualified to hold the post of H.S.A. (Social Science). The learned counsel further contended that the provisions of Rule 43 of Chapter XIV- A of KER are not absolute and general orders issued by the Government from time to time would also apply in the case of filling up of vacancies by promotion. The learned counsel submitted that the appointment of the 4 th respondent was approved only with effect from the date on which the petitioner was promoted as H.S.S.T. He submitted that the 4th respondent is entitled to get approval for her appointment as H.S.A. (Social Science) with effect from the date of appointment.
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8. The learned Government Pleader fairly submitted that in view of the note under Rule 43 of Chapter XIV-A of KER, the crucial aspect is as to whether any qualified hand was available for promotion as on the date of occurrence of the vacancy. He pointed out judgment of this Court in Prem Chandran v. Dy.Director of Education [2001(3) KLT SN 22 (C.No.29)].
9. There is no dispute regarding the fact that the petitioner was qualified for appointment as H.S.A. (Social Science) on the date of occurrence of vacancy, i.e., 10.7.2018. Though the Manager filled up one among the three posts of H.S.As. newly sanctioned, post of H.S.A. (Social Science) was kept vacant. Justification for keeping the post vacant as stated in the counter affidavit was the requirement of appointing protected teachers. However, the fact remains that the post was later filled up by promoting the 4th respondent who acquired the KTET qualification much after the date of occurrence of vacancy. The learned counsel for the 4 th respondent had 2025:KER:53060 W.P.(C).No.7178 of 2019 10 submitted that the 4th respondent was senior in the post of U.P.S.A. The said submission is correct. However, the mandate of the note under Rule 43 is to consider qualified hands as on the date of occurrence of vacancy. In the case at hand, as on the date of occurrence of vacancy the petitioner was qualified and the 4th respondent lacked KTET qualification. Much emphasis was given to the exemption granted from acquiring KTET qualification. I have perused the relevant Government Orders. Contention that the same were intended to treat teachers not having KTET qualification at par with those having the qualification cannot be accepted. It is obvious from the Government Orders issued on various occasions including Ext.R4(c) that the purpose was only for providing time to those who were appointed including teaching and non-teaching staff, to acquire KTET qualification. Those orders were not issued for defeating the mandate of the provisions including Rule 43 of Chapter XIV-A. Hence reliance placed by the 4th respondent on 2025:KER:53060 W.P.(C).No.7178 of 2019 11 the Government Orders cannot be accepted. In Smitha Johny v. Josny Varghese and others [(2010) 13 SCC 414], the Hon'b'le Supreme Court laid down as follows:-
"17. It is not in dispute that as per Rule 43 of Chapter XIV-A of the Kerala Education Rules, a UPSA who is qualified for the post of HSA has a claim for promotion to the post of HSA against a vacancy arising in the same school. As per Note (2) under Rule 43, promotion under the said Rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy.
(emphasis supplied)
18. It is not disputed that as on 1-4-2005, the petitioner, Smt.Smitha Johny, did not possess the prescribed qualifications for the post of HSA (English), whereas Respondent 1, Smt.Josny Varghese did possess the qualifications. It is clear from the pleadings in the case that as on 1-4-2005, Smt.Josny Varghese was the only UPSA working in the School who was qualified for promotion as HSA 2025:KER:53060 W.P.(C).No.7178 of 2019 12 (English). Even according to the petitioner, she acquired the qualification of BEd in English only on 1-7-2005. Hence, if a vacancy of HSA (English) arose in the School on 1-4-2005, Respondent 1 Josny Varghese, being the only UPSA qualified for the post of HSA (English), was entitled to be promoted against the said vacancy in preference to the petitioner, Smt.Smitha Johny who, though senior to Smt.Josny Varghese, was not qualified for the post of HSA (English) on the date of occurrence of the vacancy."
10. In W.P.(C)No.4048/2018 a learned Single Judge of this Court considered the case of a U.P.S.A. who sought promotion as H.S.A. relying on the exemption. This Court rejected the writ petition.
11. In Surekha.K. v. State of Kerala [2024 KHC 666] this Court observed as under:-
"15. On the other hand, as far as the candidates seeking the benefit of Rule 43 are concerned, the date of occurrence of vacancy has a crucial relevance. This is mainly 2025:KER:53060 W.P.(C).No.7178 of 2019 13 because, for getting a right under Rule 43, he must be a senior-most person and also must have the qualification as on the date of occurrence of vacancy. This necessitates, (1) the existence of vacancy, (2) seniority as on the date of the occurrence of vacancy and (3) the qualifications as on the date of occurrence of vacancy. The seniority and the qualification can be considered only when the vacancy actually arises. Therefore, the right to claim promotion under Rule 43 will accrue on a person only on the date on which the vacancy arises, provided he has the seniority and the qualifications as on the said date. As per Note (2), the necessity to have prescribed qualification as on the date of the occurrence of vacancy is specifically stipulated. Moreover, in Rule 43 itself, the words used are "shall be filled up by promotion of qualified hands in the lower grade according to seniority". In Note (2), it is clearly mentioned that the promotion under this Rule shall be made from the persons possessing the qualification at the time of occurrence of vacancies. Therefore, 2025:KER:53060 W.P.(C).No.7178 of 2019 14 since Rule 43 specifically uses the word "promotion of qualified hands in the lower grade according to seniority" and Note (2) specifically contemplates that the qualification prescribed shall be as "at the time of occurrence of vacancy", unless the candidate is having seniority and the prescribed qualification as on the date of occurrence of vacancy, such candidate cannot be treated as eligible, to be given the benefit of Rule 43.
16. Here, in this case, the exemption provided as per Ext.P4 Government Order is only to those persons who have already acquired the right under Rule 43 as on the date of Ext.P3 order, i.e. 21.9.2022, whereas the vacancy to which the 6th respondent was appointed, arose only on 1.6.2023. When the qualification of the 6th respondent is taken into account as on the date of 21.09.2022, she will not fall under the said exemption, as she did not accrue the right to get an appointment under Rule 43 as on the date of Ext.P3, since no vacancy was in existence at the relevant time, to reckon the 2025:KER:53060 W.P.(C).No.7178 of 2019 15 seniority or qualification. Therefore, by virtue of Ext.P3, her qualification is excluded from the essential qualifications for being considered for promotion. Thus, as the 6th respondent did not accrue any right under Rule 43 to get promoted, as on 21.9.2022, the 6th respondent cannot be treated as a qualified hand, to be appointed to fill up the vacancy that arose on 1.6.2023. In this regard, a decision has been relied on by the learned counsel for the petitioner, i.e., Smitha Johny v.
Josny Varghese [2010(4)KLT SN 69 (C.No.80)SC] wherein it has been categorically observed by the Honourable Supreme Court that, the promotion under Rule 43 shall be made from the persons possessing prescribed qualification as on the date of occurrence of vacancy. The observations in the above decision fortify the view taken by this court."
12. In view of the law laid down in the above judgments also, I find that the claim of the petitioner is well justified. During the pendency of this writ petition the petitioner was 2025:KER:53060 W.P.(C).No.7178 of 2019 16 appointed as H.S.S.T. However, the appointment of 4th respondent as H.S.A. was during the pendency of this writ petition and therefore essentially subject to the outcome of this writ petition. Therefore the reliefs need to be appropriately moulded. As the vacancy was filled up by promoting the 4 th respondent on 03.06.2019 only, I am of the view that the claim of the petitioner for appointment as H.S.A. need to be considered only with effect from that date.
13. Hence, taking note of the developments during its pendency also, this writ petition is disposed of directing the respondents to promote the petitioner as H.S.A. (Social Science) with effect from 03.06.2019, the date on which the 4 th respondent was promoted as H.S.A. Consequently, the appointment of 4th respondent as H.S.A. with effect from that date shall stand set aside. The respondents 1 to 3 shall approve and regularize the service of the petitioner with effect from 03.06.2019 to 20.12.2021 as H.S.A. The 4 th respondent shall be 2025:KER:53060 W.P.(C).No.7178 of 2019 17 treated to have continued as U.P.S.A. till 20.12.2021.
Writ Petition is disposed of as above.
Sd/-
S.MANU JUDGE skj 2025:KER:53060 W.P.(C).No.7178 of 2019 18 APPENDIX OF WP(C) 7178/2019 PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/2016.
EXHIBIT P2 TRUE COPY OF THE B.A (HISTORY), CERTIFICATE ISSUED BY THE CALICUT UNIVERSITY DATED 11/10/2011.
EXHIBIT P3 TRUE COPY OF THE DEGREE OF M.A(HISTORY). EXHIBIT P4 TRUE COPY OF THE CERTIFICATE OF DEGREE OF B.ED ISSUED BY THE CALICUT UNIVERSITY DATED 20/12/2013.
EXHIBIT P5 TRUE COPY OF THE ELIGIBILITY CERTIFICATE OF KERALA TEACHER ELIGIBILITY TEST CATEGORY II(FOR UPPER PRIMARY CLASSES) ISSUED BY THE GOVERNMENT OF KERALA, DATED 08.12.2014. EXHIBIT P6 TRUE COPY OF THE ELIGIBILITY CERTIFICATE OF K-TET - CATEGORY III(FOR HIGH SCHOOL CLASSES) DATED 13/11/2013.
EXHIBIT P7 TRUE COPY OF THE CERTIFICATE OF SET DATED 21/12/2016 ISSUED BY THE DIRECTORATE OF HIGHER SECONDARY.
EXHIBIT P8 TRUE COPY OF THE STAFF-FIXATION ORDER DATED 10-07-2018.
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 21.06.2018.
EXHIBIT P10 TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT DATED 13/10/2018.
EXHIBIT P11 A TRUE COPY OF THE REPRESENTATION BEFORE THE 2ND RESPONDENT DATED 10.01.2019.
EXHIBIT P12 TRUE COPY OF THE OBJECTION DATED 20/07/2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
2025:KER:53060 W.P.(C).No.7178 of 2019 19 RESPONDENTS' EXHIBITS EXHIBIT R3(a) A TRUE COPY OF THE REVISION PETITION FILED BY THE 3RD RESPONDENT DATED 21/3/2019 Exhibit R4(a) A copy of the approval order given to this respondent as UPSA Exhibit R4(b) A copy of the proceedings No. 18/19 dated 25/5/2019 Exhibit R4(c) A copy of the G.O(MS) No. 134/2017/G.Edn dated 30/10/2017 Exhibit R4(d) A copy of the order No.B2/218773/2023 dated 30/01/2024 issued by the Deputy Director of Education, Malappuram Exhibit R4(e) A copy of the order No. B4/22197/2021 dated 8/5/2024