Jolly Mathew vs State Of Kerala Reprresented By ...
2021 Latest Caselaw 2672 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

      FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942

                       WP(C).No.9914 OF 2012(L)


PETITIONER:

               JOLLY MATHEW, UPPER PRIMARY SCHOOL ASSISTANT,
               DBHSS, THACHAMPARA, PALAKKAD DISTRICT.

               BY ADV. SRI.PAULSON THOMAS

RESPONDENTS:

      1        STATE OF KERALA REPRRESENTED BY THE SECRETARY,
               DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT,
               THIRUVANANTHAPURAM-695 001.

      2        THE DISTRICT EDUCATIONAL OFFICER
               PALAKKAD-678 001.

      3        MANAGER, DBHSS, THACHAMPARA, PALAKKAD-678 005.

      4        JAYASREE.V., HIGH SCHOOL ASSISTANT (ENGLISH),
               DB HSS, THACHAMPARA, PALAKKAD-678 005.

      5        SANDHYA.K., HIGH SCHOOL ASSISTANT (ENGLISH),
               DB HSS, THACHAMPARA, PALAKKAD-678 005.

      6        RADHIKA.M., HIGH SCHOOL ASSISTANT (ENGLISH),
               DB HSS, THACHAMPARA, PALAKKAD-678 005.

               R1 & R2 BY SR. GP SRI.P.M.MANOJ
               R3 BY ADV. SRI.GEORGE POONTHOTTAM

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 9914/12                           2




                                JUDGMENT

Dated this the 22nd day of January 2021

The petitioner, who was working as an Upper Primary School

Assistant in DB HSS, Thachampara, Palakkad at the time when this

writ petition was filed, has approached this Court impelling a claim

that she be promoted as a High School Assistant (English) in the said

School, under the provisions of Rule 43 Chapter XIVA of the Kerala

Education Rules (KER). She asserts that she is qualified as per Rule

2(2)(b)(x) Chapter XXXI of the KER and therefore, that the Manager

was wrong in having over looked her claim and in having appointed

other persons. She contends that, as is evident from the provisions of

Chapter XXXI of the KER, in the absence of teachers with

qualifications as provided therein, candidates with B.Ed./B.T./L.T. in

other subjects ought to have been considered. The petitioner asserts

that this not having been done, the Manager was in error and

therefore, impugns Exhibit P8 order of the Government, deleting item

(iii) of sub clause (x) to Rule 2(2)(b) Chapter XXXI of the KER, which

she is relying upon.

2. Though various assertions and averments have been made

in this writ petition, the fact remains that, pending this lis, there were

developments in law also.

3. Even though the petitioner has impugned Exhibit P8 order

of the Government on the contention that it cannot override the

statutory provisions, the fact is that it was followed by an amendment

to the KER, which took effect from 05.01.2009, deleting clause (iii) of

sub clause (x) to Rule 2(2)(b) Chapter XXXI of the KER. The petitioner

has not chosen to challenge the said amendment and, therefore, I

cannot find the prayers sought for in this writ petition to be tenable at

this distance of time.

4. I must, however, record the submission of the petitioner

that she was promoted subsequently in the year 2013 and that now a

vacancy has arisen with respect to the academic year 2011-12, on

account of the sanction of an additional division. The learned counsel,

therefore, alternatively prayed that the petitioner be directed to be

appointed to the said vacancy and the Manager and the Educational

Authorities be ordered to do so.

Prima facie, I am unable to accede to the afore request of the

learned counsel for the petitioner, since, after the amendment to Rule

2(2)(b)(x) Chapter XXXI of the KER, it is doubtful if the petitioner,

who was not qualified on the date of occurrence of vacancy, can stake

a claim to be promoted, even under Rule 43 Chapter XIVA of the KER.

However, if the petitioner is desirous of approaching the Government

for such purpose, I do not deem it appropriate to foreclose such

remedy and I, therefore, close this wit petition, reserving liberty to

her to approach the Government in the afore manner, if she is so

advised.

Sd/-

Devan Ramachandran, Judge tkv

APPENDIX PETITIONER'S EXHIBITS:

EXT. P1 TRUE COPY OF THE APPOINTMENT CUM APPROVAL ORDER OF THE PETITIONER

EXT. P2 TRUE COPY OF THE APPOINTMENT CUM APPROVAL ORDER FO THE PETITIONER

EXT. P3 TRUE COPY OF THE B.Ed CERTIFICATE OF THE PETITIONER ISSUED BY MAHARHMA GANDHI UNIVERSITY

EXT. P4 TRUE COPY OF THE MA DEGREE CERTIFICATE ISSUED BY THE MADURAI KAMARAJ UNIVERSITY

EXT. P5 TRUE COPY OF THE CERTIFICATE OF EQUIVALENCY ISSUED BY UNIVERSITY OF CALICUT TO EXT. P4 MA ENGLISH DEGREE

EXT. P6 TRUE COPY OF THE B.Ed DEGREE WITH ENGLISH AS OPTIONAL SUBJECT OF THE INDIRA FANDHI NATIONAL OPEN UNIVERSITY

EXT. P7 TRUE COPY OF THE GRADE CARD IN RESPECT OF THE SAME ISSUED BY THE INDIRA GANDHI NATIONAL OPEN UNIVERSITY

EXT. P8 TRUE COPY OF THE GO(P)NO.2/2009/G.Edn. DATED 5.1.2009

EXT. P9 TRUE COPY OF THE SENIORITY LIST OF TEACHERS OF UP SECTION OF THE 4TH RESPONDENT'S SCHOOL

/TRUE COPY/

P.S. TO JUDGE