Kerala High Court
Addl.R4.Smt.Sindhu.S.Warrier vs Sreedhania.C.M on 18 August, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
2025:KER:61265
WA NO. 1878 OF 2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
MONDAY, THE 18TH DAY OF AUGUST 2025 / 27TH SRAVANA, 1947
WA NO. 1878 OF 2025
AGAINST THE JUDGMENT DATED 16.07.2025 IN W.P.(C)
NO.7178 OF 2019 OF HIGH COURT OF KERALA
APPELLANT/4TH RESPONDENT:
ADDL.R4.SMT.SINDHU.S.WARRIER
H.S.A(S.S)(UNAPPROVED) UPSA RHS, RAMANATTUKARA,
MALAPPURAM 673 633
(IS IMPLEADED AS PER ORDER DATED 04.09.2019 IN I.A NO.2
OF 19 IN W.P.(C)7178 OF 19.)
BY ADV DR.GEORGE ABRAHAM
RESPONDENTS/PETITIONERS AND RESPONDENTS 1-3:
1 SREEDHANIA.C.M.,
AGED 33 YEARS
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.
2 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
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WA NO. 1878 OF 2025 2
3 THE DISTRICT EDUCATIONAL OFFICER,
MALAPPURAM-676101., PIN - 673101
4 THE MANAGER,
RAMANATTUKARA HIGHER SECONDARY SCHOOL,
RAMANATTUKARA, MALAPPURAM DISTRICT,
PIN-673633.
BY ADVS.
SHRI.KALEESWARAM RAJ
KUM.THULASI K. RAJ
SMT.NISHA BOSE, SR.GP
THIS WRIT APPEAL WAS FINALLY HEARD ON 04.08.2025, THE
COURT ON 18.8.2025 DELIVERED THE FOLLOWING:
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WA NO. 1878 OF 2025 3
"CR"
JUDGMENT
Muralee Krishna, J.
The additional 4th respondent in W.P.(C)No.7178 of 2019 filed
this writ appeal under Section 5(i) of the Kerala High Court Act,
1958, challenging the judgment dated 16.07.2025 passed by the
learned Single Judge in that writ petition.
2. By Ext.P1 order dated 01.06.2016, the 1 st respondent-
writ petitioner was appointed as U.P.S.A., in the school managed
by the 4th respondent, with effect from the date of that order.
Approval to that appointment was not given by the Educational
Department due to the pendency of the writ petitions pertaining
to the appointment of protected teachers in the ratio 1:1, before
this Court. On 10.07.2018, 3 posts of H.S.A, such as H.S.A (Social
Science), H.S.A (Physical Science) and H.S.A (English) were also
sanctioned to the School, vide Ext.P8 staff fixation order. The 1 st
respondent contends that as on the date of occurrence of the
vacancy of H.S.A (Social Science), i.e., on 10.07.2018, she was
the only U.P.S.A., qualified to be promoted and appointed as H.S.A
(Social Science). She had the K.TET qualification and also all other
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qualifications for getting promotion as H.S.A. She therefore
claimed that she was an eligible claimant under Rule 43 of Chapter
XIV-A of Kerala Education Rules, 1959, ('KER' in short). The 1 st
respondent submitted Ext.P9 representation dated 21.06.2018 to
the Manager for getting promotion as H.S.A (Social Science).
Since the 4th respondent Manager, did not give a positive
response, the 1st respondent submitted Ext.P11 representation
dated 10.01.2019 to the 3rd respondent District Educational
Officer. Thereafter, the 1st respondent approached this Court with
the writ petition filed under Article 226 of the Constitution of India
seeking a writ of mandamus commanding the respondents therein
to fill up the vacancy of H.S.A (Social Science) sanctioned as per
Ext.P8 staff fixation order dated 10.07.2018, by promoting the 1 st
respondent forthwith and to issue a writ of mandamus restraining
the District Educational Officer from approving the appointment of
H.S.A (Social Science), if any person, other than the 1 st
respondent is appointed by the Manager.
3. During the pendency of the writ petition, the Manager
appointed the appellant-additional 4th respondent as H.S.A (Social
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Science) and hence the 1st respondent impleaded her as an
additional respondent in the writ petition.
4. The 3rd respondent District Educational Officer filed a
counter affidavit dated 04.05.2021 in the writ petition, opposing
the reliefs sought for and producing therewith Ext.R2(a)
document. The 4th respondent Manager filed a counter affidavit
dated 28.07.2019, opposing the reliefs sought for in the writ
petition and producing therewith Ext.R3(a) document. The
appellant/additional 4th respondent also filed a counter affidavit
dated 09.06.2025, opposing the reliefs sought in the writ petition
and producing therewith Exts.R4(a) to R4(e) documents.
5. After hearing the learned counsel on both sides and on
perusing the materials on record, the learned Single Judge
disposed of the writ petition as per the impugned judgment dated
16.07.2025, directing respondents 3 and 4 herein to promote the
1st respondent-writ petitioner as H.S.A (Social Science) with effect
from 03.06.2019, the date on which the appellant was promoted
as H.S.A. Consequently, the appointment of the appellant as
H.S.A. with effect from that date is ordered to be set aside.
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Respondents 2 to 4 were directed to approve and regularise the
service of the 1st respondent-writ petitioner with effect from
03.06.2019 to 20.12.2021 as H.S.A. The appellant was directed
to be treated to have continued as U.P.S.A., till 20.12.2021. It is
challenging that judgment the appellant-additional 4th respondent
is now before this Court with this writ appeal.
6. Heard the learned counsel for the appellant, the
learned Senior Government Pleader and the learned counsel for
the 1st respondent-writ petitioner.
7. The learned counsel for the appellant submitted that
the short question to be considered in this writ appeal is as to
whether it is the appellant or the 1 st respondent, who is qualified
to be promoted as H.S.A from the post of U.P.S.A. The learned
counsel would point out that based on the amendment made to
Rule 7 of Chapter XXI of KER, additional posts, irrespective of
category, shall be filled up by the Manager by appointing teachers
from the list of protected teachers in the Teachers Bank.
Therefore, the Manager could not effect promotion from the lower
category by virtue of the amendment which was brought into force
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with effect from 14.12.2016. Later, the Government, by a Circular
dated 08.03.2019, clarified that the appointment of protected
teachers shall be made subject to Rule 43, 51A and 51B of Chapter
XIV-A of KER. Therefore, it can only be considered that the
vacancy arose for promotion from U.P.S.A., other than the
protected teachers, only from the date of that Circular. The
appellant passed the K-TET examination on 13.12.2018, and she,
being the senior, has to be promoted as H.S.A (Social Science)
with effect from 03.06.2019, the date of re-opening of the school.
The benefit of Rule 43 of Chapter XIV-A of KER will be subject to
the clarificatory order of the Government. Therefore, the finding
of the learned Single Judge that the 1st respondent is to be offered
appointment with effect from 03.06.2019 is illegal. The learned
counsel vehemently submitted that by Ext.R4(c) Government
Order dated 30.10.2017, the teachers who were appointed from
the academic year 2012-2013 to 2017-2018 were given
exemption from passing K-TET examination, till the academic year
2019-2020. The appellant passed the K-TET examination much
prior to the academic year 2019-2020. Therefore, the appellant is
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entitled for promotion as H.S.A (Social Science) on the strength
of Ext.R4(c) exemption order granted by the Government, even if
the date of arising of vacancy is taken as 10.07.2018.
8. On the other hand, the learned counsel for the 1st
respondent-writ petitioner submitted that the exemption granted
for obtaining qualification of K-TET by Ext.R4(c) Government
Order is applicable only for continuing in the post as U.P.S.A. and
not for promotion. For promotion, the qualification as prescribed
under Rule 43 of Chapter XIV-A of KER has to be obtained by the
appellant. As on the date of arising of vacancy, i.e., on
10.07.2018, the appellant was not qualified K-TET examination
and hence it is the 1st respondent who was eligible to be promoted
as H.S.A. The learned Senior Government Pleader also supported
this argument of the learned counsel for the 1 st respondent and
submitted that the exemption in Ext.R4(c) Government Order is
only to continue in that post, and it is intended only to protect the
teachers in a particular post and not for promotion. Since, as on
the date of arising of vacancy by Ext.P8 staff fixation order, the
protected teachers did not approach, there is no necessity to go
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back to that stage. As on the date of arising of the vacancy, by
virtue of the amendment to Rule 7 of Chapter XXI of KER, it is the
1st respondent who is qualified to be appointed as H.S.A, and
hence no interference is needed to the impugned judgment of the
learned Single Judge.
9. The appellant, as well as the 1st respondent, were
appointed in the school as U.P.S.A. on the same date. So, based
on the date of appointment, their seniority cannot be fixed. The
Date of Birth of the appellant is 03.05.1978, whereas that of the
1st respondent is 30.05.1984. Therefore, as per Rule 37(2) of
Chapter XIV-A of KER, the appellant is entitled to claim seniority
over the 1st respondent. The vacancy of H.S.A (Social Science)
arose in the school on 10.07.2018 due to Ext.P8 staff fixation
order. As per amendment brought to Rule 7(2) of Chapter XXI of
KER, which came into force with effect from 29.01.2016, the
additional post, irrespective of category, on staff fixation shall be
filled up by the Manager by appointing teachers from among the
list of protected teachers in the Teachers Bank, with the
permission of the Deputy Director (Education) concerned and by
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appointing teachers otherwise than from the Teachers Bank in the
ratio 1:1 respectively.
10. Going by the above provision, it is clear that when an
additional vacancy of H.S.A. arose as per Ext.P8 order, the first
option ought to have been given by the Manager to the protected
teachers. By a Circular dated 08.03.2019, the Government issued
the following clarification to Rule 7(2) of Chapter XXI of KER,
which reads as under;
"കെ.ഇ.ആർ അധ്യായം XXI ചട്ടം 7(2) പ്രൊരം 29.01.2016 മുതലുള്ള അധ്ിെ
തസ്തിെെളികല നിയമനങ്ങൾക്ക് 1:1 എന്ന അനുരാതം രാലിക്കക്കണ്ടതാണ്.
ഇതിൽ ആദ്യകെ ഒഴിവ് സംരക്ഷിത അധ്യാരെനുക്കവണ്ടി
നീക്കികവക്കണം. കെ.ഇ.ആർ അധ്യായം XIV A, ചട്ടം 43, 51A, 51B എന്നിവ
പ്രൊരമുള്ള മുൻഗണനാവൊശിെളുകണ്ടങ്കിൽ രാജി, മരണം
റിട്ടയർകമന്റ് പ്രാൻസ്്ഫർ പ്രക്കമാഷൻ തുരങ്ങിയ വയവസ്ഥാരിത
ഒഴിവുെളിൽ നിയമിക്കകെട്ടതിന് ക്കശഷം മാപ്തക്കമ അധ്ിെ തസ്തിെെളിൽ
നിയമനം നരൊവൂ. ഇപ്രൊരം നിയമനം നരെിയതിന് ക്കശഷം വരുന്ന
അധ്ിെ തസ്തിെെളികല നിയമനങ്ങളിൽ ക്കമൽ സൂചിെിച്ച 1:1 അനുരാതം
രാലിക്കക്കണ്ടതാണ്. അധ്ിെ തസ്തിെയിൽ ചട്ടം 43 അവൊശികയയാണ്
നിയമിച്ചകതങ്കിൽ പ്രസ്തുത സ്ഥാനക്കയറ്റം വഴിയുണ്ടായ ഒഴിവിൽ
സംരക്ഷിത അധ്യാരെകന നിയമിക്കക്കണ്ടതില്ല."
[Emphasis Supplied]
11. As the above clarification dated 08.03.2019, while
giving posting in the ratio 1:1 under Rule 7(2) of Chapter XXI of
KER, the first preference has to be given to the claimants under
Rule 43, 51A and 51B of Chapter XIV-A of KER and thereafter only
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the ratio 1:1 has to be followed. If a claimant under Rule 43 is
given promotion, then the arising vacancy need not be filled up
from the protected teachers.
12. Rule 43 of Chapter XIV-A of KER read thus;
"Subject to rules 44 and 45 and considerations of efficiency
and any general order that may be issued by the
Government, vacancies in any higher grade of pay shall be
filled up by promotion of qualified hands in the lower grade
according to seniority, if such hands are available:
Provided that in the case of promotion to the post of High
School Assistant (Subject), the minimum subject
requirements alone need be satisfied, to safeguard the
interests of trained graduates who are awaiting promotions
as High School Assistants.
Provided further that where a Headmaster, Headmistress,
Vice-Principal or a teacher who has been promoted under
this rule faces retrenchment for want of vacancy, he shall
be reverted to the category of post from which he has been
promoted provided he is not eligible for protection in the
retrenched post as per the orders issued by the Government
from time to time.
Note:-(1) A teacher in a lower grade of pay in one category
of post is eligible for promotion to a higher grade of pay in
another category of post provided:
(i) he has the prescribed qualifications; and
(ii) there is no teacher with the prescribed qualifications in
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the lower grade of pay of the category of post to which
promotions are to be made.
Note:-(2) Promotion under this rule shall be made from
persons possessing the prescribed qualifications at the time
of occurrence of vacancy." [Emphasis Supplied]
13. The appellant, as well as the 1 st respondent, claims
promotion to the post of H.S.A (Social Science) based on the
above Rule. As per Note (1) to Rule 43, 2nd proviso, a teacher in
a lower grade of pay in one category of post is eligible for
promotion to a higher grade of pay in another category of post,
provided only if he or she has the prescribed qualifications. As
rightly argued by the learned counsel for the 1st respondent-writ
petitioner and the learned Senior Government Pleader, the
appellant herein, on the date of arising of the vacancy of H.S.A
(Social Science) in the school based on Ext.P8 staff fixation order,
had not acquired the qualification of K-TET. The appellant passed
K-TET examination on 13.12.2018. Whereas the 1 st respondent
had acquired that qualification on 13.11.2013. In view of Note (1)
to Rule 43 of Chapter XIV-A of KER, the exemption granted by the
Government by Ext.R4(c) order can only be taken as one for
continuing in the post and not for promotion. In such
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circumstances, it is only to be held that, as on the date of the
arising of the vacancy, it is the 1st respondent who was qualified
to be promoted as H.S.A (Social Science) and not the appellant
herein. It is not the date on which the amendment is notified, but
the date of arising of the vacancy that has to be considered, when
the rule was amended with retrospective effect, on a date prior to
the date of arising of the vacancy.
In such circumstances, we find no reason to interfere with the
impugned judgment of the learned Single Judge. In the result, this
writ appeal stands dismissed.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MSA
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PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE ELIGIBILITY
CERTIFICATE DATED 23/03/2019
