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
2
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
3
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
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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
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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
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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
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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
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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
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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
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(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
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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,
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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
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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
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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
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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
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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.
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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
