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SHEEJA U.D. versus DHANNIA K.A.

High Court of Kerala

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SHEEJA U.D. v. DHANNIA K.A. - WA No. 1403 of 2005 [2005] RD-KL 94 (28 July 2005)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 1403 of 2005

1. SHEEJA U.D., TEACHER,
... Petitioner

Vs

1. DHANNIA K.A., W/O. LINDO,
... Respondent

2. THE DIRECTOR OF HIGHER SECONDARY

3. THE MANAGER, K.C.P. HIGHER

For Petitioner :SRI.SAJAN VARGHEESE K.

For Respondent :SRI.ELVIN PETER P.J.

The Hon'ble MR. Justice K.A.ABDUL GAFOOR The Hon'ble MRS. Justice K.HEMA

Dated : 28/07/2005

O R D E R

.PL 55 .TM 3 .SP 2 .BM 2 K.A. ABDUL GAFOOR &

K.HEMA, JJ.


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W.A.No.1403 & 1441 of 2005
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Dated this the 28th day of July, 2005.



JUDGMENT

j ((HDR 0 {WA 1403 & 144/05} :: # :: )) .HE 1

Abdul Gafoor, J.

The appointment to the post of Higher Secondary School Teacher (Malayalam) is the bone of contention in this appeal between the appellant in W.A.No.1403/05 (the 3rd respondent in the writ petition) and the first respondent therein (writ petitioner in the writ petition), who is the appellant in the other appeal.

2. The claim of the first respondent/writ petitioner was rejected by the Director of Higher Secondary Education as per Ext.P7. Therefore, she filed the writ petition. As per the impugned judgment, Ext.P7 had been set aside finding that the Manager of the Aided School ought to have preferred the first respondent rather than the appellant. But the learned single Judge did not direct payment of backwages to the first respondent in respect of the period during which she ought to have been appointed. Therefore, she has preferred W.A.No.1441/05 claiming salary for the period during which she was denied appointment.

3. The appellant was appointed by the Manager as High School Assistant (Malayalam) on 6.6.1994. She did possess the required qualification for the post of Higher Secondary School Teacher (for short "H.S.S.T.) on the date of occurrence of the vacancy i.e. 5.9.2000 and her qualifications were M.A. and B.Ed. At the same time, the manager appointed the first respondent as High School Assistant (Malayalam) with effect from 15.2.2000, but approval to this appointment was pending with the department. She did possess, at the relevant point of time, M.A. and B.Ed. apart from pass in State Eligibility Test (SET). This is an admitted position. The Manager preferred, on the basis of the minutes of the selection committee, the appellant for the post of Higher Secondary School Teacher (Malayalam). The first respondent contested this and .JN staked her claim before the department contending that the appellant was never qualified as she did not have the SET qualification; whereas the first respondent did have that qualification. It was further contended that going by Ext.P3, SET was an essential qualification and only in the absence of SET qualified hands, other qualified hands from the service or from open market shall be appointed. At that time Ext.P3 was in force regarding the qualification for the post. Going by the said order, the appellant ought not to have been preferred, first respondent contended, but the department did not accept this contention and rejected her claim as is revealed by Ext.P7. The learned single Judge examining the challenge against Ext.P7, found that going by Ext.P3 the Manager could not have preferred the appellant, but only the first respondent. Therefore, her appointment was directed. This is impugned in W.A.No.1403/05 by the appellant, who has been preferred by the Manager.

4. Two contentions are raised mainly: (1) At the relevant point of time 5.9.2000, SET was not an essential qualification for appointment as H.S.S.T. and (2) The first respondent did not have approval to her appointment effected on 15.2.2000, when the selection was made. Approval was accorded to her appointment only far later, on 22.3.2002. Therefore, she did not have, as now submitted by the Manager, a title to the post for being considered for appointment as H.S.S.T. In this regard, the decision of a learned single Judge in O.P.No.17698/95 is relied on to contend that only after approval, one will acquire title for further consideration. It is also contended by the appellant that Ext.P6 interim order dated 7.12.1999 issued by the Apex Court permitted even candidate without SET qualification. Later, by the final judgment in the case reported in M.M.Dolichan v. State of Kerala {2001 (1) SCC 151}, it was held that all such appointments has been directed to be regularised. Therefore, the appellant's appointment ought to have been taken as in tune with Ext.P6 interim order which permitted appointment of candidates without SET qualification. Even though as directed in Ext.P6 such appointment will be on ad hoc basis, by reason of the final judgment in that case, those appointments have been directed to be regularised. Therefore, SET qualification was not required for appointment as H.S.S.T. Therefore, the Manager was right in choosing the appellant. It is further submitted that by reason of the orders issued subsequent to the decision in Dolichan's case (cited supra), all persons appointed until the date of the pronouncement by the Supreme Court on 14.11.2000, have been exempted from acquiring the SET qualification. The appellant had acquired the SET qualification on 21.2.2002. Therefore, there was no reason to unsettle the appointment of the appellant. It is further submitted that when the claims are viewed in the light of the orders issued subsequent to the decision in Dolichan's case, the appellant cannot be said to be uderqualified for appointment as on 5.9.2000.

5. The manager contended that when the selection was made, he was not aware of Ext.P3 Government dated 25.8.2000. Therefore, the appellant was preferred and her appointment has to be sustained as per Ext.P6 order of the Supreme Court. Moreover, subsequent orders also justify the appointment of the appellant. The first respondent did not have the right to stake her claim for the post of H.S.S.T. on 5.9.2000 as she did not have approval of her appointment.

6. These contentions are resisted by the first respondent relying on Ext.P3 Government Order dated 25.8.2000 which makes possession of SET qualification as mandatory and obliges the manager to prefer a candidate without SET qualification, only in the absence of qualified hands. It is submitted that the appointment "of suitable candidates" permitted in terms of Ext.P6 interim order of the Supreme Court is the qualified hands in terms of Ext.P3 which includes possession of SET qualification as well. It is further submitted that the manager had appointed the first respondent as there was a post. Merely because approval was delayed on one count or the other, the manager cannot contend that the first respondent had not been appointed. The judgment of the learned single Judge relied on is in relation to a 51-A claimant, for which approval to the appointment is a mandatory requirement. A reading of the said judgment discloses that at that time, a well qualified hand found excess had been in service on protection on supernumerary arrangement as a physical education teacher. It was in that fact-frame, the learned single Judge held that when there was such protected hand, the petitioner in that case could not have claimed appointment under Rule 51-A based on a far later approval to her appointment to oust an approved hand. Therefore, the facts are different in this case. It is further submitted that the appointment which the candidate aspired on 5.9.2000 was also not covered by any statutory rules unlike the claim raised before the learned single Judge. The rules governing the appointment to the post of H.S.S.T. came in the statute only on 12.11.2001. Therefore, that judgment cannot, in any way, be relied on to reject the claim of the first respondent, the counsel contends. There is also a further contention from the appellant that there was no post at all, even to accommodate the first respondent as High School Assistant (Malayalam) on 15.2.2000 and the approval of her appointment and exemption from SET qualification were sought for as a special case. Therefore, she does not have a claim for appointment as H.S.S.T. on 5.9.2000.

7. As rightly contended by the counsel for the appellant, her appointment was later than the date of Ext.P6 interim order passed by the Supreme Court. The counsel also was right in pointing out that the appointments made pursuant to such interim order are to be regularised going by the final judgment in Dolichan's case. But the appointment permitted in Ext.P6 is the appointment of a "suitable qualified candidates" and the intention of the interim order is to make any appointment only on ad hoc basis considering the issue agitated. A reading of Dolichan's case revealed that the issue was with reference to the legality or otherwise of the government order dated 13.5.1998 which fixed the quota of 25% for inservice candidates and 75% by direct recruitment in the matter of appointment as H.S.S.T. When the Supreme Court permitted appointment on ad hoc basis of suitable candidates and the interim order did not specify what the qualifications are, necessarily, we have to refer to the relevant government orders existing at that point of time to ascertain what the qualifications are. As already mentioned above, the selection was held on 5.9.2000. Ext.P3 dated 25.8.2000 specifically makes it clear, as regards appointment in aided Higher Secondary Schools, as follows:

i) If there is a SET qualified teacher in i the school, he/she shall be given the first preference for appointment. If there are more than one eligible qualified candidate in a school, a selection committee consisting of the Principal, Manager and Deputy Director of Education/District Educational Officer or the Principal of DIET shall make the selection. ii) in the absence of category (i) above i appointment shall be made from the open market from among the candidates who have passed SET. iii) in the absence of SET qualified hands, i other eligible qualified hands shall be appointed on ad hoc basis.

8. The first respondent aspires for appointment as H.S.S.T. based on Clause (i). Clause

(i) makes it clear that if there is a SET qualified teacher in the school, he/she shall be given preference for appointment and if there are more such qualified hands, the selection committee shall find out a suitable hand from among them. The appellant cannot, as on 5.9.2000, come within the fold of the first clause, as admittedly she acquired the SET qualification only on 21.12.2002. Clause (ii) of the said government order provides that in the absence of SET qualified hands in the school, appointment shall be given to candidates from open market and only in the absence of SET qualified hands, other eligible qualified hands can be appointed on ad hoc basis, vide Clause (iii) of the said Government Order. The appellant comes only within the fold of Clause (iii) of the said Government Order as she was not SET qualified. She can be considered only in the absence of SET qualified hands either in service or in the open market. The first respondent was available in the service for appointment. She did have the SET qualification which she acquired on 10.6.2000 well earlier than the date of selection 5.9.2000. Therefore, going by the government order which prescribed the qualification regarding the appointment and the procedure for appointment as contained in Ext.P3, the manager could not have appointed the appellant. The contention of the manager that he was not aware of Ext.P3 cannot be sustained. Anyone invested with the power to make appointments shall always be aware of the qualifications to be attained by the incumbent. In such circumstances, the contention that the selection committee had also selected the appellant is also no answer, as the appellant did not satisfy the required qualification. A person who does not possess the required qualification cannot be chosen, even if he is found to be suitable by the selection committee, because the qualification is the prime criteria for consideration for selection by the selection committee.

9. The contention that the approval to the appointment of the first respondent was accorded by the department on 22.3.2002 also cannot improve the case of the appellant. The manager had appointed the first respondent on 15.2.2000. The manager does not have a case before us that when he appointed the first respondent, there was no vacancy to accommodate her. Had there been no vacancy, the manager would not have made such appointment. That the manager did appoint her indicates that there was a vacancy. The contention of the appellant that, going by the staff fixation for the year 1999-2000, only six posts of H.S.A.(Malayalam) were sanctioned and all the six posts were occupied by regular incumbent may be true. But in accordance with the Rules in Chapter 23 K.E.R., the school is eligible for one more post. Nothing prevents the manager from appointing and agitatting for that, if found eligible in accordance with law and the Rules. Rule 6 (D) Chapter 23 KER provides that appointment of H.S.A.(Malayalam) shall be based on the number of periods for the language. There is no case before us that number of periods available for Malayalam during the year 1999-2000 enable to accommodate only less than 7 incumbents. The contention based on Annexure R1(c) Government Order dated 15.7.2000 or the Government Order issued in clarification on 7.12.2000 and 24.10.2001 make it clear that the ban imposed in Annexure R1(a) is confined only from 2001-02 onwards. In other words, any ban or restriction with regard to the appointment of H.S.A.(Malayalam) as contained in Ext.R1(c) was not available when the first respondent was appointed as H.S.A.(Malayalam) on 15.2.2000. That was why the Government directed to consider approval of the appointment of the first respondent as per Annexure D in the light of Annexure E. Therefore, a post was available to appoint the first respondent even on 15.2.2000. When such post is available and the manager had rightly appointed the first respondent to that available post, the manager, who is the appointing authority, to prefer her to the post of H.S.S.T. cannot contend that she could not have been preferred, as there was no approval for her appointment. The judgment in O.P.No.17698/95 relied on by the manager cannot come to the aid of the Manager who appointed the appellant because the case considered therein was right for reappointment in a post from which one was thrown out as contained in Rule 51-A Chapter XIV A K.E.R. For claiming reappointment, one should have a claim that he/she has preference to an existing qualified hand. On the appointment of the first respondent, she has become an existing teacher and the approval is a formality for her to draw salary. So far as the manager is concerned, she was qualified and eligible to be appointed even on 15.2.2000 for which approval has to be granted in which case the approval will take effect from the date of appointment. Therefore, the fact situation considered in O.P.No.17698/95 cannot have relevance in this case.

10. The discussion thus reveal that the manager ought not to have preferred the appellant, who did not have the required qualification for appointment as H.S.S.T.(Malayalam) and he ought to have preferred the first respondent, who was available on the staff of the school with due qualification as set out in Ext.P3 Government Order dated 25.8.2000. Therefore, W.A.No.1403/05 shall have to be dismissed.

11. In such circumstances, we are of the view that the learned single Judge was perfectly justified in quashing Ext.P7 and directing the appointment of the first respondent. The claim of the first respondent for salary also cannot be countenanced because the first respondent did not function as H.S.S.T., even if she had been directed to be appointed as H.S.S.T. with effect from 5.9.2000, it will be only against a part-time post available at that time in which case, the salary drawn will be equal to that of an H.S.A. in which case, there arises no question of granting arrears. Therefore, W.A.No.1441/05 filed by first respondent shall have to be dismissed. In the result, both the appeals are dismissed. .SP 1 .JN (K.A.ABDUL GAFOOR)

JUDGE.

(K.HEMA)

JUDGE

sk/- .PA ((HDR 0 )) .HE 2 .SP 2 K.A.ABDUL GAFOOR &

K.HEMA, JJ.


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W.A.No.1403 & 1441 of 2005

JUDGMENT

j 28th July, 2005.
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Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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