Dismissed

Soman Sam.T. v. State of Kerala

Kerala HC23 Sept 2016WP(C)/21112/2009

Case brief

AI extract

What is this about?

In this writ petition, a school employee claiming promotion to Drawing Teacher challenged the rejection of his claim and the appointment of a rival candidate. The court held that promotion under Rule 43 requires qualification at the time the vacancy arises, holding the writ petition dismissed.

What did the court decide?

Rejection of the claim for promotion and dismissal of the writ petition.

Soman Sam.T. Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE SMT. JUSTICE P.V.ASHA

¶4

FRIDAY, THE 23RD DAY OF SEPTEMBER 2016/1ST ASWINA, 1938

¶5

WP(C).No. 21112 of 2009 (H)

¶6

PETITIONER(S):

¶7

SOMAN SAM.T., FULL TIME MENIAL, T.M.V.H.S.SCHOOL, PERIMPILAVU, THRISSUR DISTRICT.

¶8

BY ADV. SRI.ELVIN PETER P.J.

¶9

RESPONDENT(S):

¶10

1. STATE OF KERALA, THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

¶11

2. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT.

¶12

3. THE MANAGER,

¶13

T.M.V.H.S.SCHOOL, PERIMPILAVU, THRISSUR DISTRICT.

¶14

4. RAJILAN R.,

¶15

DRAWING TEACHER (ON DAILY WAGE BASIS), T.M.V.H.S. SCHOOL, PERIMPILAVU, THRISSUR DISTRICT.

¶16

R1 & 2 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER R3 BY ADV. SRI.V.A.MUHAMMED

¶17

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

¶19

WP(C).No. 21112 of 2009 (H)

¶20

APPENDIX

¶21

PETITIONERS' EXHIBITS

¶22

P1: COPY OF THE RELEVANT PAGES OF THE SSLC BOOK OF THE PETITIONER

¶23

P2: COPY OF THE APPOINTMENT ORDER DT.4/7/2005 OF THE PETITIONER

¶24

P3: COPY OF THE CERTIFICATE ISSUED BY THE GOVT.OF KERALA EVIDENCING THAT THE PETITIONER PASSED KERALA GOVT. CERTIFICATE EXAMINATION IN FINE ARTS

¶25

P4: COPY OF THE ORDER G.O.DT.15/6/2004 ISSUED BY THE GOVERNMENT

¶26

P5: COPY OF THE ORDER G.O.DT.10/6/2008 ISSUED BY THE GOVERNMENT

¶27

P6: COPY OF THE APPOINTMENT ORDER OF THE R5 DT.14/7/2008

¶28

P7: COPY OF THE ORDER DATED 8/1/2009 ISSUED BY THE DPI.

¶29

P8: COPY OF THE ORDER G.O.DATED 10/6/2009 ISSUED BY THE R1.

¶30

RESPONDENTS' EXHIBITS

/ TRUE COPY /

P.S. TO JUDGE

P.V.ASHA, J.

W.P.(C) No.21112 of 2009

¶36

Dated this the 23^rd day of September, 2016

¶37

JUDGMENT

¶38

The petitioner challenges Ext.P8 order by which the appointment of the 4^th respondent as Drawing Teacher is upheld and claim raised by the petitioner for promotion as Drawing Teacher is rejected.

¶39

The petitioner is a full time menial working under the 3^rd respondent in T.M.V.H.S.School, Permpilavu which is an aided school governed by provisions contained in the Kerala Education Act and Rules. His appointment was approved as per Ext.P2 with effect from 4.7.2005. While in service he passed the Kerala Government Certificate Examination in Fine Arts held by the Government of Kerala as seen from Ext.P2 certificate. According to him, results of the examination was published on 29.7.2008 and he became qualified for appointment of Drawing Teacher with effect from 29.7.2008.

¶40

A vacancy of Drawing Teacher arose in the school consequent to the retirement of the then incumbent on 31.3.2008, with effect from the commencement of the academic year 2008-09. The Manager appointed the 4^th respondent as per Ext.P6 order of appointment and the appointment was approved on daily wage basis for the period from 14.7.2008 to 31.3.2009. The petitioner's claim is that on expiry of the

¶41

W.P.(C) No.21112 of 2009

¶42

:2:

¶43

period of approval ie. after 31.3.2009 there was a fresh vacancy and as against that vacancy the petitioner was liable to be promoted. According to the petitioner the 4^th respondent who did not have service for a period of one academic year in full cannot have any claim for appointment for the period beyond 31.3.2009. According to him he being a Rule 43 claimant, was liable to be promoted against that vacancy of Drawing Teacher. But the Manager allowed the 4^th respondent to continue in the post. Aggrieved by the same he filed a representation before the Director of Public Instruction and the Director of Public Instruction by Ext.P7 order dated 8.1.2009 rejected his claim saying that at the time of occurrence of vacancy in the post of Drawing Teacher the petitioner was not qualified and he did not have any preferential claim for the post unless and until he acquired the qualification. The petitioner thereupon approached the Government filing a revision petition and it was rejected as per Ext.P8 order dated 10.6.2009 upholding the order passed by the Director of Public Instruction. Ext.P8 order passed by the Government is under challenge in this writ petition.

¶44

The District Educational Officer filed a statement stating that

¶45

W.P.(C) No.21112 of 2009

¶46

the appointment of the 4^th respondent was approved only on daily wages for the period from 14.7.2008 to 31.3.2009 in the light of G.O. (P) No.104/08/G.Edn dated 10.6.2008 and thereafter the appointment was approved with effect from 1.6.2009 on regular scale of pay. In the statement filed on 22.5.2010 the District Educational Officer stated that the petitioner is not qualified to hold the post of Drawing Teacher as on 14.7.2008 which is the date of appointment of the 4^th respondent. It was further stated that in case G.O.(P) NO.104/08/G.Edn dated 10.6.2008 was quashed the 4^th respondent will be the senior claimant and otherwise the petitioner will be the rightful claimant. The petitioner relies on the counter affidavit filed by the District Educational Officer in support of his case.

¶47

The 3^rd respondent Manager has filed a counter affidavit stating that the eligibility of the petitioner for promotion is in accordance with Rule 1 (1) of Chapter XIV-A of KER and in order to grant him promotion he should have been qualified for appointment as on the date of occurrence of vacancy.

¶48

According to the petitioner he was the rightful claimant entitled for promotion to the post of Drawing Teacher for the period

¶49

W.P.(C) No.21112 of 2009

¶50

from 1.4.2009 on expiry of the period of approval in Ext.P4 order issued in favour of the 4^th respondent. Under Note 2 to Rule 1(1) of Chapter XIVA of KER, qualified hands among the non teaching staff are entitled to promotion to the post of teachers in aided Schools.

¶51

I heard the learned counsel counsel for the petitioner, learned counsel Government Pleader and the learned counsel for the 3^rd respondent.

¶52

Petitioner is claiming promotion under Rule 43 of Chapter XIV A, which provides that the vacancies in higher grades shall be filled up by promotion from among persons having qualification at the time of occurrence of vacancy. In the case of petitioner he was not qualified as on the date of occurrence of vacancy which was on 1.4.2008. The claim of the petitioner on the ground that the approval of appointment was on daily wages and after the duration of approval in Ext.P4 he was the rightful claimant cannot be accepted in the light of the provisions contained in Rule 43. Note 2 of Rule 43 of Chapter XIV A KER is relevant in this context, which reads as follows:

¶53

Note:(2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy.

¶54

W.P.(C) No.21112 of 2009

¶55

:5:

¶56

Admittedly the petitioner became qualified only on 29.7.2008 when the results were published. Just because the vacancy which arose on 1.04.2008 happened to be filled up only in the month of July the approval of appointment in Ext.P4 happened to be made on daily wages only on account of the fact that duration of appointment did not cover the entire academic year. The vacancy in this case arose on account of a retirement on 31.3.2008. Petitioner's claim that vacancy again arose on expiry of the duration of approval in Ext.P4 on 31.3.2009 cannot be accepted. Date of occurrence of vacancy envisaged in Note (2) below Rule 43 does not depend upon the nature of approval as claimed by the petitioner. The approval was limited to the closing date of the academic year only because of the restriction in Ext.P5 G.O.(P)104/2008/G.Edn dated 10.6.2008 which provides in paragraph 5(ii) as follows:

¶57

“(ii). If the period of appointment commences after the beginning of the re-opening day but extended over the next academic year/years, the period upto the first vacation shall be on daily wages only. Xxx IN short, fractions of an academic year will not be considered for approval on regular basis”.

¶58

Ext.P4 order cannot have any application in this case,

¶59

because there arose only one vacancy, which was on retirement on

¶60

W.P.(C) No.21112 of 2009

¶61

31.3.2008. In the absence of a vacancy which arose on the commencement of the academic year 2009-10, as claimed by the petitioner, petitioner cannot have any right for promotion against the vacancy in which the 4^th respondent was appointed.

¶62

The educational authorities have rejected the claim of petitioner in Ext.P7 and P8. Hence the writ petition fails and is dismissed.

¶63

Sd/-

¶64

P.V.ASHA JUDGE

¶65

rkc

Soman Sam.T. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Soman Sam.T. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Oriental Insurance Co.Ltd, Vs J.Sunil

Davis Vs Babu

V.M.Sulochana and Ors. Vs the Hospital Development Society and Ors.

Smt.Prasannakumari Vs the Chief Executive

S.Ambika Vs K.S.E.B.

K.Janaki Amma and Another Vs the Commissioner,Hr & Ce Dept.,Kozhikode