The appeals are disposed of in terms of the signed order.
(Sukhbir Paul Kaur) (P.S. Tyagi)
Court Master Court Master
(Signed Order is placed on the file)
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7944-7947 OF 2001
DEEPA AUGUSTINE Appellant(s)
Versus
GEETHA ALEX & ORS. Respondent(s)
We have heard learned counsel for the parties.
These appeals by special leave are directed against the judgment and
order dated 25th May, 2001 passed by the full bench of the High Court of Kerala
at Ernakulam in W.A. Nos. 1065-1068 of 1996. The Kerala High Court has
examined the proviso to Rule 43 of the Kerala Service Rules, 1959 and observed :
“Thus, if a vacancy had arisen in the post of
Science Teacher, necessarily, the Science Teacher had to be
promoted. But what prompted the Government to introduce
the Proviso is the complaint made by certain sections of
teachers that in the exigencies of service promotions may be
made considering the seniority of the teacher even though he
may not be qualified in the subject in which
vacancy arose. It is to implement such a position that the
Proviso was enacted. An argument was advanced stating that
the earlier circulars had been withdrawn and hence, they cannot
be looked into to ascertain the meaning of the words “subject
requirement” and finally they concluded :-
“In view of the above, we direct the Government to
reconsider Ext. P7 and pass appropriate orders within two
months from today in the light of the principles held in this
judgment. Original Petition is disposed of.”
Exhibit P-7 is an order passed by the Kerala Government in a
petition filed by the appellant before us on a remand made by the Kerala High
Court in a writ petition filed by the appellant. In that, on 27th August, 1994 the
Government passed the following order :-
“In the above circumstances Government order
that the action of the Manager, St. Michael's High School,
Kudavachoor, Ambika Market P.O. in appointing Smt. N.K.
Thressiamma a Social Studies hand in the vacancy of a Physical
Science teacher will be set aside. The Manager will appoint a
proper Physical Science hand. While doing so, the Manager
will prefer claims if any put in by Smt. Deepa Augustine, who
was appointed by the Manager earlier and terminated
subsequently. In the case of Smt. Geetha Alex who claims a
right to be appointed as H.S.A. (Physical Science) from 1993-
94, the Manager will examine the issue as per subject ratio and
available periods for physical.”
In this background we have to examine the case of the appellant. The
appellant was initially appointed as High School Assistant (Physical Science) on
probation on 28th October, 1991 in the vacancy of K.T. Thomas who was
promoted as a Head Master. This was protested by N.K. Thressiamma, a teacher
in the Social Studies in the Upper Primary Section. Therefore, the appointment
of appellant was not approved by the District Education Officer. Against that, the
appellant filed an appeal before the Government which was rejected. Aggrieved
against that, she preferred a Revision Petition before the State Government.
There also she failed. Thereafter, she filed
a Writ Petition before the High court and the High Court remanded the matter
back to the Government and the Government thereafter passed the order on 27th
August, 1994 (Ex.P-7)and directed the Manager to consider the case of Deepa
Augustine against the Physical Science vacancy. This order was challenged by
N.K. Thressiamma and many other petitions were filed. A Full Bench was
constituted to examine the scope of Rule 43 and the Proviso along with the order
passed by the Government dated 27th August, 1994. In that context, the Full
Bench passed the order as quoted above.
However, now the situation has changed. We have been informed
that N.K. Thressiamma has since been superannuated and the appellant is still
working as a Physical Science Teacher. Therefore, no useful purpose will be
served by examining the effect of Full Bench Judgment. However, the Full Bench
has already observed that the Government should re-examine the matter in the
light of the decision given by the Full Bench.
However, we may observe that whenever the question of promotion
arises, the first question which is to be examined is the subject requirement of that
vacancy and the person should be appointed who has the minimum
qualification for teaching that subject. To illustrate the point : in case a vacancy
arises for a subject of Physical Science against that person who possess minimum
qualification for teaching the Physical Science should be recruited and not a
person who belongs to Social Studies. This will be doing a great harm to the
interest of the students. The paramount consideration should be the interest of
the students that the person who is being appointed to teach subject should
possess minimum qualification of that subject.
However, now we need not dilate on Section 43 and the Proviso
thereunder because N.K. Thressiamma who is from Social Studies has already
superannuated and the appellant is working in the Physical Science, the
authorities may consider the appointment of the appellant in Physical Science
subject as she said to possess necessary qualification. We leave it to the
competent authority to consider the matter of the appellant and pass appropriate
orders in accordance with law.
The appeals are accordingly, disposed of.
(AFTAB ALAM) New Delhi, May 8, 2008