ITEM NO.107                   COURT NO.8                 SECTION XIA

             S U P R E M E   C O U R T   O F   I N D I A                            RECORD OF PROCEEDINGS

                 CIVIL APPEAL NO(s). 7944-7947 OF 2001

DEEPA AUGUSTINE                                          Appellant (s)

                       VERSUS

GEETHA ALEX & ORS.                                       Respondent(s)

(With appln(s) for PERMISSION TO FILE ADDITIONAL AFFIDAVIT and office report )

Date: 08/05/2008  These Appeals were called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE A.K. MATHUR         HON'BLE MR. JUSTICE AFTAB ALAM

For Appellant(s) Mr. B.V. Deepak, Adv.

                    for M/S. T.T.K. Deepak & Co.,Adv.

For Respondent(s)                      Mr. Romy Chacko,Adv.

                    Mr. G. Prakash ,Adv

          UPON hearing counsel the Court made the following                                O R D E R  

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)

         IN THE SUPREME COURT OF INDIA  CIVIL  APPELLATE JURISDICTION

   CIVIL APPEAL NOS.7944-7947 OF 2001

DEEPA AUGUSTINE Appellant(s)

       Versus

GEETHA ALEX & ORS.  Respondent(s)

O R D E R

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

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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the earlier circulars had been withdrawn and hence, they cannot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

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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

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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

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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.   

              ....................J.         (A.K.MATHUR)             

                          .....................J.           (AFTAB ALAM)

New Delhi, May 8, 2008