REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(C) No.20822 of 2006

Smitha Johny               … Petitioner  Vs.

Josny Varghese & Ors. … Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. The Respondent No.1 herein sought a direction  

from the educational authorities to promote her as  

High  School  Assistant  (English),  hereinafter  

referred to as “HSA (English)”, in a vacancy which,  

according to her, had arisen on 1st April, 2005.

One Smitha Johny, who was not initially impleaded  

in  the  writ  petition,  got  herself  impleaded  as  

Respondent  No.5  and  has  filed  the  Special  Leave  

Petition questioning the judgment and order dated  

20th June, 2006, passed by the Kerala High Court at  

Ernakulam in Writ Appeal No.1925 of 2005 and order  

dated  2nd August,  2006,  passed  by  the  said  High  

Court in Review Petition No.568 of 2006.

2. As mentioned hereinabove, the Respondent No.1,  

writ petitioner, who was serving in St. George’s  

High School, Arakkunnam, as Upper Primary School  

Assistant,  hereinafter  referred  to  as  “UPSA”,  

claimed promotion to a vacancy, which, according to  

her, had occurred in HSA (English) on 1st April,  

2005.   On  the  other  hand,  the  Petitioner  was  

appointed  as  Lower  Primary  School  Assistant,  

hereinafter  referred  to  as  “LPSA”,  on  21st June,  

2000, in the said School and was serving in such  

capacity throughout.  At the time of entering into  

service, the Petitioner was a graduate in English  

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and  had  also  obtained  Teachers’  Training  

Certificate  (TTC).   Subsequently,  the  Petitioner  

also acquired a B.Ed. degree in English from the  

Kerala University.

3. The  Writ  Petitioner/Respondent  No.1  claimed  

that she was a graduate in the English language and  

had  a  B.Ed.  degree  and  was,  therefore,  fully  

qualified  to  be  promoted  to  the  post  of  HSA  

(English)  in  terms  of  the  aforesaid  Government  

Order.  It is also her case that one post of HSA  

(English) had been sanctioned in terms of the staff  

fixation order for the year 2004-05. However, one  

Smt. Alice Mathew, HSA (Social Science) who was not  

qualified as HSA (English), had been permitted to  

continue  in  the  post  of  HSA  (English)  to  avoid  

retrenching  her.   In  the  meantime,  Smt.  Lissy  

George  K.,  Head  Mistress  of  the  School  took  

voluntary retirement with effect from 31st March,  

2004.   Smt.  Alice  Mathew,  being  the  senior-most  

HSA, was accommodated against that vacancy.   

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4. Consequently, with effect from 1st April, 2005,  

a vacancy arose in the post of HSA (English) and  

according to the writ petitioner/Respondent No.1,  

such vacancy was required to be filled up by a  

qualified  English  Teacher.   The  Manager  of  the  

School,  however,  without  understanding  the  

Government Order correctly, requested recall of the  

Respondent No.4, a protected HSA (Social Science),  

but such request was turned down. Thereupon, the  

writ  petitioner/Respondent  No.1  submitted  a  

representation  that  she  be  promoted  to  the  said  

post under Rule 43 of Chapter XIV-A of the Kerala  

Education Rules.  Although, according to the writ  

petitioner/Respondent  No.1,  no  sanction  was  

required  for the said purpose and the Manager was  

free  to  promote  her,  the  Respondent  No.4,  Smt.  

Valsamma Pathrose, was recalled and she  rejoined  

her  duties.  In  the  writ  petition  the  Respondent  

No.1, therefore, prayed for a writ in the nature of  

Mandamus or direction commanding the respondents,  

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the  Deputy  Director  (Education),  Civil  Station,  

Kakkanad,  the  District  Educational  Officer,  

Ernakulam, Kerala, and the Manager of the School to  

promote her to the post of HSA (English), as on the  

date of the occurrence of the vacancy on 1st April,  

2005, she was the only qualified candidate amongst  

the UPSA Cadre, who could be given such promotion.  

A further prayer was made for a writ in the nature  

of Mandamus to command the aforesaid respondents  

not to post Valsamma Pathrose in the vacancy which  

had  arisen  in  the  post  of  HSA  (English),  with  

effect from 1st April, 2005.

5. The writ petition filed by the Respondent No.1  

was rejected by the learned Single Judge on 27th  

July,  2005,  upon  holding  that  since  Smt.  Alice  

Mathew was promoted as Head Mistress on 31st March,  

2005 while she was holding the post of HSA (Social  

Science),  the  vacancy  created  on  account  of  her  

promotion was also to be treated as that of HSA  

(Social Science), notwithstanding the fact that she  

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had  been  functioning  as  HSA  (English).  

Accordingly,  Valsamma  Pathrose,  a  protected  HSA  

(Social Science) teacher working in a Government  

School would have to be recalled, as otherwise, the  

Manager would have to appoint a new teacher in the  

resultant vacancy of UPSA, if the Respondent No.1  

was promoted as HSA (English).

6. Aggrieved by the order of the learned Single  

Judge,  the  Respondent  No.1  filed  a  writ  appeal,  

being  WA  No.1925/2005.  At  this  stage  it  may  be  

pointed out that on 15th June, 2005, the Petitioner  

herein got herself impleaded as Respondent No.5 in  

the  writ  petition  filed  by  the  Respondent  No.1  

herein claiming that the actual date of vacancy,  

was 15.7.2005, the date on which the staff fixation  

order was to take effect, and that she was fully  

qualified and was the senior-most in the cadre of  

HSA (English) for promotion as HSA (English) in the  

vacancy  caused  by  the  promotion  of  Smt.  Alice  

Mathew to the post of Head Mistress.  According to  

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her,  although,  she  may  not  have  possessed  the  

requisite B.Ed. degree on 1st April, 2005, when Smt.  

Alice  Mathew  was  promoted  to  the  post  of  Head  

Mistress,  subsequently  she  acquired  the  said  

qualification  when  the  results  of  the  B.Ed.  

examination for the year 2005 was published by the  

Kerala University on 29th June, 2005.   

7. The Writ Appeal filed by the Respondent No.1  

was allowed on 20th June, 2006, upon holding that  

when the vacancy occurred on 1st April, 2005, the  

Petitioner  herein  did  not  possess  the  B.Ed.  

qualification, though she may have been senior to  

the writ petitioner/Respondent No.1 and that it was  

incorrect on the part of the Petitioner to suggest  

that the vacancy had arisen from the date of the  

staff  fixation  order.   The  Division  Bench,  

accordingly, dismissed the claim of the Petitioner  

herein  and  held  that  the  vacancy  was  of  HSA  

(English). Furthermore, in view of the Government  

Order dated 7th January, 2002, the Manager was not  

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required  to  fill  up  the  post  of  HSA  with  a  

protected teacher. However, the Division Bench also  

held  that  since  Valsamma  Pathrose  had  rejoined  

service,  it  would  not  be  proper  to  upset  the  

arrangement.  Accordingly,  the  Division  Bench  

indicated as follows :

“………Therefore,  we  hold  that  the  Petitioner/Appellant was not liable to be  overlooked  for  promotion  being  the  only  qualified hand.  We are not unsettling the  present arrangements, since because of the  subsequent development that a vacancy of  HSA  has  arisen  during  the  current  year.  The  appellant  should  be  accommodated  thereto, for the reason that she had been  denied her rightful claims during the last  school year, and she is entitled to the  benefits of the declaration, we have made  above.

The Writ Appeal is disposed of as above.”                   

8. The  review  petition  filed  for  reviewing  the  

judgment was also dismissed on 2nd August, 2006.

9. It  is  against  the  said  two  orders  that  the  

present Special Leave Petition has been filed by  

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Smitha Johny, who was impleaded as Respondent No.5  

in the writ proceedings.

10. The case sought to be made out on behalf of the  

Petitioner is that the vacancy which had arisen on  

account of the promotion given to Smt. Alice Mathew  

on 1st April, 2005, should have been for an HSA  

(Social Science) and not for an HSA (English), as  

held by the High Court, since Smt. Alice Mathew was  

an HSA (Social Science) during the academic year  

2004-05, when the vacancy had occurred.  Learned  

counsel appearing in support of the Special Leave  

Petition submitted that the Division Bench of the  

High Court had erred in holding otherwise.  In this  

regard, reference was made to Rule 12 of the Kerala  

Education Rules which deals with the strength of  

teaching staff. Learned counsel pointed out that  

the  actual  attendance  on  the  date  of  visit  of  

authorized persons, plus five per cent of the roll  

strength, not exceeding the roll strength of each  

class alone, is to be reckoned as the effective  

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strength of the School for fixing the number of  

divisions and the strength of staff.  Furthermore,  

the  staff  sanctioned  by  the  Competent  Authority  

during the previous year would continue till the  

14th of July of the succeeding year. Learned counsel  

submitted that since the vacancy had occurred on 1st  

April, 2005, during the continuance of the staff  

sanctioned by the Competent Authority, the vacancy  

caused by the promotion of Smt. Alice Mathew as  

Head Mistress should have been for an HSA (Social  

Science  Teacher)  since  Smt.  Alice  Mathew  was  

holding the said post at the time of her elevation.  

Learned counsel submitted that the Petitioner had  

been wrongly denied her right to be promoted as HSA  

(Social Science) being the senior-most High School  

Assistant in the School.  

11. Learned  counsel  appearing  for  the  respondent  

urged that the relief prayed for by the Petitioner  

was misconceived since on the date of the vacancy,  

the  Petitioner  did  not  even  possess  the  B.Ed.  

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qualification. The submission made on her behalf  

that  the  vacancy  would  be  deemed  to  have  been  

created not from the date of the vacancy, but from  

the date of the staff fixation order, is entirely  

misconceived,  as  has  been  held  by  the  Division  

Bench of the High Court, while disposing of the  

appeal preferred by the Respondent No.1 herein.   

12. Having  considered  the  submissions  made  on  

behalf  of  the  respective  parties,  we  are  not  

inclined to interfere with the impugned judgment of  

the High Court since, in our view, the High Court  

has correctly analysed the position consequent upon  

the elevation of Smt. Alice Mathew as Headmistress  

of the School.  The Division Bench of the High  

Court has dealt with the provisions of Rule 7A(2)  

of  Chapter  XIV-A  of  the  Kerala  Education  Rules,  

which provides that the posts which fell vacant on  

a closing date are to be filled up only by the  

reopening date.  The High Court has rightly held  

that the staff fixation order for the ensuing year  

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did not result in reduction of posts available and  

that it could not be disputed that the vacancy came  

to exist because of the promotion of Smt. Alice  

Mathew.   Moreover,  since  the  Petitioner  did  not  

have the B.Ed. qualification as was required as an  

essential  requisite  on  1st April,  2005,  we  agree  

with the High Court that she was not eligible for  

being considered for filling up the vacancy.  

13.  Rule  43  of  Chapter  XIV-A  of  the  Kerala  

Education Rules as it stood at the relevant time  

and  was  relied  upon  by  the  Writ  

Petitioner/Respondent No.1, is extracted below :

“43. Subject  to  Rules  44  and  45  and  considerations  of  efficiency  and  any  general order that may be issued by  the  Government,  vacancies  in  any  higher grade of pay shall be filled up  by promotion of qualified hands in the  lower grade according to seniority, if  such hands are available:

Provided  that  in  the  case  of  promotions to the post of High School  Assistant  (subject),  the  minimum  subject  requirements  alone  need  be  satisfied,  to  safeguard  the  interest  

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of trained graduates who are awaiting  promotions as High School Assistants.

Note.- (1) A teacher in a lower grade of  pay in one category of post is eligible  for promotion to a higher grade of pay in  another category of post provided:

(i) he  has  the  prescribed  qualifications; and

(ii)there  is  no  teacher  with  the  prescribed  qualifications  in  the  lower grade of pay of the category  of post to which promotions are to  be made.

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

It is not in dispute that as per Rule 43 of Chapter  

XIV-A of the Kerala Education Rules, a U.P.S.A. 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). It is not disputed that as on  

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1st April, 2005, the Petitioner, Smt. Smitha Johny,  

did not possess the prescribed qualifications for  

the post of HSA (English), whereas the Respondent  

No.1  Smt.  Josny  Varghese  did  possess  the  

qualifications.   It is clear from the pleadings in  

the case that as on 1st April, 2005, Smt. Josny  

Varghese  was  the  only  U.P.S.A.  working  in  the  

School  who  was  qualified  for  promotion  as  HSA  

(English).  Even according to the Petitioner, she  

acquired the qualification of B.Ed. in English only  

on  1st July,  2005.   Hence,  if  a  vacancy  of  HSA  

(English) arose in the School on 1st April, 2005,  

the Respondent No.1 Josny Varghese, being the only  

U.P.S.A. 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.  

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14. Hence,  the  next  question  is  whether  a  

vacancy of HSA (English) arose in the School on 1st  

April, 2005, as contended by the Respondent No.1.  

According to the staff fixation for the academic  

year  2004-05,  there  was  only  one  post  of  HSA  

(Social  Science)  in  the  St.  George  High  School,  

Arakkunnam.  As against one sanctioned post, there  

were two teachers, Smt. Alice Mathew and Smt. P.P.  

Leelamma, working as HSA (Social Science). Since  

Smt. Alice Mathew was senior to Smt. P.P. Leelamma,  

Smt. Alice Mathew was rightly accommodated in the  

only post of HSA (Social Science). Since there was  

a sanctioned post of HSA (English) and since, as  

per Annexure P1 G.O.(MS) No.11/2002/G.Edu. dated 7th  

January, 2002, the creation of the new cadre of HSA  

(English) should not cause retrenchment of existing  

HSAs in the core subjects, the management and the  

education authorities allowed Smt. P.P. Leelamma to  

continue in the School against the sanctioned post  

of HSA (English), though she was not qualified for  

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the post of HSA (English). Later, in the vacancy of  

Headmistress which arose on 1st April, 2005, Smt.  

Alice  Mathew,  HSA  (Social  Science)  was  promoted  

w.e.f.  1st April,  2005.  Consequent  on  the  said  

promotion of Smt. Alice Mathew as Headmistress, the  

post  of  HSA  (Social  Science)  held  by  her  was  

vacated by her w.e.f. 1st April, 2005. But a vacancy  

of HSA (Social Science) did not actually arise, as  

Smt.  P.P.  Leelamma  was  already  available  in  the  

School to occupy the post of HSA (Social  Science)  

vacated  by  Smt.  Alice  Mathew.   If  Smt.  P.P.  

Leelamma was accommodated in the only post of HSA  

(Social Science) w.e.f. 1st April, 2005, the only  

vacancy available as on 1st April, 2005 was in the  

post  of  HSA  (English).  Thus,  a  vacancy  of  HSA  

(English) arose in the School on 1st April, 2005.  

Smt. Valsamma Pathrose, who was not qualified for  

the post of HSA (English) and who was working as  

HSA (Social Science) in a Government School as a  

protected teacher, could not be accommodated in the  

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post of HSA (English).  During the academic year  

2004-05, Smt. P.P. Leelamma, HSA (Social Science)  

had been allowed to continue in the School against  

the post of HSA (English) in terms of Annexure P1  

Government Order dated 7th January, 2002  to avoid  

her  retrenchment.   Such  a  benefit  could  not  be  

claimed by Smt. Valsamma Pathrose who was working  

in  another  School  and  who  did  not  face  any  

retrenchment  on  account  of  the  creation  of  the  

cadre  of  HSA  (English).  Thus,  the  post  of  HSA  

(English) fell vacant on 1st April, 2005, when Smt.  

Alice Mathew, HSA (Social Science) was promoted as  

Headmistress w.e.f. 1st April, 2005 and Smt. P.P.  

Leelamma was accommodated in the resultant vacancy  

of HSA (Social Science).  When the vacancy of HSA  

(English) arose on 1st April, 2005, the Respondent  

No.1, Smt. Josny Varghese, was the only U.P.S.A.  

qualified for the post of HSA (English) and hence  

she was entitled to be promoted against the said  

vacancy.  Though the Petitioner Smt. Smitha Johny  

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was senior to the respondent, she was not qualified  

for the post of HSA (English) as on 1st April, 2005  

and hence, she had no claim for promotion to the  

said vacancy.

15. There is no legal basis for the contention  

of the Petitioner that the vacancy of HSA (English)  

would have arisen only on 15th July, 2005, when the  

staff fixation for the academic year 2005-06 was  

made.  Admittedly,  a  post  of  HSA  (English)  was  

sanctioned for the School in the staff fixation for  

the year 2004-05. No appointment was made against  

the said post of HSA (English) as one excess HSA  

(Social  Science)  was  allowed  to  continue  in  the  

School  against  the  said  post,  to  avoid  her  

retrenchment.  As per Rule 12 of Chapter XXIII of  

the Kerala Education Rules, the staff sanctioned by  

the competent authority during the previous year  

shall  continue  till  the  14th of  July  of  the  

succeeding  year.  Therefore,  the  post  of  HSA  

(English)sanctioned in the staff  fixation for  the  

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year  2004-05 continued till 14th of July, 2005.  

When  the  excess  HSA  (Social  Science)  Smt.  P.P.  

Leelamma, who was continuing against the post of  

HSA (English), was accommodated in the vacancy of  

HSA (Social Science) which arose on 1st April, 2005,  

due  to  the  promotion  of  Smt.  Alice  Mathew,  HSA  

(Social Science) as Headmistress, the post of HSA  

(English) would fall vacant w.e.f. 1st April, 2005  

and the Respondent No.1, being the only U.P.S.A.  

qualified  for  the  post  of  HSA  (English),  was  

entitled to be promoted in the said vacancy.

16. The directions ultimately given by the Division  

Bench have not been questioned by the Respondent  

No.1 herein possibly because of the fact that while  

expressing  unwillingness  to  unsettle  the  settled  

position, the High Court was also of the view that  

since the Respondent No.1 was the only qualified  

hand,  she  was  entitled  to  be  considered  for  

promotion, particularly since a vacancy of HSA had  

occurred  during  the  said  period.   The  Division  

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Bench  gave  a  direction  that  the  Respondent  No.1  

should be accommodated therein.    

17. In our view, the decision of the Division Bench  

of  the  High  Court  does  not  call  for  any  

interference  and  the  Special  Leave  Petition  is,  

therefore, dismissed.   

18. There will, however, be no order as to costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated:22.10.2010

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