Kerala High Court
Svetlana D.Bhai vs State Of Kerala on 16 August, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937
WP(C).No. 29540 of 2014 (N)
PETITIONER:
SVETLANA D.BHAI, AGED 37 YEARS
H.S.S.T. (HISTORY)
SEETHI SAHIB MEMORIAL HIGHER SECONDARY SCHOOL
THEYYALINGAL, THEYYALINGAL P.O., MALAPPURAM - 676 320.
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENTS:
1. STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVENMENT
DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT
THIRUVANANTHAPURAM - 695 001.
2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION
DIRECTORATE OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDING, SANTHI NAGAR
THIRUVANANTHAPURAM - 695 001.
3. THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION DEPARTMENT
THIRUVANANTHAPURAM - 695 001.
4. THE MANAGER
SEETHI SAHIB MEMORIAL HIGHER SECONDARY SCHOOL
THEYYALLINGAL, THEYYALINGAL P.O., TIRUR TALUK
MALAPPURAM - 676 320.
5. BINI KRISHNAN
H.S.A (S.S)
SEETHI SAHIB MEMORIAL HIGHER SECONDARY SCHOOL
THEYYALINGAL, THEYYALINGAL P.O., TIRUR TALUK
MALAPPURAM - 676 320.
BY ADVS. SRI.V.A.MUHAMMED
SRI.M.SAJJAD
SRI.K.K.MOHAMED RAVUF
BY GOVERNMENT PLEADER SMT. M.J. RAJASREE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-01-2016,
ALONG WITH WPC. 31090/2014 AND WPC. 15184/2015, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).No. 29540 of 2014 (N)
APPENDIX
PETITIONER'S EXHIBITS :-
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EXT.P1 - COPY OF THE COPY OF THE APPOINTMENT ORDER
DATED 16.08.2010.
EXT.P2 - COPY OF THE JUDGMENT DATED 18.06.2014 IN WPC
NO. 30729/2011.
EXT.P3 - COPIES OF THE RELEVANT PAGES OF THE ATTENDANCE
REGISTER.
EXT.P4 - COPY OF THE B.ED DEGREE PERTAINING TO THE 5TH
RESPONDENT.
EXT.P5 - COPY OF THE DEGREE CERTIFICATES (B.S HISTORY & B.ED
SOCIAL SCIENCE) OF THE PETITIONER.
EXT.P6 - COPY OF THE LETTER DATED 01.06.2012.
EXT.P7 - COPY OF THE ORDER DATED 15.10.2014.
RESPONDENTS' EXHIBITS:- NIL
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//TRUE COPY//
P.A. TO JUDGE
sp
K. VINOD CHANDRAN, J.
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W.P(C). Nos.29540 of 2014-N,
31090 of 2014-I & 15184 of 2015-W
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Dated this the 13th day of January, 2016
JUDGMENT
The petitioners in W.P(C). Nos.29540 of 2014 and 15184 of 2015 are rival claimants to the post of HSST (Junior) (History) in the Seethi Sahib Memorial Higher Secondary School, Theyyalingal, an aided School; the Manger of which filed WP(C) No.31090 of 2014. The Manager appointed one Svetlana D Bhai as HSST (Junior) (History) in the respondent School by direct appointment. An HSA (Social Studies) in the very same School Bini Krishnan had a claim for by-transfer appointment to the vacancy, which arose on 01.06.2010.
W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W 2
2. The admitted facts are that, the vacancy arose on one of the HSSTs being promoted as Principal and the HSST (Junior) (History) being upgraded as HSST, consequent to which, there was a vacancy in the post of HSST (Junior). It is also an admitted fact that going by the ratio of 1:4, the HSA had a claim to be posted as HSST (Junior) by virtue of her seniority in the High School.
3. The contention raised by the direct recruit and the Manager is that the HSA (Social Studies) did not satisfy the eligibility requirement for appointment as an HSST (Junior). The disability is raised on two aspects; one on the question of whether the HSA (Social Studies) had completed the B.Ed. course as a regular course and the second contention is that the HSA (Social Studies) was a leave substitute in the High School and she would be disentitled from seeking promotion as per the decision of this Court in Indu W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W 3 T.K. v. Sharafudeen M. and others [2011 (2) KLT 368]. Hence, this Court has looked into only two contentions raised by the rival claimants and the Manager.
4. The learned counsel for the Manager asserts that the HSA (Social Studies) has the duty to convince the Manager that she had undergone regular course of study to obtain the B.Ed. Degree. Specifically, the distinction with respect to the requirement for appointment to the post of HSA and the requirement to the post of HSA is pointed out to show that the latter requires the qualification to be obtained after a regular course of study.
5. At the outset, it is to be noticed that, though the HSA (Social Studies) was admitted to be the senior most, entitled to appointment HSST [Junior], she was never asked to produce any evidence, as to whether she had undergone a regular post of study or not. The B.Ed.
W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W 4 Certificate of the HSA (Social Studies) is produced at Ext.P4 in WP(C) No.29540 of 2014, wherein, she is said to have acquired a Bachelor of Education Degree from the University of Mysore, having attended the examination held in the year 2007.
6. The HSA (Social Studies) in WP(C) No.15184 of 2015 has produced Ext.P20 Transfer Certificate issued by one Onkarmal Somani College of Education, wherein she is said to have studied between 04.11.1999 and 30.09.2000 in subjects of History and Geography. It is pertinent that the Certificate issued by the University of Mysore does not indicate whether the course was under
the Distance Education Scheme, which is usually indicated if that is the case. The Transfer Certificate produced by the HSA (Social Studies) in her writ petition further indicate that she had undergone a regular course of study in a College affiliated to the University. In such circumstance, the HSA (Social W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W 5 Studies) cannot be said to have been disentitled for reason of her not possessing the essential qualification.
7. The next contention raised, based on the aforecited judgment, is that the petitioner was continuing as a 'leave substitute'. It is to be specifically noticed that the HSST therein, who had sought for affirmation of her appointment by by-transfer method, had been an incumbent in the leave vacancy in the High School Section, which was only a temporary appointment, continued for the period of the leave. As far as the HSA (Social Studies) herein is concerned, the staff fixation order is produced as Ext.P1 in WP(C) No.31090 of 2014. The HSA is also seen to be a regular incumbent in the rolls of the School, having been so appointed on 15.07.2002 as an HSA (Social Studies).
The appointment has also been regularly approved as is indicated from the endorsement in Ext.P19 in WP(C) No.15184 of 2015.
W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W 6
8. The contention raised is that, in the subject academic year, when the vacancy arose, the HSA (Social Studies) was a substitute in the leave vacancy. A reading of Ext.P1 staff fixation order produced in WP(C) No.31090 of 2014 would indicate that there was a division fall and the HSA (Social Studies) would have been thrown out, but for the fact that a senior HSA (Social Studies) had proceeded on leave. In such circumstance, the regular hand was accommodated in the vacancy arising on leave, that cannot be said to be the appointment in a leave vacancy, but however retention of a regular hand in the rolls of the School, for reason of a senior having proceeded on leave. In such circumstance, the decision in Indu T.K. has no application.
For all the above reasons, the order of the Deputy Director of Education bearing No.H/8793/2014/RDD/ MLPM/HSE dated 15.10.2014 produced as Ext.P7 in W.P(C). Nos.29540 of 2014-N, 31090 of 2014-I & 15184 of 2015-W 7 WP(C) No.29540 of 2014 and as Ext.P5 in WP(C) No.31090 of 2014 is upheld. The said writ petitions are dismissed.
WP(C) No.15184 of 2015 is allowed and the petitioner therein is directed to be given the appointment as HSST (Junior) (History) with effect from 01.06.2010. Parties are left to suffer their respective costs. The petitioner in WP(C) No.15184 of 2015 would be left her remedy to claim the salary from the Manager.
Sd/-
K. VINOD CHANDRAN, JUDGE.
//True Copy// P.A. to Judge.
sp/13/01/16