AJITHA Vs. STATE OF KERALA

JUDGEMENT

(1.) The writ petitioner is the appellant. The respondents herein were the respondents in the Writ Petition. The question that arises for decision in this case is whether for promotion to the post of High School Assistant an Upper Primary School Assistant can claim preference over a Specialist Teacher and get promoted, even if the Upper Primary School Assistant is junior to the Specialist Teacher.

(2.) The brief facts of the case are the following: The appellant was working as a Physical Education Teacher in the Upper Primary Wing of Azhikode High School, Azhikode, Kannur district. She was having B.A. and B.Ed. qualifications and therefore, she was qualified to be promoted as High School Assistant (for short "H.S.A") (Social Studies). When a vacancy arose in the post of H.S.A (Social Studies) in the School, she was promoted under Rule 43 of Chapter XIV A of the Kerala Education Rules (for short "the K.E.R"). The said appointment was approved by the District Educational Officer (for short "D.E.O"). Ext.P1 is the appointment order, appointing the appellant in the 6th respondent's School as H.S.A. (Social Studies) and it also contains the endorsement of the D.E.O., Kannur, approving the said appointment. The 5th respondent was an Upper Primary School Assistant (for short "U.P.S.A."), who was appointed to that post on 2.6.1992. She was also qualified to be promoted as H.S.A. (Social Studies). Claiming that she has got a superior claim for promotion and also challenging the promotion of the appellant, the 5th respondent filed a representation dated 18.6.1999 before the D.E.O., Kannur. That representation was rejected by the D.E.O. by Ext.P2 order dated 25.11.1999. Against that order the 5th respondent filed an appeal before the Deputy Director of Education, Kannur on 3.12.1999. The said appeal was dismissed by Ext.P3 order dated 18.2.2000. Challenging Ext.P3 order, the 5th respondent filed O.P. No. 15879/2000 before this Court. The said O.P was disposed of by this Court by judgment dated 19.1.2006, directing the petitioner therein (5th respondent) to pursue the statutory remedy available to her. Pursuant to the said judgment, the 5th respondent filed a revision petition dated 2.4.2007 before the 2nd respondent Director of Public Instruction (for short "D.P.I."). The D.P.I. relying on Note (1) to Rule 43 of Chapter XIV A of the K.E.R, held that qualified Specialist Teachers are eligible for promotion as H.S.A., only in the absence of qualified Upper Primary School Assistants and Lower Primary School Assistants (for short "L.P.S.A."). U.P.S.A was held to be the lower grade post of H.S.A. Based on that finding, the D.P.I directed the Manager of the School to appoint the 5th respondent as H.S.A. (Social Studies) from 1.6.1999 notionally with eligibility to receive salary from 2.6.2004. It was also ordered that the salary already paid to the appellant need not be recovered. A copy of the said order dated 18.10.2007 is Ext.P4. The appellant challenged Ext.P4 before the Government by filing a revision on 20.11.2007. This Court by the judgment in W.P.(C) No. 35417/2007 dated 30.11.2007, directed the Government to dispose of the revision within three months. The Government, after hearing both sides, dismissed the revision by Ext.P5 order dated 21.5.2008. The Government also, relied on Note (1) to Rule 43 of Chapter XIV A of the K.E.R., to support its decision. The appellant filed the Writ Petition, challenging Exts.P4 and P5 orders of the D.P.I and the Government respectively. The learned Single Judge, who heard the Writ Petition, dismissed the same and affirmed the impugned orders. Hence this appeal.

(3.) We heard the learned Counsel on both sides. The learned Counsel for the appellant submitted that the post of U.P.S.A cannot be treated as a lower grade post of H.S.A., and therefore, Note (1) to Rule 43 of Chapter XIV A has no application in this case. So, it is submitted that the 5th respondent is not entitled to get preference in the matter of promotion as H.S.A. The learned Counsel for the respondents, on the other hand, supported the view taken by the D.P.I and the Government.