PRASANNA KUMARI Vs. SHOBANA KUMARI

JUDGEMENT

(1.) In this appeal under S.5 of the Kerala High Court Act, 1959 (in short 'the Act') challenge is to correctness of judgment passed by a learned single Judge in O. P. No. 5107 of 1999. Dispute relates to applicability of R.28 (bbb) of the Kerala State and Subordinate Services Rules, 1958 (in short 'the K.S.S.R.') in the absence of any corresponding provision in Kerala Education Rules, 1959 (in short 'the KER').

(2.) Factual position shorn of unnecessary details is as follows: - Sobhana Kumari, respondent No. 1 in the Writ Appeal, was appointed in a temporary vacancy in Durga Higher Secondary School, Kanhangad for the period from 17/09/1993 to 18/11/1993. Said school is a private aided institution. She was again appointed for another two months in a temporary vacancy of Lower Grade Hindi Pandit (U.P.S.A. Hindi). Her appointments were approved temporarily. She was appointed as lower grade Hindi teacher with effect from 6-6-1997 and probationary appointment was approved with effect from the date of appointment. She had earlier temporary experience in Government schools as Hindi teacher. For the post of H.S.A (Hindi) vacancy arose in the institution where she was working on 6/6/1997 because the H.S.A. (Hindi) in that school retired on 31-3-1997. As mid summer vacation had commenced, appointment could only be made on the 6th day of reopening. Therefore, the vacancy of H.S.A arose on 6/6/1997. On that day she had the required qualification for being appointed as H.S.A. But Manager appointed M. Prasanna Kumari, appellant in the Writ Appeal, to that post on 16/ 06/1997 and later to another vacancy. The District Educational Officer (in short the D.E.O) rejected the appointment of Prasanna Kumari and Sobhana Kumari was directed to be appointed with effect from 6-6-1997. The reasoning was that Prasanna Kumari was not qualified on 6-6-1997, i.e. date of occurrence of the vacancy, whereas Sobhana Kurmari was qualified. The order of D.E.O was implemented. This decision was accepted by the Deputy Director of Public Instructions as well as the Director of Public Instructions. But on a revision filed by Prasanna Kumari, the order was set aside by the Government on the ground that Prasanna Kumari was more experienced, as she was working in the same school from 1988 onwards as U.P.S.A (Kannada). Further she wrote qualifying examination for becoming H.S.A (Hindi) on 30/04/1997 and result was declared on 12/06/1997. Government found that though Sobhana Kumari was qualified, she had only 10 days' service on the date of promotion, whereas Prasanna Kumari had over 9 years of service. Therefore, Sobhana Kumari was not qualified on the date of occurrence of vacancy. It was observed that in the circumstances of the case, the relevant rule need not be strictly followed. In that context it was observed as follows:

(3.) Original Petition was filed by Sobhana Kumari on two grounds; firstly the date of occurrence of vacancy was 06/0671997 and secondly, she alone was qualified for appointment on that date. Prasanna Kumari took the stand that even though result was announced on 12/06/1997, since she wrote the last paper of the examination 30/04/1997, she was qualified as on 3.4.1997. For this purpose reliance was placed on R.28(bbb) (in short 'the K.S.S.R'). Alternatively it was submitted that R.44B of KER was applicable.