SMITHA JOHNYversusJOSNY VARGHESE & ORS.

                    [2010) 14 (ADDL.) S.C.R. 68


A                          SMITHA JOHNY
                                  v.
                    JOSNY VARGHESE & ORS.
                  (SLP (CIVIL) No. 20822 of 2006)
                        OCTOBER 22, 2010
B
         [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.)

          Service Law - Promotion - Claim for - Prescribed
    qualification - Kera/a Education Rules - Chapter XIV-A, r.43
C   and r. 7A(2) and Chapter XX/II, r. 12 - High School - Vacancy
    of High School Assistant (English) [HSA(English)] -
    Respondent no. 1, serving as Upper Primary School Assistant
    (UPSA), sought promotion as HSA (English) - Eligibility and
    entitlement of respondent no. 1 and of the petitioner for being
o   considered for filling up the vacancy - Held: On facts, when
    the vacancy of HSA (English) arose, respondent No. 1 was the
    only UPSA qualified for the post of HSA (English) and,
    therefore, she was entitled to be promoted against the said
    vacancy - Though the petitioner was senior to respondent
E   no.1, she was not qualified for the post of HSA (English) on
    the date of occurrence of the vacancy and, therefore, she had
    no claim for promotion to the said vacancy - Relief prayed
    for by the petitioner was misconceived since on the date of
    the vacancy, the petitioner did not even possess the
F   prescribed qualification - 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, also misconceived - Direction given by the High
    Court that since respondent No. 1 was the only qualified hand,
G   she was entitled to be considered for promotion, and, that she
    should be accommodated therein, does not call for any
    interference.

        Respondent no.1, serving in a High School as Upper

H                                 68
   SMITHA JOHNY v. JOSNY VARGHESE & ORS.              69


Primary School Assistant (UPSA), filed a writ petition A
before the High Court claiming promotion as High School
Assistant (English) [HSA (English)], in a vacancy which,
according to her, had arisen on 1st April, 2005.
Respondent No.1 claimed that she was fully qualified to
be promoted to the post of HSA (English) in terms of the B
Government Orj:ler. She contended that one post of HSA
(English) had been sanctioned in terms of the staff
fixation order for the year 2004-05, however, one 'A', a
HSA (Social Science), who was not qualified as HSA
(English), had been permitted to continue in the post of c
HSA (English) to avoid retrenching her and in the
meantime, when the then Head Mistress of the School
took voluntary retirement with effect from 31st March,
2004, 'A', being the senior-most HSA, was
accommodated against that vacancy. Respondent no.1 0
contended that consequently, with effect from 1st April,
2005, a vacancy arose in the post of HSA (English) and
such vacancy was required to be filled up by a qualified
English Teacher.
                                                  • J ' ...
     Respondent No.1, therefore, prayed for a writ in the E
nature of Mandamus or direction commanding the
respondents, the Deputy Director (Education), the District
Educational Officer, 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 F
was the only qualified candidate amongst the UPSA
Cadre, who could be given such promotion. Since in the
meanwhile, the Manager of the School had recalled
respondent No.4, a protected HSA (Social Science) and
she had rejoined her duties, a further prayer was made G
for a writ in the nature of Mandamus to command the
aforesaid respondents not to post respondent no.4 in the
vacancy which had arisen in the post of HSA (English),
with effect from 1st April, 2005.
                                                              H
    70    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A      The writ petition filed by respondent No.1 was
  rejected by the Single Judge. Aggrieved, respondent No.1
  filed a writ appeal. At this stage, the petitioner got herself
  impleaded as a respondent in the matter claiming that the
  actual date of vacancy, was 15.7.2005, the date on which
B 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). According
  to her, although, she may not have possessed the
  requisite B.Ed. degree on 1st April, 2005, when 'A' was
c 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.

         The Writ Appeal was allowed by the Division Bench
  D on the ground that when the vacancy occurred on 1st
    April, 2005, the petitioner did not possess the B.Ed.
    qualification, though she may have been senior to
    respondent No.1 and that it was incorrect on the part of
    the petitioner to suggest that the vacancy had arisen from
 E the date of the staff fixation order. The Division Bench
    held that the vacancy was of HSA (English) and
    furthermore, in view of the Government Order dated 7th
    January, 2002, the Manager was not required to fill up the
    post of HSA with a protected teacher. However, the
  F Division Bench also held that since respondent no.4 had
    rejoined service, it would not be proper to upset the
    arrangement, and, accordingly held that since
    respondent No.1 was the only qualified hand, she was
    entitled to be considered for promotion, and accordingly
· G gave a direction that Respondent No.1 should be
    accommodated therein.
         Dismissing the Special Leave Petition, the Court

     HELD: 1. There is no reason to interfere with the
H impugned judgment of the High Court since it has
   SMITHA JOHNY v. JOSNY VARGHESE & ORS.              71


correctly analysed the position consequent upon the A
elevation of 'A'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 B
reopening date. The High Court has rightly held that the
staff fixation order for the ensuing year 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 'A'. Moreover, since the petitioner did not c
have the B.Ed. qualification as was required as an
essential requisite on 1st April, 2005, she was not eligible
for being considered for filling up the vacancy. [Para 12)
[79-E-H; 80-A]

     2. As per Rule 43 of Chapter XIV-A of the Kerala D
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 E
qualifications at the time of occurrence of vacancy. It is
not disputed that as on 1st April, 2005, the petitioner did
not possess the prescribed qualifications for the post of
HSA (English), whereas respondent No.1 did possess the
qualifications. It is clear from the pleadings in the case F
that as on 1st April, 2005, respondent no.1 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 G
(English) arose in the School on 1st April, 2005,
respondent No.1, 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
who, though senior to respondent no.1, was not qualified H
    72   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A for the post of HSA (English) on the date of occurrence
  of the vacancy. [Para 13] [80-A-H; 81-A-D]

         3. As regards the contention raised by respondent
    no.1 that a vacancy of HSA (English) arose in the School
    on 1st April, 2005, it is clear that according to the staff
8
    fixation for the academic year 2004-05, there was only one
    post of HSA (Social Science) in the High School. As
    against one sanctioned post, there were two teachers, 'A'
    and one 'P', working as HSA (Social Science). Since 'A'
    was senior to 'P', 'A' was rightly accommodated in the
C   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
D   HSAs in the core subjects, the management and the
    education authorities allowed 'P' to continue in the
    School against the sanctioned post of HSA (English),
    though she was not qualified for the post of HSA
    (English). Later, in the vacancy of Headmistress which
E   arose on 1st April, 2005, 'A', HSA (Social Science) was
    promoted w.e.f. 1st April, 2005. Consequent on the said
    promotion of 'A' 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
F   actually arise, as 'P' was already available in the School
    to occupy the post of HSA (Social Science) vacated by
    'A'. If 'P' 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
G   (English). Thus, a vacancy of HSA (English) arose in the
    School on 1st April, 2005. Respondent no.4, 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
H
   SMITHA JOHNY v. JOSNY VARGHESE & ORS.               73


accommodated in the post of HSA (English). During the        A
academic year 2004-05, 'P', 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 respondent no.4       B
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 'A', HSA (Social Science)
was promoted as Headmistress w.e.f. 1st April, 2005 and      c
'P' was accommodated in the resultant vacancy of HSA
(Social Science). When the vacancy of HSA (English)
arose on 1st April, 2005, respondent No.1 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.    0
Though the petitioner 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. [Para 14] [81-E-H; 82-A-G]

     4. There is no legal basis for the contention of the E
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 F
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 XXlll of the
Kerala Education Rules, the staff sanctioned by the G
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 year 2004-05 continued till 14th of
July, 2005. When the excess HSA (Social Science) 'P', H
    74    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A 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 'A', HSA {Social Science) as Headmistress,
  the post of HSA {English) fell vacant w.e.f. 1st April, 2005
B and 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. [Para 15] [82-H; 83-A-D]

        5. The directions ultimately given by the Division
  Bench have not been questioned by respondent No.1
C possibly because of the fact that while expressing
  unwillingness to unsettle the settled position, the High
  Court was also of the view that since respondent No.1
  was the only qualified hand, she was entitled to be
  considered for promotion, particularly since a vacancy of
D HSA had occurred during the said period. The Division
  Bench gave a dire.ction that respondent No.1 should be
  accommodated therein. The decision of the Division
  Bench of the High Court does not call for any
  interference. [Paras 16 and 17] [83-E-G]
E
       CIVIL APPELLATE JURISDICTION : Special Leave
  Petition {c) No. 20822 of 2006.

        From the Judgment & Order dated 20.6.2006 of the High
    Court of Kerala at Ernakulam in W.A. No. 1925 of 2005 and
F   Order dated 2.8.2006 in R.P. No. 568 of 2006.

          Malin Poduval, Babita Sant, C.K. Rai, M. Anindita Popli
    for the Petitioner.

G       Abraham Vakkanel, Romy Chacko, Ankit Dalela for the
    Respondents.
                                                       1
       The Judgment of the Court was delivered by
      ALTAMAS KABIR, J. 1. The Respondent No.1 herein
H sought a direction from the educational authorities to promote
   SMITHA JOHNY v. JOSNY VARGHESE & ORS.                      · 75
             [ALTAMAS KABIR, J.]
her as High School Assistant (English), hereinafter referred to      A
as "HSA (English)", in a vacancy which, according fo 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,            B
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,             C
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",         D
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 and, had also obtained
Teachers' Training Certificate (TTC). Subsequently, the
Petitioner also acquired a B.Ed. degree in English from the          E
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
                                                                     F
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          G
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.                ·
                                                                     H
    76    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A       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
B 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,
c 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
0 nature   of Mandamus or direction commanding the respondents,
  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
E 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.
F
       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
G 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 had been functioning
  as HSA (English). Accordingly, Valsamma Pathrose, a
  protected HSA (Social Science) teacher working in a
H Government School would have to be recalled, as otherwise,
    SMITHA JOHNY v. JOSNY VARGHESE & ORS.                 77
              [ALTAMAS KABIR, J.]
the Manager would have to appoint a new teacher in the         A
resultant vacancy of U PSA, 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. B
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 C
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 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, D
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 E
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 F
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 required to fill up the G
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 :

                                                               H
    78     SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A        " ......... 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
8        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."
c
         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
0   Leave Petition has been filed by 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,
E   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
F   submitted that the Division Bemch 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
G   per cent of the roll strength, not exceeding the roll strength of
    each class alone, is to be reckoned as the effective 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
H
   SMITHA JOHNY v. JOSNY VARGHESE & ORS.                     79
             [ALTAMAS KABIR, J.]

of July of the succeeding year. Learned counsel submitted that     A
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         B
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
Assista.nt in the School.

      11. Learned counsel appearing for the respondent urged
                                                                   c
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. 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 D
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 E
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 F
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 did not result in reduction of posts available G
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 H
    80    SUPREME COURT REPORTS (2010) 14 (ADDL.) S.C.R.


A   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 :
B         "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
c              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
D               safeguard the interest 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:
E
                 (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
F                       be made.

         Note.- (2) Promotion under this rule shall be made from
         persons possessing the prescribed qualifications at the
         time of occurrence of vacancy."
G
         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)
H   under Rule 43, promotion under the said rule shall be made from
    SMITHA JOHNY v. JOSNY VARGHESE & ORS.                      81
              [ALTAMAS KABIR, J.]
persons possessing the prescribed qualifications at the time         A
of occurrence of vacancy (emphasis supplied). It is not
disputed that as on 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      B
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)         c
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
                                                                     0
post of HSA (English) on the date of occurrence of the vacancy.

     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                E
(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            F
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              G
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 the post
ofHSA (English). Later, in the vacancy of Headmistress which
arose on 1st April, 2005, Smt. Alice Mathew, HSA (Social             H
    82     SUPREME COURT REPORTS [2010] 14 (ADDL) S.C.R.


A   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
B   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
c   (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 post of HSA (English). During the
    academic year 2004-05, Smt. P.P. Leelamma, HSA (Social
0
    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
E   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
F   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 was
G   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
H Petitioner that the vacancy of HSA (English) would have arisen
   SMITHA JOHNY v. JOSNY VARGHESE & ORS.                       83
             [ALTAMAS KABIR, J.]
only on 15th July, 2005, when the staff fixation for the academic    A
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    B
her retrenchment. As per Rule 12 of Chapter XXI 11 of the Kera la
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 year 2004-05       c
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 ofSmt. Alice Mathew, HSA (Social Science) as               .
                                                                     0
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       E
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,               F
particularly since a vacancy of HSA had occurred during the
said period. The Division 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       G
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.

B.B.B.                                         SLP dismissed.        H