SMITHA JOHNY versus JOSNY VARGHESE & ORS.

Citation: [2010] 14 S.C.R. 68 · Decided: 22-10-2010 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Dismissed

Judgment (excerpt)

A 
B 
[2010) 14 (ADDL.) S.C.R. 68 
SMITHA JOHNY 
v. 
JOSNY VARGHESE & ORS. 
(SLP (CIVIL) No. 20822 of 2006) 
OCTOBER 22, 2010 
[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. 7 A(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 al

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