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TMI Blog2010 (5) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... s reproduced herein below: Note:(2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy. (Emphasis supplied by us) 3. The question to be considered by us is, which would be the relevant date for possessing prescribed qualification whether at the time of occurrence of vacancy or at the time the appointment is to be made. 4. To decide the aforesaid controversy, factual matrix required to be mentioned is as under: 5. A vacancy to the post of High School Assistant, (in short, H.S.A.) (Hindi) arose on 1.7.2003, in the Guhanandapuram School run by Devaswom Committee. On 10.8.2003, an advertisement for selection of a teacher for the said post was is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustained injuries in the assault and was required to be admitted in Government Hospital. Police registered a criminal case against many and respondent No.1 was arrayed as accused No.7 in the said case. 8. Aggrieved by the appointment of the appellant, respondent No.1 filed W.P(C)No. 33575 of 2003 before the High Court of Kerala. Vide order dated 27.10.2003, High Court disposed of the Writ Petition filed by respondent No.1 on the admission made by Government Counsel that his representation would be considered on merits in accordance with law. This was first round of litigation. Pursuant to the order passed by the High Court, his representation was decided. 9. The District Education Officer passed an order on 5.1.2004 rejecting the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacancy had arisen. (ii) On the date vacancy had arisen, respondent No.1 was not having requisite qualification, for being appointed on the post of H.S.A (Hindi). (iii) Reference to Note No.2 reproduced herein above was made and opined that on the given date admittedly respondent No. 1 was not duly qualified. (iv) He also found that District Education Officer had already considered the case of respondent No.1 and found that he was not eligible to be promoted, on the contrary, the appointment of appellant was approved. (v) The said order passed by District Education Officer was further confirmed by State Government in revision preferred by respondent No.1. 12. For the aforesaid reasons, writ petition filed by respondent No.1 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in July, 2003, when the results of the examination were published, he had failed. However, he had applied for re-evaluation. Only after re- evaluation was done, he was declared pass in September, 2003 as per the communication sent to him by Secretary, Board of Public Examinations. Thus, there was no dispute that on 1.7.2003, when the vacancy arose, admittedly, respondent No.1 was not duly qualified to be appointed as H.S.A (Hindi) as contemplated under Note 2 appended to Rule 43 of the Rules. This aspect of the matter has been dealt with by learned Single Judge in detail in para 5 of the judgment. 17. We have accordingly heard learned counsel for parties. Perused the record. 18. Vide the impugned order passed by Division Bench, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 21. At this point of time we may further usefully quote the words of Oliver Wendell Holme: It is sometimes more important to emphasize the obvious than to elucidate the obscure To reiterate, we may once again emphasise that after careful scanning of Note (2), the obvious is the date when the vacancy occurs and not subsequent events that might have taken place after the date vacancy had occurred. 22. In fact, this aspect of the matter was duly considered by District Education Officer as also by State Government, who held against respondent No.1. Learned Single Judge had also correctly considered this aspect of the matter and thus, dismissed the writ petition filed by respondent No. 1. 23. Thus, looking to the matter f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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