Abdussalam U.P. v. State of Kerala and The Director of Higher Secondary Education

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.T.SANKARAN** **TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930** **WP(C).No. 27577 of 2007(G)** **---------------------------------------** **PETITIONER:** **-------------------** **ABDUSSALAM. U.P, H.S.S.T(JUNIOR) (COMMERCE), G.H.S.S. PATTIKKADU, P.O.PATTIKKADU, MALAPPURAM DIST.** **BY ADV. SRI.KALEESWARAM RAJ.** **RESPONDENTS:** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM.** **GOVERNMENT PLEADER SRI. T.T. MUHAMOOD FOR R1 & R2.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2008, ALONG WITH W.P.(C). NO. 27106/ 2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.27577/2007-G:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE APPOINTMENT ORDER DTD. 03/08/2005.** **EXT.P.2: COPY OF THE ORDER DTD. 25/09/2006 IN W.P.(C). NO. 15438/2006.** **EXT.P.3: COPY OF THE PROFORMA DTD. 05/09/2007 TOGETHER WITH COVERING LETTER DTD. 06/09/2007.** **EXT.P.4: COPY OF THE JUDGMENT DTD. 18/10/2006 IN W.P.(C). NO. 26244/2006.** **EXT.P.5: COPY OF THE ORDER DTD. 12/09/2007 IN W.P.(C). NO. 27106/2007.** **EXT.P.6: COPY OF THE ORDER DTD. 12/09/2007 IN W.P.(C). NO. 27108/2007.** ## **RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **prv.** ## K.T. SANKARAN, J. ............................................................................ W.P.(C) No. 27577 OF 2007 & 27106, 27108, 27109, 27574 , 27639, 29582, 29601, 30639, 30848 OF 2007, 5698 &18359 OF 2008 ............................................................................ **Dated this the 12[th] August , 2008** ## J U D G M E N T Since common questions are involved, these Writ Petitions are being disposed of by this common judgment. In some cases, persons included in the Rank List have filed applications for impleading and those applications have been allowed. 2. Almost identical reliefs are prayed for in these Writ Petitions. W.P.(C) No. 27577 of 2007 is taken as the main case in which a counter affidavit is also filed by the second respondent. The reliefs prayed for in W.P.(C)No. 27577 of 2007 are the following: _“i) to issue a writ of mandamus directing the respondents to appoint the petitioner as HSST (Senior)(Commerce); ii) to issue a writ of mandamus directing the respondents to treat the petitioner as HSST (Junior) who has completed the period of probation with effect from 4.9.2007;_ _iii) to issue a writ of mandamus directing the respondents to issue formal orders declaring satisfactory period of_ **2** ## W.P.(C) No. 27577 OF 2007 AND CONNECTED CASES. _completion of probation with effect from 4.9.2007;_ _iv) to issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fit under the facts and circumstances of the case.”_ 3. The petitioners in these Writ Petitions are Higher Secondary School Teachers (Junior) in different subjects. The claim of the petitioners is that they are entitled to be appointed as Higher Secondary School Teachers in the subjects concerned as per Rule 3 of the Special Rules for the Kerala Higher Secondary Education State Service (hereinafter referred to as the Special Rules). The case of the petitioners is that as per Rule 3 of the Special Rules, the post of HSST shall be filled up by transfer from HSST (Junior) in the subjects concerned. Only in the absence of HSST (Junior), any other category mentioned in Rule 3 could be considered for appointment as HSST, it is submitted. The relevant portion of Rule 3 (2) reads as follows: _“3. Appointment - Appointment to the categories shall be made as follows:_ **3** ## W.P.(C) No. 27577 OF 2007 AND CONNECTED CASES. |_Sl.No._|_Category_|_Method of appointment._| |---|---|---| |1|Principal|xxxxx| |2|Higher Secondary School<br>Teacher|(I) By transfer from Higher Secondary<br>School Teacher (Junior) in the subject<br>concerned.<br>(II) In the absence of qualified hands<br>under clause (I) above, the vacancies<br>shall be apportioned in the ratio of 1:3<br>between appointment by transfer and<br>direct recruitment as detailed below:<br>(1)a. By transfer from High School<br>Assistants included in the General<br>Education Subordinate Service who<br>possess the requisite qualification in<br>the subject concerned.<br>b. In the absence of qualified persons<br>under item (a) above, by transfer from<br>qualified Upper Primary <br>School<br>Assistants/Lower Primary School<br>Assistants included in the General<br>Education Subordinate Service who<br>possess the requisite qualification in the<br>subject concerned.<br>(2) By direct recruitment.| ||Notes: 1. When qualified persons are not available to fill up the<br>vacancies set apart for appointment by transfer under item (II)(1), such<br>vacancies shall also be allotted for direct recruitment.<br>2. Appointments under item (I) above shall be made from select lists of<br>qualified persons prepared on the basis of merit and ability.<br>3. Direct recruitment under item II (2) shall be made on statewise basis<br>by the Kerala Public Service Commission.|| **4** ## W.P.(C) No. 27577 OF 2007 AND CONNECTED CASES. 4. Going by the rules, appointment to the post of HSST can be made only by transfer from HSST (Junior) in the subject concerned if such qualified hands are available. If HSST (Junior) is not available, the rule permits appointment by transfer from HSA and by transfer from qualified U.P.S.A. and L.P.S.A. and also by direct recruitment in the manner indicated therein. The petitioners state that they have successfully completed the period of probation. In some of the cases, the probation has not been declared. Their grievance is that the delay in declaration of their probation has caused hardship and impediment in getting appointment as HSST. Learned counsel for the petitioners relies on the decision of this court in _**Appukuttan Nair vs. State of Kerala**_ **[ 1990 (2) KLT 806],** wherein it was held that a person who has satisfactorily completed the period of probation should be adjusted to the substantive vacancy. It was held thus: _“Their seniority in the cadre has to be reckoned from the date of commencement of probation. The delay in actual declaration of their probation due to administrative reasons and for no fault of the officers concerned can in no manner affect his seniority in the cadre. The delay in actual declaration of probation cannot have any effect on the seniority of the officer concerned.”_ **5** ## W.P.(C) No. 27577 OF 2007 AND CONNECTED CASES. The intervenors in some of these Writ Petitions are persons included in the Rank List published by the Public Service Commission and they seek appointment as HSST by direct recruitment. The question of direct recruitment would arise only in the absence of qualified HSST(Junior) in the subject concerned . It is also necessary that qualified HSST (Junior) should have successfully completed their probation. The mere fact that there is delay in declaring the probation should not be taken as a disability to HSST (Junior) who are awaiting appointment as HSST, in getting the appointment which is otherwise due to them. 5. There cannot be any dispute that going by Rule 3 of the Special Rules, persons who are included in the Rank List for direct recruitment could not aspire for appointment as HSST so long as candidates who satisfy the required qualification for appointment from the category of HSST (Junior ) are available. Now the question is whether the petitioners are eligible to be appointed as HSST so long as they have necessary qualification in the subject concerned and so long as they have satisfactorily completed their period of probation. They are entitled to be considered for promotion as HSST in any vacancy which arose after the date of completion of their probation. As regards this position, there is no dispute by the Government Pleader and by the counsel **6** ## W.P.(C) No. 27577 OF 2007 AND CONNECTED CASES. for the intervenors. 6. A counter affidavit is filed in the Writ Petition No. 27577 of 2007 which is adopted in all other connected cases wherein it is stated that the vacancies which arose after the date of successful completion of probation of HSST (Junior) will only be filled up by transfer appointment of qualified HSST (Junior) as specified in the Special Rules & KS &SSR. It is also stated that there is no basis for the apprehension of the petitioners for denial of promotion. In paragraph No.6 of the counter affidavit, it is stated that the candidates would be eligible to be considered for appointment by transfer as HSST against the vacancies that arose after the date of their declaration of probation. Learned Government Pleader concedes that this is a mistake and what is intended is with respect to the vacancies which arose after the date of successful completion of probation. As regards the delay in declaring probation, it is stated in paragraph 12 of the counter affidavit as follows: _“The number of candidates appointed through direct recruitment as HSST/HSST (Jr.). in 2005 is about 4800. The establishment matters of about 7000 teachers are dealt with by a limited number of ministerial staff. So the jobs related to the regularization of service and declaration of probation in respect of teachers appointed in 2005 have not yet been completed. Before regularizing their service_ **7** ## W.P.(C) No. 27577 OF 2007 AND CONNECTED CASES. _the reports regarding the character and antecedents of each of the candidate are to be obtained from the respective Commissioner of Police or the Superintendent of Police. The qualification acquired by each candidate has to be verified. Before declaring their probation their service credentials, leave account, certificate of work, character and conduct etc. are to be verified. The verification of such details is a time consuming work which cannot be completed all on a sudden.”_ 7. It is stated by the learned counsel for the petitioners that in the case of HSST (Junior) (Hindi), the process of declaration of probation has been completed and the same treatment is to be made in favour of other categories of HSST (Junior) as well. Learned Government Pleader submitted that urgent steps would be taken to complete the process of declaration of probation of HSST (Junior) in all the subjects concerned, so that eligible candidates would not be denied appointment as HSST . 8. In the facts and circumstances of the case and taking into account the submissions made by the learned counsel for the petitioners, the learned Government Pleader and the learned counsel for the intervenors, the Writ Petitions are disposed of with the following directions: i) The post of HSST shall be filled up strictly in accordance with Rule 3 of **8** ## W.P.(C) No. 27577 OF 2007 AND CONNECTED CASES. the Special Rules for the Kerala Higher Secondary Education State Service . ii) When any HSST (Junior) who is qualified and who has satisfactorily completed the period of probation is available, no candidate other than HSST (Junior) shall be appointed against a vacancy which arose subsequent to the date of successful completion of the period of probation of HSST (Junior). iii) The process for declaring successful completion of probation of the petitioners shall be expeditiously carried out and the probation of the petitioners concerned shall be declared without delay. iv) It is necessary to ensure that eligible candidates in the category of HSST (Junior) shall not be denied appointment as HSST only because of the delay in getting their probation declared . ## K.T. SANKARAN, JUDGE. lk