A.G.Mini v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **TUESDAY, THE 3RD DAY OF JULY 2012/12TH ASHADHA 1934** ## **WP(C).No. 15365 of 2010 (U) ---------------------------** ## **PETITIONER(S):** **---------------------------** **A.G.MINI, HIGH SCHOOL ASSISTANT (ENGLISH), ST.AUGUSTINE'S HIGH SCHOOL, MARARIKULAM, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND** ## **RESPONDENT(S):** **------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001.** **2. DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN 695-001** **3. REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM, PIN 695-001** **4. CORPORATE MANAGER, THE CORPORATE MANAGEMENT OF SCHOOLS, DIOCESE OF ALLEPPEY, P.B.NO.404, ALAPPUZHA,PIN 688 001.** **5. SR.DOLLY C.M, HIGHER SECONDARY SCHOOL TEACHER (ENGLISH), LEO XIII HIGHER SECONDARY SCHOOL, ALAPPUZHA,PIN- 688 001.** **6. ESTHER JUNO JOHN, HIGHER SECONDARY SCHOOL TEACHER (JUNIOR), ST.FRANCIS H.S.SHCOOL, ARTHUNKAL, PIN 688 530.** **2/-** **sts** **-2-** **WP(C)NO.15365/2010** **7. DIVYA PHILIP, HIGH SCHOOL ASSISTANT, LEO XIII HIGHER SECONDARY SCHOOL, ALAPPUZHA, PIN 688 001.** ## **8. MARIAMMA K.J.,** **HIGHER SECONDARY SCHOOL TEACHER (ENGLISH), LEO XIII HIGHER SECONDARY SCHOOL, ALAPPUZHA, PIN 688 001.** **R1 TO R3 BY GOVERNMENT PLEADER SRI.DILIP MOHAN R4 BY ADV. SMT.K.T.LILLY @ LILLY JAMES R5 & R6 BY ADV. SMT.P.V.ASHA R7 BY ADV. SMT.P.F.ROSY** **R8 BY ADV. SRI.JOY THATTIL ITTOOP BY ADV. SMT.K.P.SHEEBA BY ADV. SRI.VIJU ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.15365/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE REPRESENTATION DATED 13/7/2009 SUBMITTED BY THE PETITIONER TO THE CORPORATE MANAGER.** - **P2 COPY OF THE REPRESENTATION DATED 13/7/2009 SUBMITTED BY THE PETITIONER TO THE DIRECTOR OF HIGHER SECONDARY EDUCATION.** - **P3 COPY OF THE ORDER NO.HSS.29/09 DATED 6/7/2009 OF THE CORPORATE MANAGER APPOINTING THE 5TH RESPONDENT.** - **P4 COPY OF THE APPEAL DATED 31/8/2009 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF HIGHER SECONDARY EDUCATION.** - **P5 COPY OF THE JUDGMENT IN WP(C)NO.28775/09-N DATED 13/10/2009 OF THIS HON'BLE COURT.** - **P6 COPY OF THE HEARING NOTE BEARING NO.HSS 53/09 DATED 2/12/2009 OF THE CORPORATE MANAGER (BY POWER OF ATTORNEY)** - **P7 COPY OF THE RELINQUISHMENT LETTER OF THE 8TH RESPONDENT.** - **P8 COPY OF THE ORDER NO.ACD.A4/29502/HSE/09 DATED 14/12/2009 OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION.** - **P9 COPY OF THE ORDER NO.HSS 60/09 DATED 28/12/2009 OF THE CORPORATE MANAGER.** - **P10 COPY OF THE REPRESENTATION DATED 2/1/2010 TO THE CORPORATE MANAGER.** - **P11 COPY OF THE APPEAL DATED 2/1/2010 SUBMITTED BY THE PETITIONER TO GOVERNMENT.** - **P12 COPY OF THE ORDER NO.HSS 61/09 DATED 28/12/2009 OF THE CORPORATE MANAGER.** - **P13 COPY OF THE ORDER NO.HSS 64/09 DATED 31/12/2009 OF THE CORPORATE MANAGER.** - **P14 COPY OF THE PETITION DATED 6/3/2010 BEFORE THE CORPORATE MANAGER.** - **P15 COPY OF THE PETITION DATED 6/3/2010 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF HIGHER SECONDARY EDUCATION.** - **P16 COPY OF THE PETITION DATED 6/3/2010 SUBMITTED BY THE PETITIONER BEFORE THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM.** **sts** **2/-** **-2-** ## **WP(C)NO.15365/2010** - **P17 COPY OF THE PETITION DATED 6/5/2010 SUBMITTED BY THE PETITIONER BEFORE THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM.** - **P18 COPY OF THE PETITION DATED 6/5/2010 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY DIRECTOR (ACADEMIC) OF THE DIRECTORATE OF HIGHER SECONDARY EDUCATION.** - **P19 COPY OF THE LETTER NO.B5-1194/08 DATED 15/3/2010 OF THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA, ADDRESSED TO THE PETITIONER.** - **P20 COPY OF THE ORDER NO.H2/6/98 DATED 9/9/1998 AND H3/8/2002 DATED 2/7/2002 OF THE CORPORATE MANAGER.** - **P21 COPY OF THE ORDER NO.H1/7/2002 DATED 1/7/2002 OF THE CORPORATE MANAGER.** - **P22 COPY OF THE ORDER NO.H3/8/2002 DATED 2/7/2002 OF THE CORPORATE MANAGER.** - **P23 COPY OF THE LETTER NO.54/10 DATED 01/2/2010 OF THE CORPORATE MANAGER ADDRESSED TO THE PETITIONER.** ## **RESPONDENT'S EXHIBITS:** - **R4(I) COPY OF THE LIST OF ALL THE TEACHERS APPOINTED AS HSST SENIOR AND JUNIOR FROM 15/9/1998 TILL DATE** - **R5(A) COPY OF THE ORDER DATED 2/7/2010 OF 3RD RESPONDENT.** - **R7(I) COPY OF THE GOVT. ORDER (RT)NO.1621/2010/G.EDN DATED 12/4/2010** - **R8(A) COPY OF THE SAID LETTER DATED 04/12/2009.** ## **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## **C.T.RAVIKUMAR, J.** ---------------------------- W.P.(C)No.15365 of 2010 ---------------------------Dated 3[rd] July, 2012 ## **JUDGMENT** The petitioner is presently working as High School Assistant (English) in St.Augustine's High School, Mararikulam, under the fourth respondent. She possesses the qualifications of M.A. and B.Ed., in English as well as SET. On 1.6.2009 a vacancy of H.S.S.T. (English) having a duration till 24.5.2011 arose under the Corporate Management. The petitioner submitted an application and pursuant to which she was called for an interview before the Selection Board on 23.6.2009. While so, the petitioner came to know that instead of filling up the vacancy from among the participants in the said interview the fourth respondent appointed the fifth respondent as against the said post. According to the petitioner, the fifth respondent ought not to have been directly recruited to that vacancy in the aforesaid category. Ext.P1 was then filed before the fourth respondent on 13.7.2009 requesting to cancel Ext.P3 order of appointment of the fifth respondent and to appoint her in that vacancy with retrospective effect. Ext.P2 WP(C).No.15365/2010 2 representation virtually, carrying the same request was then submitted before the second respondent besides requesting to stay the approval of appointment of the fifth respondent. On obtaining copy of the order of appointment of the 5[th] respondent viz., Ext.P3 under the Right to Information Act, the petitioner preferred Ext.P4 appeal before the second respondent. Inaction on Ext.P4 constrained the petitioner to approach this Court by filing W.P.(C).No.28775 of 2009. That writ petition was disposed of as per Ext.P5 judgment with a direction to the second respondent to take a decision on Ext.P5 (Ext.P4 herein) after hearing the petitioner and respondents 3 and 4 (respondents 4 and 5 herein). It was made clear thereunder that approval of appointment of the fifth respondent, if any, granted in the meanwhile, would be subject to the orders to be passed on Ext.P4. At the time of hearing, the petitioner submitted Ext.P6 hearing note and also produced Ext.P7 relinquishment letter of the eighth respondent, Smt.Mariamma K.J., who is the senior most qualified H.S.A (English) in respect of the said post. Ext.P8 order was then passed by the second respondent holding that the fourth respondent had not acted in accordance with the Special Rules while effecting appointment against the category H.S.S.T (English). The appointment of the fifth respondent Sr.Dolly C.M. by direct recruitment was cancelled. As regards the claim of the petitioner WP(C).No.15365/2010 3 it was held therein that she was not the only claimant for `by transfer' appointment and, consequently, her claim for appointment against that vacancy was found meritless. As per Ext.P8, the fourth respondent was directed to cancel the appointment of the fifth respondent as H.S.S.T with effect from 6.7.2009 to 24.5.2011 and to make appointment afresh from among teachers under '25% by transfer category'. Subsequently, the fourth respondent issued Ext.P9 order appointing the eighth respondent Smt.Mariamma.K.J. as H.S.S.T (English) in the vacancy from 26.5.2006 to 25.5.2011. Ext.P10 representation was then submitted by the petitioner to the fourth respondent raising grievances against Ext.P9. It is contended therein that since the eighth respondent had submitted Ext.P7 relinquishment letter, the petitioner being her immediate junior should have been appointed against the vacancy occurred consequent to the cancellation of appointment of the fifth respondent as per Ext.P8. It was also pointed out therein that over and above the said leave vacancy two vacancies are also available viz., one in the post of H.S.S.T and another in the post of H.S.S.T (Junior). The petitioner staked claim against the posts contending that she is fully qualified to be appointed against both the posts. In the meanwhile, the petitioner preferred Ext.P11 appeal before the Government challenging the finding in Ext.P8 WP(C).No.15365/2010 4 to the effect that the petitioner was not the only claimant for by transfer appointment against the post in question. While so, the fourth respondent appointed the fifth respondent against another leave vacancy occurred on account of availing of leave by one Smt.Helen.K.A. from 9.9.2009 to 8.9.2014 and the sixth respondent as against HSST (Junior) against the vacancy occurred consequent to the resignation of one Smt.Linda.P.K. for the period from 7.9.2009 to 4.11.2010, as per Exts.P12 and P13. Feeling aggrieved by the said appointments the petitioner submitted Ext.P14 before the fourth respondent. She has also submitted Exts.P15 and P16 respectively before the second and third respondents requesting to ensure that the illegal appointments made mentioned thereunder are not approved. Alleging delay in action on Exts.P15 and P16 she submitted Exts.P17 and P18 before the same authorities. The petitioner also contends that the seventh respondent was also not entitled to be promoted against any of such vacancies as she was unauthorisedly absent from 1.6.2006 to 19.2.2007 and the said unauthorised absence was not actually regularized as on the relevant date. It is further contended that Smt.Teena Arakkal, Sri.Shaj Andrews and Smt.Moni John who were Junior Lecturers in St.Michael's College, Cherthala under the same Corporate Management were appointed against the posts of H.S.S.T/H.S.S.T (Junior) as per WP(C).No.15365/2010 5 Exts.P20, P21 and P22 on becoming surplus consequent to the delinking of Pre-Degree and, therefore, they should be treated as direct recruits. It is contended that if the appointments of the aforesaid three persons are treated as direct recruitments it would create three more vacancies under the fourth respondent in the 'by transfer quota'. The petitioner has also raised grievances against the appointment of one Smt.Gracemma Antony as H.S.S.T (Hindi) on 15.9.1998 contending that she was given such appointment before completion of the period of probation. It is contended that the appointment of said Smt.Gracemma Antony cannot be treated as an appointment by transfer. Based on such contentions, it is further contended that one more vacancy is to be set apart for appointment by transfer. It is with these allegations that this writ petition has been filed mainly with the prayer to quash Ext.P8 and seeking declaration that appointments of respondents 5, 6 and 8 are illegal and liable to be cancelled. Issuance of a writ of mandamus commanding respondents 1 to 3 not to approve the appointments of respondents 5, 6 and 8 effected as per Exts.P12, P13 and P9 respectively and to cancel them, besides directing appointment of the petitioner against any of those vacancies, is also sought for. The petitioner also seeks for issuance of a writ of mandamus commanding the fourth respondent to appoint her as H.S.S.T (English) against the WP(C).No.15365/2010 6 leave vacancy for the period from 6.7.1999 to 24.5.2011 and a consequential direction to respondents 1 to 3 to approve that appointment and to give her all consequential service benefits. 2. At the very outset, it is to be noted that though the petitioner has raised grievances against the appointments of Smt.Teena Arakkal, Sri.Shaj Andrews, Smt.Moni John and Smt.Gracemma Antony the petitioner has not chosen to bring them in the party array in this writ petition. Since any finding with respect to their appointments would ultimately prejudice their prospects for continuance in their respective posts under the fourth respondent I do not propose to look into the grievances raised by the petitioner against their appointments even for the limited purpose of considering whether treating their appointments as under direct recruitment quota would result in availability of vacancies in the 'appointment by transfer' quota. 3. Separate counter affidavits were filed by respondents 4, 5, 6, 7 and 8 in this writ petition. The petitioner has filed reply affidavit to the counter affidavits filed by respondents 4, 5, 7 and 8 to which the fifth respondent filed an additional counter affidavit. The contention of the fourth respondent is that the qualification and method of WP(C).No.15365/2010 7 appointment to the categories of H.S.S.T and H.S.S.T (Junior) in the schools under the fourth respondent are governed by Chapter XXXII of the Kerala Education Rules (KER). After extracting the relevant provisions under Rule 4 therein it is contended that appointment by transfer from High School Assistants could be made against the categories of H.S.S.T/H.S.S.T (Junior) only against 25% of the vacancies and not on posts, that too, only in the absence of Junior Lecturers and H.S.S.T (Juniors) under the management. The claim of the petitioner that for the purpose of reckoning the cadre strength and 25% that could be set apart for appointment by transfer the posts of H.S.S.T/H.S.S.T (Junior) should be taken together is devoid of any basis or merit, it is contended. It is contended that, going by the rules, in the case of H.S.S.T (Junior) the quota of 25% is earmarked for appointment by transfer and the balance 75% of the posts by direct recruitment. The appointments effected in the schools under the management after coming into force of Chapter XXXII of KER viz., with effect from 12.11.2001, have been set out in the counter affidavit. Based on such datas and details it is contended that there exists no vacancy for effecting appointment of the petitioner by transfer against the category of H.S.S.T (English) under the 4[th] respondent. The appointment of the eighth respondent consequent to the cancellation of WP(C).No.15365/2010 8 appointment of the fifth respondent against the leave vacancy that existed during the period from 1.6.2009 to 24.5.2011 for the rest of the period was also sought to be justified by the fourth respondent. 4. The eighth respondent in her counter affidavit has raised contentions to support her appointment effected as per Ext.P9. While admitting that she had submitted Ext.P7 relinquishment letter it is contended that it was conditional. According to her, the relinquishment as per Ext.P7 was given only in favour of Sr.Dolly C.M., the fifth respondent. It is further contended that on 4.12.2009 she submitted Ext.R8(a) letter seeking withdrawal of Ext.P7 and being senior to the petitioner she was the rightful claimant against that vacancy in question, in preference to the petitioner. In the counter affidavit filed by the fifth respondent, virtually, the contentions raised on behalf of the fourth respondent were reiterated. Based on the rules under Chapter XXXII of KER, more particularly Rule 4, it is contended that by transfer appointment from High School Assistants could be made only against 25% of the vacancies as and when notified and not against the cadre strength. It is also contended that though her appointment as H.S.S.T (English) against the leave vacancy from 6.7.2009 to 24.5.2011 was cancelled as per Ext.P8 order by the second respondent later she was WP(C).No.15365/2010 9 appointed against another leave vacancy as per Ext.P12 from 28.12.2009 to 24.5.2011. Further, it is contended that the said vacancy against which she was appointed as per Ext.P12 was liable to be filled up only by direct recruitment and, therefore, her appointment against the said vacancy could not be said to be illegal. Even though it is stated in the counter affidavit that the said appointment was not approved solely based on the interim order passed by this Court in this writ petition in the additional counter affidavit filed by the fifth respondent it is stated that such a statement was mistakenly made and in fact, the said appointment as per Ext.P12 was approved by the third respondent as per order No.TRO/714698/06/HSE dated 29.3.2010. However, the approval of the said appointment made as per Ext.P12 was later cancelled as per Ext.R5(a) citing the reason of the interim order of stay against appointments in the post of H.S.S.T (English) passed by this Court. 5. The rival contentions as noted above would undoubtedly reveal that the first grievance of the petitioner pertains to her nonappointment against the vacancy occurred in the category of H.S.S.T (English) from 1.6.2009 to 24.5.2011. Evidently, as against the said vacancy, the petitioner was called for an interview before the selection WP(C).No.15365/2010 10 board at 2.P.M. on 23.6.2009. However, against that vacancy, the fifth respondent was given appointment by direct recruitment. The said action on the part of the fourth respondent was held illegal and contrary to the rules by the second respondent and accordingly it was cancelled as per Ext.P8. Consequently, taking into account the orders in Ext.P8, the fourth respondent issued Ext.P9 appointing the eighth respondent against that vacancy, in fact, for the remaining portion of the said leave vacancy. I may firstly consider the grievance of the petitioner against the said action and appointment. While considering the said issue, Ext.P7 also has to be taken into consideration. Regarding the submission of Ext.P7 letter, there is no dispute from respondents 4 and 8. While asserting her rightful claim against the said vacancy by virtue of being senior most in the category of H.S.A (English) the eighth respondent would contend that she had relinquished the claim only in favour of the fifth respondent, Sr.Dolly C.M. In the context of the contentions and also for knowing its true impact and effect, it is only appropriate to extract the contents of the said letter:- “I came to know that there is a vacancy of HSST English in Leo XIII HSS, Alappuzha in which one Sr.Dolly C.M. was appointed from 6.7.09 to 24.5.2011. WP(C).No.15365/2010 11 I am fully qualified for the post of HSST English. Since the above appointment is in a short vacancy I have no objection about the appointment of Sr.Dolly C.M. as HSST English from 6.7.09 to 24.5.2011 in Leo XIII HSS, Alappuzha. I request you that I may be considered in a long vacancy as and when it arises in the management.” (emphasis supplied) The rival contentions of the petitioner on one side and respondents 4, 5 and 8 on the other side would reveal that nobody disputes the existence of Ext.P7 letter. The contention of the petitioner is that when once it is admitted that the eighth respondent had submitted Ext.P7 relinquishment letter as against the vacancy of H.S.S.T (English) against which the fifth respondent was appointed from 6.7.2009 to 24.5.2011 consequent to the cancellation of that appointment as per Ext.P8 she should have been given appointment as H.S.S.T (English). Per contra, the eighth respondent contended that she had specifically stated in Ext.P7 that she did not propose to raise any objection against the appointment of the fifth respondent from 6.7.2009 to 24.5.2009 as it was only a short term vacancy. That apart, it is contended that, in Ext.P7, it was specifically stated that the relinquishment was only in WP(C).No.15365/2010 12 favour of the 5[th] respondent. She had also requested thereunder to consider her as and when a long term vacancy arises under the management in the category of H.S.S.T (English). The sum and substance of the contention of the petitioner is that a temporary relinquishment letter can be submitted only against a particular period or vacancy and individual based relinquishment is impermissible. In other words, according to the petitioner, the contention of respondents 4 and 8 that the relinquishment was only in favour of the fifth respondent Sr.Dolly.C.M. cannot be sustainable in law. I find considerable force in the said contention. When a vacancy, be it short or long term, arises, the senior most qualified hand/hands can relinquish claim towards such vacancy. At the same time, an individual based relinquishment is not contemplated under law and therefore, cannot be sustained in law. If a senior most qualified hand relinquishes his/her claim, that preference would necessarily pass on to the next senior most qualified person in that category. Relinquishment can only be against a particular vacancy, be it a short term vacancy or a long term or for a particular period, subject to the conditions under R.T.A. Act. The person who relinquishes his/her right cannot put a further rider that it should be treated as relinquishment only in favour of a particular person and it would not be operative against any other senior qualified WP(C).No.15365/2010 13 hands. Therefore, at the first blush, the said argument advanced on behalf of the petitioner in challenging the refusal of appointment against that particular vacancy available during the period from 6.7.2009 to 24.5.2011 consequent to the cancellation of the appointment of the fifth respondent appears to be attractive. However, a close scrutiny of Ext.P7 would reveal that it also requires a deeper consideration in the circumstances. It is true that the parties have described Ext.P7 as a relinquishment letter. However, the question is whether Ext.P7 letter got the quintessential features of a relinquishment letter. In troth, it cannot be construed as a relinquishment letter in its true sense, in respect of the vacancy that occurred and available during the period from 6.7.2009 to 24.5.2011. In **Viswanathan** v. **Director of Higher Secondary Education** reported in **2005 (3) KLT SN.79 (Case No.91)** , a Division Bench of this Court held that when there is no stipulation for regulating appointment or promotion based on seniority, the Manager being the authority invested with power to make appointment and promotion of his own staff, has to follow a reasonable method. The reasonable method is that when there are several teachers belonging to different subjects entitled for consideration to few vacancies, those posts to which senior incumbents are to be considered shall be set apart for WP(C).No.15365/2010 14 quota of in-service candidates, so that senior incumbent, shall not be superseded by a junior incumbent. Otherwise, it would be arbitrary and discriminatory, it was held. Viewing the circumstances in that angle, the fourth respondent, Corporate Manager was to consider the senior most qualified hand from among the category of H.S.A (English) for appointment to the said short vacancy occurred in the category of H.S.S.T (English). Evidently, what was done in this case is that even without a relinquishment letter, in its true sense, from the eighth respondent and virtually ignoring the availability of fully qualified hands in the quota set apart for the in-service candidates in the category of H.S.A (English) the fourth respondent appointed the fifth respondent as H.S.S.T (English) in the short term vacancy from 6.7.2009 to 24.5.2011 by direct recruitment. For treating Ext.P7 as a relinquishment letter, in the true sense, it should have preceded Ext.P3, the order of appointment of the fifth respondent. In that view of the matter, Ext.P7 can only be taken as a letter conveying the no objection on the part of the eighth respondent for the continuance of the fifth respondent against that vacancy based on Ext.P3. True that, the petitioner did raise objection against the appointment of the fifth respondent against that short term vacancy and pursue with that objection. Evidently, it culminated in Ext.P8 whereby the appointment WP(C).No.15365/2010 15 of the fifth respondent against that vacancy was held as illegal and consequently cancelled. At the same time, as per Ext.P8, the second respondent found that the petitioner was not the only qualified hand who could stake claim against that short term vacancy. There can be no doubt that while filling up the said short term vacancy, the eligibility of the senior most qualified hands in the category of H.S.A (English) viz., the eighth respondent and the seventh respondent, in that order was not considered. The petitioner claims herself to be the rightful claimant against that short term vacancy contending that the eighth respondent though senior to her was ineligible to be considered for appointment against that vacancy by virtue of Ext.P7 relinquishment letter. It is in that context the fact that prior to the filling up of that vacancy relinquishment letter was not submitted/received from the eighth respondent assumes relevance. Therefore, in my considered view, Ext.P7 cannot be treated as a relinquishment letter. But, then, the question is whether a notice regarding occurrence of vacancy and inviting application was published or circulated among the teachers belonging to the concerned category. Such a notice is essential to enable the eligible teachers to apply going by the judgment of this Court in W.P.(C)No.17054 of 2004 dated 31.10.2008. At this juncture, it is to be noted that an interview was conducted on 23.6.2009 by a WP(C).No.15365/2010 16 selection board constituted for filling up that vacancy, going by the averments of the petitioner. The said averment was not refuted by the respondents. Whether any notice for that behalf was actually published or circulated or whether respondent Nos.7 and 8 had responded to the notice, if it was actually published or circulated and whether they had participated in the interview alleged to have conducted on 23.6.2009 and what was the decision of the selection board pursuant to the interview conducted on 23.6.2009 are matters of relevance in the context of the case. However, there is no specific pleading on that issue by any of the parties. That leaves this Court with no material to take a decision after taking into account such relevant aspects. It appears that after having taken steps for filling up the said vacancy from among in-service candidates and having conducted an interview therefor it was abruptly abandoned. As against the seventh respondent, the contention of the petitioner is that she was unqualified as her unauthorized absence from 1.6.2006 to 19.2.2007 was not regularized on that crucial date. There can be no dispute with respect to the position that the said vacancy was to be filled up by effecting appointment by transfer from among the category of H.S.A (English). Therefore, the question in the said admitted position is whether the petitioner could stake a better claim over respondents 7 and 8 who are WP(C).No.15365/2010 17 her seniors citing the aforesaid reasons. But, as noted hereinbefore, the crucial materials are not available on record and thereby, this Court is incapacitated to take a decision on merits. In the context of this case it is worthwhile to note that the fifth respondent was appointed against the said vacancy without obtaining or receiving the relinquishment letters from the qualified hands in the feeder category viz., the appointment by transfer category and without considering their claims. The mere fact that the eighth respondent, the senior most qualified in that category, in the so called relinquishment letter requested for consideration of her claim against a long term vacancy as and when it occurs under the management, in such circumstances, cannot be assigned as a reason to oust her from the zone of consideration while filling up the said short vacancy pursuant to the cancellation of the appointment of the fifth respondent. Ext.R8(a) was submitted by the eighth respondent just before the passing of Ext.P8 viz., on 4.12.2009. What actually inspired or prompted the eighth respondent to submit Ext.R8(a) is not obvious either from Ext.R8(a) or the counter affidavit filed by her. Whatsoever be its reason it is inconsequential in the factual scenario obtained in this case. In that view of the matter Ext.R8(a) itself has no relevance or consequence in the circumstances. The reason that it was the petitioner who is incidental to the WP(C).No.15365/2010 18 cancellation of the appointment of the fifth respondent made as per Ext.P3 cannot and will not fetch her any preferential or better claim at the time of consideration of filling up of that vacancy consequent to Ext.P8. At the same time, whether the petitioner could have staked a better claim would depend upon the eligibility of respondents 7 and 8, taking into account the facts and factors, mentioned hereinbefore. As noted earlier, on occurrence of the vacancy in question, an interview was conducted by the duly constituted Selection Board on 23.6.2009. The specific contention of the petitioner is that she was interviewed by the Selection Board. Those averments stands unrebutted. No material is available to ascertain the fact whether the 7[th] and 8[th] respondents had responded to the notifications, if any, issued for that purpose or whether they failed to respond to such notification. It appears that it was after abruptly abandoning such steps that the 5[th] respondent was appointed as per Ext.P3. In that context, certainly, the outcome of the interview that was conducted for the purpose of filling up that vacancy would also assume relevance. However, lack of relevant materials puts this Court on the guessing. In such circumstances, a decision on merits cannot be arrived at. The petitioner has raised a challenge against Ext.P9. In the circumstances explained above, it cannot be interfered with at this stage. At the same time, the sustainability of the same WP(C).No.15365/2010 19 invariably depends upon the success or failure of the petitioner's challenge against Ext.P8 and the crucial aspect as to whether the 8[th] respondent had also participated in the interview held on 23.6.2009 and what was its outcome. Going by the admitted fact that the unauthorised absence of the seventh respondent was regularised only on 12.4.2010 viz., much after the filling up of the said vacancy in question the seventh respondent cannot stake a claim against that vacancy. Whole the issues can, therefore, be resolved by a proper consideration and disposal of Ext.P11 by the Government. 6. As against the appointment of the seventh respondent in subsequent vacancies occurred under the fourth respondent, going by the admitted position that she is senior to the petitioner and that her unauthorized absence was subsequently regularized as per Ext.R7(1) order dated 12.4.2010, I do not find any reason for the petitioner herein to raise grievance. The petitioner did not have a case that the seventh respondent was appointed against any vacancy that occurred prior to 12.4.2010. In the circumstances, the petitioner cannot have any grievances to be redressed against the seventh respondent. WP(C).No.15365/2010 20 7. Now, the question to be considered is whether the appointment of the fifth respondent as per Ext.P12 invites interference. The specific contention of respondents 4 and 5 is that the appointment to the post of H.S.S.T (English) is governed by the provisions under Chapter XXXII of KER. It is their further contention that going by Rule 4 thereunder 25% vacancies set apart for appointment by transfer has to be identified with reference to the vacancies and not on the cadre strength, that too, only in the absence of Junior Lecturers and H.S.S.T Juniors. Rule 4 of KER reads thus:- - “(1) By transfer from Junior Lecturer in the subject concerned under the management/Higher Secondary School Teacher (Junior). - (2) In the absence of qualified hands under clause (1) above, the vacancies shall be apportioned in the ratio 1:3 between appointment by transfer and direct recruitment as detailed below: - (i) (a) By transfer from High School Assistants, who possess the requisite qualifications, under the educational agency. - (b) In the absence of qualified persons under (a) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants who possess the requisite qualification in the subject concerned under the Educational Agency. - (ii) By direct recruitment. WP(C).No.15365/2010 21 Note: (i) When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under item 2(i) above, such vacancies shall also be allotted for direct recruitment. - (ii) Appointments under item (1) above shall be filled up from select lists of qualified persons prepared on the basis of seniority and merit.” A bare perusal of Rule 4 would reveal that while effecting appointment to the post of H.S.S.T in terms of the provisions under Chapter XXXII of KER the question of apportionment of the vacancies in the ratio of 1 : 3 between the by transfer appointees and direct recruits would arise only in the absence of qualified hands for appointment by transfer from the cadre of Junior Lecturer in the concerned subject under the management and also in the cadre of Higher Secondary School Teacher (Junior) in the concerned subject. In that view of the matter, the grievances of the petitioner with respect to the appointment of Smt.Teena Arakkal, Sri.Shaj Andrews and Smt.Moni John as per Exts.P20 to 22 invites no interference. It cannot be interfered with for other reasons as well. The petitioner cannot raise grievance against the appointment of Smt.Gracemma Antony made as per Ext.P23. In fact, the petitioner has not challenged Exts.P20 to 23 in this writ petition. Even in case of a challenge against the said orders, it cannot be gone into as the concerned appointees are not made parties to this writ WP(C).No.15365/2010 22 petition. Therefore, I do not propose to consider the sustainability of the appointments made as per Exts.P20 to 23. I also do not propose to consider the appointments made as per Exts.P20 to 23 even for the purpose of considering the question whether any further vacancy would be said to be available to be set apart for appointment by transfer from the category of H.S.A (English) to the post of H.S.S.T(English) as any such consideration would ultimately prejudice the prospects of the appointees covered by Exts.P20 to P23. On the ground of non-joinder of necessary parties, the contentions relating the availability of vacancies in the category of H.S.A (English) considering the legality of appointments effected as per Exts.P20 to P23 cannot be gone into in this writ petition as such consideration may adversely affect those appointees. When once it is so found, there is nothing on record to show that the vacancy against which the fifth respondent was appointed by resorting to direct recruitment was, in fact, available to be filled up by appointment by transfer. In that view of the matter, Exts.P12 and P13 also call for no interference in this proceedings. However, it is made clear that it will be open to the petitioner to challenge such appointments and pursue the claim, if sustainable, by showing the availability of vacancies for appointment under the by transfer category in appropriate proceedings by bringing the stake holders also in the WP(C).No.15365/2010 23 party array. Evidently, the petitioner has taken up his grievances only with respect to the appointment of respondents 5 and 8 before the authorities. With respect to the claim against the vacancies which were filled up by the other respondents and appointees covered by Exts.P20 to 23 as also the claim for appointment as H.S.S.T after ascertaining the actual vacancies set apart and available under the 25% by transfer category such claims and grievances have not been taken up so far before any of the statutory authorities. In the said circumstances, it will be open to the petitioner, if so advised, to take up such grievances in appropriate proceedings subject, of course, to the relevant statutory provisions. As already noted, Ext.P11 filed by the petitioner before the Government against Ext.P8 order has not so far been disposed of. There is no case for the respondents that Ext.P11 was considered and rejected. In the said circumstances, this writ petition is disposed of with a direction to the first respondent to consider and pass orders on Ext.P11, after affording opportunity of being heard to all the affected parties. It will be open to the petitioner to forward a copy of this judgment along with a representation to supplement the same, in the circumstances. It is made clear that the sustainability of Ext.P9 and the WP(C).No.15365/2010 24 entitlement of the petitioner for consequential benefits would depend upon the outcome of Ext.P11. Ext.P11 shall be disposed of by the first respondent expeditiously, at any rate, within a period of three months from the date of receipt of a copy of this judgment. Sd/C.T.RAVIKUMAR Judge TKS