Ajitha Jemema Gabriel v. State of Kerala and Others

**WP(C) NO. 12798 OF 2021 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944** **WP(C) NO. 12798 OF 2021** ## **PETITIONER/S:** AJITHA JEMEMA GABRIEL (RETIRED HIGHER SECONDARY SCHOOL TEACHER (ENGLISH) B.E.M.H.S.S, THALASSERY, KANNUR DISTRICT) RESIDING AT HOUSE NO. 4, SBI COLONY II, SADHOO COMPANY ROAD, KANNUR, PIN 670 002 BY ADV PETER JOSE CHRISTO ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001 2 DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN 695 014 3 JOINT DIRECTOR(ACADEMIC) HIGHER SECONDARY WING, DIRECTORATE OF GENERAL EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM, PIN 695 001 4 REGIONIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, KANNUR, PIN 670 001 **WP(C) NO. 12798 OF 2021 2** 5 THE CORPORATE MANAGER CSI DIOCESAN SCHOOLS, (MALABAR AND WAYANAD AREA) BANK ROAD, KOZHIKODE, PIN 673 001 6 ACOUNTANT GENERAL (A & E) OFFICE OF THE ACCOUNTANT GENERAL (A & E), KERALA THIRUVANANTHAPURAM 695 001 7 PRINCIPAL B.E.M. H.S.S , THALASSERY, KANNUR DISTRICT, PIN 670 101 BY ADVS. V.A.MUHAMMED M.SAJJAD SMT. MARY BEENA JOSEPH, SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 12798 OF 2021** **3** ## **JUDGMENT** The petitioner, Ajitha Jemema Gabriel, attained superannuation on 31.05.2020 while she was working as HSST (English) in the BEM HSS, Thalassery. She has approached this Court seeking to quash Ext.P3 order issued by the RDD, the 4th respondent herein, on 07.02.2015, as per which the proposal for approval of her appointment as HSST (English) with effect from 03.06.2013 was declined. She has also sought for issuance of directions to respondents 1 to 4 to grant approval to the appointment of the petitioner with effect from 03.06.2013 and to forthwith sanction, authorize and disburse the monthly pension and other retirement benefits treating the petitioner as HSST (English) with effect from 03.06.2013 and for ancillary reliefs. 2. The brief facts of the case are as under: a) The petitioner, while working as HSA under the schools run by the 5th respondent management, was appointed by ‘by-transfer’ to the **WP(C) NO. 12798 OF 2021** **4** category of HSST (English) by Ext.P1 order. The proposal for approval was forwarded to the 4th respondent, but by Ext.P3 order, the request for approval was declined, giving the following reasons. “The manager Corporate Management of CSI Diocese Schools CSI North Kerala Dioceses Educational Agency appointed Smt. Ajitha Jamema Gabriel as HSST (English) w.e.f. 03/06/2013 without holding Selection Committee in the presence of a Government Nominee. In the above circumstances the proposal for the approval of appointment Smt. Ajitha Jamema Gabriel as HSST (English) w.e.f. 03/03/2013 is declined approval. The appointment Order with Service Book and Qualification Certificates are returned to the Manager. ” (emphasis supplied) b) The petitioner contends that the stand taken by the respondents while declining approval cannot be sustained under law. Being aggrieved, Ext.P4 appeal was preferred. However, no orders have been passed to date. The petitioner asserts that thereafter, the manager constituted a fresh selection committee, as insisted by the respondents, and appointed the petitioner. The said proposal was forwarded and, by Ext.P6 order dated **WP(C) NO. 12798 OF 2021** **5** 03.08.2016, approval was granted with effect from 01.06.2016. c) The petitioner asserts that in the case of one C.V. Narendran, who is similarly placed as the petitioner and whose appointment was made by the same management to the category of HSST (Junior) in Political Science with effect from 30.06.2013, without constituting a selection committee, the Government by Ext.P10 order has granted approval as a special case. The petitioner states that the Government has also come out with Ext.P11 Government Order dated 21.01.2019, wherein the Government has taken the view that while making a ‘by-transfer’ appointment, there is no need to constitute a selection committee by including a Government nominee. The petitioner points out that a certain Smt. Veena, whose appointment was also rejected for non-inclusion of a Government nominee in the selection committee, had approached this Court being aggrieved by the non-grant of approval, and by Ext.P12 judgment, this Court had directed the respondents to reconsider the matter. In terms of the directions so issued, by Ext.P20 order dated 06.06.2022, the 1st respondent has ordered **WP(C) NO. 12798 OF 2021** **6** approval of Smt. Veena to the post of HST (Junior) English with effect from 18.10.2013 to 31.05.2016. The petitioner states that she retired from service on superannuation on 31.05.2020 while she was working as HSST (English). The petitioner states that she has been denied the salary in the revised scale of pay attached to the post of HSST for the period from 01.06.2016 till the date of retirement in view of the non-grant of approval for the earlier period. She also states that she has been denied her salary for the last five months preceding her retirement, and her pension has also not been sanctioned. It is in the afore circumstances that this writ petition is filed seeking the following reliefs: i. call for the records leading to Ext.P3 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. ii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 4 to approve the appointment of the petitioner as H.S.S.T. in English in Schools under the 5th respondent w.e.f. 03.06.2013 **WP(C) NO. 12798 OF 2021** **7** and grant her all consequential service and monetary benefits including arrears of pay and allowances forthwith. iii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to grant the petitioner all service and monetary benefits including salary and allowances in the scale of pay attached to the post of H.S.S.T, for the period from 03.06.2013 to 31.05.2020, with proper fixations from time to time forthwith. iv. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to forthwith sanction, authorise and disburse monthly pension and all other retirement benefits including DCRG to the petitioner treating the petitioner as H.S.S.T. in English w.e.f. 03.06.2013 with interest at the rate of 12% per annum w.e.f. the date on which they fell due till the date of payment. 3. Sri. Peter Jose Christo, the learned counsel appearing for the petitioner, submitted that the non-grant of approval cannot be sustained **WP(C) NO. 12798 OF 2021** **8** under law, and reference is made to the observations made by this Court in Jollyamma V Thomas v. State of Kerala and others [Neutral Citation No.2022/KER/58659]. It is further submitted that by an interim order dated 09.07.2021, this Court had directed the 6th respondent to immediately sanction and disburse the provisional pension to the petitioner, and the same has been granted. The rest of the benefits have not been disbursed to date, contends the learned counsel. 4. I have heard Sri.Rajasekharan Nair, the learned counsel appearing for the manager and the learned Government Pleader. 5. The question whether a selection committee consisting of a Government nominee is to be constituted while carrying out appointment by ‘by-transfer’ mode was considered by this Court in Jollyamma V Thomas (supra) . It would be apposite to refer to paragraphs No.6 to 11 of the judgment, which reads as under: 6. Chapter XXXII Rule 4(2) of the KER deals with the method of appointment to the post of HSST. The provision provides that the post of Higher Secondary School Teacher is to be filled up first by **WP(C) NO. 12798 OF 2021** **9** transfer from Junior Lecturer in the subject concerned under the Management/Higher Secondary School Teacher (Jr.). In the absence of qualified hands under clause (1) above, the vacancy is to be apportioned in the ratio 1:3 between appointment by transfer and direct appointment in the manner mentioned in the Rule. As per Rule 4(2), (2)(i)(a), in the absence of qualified hands under clause (1), the method of appointment is to be by transfer from High School Assistants who possess the requisite qualifications under the educational agencies. In the absence of qualified hands under (a) above, the appointment has to be by transfer from qualified Upper Primary School Assistant/Lower Primary School Assistants who possess the requisite qualification in the subject concerned under the educational agencies and by direct appointment. Note (i) under Rule 4(2) is of some relevance. It says that 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 appointment. Note (ii) provides that appointments under item (i) above shall be made from a select list of qualified persons prepared based on seniority and merit. 7. The General Education (T) Department has issued G.O.(Ms) No. 162/98 G.Edn. dated 13.5.1998 detailing the manner in which the post of HSST in Government Higher Secondary Schools and Aided Schools are to be filled up. The relevant portion of the order reads thus: **WP(C) NO. 12798 OF 2021** **10** “1 ...................... 2. The posts of Higher Secondary School teachers in Government Higher Secondary Schools and Aided Higher Secondary Schools will be filled up as follows: - i. 25% vacancies will be reserved for appointment from qualified High School Assistants and Primary School Teachers. - ii. The remaining 75% of posts in Government Schools will be filled up by direct recruitment through the Public Service Commission. - iii. Appointments to the 75% vacancies earmarked for direct recruitment in the Aided Higher Secondary Schools will be done by the management. If qualified teachers are not available for appointment as mentioned in item (i) above, the management will fill up such vacancies also by direct recruitment. Selection of candidates for direct recruitment in Aided Higher Secondary Schools will be done by a Staff Selection Committee consisting of the Manager or his representative, the Principal of the School and a Government nominee from the panel of officers consisting of Deputy Director, Education, D.E.O. of the area and DIET **WP(C) NO. 12798 OF 2021** **11** Principal of the District. The management can select a nominee from among the above officers. The above officers are permitted to attend the Staff Selection Committee meeting without further sanction. 8. The Apex Court in Valsala Kumari Devi v Director, Higher Secondary Education , while explaining the expression “subject to seniority and suitability,” observed that the expression does not mean the comparative assessment of suitability and it only means the suitability for the particular post and the suitability is related to the prescribed qualification and requisite experience. 9. The solitary reason stated in Exhibit P6 order, while refusing approval, is that the appointment of the petitioner was without constituting a selection committee by including a Government Nominee and, therefore, against the appointment rules and regulations. As rightly submitted by the learned counsel appearing for the petitioner, Exhibit P6 order issued by the Government is clearly against the law settled by this Court and even against earlier Government orders such as Exhibit P7 and P9. 10. The appointment of the petitioner was in the in-service quota set apart for qualified High School teachers and the solitary criteria is seniority. A Division Bench of this Court in W.A.No.280/2020 has held in unmistakable terms that in view of G.O.(Rt.) No 247/2019 dated 21.01.2019 (Exhibit P7) while making by-transfer appointments, there is no need to constitute a selection **WP(C) NO. 12798 OF 2021** **12** committee by including a Government Nominee. All that is required is for the Manager to ensure that the appointment is in terms of the Rules. 11. In view of the settled pronouncements of this Court, and in view of the emphatic assertion of the above proposition in Exhibit P7 Government order, there is no reason why the respondents ignored the same and issued Exhibit P6 order. 6. The observations above will squarely apply to the facts and circumstances of this case. Furthermore, in the instant case, Exts.10, P11, and P20 would reveal that the Government has, in similar circumstances, come to the conclusion that the constitution of a selection committee is not warranted in the case of ‘by-transfer’ appointments. 7. In view of the discussion above, the petitioner is entitled to succeed. Ext.P3 will stand quashed. There will be a direction to respondents 1 to 4 to approve the appointment of the petitioner as HSST (English) in the schools under the management of the 5th respondent with effect from 03.06.2013. There will be a further direction to the above respondents to disburse all consequential benefits, including the salary and **WP(C) NO. 12798 OF 2021 13** allowances in the scale of pay attached to the post of HSST for the period from 03.06.2013 to 31.05.2020, to her. The respondents are further directed to forthwith sanction, authorize and disburse the monthly pension and all other retirement benefits, including DCRG, to the petitioner consequent to the orders issued as above. The entire exercise shall be concluded within three months from the date of receipt of a copy of this judgment. This Writ petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS **WP(C) NO. 12798 OF 2021 14** ## **APPENDIX OF WP(C) 12798/2021** |PETITIONER(S) EXHIBITS :|PETITIONER(S) EXHIBITS :| |---|---| |EXHIBIT P13|TRUE COPY OF THE LETTER DATED 23-07-2013| ||SENT BY THE PETITIONER TO THE 3RD| ||RESPONDENT.| |Exhibit P1|TRUE COPY OF ORDER NO. CM/CSI/80/2013| ||DATED 31-05-2013 OF THE 5TH RESPONDENT.| |Exhibit P 1(a)|TRUE COPY OF THE APPOINTMENT ORDER DATED| ||03-06-2013 ISSUED BY THE 5TH RESPONDENT.| |Exhibit P2|TRUE COPY OF THE LETTER NO. CM/CSI/80/| ||2013 DATED 16-01-2015 OF THE 5TH| ||RESPONDENT| |Exhibit P3|TRUE COPY OF THE ORDER NO.| ||A6/7790/RDDKNR DATED 07-02-2015 OF THE| ||4TH RESPONDENT| |Exhibit P4|TRUE COPY OF APPEAL DATED 28-02-2015| ||SUBMITTED BY THE 5TH RESPONDENT TO THE| ||3RD RESPONDENT| |Exhibit P5|TRUE COPY OF THE LETTER NO.| ||A6/7790/R.D.D DATED 19-08-2015 OF THE| ||4TH RESPONDENT.| |Exhibit P6|TRUE COPY OF THE ORDER NO.| ||A6/3292/RDDKNR/16 DATED 03-08-2016 OF| ||THE 4TH RESPONDENT.| |Exhibit P7|TRUE COPY OF THE LETTER NO.| ||CM/CSI/656/16 DATED 08-09-2016 OF THE| ||5TH RESPONDENT| |Exhibit P8|TRUE COPY OF THE REQUEST NO.| ||CM/CSI/42/17 DATED 03-06-2017 OF THE 5TH| ||RESPONDENT| |Exhibit P9|TRUE COPY OF THE PETITION DATED 05-06-| ||2017 FILED BY THE PETITIONER BEFORE THE| ||MINISTER FOR EDUCATION| |Exhibit P10|TRUE COPY OF THE G.O(RT) NO.| ||1992/2018/GEDN DATED 29-05-2018| |Exhibit P11|TRUE COPY OF THE G.O(RT) NO| ||247/2019/G.EDN DATED 21-01-2019| |Exhibit P12|TRUE COPY OF THE JUDGMENT DATED 03-03-| ||2021 IN W.P(C) NO. 40184/2018 OF THIS| ||HON'BLE COURT.| **WP(C) NO. 12798 OF 2021** **15** - EXHIBIT P13 TRUE COPY OF THE LETTER DATED 23-07-2013 SENT BY THE PETITIONER TO THE 3RD RESPONDENT. - Exhibit P14 TRUE COPY OF THE LETTER DATED 30-11-2020 SENT BY THE 7TH RESPONDENT TO THE 3RD RESPONDENT - Exhibit P15 TRUE COPY OF THE LETTER NO. P03/03/2102168862/1021497163/641 DATED 08-02-2021 OF THE 6TH RESPONDENT - Exhibit P16 TRUE COPY OF THE LETTER NO. A3/4938/2020 DATED 30-12-2020 SENT BY THE 3RD RESPONDENT TO THE 6TH RESPONDENT. - Exhibit P17 TRUE COPY OF THE LETTER NO. CM/CSI/42/17 DATED 11-12-2020 FILED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT. - Exhibit P18 TRUE COPY OF THE REQUEST DATED 29-032021 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. - Exhibit P19 TRUE COPY OF THE REQUEST DATED 13-042021 FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. - Exhibit P20 TRUE COPY OF THE G.O.(RT) NO.3430/2022/GEDN DATED 6/6/2022 - RESPONDENT(S) EXHIBITS : NIL