Amrutha M. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944`** ## **`WP(C) NO. 17897 OF 2015`** ## **`PETITIONER/S:`** ``` AMRUTHA M. AGED 23 YEARS LABORATORY ASSISTANT, CHAPPARAPADAVA HIGHER SECONDARY SCHOOL, CHAPPARAPADAVA P.O, KANNUR DISTRICT. 670 581. ``` ``` BY ADVS. SRI.MURALI PALLATH SRI.JAPA BALAN OLIVER SRI.MAHESH V RAMAKRISHNAN ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT (ANNEX), THIRUVANANTHAPURAM 695 001.` - `2 THE DIRECTOR HIGHER SECONDARY EDUCATION DEPARTMENT, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001.` - `3 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION REGIONAL OFFICE, KANNUR 670 001.` - `4 THE MANAGER CHAPPARAPADAVA HIGHER SECONDARY SCHOOL, CHAPPARAPADAVA P.O, KANNUR DISTRICT. 670 581.` - `5 ABDUL SHUKOOR K FULL TIME MENIAL, CHAPPARAPADAVA HIGHER SECONDARY SCHOOL, CHAPPARAPADAVA P.O, KANNUR DISTRICT. 670 581.` - `6 SIDDIQUE M.K FULL TIME MENIAL, CHAPPARAPADAVA HIGHER SECONDARY SCHOOL, CHAPPARAPADAVA P.O, KANNUR DISTRICT. 670` 2- W.P.(C). No. 17897 of 2015 ``` 581. ``` ``` 7SREERAG K FULL TIME MENIAL, CHAPPARAPADAVA HIGHER SECONDARY SCHOOL, CHAPPARAPADAVA P.O, KANNUR DISTRICT. 670 581. ``` ``` BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR ``` ## **`OTHER PRESENT:`** ``` SMT SURY BINOY, SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3- W.P.(C). No. 17897 of 2015 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 17897 of 2015 ============================================================= Dated this the 20[th ] day of February, 2023 ## **JUDGMENT** The above writ petition is filed with following prayers: _“(i) issue a writ of certiorari calling for records leading to Ext. P2, Ext. P6, Ext. P9 orders and quash them._ _(ii) issue a writ of certiorari to quash para (ii) of Ext. P11 Govt.order._ _(iii) Declare that the petitioner is legally entitled for approval as Lab. Asst. from 03.06.2013 onwards._ _(iv) issue a writ of mandamus directing the 3rd respondent to approve the appointment of petitioner as Lab. Asst. from 03.06.2013 onwards.” (sic)_ 2. The petitioner commenced regular service as Laboratory Assistant in Chapparapadava Higher Secondary School in Kannur district from 03.06.2013 onwards. The petitioner is aggrieved by rejection of approval to her appointment as per Exts. P2, P6 and P9 by the 3[rd] , 2[nd] and 1[st] respondents. The ground stated for rejection is that the 2[nd] post of Lab Assistant should be set apart 4- W.P.(C). No. 17897 of 2015 for by-transfer appointment as per Ext. P11 Govt. order. According to the petitioner, Ext. P11 order is executive order and against statutory rules in Chapter XXXII KER and hence it is liable to be set aside. Hence, the percentage fixed for direct recruitment and by transfer appointment in the cadre of Lab Asst. Is 75:25 and hence the 4[th] respondent is bound to make by transfer appointment only when the 4[th] post is sanctioned. According to the petitioner, she is entitled for approval as per statutory rules in KER. The petitioner also submitted that the same point is considered by this Court in **Sabitha Cherian v.** . **State of Kerala and Others [2022 (5) KHC 564]** 3. Heard the counsel for the petitioner and the Government Pleader. I also heard the counsel for respondents 5 to 7. 4. When this writ petition came up for consideration, the counsel for the petitioner submitted that the point raised in this 5- W.P.(C). No. 17897 of 2015 writ petition is covered in favour of the petitioner in **Sabitha Cherian** ’s case (supra). There is no serious dispute on this aspect from the respondents. It will be better to extract the relevant portion of the judgment here: _“29. At the same time, leamed Senior Government Pleader has strongly urged that the abovesaid method of allotting the second sanctioned post to by-transfer appointees has been consistently followed by the Departmental authorities, ever since the issuance of Annexure V GO dated 26.11.2004 and that if a contra position is held by this Court, then it will create inconvenience and disturbance to the administrative arrangements. The answer to the said contention of the respondents is that the rule making authority has not chosen to amend the statutory rules and secondly, statutory rules will certainly prevail over the executive guidelines. However, we should be alive to the concerns of the official respondents, inasmuch as they have taken a stand that on the one hand, the total number of regular posts that could be sanctioned in an aided school will be only two and at the same time, minimal representation should be given for by-transferees as well, taking note of their career advancement. Hence, to deal with the abovesaid plea of the official respondents, we have to take due note of the interpretative approaches based on purposive and contextual interpretation. The Apex Court has held in decisions as in Shailesh_ 6- W.P.(C). No. 17897 of 2015 _Dhairyaman v. Mohan Balakrishna Lulla (2016 (3) SCC 619 para 31 at page 641) that the principle of purposive interpretation or purposive construction is based on the understanding that the Court is supposed to attach that meaning to the provisions which serve the purpose behind such a provision and the basic approach is to ascertain what it decides to accomplish. So also, the contextual approach of interpretation would require that the text of the law will have to be understood in the context of the legal provision. Since, Government has taken a subsequent decision after the promulgation of the statutory rules, that the total number of posts could be only two in each of the aided secondary schools, we are of the view that, in cases where the abovesaid statutory rule applies to such aided schools, the method of appointment should be regulated on the basis of percentage of the arising vacancies. If the Court takes a very rigid stand that the method of recruitment should be regulated solely on the basis of percentage of the total number of posts, then, so long as the total number of posts in aided Higher Secondary School is only two and not more than that, then only direct recruitment alone can be effectuated, as against both the posts in question, irrespective as to the subsequently arising vacancies. Therefore, for reasons, only known to the Government, they have not chosen to amend the statutory rules. Hence, at the same time, the requirement of representation for bytransfer appointees should also be duly reckoned. Hence, we are of the view that, by applying the rule of arising vacancies, where the total number of posts in aided school is only two posts then the first, second and third arising vacancies in a unit of 4 arising_ 7- W.P.(C). No. 17897 of 2015 _vacancies will have to be set apart for direct recruitment and the fourth vacancy in such a unit will have to be set apart for by-transfer appointment. In the instant case, the first post/first vacancy was filled up by direct recruitment. The second post was sanctioned by Annexure I G.O. dated 15.05.2013 and the same was filled up by appointing the petitioner in the direct recruitment quota. So, the appointment of the petitioner should be reckoned as being made in the second arising vacancy/second post. Even if the abovesaid interpretation is accepted, the second arising vacancy will have to go for direct recruitment. Hence, we are of the view that, in the facts of the present case, irrespective as to whether the method of appointment will have to be computed on the basis of percentage of the total number of posts or on the basis of percentage of the arising vacancies, the rejection of the approval of the petitioner, as per the impugned orders, cannot legally be sustained. The plea of the official respondents that the second post/second vacancy should necessarily go for bytransfer appointments cannot be countenanced or acceded to, in any view of the matter, so long as the statutory rules are not amended. The abovesaid issue may not pose any serious problem in working out the percentage of the total number of posts in Government schools inasmuch as the total number of sanctioned posts of Laboratory Assistants in the District concerned, which is the unit of appointment, will be a relatively much larger number and the 75% and 25% quotas can be worked out very easily as against the said sanctioned number of posts._ 8- W.P.(C). No. 17897 of 2015 _30. The upshot of the above discussion is that this Court is of the view that, for the purpose of harmonising the conflicting claims, in a case where the total number of sanctioned posts of Laboratory Assistant in an aided Higher Secondary School is only two posts, then the only way to reconcile the conflicting claims would be by adopting the method of percentage of arising vacancies, so that the first, second and third vacancies in a unit of 4 arising vacancies will have to go for direct recruitment and the fourth vacancy in such a unit will have to be utilized for by-transfer appointment._ _31. Learned senior Government Pleader would point out that the abovesaid declaration made by this Court may pose serious problems for administration, inasmuch as the consistent view of the departmental authorities, ever since the issuance of Annexure VG.O. dated 26.11.2004, was that the second post should necessarily go for bytransfer appointment and many appointments have already been approved etc. If, as a matter of fact, appointments made on the basis of Annexure V G.O. have already been regularized and approved and the same has attained finality, then there is no question of any such finalized appointment process being disturbed by the declaration of law made by us now. It is trite that the declaration of law made by a constitutional Court cannot have the effect of unsettling past claims which are already barred by res judicata, estoppel, delay, laches, acquiescence etc and the same can have effect only as on pending claims. It is well settled that the declaration of law of this nature cannot have the effect of resurrecting stale and time barred_ 9- W.P.(C). No. 17897 of 2015 _claims. Hence, the abovesaid apprehension raised by the official respondents may not be very serious. So also, nothing in this judgment will prevent the competent authority among the official respondents to effect amendment of the rules so as to mandate that, in a case where the total number of posts of Laboratory Assistants in an aided Higher Secondary School is only two posts, then the first vacancies/first post should necessarily go for direct recruitment and the second post can go only for bytransfer appointment and the next two vacancies in a unit of 4 vacancies will go for direct recruitment, so as to maintain 75% to 25% requirement, etc. So long as the rules are not amended, the abovesaid executive guidelines cannot have overriding effect over the statutory rules.”_ 5. In the light of the above principle, I think the impugned orders can be set aside and the 3[rd] respondent can be directed to pass consequential orders. Therefore, this writ petition is allowed in the following manner: 1. Exts.P2, P6 and P9 are quashed. The 3[rd] respondent is directed to approve the appointment of the petitioner, in the light of the principle laid down by this Court in **Sabitha Cherian v. State of Kerala and Others** 10- W.P.(C). No. 17897 of 2015 **[2022 (5) KHC 564],** if proposal submitted for approval is otherwise in order. 2. The above exercise shall be completed by the 3[rd] respondent, as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment. 3. The consequential benefits, based on the above order shall be disbursed to the petitioner, as expeditiously as possible at any rate within two months from the date on which the approval order is passed, as directed above. SD/- ## **P.V.KUNHIKRISHNAN JUDGE** das 11- W.P.(C). No. 17897 of 2015 ## **`APPENDIX OF WP(C) 17897/2015`** ``` PETITIONER EXHIBITS Exhibit P1COPY OF APPOINTMENT ORDER DATED 3.6.13 ISSUED BY 4TH RESPONDENT. ``` - `Exhibit P2 COPY OF ORDER NO.A7/174/2014 DATED 25.3.14 ISSUED BY THE 3RD RESPONDENT.` - `Exhibit P3 COPY OF APPEAL PETITION DATED 24.4.14 SUBMITTED BY 4TH RESPONDENT.` - `Exhibit P4 COPY OF ARGUMENT NOTES SUBMITTED BY THE 4TH RESPONDENT.` - `Exhibit P5 COPY OF ARGUMENT NOTES SUBMITTED BY THE PETITIONER.` - `Exhibit P6 COPY OF ORDER NO.ACD.A1/19456/2014/HSE DATED 13.10.14.` - `Exhibit P7 COPY OF REVISION PETITION FILED BY THE 4TH RESPONDENT.` - `Exhibit P8 COPY OF REVISION PETITION FILED BY THE PETITIONER.` - `Exhibit P9 COPY OF GOVERNMENT LETTER NO.65613/T1/2014.G.EDN DATED 12.2.15.` - `Exhibit P10 COPY OF G.O(MS)NO.79/2003/G.EDN DATED 28.3.03.` - `Exhibit P11 COPY OF G.O(MS)NO.354/2004/G.EDN DATED 26.11.04.` - `Exhibit P12 TRUE COPY OF RELINQUISHMENT LETTER DATED 08.02.2022 SUBMITTED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT.` - `Exhibit P13 TRUE COPY OF RELINQUISHMENT LETTER DATED 09.02.2022 SUBMITTED BY THE 6TH RESPONDENT TO THE 4TH RESPONDENT.` ``` Exhibit P14TRUE COPY OF THE RELINQUISHMENT LETTER DATED 26.02.2022 SUBMITTED BY THE 7TH RESPONDENT TO THE 4TH RESPONDENT. Exhibit P15TRUE COPY OF 2022(5)KHC 564 ```