IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 18TH DAY OF JUNE 2014/28TH JYAISHTA, 1936
## **WP(C).No. 30729 of 2011 (M)**
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PETITIONER(S): ----------------
BINI KRISHNAN, D/O.RAMAKRISHNAN, THOMBIL, CHANTHAPARAMB TANUR.
BY ADV. SRI.K.K.MOHAMED RAVUF
RESPONDENTS:
---------------
1. THE MANAGER, S.S.M.H.S. SCHOOL, THAYYALINGAL, TIRUR TALUK, MALAPPURAM DISTRICT-676 320. 2. THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, KOZHIKODE. 3. SVETLANA D BHAI, H.S.S.T, S.S.M.H.S. SCHOOL, THEYYALINGAL, TIRUR TALUK MALAPPURAM DISTRICT-676 320. R1,R3 BY ADV. SRI.V.A.MUHAMMED BY ADV. SRI.K.E.HAMZA R2 BY ADV. GOVERNMENT PLEADER MR.VIJU THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
**APPENDIX**
## **WP(C).No. 30729 of 2011 (M)**
## **PETITIONER'S EXHIBITS:**
- EXT.P1 : TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK
- EXT.P2 : TRUE COPY OF THE APPLICAION TO THE 1ST RESPONDENT DATED 25.02.2010
- EXT.P3 : TRUE COPY OF THE APPLICATION DATED 25.02.2010 TO THE 2ND RESPONDENT
- EXT.P4 : TRUE COPY OF THE QUESTIONNAIR MADE UNDER THE RTI ACT.
- EXT.P5 : TRUE COPY OF THE REPLY. EXT.P6 : TRUE COPY OF THE COMPLAINT DATED 26.08.2010. EXT.P7 : TRUE COPY OF THE LETTER DATED 04.07.2011 FILED UNDER THE RTI ACT.
- EXT.P8 : TRUE COPY OF THE REPLY DATED 02.08.2011 EXT.P9 : TRUE COPY OF THE LETTER SEEKING CLARIFICATION FROM THE 1ST RESPONDENT BY THE 2ND RESPONENT REGARDING THE APPOINTMENT OF THE 3RD RESPONDENT DATED 08.03.2011.
- EXT.P10 : TRUE COPY OF THE EXPLANATION SOUGHT FRO THE 1ST RESPONDENT BY THE 2ND RESPONDENT ON THE COMPLAINT DATED 27.07.2011
- EXT.P11 : TRUE COPY OF THE LETTER DATED 24.08.2011 EXT.P12 : TRUE COPY OF THE REPLY DATED 20.09.2011 EXT.P13 : TRUE COPY OF THE RELEVANT ENTRY IN THE SERVICE BOOK OF THE PETITIONER
- EXT.P14 : TRUE COPY OF THE CERTIFICATE DATED 30.01.2004 ISSUED BY THE DEPUTY REGISTRAR, UNIVERSITY OF CALICUT.
## **WP(C).No. 30729 of 2011 (M)**
## **RESPONDENTS' EXHIBITS:**
|EXT.R1(a)|:|TRUE COPY OF THE STAFF FIXATION ORDER 2010-2011|
|---|---|---|
|||DATED 31.08.2010.|
|EXT.R1(b)|:|TRUE COPY OF THE RELEVANT PAGES OF THE ATTENDANCE|
|||REGISTER FOR THE MONTH OF JUNE 2007 AND AUGUST|
|||2007|
|EXT.R1(c)|:|TRUE COPY OF THE RELEVANT PAGES OF THE ATTENDANCE|
|||REGISTER FOR THE MONTH MARCH 2008 AND JUNE 2008.|
|EXT.R1(d)|:|TRUE COPY OF THE RELEVANT PAGES OF ATTENDANCE|
|||REGISTER FOR THE MONTHS MARCH 2009 AND JUNE 2009|
|EXT.R1(e)|:|TRUE COPY OF THE RELEVANT PAGES OF ATTENDANCE|
|||REGISTER FOR THE MONTHS MARCH 2010 AND JUNE 2010|
|EXT.R1(f)|:|TRUE COPY OF THE RELEVANT PAGES OF ATTENDANCE|
|||REGISTER FOR THE MONTHS MARCH 2011 AND JUNE 2011|
|EXT.R1(g)|:|TRUE COPY OF THE COMMUNICATION DATED 03.01.2012|
|||OF THE MANAGER.|
|EXT.R1(h)|:|TRUE COPY OF THE COVERING LETTER OF THE|
|||PETITIONER DATED 5.1.2012.|
|EXT.R1(i)|:|TRUE COPY OF THE B.Ed CERTIFICATE DATED 5.1.2001 OF|
|||THE PETITIONER.|
|EXT.R1(j)|:|TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT|
|||DATED 08.12.2011|
|EXT.R1(k)|:|TRUE COPY OF THE LETTER OF THE MANAGER DATED|
|||03.01.2012|
|EXT.R1(l)|:|TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT|
|||DATED 01.06.2012|
|EXT.R1(m)|:|TRUE COPY OF THE APPEAL MEMORANDUM SUBMITTED|
|||BY THE 1stRESPONDENT BEFORE THE DIRECTOR|
|||DATED 2.07.2012.|
/true copy/
P.S. TO JUDGE.
## **P.R. RAMACHANDRA MENON, J.**
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## **W.P.(C)No.30729 OF 2011**
......................................................................... **Dated this the 18[th] June, 2014**
## **J U D G M E N T**
Non consideration of the claim of the petitioner for appointment as HSST(History) against the eligible extent of 25% reserved for appointment _by transfer_ in the first respondent school, is the subject matter of grievance projected in this writ petition.
2. The petitioner was given employment as HSA (Social Science) having acquired the necessary qualification, (i.e. M.A. History and SET ) in the first respondent school and was continuing as above. It is stated that, by virtue of the credentials of the petitioner, she is eligible to be appointed as HSST (History) in the vacancy arose in the said post on 01.06.2010. Inspite of the better claim of the petitioner, the first respondent/Manager refused to give appointment to the petitioner and on the other hand, chose to fill up the vacancy by way of direct recruitment, giving appointment to the third respondent/Svetlana D.Bhai. Met with the situation, the petitioner filed several representations before the statutory authorities, also seeking not to approve the appointment given to the third respondent and to appoint the
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## **W.P.(C)No.30729 OF 2011**
petitioner. The petitioner has filed Exts.P3 application, followed by Ext.P6 complaint as well in this regard. After considering the grievance projected by the petitioner, the second respondent/Regional Deputy Director, who is the competent authority, sought for certain clarifications from the first respondent vide Ext.P9 dated 08.03.2011. The first respondent did not pay any heed to the same, which made the second respondent to issue Ext.P10 asking for specific particulars, including a detailed list of teachers under the prescribed 25% quota, with explanation in the matter. It is contended that the first respondent paid only scant regards to the same, which made the petitioner to approach this Court by filing this writ petition, seeking for a direction to the second respondent/Regional Director to finalise the proceedings pursuant to Exts.P9 and P10 and also to direct the concerned respondents, particularly respondents 1 and 2, to give appointment to the petitioner and to disburse all consequential benefits.
3. A counter affidavit has been filed by the respondents 1 and 3, also producing copies of some documents as Exts. R1(a) to R1(m). The stand of the first respondent is that the petitioner
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## **W.P.(C)No.30729 OF 2011**
is not actually qualified for the post ; that the petitioner had not produced the relevant documents particularly B.A.Degree Certificate, to substantiate the facts and figures; and also that there was a Division fall by virtue of the subsequent developments in the year 2008. It is also asserted that, in view of Ext.R1(a) Staff Fixation order, the claim of the petitioner is not liable to be entertained. It is also pointed out that the petitioner was appointed against a 'leave vacancy' and was continuing as such. When the vacancy of HSST (History) arose on 01.06.2010, by virtue of the law declared by this Court in _**Indu vs. Sharafudeen**_ ( **2011 (2) KLT 368)** and in view of the specific rule position, persons like the petitioner, who were holding the office, occupying the seat under leave vacancy, were not liable to be considered for appointment by way of transfer.
4. There is a further contention for the first respondent that the required B.Ed qualification has to be in the concerned subject, that too, by way of 'regular study', by virtue of the mandate under Rule 6(2) of Chapter XXXII of KER and that the petitioner does not satisfy the said requirement. Reference is made to the B.Ed certificate, copy of which has been produced as Exts.R1(i).
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## **W.P.(C)No.30729 OF 2011**
5. The version of the first respondent is sought to be rebutted by the learned Counsel for the petitioner with reference to Ext.P14-Equivalency Certificate issued by the concerned University and also with reference to the facts and figures. The learned Counsel for the petitioner submits that the B.Ed qualification acquired by the petitioner is a valid qualification in so far as the said alternate course/qualification is very much specified as contained in the Rule itself.
6. The second respondent/Regional Deputy Director has filed a counter affidavit pointing out that, pursuant to the complaint, the matter was enquired into and that the first respondent/Manager was reluctant to furnish the details, despite the reminder already issued in this regard. It is however pointed out that the enquiry made by the second respondent revealed that the appointment given by the first respondent by way of direct recruitment to the third respondent was not correct or proper and hence appointment of the third respondent was not approved. It is added by the second respondent that proper recruitment has to be effected by the first respondent based on the actual facts and figures.
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## **W.P.(C)No.30729 OF 2011**
7. After hearing both the sides, this Court finds that the proceedings have to be taken to a logical conclusion; more so when the second respondent has clearly clarified as to the factual position leading to non-approval of appointment given by the first respondent to the third respondent. It is necessary to consider the eligibility of the petitioner as well with reference to the qualification required, availability of vacancy, date of arising of the vacancy and satisfaction of such other requirements and whether there is any failure on the part of the first respondent to give appointment to the petitioner, if she is otherwise eligible in accordance with law. Equally important is to see that , if there is any failure on the part of the first respondent, necessary action has to be taken against the first respondent as well; or else, the first respondent has to be set at liberty to proceed with further steps for filling up the post in accordance with law, if a vacancy actually exists.
In the above circumstance, the second respondent is directed to finalise the proceedings in the light of the observations as above. With regard to the residual extent of relief sought for by the petitioner, forming the subject matter of
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## **W.P.(C)No.30729 OF 2011**
Exts.P9 and P10, the said exercise shall be completed in accordance with law, after giving an opportunity of hearing to the petitioner and the first respondent. The proceedings shall be finalised within three months from the date of receipt of a copy of the judgment.
Writ petition is disposed of.
## **P.R.RAMACHANDRA MENON JUDGE**
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