Divina P.T. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V ``` ``` WEDNESDAY, THE 18[TH]DAY OF JANUARY 2023 / 28TH POUSHA,1944 ``` ## **`WP(C) NO. 24254 OF 2021`** ## **`PETITIONER/S:`** ``` DIVINA P.T. AGED 38 YEARS W/O SOORAJ, NANDAVANAM, MAMBA, ANJARAKANDY, KANNUR-670611. BY ADVS. V.V.NANDAGOPAL NAMBIAR SMITHA (EZHUPUNNA) DHEERAJ KRISHNAN PEROT CHITRA JOHNSON ``` ## **`RESPONDENT/S:`** ``` 1THE STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, (HIGHER SECONDARY WING), HOUSING BOARD BUILDING, THIRUVANANTHAPURAM-695001. 3THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, THAVAKKARA, KANNUR, KERALA-670002. ``` W.P.(C) No.24254 of 2021 2 ``` 4THE MANAGER ANJARAKKANDY HIGHER SECONDARY SCHOOL, P.O.MAMBA, KANNUR-670611. ``` ``` BY ADVS. ADVOCATE GENERAL OFFICE KERALA POOVAMULLE PARAMBIL ABDULKAREEM BY SMT. ANIMA, GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.24254 of 2021 3 ## **JUDGMENT** The petitioner has approached this Court seeking issuance of a writ of mandamus directing the respondents to approve the appointment of the petitioner to the post of HSST (Commerce) (Jr.) made as per Ext.P1 appointment order and for disbursal of the consequential benefits. 2. Short facts are as under: The petitioner states that there were 9 sanctioned posts in the Anjarakandy Higher Secondary School, Mamba, an aided school under the management of the 4th respondent. While so, the Government sanctioned four more posts for the academic year 2019-2020. For the very same academic year, a vacancy arose on account of retirement as well. To fill up the vacancies, the manager invited applications to the post of HSST (Commerce) (Jr.) by direct recruitment. After conducting a due process of selection, the petitioner was appointed as the sole direct recruitee. For the remaining four posts, the 4th respondent appointed teachers by resorting to the by-transfer mode. 3. Ext.P1 appointment order of the petitioner was forwarded to the 3rd respondent for approval. But the same was rejected by Ext.P2 on the ground that by appointing four teachers by ‘by-transfer’, the quota as stipulated in Rule 4(3) of Chapter XXXII of KER has been exceeded. W.P.(C) No.24254 of 2021 4 4. The petitioner states that the post of HSST (Commerce) (Jr.) was to be filled by direct recruitment, and no qualified candidates were available under the 4th respondent for by-transfer appointment to the said post. The petitioner asserts that as the respondents have no case that the appointment of the petitioner in the Direct Recruitment quota exceeds 75% of the total appointments made, the rejection of approval issued by the 3rd respondent cannot be sustained. Though an appeal was preferred before the 2nd respondent, the order issued by the 3rd respondent was confirmed. Challenging the said order, the petitioner preferred a revision petition before the 1st respondent. The 1st respondent, by Ext.P6 order, directed the 2nd respondent to consider the grant of approval if the appointment is made in accordance with the KER. However, by Ext.P7 order, approval was again declined. Challenging the orders refusing the grant of approval, the petitioner has approached this Court seeking the following reliefs: - i) Issue Writ of Mandamus or other appropriate order or direction commanding the respondents to approve the Appointment of petitioner to the post of HSST Commerce (Junior) as per Exhibit P1. - ii) Issue a writ of certiorari or other appropriate Writ, order or direction calling for records relating to Ext.P2, P4 and P7 and quash the same. - iii) To hold that petitioner is entitled to be appointed as HSST Commerce (junior) in the 4th respondent school as per Exhibit P1. W.P.(C) No.24254 of 2021 5 - iv) To issue a writ of mandamus or any other appropriate or order directing respondents to disburse salary and allowances to the petitioner in the post of HSST Commerce (Junior) with effect from 15.7.2019. 5. In the counter affidavit filed by the 3rd respondent, it is stated that the approval was rejected as the appointments made by the manager in the ‘by-transfer’ category exceeded the quota. It is stated that in terms of the rules, 25% of HSST (Junior) posts have to be filled through ‘by-transfer’ and 75% by direct recruitment, and it would not be proper to grant approval only to direct appointment without filling up the ‘by-transfer quota.’ It is also stated that if approval was granted to the petitioner, it might lead to seniority issues. 6. I have considered the submissions advanced and have gone through the records. 7. I find that, as against five vacancies that arose, the manager proceeded to appoint four persons in the by-transfer quota and one person towards the quota earmarked for direct recruitment. In terms of Rule 4(3) of Chapter XXIII of the KER, 25% of the posts will have to be filled up by by-transfer appointment from qualified HSSTs, and 75% has to be filled up by direct recruitment. The by-transfer appointees have already approached this Court and have filed W.P.(C) Nos.24895/2021 and 29673/2021, challenging the orders declining approval. W.P.(C) No.24254 of 2021 6 8. The issue raised in this writ petition can be considered in the light of Rule 4 of Chapter XXXII of the Kerala Education Rules, which reads as follows : 4. Method of Appointment:- Appointment to the various categories specified in Column (2) of the Table below shall be made by the method of appointment specified against each in column (3) thereof TABLE |||TABLE| |---|---|---| |Sl. No|Category|Method of Appointment| |1.<br>2.<br>3.|xxxxxxxx<br>Xxxxxxxxxxx<br>Higher<br>Secondary<br>School Teacher<br>(Junior)<br>Note:-|xxxxxxxxxxxxxxxxxx<br>xxxxxxxxxxx<br>1. (1) By transfer from qualified High School Assistants in the<br>subject concerned under the Educational Agency.<br>(i) In the absence of qualified hands under item (1) above, by<br>transfer from qualified Upper Primary School Assistants /<br>Lower Primary School Assistants in the subject concerned<br>under the Educational Agency.<br>2.<br>By direct appointment<br>(i) 25% of the total posts shall be filled up by the method<br>specified in item (l) above on seniority-cum suitability basis<br>and 75% of such post shall be filled up by direct appointment.<br>(ii) When qualified persons are not available to fill up the<br>vacancies set apart for appointment by transfer under item 1<br>above,<br>such<br>vacancies<br>also<br>shall<br>be<br>allotted<br>for<br>direct<br>appointment.| W.P.(C) No.24254 of 2021 7 9. A perusal of Rule 4(3) would reveal that the post of Higher Secondary School Teacher (Jr.) is to be filled up ‘by transfer’ from qualified High School Assistants in the subject concerned. In the absence of qualified hands, ‘by transfer’ from qualified Upper Primary School Assistants/Lower Primary School Assistants in the subjects concerned under the educational agency. For filling up the posts in the subjects concerned, direct recruitment is also provided as one mode of recruitment. Note (i) provides that 25% of the total posts shall be filled up by the method specified in Item No. (1) above on a seniority cum suitability basis, and 75% of such posts shall be filled up by direct recruitment. The Apex Court in **V.K. Girija v. Reshma Parayil and Others** [(2019) 2 SCC 347] have held that the computation of 25% and 75% is to be based on the total post of Higher Secondary School Teacher (Jr.). 10. In the instant case, only one post has been filled up by direct recruitment, which is well within the quota earmarked for the category. Furthermore, for the post of HSST (Commerce) (Jr.), no qualified candidates were available under the 4th respondent for ‘by transfer’ appointment. Direct recruitees and by-transfer appointees are distinct and different classes, and their criteria for appointment are different. In that view of the matter, the action of the Manager in exceeding the quota in terms of by-transfer W.P.(C) No.24254 of 2021 8 appointments cannot preclude the approval of the appointment of the petitioner. 11. I am also not impressed with the contention that the grant of approval of the petitioner would lead to seniority issues. The records reveal that the appointment of the petitioner was on 15.07.2019 as per Ext.P1 order, and the appointments of the by-transfer appointees were on 07.06.2019. In that view of the matter, there is no likelihood of any dispute with regard to seniority arising in the future. As the appointment of the petitioner did not exceed the quota for direct recruitees, and as the dispute is only with regard to the exceeding of the quota for by transfer appointees, I am of the view that there was no legal justification on the part of the respondents in rejecting the proposal for approval of the petitioner. In view of the discussion above, the petitioner is entitled to succeed. 12. Resultantly, Exts.P2, P4 and P7 will stand quashed. There will be a direction to the respondents to consider the proposal submitted by the Manager for approval of the appointment of the petitioner and grant orders of approval, in the light of the directions above, expeditiously, within two months from the date of receipt of a copy of the judgment. On grant of approval, the petitioner W.P.(C) No.24254 of 2021 9 shall also be entitled to the salary and other benefits, which shall also be disbursed to the petitioner without delay. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS W.P.(C) No.24254 of 2021 10 ## **`APPENDIX OF WP(C) 24254/2021`** ``` PETITIONER(S) EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE APPOINTMENT ORDER DATED 15.07.2019 ISSUED BY THE 4TH RESPONDENT. Exhibit P2TRUE COPY OF THE LETTER NO.A7/5493/2019 DATED 05.11.2019 ISSUED BY THE 3RD RESPONDENT. ``` ``` Exhibit P3TRUE COPY OF THE APPEAL MEMORANDUM DATED 15.11.2019. Exhibit P4TRUE COPY OF THE ORDER NO.ACD.A1/166410/2019/HSE DATED 26.08.2020. Exhibit P5TRUE COPY OF THE REVISION PETITION DATED 28.09.2020. Exhibit P6TRUE COPY OF THE COMMUNICATION DATED 04.03.2021 NO.T.2/16/2021/GENEDN. Exhibit P7TRUE COPY OF THE ORDER NO.B3/1832/2021/KDS DATED 17.09.2021. ``` ``` RESPONDENT(S) EXHIBITS : ``` ``` Exhibit R3(A)TRUE COPY OF GO(RT) NO.2027/2021/G.EDN DATED 01.03.2021 GENERAL EDUCATION DEPARTMENT ```