IQBAL Higher Secondary School, Ajanur v. Saritha P.V. and Others

**'CR'** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** ## **WA.No.868 of 2019** **AGAINST THE JUDGMENT DATED 25.01.2019 IN WP(C) 37501/2017 of HIGHCOURT** ## **APPELLANT/S:** **THE MANAGER** **IQBAL HIGHER SECONDARY SCHOOL, AJANUR, P.O.KOLAVAYAL, KANHANGAD, KASARGOD- 671531.** **BY ADVS. SRI.K.JAJU BABU (SR.) KUM.NEETU VINOD SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENT/S:** |**1**|**SMT.SARITHA.P.V**| |---|---| ||**AGED 38 YEARS**| ||**W/O.VINOD KUMAR M.K.,**| ||**HIGHER SECONDARY SCHOOL ASSISTANT (ENGLISH),**| ||**IQBAL HIGHER SECONDARY SCHOOL, AJANUR, P.O.KOLAVAYAL,**| ||**KASARGOD- 671531.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA,**| ||**GENERAL EDUCATION DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM- 695001.**| |**3**|**THE DIRECTOR,**| ||**HIGHER SECONDARY EDUCATION DEPARTMENT,**| ||**HOUSING BOARD BUILDING, SANTHI NAGAR,**| ||**THIRUVANANTHAPURAM- 695001.**| |**4**|**THE REGIONAL DEPUTY DIRECTOR,**| ||**HIGHER SECONDARY EDUCATION DEPARTMENT,**| ||**REGIONAL OFFICE, PAYYAMBALAM P.O.,**| **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 2 ## **KANNUR- 670001.** **5 ELIZABETH KURIAKOSE, HIGHER SECONDARY SCHOOL TEACHER (HSST) (ENGLISH) (UNAPPROVED), IQBAL HSS, AJANUR, P.O.KOLAVAYAL, KASARAGOD-671531.** **BY ADVS.** **SRI.M.SASINDRAN SRI.A.J.VARGHESE SR. GOVERNMENT PLEADER (BY ORDER) S.P.ARAVINDAKSHAN PILLAY (BY ORDER)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, ALONG WITH WA.878/2019, WA.880/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** ## **WA.No.878 of 2019** **AGAINST THE JUDGMENT DATED 25.01.2019 IN WP(C) 38408/2017 of HIGHCOURT** ## **APPELLANT/S:** |**1**|**THE MANAGER,**| |---|---| ||**IQBAL HIGHER SECONDARY SCHOOL, AJANUR,**| ||**P.O.KOLAVAYAL, KASARGOD- 671531.**| |**2**|**ELIZABETH KURIAKOSE,**| ||**HIGHER SECONDARY SCHOOL TEACHER (ENGLISH),**| ||**IQBAL HIGHER SECONDARY SCHOOL, AJANUR,**| ||**P.O.KOLAVAYAL, KASARGOD- 671531.**| **BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI KUM.NEETU VINOD** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA,**| ||**GENERAL EDUCATION DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM- 695001.**| |**2**|**THE DIRECTOR OF HIGHER SECONDARY EDUCATION,**| ||**HOUSING BOARD BUILDING, SANTHI NAGAR,**| **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 4 ## **THIRUVANANTHAPURAM- 695001.** - **3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KANNUR- 670001.** **4 SMT.P.V.SARITHA, HIGHER SCHOOL ASSISTANT (ENGLISH), IQBAL HIGHER SECONDARY SCHOOL, AJANUR, P.O.KOLAVAYAL, KASARGOD- 671531.** **5 SRI.R.ASSIS, HIGHER SCHOOL ASSISTANT (ENGLISH), IQBAL HIGHER SECONDARY SCHOOL, AJANUR, P.O.KOLAVAYAL, KASARGOD- 671531.** **BY ADVS. SRI.M.SASINDRAN** **SR.GP SRI.A.J.VARGHESE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, ALONG WITH WA.880/2019, WA.868/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 5 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** **WA.No.880 of 2019** **AGAINST THE JUDGMENT DATED25.01.2019 IN WP(C) 37501/2017 of HIGHCOURT** ## **APPELLANT/S:** **ELIZABETH KURIAKOSE HIGHER SECONDARY SCHOOL TEACHER (HSST)(ENGLISH) (UNAPPROVED),IQBAL HSS, AJANUR, PO KOLAVAYAL, KASARAGOD-671531** **BY ADVS. S P ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.S.A.ANAND SRI.V.VARGHESE** ## **RESPONDENT/S:** **1 SARITHA P V AGED 38 YEARS W/O.VINOD KUMAR M.K., HIGH SCHOOL ASSISTANT (ENGLISH) IQBAL HIGHER SECONDARY SCHOOL AJANUR, PO KOLAVAYAL, KASARAGOD-671531.** **2 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA GENERAL EDUCATION DEPARTMENT,** **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 6 **GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **3 THE DIRECTOR, HIGHER SECONDARY EDUCATION DEPARTMENT, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695001.** - **4 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION DEPARTMENT REGIONAL OFFICE, PAYYAMBALAM PO, KANNUR-670001** - **5 THE MANAGER** **IQBAL HIGHER SECONDARY SCHOOL AJANUR, PO KOLAVAYAL, KANHANGAD, KASARAGOD-671531.** **BY ADVS.** **SRI. A.J.VARGHESE, SR.GOVERNMENT PLEADER SRI,ARAVINDAKSHAN PILLAI(BY ORDER) SRI.M.SASINDRAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, ALONG WITH WA.868/2019, WA.878/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 7 **'CR'** ## **JUDGMENT** ## **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** ## **K.VINOD CHANDRAN.J.** Two appeals by the Manager and one by the teacher, who lost before the learned Single Judge. We will refer to the parties by their names. 2. Elizabeth Kuriakose, was appointed as an Higher Secondary School Teacher [HSST] (English), by direct recruitment to the Iqbal Higher Secondary School, Ajanur. Saritha P.V, who was working as H.S.A in the said school claimed that the appointment ought to have been made, by-transfer from qualified High School Assistants(HSA); in which case she would be entitled to the post. Saritha P.V was the senior most HSA entitled to the said post. **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 8 3. The learned Single Judge looked at Rule 4 in Chapter XXXII of the Kerala Education Rules (KER) and relying on the ratio 1:3, prescribed for the purpose of appointment of HSST's, when there is no HSST(Jr.) available, held that Saritha P.V. is entitled to the post. The reasoning was that the vacancy, which was filled up by the Manager was the first vacancy that arose after the Rule prescribing the ratio 1:3 was introduced in the K.E.R in 2001. As per the ratio the first vacancy has to be conceded to by-transfer appointment, was the finding. The Manager and the teacher who was appointed by direct recruitment is before us in appeal. 4. Learned Senior Counsel, Sri. Jaju Babu, instructed to appear for the Manager, relies on the judgments of this Court in _**Sreelatha**_ v. _**State of Kerala [2015 (4) KLT) 736 (by one of**_ **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 9 _**us, KVC(J))]**_ , affirmed in _**W.A. No.2609/2015 by judgment dated 19.01.2016**_ and the decision of the Hon'ble Supreme Court in _**V.K.Girija**_ v. _**Reshma Parayil [(2019) 2 SCC 347]**_ . It is contented that there were altogether 15 appointments made in the Higher Secondary School, a list of which is produced at Ext.P9. Eleven HSST's were promoted from the post of HSST (Jr.) and one HSST (Jr.) (Arabic) is remaining as such. There were three appointments made from the cadre of HSA's to the post of HSST and hence this is the 4[th] vacancy arising. The 4[th] vacancy as per the ratio 1:3 has to be conceded for direct recruitment, is the contention. Sri.Aravindakshan Pillai, the learned Counsel appearing for the direct recruit adopts the contention raised by the Manager. ## **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 10 5. Sri.M.Sasindran, learned Counsel appearing for the HSA, however points out that if such an understanding of the rule is accepted, then necessarily, it would result in the rule having retrospective effect, which has not been provided in the K.E.R. When introducing the rule, the executive was careful not to provide for a retrospective effect and hence it can only have a prospective effect. If a prospective effect is given to the rule, then the vacancy is the first one arising after the rule came into force and this will have to be conceded to by- transfer appointment as per the ratio. 6. It is also pointed out that Muhammed Haneefa and M.Mohanan, who are said to be appointed by-transfer are no more in service, having superannuated. With respect to Muhammed Haneefa, he was appointed in 1991, when there **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 11 was no ratio applicable. It was only in the year 1998 that the ratio of 25:75 between by-transfer appointments and direct recruitment was brought in by a Government Order. Aniamma Thomas, again who was appointed as an HSST in the year 1991 had been continuing as an H.S.A only for 14 days. Hence, her appointment also cannot be said to be a by-transfer appointment. In such circumstances, the vacancy arising has to be conceded to HSA's for by-transfer appointment, is the argument. 7. We have gone through the judgments placed before us by the learned Senior Counsel. The judgment in _**Sreelatha**_ (supara) specifically notice that the ratio is not to be applied to the cadre as such and can only be applied in the absence of qualified HSST(Jr.), by apportioning the vacancies **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 12 arising between by-transfer and direct appointees. The Division Bench affirming the aforesaid decision also found that therein it was the 10[th] vacancy that was being filled up and in such circumstance, the application of the ratio would indicate the same to be conceded to the direct recruit. The Hon'ble Supreme Court in _**Reshma Parayil**_ (supra) also declared that the ratio of 1:3 is not to be applied on the cadre and has to be applied on the vacancies arising in the school. We only respectfully add that, there could have been no ratio applied to the cadre since obviously, the cadre is consisting of persons from three different sources, the HSST (Jr.), H.S.As and direct recruitees. The ratio applicable to HSA and direct recruitment, will have application only when an appointment is made to a vacancy, by reason of the absence of HSST(Jr.). ## **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 13 8. We would first address the contention of the Senior Counsel Sri. M.Sasindran that, if such an undertaking is given, the Rule would have retrospective effect. We beg to differ, insofar as the application of the rule arises when the vacancy occurred after the rule came into force. Which ever appointments made earlier, cannot be disrupted by reason of the ratio of 1:3 and only if such a disturbance is caused, it could be said that there is a retrospective application to the rule. As far as Saritha P.V. is concerned, her claim has to be considered on the basis of 1:3 ratio, which rule was in force at the time when the vacancy arose; ie., on 01.06.2015, when the earlier incumbent resigned from the said post. 9. Viewed in the said perspective, we have to look at the appointments made to the school ## **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 14 over the years to determine as to whom this particular vacancy is available. Here we also have to notice that earlier there was a quota of 25:75 as against by-transfer and direct recruits. Eleven persons shown in the list at Ext.P9/2 were promoted as HSST from the post of HSST(Jr.). Hence, the said vacancies filled up from HSST(Jr.) posts can have no relevance to the consideration of the ratio; which is applicable only to vacancies filled up in the absence of HSST(Jr.). There is also one person, continuing as an HSST (Jr.), which also is not relevant for the application of the ratio. 10. Now we come to the three appointments said to have been made by the Management to the post of HSST on by transfer appointment from H.S.A's. Mohammed Haneefa and Aniamma Thomas were appointed in 1991. Admittedly, ## **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 15 there was no ratio applicable then. The earlier ratio prescribed of 25:75 was introduced only in the year 1998. But, however, that does not deviate from the fact that both the appointments were to regular posts and they continued as regular HSST's. As to M.Mohanan, appointed as HSST; retired from the post. We have to look at the vacancy position on the basis of the above facts. The vacancy now sought to be filled up is the fourth vacancy arising, which was entitled to be filled up by direct recruitment. The Manager has resorted to direct recruitment, according to us, correctly, considering the vacancy position. In such circumstance, we set aside the judgment of the learned Single Judge and find the direct recruitment made to the fourth vacancy to be proper and correct. The Manager has undertaken in the writ appeals **[WA 868/2019 ,WA.878/2019 ,WA.880/2019]** 16 that the next available vacancy will be given to Saritha P.V. Even otherwise, the 5[th] vacancy will be entitled to a by-transfer appointment, going by the ratio. With the above reservation, the writ appeals are allowed. The concurrent orders of the statutory authorities, which found in favour of Saritha P.V. would stand set aside. The appointment by direct recruitment of Elizabeth Kuriakose, will be approved in accordance with our directions, subject to her appointment being found proper otherwise, within a period of two months from today. No order as to costs. ## **Sd/-** ## **K.VINOD CHANDRAN** ## **JUDGE** **Sd/-** ## **V.G.ARUN** SB/18/07/2019 **JUDGE**