M. Anitha v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942** ## **WP(C).No.38571 OF 2017(V)** ## **PETITIONERS:** **1 M. ANITHA WIFE OF T.P SAJEEVAN, AGED 42 YEARS, HIGH SCHOOL ASSISTANT (HINDI), IRTTY HIGHER SECONDARY SCHOOL, KEEZHOOR, KANNUR - 670 703.** **2 K.K JOSHITH KUMAR SON OF K.K BALAGOPALAN, AGED 42 YEARS, HIGH SCHOOL ASSISTANT (HINDI), IRTTY HIGHER SECONDARY SCHOOL, KEEZHOOR, KANNUR - 670 703.** **BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXURE II THIRUVANANTHAPURAM - 695 001.** **2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM - 695 001.** - **3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KANNUR DISTRICT - 673 002.** - **4 THE MANAGER IRITTY HIGHER SECONDARY SCHOOL, KEEZHOOR, KANNUR - 670 703.** - **5 THE PRINCIPAL IRITTY HIGHER SECONDARY SCHOOL, KEEZHOOR, KANNUR - 670 703.** **WP(C).No.38571 OF 2017** **2** **6 K.P KUNHI NARAYANAN HIGHER SECONDARY SCHOOL TEACHER(HINDI) (UNAPPROVED)IRITTY HIGHER SECONDARY SCHOOL, KEEZHOOR, KANNUR - 670 703. 7 K. SURESHAN HIGHER SECONDARY SCHOOL TEACHER(ENGLISH) (UNAPPROVED) IRITTY HIGHER SECONDARY SCHOOL, KEEZHOOR, KANNUR - 670 703.** **R1, R4 BY ADV. SRI.A.MUHAMMED MUSTHAFA R1, R4, R6-7 BY ADV. SRI.M.P.SREEKRISHNAN SRI.SUNIL KURIAKOSE, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1811-2020, THE COURT ON 22-12-2020 DELIVERED THE FOLLOWING:** **WP(C).No.38571 OF 2017** **3** ## **JUDGMENT** ## 1. This writ petition is filed seeking the following prayers:- - “i) Call for the records relating to Exhibit P-6 and set aside the original of the same by the issue of a writ of certiorari or other appropriate writ or order. ii) issue a writ of mandamus or other appropriate writ order or direction commanding the 4[th] respondent to grant by-transfer appointment to the petitioners as HSST (Hindi) and HSST (English) with effect from 06.08.2011 with all monetary benefits since then.” 2. Heard the learned counsel for the petitioners, the learned Government Pleader and the learned counsel appearing for respondents 4, 6 and 7. 3. The petitioners in this writ petition as well as respondents 6 and 7 were teachers in the School managed by the 4[th] respondent. By Ext.P1 order dated 20.07.2010, the School was upgraded as a Higher Secondary School. 12 posts of HSST Junior and one post of HSST Senior, therefore, became available. Three posts were to be filled up by by-transfer appointment. It is stated that the petitioners were the 2[nd] and 3[rd] senior-most qualified hands in the School. By Ext.P2 **WP(C).No.38571 OF 2017** **4** Government Order dated 24.10.2011, the posts of HSSTs were created in the newly sanctioned Higher Secondary Schools w.e.f. 06.08.2011. Ext.P2(a) is the staff fixation order dated 30.10.2013, which would show that the posts in the Higher Secondary Section were created w.e.f 06.08.2011. It is submitted that though respondents 6 and 7 were seniors to the petitioners, their post graduation results were published only on 07.09.2011 and 16.09.2011 respectively. It is submitted that since they were not qualified as on the date of occurrence of the vacancy i.e., 06.08.2011, the petitioners, though juniors, who had the qualification of Post Graduation, B.Ed and SET were eligible for appointment as HSST (Hindi) (Junior) and HSST (English) respectively. Though the petitioners raised their claims, the said claims were disregarded and the 6[th] and 7[th] respondents were appointed in the posts claimed by the petitioners. By Ext.P3 order dated 16.08.2012, the 3[rd] respondent considered the issue and decided in favour of the petitioners. However, by Ext.P4, the Government considered a revision petition and found that the 6[th] and 7[th] respondents being the senior-most HSAs are liable to be appointed though they acquired the qualification on a subsequent date. The order was challenged in W.P.(C) No.26233 of 2013 by the petitioners **WP(C).No.38571 OF 2017** **5** and Ext.P4(a) counter affidavit was filed in the said writ petition wherein it was admitted that the date of occurrence of vacancies was 06.08.2011. By Ext.P5 judgment, Ext.P4 was set aside on the ground that it was issued without hearing the petitioners. Thereafter, the parties were heard and Ext.P6 order was again passed upholding the right of respondents 6 and 7 for appointment and rejecting the claim of the petitioners. 4. The learned counsel for the petitioners submits that the finding in Ext.P6 is completely perverse and unsustainable. It is contended that the date of occurrence of vacancy being admittedly 06.08.2011 and in view of the fact that the 6[th] and 7[th] respondents were not qualified as on the date of occurrence of the vacancy and the petitioners were fully qualified, the petitioners ought to have been appointed in the respective posts. The decisions of this Court on the issue of consideration of qualifications and eligibility as on the date of occurrence of vacancy are relied on by the learned counsel for the petitioners. A decision of the Apex Court in **Jenany v. Rajeevan** (2010 (2) KLT 630) is also specifically referred to and relied on. 5. A counter affidavit has been placed on record by respondents 6 **WP(C).No.38571 OF 2017** **6** and 7. It is contended that the contesting respondents are admittedly senior to the petitioners in service. It is stated that as per Rule 4 of Chapter XXXII, KER, appointments to the post of HSST Junior have to be effected by transfer from qualified High School Assistants in the subject concerned and in the absence of such qualified hands, by transfer from qualified Upper Primary School Assistant/Lower Primary School Assistants and in their absence by direct recruitment. It is stated that 25% of the total posts are liable to be filled by bytransfer appointments. It is admitted that the results of the MA Examination taken by the 6[th] and 7[th] respondents were declared on 07.09.2011 and 16.09.2011 respectively. It is stated that they had passed the examination held in July and April of 2011 and therefore, the date of examination is liable to be taken into account. It is submitted that the contesting respondents as well as the petitioners were considered by the statutory selection committee and respondents 6 and 7 were unanimously selected by the said selection committee. It is submitted that the cut off date of 06.08.2011 cannot be the date of determination of eligibility of the candidates. It is submitted that as far as aided schools are concerned, the posts were actually sanctioned only on 24.10.2011 with prospective effect and the Manager could **WP(C).No.38571 OF 2017** **7** have lawfully made appointments only on or after 24.10.2011, that is, the date of Ext.P2 order. It is stated that till 23.10.2011, only Guest Lecturers could have been appointed in the aided school as admitted in the writ petition. The appointment could have been done only after conducting due selection after the date of Ext.P2 G.O. and therefore, the date of Ext.P2 G.O. is the relevant date with regard to the occurrence of the vacancies. Ext.R5(e) order dated 05.10.2013 issued by the Director of Higher Secondary Education directing payment of salary to respondents 6 and 7 is also relied on. It is stated that consequent to Ext.P2, the Regional Deputy Director of Higher Secondary Education, by proceedings dated 23.02.2012, had issued staff fixation orders. It is submitted that since the date of occurrence of vacancies stands clarified by the Government as per Ext.P4 and Ext.R6(e), the contention that the petitioners have any better claim for appointment as HSST and HSST Junior is fallacious and is unsustainable. 6. It is further submitted by the learned counsel for respondents 6 and 7 that the Government in its counter affidavit filed in W.P. (C) No.26233 of 2013 had specifically stated that the date of creation of vacancies was only on 24.10.2011 and not **WP(C).No.38571 OF 2017** **8** 06.08.2011. It is, therefore, contended that the present contention raised that the date of occurrence of vacancy is 06.08.2011 is misconceived. 7. A counter affidavit has also been placed on record by the 1[st] respondent. It is submitted in the counter affidavit that the posts in the 4[th] respondent's school were sanctioned with effect from 06.08.2011 as per Ext.P2 G.O. dated 24.10.2011. It is further contended that the 6[th] and 7[th] respondents were not qualified for by transfer appointment to the post at the relevant time. 8. A 'reply affidavit' has been filed by respondents 6 and 7 to the counter affidavit filed by the 1[st] respondent taking the contention that the averments in the said counter affidavit are directly in conflict with the contentions in Ext.P4(a) counter affidavit produced by the petitioners. It is, therefore, contended that the counter affidavit in this case is liable to be ignored since it is against the specific view of the Government as is evident from Ext.P6 order as also earlier stand taken in Exts.P4 and P4(a). 9. I have considered the contentions advanced on all sides and **WP(C).No.38571 OF 2017** **9** have perused the documents and the materials placed on record. The only question which requires to be decided according to me is as to the date of occurrence of vacancies. Ext.P2 order specifically states that by Ext.P1, Higher Secondary Sections had been sanctioned in the Government/Aided sectors in the District of Thrissur and 6 Districts in the Malabar area. It is stated that by the Government Order referred to as reference (3) in Ext.P2 G.O, the posts of Higher Secondary School Teacher and Higher Secondary School Teacher Junior were created in the said schools. Therefore, Ext.P2 provides that 1510 posts of HSST Junior, 110 posts of HSST and 1146 posts of Principals are created with retrospective effect from 06.08.2011 in the Government and Aided schools. Ext.P2(2) Government Order dated 30.10.2013 would show that the posts of HSST and HSST Junior had been sanctioned in the school w.e.f 06.08.2011. Though it is contended by the learned counsel for respondents 6 and 7 that Ext.R6(e) would show that appointments could have been made only after conduct of selection pursuant to Ext.P2 order dated 24.10.2011, that according to me would not change the date of occurrence of the vacancies. If the date of occurrence of vacancies is on 06.08.2011, then the eligibility of **WP(C).No.38571 OF 2017** **10** persons seeking appointment by transfer to those vacancies have to be considered with reference to the specific date when the vacancies arose. If that be so, the petitioners who were admittedly fully qualified as on 06.08.2011 would be entitled to appointment against the posts since the 6[th] and 7[th] respondents were not qualified as on that date. The mere fact that the exercise of selection could have been taken up only after Ext.P2 Government Order will not make any difference to the situation, since what is to be taken note of is when the vacancies arose. Going by Ext.P2 Government Order, it is clear that the vacancies had arisen on 06.08.2011. The exercise of selection was directed to be conducted only pursuant to Ext.P2. However, it is crystal clear that the selection would be with reference to vacancies which were in existence as on 06.08.2011. 10. In the above view of the matter, I am of the opinion that the contention of the petitioners that they were eligible and qualified as on the date of occurrence of vacancies and that respondents 6 and 7 were not so qualified is liable to be accepted. The Apex Court in **Jenany v. Rajeevan** (2010 (2) KLT 630) has clearly held that the filling up of vacancies in aided schools in terms of Chapter XIV A, KER is to be carried out **WP(C).No.38571 OF 2017** **11** specifically with reference to the date of occurrence of vacancy and the qualification and eligibility of the incumbents as on that date. 11. In the above of the matter and in view of the finding that the vacancies arose on 06.08.2011, I have no hesitation to hold that the finding of the Government in Ext.P6 order is erroneous and is vitiated by non application of mind. The impugned order is, therefore, set aside. There will be a direction to the respondents to appoint the petitioners against the vacancies which arose on 06.08.2011 and to grant them all consequential benefits. The necessary shall be done within a period of two months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. ## **Sd/-** ## **ANU SIVARAMAN** **JUDGE** **SJ** **WP(C).No.38571 OF 2017** **12** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE G.O(MS) NO. 128/10/G.EDN. OF THE GOVERNMENT DATED 20.07.2010 ALONG WITH RELEVANT PAGE OF THE LIST.** **EXHIBIT P2 TRUE COPY OF THE G.O(MS) NO. 211/2011/G. EDN. OF THE GOVERNMENT DATED 24-10-2011.** **EXHIBIT P2(A) TRUE COPY OF THE ODER NO. A2/11453/ 2013 DATED 03.10.2013 OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KOZHIKODE.** - **EXHIBIT P2(B) TRUE COPY OF THE ORDER NO.B4/19290/2011/HSE DATED 26.03.2012 OF THE RDD, ERNAKULAM.** - **EXHIBIT P2(C) TRUE COPY OF THE LETTER NO.ACD.C3/53830/HSE/2013 DATED 19.12.2013 OF THE 2ND RESPONDENT.** - **EXHIBIT P2(D) TRUE COPY OF THE LETTER NO.A6/996/2012 OF THE RDD, KOZHIKODE DATED 24.02.2012.** - **EXHIBIT P3 TRUE COPY OF THE ORDER NO.A2/13974/11 DATED 16.08.2012 OF THE RDD, KOZHIKODE.** - **EXHIBIT P4 TRUE COPY OF THE G.O(RT) NO. 3816/2013 /G.EDN. DATED 12.09.2013 OF THE GOVERNMENT.** - **EXHIBIT P4(A) TRUE COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF THE 2ND RESPONDENT IN W.P(C) NO. 26233/2013.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WP(C) NO.26233/2013-D DATED 22.02.2016.** - **EXHIBIT P6 TRUE COPY OF THE G.O(RT) NO.3769/2017/G. EDN. DATED 19.10.2017 OF THE GOVERNMENT.** - **EXHIBIT P6(A) A TRUE COPY OF THE SENIORITY LIST AS ON 01.01.12** **WP(C).No.38571 OF 2017** **13** **EXHIBIT P6(B) A TRUE COPY OF THE CERTIFICATE OF 6TH RESPONDENTS** **EXHIBIT P6(C) A TRUE COPY OF THE CERTIFICATE OF 7TH RESPONDENTS EXHIBIT P6(D) A TRUE COPY OF THE PROCEEDINGS OF THE STAFF SELECTION COMMITTEE, DATED 10.12.2011** **EXHIBIT P6(E) A TRUE COPY OF THE ORDER DATED 05.10.2013 ISSUED BY THE DIRECTOR OF HIGHER SECONDARY EDUCATION.** **EXHIBIT P6(F) A TRUE COPY OF THE ORDER OF STAFF FIXATION, DATED 23.02.2012** **EXHIBIT P7: TRUE COPY OF THE FILED NOTICE NO.8839/T2/2016/G/EDN. OBTAINED UNDER RIGHT TO INFORMATION ACT.** **EXHIBIT P8: TRUE COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 2010-11 DATED 23.02.2012.** **RESPONDENT'S/S EXHIBITS: NIL**