Mable Kunjachan and Bejoy Thomas v. State of Kerala and Others

WP(C) NO. 17706 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944** **WP(C) NO. 17706 OF 2021** ## **PETITIONER/S:** MABLE KUNJACHAN AGED 39 YEARS BEJOY THOMAS, U.P.S.A., MAR BASIL HIGHER SECONDARY SCHOOL, KOTHAMANGALAM, ERNAKULAM 686 691, RESIDING AT MANNAPARAMBIL HOUSE, KARUKADOM P.O., KOTHAMANGALAM 686 691 BY ADVS. ELVIN PETER P.J. K.R.GANESH SIDHARTH SUDHEER GOURI BALAGOPAL ## **RESPONDENT/S:** 1 STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM 695 121 3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION ERNAKULAM 682 024 4 THE DISTRICT EDUCATIONAL OFFICER KOTHAMANGALAM, ERNAKULAM 686 691 5 THE MANAGER, MAR BASIL HIGHER SECONDARY SCHOOL WP(C) NO. 17706 OF 2021 2 KOTHAMANGALAM, ERNAKULAM 686 691 6 ADDL. THE HEADMISTRESS, MAR BASIL HIGHER SECONDARY SCHOOL, KOTHAMANGALAM ERNAKULAM-686691. (ADDL.R6 IMPLEADED AS PER ORDER DATED 11-02-2022 IN IA 1/2022). BY ADVS. S.VINOD BHAT ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R ## **OTHER PRESENT:** SMT. SURYA BINOY SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 17706 OF 2021 3 ## **P.V.KUNHIKRISHNAN, J** ## **--------------------------------------W.P.(C) No. 17706 of 2021** ## **-------------------------------------Dated this the 27[th] day of February, 2023** ## **JUDGMENT** The above writ petition is filed with following prayers : “(i) To call for the records leading to Exts. P5 and P6 notifications and quash the same to the extent it called for applications for appointment to the post of H.S.S.T. (Chemistry) in the 5th respondent School through direct recruitment; (ii) to issue a writ of mandamus, or any other appropriate writ, order or direction directing respondents 4 and 5 to appoint the petitioner as H.S.S.T. (Chemistry) in the 5th respondent school in the vacancy which arose on 01.06.2020 forthwith; (iii) to declare that the 5th respondent has no right to make appointment to the post of H.S.S.T. (Chemistry) through direct recruitment; (iv) to declare that the petitioner is entitled to be appointed to the post of H.S.S.T. (Chemistry) in the 5th respondent school under 'by transfer'; (v) to issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” [SIC] WP(C) NO. 17706 OF 2021 4 2. The petitioner seeks appointment to the post of HSST (Chemistry) in the 5[th] respondent – school which arose on 01.06.2020. According to the petitioner, she possess the qualification for appointment. It is the case of the petitioner that she alone is eligible to be appointed to the post by transfer. It is the further case of the petitioner that in accordance with Rule 4 of Chapter XXXII of KER, the ratio of 1:3 is to be applied to the arising vacancies. It is also the case of the petitioner that the Apex Court in the decision in **Girija V.K.** v. **Reshma Parayil and others** [2019 (2) SCC 347] held that the post of the HSST has to be filled in accordance with the vacancy position. It is the further case of the petitioner that in the year 2020-21, only one vacancy arose. Hence, the said vacancy has to be filled up through by transfer and the petitioner is entitled to be appointed is the submission. However, violating the rule, the 5[th] respondent has issued Exts.P5 and P6 notification calling for applications. It is the case of the petitioner that the 5[th] respondent has no right to make appointment to the post of HSST (Chemistry) through direct recruitment. Hence, this writ petition. WP(C) NO. 17706 OF 2021 5 3. Heard the learned counsel for the petitioner and the learned Government Pleader. I also heard the counsel appearing for respondents 5 and 6. 4. When this writ petition came up for consideration on ## 02.09.2021, this Court passed the following order : “The learned Government Pleader takes notice for respondents 1 to 4. Issue urgent notice by speed post to the 5[th] respondent. 2. The learned counsel submitted that the appointment to the post of HSST has to be conducted not on the strength of cadre strength but to the arising vacancies is a settled position. The records reveal that there is only one vacancy of HSST (Chemistry) in the school and the said vacancy has to be filled up by resorting to by-transfer method in the ratio of 1:3 as contemplated under Rule 4 of Chapter XXXII of KER. As the petitioner is the only person who is working as UPSA, he should have been appointed. Instead, Exts.P5 and P6 notifications are issued calling for direct recruitment to the very same post. 3. Having considered the submissions advanced, Exts.P5 and P6 notifications to the extent it applies to the appointment of HSST (Chemistry) in the 5[th] respondent school will stand stayed for a period of three weeks” 5. The above order is in force even now. The main grievance of the petitioner is that she is entitled to be WP(C) NO. 17706 OF 2021 6 appointed to the post of HSST (Chemistry) by transfer. Manager is going to appoint a person by Direct Recruitment as per Exts.P5 and P6 notification is the grievance. According to me, this is a matter to be decided by the 3[rd] respondent first. The interim order can be continued till a decision is taken by the 3[rd] respondent about the entitlement of the petitioner to the post of HSST (Chemistry) by transfer. Therefore, this writ petition is disposed of with the following directions : - 1) The petitioner is free to file a representation before the 3[rd] respondent narrating the grievance raised in this writ petition within three weeks from the date of receipt of a copy of this judgment. - 2) Once such a representation along with a copy of this writ petition is received, the 3[rd] respondent will consider the same and pass appropriate orders in it, after giving an opportunity of hearing to the petitioner, 5[th] respondent and other affected parties, if any as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this WP(C) NO. 17706 OF 2021 7 judgment. - 3) All the contentions raised by the petitioner and the 5[th] - respondent are left open. - 4) The petitioner will produce a certified copy of this judgment along with a copy of this writ petition before the 3[rd] respondent for compliance. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 17706 OF 2021 8 ## **APPENDIX OF WP(C) 17706/2021** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE ORDER DATED 1.6.2016| |---|---| ||ISSUED BY THE 3RD RESPONDENT APPOINTING| ||THE PETITIONER AS U.P.S.A| |Exhibit P2|TRUE COPY OF THE M.SC. DEGREE CERTIFICATE| ||OF THE PETITIONER AWARDED BY| ||M.G.UNIVERSITY.| |Exhibit P3|TRUE COPY OF THE M.ED. DEGREE CERTIFICATE| ||OF THE PETITIONER AWARDED BY| ||M.G.UNIVERSITY.| |Exhibit P4|TRUE COPY OF THE JUDGMENT DATED 15.2.2021| ||IN W.P.(C) NO.18274/2020| |Exhibit P5|TRUE COPY OF THE NOTIFICATION PUBLISHED IN| ||THE MATHRUBHUMI DAILY DATED 27.2.2021| |Exhibit P6|TRUE COPY OF THE NOTIFICATION PUBLISHED IN| ||THE MATHRUBHUMI DAILY DATED 28.7.2021| |Exhibit P7|TRUE COPY OF THE APPLICATION DATED| ||9.7.2021 UNDER R.T.I. ACT SUBMITTED BEFORE| ||THE 4TH RESPONDENT| |Exhibit P8|TRUE COPY OF THE REPLY DATED 26.7.2021| ||ISSUED BY THE OFFICE OF THE 4TH RESPONDENT| |Exhibit P9|TRUE COPY OF THE JUDGMENT DATED 12.8.2021| ||IN CONT. CASE (CIVIL) NO.804/2021| |RESPONDENT EXHIBITS|| |Exhibit R5(a)|A true copy of the Government order dated| ||25-06-2022| |Exhibit R5(b)|The true copy of the letter dated 29-08-| ||2022| WP(C) NO. 17706 OF 2021 9 ## PETITIONER EXHIBITS - Exhibit P12 TRUE COPY OF THE STAFF LIST PREPARED BY THE PETITIONER EVIDENCING THAT ONLY HSST (CHEMISTRY) TEACHER RETIRED IN THE YEAR 2020 ON 31/05/2020 - Exhibit P13 TRUE COPY OF THE CIRCULAR NO. GEDNSVCB/2019-G.EDN DATED 09/04/2019 ISSUED BY THE 1ST RESPONDENT GOVERNMENT - Exhibit P14 TRUE COPY OF THE APPLICATION DATED 15/07/2022 SUBMITTED BY THE PETITIONER UNDER RTI ACT BEFORE THE DEO - Exhibit P15 TRUE COPY OF THE REPLY DATED 12/08/2022 ISSUED FROM THE OFFICE OF THE DEO TO EXHIBIT-P14 APPLICATION - Exhibit P16 TRUE COPY OF THE LETTER NO. A6/5568/RDD/HSE/EKM/2020 DATED 07/05/2022 ISSUED BY THE DEO APPENDED ALONG WITH EXHIBIT-P15 - Exhibit P17 TRUE COPY OF THE LETTER ISSUED BY THE HEADMISTRESS TO THE DEO - Exhibit P18 TRUE COPY OF THE CIRCULAR NO. G.EDN.J3/49/2021-G.EDN. DATED 28/10/2022 ISSUED BY THE GOVERNMENT - RESPONDENT EXHIBITS Exhibit R5 COPY OF LETTER NO.2-2022/515-C1 DATED 2111-2022 ISSUED BY DIVISIONAL EMPLOYMENT OFFICER ALONG WITH DETAILS OF CANDIDATE TO THE 5TH RESPONDENT - EXHIBIT R3(a) TRUE COPY OF THE ORDER DATED 06/01/2022