Meena T.S. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 03RD DAY OF OCTOBER 2019 / 11TH ASWINA, 1941** ## **WP(C).No.35382 OF 2015(W)** ## **PETITIONER/S:** **MEENA T.S. AGED 39 YEARS** **HIGH SCHOOL ASSISTANT (ENGLISH), HIGHER SECONDARY SCHOOL & VOCATIONAL HIGHER SECONDARY SCHOOL, BRAHMAMANGALAM, VAIKOM, KOTTAYAM DISTRICT.** **BY ADVS. SRI.K.JAJU BABU (SR.) SRI.BRIJESH MOHAN SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION DIRECTORATE OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM-695 001.** - **3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, VAYASKARAKUNNU, KOTTAYAM-686 001.** - **4 THE MANAGER,HIGHER SECONDARY SCHOOL & VOCATIONAL HIGHER SECONDARY SCHOOL, BRAHMAMANGALAM, VAIKOM, KOTTAYAM-686 605.** - **5 SRI.JAYADEVAN N.N. HIGHER SECONDARY SCHOOL TEACHER (JUNIOR) (ENGLISH), HIGHER SECONDARY SCHOOL & VOCATIONAL HIGHER SECONDARY SCHOOL, BRAHMAMANGALAM, VAIKOM, KOTTAYAM686 605.** **R1 BY GOVERNMENT PLEADER R1, R5 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. SRI.S.A.ANAND R1 BY ADV. SMT.L.ANNAPOORNA R1 BY ADV. SRI.K.A.BALAN R1, R4 BY ADV. SRI.K.PAUL KURIAKOSE** **R1 BY ADV. SRI.PETER JOSE CHRISTO R1 BY ADV. SMT.N.SANTHA R1 BY ADV. SRI.V.VARGHESE** ## **OTHER PRESENT:** **SRI.JESTIN MATHEW ,GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.09.2019, THE COURT ON 03.10.2019 DELIVERED THE FOLLOWING:** ## **P.V.ASHA, J.** ## **---------------------------WP(C) No.35382 of 2015-W ---------------------------Dated this the 3[rd] day of October, 2019** ## **JUDGMENT** A High School Assistant in English in the Higher Secondary School and Vocational Higher School Brahmamangalam ('the School' for short) has filed this writ Petition challenging the appointment of the 5[th] respondent as HSST (Jr.) in English by direct recruitment and the orders Ext P7 and P14 by which her claim for appointment by transfer to that post was rejected by the respondents 3 and 1 respectively. 2. The School was upgraded as Higher Secondary School as per G.O.(Rt)No.4417/2013/G.Edn dated 23.10.2013. As per GO(MS) No.177/2014 G.Edn dated 04.09.2014 [Ext R4(a)], Government sanctioned 6 posts of HSST Junior (one each in English, Physics, Chemistry, Maths,Economics and Computer Application) and one post of HSST in Commerce. As per the provisions ## W.P.(C) No.35382/2015 :4: contained in Rule 4(3) of Chapter XXXII KER appointment to 25% of the posts of HSST junior are to be made by transfer from among qualified teachers in the School and 75% by direct recruitment. Therefore 2 out of the 7 posts were to be filled up by transfer provided there are qualified hands in the High School Primary School. The Manager issued Ext P2 notification dated 09.09.2014 inviting applications for appointments to all the posts of HSST Junior except Chemistry. After conducting a process of selection, the Manager appointed the 5[th] respondent as HSST Junior in English. 3. The petitioner has been working as HSA (English) in the 4[th] respondent's School from 02.06.2003 onwards. She was having the qualifications of BA English and B.Ed English. She appeared in the final examination of MA Degree in English from Madurai Kamaraj University in April 2014. The posts of HSST were sanctioned in the School on 04.09.2014, while she was awaiting the results of the examination. Her results were published on 17.09.2014. Manager had issued Ext.P2 notification on 09.09.2014. Petitioner W.P.(C) No.35382/2015 **==> picture [12 x 8] intentionally omitted <==** submitted Ext.R4(d) application before the Manager on 20.09.2014 requesting to appoint her as HSST Junior in English stating that she passed the M.A. Degree examination and was the seniormost qualified hand to be appointed in the 25% quota. Thereafter she submitted Ext P3 representation before the respondents 2 and 3. It is stated that she submitted another representation on 01.10.2014 when she received the M.A. Degree certificate. Thereafter based on directions from this court in her W.P.(C) No. 26145 of 2014, 3[rd] respondent considered her request and rejected the same as per Ext P7 order approving the action of the Manager stating that petitioner was not qualified as on the date of occurence of vacancy. Petitioner challenged the same before Government and Government upheld the order of the 3[rd] respondent. Writ Petition is filed challenging the same. 4. In the meanwhile the appointment of 5[th] respondent was approved. The respondents have filed counter affidavits justifying the appointment of 5[th] respondent. W.P.(C) No.35382/2015 **==> picture [12 x 8] intentionally omitted <==** 5. As per Ext.P2 notification the last date fixed for receipt of application was 23.09.2014. The petitioner had appeared in the examination in MA English under the Madurai Kamaraj University in April 2014. She got Ext.P1 Provisional Degree certificate dated 17.09.2014. By Ext.P2 notification applications were invited for appointment to six posts of HSST Jr. including that in English. The Manager appointed one UPSA in the School as HSST Chemistry under the 25% quota on 09.10.2014. All the other six posts of HSST Junior notified in Ext.P2 were filled up by direct recruitment. 6. In the counter affidavit filed by Manager it is stated that in Ext.R4(b) seniority list of the teaching and non-teaching staff of the School, as on 04.09.2014 approved on 10.10.2014, the qualifications of the petitioner are shown as B.A and B.Ed; immediately after the posts of HSST Junior and HSST were sanctioned in the school on 04.09.2014 as per Ext.R4(a) order, the Manager issued Ext.P2 notification on 09.09.2014 in Mathrubhoomi daily dated 09.09.2014 inviting W.P.(C) No.35382/2015 **==> picture [12 x 8] intentionally omitted <==** applications for the 6 posts. It is stated that Ext R4(c) notice dated 09.09.2014 was published in the notice board directing that qualified teachers in the School shall apply to the Manager with original certificates before 23.09.2014. It is stated that when petitioner submitted Ext.R4(d) application on 20.09.2014, the Manager issued Ext.R4(e) letter on 21.09.2014 directing her to produce the qualifying certificates in original on or before 23.09.2014; but she did not produce the same and since there was no qualified hand 5[th] respondent was appointed to the post by direct recruitment. It is stated that petitioner was not qualified as on 04.09.2014 when the vacancy arose and under Rule 43, one should have the qualification for appointment as on the date of occurrence of vacancy-the 04.09.2014. It is also pointed out that apart from the petitioner 4 teachers submitted application for appointment by transfer. One UPSA who was qualified in Chemistry was given appointment as HSST Jr. (Chemistry). One submitted relinquishment and in the case of others there were no vacancies. W.P.(C) No.35382/2015 :8: 7. The counter affidavit of the 2[nd] respondent as well as that of 5[th] respondent supports the impugned orders and points out that petitioner did not have the qualification as on the date of occurrence of vacancy04.09.2014. The 5[th] respondent has stated that he was considered for selection by a duly constituted selection committee, which ranked him 1[st] and his appointment was approved as per Ext.R5(b) order dated 12.12.2015. According to the 5[th] respondent the petitioner would have been eligible for appointment only if she had acquired the qualification as on 04.09.2014 when the post was sanctioned and therefore the petitioner who acquired qualification only on 17.09.2014 was not eligible to be considered for appointment. Relying on the judgment of the Full Bench of this Court in _**Varghese & others vs. State of Kerala**_ _**& others :1981 KLT 458**_ , it is pointed out that only a person who was qualified as on the date of occurrence of vacancy can have any claim for appointment and hence petitioner is not entitled for appointment in the post occupied by him. W.P.(C) No.35382/2015 :9: 8. Heard the learned Counsel appearing on both sides. The only question which arises in this case is whether the petitioner who passed the examination on 17.09.2014 and produced the certificate subsequent to the last date fixed for receipt of applications was liable to be appointed/considered for appointment against the post sanctioned on 04.09.2014. It is also to be examined whether qualification as on the date of occurrence of vacancy is not relevant to determine the method of appointment. 9. The Rule 4 (3) of Chapter XXXII of KER provides for the method of appointment of Higher Secondary School Teacher (Junior) which reads as follows: _Higher Secondary School Teacher (Junior): 1. (i) By transfer from qualified High School Assistants in the subject concerned under the Educational Agency. (ii) In the absence of qualified hands under Item (i) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants in the subject concerned under the Educational Agency. 2. By direct appointment_ _Note. (i) 25% of the total posts shall be filled up by the method specified in Item (I) above on seniority-cum-suitability basis and 75% of such post shall be filled up by direct appointment._ _(ii) When qualified persons are not available to fill up the vacancies set apart for appointment by_ W.P.(C) No.35382/2015 :10: _transfer under Item (I) above, such vacancies also shall be allotted for direct appointment._ 10. From Ext.R4(c) application submitted by petitioner before the Manager on 20.09.2014 it is seen that petitioner was yet to get her certificate in M.A Degree examination. It is seen that petitioner could not also produce the qualifying certificate before 23.09.2014 or till 01.10.2014. In para 4 of the writ petition, petitioner has stated that she submitted Ext P3 representation before the respondents 2 and 3 on 27.09.2014 and thereafter submitted another request on 01.10.2014 to the Manager when she received the certificate. 11. Though 2 out of the 7 posts sanctioned in Ext.R1(a) were to be filled up by the qualified teachers in the School by transfer under the 25% quota and the Manager has made only one such appointment, there was no qualified hand available for such appointment even when applications were invited. In the seniority list Ext.R4(b) published on 04.09.2014 her M.A. Degree is not entered. Even on 23.09.2014 i.e., W.P.(C) No.35382/2015 **==> picture [17 x 8] intentionally omitted <==** the last date fixed for receipt of applications, the petitioner was not having the qualifying certificate. The date of occurrence of vacancy is admittedly 04.09.2014. Note (ii) below Rule 4(3) of Chapter XXXII provides that direct recruitment can be resorted to in the absence of qualified hands for appointment in the 25% quota. The 5[th] respondent was appointed in the absence of qualified hands as on the date of occurrence of vacancy and his appointment is already approved. 12. Though Rule 43 of Chapter XIVA KER is not strictly applicable to the Higher Secondary Section at the relevant time, the Division Bench of this court has in the judgment in _**Stella vs. Rasmi : 2019 (3) KLT 599**_ held that principles adopted in Rule 43 are liable to be followed in order to maintain transparency. Though the learned Counsel for the petitioner pointed out that those were cases where disputes arose between two teachers claiming appointment in the 25% quota, that principle of transparency applies in this case also. In the circumstances of this case, the action of W.P.(C) No.35382/2015 **==> picture [18 x 8] intentionally omitted <==** the Manager or the orders Exts.P7 or P14 cannot be said to be illegal. Therefore no interference is warranted in these circumstances under Article 226 of the Constitution. Writ Petition fails and is dismissed. **Sd/-** **P.V.ASHA** **JUDGE** rkc W.P.(C) No.35382/2015 :13: ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 P1 : COPY OF THE PROVISIONAL CERTIFICATE OF PETITIONER IN MA (ENGLISH) DEGREE FROM MADURAI UNIVERSITY DT 17-9-2014** **EXHIBIT P2 P2 : COPY OF THE NOTIFICATION OF THE 3RD RESPONDENT PUBLISHED IN MATHRUBHUMI DAILY DT 9-9-2014.** - **EXHIBIT P3 P3 : COPY OF THE REPRESENTATION DT 27TH SEPTEMBER 2014 SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS 2 AND 3.** - **EXHIBIT P4 P4 : COPY OF THE JUDGMENT DT 9-10-2014 IN WPC.NO.26145/2014 OF THIS HON'BLE COURT.** - **EXHIBIT P5 P5 : COPY OF THE ORDER NO.A2/8527/2014/RDD/HSE DT 25-10-2014 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P6 P6 : COPY OF THE ORDER DT 19-11-2014 IN CONTEMPT OF COURT CASE NO.1178/2014 OF THIS HON'BLE COURT.** - **EXHIBIT P7 P7 : COPY OF THE ORDER NO.A2/9479/2014/HSE/RDD/KTM DT 1-12-2014 OF THE 3RD RESPONDENT.** - **EXHIBIT P8 P8 : TYPED COPY OF THE JUDGEMENT DT 31.10.2008 IN WPC.NO.16786/2004 OF THIS HON'BLE COURT.** - **EXHIBIT P9 P9 : COPY OF THE GOVERNMENT ORDER GO(RT)NO.3400/2014.G.EDN DT 25-8-2014.** - **EXHIBIT P10 P10 : COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 6-12-2014** **EXHIBIT P11 P11 : COPY OF THE JUDGMENT DT 16-12-2014 IN WPC.NO.33468/2014 OF THIS HON'BLE** W.P.(C) No.35382/2015 :14: **COURT.** **EXHIBIT P12** **P12 : COPY OF THE ARGUMENT NOTE DT 23.2.2015 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P13 P13 : COPY OF THE JUDGMENT DT 21-11-2014 IN WPC.NO.27624/2014 OF THIS HON'BLE COURT.** **EXHIBIT P14 P14 : COPY OF THE GOVERNMENT ORDER GO(RT)NO.5045/2015/G.EDN DT 27-10-2015.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(A) PHOTOSTAT TRUE COPY OF G.O. (MS).NO.177/2014/G.EDN. DATED 04.09.2014 EXHIBIT R4(B) PHOTOSTAT TRUE COPY OF SENIORITY LIST OF TEACHING AND NON-TEACHING STAFF OF THE SCHOOL AS ON 04.09.2014, APPROVED BY THE DISTRICT EDUCATIONAL OFFICER, KADUTHURUTHY VIDE ORDER NO. B2/4740/2014/K.DIS., DATED 10.10.2014.** **EXHIBIT R4(C) PHOTOSTAT TRUE COPY OF NOTICE PUBLISHED ON 09.09.2014 BY THE 4TH RESPONDENT ON THE NOTICE BOARD OF THE SCHOOL.** **EXHIBIT R4(D) PHOTOSTAT TRUE COPY OF APPLICATION MADE BY THE PETITIONER DATED 20.09.2014 IN RESPONSE TO EXHIBIT R4(C) NOTICE.** **EXHIBIT R4(E) PHOTOSTAT TRUE COPY OF LETTER DATED 21.09.2014 FROM THE 4TH RESPONDENT TO THE PETITIONER.** EXT.R5A: TRUE COPY OF THE ORDER NO.NIL DT.9.10.14 OF THE 4TH RESPONDENT EXT.R5B: TRUE COPY OF THE ORDER NO.A2/8888/RDD/HSE/14 DT.12.12.15 OF THE 3RD RESPONDENT