Meenakumari C. v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` MONDAY, THE 11[TH] DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 ``` ``` WP(C) NO. 24657 OF 2019 ``` ## **`PETITIONER:`** ``` MEENAKUMARI.C.,W/O. V.P. DINESH, AGED 47 YEARS, H.S.A. (MATHS), P.P. T. M.Y HIGHER SECONDARY SCHOOL, CHERUR P.O., VENGARA, MALAPPURAM DISTRICT - 676 304, RESIDING AT KRISHNA, PERUVALLOOR P.O. KONDOTTY (VIA), MALAPPURAM DISTRICT-673 638. ``` ``` BY ADVS. KALEESWARAM RAJ VARUN C.VIJAY A.ARUNA RIYA RAYMOL IYPE MAITREYI SACHIDANANDA HEGDE K.C.AISHWARYA ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.`** - **`2 THE DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION JAGATHY, THIRUVANANTHAPURAM 695 014.`** - **`3 THE JOINT DIRECTOR (ACADEMIC), DIRECTORATE OF GENERAL EDUCATION JAGATHY, THIRUVANANTHAPURAM 695 014.`** - **`4 THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, OFFICE OF THE REGIONAL DEPUTY DIRECTOR, MALAPPURAM DISTRICT 676 505.`** - **`5 THE MANAGER, P.P.T.M.Y HIGHER SECONDARY SCHOOL (PANAKKAD POOKOYA THANGAL MEMORIAL YATHEEMKHANA H.S.S), CHERUR P.O.,`** WP(C) No.24657 of 2019 2 ## **`VENGARA, MALAPPURAM DISTRICT 676 304.`** ``` 6FARHATH NALLATTU THODIKKAL, HSST JUNIOR (MATHS)(NOT APPROVED), P.P.T.M.Y HIGHER SECONDARY SCHOOL, PANAKKAD POOKOYA THANGAL MEMORIAL YATHEEMKHANA H.S.S., CHERUR P.O. VENGARA, MALAPPURAM DISTRICT 676 304. ``` ``` BY ADVS. ADVOCATE GENERAL OFFICE KERALA SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.T.T.MUHAMOOD SRI.TONY GEORGE KANNANTHANAM SRI.A.RENJIT SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD SRI.C.Y.VINOD KUMAR SRI.JAYENDRAN KOCHOTH ``` ## **`OTHER PRESENT:`** ``` GP SRI.M.C.ASHI ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ``` ``` 11.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.24657 of 2019 3 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.24657 of 2019 .................................................................** Dated this the 11[th] day of September, 2023 ## **JUDGMENT** The above writ petition is filed challenging Exts.P5, P13 and P14 orders. Petitioner also seeks for other consequential reliefs. 2. Brief facts of the case are as follows: Petitioner is presently working as H.S.A.(Maths). The school in which she was working was upgraded as Higher Secondary School during the year 2000 with the sanction of two batches whereby the total number of posts in the cadre of HSST Junior was 12. Later on, additional batches were sanctioned in the existing Higher Secondary Schools and the Government as per order dated 21.08.2017 created five HSST Junior posts and one HSST post. On the basis of the same, it is contended that as on 21.08.2017 total number of HSST Junior posts is five and HSST is eighteen. The claim of the petitioner is for appointment as HSST Junior (Maths) from one of the five HSST Junior posts created vide Government Order dated 21.08.2017. The grievance raised by the petitioner is that she has been denied appointment to the post of HSST Junior (Maths) under 25% quota. Earlier petitioner approached this Court filing W.P.(C) No.24336 of 2018 which was disposed of as per Ext.P2 judgment WP(C) No.24657 of 2019 4 wherein a direction was issued to take a decision on the representation submitted by the petitioner. Thereupon Ext.P5 order was issued by the 3[rd] respondent rejecting the claim of the petitioner for the reason that out of the 17 HSST Junior posts sanctioned, to 6 posts, by-transfer appointment has already been done and if the petitioner is also granted by-transfer appointment, it will exceed 25% quota which is in clear violation of Ext P7 circular dated 30.08.2017. Petitioner submits that the total cadre strength of HSST Junior in the 5[th] respondent’s school as on 21.08.2017 is 5 and not 17 as stated in Ext.P5 order and by applying the ratio of cadre strength 2 among the 5 posts ought to have been filled up through by-transfer appointment, i.e., one post has to be filled up by giving by-transfer to one Abdul Khader and then the other 3 posts ought to have been filled up by direct recruitment. Thus after satisfying the ratio of 25:75, the 5[th] post again ought to have been filled up by bytransfer appointment. To substantiate the said contention, the petitioner relies on Ext.P6 circular. Petitioner would further submit that the subsequent circular issued as Ext.P7 was without noticing Ext.P6 circular. Ext.P5 order was challenged by the petitioner filing W.P.(C) No.1814 of 2019 which was disposed of as per Ext.P10 judgment wherein the petitioner was directed to file a revision petition before the Government challenging Ext.P5. Thereupon, a revision petition was filed before the Government which was rejected as per Ext.P13 order and pursuant to the issuance of Ext.P13 order, the appointment of 6[th] WP(C) No.24657 of 2019 5 respondent was approved as per Ext.P14. In Ext.P13, the Government has taken a stand that 5 posts of HSST Junior were sanctioned in 2017-2018 and no other post of HSST Junior was available in the school as on the date of occurrence of vacancy of above 5 posts. So the number of HSST Junior being 5 applying the ratio of 25:75, the post available for by-transfer appointment is 1.25 whereas the appointment by direct recruitment is 3.75 and when rounded to one significant digit, the post available for by-transfer is one and for direct recruitment is 4 and therefore the claim of the petitioner was rejected. It is aggrieved by the same the petitioner has approached this Court. 3. A detailed counter affidavit has been filed by the 6[th] respondent wherein it is contended that even on the date of occurrence of the 5 vacancies, appointments were made in the post of HSST Junior even exceeding the quota set apart for them. It is submitted that 5 posts of HSST Junior were sanctioned with effect from 21.08.2017 and out of the same, the post of HSST Junior in Physics was filled up by way of by-transfer from a qualified HSA and thereby satisfying the 25% quota set apart for by-transfer appointment and the balance 4 vacancies are to be filled up by direct recruitment as per Rule 4(3) of Chapter XXXII KER. It is alternatively contended that total number of HSST Junior posts sanctioned in the school is 17 and out of this 6 persons were already appointed through by-transfer and on that count also the appointment by by-transfer is in excess of 25% quota set apart for by- WP(C) No.24657 of 2019 6 transfer appointment. 4. The 5[th] respondent Manager has also filed a counter affidavit wherein it is admitted that HSST Junior appointments have been made in excess of the quota of 25%. 5. The 1[st] respondent has also filed a detailed counter affidavit wherein it is contended that Exts.P5 and P13 orders are strictly in accordance with the statutory provisions inasmuch as on 21.08.2017 total number of HSST Junior posts in the 5[th] respondent's school was 5 and out of which one HSST Junior post was set apart for by-transfer appointment and 4 HSST Junior posts were filled up by direct recruitment method of appointment. It is further stated that if 2 persons are appointed in 25% by-transfer quota then the by-transfer quota will be 40% which goes against the stipulation of 25% set apart for bytransfer appointment. 6. Essentially the contentions of the petitioner are based on Ext.P6 Government Order which specifically stipulates that in the case of appointment of HSST Junior, if in a given case the total posts are 5, 25% of the posts i.e., 1.25 should be treated as 2 and 2 teachers should be appointed by by-transfer. Based on Ext.P6 petitioner submits that the second vacancy should be filled up by appointing her who is a by-transfer appointee and that Ext.P7 circular has been issued in total disregard of Ext.P6 circular. A perusal of Ext.P7 circular would show that the appointments are to be made strictly on the basis of the special WP(C) No.24657 of 2019 7 rules for the higher secondary teachers and that in no circumstance appointments shall be made in excess of the 25% set apart for bytransfer appointment. When this conflict between Exts.P6 and P7 was noticed this Court directed the Government to file a further affidavit explaining the said position and the 2[nd] respondent has filed a statement dated 21.03.2023 wherein it is stated that on 29.08.2013 a circular bearing No. ACD.C1/9000/13 (Ext.R2(a)) was issued by the Director noticing that Ext.P6 circular is to be subjected to further deliberation as per GO(Ms) No.230/13/Gen.Edn. dated 19.08.2013 and it is further ordered by the Government that until such review the conditions in circular bearing No. ACD.B1/15819/2002 dated 29.07.2004 (Ext.R2(b)) would govern the appointment in aided higher secondary schools. As contended by the learned counsel appearing for the 6[th] respondent as well as the learned Government Pleader, when 2 by-transfer appointees are appointed to the 5 vacancies now existing naturally it will violate the 25% quota fixed for by-transfer appointment. 7. Learned counsel for the 6[th] respondent relies on the judgment of the Apex Court in _**State of U.P. v. Pawan Kumar, 2005 KHC 603**_ in support of his contentions. The Apex Court in the said judgment issued directions as to how a fraction of a vacancy is to be treated when a quota is provided and held that if part is one half or more its value, the same shall be increased to one and if part is less than half, then its value should be ignored. In the present case, the fraction of the WP(C) No.24657 of 2019 8 vacancy will be “.25” inasmuch as the post set apart for by-transfer appointment will be 1.25 whereas for direct recruitment method will be 3.75. Therefore going by the ratio of the Apex Court's judgment in _**Pawan Kumar**_ 's case supra, the .25 in the 1.25 for by-transfer method should be ignored and it should be rounded off to one vacancy, whereas for direct recruitment since it is 3.75, .75 is to be rounded off to one making the vacancy position to 4. This is what has been done as per Exts.P5 and P13. Therefore, I am of the opinion that the actions evidenced by Exts.P5, P13 and P14 are in accordance with the law and no interference is called for and the writ petition is accordingly dismissed. Sd/- **VIJU ABRAHAM JUDGE** cks WP(C) No.24657 of 2019 9 ## **`APPENDIX OF WP(C) 24657/2019`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1A COPY OF THE PROCEEDING ORDER NO. J/13365/2017/RDD/HSE/MLPM DATED 20.12.2017. EXHIBIT P2A COPY OF THE JUDGMENT DATED 9.8.2018 IN WPC NO. 24336/2018. EXHIBIT P3A COPY OF THE HEARING NOTICE DATED 29.9.2018. EXHIBIT P4A COPY OF THE HEARING NOTE DATED 29.9.2018 SUBMITTED BY THE PETITIONER HER REPRESENTATION THROUGH ONE M. MATHEW. EXHIBIT P5A COPY OF THE ORDER NO. ACD.A4/12182- 7/2018/HSE DATED 5.1.2019. EXHIBIT P6A COPY OF THE CIRCULAR DATED 18.7.2013. EXHIBIT P7A COPY OF THE CIRCULAR DATED 30.8.2017 EXHIBIT P8A COPY OF THE ORDER NO. A4/911/2018/K.DIS DATED 5.6.2018. EXHIBIT P9A COPY OF THE INTERIM ORDER DATED 21.1.2019 IN WPC NO. 1814/2019. EXHIBIT P10A COPY OF THE JUDGMENT DATED 4.2.2019 IN WPC NO. 1814/2019. EXHIBIT P11A COPY OF THE REVISION PETITION DATED 5.2.2019. EXHIBIT P12A COPY OF THE LETTER DATED 2.4.2019. EXHIBIT P13A COPY OF THE G.O. (RT) NO. 3456/2019/GEDN DATED 30.8.2019. EXHIBIT P14A COPY OF THE ORDER DATED 17.9.2019 ISSUED BY THE 4TH RESPONDENT. ``` WP(C) No.24657 of 2019 10 ## **`RESPONDENTS’ EXHIBITS/ANNEXURES`** ``` ANNEXURE R2(a)True copy of the circular no.ACD.C1/9000/13 dated 29.08.2013. ANNEXURE R2(b)True copy of the Circular No.ACD.B1/15819/2002 dated 29.07.2004. EXT.R6(a)TRUE COPY OF APPOINTMENT ORDER DATED 12.03.2018 ISSUED BY THE MANAGER, APPOINTING THIS RESPONDENT AS HSST(Jr) IN MATHS ```