Mohammed Mansoor Vallikkavvil and Shajahan.K. v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 3[RD] DAY OF JULY 2024 / 12TH ASHADHA, 1946 WP(C) NO. 42003 OF 2023`** ## **`PETITIONER:`** - **`1 MOHAMMED MANSOOR VALLIKKAVIL AGED 43 YEARS S/O. MOIDEEN HIGHER SECONDARY SCHOOL TEACHER (JUNIOR) (ENGLISH), HMYHSS MANJERI, MALAPPURAM DISTRICT, PIN – 676121`** - **`2 SHAJAHAN.K. AGED 40 YEARS S/O. MOOSA.K., HIGHER SECONDARY SCHOOL TEACHER (JR) (ECONOMICS) HMYHSS MANJERI, MALAPPURAM DISTRICT, PIN – 676121`** ``` BY ADVS. M.SASINDRAN JOGGY MATHUNNI ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM, PIN – 695001`** - **`2 THE DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN – 695014`** - **`3 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION MALAPPURAM MALAPPURAM DISTRICT, PIN – 676001`** - **`4 THE MANAGER HMYHSS MANJERY, MALAPPURAM DISTRICT, PIN – 676121`** - **`5 THE DISTRICT EDUCATIONAL OFFICER MALAPPURAM DISTRICT, PIN – 676001`** ``` 2 ``` ## **`WP(C) NO. 42003 OF 2023`** ``` BY ADV ADV P.C SASIDHARAN ADV PREMCHAND R. NAIR – GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 42003 OF 2023 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioners are presently working as Higher Secondary School Teachers (Junior) in the subjects of English and Economics respectively in the School managed by the fourth respondent. Both the petitioners were granted “by transfer" appointments to the posts of HSST (Junior) with effect from 01.06.2023 and 01.06.2022 respectively while they were working as UPSTs in the said School. Exts.P2 and P3 are the appointment orders issued to the petitioners in this regard. However, the appointment of the petitioners were declined by the third respondent as per Exts.P5 and P6 orders. The only reason highlighted in Exts.P5 and P6 is that, the appointment of the petitioners were in violation of the quota of 25:75 stipulated in Chapter XXXII Rule 4 between by transfer appointees and direct recruits. 2. According to the third respondent, as the total sanctioned strength of HSST (Junior) was 7 in the School, two persons could not have been given appointment towards the 25% quota fixed for “by transfer” appointments, as the 25% of the 7 ``` WP(C) NO. 42003 OF 2023 ``` ``` 4 ``` would come to 1.75 only. Therefore, the appointment exceeded the quota, and hence, the approval cannot be granted. This writ petition is submitted in such circumstances, challenging Exts.P5 and P6 orders passed by the third respondent in this regard. 3. A counter affidavit has been placed on record by the learned Government Pleader, denying the averments made in the writ petition and contending that, by making “by transfer” appointments of two persons, the fourth respondent has exceeded the quota of 25%. On that ground, they sought to defend Exts.P5 and P6. 4. Heard Sri.M.Sasindran, learned Counsel for the petitioners, Sri.Premchand R. Nair, learned Government Pleader and P.C. Sasidharan, learned Counsel appearing for the third respondent Manager. 5. The question that arises for consideration is whether the appointment of two persons as against the sanctioned strength of 7 posts, would violate the statutory stipulation contained in Rule 4 Chapter XXXII of KER. The specific contention put forward by the learned Counsel for the petitioners ``` WP(C) NO. 42003 OF 2023 ``` ``` 5 ``` in this regard is that, the principle of rounding off has to be applied in this case, considering the fact that, 1.75 has to be treated as 2 for all practical purposes. The learned Counsel also brought the attention of this Court to Ext.P8 judgment passed by this Court in W.P(C) No.32968 of 2015, wherein this question was specifically considered and the position was answered in favour of the position of law advanced by the petitioners. 6. On carefully going through the observations made by this Court in Ext.P8 judgment, the contention raised by the learned Counsel for the petitioners has to be accepted. In Ext.P8 judgment, after referring to the decision rendered by the honourable Supreme Court in **V.K. Girija v. Reshma Parayil** [(2019) 2 SCC 347] this Court entered into a categorical finding that, 2.75 has to be treated as 3 for the purpose of determining the 25% quota earmarked for “by transfer” appointments in Rule 4 Chapter XXXII of KER. That was a case in which there were total 11 posts and three persons were appointed by adopting by transfer appointment, which was challenged before this Court. This Court, after placing reliance upon **Girija’s** case (supra) and ``` WP(C) NO. 42003 OF 2023 ``` ``` 6 ``` **State of UP v. Pawan Kumar [(2005) 2 SCC 10]** , held that the rule of rounding off has to be applied. Moreover, this Court in Ext.P8 judgment relied on the Circular No.ACDC.1/9000/2013/HSE dated 18.07.2013 issued by the Director of Higher Secondary Education, wherein it is stipulated that if while computing 25% of the posts, the result is a fraction that shall be considered as a whole number. 7. Thus, in this case, the very same principle as laid down by this Court in Ext.P8 judgment has to be applied. Here, there are a total of 7 posts for HSST (Junior), and the petitioners, two in number, were appointed against two vacancies set apart from by transfer appointments. Thus, in the light of the principles referred to above, even though the 25% of 7 comes to only 1.75, the same has to be treated as 2 for the purpose of determining the quota as referred to above. Therefore, there cannot be any illegality in the appointment of both the petitioners as against the 25% quota earmarked for “by transfer” appointments as per Chapter XXXII Rule 4 of KER. In fact, such a stipulation is clearly mentioned in Ext.P7 issued by the Regional Deputy Director, ``` WP(C) NO. 42003 OF 2023 ``` ``` 7 ``` Malappuram as well. In such circumstances, this writ petition is disposed of quashing Exts.P5 and P6 orders passed by the third respondent, with a direction to the said authority to reconsider the approval of the appointments of the petitioners, by treating that two posts are available in the School managed by the fourth respondent, under the 25% quota as contemplated under Chapter XXXII Rule 4 of KER for “by transfer” appointments. Necessary orders in this regard shall be passed by granting approval of appointments to the petitioners if it is otherwise in order. Orders in this regard shall be passed within a period of two months from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` 8 ``` ## **`WP(C) NO. 42003 OF 2023`** ## **`APPENDIX OF WP(C) 42003/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1A TRUE COPY OF THE STAFF FIXATION ORDER NO.D/903/2020/RDO/HSE/MLPM DATED 29-06-2020 ISSUED BY THE 3RD RESPONDENT FOR 4TH RESPONDENT SCHOOL Exhibit P2ATRUECOPYOFTHEORDER NO.M1/01/2023-24DATED01/06/2023 ISSUED BY THE 4TH RESPONDENT ``` - **`Exhibit P3 A TRUE COPY OF THE ORDER NO.M2/HSE 2022-23 DATED 01 -06-2022 ISSUED BY THE 4TH RESPONDENT`** - **`Exhibit P4 A TRUE COPY OF THE STAFF STATEMENT OF H.S.S.TEACHERS AS ON 01-06-2023, OF 4TH RESPONDENT'S SCHOOL`** - **`Exhibit P5 A TRUE COPY OF THE ORDER NO.RDD HSE/MLPM/1170/2023-D DATED 23-11-2023 ISSUED BY THE 3RD RESPONDENT REJECTING THE APPROVAL OF APPOINTMENT OF THE 1ST PETITIONER`** - **`Exhibit P6 A TRUE COPY OF THE ORDER NO.D/4317/22/RDD/HSE/MLPM DATED 29-112023 ISSUED BY THE 3RD RESPONDENT REJECTING THE APPROVAL OF APPOINTMENT OF THE 2ND PETITIONER`** - **`Exhibit P7 A TRUE COPY OF THE LETTER NO.D/8230/19/RDD/HSE/MLPM DATED 30-092019 ISSUED BY THE 3RD RESPONDENT TO 1ST RESPONDENT`** ``` Exhibit P8 ``` - **`A TRUE COPY OF THE JUDGMENT DATED 22.03.2019 IN W.P.(C)NO. 32968 OF 2015 OF THIS HON'BLE COURT`**