NISARANI HSA (MALAYALAM), M.M. HIGHER SECONDARY SCHOOL, NEW MAHE, THALASSERY, KANNUR DISTRICT v STATE OF KERALA and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 15TH DAY OF DECEMBER 2015/24TH AGRAHAYANA, 1937 WP(C).No. 12330 of 2014 (M) ---------------------------- PETITIONER(S): -------------------------- NISARANI HSA (MALAYALAM), M.M. HIGHER SECONDARY SCHOOL NEW MAHE, THALASSERY, KANNUR DISTRICT BY ADVS.SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENT(S): ---------------------------- 1. STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOV. DEPARTMENT OF GENERAL EDUCATION SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM 695001 3. THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KOZHIKODE 673001 4. THE MANAGER, - M.M. HIGHER SECONDARY SCHOOL, NEW MAHE, 673311 KANNUR DISTRICT 5. Y.P ADUL NAZAR, - HIGH SCHOOL ASSISTANT (ARABIC) M.M. HIGHER SECONDARY SCHOOL, NEW MAHE 673311 KANNUR DISTRICT 6. DIVYA.K, KUNNIL HOUSE, P.O, CHANDAYAD 670692 PANOOR, KANNUR DISTRICT R1-R3 BY ADV. GOVERNMENT PLEADER SMT SUNITHA VINOD R4 & 5 BY ADV. SRI.V.A.MUHAMMED R5 BY ADV. SRI.M.SAJJAD R6 BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-12-2015, ALONG WITH WPC. 22214/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12330 of 2014 (M) ::2:: ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER AS HSA EXHIBIT P2 A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 15-03-2012 IN WPC NO 5106 OF 2012 EXHIBIT P4 A TRUE COPY OF THE ORDER NO A4/13998/2011 DATED 24-07-2012 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4(A) A TRUE COPY OF THE ORDER DATED 01-09-2012 RECTIFYING THE MISTAKE IN EXT P4 EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 12-09-2012 ISSUED BY THE 3RD RESPONDENT EXHIBIT P6 A TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 2304-2013 EXHIBIT P7 A TRUE COPY OF THE REVIEW PETITION DATED 19-12-2013 EXHIBIT P79A) A TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 08-04-2014 WHICH IS SERVED ON THE PETITIONER SO FAR EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION DATED 10-05-2013 EXHIBIT P10 A TRUE COPY OF THE JUDGMENT IN CONT. CASE NO 654 OF 2013 EXHIBIT P11: A TRUE COPY OF THE HEARING NOTE DATED 5.6.2012 OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KANNUR RESPONDENT(S)' EXHIBITS --------------------------------------- EXT.R4(a): TURE COPY of the RELEVANT PAGES OF THE SERVICE BOOK OF THE 5TH RESPONDENT EXT.R4(b): TRUE COPY OF THE GO (MS) NO.141/2008/G.EDN DT 18.8.2008 OF THE GOVT. EXT.R4(c): TRUE COPY OF THE OPTION OF THE 5TH RESPONDENT EXT.R5(a): TRUE COPY OF the ORDER NO. A5/2056/2014/K.DIS. DT 28.5.2015 OF THE RDD KANNUR EXT.R5(b): TRUE COPY OF THE NOTICE ISSUED TO SRI MUHAMMED RIYAS DT 6.12.11 EXT.R5(c): TRUE COPY OF THE REQUEST OF SRI Y P ABDUNNASIR DT 17.12.11 EXT.R5(d): TRUE COPY of the CERTIFICATE ISSUED BY JAMATH COMMITTEE DT 5.12.15 WP(C).No. 12330 of 2014 (M) ::3:: EXT.E5(e): TRUE COPY of the CERTIFICATE OF MARRIAGE DT 4 .12.15 EXT.R5(f): TRUE COPY OF THE CONSOLIDATED MARK SHEET OF M M HIGHER SECONDARY SCHOOL, NEW MAHE EXT.R5(G): TRUE COPY OFTH E MINUTES OF SELECTION COMMITTEE EXT.R5(H): TRUE COPY OF THE INTERIM ORDER IN I.S. NO. 575/2012 IN A.S. NO. 118/2010 DT 26.4.2012 EXT.R5(I): TRUE COPY OF the MINUTES OF THE SELECTION COMMITTEE EXT.R5(j): TRUE COPY of the APPOINTMENT ORDER OF SRI Y P ABDUNNASIR DT 2.7.2012 EXT.R5(k): TRUE COPY of the RELIEING ORDER OF THE MANAGER DT 2.7.2012 EXT.R5(L): TRUE COPY OFHTE PROCEEDINGS OF THE MANAGER 2.7.2012 EXT.R5(m): TRUE COPY OF THE APPEAL OF SRI Y P ABDUNNASIR BEFORE THE DIRECTOR OF HSE DT 9.4.2013 EXT.R5(n): TRUE COPY OF THE REVISION OF SRI Y P ABDUNNASIR BEFORE THE GOVERNMENT DT 19.12.2013 EXT.R5(o): TRUE COPY of the HEARING NOTE BEFORE THE GOVERNMENT DT 10.12.2013 EXT.R6(a): TRUE COPY OF the REQUEST SUBMITTED BY THE 5TH RESPONDENT EXT.R6(b): TRUE COPY OF THE SELECTION LIST DT 18.12.2011 PREPARED BY THE COMMITTEE EXT.R6(c): TRUE COPY OF THE APPOINTMENT ORDER DT 21.12.2011 EXT.R6(d): TRUE COPY OF THE APPOINTMENT ORDER DT 2.7.2012 EXT.R6(e): TRUE COPY OF THE JUDGMENT DT 10.6.2013 IN WPC NO. 7885/2013 TRUE COPY P.A TO JUDGE jma ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) Nos. 12330 of 2014 & 22214 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of December, 2015 ## J U D G M E N T The petitioner in W.P(C) 12330/2014 is an H.S.A (Malayalam) appointed to the 4[th] respondent School on 16.08.2005. The 5[th] respondent is an admitted senior in the very same school who occupied the post of H.S.A (Arabic). The issue revolves around the claim to the post of HSST when there was a higher secondary section granted to the 4[th] respondent School in the academic year 2010-2011. It is the admitted case of all parties that the Manager held a selection through a selection committee as provided under Rule 5 of Chapter XXXII of Kerala Education Rules 1959 (for brevity KER). The selection process was originally scheduled on 11.12.2011 and the same was adjourned to 18.12.2011. WPC.No.12330/2014 &22214/2015 : 2 : 2. There were three senior teachers who were entitled to the post of HSST in the school. They were the H.S.A (Arabic), H.S.A (English) and H.S.A (Maths), who were respectively the 5[th] respondent, one K.P. Reetha and one Simmi.K. Reetha and Simmi got appointed as HSST in their respective subjects. The 5[th] respondent is said to have not attended the interview held by the selection committee on 18.12.2011. The petitioner claims that, on the absence of the 5[th] respondent, the appointment ought to have been conceded to the petitioner, she being the next senior H.S.A in the subject of Malayalam. The appointment to the post of HSST (Malayalam)however, was granted to the 6[th] respondent who appeared for selection in the direct quota, prescribed as per Rule 4 Chapter XXXII of KER (1:3 ratio). WPC.No.12330/2014 &22214/2015 : 3 : 3. The 5[th] respondent contends that he ought to have been appointed, de hors any selection, since the method prescribed is one of ascertaining the suitability and not a comparative assessment of merit. The interview as such has absolutely no relevance; is the contention of the 5[th] respondent. Subsequently the appointment of the 5[th] respondent was made, to the post of HSST (Arabic) on the basis of the selection held on 30.06.2012 and it is already approved by the educational authority. Whether the same can be sustained is also a question to be considered in the above writ petition. 4. The entire issue revolves around the absence of the 5[th] respondent on 18.12.2011 and whether statutorily there is a mandate on the Manager to appoint a senior even if he/she does not appear for the interview. The WPC.No.12330/2014 &22214/2015 : 4 : petitioner's contention is that the 5[th] respondent having not turned up for the interview, then that vacancy ought to have been filled up by the next senior H.S.A who was the petitioner. The files of the selection have been called for which are placed before this Court by the learned Government Pleader, by way of a memo dated 08.12.2015. Preliminary objections to the claim of the petitioner are raised by the 5[th] and 6[th] respondents. The 5[th] respondent contends that the Manager has appointed him as HSST and the same is also approved and there could be no further challenge since he is the admitted senior. The 6[th] respondent contends that she cannot be embroiled in the dispute between the petitioner and the 5[th] respondent. She was also not heard in the appeal filed against the 5[th] respondents appointment and she cannot be unsettled for WPC.No.12330/2014 &22214/2015 : 5 : reason of the same. 5. When the 5[th] respondent was appointed as HSST,the petitioner filed an appeal,Ext.P2 dated 05.01.2010,contending that the 5[th] respondent has relinquished his claim and hence the petitioner ought to have been considered for the appointment to the post of HSST (Malayalam). The petitioner specifically contended that the action of the Manager promoting the 5[th] respondent on a subsequent date was unheard of and not an exercise sanctioned by the KER. The petitioner also approached this Court with a writ petition which was disposed of by Ext.P3 judgment, directing consideration of the appeal. 6. The appeal filed by the petitioner was allowed as per Ext.P4 dated 24-07-2012. In Ext.P4 it was WPC.No.12330/2014 &22214/2015 : 6 : noticed that the 5[th] respondent was absent in the interview and the reason cited was that he would loose the benefit of his higher grade promotion in the existing scale as H.S.A (Arabic). The appeal was allowed and the petitioner was directed to be appointed as HSST (Malayalam). By that time, the 5[th] respondent was appointed as HSST (Arabic) on 30.06.2012. The approval of the appointment of 5[th] respondent, as HSST, however,was much later, when this writ petition was pending and also, only on the basis of an interim order dated 07.04.2015, in which approval was directed to be considered, subject to the result of the writ petition. The factum of the approval, as such, of the 5[th] respondent in the post of HSST, may not be significant in the adjudication of the dispute, since the approval was only by virtue of the interim order. That would definitely WPC.No.12330/2014 &22214/2015 : 7 : depend on the disposal of the writ petition itself. None can claim a benefit to be upheld, which is only by virtue of an interim order, when the writ petition itself is pending. Any benefit so obtained would depend on the final disposal of the writ petition, as has been held in (2008) 17 SCC 73 -Abhimanyoo Ram v. State of Uttar Pradesh. 7. If the 5[th] respondent is found to have relinquished the post or is found to be dis-entitled to be appointed for reason of his default, then necessarily the petitioner would have to be appointed as HSST in place of the 5[th] respondent. This Court is conscious of the fact that this would result in the displacement of the 6[th] respondent who was appointed as HSST (Malayalam) by direct recruitment. This is because the petitioner and the 5[th] respondent has a claim for 'by transfer' appointment to the WPC.No.12330/2014 &22214/2015 : 8 : post of HSST, but are to be accommodated in the subject in which they are qualified. When the 5[th] respondent's appointment is unsettled, then, the petitioner would have to be accommodated in the 6[th] respondent's vacancy and a fresh person recruited to the post of HSST (Arabic). Such displacement is only a consequence of the adjudication of the rival claims and this Court cannot dwell too much upon the misfortunes that are visited on a person, by reason only of a fair adjudication. The petitioner cannot be denied her rightful claim, merely because the rejection of her claim would ensure, employment for all parties. 8. It is pointed out by the learned counsel for the 6[th] respondent that it is of some relevance that the petitioner, did not challenge the 6[th] respondent's appointment as HSST (Malayalam), on direct recruitment. WPC.No.12330/2014 &22214/2015 : 9 : The 6[th] respondent was also not a party in the appeal in which Ext.P4 order was passed. Per contra it is to be noticed that, the approval of the 6[th] respondent stood declined by Ext.P5, on the ground of petitioner's claim for 'by transfer' appointment. The claim of the petitioner for by transfer appointment would have a direct bearing on the appointment of the 6[th] respondent. This is for the reason of, the law laid down by this court as to how the posts for 'by transfer' appointments are to be identified, especially when the higher secondary section is sanctioned for the first time. This Court has held that it is not for the Manager to decide who among the HSA's would be promoted, arbitrarily. The ratio for by transfer appointments is to be maintained by promoting the senior most among the HSA's, thus setting apart their subjects in WPC.No.12330/2014 &22214/2015 : 10 : the post of HSST, for by transfer appointment. 9. Further, The 6[th] respondent had filed an application before the Director of Higher Secondary Education challenging Ext.P5, in which all the parties were heard, i.e: the petitioner, the 5[th] respondent, the 6[th] respondent and the Manager. The 6[th] respondent has filed the other writ petition seeking implementation of the order of the government, impugned by the petitioner. All parties were heard before the government and now before this Court. There could hence be no ground raised of no hearing having been granted. The preliminary objections having been dealt with, the claim of the 5[th] respondent has to be now addressed. 10. Before the Director, in the first revision, against Ext:P-4, the 5[th] respondent claimed that he had to WPC.No.12330/2014 &22214/2015 : 11 : participate in a pre-planned religious function and hence he could not attend the interview. It was also contented that the interview on 18.12.2011, was adjourned on the request of the 5[th] respondent. The management dispute prevented an interview being held immediately thereafter. Eventually a fresh interview was conducted and he was selected and appointed on 02.07.2012, is the essential argument. The Director of Higher Secondary Education, rejected the contentions and found that the petitioner has to be appointed to the post of HSST (Junior) (Malayalam) and the appointments of 5[th] and the 6[th] respondents ought to be set aside. 11. A further revision was filed by both 4[th] and 6[th] respondents before the Secretary to Government. The 5[th] respondent is also said to have filed a revision which is WPC.No.12330/2014 &22214/2015 : 12 : produced as Ext.R5(h), which however, was not seen considered in Ext.P7. In any event, the Manager was supporting the 5[th] respondent and his contentions were considered in Ext.P8, so was the 5[th] respondent heard. 12. The Government found that the petitioner has not produced any supporting documents to prove her allegation of the 5[th] respondent having relinquished his claim. The 5[th] respondent was found to be the senior and his appointment was found to be proper. The 5[th] respondent was found to be liable to be appointed as HSST (Junior) (Arabic) and the 6[th] respondent as HSST (Junior) (Malayalam) which order is challenged by the petitioner before this Court. 13. Rule 5 of Chapter XXXII of KER provides a note which reads as follows:- WPC.No.12330/2014 &22214/2015 : 13 : “Appointments to teaching post shall be made on the recommendation of a selection committee consisting of the Manager or his nominee (Chairman), of the school and a Principal representative of the Government selected by the Manager from a panel of Officers not below the rank of a Deputy Collector or officers not below the rank of Deputy Secretary to Government prepared by the Director Higher Secondary Education for every academic year.” The said note speaks of an appointment to be made on the recommendation of the selection committee consisting of WPC.No.12330/2014 &22214/2015 : 14 : the Manager or his nominee, Principal of the School and the representative of the Government, selected by the Manager from a panel of Officers, prepared by the Director of Higher Secondary Education for every academic year. The implementation of the ratio of 1:3 ratio, of 'by transfer' and direct appointments has also been held to be based on the seniority of HSA's; the subjects which they handle being kept apart for 'by transfer' appointments, by the judgment in W.P(C) 12881/2014 dated 17.05.2010. The appointment under Chapter XXXII Rule 4 which deals with the ratio of 1:3 between the' by transfer' and direct appointment for selection to the post of HSST, has been held to be seniority cum suitability by a decision of this Court in Sebastian v. Director of Joseph Higher Secondary Education, Tvm (2011 (2) KHC 149 ). The WPC.No.12330/2014 &22214/2015 **==> picture [26 x 9] intentionally omitted <==** Manager, it has been held, is bound to make 'by transfer' appointments, prior to the appointment by way of direct recruitment in Prasannakumary v. Director of Higher Secondary Education (2006(1) KLT 356). The later decision cited may not have much significance now, since the same was with respect to appointments made prior to the Special Rules introduced in the KER, as per Chapter XXXII. The declaration made therein that, there would be no requirement for reference to a selection committee, in the context of reservation of appointments to HSA's, would not now be relevant, since Chapter XXXII draws no such distinction, in the Note extracted above. Both direct recruitment and 'by transfer' appointment has to be on the recommendation stipulated in the 'Note'. 14. The position of law which emerges from the WPC.No.12330/2014 &22214/2015 : 16 : above precedents and a reading of the provisions of Chapter XXXII, is that an assessment of comparative merit is not contemplated at all, by the selection committee and what is contemplated is a recommendation based on seniority-cum-suitability. The suitability also, going by Rule 5, is to be assessed on the basis of the qualification of the H.S.A and the incumbency details, to determine the seniority and not on the basis of any assessment of comparative merit by the selection committee. It is also fairly well established that the vacancy set apart have to be on the basis of the seniority, assigning the subjects of the senior most H.S.A's in the High School, to be set apart for 'by transfer' appointments as HSST', in the 1:3 ratio in the higher secondary section. 15. Be that as it may,the recommendation WPC.No.12330/2014 &22214/2015 : 17 : definitely has to originate from the selection committee and especially considering the fact that there is a Government nominee, in the committee, it could only be done after at least an interface with the candidate, when the suitability and seniority is ascertained; whether it be called an interview or otherwise. Though a merit based assessment may not be necessary such an interface would be made possible only through an interview. 16. An examination of the files would disclose that the 4[th] respondent School was sanctioned one Science Batch and one Commerce batch in the academic year 2010-2011. The files also disclose that the Manager did not set apart the subjects as mandated in W.P(C) No.12881/2004 and notified all the vacancies in a vernacular daily “Malayala Manorama” dated 18.11.2011 WPC.No.12330/2014 &22214/2015 : 18 : calling for applications within 25.11.2011. The notification called for applications in the subjects of Malayalam, Arabic, Physics, Chemistry, Zoology, Botony, Computer Applications and Mathematics in the Higher Secondary stream. The interview was first scheduled on 11.12.2011 and then adjourned to 18.12.2011. Admittedly the 5[th] respondent did not appear in the interview, before the selection committee as scheduled. It is also evident from the files, produced by the government, that the 5[th] respondent,s candidature was not even considered by the selection committee on that date. The 5[th] respondent did not even make an application pursuant to the notification. 17. It is seen from the files that both the other H.S.As Reetha and Simmi, were considered and their certificates verified and their appointment recommended WPC.No.12330/2014 &22214/2015 : 19 : by the selection committee. The minutes of the selection committee, available in the files and produced as Ext:R-5 would reveal 10 been (g), only persons having recommended on the said date, two of which were 'by transfer' appointments. 18. The Manager in his counter affidavit contends that since there was no of requirement comparative assessment of merit and the 5[th] respondent having not relinquished his claim for 'by transfer' appointment, he could not be overlooked. The 5[th] respondent too contend that he had a personal difficulty on the said date and that he had communicated the same to the Manager, in writing, by Ext:R-5(c). The alleged communication is seen acknowledged by the Manager too on 17-12-2011, as per the endorsement in the letter. If that WPC.No.12330/2014 &22214/2015 : 20 : be so, the Manager could have placed the details of the 5[th] respondent before the selection committee on the date of interview. Or at least the Manager should have placed the alleged request for leave of absence, made by the 5[th] respondent, before the selection committee, so as to grant another date for the interview. The leave of absence said to have been made to the Manager is not found in the files nor is the 5[th] respondents candidature considered by the selection committee on 18.12.2011. The selection committee considered the suitability of the other H.S.A.'s and recommended their appointment, on 'by transfer' mode. The service book and the certificates of the two other HSA's were placed before the selection committee and is available in the files. 19. Definitely if it was the default of the WPC.No.12330/2014 &22214/2015 : 21 : Manager, in not having placed the candidature of the senior most hand before the selection committee, that cannot prejudice the claim of a senior HSA. Hence one has to examine the case set up by the 5[th] respondent also. The 5[th] respondent at the time of disposal of the appeal by the Deputy Director evidenced by Ext.P4, is said to have cited the reason of loss of benefit of his higher grade promotion in the existing scale as H.S.A (Arabic), if he attended the interview on 18.12.2011 and accepted the 'by transfer' appointment. The learned counsel for the 5[th] respondent submits that the same is factually incorrect since the 5[th] respondent had 29 years of service as on the date of selection and as on 01.07.2011 his grade was sanctioned. However, it is to be noticed that the 5[th] respondent has not challenged Ext.P4 order at least to the extent which the 5[th] WPC.No.12330/2014 &22214/2015 : 22 : respondent was found to have voluntarily refused to take up the appointment, for reason of loosing the benefit of his higher grade. The petitioner claims to have challenged Ext.P4 by Ext.R5(m) on 09.04.2013. The order at Ext.P4 is dated 24.07.2012. It is also evident that 5[th] respondent has not thought it fit to pursue Ext.R5(m), even if the same was filed, at least when the Director of HSE, considered Ext:P-6. Having filed Ext.R5(m), the 5[th] respondent ought to have pursued it, and got the observations in Ext.P4 removed if the same was contrary to facts. When hearing was conducted by the Director of HSE, the 5[th] respondent too was heard and he could have very well sought for his revision also to be heard, which was not attempted. 20. Again in Ext.P6, the Director has stated that the 5[th] respondent had explained his absence on 18.12.2011 WPC.No.12330/2014 &22214/2015 : 23 : citing the reason of a pre-planned religious function. Now, the 5[th] respondent asserts, that on the particular day, the 5[th] respondent's daughter's engagement was held in his house. It is highly unlikely that the daughters marriage would be styled as a mere religious function. The 5[th] respondent has also produced Ext.R5(d) and Ext. R5(e) to prove the said contention. Immediately looking at Ext.R5 (d), the same is issued by the Secretary of a Juma Masjid, which cannot be relied upon by this Court. EXT:R-5(d) is also dated 05.12.2015 and certifies a 'nikah' (a muslim marriage), having taken place on 18-12-2011. The marriage certificate, issued by the Registrar of Marriages, produced at Ext.R5(e) indicates that the marriage was actually held on 20.09.2013. Hence the 5[th] respondent's contention that the absence at the time of interview was by WPC.No.12330/2014 &22214/2015 : 24 : the reason only of the marriage of the 5[th] respondent's daughter remains unsubstantiated. It was also never stated before; neither in the alleged request made for condoning his absence at the interview or before any of the statutory authorities. For the first time it was argued before this Court and on this Court pointing out the lack of evidence, the 5[th] respondent has now produced Ext: R-5 (d) & (e); which in effect disproves the contention. 21. The 5[th] respondent also contends in his affidavit that the candidates for 'by transfer' appointment were orally informed by the Manager, to attend the interview scheduled on 18.12.2011. The said contention is belied by the fact that the minutes of the selection committee {Ext: R-5(g)} clearly indicate that the Manager had received applications from the candidates pursuant to WPC.No.12330/2014 &22214/2015 : 25 : a notification and that individual call letters were issued to each of the candidates. The Manager contends, no records are available with him and that the files disclose no application from either of the candidates. The absence of all the applications in the government files would work against the defense set up, since admittedly eight direct recruitment’s were made on the said date, which could not have been without proper applications. The Manager obviously did not forward the applications to the department, which is also not a mandate as per the rules. 22. No records are also available to indicate that the alleged leave of absence was filed or whether the same was placed before the selection committee, in which the Government nominee was also a party. As was noticed above, the 5[th] respondent is not seen to have even filed an WPC.No.12330/2014 &22214/2015 : 26 : application in pursuance to the notification issued by the Manager. In such circumstance, it cannot be said that the 5[th] respondent would have made a leave of absence at the interview. Ext.R5(c) in fact, conveyed the petitioner's inconvenience to attend the interview in view of “a serious personal matter” which again is not substantiated. It was also requested that the application of the 5[th] respondent be considered. Hence the 5[th] respondent contends in his alleged application for leave of absence, that he filed an application. This Court does not find any such application having been made by the 5[th] respondent nor the certificates produced, as has been done by the other H.S.As who were in the service of the 4[th] respondent School. The 5[th] respondent also does not produce his call letter and produce that of another, Ext.R5(b). WPC.No.12330/2014 &22214/2015 : 27 : 23. The petitioner filed an application pursuant to the notification, which however, was considered only for direct appointment as per the 1:3 ratio. The 6[th] respondent is said to have received more marks than the petitioner and hence the 6[th] respondent was appointed in the post of HSST(Malayalam) on direct appointment. The 5[th] respondent as has been noticed earlier was subsequently appointed as HSST (Arabic) after about six months. The 5[th] respondent contends that it was due to a civil suit pending, where there was a management dispute raised. However the delay in constituting the second interview is not the crucial issue. The entire controversy is as to whether the 5[th] respondent applied pursuant to the notification and whether he appeared for the interview and what is the consequence of his absence. WPC.No.12330/2014 &22214/2015 : 28 : 24. Ideally, the 4[th] respondent ought to have first conducted an interview to the 25% quota and then to the notified vacancies for direct recruitment, even if it is scheduled on the same day. The Manager would also be aware of who should be considered for the post of HSST by transfer from HSA's which obviously has to be considered on the basis of the seniority of the teachers and a mere ascertainment of their suitability; the latter being only consideration of the educational qualification of the respective incumbents. Hence, when a senior most has is not present or has not applied then, the next senior most has to be considered. Even if the next senior HSA, is not present, then the interview should stand adjourned. Herein the next senior was present, since the petitioner was available and had applied for the post of has (Malayalam). WPC.No.12330/2014 &22214/2015 : 29 : 25. The 5[th] respondent would reiterate, that the entire details, with respect to the 5[th] respondents service and educational qualifications would be available with the Manager and the selection committee could look into it and decide on the suitability and make a recommendation. However, when the 5[th] respondent has not even applied for the post pursuant to a notification made by the Manager, it cannot be said that the 5[th] respondent ought to have been considered. Even if an application is found to be unnecessary, the 5[th] respondent ought to have attended the interview. The 5[th] respondent admits that he was informed of the interview allegedly orally; in which event he is bound to explain as to why he did not attend the interview. His explanations were not consistent and none of which are also believable. WPC.No.12330/2014 &22214/2015 : 30 : 26. Admittedly, the interview/selection was conducted on the very same day of all the applicants who applied pursuant to the notification. HSST(English) and HSST (Maths) were filled from the two senior H.S.A's. When the 5[th] respondent's application for the post of HSST (Arabic) was not available with the Management and he was not present; there was no warrant for keeping aside the selection of the one HSST post remaining reserved for 'by transfer' appointment. Definitely the next senior most H.S.A, who was available, ought to have been considered. The petitioner was the next senior most H.S.A and she was present for the interview. The H.S.A (Arabic) did not turn up for selection and had not even applied for selection. An interview was conducted for H.S.A (Malayalam), for direct recruitment; but despite the fact that the incumbent H.S.A WPC.No.12330/2014 &22214/2015 : 31 : (Malayalam), the petitioner, was lower down in the rank list; she had a claim for being appointed on 'by transfer' appointment if the 5[th] respondent was not available. The absence of the 5[th] respondent can only be said to be a deemed relinquishment. In such circumstance, this Court cannot uphold the order of the Government at Ext.P8. Ext.P8 would stand set aside. 27. The petitioner would have to be appointed as HSST (Malayalam), on 'by transfer' appointment with effect from the date on which the 6[th] respondent was appointed. The 6[th] respondent, having worked as HSST (Malayalam) in the intervening period, her salary would be disbursed to her. The difference in salary entitled to the petitioner for the post of HSST, when she was illegally kept out of employment, shall be paid by the Government WPC.No.12330/2014 &22214/2015 : 32 : and recovery steps initiated against the Manager under Rule 7 Chapter III. The 5[th] respondent also having worked as HSST (Arabic) for the intervening period from the date of his appointment shall be entitled to his salary and shall also be entitled to be continued, since otherwise the Manager would have to make a fresh appointment. The petitioner shall be appointed as HSST within a period of three weeks from the date of receipt of a certified copy of this judgment. In equity and also to ensure that justice is done, the 6[th] respondent shall be offered appointment as H.S.A, in the vacancy arising on the appointment of the petitioner as HSST, and also appointed to the next arising vacancy of HSST (Malayalam), since she was the victim of the default committed by the Manager. W.P(C) No.12330/2014 is allowed setting aside WPC.No.12330/2014 &22214/2015 : 33 : Ext P-8. The said order is sought to be implemented in W.P (C) No.22145/2015, and hence that writ petition would stand dismissed. No costs. Sd/- - (K. VINOD CHANDRAN, JUDGE) jma “W.P(C) No.22145/2015” mentioned at page 33 of the common judgment dated 15/12/2015 in W.P(C) Nos.12330/2014 and 22214/2015 is corrected and substituted as “W.P(C) No.22214/2015” as per order dated 12/08/2016 in I.A No.11577/2016 in W.P(C) No.12330/2014. Sd/- Registrar (Judicial)