Rajeeshkrishna K.R. and Manager, Higher Secondary School, Kandamangalam v. State of Kerala and Others; S. Manju v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 WP(C) NO. 1608 OF 2015** ## **PETITIONER/S:** 1 RAJEESHKRISHNA K.R., AGED 27 YEARS, LAB ASSISTANT, HIGHER SECONDARY SCHOOL, KANDAMANGALAM, KADAKKARAPPALLY P.O., CHERTHALA, ALAPPUZHA, PIN - 688 529. 2 THE MANAGER, HIGHER SECONDARY SCHOOL, KANDAMANGALAM, KADAKKARAPPALLY P.O., CHERTHALA, ALAPPUZHA, PIN - 688 529. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA SRI.V.VARGHESE ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2 DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN - 695 001. - 3 REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CIVIL STATION, KOTTAYAM, PIN - 686 001. **WP(C) Nos.1608/2015 & 3537/2018** **==> picture [7 x 9] intentionally omitted <==** 4 S.MANJU, FULL TIME MENIAL, HIGHER SECONDARY SCHOOL, KANDAMANGALAM, KADAKKARAPPALLY P.O., CHERTHALA, ALAPPUZHA, PIN - 688 529. BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR ## **OTHER PRESENT:** GP SRI APPU P S THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.08.2023, ALONG WITH WP(C).3537/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) Nos.1608/2015 & 3537/2018** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 WP(C) NO. 3537 OF 2018** ## **PETITIONER/S:** S.MANJU, AGED 36 YEARS, WIFE OF P.B THANKACHAN, FULL-TIME MENIAL, HIGHER SECONDARY SCHOOL, KANDAMANGALAM P.O KADAKKARAPPALLY, CHERTHALA688529, ALAPPUZHA DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR ## **RESPONDENT/S:** 1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAMM - 695001. 3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CIVIL STATION, KOTTAYAM - 686001. 4 THE MANAGER, HIGHER SECONDARY SCHOOL, KANDAMANGALAM P.O.KADAKKARAPPALLY, CHERTHALA688529, ALAPPUZHA DISTRICT. **WP(C) Nos.1608/2015 & 3537/2018** 4 5 SRI. K.P RAJEESH KRISHNA, LAB ASSISTANT, HIGHER SECONDARY SCHOOL, KANDAMANGALAM, P.O.KADAKKARAPPALLY, CHERTHALA-688529,ALAPPUZHA DISTRICT. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.AMMU PILLAI SMT.L.ANNAPOORNA SMT.B.ANANJANA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.K.N.REMYA SMT.N.SANTHA SRI.V.VARGHESE, SRI.APPU P.S., GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.08.2023, ALONG WITH WP(C).1608/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) Nos.1608/2015 & 3537/2018** 5 ## J U D G M E N T **[WP(C) Nos.1608/2015 and 3537/2018]** 1. This order of mine shall dispose of two writ petitions; WP(C) No.1608/2015 ('first writ petition', for short) preferred by two petitioners i.e. the appointee and Manager of Higher Secondary School, Kedamangalam, arraying one Ms.S.Manju as the fourth respondent, who is the petitioner in WP(C)No.3537/2018 ('second writ petition', for short). While the first writ petition is filed to quash order dated 1.1.2015, the second for implementation of the said order, produced as Exts.P12 and P8, respectively. 2. Since facts in both the writ petitions are common, I decided to hear and dispose of the same together. In this judgment, I rely on the status of parties and exhibits as are mentioned in the first writ petition. 3. One Sri.Rajeeshkrishna K.R. (first petitioner in the first writ petition) in **WP(C) Nos.1608/2015 & 3537/2018** **==> picture [7 x 9] intentionally omitted <==** pursuance to notification dated 16.10.2013, Ext.P1, published in 'Mathrubhumi daily' newspaper inviting applications for filling up one post of Lab Assistant, had submitted application alleged to have fulfilled the qualifications prescribed therein. After having undergone the process of selection, was appointed with effect from 6.12.2013 as Lab Assistant. His appointment as Lab Assistant was approved on 11.7.2014 vide Ext.P2, with effect from 6.12.2013. Pursuant to the approval of appointment, his salary and allowances were sanctioned and is continuing to discharge duties of Lab Assistant. 4. Fourth respondent (Ms.S.Manju) in the first writ petition, who is petitioner in second writ petition, a Full Time Menial in the High School, claimed to be the senior among nonteaching staff and eligible for appointment to the post on the basis of transfer, challenged the order of approval by filing objections. Her objections were dismissed and approval of **WP(C) Nos.1608/2015 & 3537/2018** 7 appointment was granted. Against the order of approval, a revision petition, Ext.P5, was preferred before the Government. Government by noticing the rival contentions of the parties, set aside the approval of appointment of first petitioner in first writ petition vide order dated 1.1.2015, Ext.P12, directing to fill up the resultant vacancy of Lab Assistant by appointing the next eligible candidate from the Last Grade Category, so as to provide adequate representation to that category, which is challenged in the first writ petition, while the fifth respondent therein seeks its implementation by filing the second writ petition. 5. Sri.S.P.Aravindakshan Pillay, along with Sri.Peter Jose Christo, learned counsel appearing on behalf of petitioners in the first writ petition submitted that as per the provisions of Rule 4.6 of Chapter XXXII of the Kerala Educational Rules ('KER', for short), 25% of the total posts of Lab Assistants mandatorily be **WP(C) Nos.1608/2015 & 3537/2018** 8 filled by transfer from among qualified Class IV employees in the Schools under the Educational Agency and the remaining 75% by direct appointment. Since there were two posts, the procedure for filling up the aforementioned posts of Lab Assistants, which had fallen vacant on retirement of one incumbent, was by direct recruitment. In support of this contention, relied upon the findings rendered in paragraph No.30 of Division Bench of this Court in Sabitha Cherian v. State of Kerala and Others [2022 (5) KHC 564 (DB)]. This Court , after considering all the factors, held that when there are only two posts in a school, the only way to reconcile the conflicting claims would be by adopting the method of percentage of arising vacancies, so that the first, second and third vacancies in a unit of four arising vacancies will have to go for direct recruitment and the fourth vacancy in such a unit will have to be utilized for by-transfer appointment. Thus the order of the revisional **WP(C) Nos.1608/2015 & 3537/2018** 9 authority Ext.P12 is not sustainable in the eyes of law. 6. Learned counsel appearing on behalf of fourth respondent in the first writ petition, who is petitioner in second petition does not deny the ratio decidendi culled out in the judgment in Sabitha Cherian (supra), but submitted that the judgment has come later, whereas the writ petitions were pending since 2015/2018 and if the official respondents had implemented the order perhaps, there would not have been any occasion for this Court to adjudicate this controversy. 7. I have heard the learned counsel appearing for the parties and appraised the paper books. 8. Rule 6 of Chapter XXXII of the KER for Kerala Higher Secondary Subordinate Service Rules framed under KER deals with qualifications to various categories and category No.6 thereof deals with Lab Assistant, which reads as under: **WP(C) Nos.1608/2015 & 3537/2018** ## 10 “(6) Laboratory Assistant - (1) By Direct recruitment - (1) Pass in S.S.L.C. Examination. - (2) Pass in Laboratory Attender’s Test conducted by Kerala Public Service Commission. ## (2) By Transfer - (1) Pass in VII Std. Examination. - (2) Pass in Laboratory Attender’s Test conducted by Kerala Public Service Commission. Note: Pass in Laboratory Attender’s Test is not compulsory at the time of appointment. Candidates shall pass the test during the period of probation.” Whereas Rule 4.6 of Chapter XXXII KER reads as under: “6. Laboratory Assistant 1. By direct appointment, and 2. By transfer from among qualified last grade employees in Schools under the Educational Agency. Note: 25% of the total posts of Laboratory Assistants shall be filled up by transfer from among qualified class IV employees in the Schools under the Educational Agency and the remaining 75% by direct appointment. **WP(C) Nos.1608/2015 & 3537/2018** 11 Appointment to the said 25% would be on the basis of seniority. In the absence of qualified candidates under item 2 above such vacancies shall be filled up by direct appointment.” 9. In the instant case, concededly on retirement of one incumbent, one post of Lab Assistant in the year 2013 had fallen vacant. It was in that background, second petitioner/manager in the first writ petition caused notification, Ext.P1, for direct recruitment. The revisional authority, in my view, had not considered applicability of the Rules in correct perspective. Majority share for manning the posts of Lab Assistant has to be by direct recruitment being 75% reservation, vis-a-vis 25% by transfer, particularly when it is a third vacancy as two vacancies had already been filled up first by direct recruitment and the second by transfer. **WP(C) Nos.1608/2015 & 3537/2018** 12 ## Paragraph No.30 of the decision in Sabitha Cherian (supra) reads as under: “30. The upshot of the above discussion is that this Court is of the view that, for the purpose of harmonising the conflicting claims, in a case where the total number of sanctioned posts of Laboratory Assistant in an aided Higher Secondary School is only two posts, then the only way to reconcile the conflicting claims would be by adopting the method of percentage of arising vacancies, so that the first, second and third vacancies in a unit of 4 arising vacancies will have to go for direct recruitment and the fourth vacancy in such a unit will have to be utilized for by-transfer appointment.” 10. Relying upon the ratio decidendi culled out from the decision in Sabitha Cherian (supra), the order of the revisional authority dated 1.1.2015 Ext.P12 is not sustainable. Accordingly, first writ petition is allowed and order dated 1.1.2015, Ext.P12, is set aside and order of approval dated 11.7.2014, Ext.P2, is restored. It is pertinent to note that first petitioner in the first writ petition by virtue of interim order is **WP(C) Nos.1608/2015 & 3537/2018** **==> picture [13 x 9] intentionally omitted <==** continuing to man the post of Lab Assistant and enjoying the benefit of salary and others. Consequential benefits, if any, are also directed to be paid to him as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Second writ petition, in view of the findings aforementioned, is dismissed. Pending interlocutory applications, if any, in the writ petitions would stand dismissed. Sd/AMIT RAWAL JUDGE jg 14 ## **WP(C) Nos.1608/2015 & 3537/2018** ## **APPENDIX OF WP(C) 3537/2018** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE APPROVED APPOINTMENT ORDER OF THE PETITIONER DATED 3.8.2006. - EXHIBIT P1(A) TRUE COPY OF THE APPROVED APPOINTMENT ORDER OF THE PETITIONER DATED 6.7.2007. - EXHIBIT P2 TRUE COPY OF THE ORDER OF THE REGIONAL DEPUTY DIRECTOR, KOTTAYAM DATED 11.7.2014. - EXHIBIT P3 TRUE COPY OF THE REQUEST OF THE PETITIONER TO THE MANAGER DATED 24.10.2013. - EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT DATED 16.12.2013. - EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT DATED 23.12.2013. - EXHIBIT P6 TRUE COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT DATED 9.1.2014. - EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE GOVERNMENT DATED 19.07.2014, - EXHIBIT P8 TRUE COPY OF THE G.O (RT) NO.02/2015/G.EDN. DATED 01.01.2015 OF THE GOVERNMENT. - EXHIBIT P9 TRUE COPY OF THE POSTAL COVER EVIDENCING REFUSAL OF THE REPRESENTATION BY THE MANAGER. 15 ## **WP(C) Nos.1608/2015 & 3537/2018** ## **APPENDIX OF WP(C) 1608/2015** PETITIONER EXHIBITS EXT.P1: TRUE COPY OF THE NOTIFICATION DATED 16/10/2013 PUBLISHED IN "MATHRUBHOOMI" DAILY. EXT.P2: TRUE COPY OF THE ORDER NO. 84/5649/HSE/KTM/2014 DATED 11/07/2014 OF THE 3RD RESPONDENT. EXT.P2(A): TRUE COPY OF THE APPOINTMENT ORDER NO. M/03/6-12-13 DATED 06/12/2013 OF THE FIRST PETITIONER. EXT.P3: TRUE COPY OF THE ORDER NO. B6/2531/2014/K.DIS. DATED 10/11/2014 OF THE DISTRICT EDUCATIONL OFFICER, CHERTHALA. EXT.P4: TRUE COPY OF THE ORDER NO. ACD.A3/63833/2013/HSE DATED 09/01/2014 OF THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF THE PETITION DATED 19/07/2014 FILED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT. EXT.P6: TRUE COPY OF THE JUDGMENT IN WPC NO. 20040 OF 2014-D OF THIS HON'BLE COURT. EXT.P7:TRUE COPY OF THE ORDER NO. ACD.B1/5872/HSE/2003 DATED 24/01/2004 OF THE 2ND RESPONDENT. EXT.P8: TRUE COPY OF THE GO(MS)NO. 79/2003/GEDN. DATED 28/03/2003. EXT.P9: TRUE COPY OF THE GO(MS)NO. 299/2004/GEDN. DATED 24/09/2004. EXT.P10: TRUE COPY OF THE GO(MS) NO. 354/2004/GEDN. DATED 24/11/2004. **WP(C) Nos.1608/2015 & 3537/2018** **==> picture [13 x 9] intentionally omitted <==** EXT.P11: TRUE COPY OF THE ARGUMENT NOTE FILED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P12: TRUE COPY OF THE GO(RT) NO.2/2015/G.EDN. DATED 01/01/2015. RESPONDENTS' EXHIBITS EXT.R4(a) : TRUE COPY OF APPLILCATION SUBMITTED BEFORE THE MANAGER DATED 24.10.2013. EXT.R4(b) : TRUE COPY OF LETTER BEFORE THE REGIONAL DEPUTY DIRECTOR DATED 16.12.2013. EXT.R4(c) : TRUE COPY OF REGISTERED COVER DATED 30.12.2013.