SABU K.F. v. Regional Deputy Director Higher Secondary Education, Kottayam; St. Joseph's Corporate Educational Agency of CMI Schools; Sr. Merly K. Jacob

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938** ## **WP(C).No. 15779 of 2015 (V)** **----------------------------** **PETITIONER(S): -------------** **SABU K.F., KARIMTHAKARAPUZHA HOUSE, MUTTOM P.O., EDAPPILLY, IDUKKI DISTRICT.** **BY ADV. SRI.V.PHILIP MATHEW** **RESPONDENT(S):** **--------------** **1. THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, KOTTAYAM 686001.** **2. ST.JOSEPH'S CORPORATE EDUCATIONAL AGENCY OF CMI SCHOOLS. REPRESENTED BY ITS MANAGER, CMI PROVINCIAL HOUSE, P.B NO.648, KOTTAYAM 686001.** **Addl. 3. SR.MERLY K.JACOB** **H.S.S.T (HISTORY), ST.ANTONYS H.S.S., POONJAR, KOTTAYAM DISTRICT - 686 581.** **(IMPLEADED VIDE ORDER DATED 20.08.2015 IN I.A.NO.11453/15)** **R2 BY ADV. SMT.N.SANTHA R2 BY ADV. SRI.K.A.BALAN R2 BY ADV. SRI.V.VARGHESE R2 BY ADV. SRI.PETER JOSE CHRISTO R2 BY ADV. SRI.S.A.ANAND R2 BY ADV. SMT.L.ANNAPOORNA R2 & ADDL.3 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 15779 of 2015 (V)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **P1 - TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 1-6-2009** **P2 - TRUE COPY OF THE LETTER WRITTEN BY THE DIRECTOR, HIGHER SECONDARY EDUCATION TO THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, ERNAKULAM DATED 28.09.2010** **P3 - TRUE COPY OF THE ORDER ISSUED BY THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, ERNAKULAM DATED 16.11.2010** **P4 -TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 2.5.2015** **P5 - TRUE COPY OF THE SPECIAL RULES INCORPORATED IN CHAPTER XXXII OF K.E.R.** **P6 - TRUE COPY OF THE JUDGMENT REPORTED IN 2013 STPL (WEB)150 SC** **P7 - TRUE COPY OF THE GOVERNMENT ORDER G.O.(P)NO.144/2013/G EDN. DATED 22.04.2013** **P8 - TRUE COPY OF THE ORDER NO.ACD B4/27608/HSE/10 DATED 28.09.2010** **P9 - TRUE COPY OF THE ORDER RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, ERNAKULAM DATED 10.06.2010.** ## **RESPONDENT(S)' EXHIBITS** ## **-----------------------** **R2(a) - TRUE COPY OF THE ORDER NO.A2/8459/RDDE/09 DATED 10.06.2010 OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, ERNAKULAM** **R2(b) - TRUE COPY OF THE ORDER NO.A2/8459/09EDD/EKM/10 DATED 16.11.2010 OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, ERNAKULAM.** **R3(a) - TRUE COPY OF THE REPRESENTATION DATED 10.04.2015 SUBMITTED BY THE ADDITIONAL 3RD RESPONDENT TO THE 2ND RESPONDENT.** **R3(b) - TRUE COPY OF THE ORDER NO.CM-01/HSE/APPT(2) 2015 DATED 08.07.2015** **//TRUE COPY//** **P.A.TO JUDGE** **sm** ## **A.K.JAYASANKARAN NAMBIAR, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## **W.P.(C) No.15779 of 2015** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of November, 2016 ## **JUDGMENT** The petitioner was appointed as HSST(History), by the 2[nd] respondent, for the period from 01.06.2009 to 31.03.2010. The said appointment was approved by the Educational Authorities. On expiry of the leave period, and on the regular incumbent returning for duty, the petitioner had to vacate the post. Thereafter, from 01.04.2010 onwards, the petitioner remained outside the school and was awaiting a vacancy in the post of HSST(History), for seeking a fresh appointment on regular basis. It would appear that, a vacancy arose in the post of HSST(History) in the school, consequent to the retirement of the then incumbent on 31.05.2015. Anticipating the said vacancy, the petitioner submitted a representation before the 2[nd] respondent, requesting him to appoint the petitioner in the said vacancy, that would arise with effect from 01.06.2015. When there was no response to the said representation, the petitioner apprehended that, the 2[nd] respondent Manager would appoint HSAs to the said vacancy, by resorting to the by transfer route of appointment from High School Assistants. In the writ petition, the petitioner prays for a direction to the 2[nd] W.P.(c).No.15779 of 2015 : 2 : respondent to appoint him as HSST (History), in the vacancy that arose with effect from 01.06.2015, relying on the decisions of this Court in **Jayasree v. Director of Higher Secondary Education [(2009) 2 KLT 352].** 2. A counter affidavit has been filed on behalf of the 2[nd] respondent Manager, wherein, it is stated that, the total number of sanctioned post of HSST is 38. It is also stated that, there are more vacancies which have to be filled through the by transfer route of appointment from the High School Assistants, since there are more than 75% of the vacancies that are already filled up by direct recruitees. It is apparent from the averments in the counter affidavit of the 2[nd] respondent that, the 2[nd] respondent proceeds on the assumption that a ratio of 1:3 between HSAs and direct recruits has to be maintained in the post of HSST. 3. In the counter affidavit filed on behalf of the 1[st] respondent, reference is made to the Rules in Chapter XXXII, Kerala Education Rules (KER), that govern the appointment of the HSSTs and HSST (Juniors) and it is stated that the normal method of appointment of HSST is by transfer from HSST(Junior), and only in their absence, can eligible and qualified HSAs/UPSAs & LPSAs and candidates from the W.P.(c).No.15779 of 2015 : 3 : open market, be considered for appointment as HSST in the ratio of 1:3. While enumerating the appointments already made in the post of HSST in the school, the counter affidavit of the 1[st] respondent follows the stand of the 2[nd] respondent Manager in his counter affidavit. 4. I have heard the learned counsel for the petitioner and the learned standing counsel for the 2[nd] and 3[rd] respondents. 5. The short issue that arises for consideration in this case is regarding the manner in which vacancies arising in the post of HSST in the school, under the management of the 2[nd] respondent, should be filled. A perusal of the recruitment Rules in Chapter XXXII Rule 4 KER indicates that Higher Secondary School Teacher and Higher Secondary School Teacher (Juniors) are to be filled up in the following manner. ## **2. Higher Secondary School Teacher** (1) By transfer from Junior Lecturer in the subject concerned under the management/Higher Secondary School Teacher (Junior) (2) In the absence of qualified hands under clause (1) above, the vacancies shall be apportioned in the ration 1:3 between appointment by transfer and direct appointment as detailed below: (i) (a) By transfer from High School Assistants, who possess the requisite qualifications, under the W.P.(c).No.15779 of 2015 : 4 : Educational Agency (b) In the absence of qualified persons under (a) above, by transfer from qualified Upper Primary School Assistants/ Lower Primary School Assistants who possess the requisite qualification in the subject concerned, under the Educational Agency. (ii) By direct appointment Note:- (i) When qualified persons are not available to fill up he vacancies set apart for appointment by transfer under item 2(i) above such vacancies shall also be allotted for direct appointment. (ii) Appointments under item (1) above shall be made from select lists of qualified persons prepared on the basis of seniority and merit. ## **3. 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(1) 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 transfer under item 1 above, such vacancies also shall be allotted for direct appointment. W.P.(c).No.15779 of 2015 : 5 : It will be apparent from a reading of the aforequoted Rules that, the normal method of appointment of Higher Secondary School Teacher (Junior) is by transfer from qualified High School Assistants in the subject concerned under the Educational Agency, to an extent of 25% of the total posts, and 75% of the posts are to be filled up by direct recruitment. In the absence of qualified hands under the mode referred above, the appointments are to be made from among the qualified UPSAs/LPSAs in the subject concerned, under the Educational agency, and failing that, by direct recruitment. When it comes to the post of Higher Secondary School Teacher(HSST), the principal method of appointment is by transfer from HSST (Juniors). In the absence of qualified HSST(Juniors), the **vacancies** in the post of HSST are to be apportioned in the ratio of 1:3 and filled through appointment by transfer and direct appointment in the aforesaid ratio, the feeder category being High School Assistants, who possess the requisite qualification under the Educational Agency or in their absence, qualified UPSAs/LPSAs, who possess the requisite qualification in the subject concerned under the Educational Agency and direct recruits. The important point to be noted here is that, while in the case of Higher Secondary School Teacher (Junior), the maintenance of the ratio of 1:3 in the cadre strength, between HSAs W.P.(c).No.15779 of 2015 : 6 : seeking appointment through the by transfer Route, and direct recruits, is envisaged in the primary method of appointment, the maintenance of the ratio of 1:3 between the by transfer appointees and direct appointees in the post of HSST is only in the secondary method of appointment, when there is no qualified hand available for resorting the primary method of appointment by transfer from HSST (Junior). It is also to be noted that, while in the post of HSST (Junior), the ratio of 1:3 is to be applied to the cadre strength of HSST(Junior), in the post of HSST, the ratio of 1:3 is contemplated only to the vacancies that exist in the post in question. On an interpretation of the Rules, therefore, it becomes evident that, in the sole vacancy that arose in the school with effect from 01.06.2015, in the post of HSST, in the absence of a qualified HSST(Junior),who could seek promotion to the said vacancy, the Manager of the school had to resort to an appointment of a qualified HSA by transfer. This is because, it only when the vacancies are more than one, and there is no qualified HSST (Junior) for appointment through by transfer route, that a person can be appointed through the direct recruitment mode. I, therefore, find that, the prayer sought for by the petitioner in the writ petition, namely, to direct the respondents to offer him the appointment through direct recruitment to the sole vacancy that arose in the academic year 2015-16, with effect from 01.06.2015, in the post of W.P.(c).No.15779 of 2015 : 7 : HSST(History), cannot be granted. For the reasons already stated above, I also find that, the reliance by the petitioner in the decisions reported in **Thomas v. State of Kerala [(2013) 4 KLT 257], Jayaraj v. State of Kerala [(2016) 2 KLT 200], and Thampanoor Ravi v. Charupara Ravi and Others [(1999) 8 SCC 74 ]** will not come to his aid, since the said decisions do not deal with the specific issue of interpretation to be placed on Rule 4 (2) of Chapter XXXII KER. The writ petition therefore fails, and is accordingly, dismissed. I make it clear that, I have not dealt with the entitlement of the petitioner for consideration to any vacancy that may arise in future in the post of HSST(Junior) in the school, since that was not an issue raised in the present writ petition. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** sm/