High Court of KeralaSingle Judge2019-01-25The Court allowed WP(C).No.37501/2017 and dismi...

Saritha P.V. vs State of Kerala & Others (W.P.(C). Nos. 37501/2017 & 38408/2017)

Case / Petition Number:WP(C).No. 37501 of 2017 & WP(C).No. 38408 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhamed Mustaque
Judgment Date: 2019-01-25
Court Decision / Holding: W.P.(C).No.37501/2017 is allowed and accordingly, W.P.(C).No.38408/2017 is dismissed. The Manager is directed to implement G.O.(RT).No.3870/2017/GEDN. Dated 24/10/2017 within one month. No costs.
Final Disposition: The Court allowed WP(C).No.37501/2017 and dismissed WP(C).No.38408/2017; directive to implement G.O.(RT).No.3870/2017/GEDN within one month; no costs awarded.

Parties to the Case

Appellants / Petitioners

Saritha P.V.
Elizabeth Kuriaokose (HSST)
The Manager, Iqbal Higher Secondary School, Ajanur, Kasaragod (through representative)

Respondents

The State of Kerala represented by the Secretary to Government, General Education Department, Govt. Secretariat (Annex) Thiruvananthapuram
The Director Higher Secondary Education Department, Housing Board Building, Santhinagar, Thiruvananthapuram
The Regional Deputy Director Higher Secondary Education Department, Regional Office, Kannur, Payyambalam P.O., Kannur District
The Manager, Iqbal Higher Secondary School, Ajanur, Kolavayal P.O., Kasaragod District
SMT. P.V. Saritha High School Assistant (English), Iqbal H.S.S., Ajanur, Kasaragod
Sri. R. Assis High School Assistant (English), Iqbal H.S.S., Ajanur, Kasaragod

Legal Representation & Advocates

Counsels for Petitioners

• Sri Murali Pallath
• Sri M. Sasindran
• Sri V.A. Muhammed
• Sri M. Sajjad

Case Synopsis & Summary

The dispute concerns competing claims for the post of Higher Secondary School Teacher (HSST) at Iqbal Higher Secondary School, Ajanur, Kasaragod. Saritha P.V., presently a High School Assistant (English), sought by-transfer appointment to the HSST post, challenging the appointment of Elizabeth Kuriaokose by the Manager. The Regional Deputy Director Kannur ruled for by-transfer appointment, which was affirmed by the Director of Higher Secondary Education and the Government in revision. The Manager and Elizabeth challenged this in a separate writ petition. The core legal issue is the interpretation of Rule 4(2) of Chapter XXXII, Kerala Education Rules, 1958, on the method of appointment to HSST posts, specifically whether vacancies arising after the 2001 Rule amendment should be filled by transfer or by direct appointment, and how the 25:75 ratio between transfer and direct appointments is to be computed (without retrospective reckoning to pre-rule vacancies). The Bench held that cadre strength cannot govern the ratio, and that the first arising vacancy after the Rule’s introduction should be allocated to the transfer category if eligible, upholding Saritha P.V.’s claim. Consequently, WP(C).No.37501/2017 was allowed and WP(C).No.38408/2017 was dismissed, with a direction to implement GO RT 3870/2017 within a month. The judgment relies on Ajitha Kumari v. Shamma and related authorities to reject cadre-strength-based fixation of the ratio.

Provisions of Law Cited

Rule 2 of Chapter XXXII, Kerala Education Rules, 1958 (Method of appointment and qualifications)Rule 4(2) of Kerala Education Rules, 1958 (Method of appointment for HSST) including sub-clauses (i)(a), (i)(b), and (ii) By transfer and By direct appointment; Note (i) and (ii) illustrating seniority and merit basisRule 5 of General Rules in Part II of KS & SSR, 1958 (cadre strength not to be basis for ratio)The introduction of Rule in 2001 (Rule 4(2) was introduced in 2001)G.O.(RT).No.3870/2017/GEDN. Dated 24/10/2017

Legal Doctrines & Maxims

Cadre strength cannot be the basis for determining the ratio of by-transfer to direct appointment (Ajitha Kumari v. Shamma)
First arising vacancy post-rule introduction should be allocated under the statutory framework (Rule 4(2))
Non-retroactive reckoning of vacancies for ratio calculation is not mandated by Rule 4(2) (2)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that Rule 4(2) of the Kerala Education Rules, 1958, as amended in 2001, prescribes the method of appointment to HSST and that, in the first arising vacancy after the amendment, the transfer category must be given effect to, upholding Saritha P.V.’s claim for by-transfer appointment rather than direct recruitment. They contended that cadre strength cannot determine the ratio and that the rule does not require retroactive reckoning of past vacancies; instead, it enshrines the first arising vacancy principle and seniority/merit basis for select lists.

Contentions of Respondents

The respondents contended that vacancies must be filled according to the turn, maintaining the ratio of 1:3 between transfer and direct appointments, and that the vacancies already filled must be considered when computing the ratio. They argued that cadre strength and the number of by-transfer appointments should influence the choice of candidate, and that direct appointment could be justified to preserve the established ratio.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Ajitha Kumari v. Shamma	2009 (1) KLT 808	Positive	Cadre strength cannot be the basis to determine the ratio for by-transfer vs direct appointment; relied upon by the Division Bench and subsequent higher courts.
W.A.No.1504/2015	W.A.No.1504/2015	Positive	Division Bench affirmed Ajitha Kumari’s view on cadre strength not being the basis for ratio.
Civil Appeal arising from W.A.No.1504/2015	Civil Appeal arising from WA No.1504/2015	Positive	Apex Court also adopted the view that cadre strength cannot be the basis for the ratio.
WA 2609/2015	WA No.2609/2015	Mentioned Only	Listed as Exhibit P11; referenced but not analyzed within the judgment.
WP(C).4267/2017	WP(C).No. 4267/2017	Mentioned Only	Judgment dated 1.6.2017 in WP(C) No. 4267/2017 cited as Exhibit P12; not discussed in detail.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY ,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940** ## **WP(C).No. 37501 of 2017** ## **PETITIONER:** **SARITHA.P.V AGED 38 YEARS, W/O VINOD KUMAR M.K, HIGH SCHOOL ASSISTANT (ENGLISH, IQBAL HIGHER SECONDARY SCHOOL AJANUR, KOLAVAYAL PO, KASARAGOD DISTRICT.PIN.671531** **BY ADVS. SRI.MURALI PALLATH SRI.M.SASINDRAN** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT (ANNEX)THIRUVANANTHAPURAM. PIN.695001** - **2 THE DIRECTOR HIGHER SECONDARY EDUCATION DEPARTMENT, HOUSING BOARD BUILDING, SANTHINGAR,THIRUVANANTHAPURAM. PIN.695001** - **3 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION DEPARTMENT, REGIONAL OFFICE, KANNUR, PAYYAMBALAM PO, KANNUR DISTRICT.PIN.670001** **4 THE MANAGER IQBAL HIGHER SECONDARY SCHOOL,AJANUR, KOLAVAYAL PO, KANHANGAD, KASARGOD DIST.PIN.671531** W.P.(C).Nos. 37501/2017 & 38408/2017 **-2-** **WP(C).No. 37501 of 2017** **5** **ELIZABETH KURIAKOSE HSST (ENGLISH), (UNAPPROVED), IQBAL HSS,AJANUR KOLVAYAL, PO, KASARAGOD DIST.PIN.671531** **BY ADV. SRI.V.A.MUHAMMED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.01.2019, ALONG WITH WP(C).38408/2017, THE COURT ON 25.1.2019 DELIVERED THE FOLLOWING:** W.P.(C).Nos. 37501/2017 & 38408/2017 **-3-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY ,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940** **WP(C).No. 38408 of 2017** ## **PETITIONERS:** - **1 THE MANAGER, IQBAL HIGHER SECONDARY SCHOOL AJANUR, P.O.KOLAVAYAL, KASARAGODE DIST- 671 531 REP. BY DR.M.A.ABDUL AZEEZ** - **2 ELIZABETH KURIAKOSE HIGHER SECONDARY SCHOOL TEACHER (ENGLISH, IQBAL HIGHER SECONDARY SCHOOL, AJANUR,P.O.KOLAVAYAL, KASARAGODE DIST- 671 531** **BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REP. BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE-II, THIRUVANANTHAPURAM- 695 001** - **2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDING, SANTHI NAGAR,THIRUVANANTHAPURAM- 695 001** W.P.(C).Nos. 37501/2017 & 38408/2017 **-4-** ## **WP(C).No. 38408 of 2017** - **3 THE REGIONAL DEPUTY DIRECTOR OF HITGHER SECONDARY EDUCATION KANNUR- 670 001** - **4 SMT.P.V.SARITHA HIGH SCHOOL ASSISTANT (ENGLISH, IQBAL HIGHER SECONDARY SCHOOL, AJANUR,P.O.KOLAVAYAL, KASARAGODE DIST- 671 531** - **5 SRI.R.ASSIS HIGH SCHOOL ASSISTANT (ENGLISH, IQBAL HIGHER SECONDARY SCHOOL, AJANUR, P.O.KOLAVAYAL, KASARAGODE DIST- 671 531** **BY ADVS. SRI.MURALI PALLATH SRI.M.SASINDRAN** ## **SRGP S.GOPINATHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.01.2019, ALONG WITH WP(C).37501/2017, THE COURT ON 25.1.2019 DELIVERED THE FOLLOWING:** W.P.(C).Nos. 37501/2017 & 38408/2017 -1- ## **J U D G M E N T** The dispute in these writ petitions is in regard to the rival claim of Saritha P.V., the petitioner in W.P.(C).No.37501/2017 and Elizabeth Kuriakose, the second petitioner in W.P.(C).No.38408/2017 in regard to the post of Higher Secondary School Teacher (HSST) in Iqbal Higher Secondary School, Ajanur. 2. The manager appointed Elizabeth Kuriakose by way of direct recruitment. Saritha P.V, who was working as an H.S.A in the said school, raised a claim for by-transfer appointment. 3. The Regional Deputy Director, Kannur found that the post of HSST should be filled up by, by-transfer appointment. Accordingly, he upheld the claim of Saritha P.V. In appeal before the Director of Higher Secondary Education, the order of the Regional Deputy Director was affirmed. The Government in revision also upheld the claim of Saritha P.V. The Manager along with Elizabeth challenge the above orders in W.P. (C).No.38408/2017. Saritha P.V in W.P.(C).No.37501/2017 seeks to implement the government order, G.O.(RT).No.3870/2017/GEDN. Dated 24/10/2017. W.P.(C).Nos. 37501/2017 & 38408/2017 **-2-** 4. It is appropriate to refer the relevant Rules in regard to the method of appointment. Rule 2 of Chapter XXXII of the Kerala Education Rules, 1958 reads as follows: “2. Method of appointment and qualification of Teachers and Non-Teaching Staff - Notwithstanding anything contained in these rules the method of appointment and qualifications of the teaching and non-teaching staff in the aided Higher Secondary School in the State shall be as prescribed in this Chapter.” Rule 4(2) deals with appointment of Higher Secondary School Teacher. It reads as follows: **4. Method of Appointment** :- Appointment to the various categories specified in Column (2) of the Table below shall be made by the method of appointment specified against each in column (3) thereof-- Sl. No. Category Method of Appointment (1) (2) (3) 2. Higher Secondary (1) By transfer from Junior Lecturer in the subject School Teacher 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 ratio 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 Educational Agency. W.P.(C).Nos. 37501/2017 & 38408/2017 **-3-** Sl. No. Category Method of Appointment (1) (2) (3) 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 the vacancies set apart for appointment by transfer under item 2(i) above such vacancies shall also be alloted for direct appointment. (ii) Appointments under item (I) above shall be made from select lists of qualified persons prepared on the basis of seniority and merit. The above Rule was introduced in the year 2001. 5. The vacancy in question is the first arising vacancy after the introduction of the Rule. In the light of Rule 4(2)(2), Saritha P.V would claim that the first arising vacancy would go to High School Assistants in the absence of a candidate [HSST (Jr.)] as referred in Rule 4(2)(i) 6. According to the learned counsel for the Manager and Elizabeth, vacancies will have to be filled in accordance with the turn since there are more than 12 HSSTs and 1 HSST, who were appointed by way of by-transfer appointment, and therefore, the post in question should go to a W.P.(C).Nos. 37501/2017 & 38408/2017 **-4-** direct recruitee. The learned counsel for the Manager also submitted that the ratio will have to be maintained at all time and ratio cannot be disturbed. It is further submitted that while reckoning ratio, as referred in Rule 4(2)(2), all the vacancies which have been filled earlier would have to be reckoned. According to him, it is an alternative mode of appointment. The turn has to be worked out with reference to the vacancies already filled. 7. A Division Bench of this Court in **AjithaKumari v. Shamma [2009 (1) KLT 808]** held that cadre strength cannot be the basis to workout the ratio and, Rule 5 of the General Rules in Part II of the Kerala State Subordinate Services Rules, 1958 (KS & SSR) is inapplicable. The Division Bench by judgment in W.A.No.1504/2015 also affirmed the said view. In the Civil Appeal arising from the above W.A.No.1504/2015, the Apex Court also had taken the view that cadre strength cannot be the basis. 8. Therefore, cadre strength cannot be the basis for determining the ratio. The next point that arises for consideration is whether the turn based appointment should be considered or not. Admittedly, this is the first arising vacancy after the implementation of the statutory rules. Nowhere in W.P.(C).Nos. 37501/2017 & 38408/2017 **==> picture [22 x 9] intentionally omitted <==** the Rule it is stated that the vacancies will have to be reckoned retrospectively to workout the ratio. It is true that prior to introduction of the Rules, ratio of 25:75 was followed for by-transfer appointment and direct appointment by Executive Order. But that does not mean that the vacancies as referred in the Rule 4(2)(2) will have to be worked out with reference to the filling up of vacancies prior to the introduction of the Rules. In the Rule, nowhere it is stated that the ratio has to be worked out with reference to the turn based vacancies already filled prior to the introduction of the Rule. Therefore, I am of the view that the authorities and the Government were justified in upholding the claim of Saritha P.V. Therefore, W.P.(C).No.37501/2017 is allowed and accordingly, W.P. (C).No.38408/2017 is dismissed. The manager is directed to implement the G.O.(RT).No.3870/2017/GEDN. Dated 24/10/2017 within one month. No costs. Sd/- A.MUHAMED MUSTAQUE, JUDGE ms W.P.(C).Nos. 37501/2017 & 38408/2017 **-6-** ## **APPENDIX OF WP(C) 37501/2017** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 3.7.2006.** - **EXHIBIT P2 TRUE COPY OF CERTIFICATE OF MA DEGREE PASSED BY THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF DEGREE IN BACHELOR OF EDUCATION PASSED BY THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE CERTIFICATE OF STATE ELIGIBILITY TEST PASSED BY THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF COMPLAINT PETITION DATED 25.6.2015.** - **EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 13.8.2015 OF THE HON'BLE HIGH COURT IN WP(C) 24616/2015** - **EXHIBIT P7 TRUE COPY OF ORDER NO.A4/3400/2015 DATED 11.12.2015 PASSED BY THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF LETTER DATED 22.2.2016 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** **EXHIBIT P9 RUE COPY OF LETTER DATED 22.2.2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P10 TRUE COPY OF ORDER NO.ACD. B3/2195/2015/HSE DATED 29.12.2016 ISSUED BY THE 2ND RESPONDENT.** W.P.(C).Nos. 37501/2017 & 38408/2017 **-7-** ## **APPENDIX OF WP(C) 37501/2017** **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 28.1.2017 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** **EXHIBIT P12 TRUE COPY OF JUDGMENT DATED 1.6.2017 IN WP(C) NO.4267/2017** **EXHIBIT P13 TRUE COPY OF G.O(RT) NO.3870/2017/GEDN DATED 24.10.2017. EXHIBIT P14 TRUE COPY OF LETTER DATED 5.11.2017** RESPONDENTS' EXTS: NIL \\TRUE COPY// PS TO JUDGE ms W.P.(C).Nos. 37501/2017 & 38408/2017 **-8-** ## **APPENDIX OF WP(C) 38408/2017** **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO.A3/10599/2011/K.DIS. DATED 25-10-2011 OF THE REGIONAL DEPUTY DIRECTOR** **EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 23-03-2015** **EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 28-04-2015** - **EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 01-06-2015** **EXHIBITP5 TRUE COPY OF THE ODER NO.A4/3400/2015 DATED 11-12-2015 OF THE 3RD RESPONDENT EXHIBITP6 TRUE COPY OF THE ORDER NO.A4/2860/2015/K.DIS. DATED 26-02-2016 OF THE 3RD RESPONDENT EXHIBIT P7 TRUE COPY OF THE ORDER NO.ACD.B3/2195/2015/HSE DATED 29-12-2016 OF THE JOINT DIRECTOR OF HIGHER SECONDARY EDUCATION (O/O THE 2ND RESPONDENT) EXHIBITP8 TRUE COPY OF THE G.O(RT) NO.3870/2017/G.EDN. DATED 24-10-2017 OF THE GOVERNMENT EXHIBIT P9 TRUE COPY OF THE DETAILS OF APPOINTMENTS MADE IN THE CATEGORY OF HSST (SENIOR) SINCE 1991 EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN WPC NO.20737/2015-N DATED 14-10-2015** W.P.(C).Nos. 37501/2017 & 38408/2017 **-9-** ## **APPENDIX OF WP(C) 38408/2017** **EXHIBIT P11** **TRUE COPY OF THE JUDGMENT IN WA NO.2609/2015 DATED 19-01-2016** **EXHIBIT P12** **TRUE COPY OF THE PETITION FILED BY THE PETITIONER DATED 30.07.2018** **EXHIBIT P13** **TRUE COPY OF THE HEARING NOTICE ISSUED BY THE GOVERNMENT DATED 02.09.2018** **EXHIBIT P14** **TRUE COPY OF THE HEARING NOTE SUBMITTED BY THE PETITONER DATED 12.09.2018** RESPONDENTS' EXTS: NIL \\TRUE COPY// PS TO JUDGE ms