Thomas Joseph K. v State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 24549 OF 2019`** ## **`PETITIONER:`** ``` THOMAS JOSEPH K., AGED 43 YEARS, S/O. K.T. JOSEPH, KAROTTUKIZHAKKAL HOUSE, VILAYODI P.O., CHITTOOR, PALAKKAD DISTRICT-678103, HIGH SCHOOL ASSISTANT, K.K.M.H.S.S. VANDITHAVALAM, PALAKKAD DISTRICT, PIN-678534. BY ADV PAULSON THOMAS ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.` - `2 THE DIRECTOR, DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM, PIN-695001.` - `3 THE REGIONAL DIRECTOR, OFFICE OF THE REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION, CIVIL STATION, MALAPPURAM-676505.` - `4 THE MANAGER, K.K.M.H.S.S., VANDITHAVALAM, PALAKKAD DISTRICT-678534.` - `ADDL.R5 THE DEPUTY DIRECTOR OF EDUCATION, QM65 + F9W, CIVIL STATION, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, KERALA, 678001` ``` IS SUO MOTU IMPLEADED AS ADDITIONAL 5TH RESPONDENT AS PER THE ORDERS DATED 04.08.2022. ``` ``` BY ADVS.SRI.K.M.FAISAL, GOVERNMENT PLEADER SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2023, ALONG WITH WP(C).29889/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **2** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 WP(C) NO. 29889 OF 2022 ``` ## **`PETITIONER:`** ``` THOMAS JOSEPH K. AGED 48 YEARS S/O. K.T. JOSEPH, KAROTTUKIZHAKKAL HOUSE, VILAYODI P.O., CHITTUR, PALAKKAD DISTRICT, PIN - 678 103, HIGH SCHOOL ASSISTANT, K.K.M.H.S.S., VANDITHAVALAM, PALAKKAD DISTRICT, PIN - 678 534, (NOW ON DEPLOYMENT BRC, CHITTUR BY ORDER OF THE 5TH RESPONDENT DATED 14-07-2017). BY ADVS. BENOY THOMAS PAULSON THOMAS ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.` - `2 THE DIRECTOR OF GENERAL EDUCATION, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, JAGATHY, THIRUVANANTHAPURAM, PIN - 695 005.` - `3 THE REGIONAL DIRECTOR, OFFICE OF THE REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION, CIVIL STATION, MALAPPURAM, PIN - 676 505.` - `4 THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, KENATHU PARAMBU, KUNATHURMEDU, PALAKKAD, KERALA, PIN - 678 001.` - `5 THE MANAGER, K.K.M.H.S.S., VANDITHAVALAM, PALAKKAD DISTRICT, PIN - 678 534.` W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **3** ``` 6BLOCK PROGRAMME OFFICER, BLOCK RESOURCE CENTRE (BRC), CHITTUR, PIN - 678 101. PALLAKKAD DISTRICT. BY ADVS. SAJJAD M V.A.MOHAMMED(M-262) ``` ## **`OTHER PRESENT:`** ``` SRI.K.M.FAISAL, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2023, ALONG WITH WP(C).24549/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **4** **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).Nos.24549 of 2019 & 29889 of 2022 ---------------------------------------------Dated this the 07[th ] day of March, 2023** ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing these writ petitions by a common judgment. 2. Both the writ petitions are filed by one Thomas Joseph K., who is working in K.K.M.H.S.S., Vandithavalam, Palakkad. I will narrate the facts in W.P.(C). No.24549/2019 first. Petitioner is High School Assistant (HSA) in the 4[th] respondent's school with effect from 01.10.2007. The petitioner completed 11 years of service as HSA. According to the petitioner, he is having M.A. Economics, B.Ed. Social Studies and pass in State Eligibility Test in Economics and therefore fully qualified for appointment as Higher Secondary School Teacher (HSST) in Economics. A vacancy of HSST (Jr.) Economics arose in K.K.M.H.S.S., Vandithavalam of which the 4[th] respondent is the Manager, due to the retirement of one Udayakumar A. on 30.04.2016. Hence a vacancy arose on 01.05.2016. According to the petitioner, since the vacancy W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **5** falls in the 25% quota set apart for qualified in-service teachers, he staked a claim and since the Manager attempted for direct recruitment, he approached this Court earlier. The said writ petition was finally disposed of by Ext.P5 judgment wherein this Court directed the Regional Deputy Director (RDD), Malappuram to take a decision in respect of the claim of the petitioner. In pursuance to the judgment, the RDD issued Ext.P6 order finding that the vacancy falls in the 25% quota and the petitioner is qualified and eligible as on the date of occurrence of vacancy. The grievance of the petitioner is that, in spite of such a finding, the RDD refused to give directions to the Manager to appoint the petitioner. It is submitted that though petitioner was working in the parent school at the time of occurrence of vacancy, subsequently he was included in the list of protected teachers and deployed to another institution with effect from 15.07.2017. The claim of the petitioner for appointment is to be decided with reference to the date of occurrence of vacancy, i.e., 01.05.2016 is the submission. Therefore the deployment in 2017 is inconsequential. It is also submitted that the staff fixation for W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **6** the academic year 2016-17 will be complete on 15.07.2016. As on that date, the petitioner is working in the school. In such circumstances, it is submitted that the petitioner is entitled the post of HSST (Junior) which arose on 01.05.2016. It is further submitted that the vacancy arose on 01.05.2016 and the staff fixation for the academic year 2016-17 will be completed on 15.07.2016. It is submitted that the staff fixation was ordered only in 2017-18 and found that there is a reduction of one post of HSST which leads to the deployment of the petitioner. Hence it is submitted that the petitioner is entitled the post of HSST (Junior). Therefore this writ petition is filed with following prayers: - i. Declare that petitioner is entitled to appointment by transfer as HSST (Jr.) Economics w.e.f. 01-052016 the date of occurrence of vacancy arose due to retirement of Udayakumar A. HSST (Jr.) Economics, with all service benefits admissible to HSST (r.) notionally w.e.f. 01-05-2016. ii. issue appropriate consequential directions to appoint the petitioner by transfer as HSST (Jr.) Economics w.e.f. 01-05-2016 the date of occurrence of vacancy arose due to retirement of Udayakumar A. HSST (Jr.) Economics, in the 4th respondents school and direct to grant service W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **7** - benefits of HSST (Jr.) notionally w.e.f. 01-05-2016. - iii. direct respondents 4 & 3 to appoint and approve the petitioner as HSST (Jr.) Economics by transfer respectively in implementation of the findings in P6 order of the RDD ignoring the decision therein to seek clarification from the Government. - iv. declare that the petitioner having been working against a sanctioned post of HSA in the school as per the staff fixation order on the date of occurrence of vacancy of HSST (Jr.) Economics i.e. 01-05-2016, his subsequent deployment in the year 2017 is of no consequence as far as his entitlement for appointment by transfer to the post of HSST (Jr.) Economics is concerned. - v. Issue a writ of certiorari setting aside the pernicious portion of P6 order of the RDD to the extent it sought clarification of the Government after having found that petitioner is eligible for appointment by transfer as HSST (Jr.) Economics in the vacancy arose on 01-05-2016. ## (SIC) ## 3. When this writ petition was pending consideration, this Court, on 04.08.2022, passed the following order: - “The Deputy Director of Education, - Palakkad, is suo motu impleaded as the additional 5[th] respondent. 2. I have heard Sri.Paulson Thomas, the learned counsel appearing for the petitioner, and the W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **8** learned Government Pleader. 3. It appears that Ext.P13 request has been made by the 4[th] respondent before the DDE, Palakkad, requesting to bring back the petitioner to the parent school from BRC, Chittoor. As an interim measure, there will be a direction to the additional 5[th] respondent to consider Ext.P13 within a period of one month.“ 4. As directed in the above order, an order was passed rejecting the claim of the petitioner to come to the parent school. That order is challenged in W.P.(C). No.29889/2022 and the order is produced as Ext.P15 in that case. The prayers in W.P.(C). No.29889/2022 are extracted hereunder: - i. Issue appropriate writ, order or direction setting aside Exhibit-P15 dated 28-03-2022 issued by the 4[th] respondent. - ii. Issue consequential directions directing 5[th] respondent Manager to appoint the petitioner by transfer as HSST (Jr.) Economics and HSST (Economics) w.e.f. the dates of occurrence of respective vacancies viz. 01-05-2016 and 01-052019 and further direct the 4[th] and 6[th] respondents to relieve the petitioner forthwith from BRC, Chittur to facilitate his joining the higher secondary section of the school of the 5[th] respondent after reporting to the Principal of the W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **9** school as HSST (Economics) without delay and further direct the 5th respondent to forward the proposal of the said appointments to the 3rd respondent approving authority for consideration of approval within the time limit to be fixed by this Hon'ble Court. iii. Issue consequential directions directing respondents 1 to 3 to ensure that the 5[th] respondent Manager appoints the petitioner by transfer as HSST (Jr.) Economics and HSST (Economics) w.e.f. the dates of occurrence of respective vacancies viz.01-05-2016 and 01-052019 and that the 4[th] and 6[th] respondents relieve the petitioner forthwith from BRC, Chittur to facilitate his joining the higher secondary section of the 5[th] respondent's school after reporting to the Principal of the school as HSST (Economics) without delay and further direct the 5th respondent to forward the proposal of the said appointments to the 3[rd] respondent approving authority for consideration of approval within the time limit to be fixed by this Hon'ble Court. iv. Dispense with filing of the translation of vernacular documents. - v. Issue any other writ, order or direction as deemed fit by this Honourable court. ## (SIC) 5. Heard the learned counsel for the petitioner and W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **10** the learned Government Pleader. I also heard the learned counsel for the Manager. 6. The short point raised by the petitioner is that the vacancy of HSST (Junior) arose on 01.06.2016. It is the submission of the petitioner that as on that date, the petitioner was in the parent school itself. He was deployed because of the reduction of post only on 15.07.2017. Therefore it is submitted that the petitioner is entitled by-transfer promotion to the post of HSST with effect from 01.06.2016. The counsel for the petitioner also takes me through Serial No.3 of Rule 4 in Chapter XXXII KER. It is submitted that by-transfer appointment from qualified HSA in the subject concerned under the Education Agency is mentioned in Serial No.3. The petitioner was in the school as on the date of arising vacancy is the submission. The Government Pleader on the other hand submitted that at the time when the matter was considered, the petitioner was deployed and he was not in the Educational Agency; hence the RDD passed the impugned order and there is nothing to interfere with the same. 7. This Court considered the contentions of the petitioner and the Government Pleader. It is an admitted fact W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **11** that the petitioner was deployed from the school because of the division fall only on 15.07.2017. It is also an admitted fact that the vacancy arose on 01.06.2016. If that be the case, it is clear that as on the date on which the vacancy arose, the petitioner was in the parent school itself. In such situation, according to me, the petitioner is entitled by-transfer to the post of HSST (Junior) with effect from 01.06.2016. The contention of the Government Pleader that, when the issue was considered, the petitioner was already deployed and he was not in the school, need not be considered in this case because the petitioner was available in the parent school as on 01.05.2016 on which the date the vacancy arose. Therefore, according to me, the RDD ought to have passed consequential order directing the Manager to submit the proposal for appointing the petitioner as HSST (Junior) by transfer. Therefore the petitioner should succeed in these writ petitions. The counsel for the petitioner submitted that if the petitioner is appointed as HSST (Junior) by transfer, he is entitled the post of HSST which arose on 01.05.2019. That question is left open. Once the petitioner is appointed, he is W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **12** free to agitate it separately. Therefore, these writ petitions are disposed of in the following manner: 1. The Manager, K.K.M.H.S.S., Vandithavalam, Palakkad District, is directed to submit a proposal appointing the petitioner by transfer to the post of Higher Secondary School Teacher (HSST) (Junior) with effect from 01.06.2016 to the Regional Deputy Director of Higher Secondary Education (RDD), Malappuram, within one month from the date of receipt of a copy of this judgment. 2. Once such a proposal is received, the RDD will consider the same and approve the appointment in accordance with law, if it is otherwise in order, as expeditiously as possible, at any rate, within one month from the date receipt of the proposal. 3. All other contentions of the petitioner are left open. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **13** ## **`APPENDIX OF WP(C) 24549/2019`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE APPOINTMENT CUM APPROVAL ORDER OF THE PETITIONER AS HSA. ``` ``` EXHIBIT P2TRUE COPY OF THE M.A. ECONOMICS CERTIFICATE OF THE PETITIONER ISSUED BY MADURAI KAMARAJ UNIVERSITY. EXHIBIT P2TRUE COPY OF THE EQUIVALENCY CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA, DATED 07/02/2004. EXHIBIT P3TRUE COPY OF THE B.ED. DEGREE (WITH SOCIAL STUDIES AS OPTIONAL SUBJECT) CERTIFICATE OF THE PETITIONER ISSUED BY THE MAHATMA GANDHI UNIVERSITY DATED 13/05/1999. EXHIBIT P4TRUE COPY OF THE SET CERTIFICATE DATED 17/03/2004 ISSUED BY GOVERNMENT OF KERALA. EXHIBIT P5TRUE COPY OF THE JUDGMENT IN WPC NO.27252/2016 DATED 11/02/2019. EXHIBIT P6TRUE COPY OF THE ORDER OF THE RDD DATED 21/08/2019. EXHIBIT P7TRUE COPY OF THE STAFF FIXATION ORDER DATED 20/12/2017. EXHIBIT P8TRUE COPY OF THE SENIORITY LIST OF TEACHERS AS ON 01/01/2016. RESPONDENT EXHIBITS EXHIBIT-R2(A)TRUE COPY OF THIS OFFICE ORDER NO.F/6846/16/RDD/HSE/MLPM/K.DIS. DATED 21-08-2019 EXHIBIT-R2(B)TRUE COPY OF LETTER NO.335/T2/2018/G.EDN. DATED 22.05.2019. PETITIONER EXHIBITS Exhibit P9TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN MALAYALA MANORAMA DATED 2.10.2021 ``` W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **14** - `Exhibit P10 TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR OF EDUCATION, PALAKKAD REGARDING DEPLOYMENT OF THE PETITIONER WITH NO.B3/14099/17 DATED 14/7/2017` - `Exhibit P11 TRUE COPY OF THE RELIEVING ORDER DATED 14/7/2017 ISSUED BY THE HEADMASTER OF K.K.M.HS, VANDITHAVALAM.` - `Exhibit P12 TRUE COPY OF THE PROCEEDINGS REGARDING JOINING DUTY OF THE PETITIONER ISSUED BY THE BLOCK PROGRAMME OFFICER, BLOCK RESOURCE CENTRE (BRC), CHITTUR AND ADDRESSED TO THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD DATED 15/7/2017` - `Exhibit P13 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT MANAGER NO.KKM HSS/LETTER/03/2022/65 DATED 28/3/2022` - `Exhibit P14 TRUE COPY OF THE STAFF FIXATION ORDER OF 2017-2018, ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD NO B1/3443/2017 DATED 14/7/2017` W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **15** ## **`APPENDIX OF WP(C) 29889/2022`** ## `PETITIONER EXHIBITS` |`Exhibit P1`|`TRUE COPY OF THE JUDGMENT IN W.P.(C)`| |---|---| ||`NO. 27252/2016 DATED 11-02-2019.`| |`Exhibit P2`|`TRUE COPY OF THE ORDER NO. F/6846/16/`| ||`RDD/HSE/MLPM/KDIS. DATED 21-08-2019`| ||`ISSUED BY THE 3RD RESPONDENT RDD,`| ||`MALAPPURAM.`| |`Exhibit P3`|`TRUE COPY OF THE STAFF FIXATION ORDER`| ||`NO. B1/7503/2017(1) DATED 20-12-2017`| ||`OF 2016-2017.`| |`Exhibit P4`|`TRUE COPY OF THE SENIORITY LIST OF`| ||`TEACHERS OF THE HIGH SCHOOL SECTION OF`| ||`THE SCHOOL AS ON 01-01-2016.`| |`Exhibit P5`|`TRUE COPY OF THE STAFF FIXATION ORDER`| ||`NO. B1/3443/2017 DATED 14-07-2017 OF`| ||`THE YEAR 2017-2018.`| |`Exhibit P6`|`-TRUE COPY OF THE PROCEEDINGS NO.`| ||`B3/14099/17 DATED 14-07-2017 ISSUED BY`| ||`THE 4TH RESPONDENT.`| |`Exhibit P7`|`TRUE COPY OF THE RELIEVING ORDER DATED`| ||`14-07-2017 ISSUED BY THE HEADMASTER OF`| ||`K.K.M. HS, VANDITHAVALAM.`| |`Exhibit P8`|`TRUE COPY OF THE PROCEEDINGS OF THE`| ||`BLOCK PROGRAMME OFFICER, BLOCK`| ||`RESOURCE CENTRE (BRC), CHITTUR DATED`| ||`15-07-2017.`| |`Exhibit P9`|`TRUE COPY OF THE INTERIM ORDER IN W.P.`| ||`(C)NO. 24549/2019 DATED 05-09-2019.`| |`Exhibit P9 A`|`TRUE COPY OF THE INTERIM ORDER IN W.P.`| ||`(C)NO. 24549/2019 DATED 18-11-2021.`| |`Exhibit P10`|`TRUE COPY OF THE APPOINTMENT CUM`| ||`APPROVAL ORDER OF THE PETITIONER AS`| ||`HSA DATED 01-10-2007.`| |`Exhibit P11`|`TRUE COPY OF THE M.A. ECONOMICS`| ||`CERTIFICATE OF THE PETITIONER.`| |`Exhibit P12`|`TRUE COPY OF THE CERTIFICATE ISSUED BY`| ||`THE UNIVERSITY OF KERALA RECOGNIZING`| ||`EXHIBIT-P11 DEGREE AS EQUIVALENT TO`| ||`THE M.A. ECONOMICS DEGREE OF THE`| W.P.(C).Nos.24549 of 2019 & 29889 of 2022 **16** ``` Exhibit P13 ``` ``` UNIVERSITY OF KERALA DATED 07-02-2004. TRUE COPY OF THE B.ED. DEGREE (WITH SOCIAL STUDIES AS OPTIONAL SUBJECT) CERTIFICATE OF THE PETITIONER ISSUED BY THE MAHATMA GANDHI UNIVERSITY DATED 13-05-1999. ``` ``` Exhibit P14TRUE COPY OF THE SET CERTIFICATE DATED 17-03-2004 ISSUED BY GOVERNMENT OF KERALA. ``` ``` Exhibit P15TRUE COPY OF THE PROCEEDINGS OF THE MANAGER NO. KKMHSS/LETTER/03-2022/65 DATED 28-03-2022. ``` ``` Exhibit P16 ``` ``` Exhibit P17 ``` ``` TRUE COPY OF THE INTERIM ORDER IN W.P. (C)NO. 24549/2019 DATED 04-08-2022. TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT NO. DDEPKD/2461/2022-B3 DATED 03-09-2022. ```