WA No. 1504 of 2015 (WP(C).30707/2014) – Reshma Parayil v. Kadachira Higher Secondary School & Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW WEDNESDAY, THE 17TH DAY OF AUGUST 2016/26TH SRAVANA, 1938 WA.No. 1504 of 2015 () IN WP(C).30707/2014 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 30707/2014 of HIGH COURT OF KERALA DATED 27-03-2015 APPELLANT/5TH RESPONDENT: --------------------------------------------- RESHMA PARAYIL W/O.K.V.VENUGOPAL, HIGHER SECONDARY SCHOOL ASSISTANT (HINDI), KADACHIRA HIGHER SECONDARY SCHOOL, KADACHIRA P.O., KANNUR DISTRICT-670621. BY ADVS.SRI.BRIJESH MOHAN SRI.E.C.BINEESH SMT.M.B.SHYNI RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 4: ---------------------------------------------------------------------------------- 1. SMT.V.K.GIRIJA HIGHER SECONDARY SCHOOL TEACHER (ECONOMICS),KADACHIRA HIGHER SECONDARY SCHOOL, KADACHIRA P.O., KANNUR DISTRICT-670621. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 3. THE DIRECTOR, HIGHER SECONDARY EDUCATION DEPARTMENT, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695001. 4. THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION DEPARTMENT, REGIONAL OFFICE, KANNUR-670002. 5. THE MANAGER KADACHIRA HIGHER SECONDARY SCHOOL, KADACHIRA P.O., KANNUR DISTRICT-670621 R1 BY ADV. SRI.M.SASINDRAN R2-R4 BY SR.GOVERNMENT PLEADER SRI.N.K.THANKACHAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: cms ## **ANTONY DOMINIC & K.ABRAHAM MATHEW, JJ -------------------------------------W.A.No.1504 OF 2015** **-------------------------------------Dated this the 17[th] day of August, 2016** ## **JUDGMENT** ## **Antony Dominic, J** This appeal arises from the judgment in WP(C) No.30707 of 2014. The said writ petition was filed by the first respondent herein seeking to challenge Ext P6 Government Order whereby the claim of the appellant for appointment to the post of H.S.S.T(Economics) sanctioned in the academic year 2011-2012 was upheld. By the judgment under appeal the learned single judge, held that the ratio prescribed in Rule 4 of Chapter XXXII KER in the matter of appointment to the post of H.S.S.T in a Higher Secondary School should be applied against the cadre strength. On that basis the learned Single Judge set aside Ext P6 and allowed the writ petition. It is this judgment which is under challenge before us. 2. We heard the counsel for the appellant, the learned counsel for the first respondent and the learned Government Pleader appearing for respondents 2 to 4. 3. The school of which the 5[th] respondent is the ## **W.A.No.1504 OF 2015 2** Manager was upgraded as a Higher Secondary School in the academic year 2010-2011. Following its up-gradation the school was sanctioned 13 posts of H.S.S.T(Junior). Those posts were filled up, in the manner as laid down in Rule 4(3) of Chapter XXXII KER. In the academic year 2011-2012 two posts of H.S.S.T and 2 posts of H.S.S.T (Junior) were sanctioned. According to the appellant, she was the eligible H.S.A for by transfer appointment to the post of H.S.S.T(Economics). It is her case that ignoring her superior claim the Manager appointed the first respondent by direct recruitment from outside. The appellant took up the matter before the Regional Deputy Director and the Director and both of them rejected her contentions by Exts P4 and P5 orders. However, in Ext P6 order Government upheld her claim. It was accordingly, the first respondent filed the writ petition, impugning Ext P6 and which came to be allowed by the impugned judgment. 4. Reading of the judgment shows that the sole reasoning on the basis of which, Ext P6 was set aside is that the ratio prescribed in the Rule should be applied to ## **W.A.No.1504 OF 2015 3** the cadre strength, having regard to the provisions of Rule 4 of Chapter XXXII KER and Rule 5(3) of the Kerala State and Subordinate Services Rules of Part II Kerala State Subordinate Services Rules 1958. While according to the counsel for the appellant, the reasoning of the learned Single Judge is not only against the terms of the Rule contained in Chapter XXXII KER, it also is against the principles laid down by the Division Bench of this court in **Ajithakumari v. Shamma (2009(1) KLT 808)** . On the other hand, the learned counsel for the first respondent contended that unless the view taken by the learned Single Judge is upheld, the ratio prescribed in the Rule will be unworkable. He also placed reliance on the apex court judgment in **Prakash v. Kurian (1999(2) KLT 710)** and **Prasad Kurian v. Augustin (2008(2) KLT 533)** . He also submitted that by order dated 25.6.2015, which is subsequent to the judgment under appeal, the appointment of the first respondent was approved by the educational authorities. 5. We have considered the submissions made. The short question that require consideration is whether the ## **W.A.No.1504 OF 2015 4** view taken by the learned Single Judge that the ratio prescribed in Rule 4 of Chapter XXXII KER in the matter of appointment to the post of H.S.S.T in Higher Secondary Schools is to be worked out on the basis of cadre strength or not. Rule 4 in so far as it concerns the appointment to the post of H.S.S.T is concerned the method of appointment prescribed is by transfer from junior lecturer in the subject concerned under the management/Higher Secondary School Teacher (junior). Clause 2 thereof provide that in the absence of qualified hands under clause 1 above mentioned, the vacancy shall be apportioned in the ratio of 1:3 between appointment by transfer and direct recruitment in the manner as provided therein. 6. Prior to the introduction of Chapter XXXII KER, the recruitments to the Higher Secondary Schools were governed by S.R.O.No. 410/01 published in Kerala gazette dated 19.4.2001. The provisions contained in Chapter XXXII are in pari materia with the Rules incorporated in the S.R.O mentioned above. In the context of the provisions contained in S.R.O 410/01 in ## **W.A.No.1504 OF 2015 5** the matter of appointment to the post of H.S.S.T, a Division Bench of this court considered the question whether the ratio prescribed in the rules should be applied on the basis of cadre strength or not. Answering the issue in the negative the Division Bench held thus in ## **Ajithakumari v. Shamma (2009 (1) KLT 808)** . xxxx xxxx xxxx 4. There is yet another contention that while working out the quota and turn between HSAs/UPSAs and direct recruits(in the absence of H.S.S.T (junior)), cadre strength shall be the basis. In this regard, R.5 of the General Rules in Part II of the Kerala State Subordinate Services Rules, 1958 (K.S.& S.S.R) is relied on. Therefore, while ascertaining the vacancies for direct recruitment to three fourth of the vacancies remaining due to nonavailability of Higher Secondary School Teacher(junior), it shall be upto 75% of the cadre strength of H.S.S.T. 5.This contention is due to misreading of R.5 of K.S & S.S.R. The said Rule reads as follows: “5. Method of recruitment- Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer but is both by direct recruitment and by transfer- (a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by persons ## **W.A.No.1504 OF 2015 6** recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre. (b) a person shall be recruited direct only against a substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the special rules referred to in cl.(a): and (c) recruitment to all other vacancies shall be made by transfer. Note-(1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies. (2) Leave vacancies and vacancies of less than 6 months' duration shall be treated as vacancies of short duration. (3) Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time.” This Rule is applicable, as its opening sentence indicates: “Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer but is both by direct recruitment and by transfer”. In the case of H.S.S.T, going by item No.2 in R.3 of the Special Rules, the normal method of appointment is: “by transfer from the Higher ## **W.A.No.1504 OF 2015 7** Secondary School Teacher(Junior) in the subject concerned.” Only in the absence of sufficient hands in the category, other method, including transfer of HSA/UPSA and direct recruitment, is indicated and permitted. When, thus, normal method of recruitment is solely 'by transfer, from Higher Secondary School Teacher (junior)', R.5 of the General Rules in K.S.& S.S.R has no application. It will apply when normally more than one method is prescribed. This is not the case here. 6. Normal method of recruitment to the post of H.S.S.T is by transfer from H.S.S.T (junior) as discussed above. Whenever vacancies of H.S.S.T occur, those vacancies have to be filled up by appointing H.S.S.T(junior) in the concerned subject. Only such of the vacancies remaining unfilled for want of H.S.S.T(junior), alone can be filled up by other methods including direct recruitment. Necessarily, the ratio prescribed in the Special Rules is in the special situation of non-availability of candidates in the feeder category, viz, H.S.S.T(junior) in the subject concerned, for the normal method of recruitment, and can be worked out only for such vacancies remaining unfilled. So, the vacancies, thus available for appointment by transfer of HSA/UPSA and direct recruitment cannot be worked out on the cadre strength as provided in Note(3) under R.5, as these are not 'the normal method of recruitment' mentioned in R.5 of the General Rules in K.S.& S.S.R. ## **W.A.No.1504 OF 2015 8** 7. This judgment in clear terms arrives at two conclusions. One is that appointments applying 1:3 ratio by transfer of H.S.As and in their absence from UPSA/LPSA etc. shall not be on the basis of cadre strength. The second conclusion arrived at by the Division Bench is that Rule 5 of Part II K.S.& S.S.R is inapplicable to Rule 4 of Chapter XXXII KER. This judgment, has not been adverted to by the learned Single Judge and it was on that basis, the learned Single Judge arrived at the conclusion that cadre strength has to be the basis when appointment is made in the absence of junior lecturers and H.S.S.T (Junior). Therefore, the conclusion of the learned Single Judge that cadre strength shall be the basis, cannot be sustained. 8. However, the learned counsel appearing for the first respondent in the writ petition placed considerable reliance on the judgment of the Apex Court in **Prakash v. Kurian (1999(2) KLT 710)** and **Prasad Kurian v. Augustine (2008(2) KLT 533)** , to sustain the conclusions of the learned single judge. We have gone through the judgment. **Prakash v. Kurian** (supra) was a ## **W.A.No.1504 OF 2015 9** case involving the appointment to the posts of sales tax officers. The special rules provided for appointment to 20% of substantive vacancies, by direct recruitment and the remaining shall be filled up or reserved to be filled up by transfer from the enumerated categories. It was in the light of that special rule, the scope of the said rule was examined by the Apex Court in the light of Rule 5 of Part II K.S.& S.S.R and it is on that basis the judgment has been rendered. Similar is the case of **Prasad Kurian v. K.J.Augustine** (supra) which involved a dispute concerning the recruitment to the post of Excise Inspectors. 9. Reading of the judgment shows that method of appointment as Excise Inspector is by direct recruitment or promotion from the category specified and recruitment by transfer. Obviously to this Rules Rule 5 of Part II K.S.& S.S.R applied and it was in the context of Rule 5 that the Apex Court held that unless Rule 5 is applied, ratio prescribed will be upset. Since the legal position that Rule 5 of Part II K.S & S.S.R has not place in so far as the appointment to the post of H.S.S.T is concerned has ## **W.A.No.1504 OF 2015 10** attained finality, as a result of the judgment in **Ajithakumari** 's case (supra), we are of the view that the judgment in **Prakash** and **Prasad Kurian** (supra) relied on by the learned counsel for the first respondent, cannot be of any assistance. Therefore, the judgment and appeal cannot be sustained and is set aside. The appeal will stand allowed as above. Consequential orders shall be passed within three months. **ANTONY DOMINIC, JUDGE** **K.ABRAHAM MATHEW, JUDGE** cms