WA Nos. 1870 of 2017 & 1892 of 2017 (Rekha Radhakrishnan v. State of Kerala and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 14TH DAY OF AUGUST 2019 / 23RD SRAVANA, 1941** ## **WA.No.1870 OF 2017** **JUDGMENT IN WPC 12391/2008 DATED 14-08-2017 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **REKHA RADHAKRISHNAN UPPER PRIMARY SCHOOL ASSISTANT, PADANILAM HIGHER SECONDARY SCHOOL,NOORANAD, ALAPPUZHA DISTRICT** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.K.N.REMYA SMT.N.SANTHA SRI.P.SREEJITH SRI.V.VARGHESE** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM.** - **2 DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM** - **3 MANAGER, PADANILAM HIGHER SECONDARY SCHOOL,NOORANAD, ALAPPUZHA DISTRICT** - **4 K.G AJAYAN, H.S.ST (ENGLISH)PADANILAM HIGHER SECONDARY SCHOOL,NOORANAD, ALAPPUZHA DISTRICT R3 BY ADV. SRI.T.T.MUHAMOOD R4 BY ADV. SRI.BENOY THOMAS** - **OTHER PRESENT: GP. SMT.RAJI T. BHASKER** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14.08.2019, ALONG WITH WA.1892/2017, THE COURT ON THE SAME DAY DELIVERED** W.A Nos. 1870 & 1892 of 2017 -2- ## **THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 14TH DAY OF AUGUST 2019 / 23RD SRAVANA, 1941** ## **WA.No.1892 OF 2017** **JUDGMENT IN WPC 13203/2008 OF HIGH COURT OF KERALA DATED 14.8.2017** |**APPELLANT/S**<br>**:**|**APPELLANT/S**<br>**:**| |---|---| ||**REKHA RADHKARISHNAN**| ||**UPPER PRIMARY SCHOOL ASSISTANT, PADANILAM HIGHER**| ||**SECONDARY SCHOOL, NOORANAD, ALAPPUZHA DISTRICT.**| ||**BY ADVS.**| ||**SRI.S.P.ARAVINDAKSHAN PILLAY**| ||**SRI.S.A.ANAND**| ||**SRI.K.A.BALAN**| ||**SRI.PETER JOSE CHRISTO**| ||**SMT.K.N.REMYA**| ||**SMT.N.SANTHA**| |**RESPONDENT/S**<br>**:**|| |**1**|**AJAYAN K.G., KUTTIVILAYIL, NOORANAD P.O, NOW**| ||**WORKING AS H.S.S.T.ENGLISH(BY TRANSFER), PADANILAM**| ||**H.S.S, NOORANAD, ALAPPUZHA.**| |**2**|**STATE OF KERALA, REPRESENTED BY THE SECRETARY,**| ||**GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM.**| |**3**|**DIRECTOR OF HIGHER SECONDARY EDUCATION**| ||**THIRUVANANTHAPURAM.**| |**4**|**MANAGER, PADANILAM HIGHER SECONDARY SCHOOL,**| ||**NOORANAD, ALAPPUZHA.**| ||**R1 BY ADV. SRI.BENOY THOMAS**| ||**R4 BY ADV. SRI.T.T.MUHAMOOD**| **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14.08.2019, ALONG WITH WA.1870/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A Nos. 1870 & 1892 of 2017 -3- ## **JUDGMENT** ## **K.VINOD CHANDRAN, J.** The appellant is the petitioner in one of the writ petitions and the respondent in the other. Petitioners in both the writ petitions were UPSAs, claiming promotion to the post of HSST (English). They challenged the order of the Government which directed the one post which was kept vacant in the year 2001-02 to be filled up by direct recruitment. One of the petitioners; Sri.K.G.Ajayan had by then already been appointed as HSST (English) in the year 2003. Rekha R; the other petitioner claimed appointment to the said vacant post on the ground that she was the person who qualified first as among the two UPSAs. 2. The learned Single Judge set aside the Government order finding that there was no reason to concede the vacant post to direct recruitment, since one of the persons who was promoted by-transfer in the year 2001-02 had to be adjusted W.A Nos. 1870 & 1892 of 2017 **==> picture [16 x 8] intentionally omitted <==** in the direct recruitment quota. Admittedly, there were 16 vacant posts arising in the year 2001-02. The Manager appointed 15 persons as HSST. One post of HSST (English) remained vacant. Admittedly, both the UPSAs did not have State Eligibility Test (SET) qualification at the time of initial recruitment. One post of HSST (English) kept vacant, could have been filled up by direct recruitment; which obviously was not resorted to by the Manager. 3. Later, one Lekha, a HSA by-transfer appointee to the post of HSST (Maths) was found to be not a regularly appointed teacher at the time of promotion. A series of litigation arose with respect to her by-transfer appointment, which eventually concluded in the Government directing Lekha to be accommodated in a direct recruitment vacancy. This order has become final. In such circumstances, out of the 16 vacancies, 12 were filled up by direct recruitment and W.A Nos. 1870 & 1892 of 2017 -5- three by by-transfer appointment. One remained vacant, to which post, both the writ petitioners seek appointment. 4. On subsequent facts, it has to be noticed that Rekha R obtained SET qualification in March, 2002 and Ajayan in December, 2002. Ajayan being the senior most, in 2003, especially, finding Lekha's appointment to be in total confusion, was appointed as HSST (English), being the senior among the two writ petitioners. He has been continuing there at. 5. Rekha R challenged the appointment of Ajayan, which again went through a series of litigation and eventually Ext.P8 order in W.P.(C) No.12391 of 2008 was passed, which directed the Manager to make appointment to the vacancy remaining in the post of HSST (English) by direct recruitment. This was challenged by both the writ petitioners. We agree with the learned Single Judge that there could not have been a direction to make direct W.A Nos. 1870 & 1892 of 2017 -6- recruitment, especially, since the ratio between direct recruits and by-transfer appointment is 3:1. Out of 16, four had to be by by-transfer. Admittedly, as of now, the 12 recruitments made in 2001-02 including that of Rekha R is by direct recruitment, the one vacancy remaining is in the post of HSST (English), to which both the writ petitioners stake their claim. 6. The learned Single Judge found that the vacancy could be said to have arisen only on 27.10.2005, when Lekha's approval was granted as per Ext.P11 produced in W.P.(C) No.13203 of 2008 (Ext.P5 in the other writ petition). The learned counsel for Rekha R would contend that Rekha though junior to Ajayan; having acquired the SET qualification in March, 2002 has to be promoted in preference to her senior who acquired the qualification much later. The learned Counsel relies on a Full Bench judgment of this Court in _**Varghese and others v. State of**_ W.A Nos. 1870 & 1892 of 2017 -7- ## _._ _**Kerala and others [1981 KHC 148]**_ 7. The learned counsel for Ajayan specifically refers to the Chapter XXXII, wherein it is very clear that if there are no sufficient candidates available for by-transfer appointments, the Note prescribes the appointment to be carried out by direct recruitment and in such circumstances, it cannot be said, the vacancy remained as such from 200102. The vacancy was conceded to by-transfer appointments only on 27.10.2005, when Lekha was adjusted to the direct recruitment vacancy. In such circumstances, the Rule having given emphasis to seniority, necessarily, Ajayan has to be appointed. The learned counsel would rely on the decision of the Honourable Supreme Court in _**R.B.Desai and another** ._ _**v. S.K.Khanolker and others [(1999) 7 SCC 54)**_ 8. Looking at the precedents, it has to be noticed that _**R.B.Desai**_ was a case in which, the respondent claimed promotion, earlier to his admitted seniors-appellants, on the W.A Nos. 1870 & 1892 of 2017 -8- ground of his having first attained the eligibility for promotion. The respondent was a direct recruit to the feeder category of promotions; who with his diploma qualification would achieve eligibility to be considered for promotion with 5 years service. The appellants, who were his admitted seniors in the feeder category, were by-transfer appointees; who by reason of absence of diploma, had to have 10 years experience to be eligible for promotion. By the time there arose vacancies in the higher cadre all of them were entitled to be considered, which consideration had to be on the basis of seniority and merit. The eligibility list was only for administrative convenience and did not in any manner decide seniority was the finding. 9. Learned Counsel for Ajayan would strenuously argue that in the present Rule also, seniority has been given prominence. Seniority assumes relevance only when the aspirants are all qualified to the post when the vacancy W.A Nos. 1870 & 1892 of 2017 -9- arose. What has to be considered here is the eligibility, with reference to the date on which the vacancy arose. We have to find that it is not mere acquisition of qualification at an earlier date, that gives Rekha R, an edge over Ajayan. In fact, the later was not qualified at a point when the vacancy could have been filled up by Rekha R. 10. We have gone through the decision of the Full Bench in _**Varghese (supra)**_ , wherein it has been clearly sated that the time of occurrence of vacancy should be relevant for determining the question of promotion and not the time when the actual promotion was carried out. 11. On facts, we have to observe that the peculiar situation occurred because of the Manager having not resorted to direct recruitment, to fill up the post of HSST (English); when it could have been done in the year in which the vacancy arose. Lekha's appointment as HSST (Maths) being converted to that of direct recruitment in the year W.A Nos. 1870 & 1892 of 2017 **==> picture [23 x 9] intentionally omitted <==** 2005 is of little import here. The vacancies are those which arose in the year 2001-02 itself. By adjusting the HSST (Maths) appointed in 2001-02, the direct recruits quota is necessarily exhausted since out of 16, 12 were initially appointed. The other vacancy, though has to be conceded for by-transfer appointment, admittedly, when the vacancy arose in 2001-02, none who were in service in the school were qualified to be appointed. We also notice from the Rules that the Manager could have definitely made a direct recruitment, finding none in service to be qualified. This was not resorted to. 12. While so, Rekha R acquired the SET qualification in March, 2002, at which time, the post was remaining vacant. Even when the next academic year commenced in 2002-03, the vacancy was remaining as such and Rekha R was qualified to be appointed to the said vacancy. The vacancy being that to be made by-transfer. Even going by the W.A Nos. 1870 & 1892 of 2017 -11- ratio of 3:1, the Manager ought to have appointed the said person to that vacancy which remained as such in the year 2002-03. The valid claim available to Rekha R cannot be upset by the subsequent qualification acquired by Ajayan which was in December, 2002. At the commencement of the academic year, only Rekha R was eligible to be appointed and she ought to have been appointed to that post even from the academic year 2002-03. The Manager could not have waited for the other teacher to qualify. In such circumstances, we do not agree with the learned Single Judge that by-transfer appointment has to be with reference to the situation existing as on 27.10.2005. As we noticed the filling up of the HSST vacancy in Maths is of no import since it was eventually adjusted as made on direct recruitment. The vacancy of HSST (English) remained vacant from 2001-02 onwards and the person who was adjusted from by-transfer to direct recruitment was not in the post of HSST (English), but in W.A Nos. 1870 & 1892 of 2017 -12- another post of HSST (Maths). 13. On the above reasoning, we set aside the judgment of the learned Single Judge to the extent Ajayan was directed to be approved in the post of HSST (English) from 27.10.2005 onwards. However, Ajayan having been already appointed as HSST (English) in 5.7.2003 and having continued there at, the salary due to him till date has to be approved and he shall also be considered for adjustment in any other vacancy arising in HSST (English) subsequent to that period, if there is no approved teacher in that post. Rekha R, however, would be granted approval notionally from 5.7.2003, when Ajayan was appointed. Though the vacancy existed in the year 2002-03 and Rekha R was qualified and entitled to seek appointment to that post, she did not claim it then. When Ajayan was appointed, she claimed it and we have found her entitled to the same. 14. The vacancy which arose in the year 2001-02 for W.A Nos. 1870 & 1892 of 2017 -13- reason of not being filled up, has to be treated as existing in all the years, in which no appointment was made. Rekha R first qualified to be so promoted to the post of HSST (English), when the post was remaining vacant in the school. We make it clear that the appointment of Rekha R would be notional from 5.7.2003 and she would be entitled to pay and allowances from the date on which she is appointed pursuant to our judgment. We direct the Manager to immediately appoint Rekha R to the post of HSST (English), at any rate, within a period of one month from today and in fixing her salary, she has to be given the notional benefit as directed by this Court. Admittedly, Ajayan's approval in the post of HSST (English) shall only be for the purpose of drawing the salary and allowances, in the period in which he discharged the functions of HSST (English) and he shall necessarily be reverted to a lower post, the HSA post, which now is W.A Nos. 1870 & 1892 of 2017 -14- occupied by Rekha R if he cannot be given promotion as an HSST in any of the vacancies occurring after 2003. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/17.08