W.P.(C.) Nos. 10093/2022 & 21797/2022—Sherin Francis C. v. State of Kerala & others; Shijo David C. v. State of Kerala & others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 18 [ TH ] DAY OF NOVEMBER 2022 / 27TH KARTHIKA, 1944 WP(C) NO. 10093 OF 2022 ``` ## **`PETITIONER/S:`** ``` SHERIN FRANCIS C. AGED 40 YEARS W/O.ANIL K PAPPACHAN, RESIDING AT KAINIKKARA HOUSE, P.O.CHUVANNAMANNU, THRISSUR DISTRICT-680652. BY ADV R.K.MURALEEDHARAN ``` ## **`RESPONDENT/S:`** |`1`|`STATE OF KERALA`| |---|---| ||`REPRESENTED BY SECRETARY TO GENERAL EDUCATION DEPARTMENT,`| ||`GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695001.`| |`2`|`THE DIRECTOR OF GENERAL EDUCATION`| ||`(HIGHER SECONDARY SECTION),`| ||`HOUSING BOARD BUILDING, SANTHINAGAR,`| ||`THYCAUD, THIRUVANANTHAPURAM-695001.`| |`3`|`THE REGIONAL DEPUTY DIRECTOR`| ||`HIGHER SECONDARY EDUCATION`| ||`ERNAKULAM, ERNAKULAM DISTRICT.`| |`4`|`THE CORPORATE MANAGER,`| ||`CMS CORPORATE MANAGEMENT (COCHIN AREA),`| ||`ROUND WEST, THRISSUR-680001.`| |`5`|`SHIJO DAVID.C,`| ||`HST(MATHEMATICS),`| ||`CMS HIGHER SECONDARY SCHOOL,`| ||`THRISSUR-680001.`| ||`BY ADVS.`| ||`T.RAJASEKHARAN NAIR`| ||`J.JULIAN XAVIER`| ||`FIROZ K.ROBIN(F-15)`| ||`ANJANA RAM(K/000695/2020)`| ||`NIRMAL KURIEN EAPEN(K/000151/2022)`| ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 2 ``` ``` JOSE. V.V. (THENGATHARA)(K/000039/2003) ROY JOSEPH(K/55/2006) ``` ``` SMT ANIMA M GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 3 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 18 [ TH ] DAY OF NOVEMBER 2022 / 27TH KARTHIKA, 1944 ``` ``` WP(C) NO. 21797 OF 2022 ``` ## **`PETITIONER/S:`** ``` SHIJO DAVID C AGED 47 YEARS S/O. LATE C.T. DEVASSY, WORKING AS HIGH SCHOOL TEACHER (MATHEMATICS), CMS HIGHER SECONDARY SCHOOL, THRISSUR, UNDER THE CORPORATE MANAGER, CMS MANAGEMENT, ROUND WEST, THRISSUR -680001, RESIDING AT CHITTILAPPILLY HOUSE, PARAPPUR P.O. THRISSUR DISTRICT, PIN-680552 BY ADVS. J.JULIAN XAVIER FIROZ K.ROBIN ROY JOSEPH ANJANA RAM NIRMAL KURIEN EAPEN ``` ## **`RESPONDENT/S:`** ``` 1 STATE OF KERALA REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695001 2 THE DIRECTOR OF GENERAL EDUCATION (HIGHER SECONDARY SECTION), JAGATHI, THYCAD, THIRUVANANTHAPURAM-695014. 3 THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, ERNAKULAM DISTRICT, PIN-682011 4 THE CORPORATE MANAGER, CMS CORPORATE MANAGEMENT, ROUND WEST, THRISSUR - 680001 ``` ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 4 ``` ``` 5 SHERIN FRANCIS C, W/O. ANIL K. PAPPACHAN, AGED 40 YEARS, RESIDING AT KAINIKKARA HOUSE, CHUVANNAMANNU P.O, THRISSUR DISTRICT, PIN-680652. ``` ``` BY ADVS. T.RAJASEKHARAN NAIR R.K.MURALEEDHARAN SMT ANIMA M GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 5 ``` ## **JUDGMENT** W.P.(C.) No.10093/2022 is filed by Smt. Sherin Francis, challenging Exhibit P8 notification issued by the Corporate Manager - the 4th respondent herein, to the extent of initiating the Selection Process for appointment of HSST (Mathematics). Smt. Sherin has also sought to quash Exhibit P11 order dated 19.03.2022 issued by the DGE, rejecting the claim of the petitioner for reappointment as HSST (Mathematics). 2. W.P.(C.) No.21797/2022 is filed by Sri. Shijo David seeking to quash the very same order issued by the DGE to the extent it rejects the claim of the petitioner herein for appointment as HSST (Jr.) and for a direction to the Manager to forthwith appoint Sri.Shijo David as HSST (Mathematics) in the school. 3. Since common issues are involved, both these writ petitions are taken up and disposed of by a common judgment. ## **W.P.(C.) No. 10093/2022** 4. Smt. Sherin Francis, the petitioner in the writ petition, contends that she was appointed to the post of HSST (Mathematics) from 19.09.2007 to 04.09.2012, in a Leave Without Allowance (LWA) vacancy of certain K.D. Babu, who took leave for five years from 05.09.2007. It is stated that by ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 6 ``` Exhibit P2 order dated 24.06.2008, the 3rd respondent approved the appointment of the petitioner from 19.09.2007 to 04.09.2012, or till such date that the teacher rejoined duty. Her probation was declared to have been satisfactorily completed on 18.09.2009. While so, the teacher who took leave rejoined service after canceling the leave. As a consequence, the petitioner was retrenched on 06.06.2010. The petitioner states that staking a claim for reappointment against the retirement vacancy which arose due to the retirement of K.D. Babu, Exhibit P7 representation was submitted by her before the Manager. The Manager, instead of considering Exhibit P7, proceeded to invite applications for appointment as HSST (Mathematics) by issuing Exhibit P8 notification. Being aggrieved, she submitted an appeal before the 2nd respondent seeking issuance of directions to appoint the petitioner against the vacancy of HSST (Mathematics), which arose in the school. Pursuant to the directions issued by this Court, the 2nd respondent has heard the petitioner as well as the party respondents and rejected the request holding that Rule 51A has no application in Higher Secondary schools. The said order is under challenge. ## **W.P.(C.) No. 21979/2022** 5. Sri. Shijo David, who was working as an approved HST in Mathematics, contends that when a vacancy for a Higher Secondary School ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 7 ``` Teacher in the subject of Mathematics arose in the Higher Secondary division, he preferred a representation before the Manager, requesting to promote him to the post of HSST (Mathematics). He states that he possesses all the required qualifications to aspire for the said post. According to the petitioner, in view of the law laid down by the Apex Court in **V.K. Girija v. Reshma Parayil** [(2019) 2 SCC 347], the first vacancy has to be filled up by by-transfer Mode. However, by Exhibit P3 order, the 2nd respondent has rejected the claim of the petitioner. Challenging Exhibit P3, a revision petition was preferred before the 1st respondent, which is stated to be pending. It is in the afore circumstances that this writ petition is filed seeking to quash Exhibit P3 and for a direction to the 4th respondent, Manager, to forthwith appoint the petitioner as HSST (Mathematics) under the CMS Higher Secondary School, Thrissur, on the basis of qualification and seniority. 6. The corporate Manager has filed a counter affidavit in W.P.(C) No. 10093/2022 wherein it is contended that after the amendment to Rule 43 and Rule 51A of Chapter XIV of the KER in the year 2012, the position is that a Rule 43 claimant will have a march over a Rule 51A claimant. It is further stated that Sri. Shijo David, HST (Mathematics), submitted an application to consider his name for the post of HSST (Mathematics) as he was qualified HST. Since, initially, the management felt that the vacancy is to be filled up ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 8 ``` by way of direct recruitment, they proceeded the same, considering the criteria of total cadre strength of HSST. Sri. Shijo David, thereafter requested the management to promote and appoint him to the post of Higher Secondary School Teacher in the subject of mathematics by way of the by-transfer method. Later pursuant to the directions issued by this court in the writ petitions filed by the rival claimants, Exhibit P11 order was passed by the DGE. Contending that Exhibit P11 order was issued without taking note of the law laid down by the Honourable Supreme Court in various decisions, the Manager has submitted Exhibit R4(A) before the Government, which is stated to be pending. According to the Manager, though initially the direct recruitment mode was attempted, later it was realized that Sri. Shijo David was entitled to the appointment by way of the by-transfer method. 7. Sri R.K. Muralidharan, the learned counsel appearing for the petitioner in W.P.(C). No.10093/2022 submitted that while considering the request made by Smt. Sherin Francis, the DGE ought to have taken note of the law laid down in **Jayasree v. Director of Higher Secondary** (2009 (2) KLT 352). According to the learned counsel, the petitioner is entitled to reappointment reckoning her approved service from 19.9.2007 to 6.6.2010. 8. Sri T. Rajasekharan Nair, the learned counsel appearing for the Manager and Sri. Firoz K. Robin, the learned counsel appearing for Sri. Shijo ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 9 ``` David submitted that the vacancy that arises in each year has to be filled up in the ratio of 1:3 in each subject in the absence of HSST (Jr.). According to the learned counsel, Sri. Shijo David has a superior claim under Rule 43 over Smt. Sherin Francis. Finally, it is submitted that the Hon’ble Supreme Court in **Reshma Parayil** (supra) has unequivocally held that the cadre strength need not be looked into and only the vacancy that occurred alone needs to be looked into for appointment as per the ratio. The learned counsel would further submit that Sri. Shijo David has already approached the 1st respondent and has preferred a revision petition and in view of the law laid down in **Reena R.P. v. R.S.Geena and Ors.** [2010 (2) KLT 155], directions be issued to the 1st respondent to consider the same. It is further submitted that the Manager has also preferred a representation before the 1st respondent (produced as Ext.R4(A) in W.P.(C) No. 10093/2022), and the same is pending. 9. Having considered the submissions advanced and in view of the fact that one of the aggrieved persons, as well as the Manager, have already approached the Government challenging the order impugned in both the writ petitions, I am of the view that necessary directions can be issued to the 1st respondent to consider the petitions pending before the said authority and to take a decision. At this juncture, Sri. R.K. Muralidharan, the learned counsel, submits that Smt. Sherin Francis also be permitted to file a representation ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 10 ``` before the 1st respondent stating her contentions so that the issues can be thrashed out by the 1st respondent after hearing all sides. I am of the view that the course suggested by the learned counsel appearing for the parties can be followed. 10. Resultantly, this writ petition is disposed of by issuing the following directions: a) Within a period of two weeks from today, Smt. Sherin Francis C. shall file an appropriate petition before the 1st respondent detailing her contentions. b) The 1st respondent thereafter shall consider the revision petition filed by Sri. Shijo David, the representation filed by the Manager and the petition filed by Smt. Sherin Francis and pass appropriate orders in accordance with law, expeditiously, in any event within four months from the date of receipt of a copy of this judgment. c) Before passing orders, the 1st respondent shall afford an opportunity of being heard to the parties concerned and the Manager. **Sd/RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 11 ``` ## **`APPENDIX OF WP(C) 10093/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 A TRUE COPY OF THE APPOINTMENT ORDER NO.MC-98/07/CAOF THE PETITIONER AS HSST (MATHS) DATED 19.09.2007 Exhibit P2 A TRUE COPY OF THE ORDER NO.A5/11530/07 ISSUED BY THE 3RD RESPONDENT DATED 24.06.2008 Exhibit P3 A TRUE COPY OF THE CERTIFICATE DATED 03.08.2010 ISSUED BY THE PRINCIPAL OF THE SCHOOL Exhibit P4 A TRUE COPY OF THE JUDGMENT REPORTED IN 2009(2) KLT 352(WA NO.140/2007)BEFORE THE HON'BLE HIGH COURT DATED 08.04.2009 Exhibit P5 TRUE COPY OF GO(RT)NO.2281/2017/G.EDN DATED 11.07.2017 ISSUED BY THE GOVERNMENT Exhibit P5(A) TRUE COPY OF GO(RT)NO.2938/2016/G.EDN DATED 07.09.2016 ISSUED BY THE GOVERNMENT Exhibit P6 A TRUE COPY OF THE ORDER NO.ADD.B4/50702/2016 HSE DATED 28.12.2016 ISSUED BY THE 2ND RESPONDENT. Exhibit P7 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 08.04.2021 Exhibit P8 A TRUE COPY OF THE NOTIFICATION PUBLISHED IN MALAYALA MANORAMA DAILY DATED 18.08.2021 Exhibit P9 A TRUE COPY OF THE JUDGMENT IN W.P(C)NO.17465/2021 DATED 30.09.2021 Exhibit P10 A TRUE COPY OF THE LETTER NO.32285/T2/11/G.EDN DATED 02.03.2013 OF THE GOVERNMENT TO 2ND RESPONDENT Exhibit P11 A TRUE COPY OF THE ORDER NO.ADD.B2/21733/2021/HSE ISSUED BY THE 2ND RESPONDENT DATED 19.03.2022. ``` ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 12 ``` ## **`RESPONDENT EXHIBITS`** ``` Exhibit R4(A) PHOTOCOPY OF THE REPRESENTATION DATED 17.4.2022 AGAINST EXHIBIT P-11 ``` ``` WP(C) NOs. 10093 & 21797 OF 2022 ``` ``` 13 ``` ## **`APPENDIX OF WP(C) 21797/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 TRUE COPY OF THE REPRESENTATION DATED 11.10.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ``` ``` Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 23.11.2021 IN W.P (C) NO.23077/2021 ``` ``` Exhibit P3 TRUE COPY OF THE ORDER NO.ACD.B2/217333/2021/HSE DATED 19.03.2022 ``` ``` Exhibit P4 TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ``` ``` Exhibit P5 TRUE COPY OF THE APPEAL/ REVISION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ```