A G MINI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is presently working as High School Assistant (English) in St.Augustine's High School, Mararikulam, under the fourth respondent. She possesses the qualifications of M.A. and B.Ed., in English as well as SET. On 1.6.2009 a vacancy of H.S.S.T. (English) having a duration till 24.5.2011 arose under the Corporate Management. The petitioner submitted an application and pursuant to which she was called for an interview before the Selection Board on 23.6.2009. While so, the petitioner came to know that instead of filling up the vacancy from among the participants in the said interview the fourth respondent appointed the fifth respondent as against the said post. According to the petitioner, the fifth respondent ought not to have been directly recruited to that vacancy in the aforesaid category. Ext.P1 was then filed before the fourth respondent on 13.7.2009 requesting to cancel Ext.P3 order of appointment of the fifth respondent and to appoint her in that vacancy with retrospective effect. Ext.P2 representation virtually, carrying the same request was then submitted before the second respondent besides requesting to stay the approval of appointment of the fifth respondent. On obtaining copy of the order of appointment of the 5th respondent viz., Ext.P3 under the Right to Information Act, the petitioner preferred Ext.P4 appeal before the second respondent. Inaction on Ext.P4 constrained the petitioner to approach this Court by filing W.P.(C).No.28775 of 2009. That writ petition was disposed of as per Ext.P5 judgment with a direction to the second respondent to take a decision on Ext.P5 (Ext.P4 herein) after hearing the petitioner and respondents 3 and 4 (respondents 4 and 5 herein). It was made clear thereunder that approval of appointment of the fifth respondent, if any, granted in the meanwhile, would be subject to the orders to be passed on Ext.P4. At the time of hearing, the petitioner submitted Ext.P6 hearing note and also produced Ext.P7 relinquishment letter of the eighth respondent, Smt.Mariamma K.J., who is the senior most qualified H.S.A (English) in respect of the said post. Ext.P8 order was then passed by the second respondent holding that the fourth respondent had not acted in accordance with the Special Rules while effecting appointment against the category H.S.S.T (English). The appointment of the fifth respondent Sr.Dolly C.M. by direct recruitment was cancelled. As regards the claim of the petitioner it was held therein that she was not the only claimant for 'by transfer' appointment and, consequently, her claim for appointment against that vacancy was found meritless. As per Ext.P8, the fourth respondent was directed to cancel the appointment of the fifth respondent as H.S.S.T with effect from 6.7.2009 to 24.5.2011 and to make appointment afresh from among teachers under '25% by transfer category'. Subsequently, the fourth respondent issued Ext.P9 order appointing the eighth respondent Smt.Mariamma.K.J. as H.S.S.T (English) in the vacancy from 26.5.2006 to 25.5.2011. Ext.P10 representation was then submitted by the petitioner to the fourth respondent raising grievances against Ext.P9. It is contended therein that since the eighth respondent had submitted Ext.P7 relinquishment letter, the petitioner being her immediate junior should have been appointed against the vacancy occurred consequent to the cancellation of appointment of the fifth respondent as per Ext.P8. It was also pointed out therein that over and above the said leave vacancy two vacancies are also available viz., one in the post of H.S.S.T and another in the post of H.S.S.T (Junior). The petitioner staked claim against the posts contending that she is fully qualified to be appointed against both the posts. In the meanwhile, the petitioner preferred Ext.P11 appeal before the Government challenging the finding in Ext.P8 to the effect that the petitioner was not the only claimant for by transfer appointment against the post in question. While so, the fourth respondent appointed the fifth respondent against another leave vacancy occurred on account of availing of leave by one Smt.Helen.K.A. from 9.9.2009 to 8.9.2014 and the sixth respondent as against HSST (Junior) against the vacancy occurred consequent to the resignation of one Smt.Linda.P.K. for the period from 7.9.2009 to 4.11.2010, as per Exts.P12 and P13. Feeling aggrieved by the said appointments the petitioner submitted Ext.P14 before the fourth respondent. She has also submitted Exts.P15 and P16 respectively before the second and third respondents requesting to ensure that the illegal appointments made mentioned thereunder are not approved. Alleging delay in action on Exts.P15 and P16 she submitted Exts.P17 and P18 before the same authorities. The petitioner also contends that the seventh respondent was also not entitled to be promoted against any of such vacancies as she was unauthorisedly absent from 1.6.2006 to 19.2.2007 and the said unauthorised absence was not actually regularized as on the relevant date. It is further contended that Smt.Teena Arakkal, Sri.Shaj Andrews and Smt.Moni John who were Junior Lecturers in St.Michael's College, Cherthala under the same Corporate Management were appointed against the posts of H.S.S.T/H.S.S.T (Junior) as per Exts.P20, P21 and P22 on becoming surplus consequent to the de- linking of Pre-Degree and, therefore, they should be treated as direct recruits. It is contended that if the appointments of the aforesaid three persons are treated as direct recruitments it would create three more vacancies under the fourth respondent in the 'by transfer quota'. The petitioner has also raised grievances against the appointment of one Smt.Gracemma Antony as H.S.S.T (Hindi) on 15.9.1998 contending that she was given such appointment before completion of the period of probation. It is contended that the appointment of said Smt.Gracemma Antony cannot be treated as an appointment by transfer. Based on such contentions, it is further contended that one more vacancy is to be set apart for appointment by transfer. It is with these allegations that this writ petition has been filed mainly with the prayer to quash Ext.P8 and seeking declaration that appointments of respondents 5, 6 and 8 are illegal and liable to be cancelled. Issuance of a writ of mandamus commanding respondents 1 to 3 not to approve the appointments of respondents 5, 6 and 8 effected as per Exts.P12, P13 and P9 respectively and to cancel them, besides directing appointment of the petitioner against any of those vacancies, is also sought for. The petitioner also seeks for issuance of a writ of mandamus commanding the fourth respondent to appoint her as H.S.S.T (English) against the leave vacancy for the period from 6.7.1999 to 24.5.2011 and a consequential direction to respondents 1 to 3 to approve that appointment and to give her all consequential service benefits.

(2.) AT the very outset, it is to be noted that though the petitioner has raised grievances against the appointments of Smt.Teena Arakkal, Sri.Shaj Andrews, Smt.Moni John and Smt.Gracemma Antony the petitioner has not chosen to bring them in the party array in this writ petition. Since any finding with respect to their appointments would ultimately prejudice their prospects for continuance in their respective posts under the fourth respondent I do not propose to look into the grievances raised by the petitioner against their appointments even for the limited purpose of considering whether treating their appointments as under direct recruitment quota would result in availability of vacancies in the 'appointment by transfer' quota.

(3.) THE rival contentions as noted above would undoubtedly reveal that the first grievance of the petitioner pertains to her non- appointment against the vacancy occurred in the category of H.S.S.T (English) from 1.6.2009 to 24.5.2011. Evidently, as against the said vacancy, the petitioner was called for an interview before the selection board at 2.P.M. on 23.6.2009. However, against that vacancy, the fifth respondent was given appointment by direct recruitment. The said action on the part of the fourth respondent was held illegal and contrary to the rules by the second respondent and accordingly it was cancelled as per Ext.P8. Consequently, taking into account the orders in Ext.P8, the fourth respondent issued Ext.P9 appointing the eighth respondent against that vacancy, in fact, for the remaining portion of the said leave vacancy. I may firstly consider the grievance of the petitioner against the said action and appointment. While considering the said issue, Ext.P7 also has to be taken into consideration. Regarding the submission of Ext.P7 letter, there is no dispute from respondents 4 and 8. While asserting her rightful claim against the said vacancy by virtue of being senior most in the category of H.S.A (English) the eighth respondent would contend that she had relinquished the claim only in favour of the fifth respondent, Sr.Dolly C.M. In the context of the contentions and also for knowing its true impact and effect, it is only appropriate to extract the contents of the said letter:-