PRASEETHA P. Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was appointed as HSST (Junior) Mathematics in the 4th respondent's school w.e.f 27.3.2013, by way of direct recruitment. On appointment, the proposal was forwarded to the 3 rd respondent for approval. According to the petitioner, though the petitioner's appointment satisfied all statutory requirements under Chapter XXXII of the KER, the 5th respondent who was an HSA in the same school, objected to the petitioner's appointment on the ground that the post of HSST (Junior) Mathematics, to which the petitioner was appointed, fell within the 25% category to be filled up by way of by- transfer appointment, in which event the 5th respondent was entitled to be appointed. In the wake of the objection, the petitioner as well as the 5 th respondent filed separate Writ Petitions as WP(C)Nos.8999 of 2013 and 14380 of 2013 respectively and this Court by a common judgment dated 23.1.2014 directed the Regional Deputy Director, Kozhikode, the 3rd respondent therein, to decide the issue after hearing the parties. Pursuant to the hearing the Regional Deputy Director issued Ext P11 order finding that, as per Chapter XXXII KER, the vacancies in the post of HSST had to be filled up in the ratio 1:3 and that in the case of HSST (Jr), 25% of the total posts was to be filled by way of transfer from qualified HSAs and 75% by direct recruitment. Based on the said finding it was held that the rightful claimant to the post of HSST (Jr) was the 5th respondent and therefore, the rejection of the proposal of appointment of the petitioner was reasonable. Being aggrieved by Ext P11, the petitioner preferred revision before the Government and thereafter, alleging delay in deciding the revision petition, the petitioner filed WP(C) No.13183 of 2014 before this Court. In the meanwhile, the 5th respondent filed WP(C) No.17331 of 2014 seeking appointment to the post of HSST(Jr) Mathematics, on the strength of Ext P11 order. The Writ Petition filed by the petitioner was disposed of under Ext P14 judgment, directing the Government to decide the revision within four months. No orders were passed in the Writ Petition filed by the 5th respondent. In accordance with the directions contained in Ext P14 judgment, the Government issued Ext P15 order upholding the findings in Ext P11. On the basis of Ext P15, the Director of Higher Secondary Education issued Ext P15 (a) order directing the 4th respondent to act according to the directions issued by the Regional Deputy Director, Kannur, by appointing the 5th respondent in the place of the petitioner.

(2.) The Writ Petition is filed seeking to quash Exts P11, P15 and P15(a) orders and for a consequential direction to the third respondent to approve the appointment of the petitioner as HSST(Jr) Mathematics w.e.f 27.3.2013. The challenge against the impugned orders is mainly on the ground that the orders were passed without a proper understanding of Rule 4(3) of Chapter XXXII of the KER. It is contended that the 4 th respondent's school was upgraded as Higher Secondary School during the year 2010-11 with one Science batch and one Commerce batch. That, the Government sanctioned 2 posts of HSST and 8 posts of HSST(Jr) in the school w.e.f 6.8.2011. That the Manager filled up 1 HSST and 2 HSST(Jr) posts by effecting by- transfer appointment and the rest by direct recruitment. Later, by G.O(Ms)No.76/2013/G.Edn. dated 23.2.2013, the Government sanctioned 3 more HSST(Jr) posts in the school, which included the HSST(Jr) Mathematics post against which the petitioner was appointed. It is contended that since the Rule stipulate 25% out of the total posts to be filled up by- transfer and 75% by direct recruitment, the 25%, as far as the school is concerned, would arise only on a 12th post being sanctioned, since the 25% of the available 11 posts stood satisfied by the by- transfer appointment of 2 HSST(Jr).

(3.) The 5th respondent's contention is that out of the 2 posts of HSST and 8 posts of HSST(Jr), 1 HSST and 2 HSST(Jr) posts were to be filled up by by-transfer appointment. It is submitted that the 4 th respondent appointed 1 HSST Mathematics and 1 HSST(Jr) Malayalam on 28.11.2011 and executed Ext R5(d) declaration undertaking that the 3rd by-transfer posting will be given subsequent to the creation of posts in 2011-12 and that 1 post each of HSST(Jr) Mathematics and HSST(Jr) English are set apart for appointing the senior most qualified HSA's, by by-transfer appointment. It is contended that as per the method of appointment specified in Rule 4(3) of Chapter XXXII of KER, 25% of the total posts have to be filled up by by-transfer appointment from qualified High School Assistants. That the total posts of HSST(Jr) being 11, 3 out of the 11 posts ought to have been filled up by by-transfer appointment, treating the fraction obtained on dividing 11 /3 as a whole number. In order to buttress this contention, the learned counsel for the 5th respondent relied on the decision of the Hon'ble Supreme Court in State of UP v Pawan Kumar (2005)2 SCC 10 and Circular No.ACDC.1/9000/2013/HSE dated 18.7.2013 issued by the 2nd respondent. Reliance was also placed on the decision of the Apex Court in V.K.Girija v. Reshma Parayil ((2019)2 SCC 347), in support of the contention that appointment to the post of HSST(Jr) is based on the total posts. The learned Government Pleader contended that the orders under challenge were issued strictly in terms of Rule 4(3) of Chapter XXXII KER and that the petitioner did not have any claim superior to that of the 5 th respondent.