Kerala High Court
State Of Kerala vs Sabeena A on 7 January, 2022
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Friday, the 7th day of January 2022 / 17th Pousha, 1943
OP(KAT) NO. 6 OF 2022
(AGAINST THE ORDER DATED 12/4/2019 IN OA 419/2017 OF THE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM)
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PETITIONERS/RESPONDENTS IN O.A.:
1.STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2.THE DIRECTOR, DIRECTORATE OF HIGHER SECONDARY EDUCATION,
HOUSING BOARD BUILDINGS, SANTHI NAGAR,THIRUVANANTHAPURAM-695001.
RESPONDENT/APPLICANT/3RD RESPONDENT IN O.A.:
1.SABEENA A.,AGED 33 YEARS,W/O. AMEER T.K.,RESIDING AT KEZHOOR,
S.V. MARKET P.O.,KARUNAGAPPALLY, KOLLAM,PIN-690573.
2.SAJEENA A.N., AGED 33 YEARS W/O. A. NISHAD,
RESIDING AT MARIYATHU VADAKKATHIL, MARU SOUTH,
S.V. ALUMKADAVU P.O., KARUNAGAPALLY, KOLLAM,PIN-690573.
3.THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION,
PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004.
OP (Kerala Administrative Tribunal) praying inter alia that in the
circumstances stated in the affidavit filed along with the OP(KAT) the
High Court be pleased to stay all the further proceedings in pursuance to
Exhibit P11 Order pending disposal of the above Original Petition (KAT).
This petition coming on for admission on 07/01/2022, upon perusing
the petition and the affidavit filed in support of OP(KAT), and upon
hearing the arguments of SRI.B.UNNIKRISHNA KAIMAL, SENIOR GOVERNMENT
PLEADER for the petitioners and of SRI.P.C.SASIDHARAN, STANDING
COUNSEL(KPSC) for the respondent 3, the court passed the following:
P.T.O.
EXT.P11:TRUE COPY OF THE FINAL ORDER OF THE TRIBUNAL
DATED 12.04.2019 IN O.A.419/2017.
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ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
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O.P.(KAT) No.6 of 2022
[against the order dated 12.04.2019 in O.A. No.419/2017 of the KAT, Tvm Bench]
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Dated this the 07th day of January, 2022
ORDER
We are apprised that a connected matter in O.P.(KAT) No.377/2019 dealing with the identical issue in respect of selection to the post of HSST (Jr.) Physics, this Court has already admitted O.P. (KAT) No.377/2019 (arising out of O.A. No.65/2019 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram], and has granted interim stay on 25.09.2019 and that the said O.P. is pending.
2. Accordingly, the present O.P. (KAT) No.6/2022 will stand admitted.
3. Issue notice to R1 & R2 by speed post, returnable within 2 weeks. Notice for R3 has been taken by Sri.P.C. Sasidharan, learned Standing Counsel for the Kerala Public Service Commission (PSC).
4. It is urged by Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the petitioners in the O.P. that the Tribunal has proceeded on the premise that if a rank list for selection by the method of appointment of 'by-transfer' for the aforesaid post of HSST (Jr.) Zoology, is not available, then it is to be treated as if there are no candidates qualified for such by-transfer appointment and that hence O.P.(KAT) No.6 of 2022 2 going by the operation of the Rule, those vacancies which would be otherwise fall within the 'by-transfer' quota will also have to be allotted for appointment by way of direct recruitment to the said post in question. It is on this basis, that the Tribunal has ordered that 25 vacancies which were earlier reported to the PSC for 'by-transfer' appointment, should also be utilised for advising candidates included in Anx.A2 rank list for the post of HSST (Jr.) Zoology by way of direct recruitment, etc. It is also urged by the learned Senior Government Pleader that, as a matter of fact, the vacancies have been duly reported to the 'by-transfer' quota and due to certain reasons the 'by-transfer' appointments could not be carried out by the PSC and that all the High School Assistants (HSA) and Upper Primary School Assistants (UPSA), who are qualified and eligible for 'by-transfer' appointment cannot be said to be not available and in the Government Schools, merely because a rank list has not been finalised for 'by-transfer' appointment, cannot make a situation as if there are no candidates qualified and eligible for 'by-transfer' quota, etc.
5. After hearing both sides, we are of the view that the said submissions made by the petitioners disclose a strong prima-facie case. Moreover, we are also apprised that the very same issue, but in relation to the post of HSST (Jr.) Physics, this Court has already entertained O.P.(KAT) No.377/2019, filed by 'by-transfer' appointment aspirants, and has granted interim stay on 25.09.2019 in the said original petition. O.P.(KAT) No.6 of 2022 3 Hence, it is ordered that the operation and enforcement of the impugned final order dated 12.04.2019, rendered by the Kerala Administrative Tribunal, Thiruvananthapuram Bench in the instant O.A. No. 419/2017, will remain stayed.
6. The competent authority of the State Government in the General Education Department and the respondent Kerala Public Service Commission will apprise this Court as to whether the process of 'by-transfer' appointment for HSST (Jr.) has been duly entrusted by the State Government to the Kerala Public Service Commission for such selection process, if so when and also as to the whether vacancies have been duly reported by the appointing authority for various HSST (Jr.) posts in the State Government Higher Secondary Education service for 'by-transfer' appointment and if so, the reasons for not finalising selection process for such 'by-transfer' appointments to the post of HSST (Jr.) in various categories, etc.
7. Further, from a reading of the impugned verdict of the Tribunal, it appears that the selection process could not be finalised by the PSC since the matter relating to entrusting of the selection process of 'by-transfer' appointment to the PSC has not been specifically incorporated in the Rules and that the Rules require amendment, etc.
8. Both sides have taken our attention to the Rules regulating the appointment of HSST (Jr.), whereby 75% quota is set apart for direct recruitment and the balance 25% quota is set apart for 'by- O.P.(KAT) No.6 of 2022 4 transfer' appointment, out of which first preference is for qualified High School Assistants and in their absence from amongst qualified Upper Primary School Assistants, etc. and the Note appended to the said Rule has further mandated that in the absence of qualified candidates for 'by- transfer' appointments, such vacancies in the 'by-transfer' quota shall also be filled up by direct recruitment, etc. There is no mention in the said Rule as to which is the authority to conduct 'by-transfer' appointment process. Since the Rule is silent as to whether the 'by- transfer' appointment is to be finalised by the Government department or by the PSC, etc., prima-facie, we feel that there may not be necessity to amend the Rules and so long as the Government has taken a decision after consultation with the PSC, so as to entrust the process of 'by- transfer' selection process of HSST (Jr.) to the PSC, there may not be any legal impediments for the PSC to conduct such 'by-transfer' selection process, etc. Hence, these aspects should also be immediately clarified by both competent authority of the State Government in the General Education Department as well as by the respondent Kerala Public Service Commission authorities, by the next posting date itself. The Principal Secretary to Government in the General Education Department and the Secretary to the Kerala Public Service Commission will furnish their written instructions in that regard to the learned Senior Government Pleader and to the learned Standing Counsel for the Kerala Public Service Commission, respectively, within 2 weeks and to O.P.(KAT) No.6 of 2022 5 enable them to apprise this Court about these aspects.
List this O.P.(KAT) in the admission list along with O.P.(KAT) NO.377/2019 on 02.02.2022.
Hand Over a copy of this order to both sides.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
VIJU ABRAHAM,
JUDGE
Skk//07012022
07-01-2022 /True Copy/ Assistant Registrar