Praseetha P vs State Of Kerala on 22 March, 2019

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Kerala High Court

Praseetha P vs State Of Kerala on 22 March, 2019

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, WP(C).No. 32968 of 2015 3 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. 32968 of 2015 4 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 WP(C).No. 32968 of 2015 5 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 WP(C).No. 32968 of 2015 6 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 WP(C).No. 32968 of 2015 7 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.

4. It is admitted by all parties that the total number of posts of HSST(Jr) in the 4 th respondent school, after issuance of G.O(Ms)No.76/2013/G.Edn. dated 23.2.2013 was 11. Rule 4(3) of Chapter XXXII KER dealing with method of appointment of HSST(Jr) in aided Higher Secondary Schools reads as follows:-

3. Higher Secondary 1 By transfer from qualified School (i) High School Assistants in the Teacher(Junior) subject concerned under the Educational Agency.

(ii In the absence of qualified ) hands under item (i) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants in the subject concerned under the WP(C).No. 32968 of 2015 8 Educational Agency.

2 By direct appointment Note:-

                           (i)    25% of the total posts shall
                                  be filled up by the method
                                  specified in item (I) above on
                                  seniority-cum suitability basis
                                  and 75% of such post shall
                                  be    filled   up   by   direct
                                  appointment.

                           (ii)   When qualified persons are
                                  not available to fill up the
                                  vacancies   set    apart    for
                                  appointment     by    transfer
                                  under item 1 above, such
                                  vacancies   also    shall   be
                                  allotted      for        direct
                                  appointment.

5. The two methods envisaged under Rule 4(3) are (1) by transfer from qualified High School Assistants and in their absence, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants in the subject concerned under the Educational agency and (2) by direct recruitment. Note (I) to the Rule stipulate that 25% of the total posts shall be filled up by the method specified in item (1) above on seniority-cum-suitability WP(C).No. 32968 of 2015 9 basis and 75% of such posts shall be filled by direct recruitment.

6. Interpreting Rule 4(3), the Apex Court in Girija's case (supra) held as under:-

Here, Note (1), uses two expressions "total posts" and "such posts". Thus, computation of 25% and 75% is to be based on that total posts of Higher Secondary School Teacher(Junior). The language used in Note (1) when read in contradiction to Rule 4(2)(ii), the intention is clear that whereas for appointment in Higher Secondary School Teacher, the vacancy shall be apportioned, whereas for filling of the post of Higher Secondary School Teacher (Junior), "total posts" are to be apportioned on the basis of cadre strength.

Therefore, there cannot be any doubt as to the position that 25% of the 11 posts has to be filled up by by-transfer appointment. The petitioner's contention is that the question of effecting appointment to the 25% would arise only on the 12th post of HSST(Jr) being sanctioned since, 25% of 11 posts works out to only 2.75 and 2 persons had already been appointed by by-transfer to the post of HSST (Jr). It is therefore contended that the 3 rd person WP(C).No. 32968 of 2015 10 need be appointed only when 3 posts are available, which would occur only on a 12th post being sanctioned. In Pawan Kumar's case (supra) the Hon'ble Supreme Court, though under different circumstances, held that the rule of rounding off, based on logic and common sense, is that if part is one half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. By Circular No.ACDC.1/9000/2013/HSE dated 18.7.2013 the second respondent had issued guidelines for effecting appointment to teaching/non teaching posts in aided Higher Secondary Schools. The Circular specifically stipulate that 25% of the total posts of HSST(Jr) should be filled up by appointing HSA/UPSA/LPSA through by-transfer appointment. It is further stipulated that if, while computing 25% of the posts, the result is a fraction, that shall be considered as a whole number. Since in the instant case 25% of the 11 posts works out to 2.75, necessarily that has to be taken as 3 going by the decision of the Apex Court and the Circular mentioned above. In such event, the 3 rd post ought to have been filled up by offering by-transfer WP(C).No. 32968 of 2015 11 appointment to the 5th respondent, the senior most HSA in the school. Hence, the direction in the impugned orders, to appoint the 5th respondent in the place of the petitioner, was perfectly legal, even though the reasoning adopted for arriving at such decision was different.

In the result, I find no reason to interfere with the impugned orders and consequently the Writ Petition is dismissed.

Sd/-

V.G.ARUN, JUDGE cms WP(C).No. 32968 of 2015 12 APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 COPY OF APPOINTMENT ORDER ISSUED BY THE MANAGER.

EXHIBIT P2 COPY OF PROPOSAL FORWARDED TO THE RDD FOR APPROVAL DATED 27.03.2013 EXHIBIT P3 COPY OF EXPERIENCE CERTIFICATE ISSUED BY THE PRINCIPAL OF THE SCHOOL EXHIBIT P4 COPY OF M.SC. DEGREE CERTIFICATE EXHIBIT P5 COPY OF B.ED. DEGREE CERTIFICATE EXHIBIT P6 COPY OF SET (STATE ELIGIBILITY TEST CERTIFICATE) CERTIFICATE.

EXHIBIT P7 COPY OF EQUIVALENCY CERTIFICATES OF M.SC. DEGREE EXHIBIT P8 COPY OF B.ED. DEGREE ISSUED BY KANNUR UNIVERSITY EXHIBIT P9 COPY OF B.SC. DEGREE CERTIFICATE OF THE PETITIONER EXHIBIT P10 COPY OF COMMON JUDGMENT IN WPC.8999/2013 AND WPC. 14380/2013 DATED 23.01.2014 EXHIBIT P11 COPY OF ORDER OF THE RDD KANNUR DATED 24.04.2014 EXHIBIT P12 COPY OF REVISION PETITION EXHIBIT P13 COPY OF JUDGMENT IN WPC. 13183/2014 EXHIBIT P14 COPY OF JUDGMENT IN WPC 17331/2014 DATED 20.08.2014 EXHIBIT P15 COPY OF ORDER OF THE GOVERNMENT IE.

G.O(RT)NO.4649/2015/G.EDN. DATED 03.10.2015 EXHIBIT P15(A) COPY OF ORDER DTD 15.10.2016 ISSUED BY R2 EXHIBIT P16 COPY OF GOVERNMENT ORDER IE.

G.O(MS)NO.128/2010/GEN.EDN. DATED 20.07.2010 WP(C).No. 32968 of 2015 13 EXHIBIT P16(A) COPY OF G.O(MS)NO.211/2011/G.EDN.

DATED 24.10.2011 EXHIBIT P16(B) COPY OF STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2011-12 AND 2012-13 DATED 27.01.2014 EXHIBIT P16(C) COPY OF APPROVAL ORDER OF SRI.SHAJI P. DATED 31.05.2013 EXHIBIT P16(D) COPY OF WPC 37392/2009 DATED 11.02.2010 EXHIBIT P16(E) COPY OF G.O(MS)NO.76/2013/GEN. EDN.

                          DATED 23.02.2013

    EXHIBIT P16(F)        COPY OF APPROVAL ORDER OF SRI. VISHNU
                          NAMBOOTHIRI M.E.

    RESPONDENTS EXTS          NIL



                                /TRUE COPY/
                                                   P.S.TO JUDGE
    cms

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