Kerala High Court
Sabu K.F vs The Regional Deputy Director
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938
WP(C).No. 15779 of 2015 (V)
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PETITIONER(S):
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SABU K.F.,
KARIMTHAKARAPUZHA HOUSE, MUTTOM P.O.,
EDAPPILLY, IDUKKI DISTRICT.
BY ADV. SRI.V.PHILIP MATHEW
RESPONDENT(S):
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1. THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION, KOTTAYAM 686001.
2. ST.JOSEPH'S CORPORATE EDUCATIONAL AGENCY OF CMI
SCHOOLS.
REPRESENTED BY ITS MANAGER, CMI PROVINCIAL HOUSE,
P.B NO.648, KOTTAYAM 686001.
Addl. 3. SR.MERLY K.JACOB
H.S.S.T (HISTORY), ST.ANTONYS H.S.S., POONJAR, KOTTAYAM
DISTRICT - 686 581.
(IMPLEADED VIDE ORDER DATED 20.08.2015 IN I.A.NO.11453/15)
R2 BY ADV. SMT.N.SANTHA
R2 BY ADV. SRI.K.A.BALAN
R2 BY ADV. SRI.V.VARGHESE
R2 BY ADV. SRI.PETER JOSE CHRISTO
R2 BY ADV. SRI.S.A.ANAND
R2 BY ADV. SMT.L.ANNAPOORNA
R2 & ADDL.3 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY
R1 BY ADV. GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 15779 of 2015 (V)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 - TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 2ND RESPONDENT
TO THE PETITIONER DATED 1-6-2009
P2 - TRUE COPY OF THE LETTER WRITTEN BY THE DIRECTOR, HIGHER
SECONDARY EDUCATION TO THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY
EDUCATION, ERNAKULAM DATED 28.09.2010
P3 - TRUE COPY OF THE ORDER ISSUED BY THE REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, ERNAKULAM DATED 16.11.2010
P4 -TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT DATED 2.5.2015
P5 - TRUE COPY OF THE SPECIAL RULES INCORPORATED IN CHAPTER XXXII OF
K.E.R.
P6 - TRUE COPY OF THE JUDGMENT REPORTED IN 2013 STPL (WEB)150 SC
P7 - TRUE COPY OF THE GOVERNMENT ORDER G.O.(P)NO.144/2013/G EDN.
DATED 22.04.2013
P8 - TRUE COPY OF THE ORDER NO.ACD B4/27608/HSE/10 DATED 28.09.2010
P9 - TRUE COPY OF THE ORDER RECEIVED BY THE PETITIONER FROM THE
OFFICE OF THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION,
ERNAKULAM DATED 10.06.2010.
RESPONDENT(S)' EXHIBITS
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R2(a) - TRUE COPY OF THE ORDER NO.A2/8459/RDDE/09 DATED 10.06.2010 OF
THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, ERNAKULAM
R2(b) - TRUE COPY OF THE ORDER NO.A2/8459/09EDD/EKM/10 DATED
16.11.2010 OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
EDUCATION, ERNAKULAM.
R3(a) - TRUE COPY OF THE REPRESENTATION DATED 10.04.2015 SUBMITTED BY
THE ADDITIONAL 3RD RESPONDENT TO THE 2ND RESPONDENT.
R3(b) - TRUE COPY OF THE ORDER NO.CM-01/HSE/APPT(2) 2015 DATED
08.07.2015
//TRUE COPY//
P.A.TO JUDGE
sm
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C) No.15779 of 2015
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Dated this the 23rd day of November, 2016
JUDGMENT
The petitioner was appointed as HSST(History), by the 2nd respondent, for the period from 01.06.2009 to 31.03.2010. The said appointment was approved by the Educational Authorities. On expiry of the leave period, and on the regular incumbent returning for duty, the petitioner had to vacate the post. Thereafter, from 01.04.2010 onwards, the petitioner remained outside the school and was awaiting a vacancy in the post of HSST(History), for seeking a fresh appointment on regular basis. It would appear that, a vacancy arose in the post of HSST(History) in the school, consequent to the retirement of the then incumbent on 31.05.2015. Anticipating the said vacancy, the petitioner submitted a representation before the 2nd respondent, requesting him to appoint the petitioner in the said vacancy, that would arise with effect from 01.06.2015. When there was no response to the said representation, the petitioner apprehended that, the 2nd respondent Manager would appoint HSAs to the said vacancy, by resorting to the by transfer route of appointment from High School Assistants. In the writ petition, the petitioner prays for a direction to the 2nd W.P.(c).No.15779 of 2015 : 2 : respondent to appoint him as HSST (History), in the vacancy that arose with effect from 01.06.2015, relying on the decisions of this Court in Jayasree v. Director of Higher Secondary Education [(2009) 2 KLT 352].
2. A counter affidavit has been filed on behalf of the 2nd respondent Manager, wherein, it is stated that, the total number of sanctioned post of HSST is 38. It is also stated that, there are more vacancies which have to be filled through the by transfer route of appointment from the High School Assistants, since there are more than 75% of the vacancies that are already filled up by direct recruitees. It is apparent from the averments in the counter affidavit of the 2nd respondent that, the 2nd respondent proceeds on the assumption that a ratio of 1:3 between HSAs and direct recruits has to be maintained in the post of HSST.
3. In the counter affidavit filed on behalf of the 1st respondent, reference is made to the Rules in Chapter XXXII, Kerala Education Rules (KER), that govern the appointment of the HSSTs and HSST (Juniors) and it is stated that the normal method of appointment of HSST is by transfer from HSST(Junior), and only in their absence, can eligible and qualified HSAs/UPSAs & LPSAs and candidates from the W.P.(c).No.15779 of 2015 : 3 : open market, be considered for appointment as HSST in the ratio of 1:3. While enumerating the appointments already made in the post of HSST in the school, the counter affidavit of the 1st respondent follows the stand of the 2nd respondent Manager in his counter affidavit.
4. I have heard the learned counsel for the petitioner and the learned standing counsel for the 2nd and 3rd respondents.
5. The short issue that arises for consideration in this case is regarding the manner in which vacancies arising in the post of HSST in the school, under the management of the 2nd respondent, should be filled. A perusal of the recruitment Rules in Chapter XXXII Rule 4 KER indicates that Higher Secondary School Teacher and Higher Secondary School Teacher (Juniors) are to be filled up in the following manner.
2. Higher Secondary School Teacher (1) By transfer from Junior Lecturer in the subject concerned under the management/Higher Secondary School Teacher (Junior) (2) In the absence of qualified hands under clause (1) above, the vacancies shall be apportioned in the ration 1:3 between appointment by transfer and direct appointment as detailed below:
(i) (a) By transfer from High School Assistants, who possess the requisite qualifications, under the W.P.(c).No.15779 of 2015 : 4 : Educational Agency
(b) In the absence of qualified persons under
(a) above, by transfer from qualified Upper Primary School Assistants/ Lower Primary School Assistants who possess the requisite qualification in the subject concerned, under the Educational Agency.
(ii) By direct appointment Note:- (i) When qualified persons are not available to fill up he vacancies set apart for appointment by transfer under item 2(i) above such vacancies shall also be allotted for direct appointment.
(ii) Appointments under item (1) above shall be made from select lists of qualified persons prepared on the basis of seniority and merit.
3. Higher Secondary School Teacher (Junior)
1. (i) By transfer from qualified High School Assistants in the 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 Educational Agency.
2. By direct appointment Note:- (i) 25% of the total posts shall be filled up by the method specified in item(1) 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.
W.P.(c).No.15779 of 2015 : 5 : It will be apparent from a reading of the aforequoted Rules that, the normal method of appointment of Higher Secondary School Teacher (Junior) is by transfer from qualified High School Assistants in the subject concerned under the Educational Agency, to an extent of 25% of the total posts, and 75% of the posts are to be filled up by direct recruitment. In the absence of qualified hands under the mode referred above, the appointments are to be made from among the qualified UPSAs/LPSAs in the subject concerned, under the Educational agency, and failing that, by direct recruitment. When it comes to the post of Higher Secondary School Teacher(HSST), the principal method of appointment is by transfer from HSST (Juniors). In the absence of qualified HSST(Juniors), the vacancies in the post of HSST are to be apportioned in the ratio of 1:3 and filled through appointment by transfer and direct appointment in the aforesaid ratio, the feeder category being High School Assistants, who possess the requisite qualification under the Educational Agency or in their absence, qualified UPSAs/LPSAs, who possess the requisite qualification in the subject concerned under the Educational Agency and direct recruits. The important point to be noted here is that, while in the case of Higher Secondary School Teacher (Junior), the maintenance of the ratio of 1:3 in the cadre strength, between HSAs W.P.(c).No.15779 of 2015 : 6 : seeking appointment through the by transfer Route, and direct recruits, is envisaged in the primary method of appointment, the maintenance of the ratio of 1:3 between the by transfer appointees and direct appointees in the post of HSST is only in the secondary method of appointment, when there is no qualified hand available for resorting the primary method of appointment by transfer from HSST (Junior). It is also to be noted that, while in the post of HSST (Junior), the ratio of 1:3 is to be applied to the cadre strength of HSST(Junior), in the post of HSST, the ratio of 1:3 is contemplated only to the vacancies that exist in the post in question. On an interpretation of the Rules, therefore, it becomes evident that, in the sole vacancy that arose in the school with effect from 01.06.2015, in the post of HSST, in the absence of a qualified HSST(Junior),who could seek promotion to the said vacancy, the Manager of the school had to resort to an appointment of a qualified HSA by transfer. This is because, it only when the vacancies are more than one, and there is no qualified HSST (Junior) for appointment through by transfer route, that a person can be appointed through the direct recruitment mode. I, therefore, find that, the prayer sought for by the petitioner in the writ petition, namely, to direct the respondents to offer him the appointment through direct recruitment to the sole vacancy that arose in the academic year 2015-16, with effect from 01.06.2015, in the post of W.P.(c).No.15779 of 2015 : 7 : HSST(History), cannot be granted. For the reasons already stated above, I also find that, the reliance by the petitioner in the decisions reported in Thomas v. State of Kerala [(2013) 4 KLT 257], Jayaraj v. State of Kerala [(2016) 2 KLT 200], and Thampanoor Ravi v. Charupara Ravi and Others [(1999) 8 SCC 74 ] will not come to his aid, since the said decisions do not deal with the specific issue of interpretation to be placed on Rule 4 (2) of Chapter XXXII KER.
The writ petition therefore fails, and is accordingly, dismissed. I make it clear that, I have not dealt with the entitlement of the petitioner for consideration to any vacancy that may arise in future in the post of HSST(Junior) in the school, since that was not an issue raised in the present writ petition.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE sm/