Prakash Kumar V vs M.K.Viswanathan on 6 January, 2016

[Cites 13, Cited by 0]

Kerala High Court

Prakash Kumar V vs M.K.Viswanathan on 6 January, 2016

The unsuccessful review applicants in O.A. Nos.202,204, 221 and 222 of 2005 on the files of the Kerala Administrative Tribunal, who were not parties to those original applications, filed the above Original Petitions, raising similar grievances and seeking similar reliefs. The common challenge involved in these captioned Original Petitions is against the common order of the Tribunal for finalising the seniority list of Higher Secondary School Teachers (for short 'HSST') for the period from 13.6.2001 to 9.1.2005 in tune with the findings thereon. O.P.(KAT)No.51/2015 arising from O.P.(KAT).51/2016 & conn. 2 O.A.No.202/2015 is taken as the lead case and the documents are referred to hereafter in this judgment in the order they are marked in the said O.P. unless otherwise specifically mentioned.

2. The Director of the Higher Secondary Education, a common respondent in all the original petitions, prepared a final list covering the period from 13.6.2001 to 9.1.2005 on 26.5.2014 and the extract of the same is produced as Annexure A2. On being aggrieved by the aforementioned select list certain teachers approached the Government by preferring representations in terms of the provisions under Section 27B of Part II of the Kerala State & Subordinate Services Rules, 1958 (for short "K.S. & S.S.R"). Aggrieved by the delay in the matter of its disposal some among them approached the Kerala Administrative Tribunal seeking for a direction for its early disposal. Pursuant to the orders in O.A.Nos.1175, 416, 466, 1020, 1072, 1358 and 1517, of 2014, moved in that regard such pending representations O.P.(KAT).51/2016 & conn. 3 were taken up by the Government and orders were passed thereon as per G.O.(Rt)No.76/2014/G.Edn dated 8.1.2015. A copy of the same has been produced in O.P.(KAT) No.51/16 as Annexure A5 in Ext.P1. Virtually, as per G.O. dated 8.1.2015 Government have issued directions to the Director, Higher Secondary Education to finalise the seniority list while rejecting those representations carrying disputes and grievances relating seniority. It is to be noted that during the pendency of the representations, which ultimately culminated in G.O. Dated 8.1.2015, the Departmental Promotion Committee (Higher) held on 29.11.2014 drew a select list of HSST and Headmasters, for promotion to the post of Principals in Government Higher Secondary Schools, for the years 2012, 2013 and 2014. It is produced as Annexure A6 in Ext.P1 in O.A.No.202/2015. It is dated 17.12.2014. Subsequently, in the light of the said select list prepared based on the seniority of HSST appointments were also effected. A set O.P.(KAT).51/2016 & conn. 4 of O.As. were then, filed before the Tribunal such as, O.A.Nos 202, 204, 221 & 222 of 2015. In all the O.A.s essentially, the challenge was against G.O. dated 8.1.2015 whereby the representations filed against Annexure-A2 final seniority list, were rejected. In some O.A.s in addition to the challenge against G.O. dated 8.1.2015 a challenge was also mounted against the aforesaid Annexure-A6 select list dated 17.12.2014. In all the O.A.s one of the selectees in the list prepared by the D.P.C. was arrayed as a party respondent. However, in O.A.No.204/2015 after arraying one of them in representative capacity, paper publication was also taken out to inform the persons having interest in its outcome regarding its institution. The official respondents entered appearance before the Tribunal and filed reply statement, virtually, resisting the claims and contentions of the applicant. After considering the rival contentions and the relevant provisions the Tribunal allowed the O.A.s as per the common order dated O.P.(KAT).51/2016 & conn. 5 6.1.2016 and set aside Annexure-A2 seniority list dated 26.5.2014 prepared by the Director of Higher Secondary Education as also the aforesaid G.O. dated 8.1.2015 whereby the Government rejected the representations, filed under Section 27B of Part II of the K.S. & S.S.R. The common order dated 6.1.2016 passed by the Tribunal is produced in O.P.(KAT)No.51 of 2016 as Ext.P2. As per Ext.P2 consequential direction was also issued by the Tribunal to the Director of Higher Secondary Education to prepare a fresh seniority list of H.S.S.T., in tune with the findings thereon. Further, it was observed therein that the promotions effected to the post of Principals based on Annexure A2 should be treated as provisional subject to revision of seniority and depending upon the publication of the fresh seniority list, in terms of its order. It is to be noted that the Tribunal virtually interfered with the categorization made by the third respondent such as HSA Type I, HSA Type II, HSA TYPE III, UPSA/LPSA Type I, O.P.(KAT).51/2016 & conn. 6 UPSA/LPSA TYPE II and UPSA/LPSA Type III, for the purpose of assigning seniority and held it as not valid. Virtually, the Tribunal held that when once appointments were effected following the recruitment rules all of them got merged into the common category of HSST and therefore, the further categorization for the purpose of assigning seniority was absolutely unreasonable and unwarranted. Consequently, seniority among them was ordered to be fixed strictly in accordance with the age and among persons belonging to the same age the seniority was ordered to be fixed on the basis of the alphabetic order of their names.

3. The petitioners are third parties to the said Original Applications which culminated in Ext.P2 common order dated 6.1.2016. They are persons included in Annexure-A2 seniority list that was set aside and obtained promotion based on seniority thereon, to the post of Principal. They preferred review applications before the O.P.(KAT).51/2016 & conn. 7 Tribunal such as R.A.Nos.7 to 11 and 13 to 15, of 2016. Evidently, they preferred review applications after obtaining leave of the Tribunal. Essentially, they were aggrieved by the direction issued by the Tribunal as per Ext.P2 common order dated 6.1.2016 to prepare a fresh select list of HSST in view of the principles stated in the said common order, as mentioned hereinbefore. They took up a contention that they were not impleaded in the O.A. appropriately and in accordance with law though their names were included in the seniority list that was set aside and based on which they were given promotion as Principals. They are much aggrieved by the setting aside of Annexure A2 seniority list dated 26.5.2014 especially in the absence of a direct challenge against the said seniority list in any of the Original Applications which were allowed as per Ext.P2 common order. A perusal of Ext.P2 the common order dated 13.4.2016 in the aforesaid review applications would reveal that the Tribunal virtually found O.P.(KAT).51/2016 & conn. 8 that the non-impleadment of such persons included in the seniority list or all the persons included in the select list could not be a reason for holding the O.A. bad for non- joinder of parties as in all the aforesaid O.A.s one person each was arrayed as a party respondent and in O.A.No.221 of 2015 paper publication in Kerala Kaumudi daily was also taken out. The Tribunal further found that none of the review applicants sought for impleadment pursuant to the paper publication and that the seniority list contained the names of nearly 700 persons and therefore, the review applicants were not justified in contending that they should have been made parties individually. In that view of the matter the Tribunal rejected the contention raised on the ground of their non-joinder and virtually proceeded to consider the review applicants and ultimately found that Ext.P2 common order did not suffer from any apparent error and dismissed the same as per common order dated 13.4.2016. A copy of the said common order dated O.P.(KAT).51/2016 & conn. 9 13.4.2016 is produced in OP(KAT)No.51/2016 as Ext.P4. The captioned O.P.s are filed by the review applicants against Ext.P2 common oder in the O.A.s as also Ext.P4 common order in the Review Applications. On 6.5.2016 the learned Government Pleader took notice on behalf of the official respondents and this court issued notice to the party respondents/the applicants before the Tribunal as also to the review applicants who did not join with the petitioners in filing the captioned Original Petitions.

4. The learned counsel Sri. T. B. Hood, Sri. M. Sasindran, appearing for the petitioners submitted that the Tribunal went wrong in setting aside Annexure-A2 seniority list dated 26.5.2014 of HSST prepared by the Director of Higher Secondary Education despite the fact that in none of the O.A.s it was challenged and a specific prayer was made to quash the same. The further contention is that Annexure-A2 seniority list contained the names of several persons including the names of the O.P.(KAT).51/2016 & conn. 10 petitioners herein and therefore, all of them should have been made parties in the O.A.s. Based on such submissions, it is further contended that the Tribunal ought to have dismissed the original applications on the ground of being bad for non joinder of necessary parties. To buttress the said contention the learned counsel for the petitioners relied on the decision of a Division Bench of this court reported in Khadarkunju v. Surendran [2015 (2) KTL 447], rendered virtually relying on the decision of the Hon'ble Apex Court in Siraj v. High Court of Kerala [2006 (2) KLT 923 (SC). The party respondents in all the Original Petitions who were review applicants along with the petitioners have also endorsed the said submissions.

5. The learned State Attorney Sri. K.V. Sohan resisted the contentions and contended that in those decisions this court as also the Hon'ble Apex Court were dealing with the question of non joinder of necessary O.P.(KAT).51/2016 & conn. 11 parties under Rule 148 of the Rules of the High Court of Kerala. The Hon'ble Apex Court held in Siraj's case (supra) that in service litigations when seniority lists were under challenge impleadment of one or more of the persons included in the seniority list concerned in representative capacity and publication of notice of institution of that writ petition in a newspaper would be insufficient substitution to due personal service on all persons, who might be affected if the relief sought for against the said seniority list was granted, in any manner, as relates, any such person/persons who was/were not joined as a party/parties. The decision in Khaderkunju's case (supra) was rendered relying on the decision in Siraj's case. The learned State Attorney further submitted that while considering the sustainability of the aforesaid contention it could not be lost sight of the fact that cases involved in those decisions were not matters that arose from orders of the Administrative Tribunal and here, the O.P.(KAT).51/2016 & conn. 12 original petitions arise from orders of the Tribunal and that provisions under Rule 148 of the High Court Rules are not applicable to the Tribunals. According to the learned State Attorney the fact that the procedures before the Tribunal are regulated by the provisions under the Administrative Tribunals Act, 1985 (for short 'the Act') and the procedural rules framed thereunder are also to be borne in mind. It is submitted that in exercise of the powers conferred by the clauses (d), (e) and (f) of sub section 2 of Section 35 and clause (C) of Section 36 of the Act, the Central Government have made rules namely the Kerala Administrative Tribunal (Procedure) Rules 2010 ( for short 'the Rules'). It is further submitted that Rule 10 thereunder deals with service of notices and processes issued by the Tribunal and sub-rule (3) thereunder permits taking out of notice to the respondents directly and it also permits service of notice in any other matter including substituted service by paper publication. At this juncture, the learned counsel O.P.(KAT).51/2016 & conn. 13 appearing for the petitioners submitted that a bare perusal of the said provision itself would reveal that it deals only with the manner of service of notice on the respondents in an Original Application filed before the Tribunal. It is submitted that the word 'respondents' employed in sub- rule (3) of Rule 10 of the Rules would thus make it abundantly clear that it deals only with service of notice on persons who were arrayed as respondents in the Original Application concerned. Therefore, it is contended that it cannot be relied on for the purpose of holding the procedure adopted by the Tribunal, as proper and correct. To sustain the procedure adopted by and the order of, the Tribunal the learned State Attorney drew our attention to Section 22 of the Act 1985 dealing with the procedure and powers of the Tribunals. A scanning of Section 22 of the Act would reveal that a Tribunal is not bound by the procedure laid down in the Code of Civil Procedure, 1908 (for short 'the Code') and it shall be guided by the O.P.(KAT).51/2016 & conn. 14 principles of natural justice and subject to other provisions of the Act and of any rules made by the Central Government it could regulate its own procedure including the fixing of places and times of its inquiry and could decide whether to sit in public or in private.

6. Sub-section 3 of Section 22 assumes much relevance in the contextual situation and it reads thus:

(3) A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit, in respect of the following matters namely:-

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence of affidavits;

(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 requisitioning any public record or document or copy of such record or document from any office;

(e) issuing commissions for the examination of witnesses or documents;

O.P.(KAT).51/2016 & conn. 15

(f) reviewing its decisions;

(g) dismissing a representation for default or deciding it ex parte;

(h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and

(i) any other matter which may be prescribed by the Central Government.

7. Evidently in terms of sub section (3) of Section 22 of the Act a Tribunal shall have, for the purposes of discharging its functions under the Act, the same powers as are vested in a civil court under the Code 1908 while trying a suit. A perusal of the enlisted matters (a) to (i) thereunder would reveal that it includes summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of documents, receiving evidence on affidavit and such other matters enlisted thereunder. The question is whether in such circumstances the procedure virtually adopted by the O.P.(KAT).51/2016 & conn. 16 Tribunal which is in tune with provisions under Order 1, Rule 8 can be sustained? Evidently going by Order 1 Rule 8 of the Code where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the court sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested and the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. Going by sub rule (2) thereunder the Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expenses, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement. Thus it is obvious that Rule 10(3) of the Rules are apparently applicable only in the matter of service of O.P.(KAT).51/2016 & conn. 17 notices and processes issued by the Tribunal to respondents. But, when the Tribunal had actually followed the provisions under Order 1 Rule 8 for the purpose of serving notice regarding the institution of the original application, to all persons having similar interest in the said O.A. by paper publication after taking note of the fact that one such person was impleaded therein as a party in representative capacity and that the number of persons likely to be affected in case of passing orders in favour of applicants are numerous no illegality or irregularity can be attributed to the method adopted as the Tribunals created under Article 323 A of the Constitution of India are free from the shackle of strict rules elsewhere as long as the procedure adopted by it satisfies the principles of natural justice. At any rate, in the light of the Section 22 (1) of the Administrative Tribunals Act adoption of such a procedure cannot be said to be ultra vires. In view of sub- section (i) of Section 22 of the Act, the fact that all the O.P.(KAT).51/2016 & conn. 18 provisions under the Code which are not specifically made applicable, will not proprio vigore apply to the Tribunal cannot be a reason to hold the aforesaid mode of service of notice adopted by the Tribunal as insufficient or irregular service of notice and further to hold that the OAs ought to have been dismissed on the ground of being bad for non- joinder of necessary parties, as it no way violated the principles of natural justice and moreover, it subserved the purpose effectively. In this context, it is also to be noted that even under Rule 148 of the Rules of the Kerala High Court when numbers of such persons are numerous and when they cannot be pinpointed due to lack of details, such a mode of service of notice as adopted by the Tribunal, is permissible.

8. In this case the Tribunal specifically stated that in all the Original Applications which were disposed of, as per the common order dated 6.1.2015 one of the persons included in seniority list as also in the select list was made O.P.(KAT).51/2016 & conn. 19 a party. The Tribunal permitted the applicants in O.A.No.202/2015 to take out notice by paper publication.

9. The learned counsel appearing for the petitioners submitted that in this case a perusal of the seniority list would reveal that it cannot be said that the number of persons included therein are so numerous or that they could not be pinpointed. It is also to be noted that the Hon'ble Apex Court in Siraj's case, while construing Rule 148 of the Kerala High Court Rules, held that the said Rule could be applied when very large number of persons are involved or it might not be able to pinpoint such persons with details.

10. We have gone through the select list as also through the extract of the seniority list produced. In the light of the dictum laid down by the Hon'ble Apex Court in Siraj's case, if the said lists are examined, it has to be said that relevant details to pinpoint the persons included thereunder are absolutely lacking, therein. So also, large O.P.(KAT).51/2016 & conn. 20 number of persons are included in the list. The Tribunal has noted that actually it contained the names of 700 persons. True that all of them are not teachers belonging to the disciplines to which the petitioners and party respondents belong. But, that could not be a reason to hold that the number of persons likely to be affected would be less as long as the grievance is against the fixation of seniority and that the very case of the applicants is that the list itself was prepared improperly in deviation of the provision under Rule 27(a) of Part II, KS & SSR. In that view of the matter, it has to be taken that large number of persons are included in the seniority list concerned and obviously, the details required to identify all of them are also not discernible from Annexure-A2 list. Taking into account the aforesaid aspects, we are of the considered opinion that the method adopted by the Tribunal in O.A.202 of 2015 viz., to take out notice to persons who are likely to be affected and having interest in the matter by O.P.(KAT).51/2016 & conn. 21 paper publication, which is a recognised mode of service under the provisions under Order I Rule 8 of the Code, cannot be said to be insufficient to satisfy the principles of natural justice or as illegal. Considering all aspects in the light of the aforesaid decisions as also the provisions referred hereinbefore, we do not find any illegality in the Tribunal's action in permitting the applicants in O.A. 202 of 2015 to take out notice in the manner referred above and in proceeding with consideration of all the original applications jointly. When once it is so found, the question is whether the common order passed by the Tribunal in the original applications and the common order passed by the Tribunal in the review applications call for interference, on merits.

11.We have already taken note of the fact that the core contention of the petitioners is that the Tribunal went palpably wrong in setting aside Annexure-A2 seniority list even in the absence of any such prayer in any of the O.P.(KAT).51/2016 & conn. 22 original applications. It is also evident from the impugned orders that after setting aside the seniority list, the Tribunal issued a direction to the third respondent, the Director of Higher Secondary Education to prepare a fresh seniority list of HSST in accordance with the principles enunciated in the common order. A scanning of the impugned order would reveal that after considering the rival contentions and the manner in which the Directorate prepared Annexure- A2 seniority list, the Tribunal came to the conclusion that persons reaching the post of HSST from different categories such as HSA, UPSA/ LPSA, by virtue of the recruitment rules, will lose their birth marks and therefore, for the purpose of preparing the common integrated seniority list of HSST, the provisions under Rule 27(a) of Part II, KS & SSR alone need be followed. It is based on such conclusion that the Tribunal issued further directions for preparation of a fresh seniority list. The Tribunal further held that though the common category of O.P.(KAT).51/2016 & conn. 23 HSST consists of by transfer appointees from HSST (Junior), HSAs and UPSA/LPSA, in almost all subjects such preferences are made only for the purpose of filling up the vacancies in the post of HSST in the concerned subject and in the absence of provisions under the Special Rules for fixation of seniority in the cadre of HSST, general rules under the KS & SSR alone would apply. It was held further thus:-

"If that be so, the finalisation of seniority list in Annexure-A2 purely based on the method of appointment as HSA Type I, UPSA/LPSA Type I etc., cannot be accepted at all. In fact the Government in Annexure A1 also had indicated that for fixing seniority of by transfer appointees Rule 27(a) of the KS & SSR will have to be applied."

After quoting the relevant portion of Rule 27(a) of Part II, KS & SSR, the Tribunal went on to hold thus:-

"The Government in Annexure A1 had clearly directed the application of the above provisions for finalisation of seniority. In the absence of any other specification for assessing seniority in O.P.(KAT).51/2016 & conn. 24 the Special Rules there cannot be any dispute that the general rules in the KS & SSR alone will apply. Apart from the same the priority among the various applicants for appointment as per the Special Rules, which we have quoted in paragraph 10, cannot have any reflection on fixing the seniority. It is a well settled principle of law that when persons are appointed from various sources and they enter a common cadre their seniority will have to be counted from the date of their continuous officiation in the cadre to which they are appointed or in accordance with other rules when the date of appointment is the same. As far as the priority (preference for appointment) provided under rule 5(2) is concerned, no particular weightage is provided for reckoning the same for the purpose of seniority. This is also important. Therefore, categorising the different appointees as now done in the seniority list Annexure-A2, as HSA type I, HSA type II, HSA type III, UPSA/LPSA Type I, UPSA/LPSA Type II, UPSA/LPSA Type III, cannot be held as valid."

12. The question is whether the setting aside of Annexures-A2 and A5 and also consequential directions could be sustained? If not, what is the method to be O.P.(KAT).51/2016 & conn. 25 followed in the matter of preparation of integrated seniority list of HSST? In this context, it is only profitable to extract the relevant portion of Rule 27(a) of Part II, KS & SSR and it reads thus:-

"27.Seniority--(a) Seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade.

Explanation:-For the purposes of this sub-rule, "appointment" shall not include appointment under rule 9 or appointment by promotion under rule 31.

This amendment shall be deemed to have come into force with effect on and from the 17th December, 1958, but shall not affect the seniority of any member of a service settled prior to the date of publication of this amendment in the Gazette:

Provided that the seniority of persons on mutual or inter-unit or inter departmental transfer from one Unit to another within the same Department or from one Department to another, as the case may be, on requests from such persons shall be determined with O.P.(KAT).51/2016 & conn. 26 reference to the dates of their joining duty in the new Unit or Department. In the case of more than one person joining duty in the same grade in the same Unit or Department on the same date, seniority shall be determined--

(a) if the persons who join duty belong to different units or different departments, with reference to their age, the older being considered as senior, and

(b) if the persons who join duty belong to to the same category of post in the same Department, in accordance with their seniority in the Unit or Department from which they were transferred."

13. Rule 27(a) of Part II, KS & SSR provides for determination of seniority by the date of the order of first appointment to any such service, class, category or grade. Its proviso deals with fixation of seniority of persons on mutual or inter-unit or inter unit or inter-departmental transfer from one unit to another within the same department or from one department to another, as the case may be, on requests from such persons. But, clauses O.P.(KAT).51/2016 & conn. 27

(a) and (b) under the said proviso obviously deals respectively with situations of fixation of seniority in the case of more than one person join duty belong to different units or different departments and belong to the same category of post in the same grade in the same unit or Department, on the same date. This position is evident from proviso to Rule 27(a) and clauses (a) and (b) of the proviso as extracted above.

14.Obviously, the petitioners as also the party respondents came to the category of HSST that belongs to a higher and different cadre in a different service viz., the Higher Secondary Education State Service based on appointment by transfer and not by a simple inter-unit or inter-departmental transfer. When such an appointment by transfer from one service to a totally different and higher cadre in another service is effected from different categories in the order of preference and the order of O.P.(KAT).51/2016 & conn. 28 preference is reflected in the order issued by the appointing authority, the question is whether it is Rule 27

(a) or Rule 27 (b) of Part II, KS & SSR which should be applied to fix the seniority among the appointees.

15. It is to be noted that the petitioners as also all the respondents did not dispute the fact that the method of appointment of HSA or UPSA/LPSA to the post of HSST is appointment by transfer. It is indisputable in the light of the provisions under the Special Rules.

16. For the purpose of considering the said question, it is only apposite to refer to the recruitment rules relating HSST under the Kerala Higher Secondary Education State Service Rules, 2001 (for short 'the Special Rules'). The category of Higher Secondary School Teacher falls under Rule 3(2) of the Special Rules. Going by the same, the method of appointment to the said post is as hereunder:-

O.P.(KAT).51/2016 & conn. 29

2.Higher Secondary School Teacher:-

(I) By transfer from Higher Secondary School Teacher (Junior) in the subject concerned.

(II) In the absence of qualified hands under clause (i) above, the vacancies shall be apportioned in the ratio of 1:3 between appointment by transfer and direct recruitment as detailed below:

(1) a.By transfer from High School Assistants included in the General Education Subordinate Service who possess the requisite qualification in the subject concerned.

                 b.In the absence of qualified persons
           under item (a) above, by transfer from
           qualified     Upper    Primary      School
           Assistants/Lower      Primary       School
           Assistants    included  in   the   General
           Education     Subordinate   Service    who

possess the requisite qualification in the subject concerned.

(2) By direct recruitment.

Qualifications for appointment to the post of HSST are prescribed under Rule 5(2) of the Special Rules. For by transfer appointment as also for direct recruitment of HSST under different disciplines, the following qualifications have been prescribed thereunder:-

O.P.(KAT).51/2016 & conn. 30

(i) Master's Degree in the concerned subject with not less than 50% marks from any of the Universities in Kerala or a qualification recognised as equivalent thereto in the respective subject by any University in Kerala.

(ii) (1)B.Ed in the concerned subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as equivalent thereto by a University in Kerala.

(2) In the absence of persons with B.Ed degree in the concerned subject, B.Ed degree acquired in the concerned Faculty as specified in the Acts and Statutes of any of the Universities in Kerala.

(3) In the absence of persons with B.Ed Degree as specified in items (1) (2) above, persons with B.Ed Degree in any subject acquired after a regular course of study from any of the Universities in Kerala or a qualification recognised as Equivalent therein by any of the Universities in Kerala.

(iii) Must have passed the State Eligibility Test for the post of Higher Secondary School Teacher conducted by Government of Kerala or by the agency authorised by the State Government.

17. Thus, a scanning of the relevant rules governing the method of appointment as also prescription of O.P.(KAT).51/2016 & conn. 31 qualifications for the post of HSST would reveal that the normal method of appointment to post of HSST shall be by transfer appointment from HSST (Junior) in the subject concerned belonging to the Kerala Higher Secondary Education Subordinate Service, viz., item No.I possessing the prescribed qualifications. Only in the absence of sufficient number of teachers in item No.I in the subject concerned, vacancies will be available for appointments under item No.II and in such eventuality, such vacancies shall be apportioned in the ratio 1:3 between appointment by transfer and direct recruitment. It would also reveal that in the absence of qualified persons in the category of HSA, by transfer appointment shall be effected from qualified UPSA/LPSAs possessing the prescribed qualifications. Evidently, the Government made classifications, based on Rule 5(2) of the Rules that prescribe the qualifications for the post, such as HSA Type I, HSA Type II, HSA Type III, UPSA/LPSA Type I, O.P.(KAT).51/2016 & conn. 32 UPSA/LPSA Type II and UPSA/LPSA Type III. In respect of all such categories, possession of Master's Degree in the concerned subject with not less than 50% marks from any of the Universities in Kerala or qualification recognised as equivalent thereto in the respective subject by any University in Kerala as mentioned in Rule 5(2)(i) is obligatory. Among the HSAs, those persons having B.Ed Degree also in the concerned subject would be the first preferential category, namely HSA Type I and in their absence HSA described as type II viz., HSA possessing the qualification under Rule 5(2)(ii)(1) and B.Ed Degree in the concerned faculty as specified in the Act and Statutes of any of the Universities in the Kerala would be appointed. In the absence of HSA Type II, the third category which was described by the third respondent as type III would get a chance for appointment. They are persons belonging to the cadre of HSA having the qualification under Rule 5 (2)(ii)(1) and B.Ed Degree in any subject acquired after a O.P.(KAT).51/2016 & conn. 33 regular course of study from any of the universities in Kerala or a qualification recognized as equivalent thereto by any of the universities in Kerala. It is to be noted that in the absence of sufficient persons belonging to the categories of HSA, in the order of preference to fill up the vacancies available under the quota for by transfer appointments, by transfer appointments shall be effected from qualified persons from the categories of UPSA/LPSA. It is to be noted that on the same pattern followed in the case of HSAs, based on the qualifications prescribed under 5(2)(ii)(2) and 3 of the Rules, the third respondent had identified three types; viz., type I, type II, and type III even in the cadre of UPSA/LPSA. While filling up of the vacancies set apart for by transfer appointment, the preference provided under the relevant rules, as mentioned hereinbefore, had truly reflected in the concerned orders of appointment. This factual position is not at all in dispute. While the petitioners contend that it O.P.(KAT).51/2016 & conn. 34 has to be reflected in the integrated seniority list, the party respondents, who were the applicants before the Tribunal, strongly resisted the said contention and submitted that the rules regarding recruitment that provide the order of preference matters only for effecting appointments and in the absence of provisions in the Special Rules for determining seniority for preparing the integrated seniority list, the mandates under Rule 27(a) Part II, KS & SSR are to be followed.

18. Bearing in mind the aforementioned indisputable and undisputable facts and provisions, we will consider the question how the inter se seniority between persons merged in the cadre of HSST by virtue of by transfer appointments during the relevant period from different categories viz., HSST (Jr.), HSA or UPSA/LPSA could be effected if it could not be made by resorting to the provisions under Rule 27(a) of Part II, KS & SSR for the O.P.(KAT).51/2016 & conn. 35 purpose of preparing an integrated seniority list.

19. While considering the question, we will refer to Annexure RA5 produced by the petitioner in O.P.(KAT). 51/2016 arising from RA.9/2016 in O.A.202/2015. The said order of promotion is dated 28.6.2003. It is an order of appointment of HSST (English) in the Higher Secondary Education Department. It would reveal that preference was firstly given to HSST (Junior) and thereafter appointees belonging to HSA category were arranged in the order of preference viz., based on type I, II, III classification made strictly based on the qualifications prescribed in the Special Rules. Likewise the persons belonging to UPSA/LPSA based on type I, II, III preference have been arranged in the order of appointment below persons belonging to HSA category. In other words, in the order of appointment issued by the appointing authority appointing several persons the appointees were arranged O.P.(KAT).51/2016 & conn. 36 in the order of preference going by the preference contemplated under the Special Rules. It is not in dispute that all appointments to different subjects to the category of HSST in the Higher Secondary Education State service were made strictly in the order of preference as mentioned above. Therefore, the question is when the appointing authority while passing orders of appointment fixed the order of preference strictly in conformity with the relevant rules whether it should reflect in the seniority list? The question can never be in the negative in view of the specific provision under Rule 27(b) of Part II, KS & SSR.

20. In view of the question posed for consideration, it is profitable to refer to Rule 27(b) of Part II, KS & SSR and it reads thus:-

27(b).The appointing authority shall, at the time of passing an order appointing two or more persons simultaneously to a service, fix the order of preference among them; and seniority shall be O.P.(KAT).51/2016 & conn. 37 determined in accordance with it:

21. A perusal of Rule 27(b) provides that in case the appointing authority at the time of passing an order appointing two more more persons simultaneously to a service fix the order of preference among them in the said order and their seniority shall be determined in accordance with the said order. When that be the position, going by the provisions of Rule 27(b) and going by the characteristics of the order of appointment, the provisions under Rule 27(a) cannot be made applicable to fix the inter se seniority for the purpose of preparing integrated seniority list and what should be applied for that purpose is Rule 27(b) of Part II, KS & SSR. In the case on hand, we are concerned only with the fixation of inter se seniority between the appointees belonging to HSA and UPSA/LPSA.

22. A perusal of the Special Rules relating O.P.(KAT).51/2016 & conn. 38 appointment of HSST would reveal that appointments were effected to the cadre of HSST in different subjects following the method of appointment and the preferences contemplated under the Special Rules. Indisputably, while effecting appointments of HSST in different subjects, the appointing authority took note of the preference prescribed in the Special Rules and evidently, took note also of the fact that it is the non-availability of HSST (Junior) to fill up all vacancies that paved way for the consideration of qualified hands in the category of HSA in accordance with the preference given in the Special Rules and it is the further non-availability of sufficient number of qualified hands in the category of HSA that afforded opportunity to the qualified hands in the category of UPSA/LPSA, in the order of priority, to get considered and appointed, as HSSTs. In short, it is the fortuitous circumstance of non-availability of qualified hands in the category of HSST or non-availability of sufficient number O.P.(KAT).51/2016 & conn. 39 of qualified hands in the category of HSST (junior) that resulted in the consideration of qualified HSAs in the order of preference and it is the further dearth in the number of qualified hands in HSA category and led to the consideration and appointment of UPSA/LPSA as HSSTs. In such circumstances what would be the justification for granting seniority to a UPSA/LPSA over a qualified HSST (Junior) or even a qualified HSA, on getting appointed under the same order or on the same day, solely because he is older than such appointees. Even in the case of promotion, if feeder categories consist of posts having different scales of pay, those in the post carrying lesser scale of pay would be considered only after consideration of persons having higher scale of pay, going by paragraph

(vi) of the Note to clause 7 of Rule 28(b)(i) of Part II KS & SSR. The Special Rules came into force with effect from 16.4.2001 and the seniority list in question is one covering the period from 13.6.2001 to 9.1.2005. When in an order O.P.(KAT).51/2016 & conn. 40 of appointment, the appointing authority arrayed appointees in the order of preference, going by the extant rules, the seniority of those appointees under that order should continue to be in the same order in which they were shown in the original order of appointment. A contra view or fixing seniority in terms of the provisions under Rule 27

(a) of Part II, KS & SSR in circumstances like the one on hand, would result in granting of seniority to an appointee who would not have even considered and appointed as HSST if sufficient number of qualified hands were available in the other priority category. If qualified hands were available, at the relevant point of time, in the category of HSST (Junior) a qualified hand in the category of HSA, even if he is older than such HSSTs, would not have been considered and appointed as HSST. So also, if sufficient number of qualified HSAs were available, at the relevant point of time, a qualified UPSA/LPSA would not have been considered and appointed as HSST, even if he is O.P.(KAT).51/2016 & conn. 41 senior to qualified HSSTs or qualified HSAs. In such circumstances, if appointments were effected considering the availability of qualified hands in the priority categories and in order of appointments the appointees were arranged in the order of preference of categories, going by the Special Rules, in terms of Rule 27(b) of Part II, KS & SSR such order has to continue while fixing their inter se seniority in the integrated seniority list, as well. True that even in such circumstances, if at a particular point of time, qualified HSST (Juniors) were not available or sufficient number of HSST (Juniors) were not available and owing to that fact if HSAs or UPSAs/LPSAs, in the order of preference, were given appointments they shall not be placed juniors to HSST (Juniors) or HSAs, as the case may be, appointed as HSSTs at a later point of time. Obviously, HSST (Junior) carries higher scale of pay than HSA. That apart, going by the Special Rules, only the absence of qualified HSST (Junior), qualified hands in HSA, in the O.P.(KAT).51/2016 & conn. 42 order of preference, seek for consideration and appointment and only if further vacancies are available, qualified hands in UPSA/LPSA category could be considered in the matter of appointment. All these factual and legal positions constrain us to conclude that the integrated seniority has to be prepared taking into account Rule 27(b) and not Rule 27(a) of Part II, KS & SSR. When appointments of HSSTs were effected in different subjects on the same day, it would result in a situation wherein the persons appointed under different orders would hold the same serial numbers in their respective orders of appointment. For example if on a particular day, the Director issued order of appointments of HSST (Malayalam) and on the same day issued orders of appointments of HSST (English), certainly there must be persons holding serial number 1 and so on and so forth in both the orders. It would definitely create a situation if they reached the post of HSST from the same category i.e., O.P.(KAT).51/2016 & conn. 43 either from HSA or UPSA/LPSA. Necessarily in such circumstances, after initially deciding the inter se seniority of persons appointed under different orders based on Rule 27(b), a further fixation of inter se seniority would also be required. But at that point of time, Rule 27(b) cannot be directly applied and in such circumstances, evidently, one will have to look into the proviso under the Notes to Rule 27(a). If persons from different categories were appointed on different dates, there would not be much difficulty in fixing the seniority. But, if persons belonging to HSA category, but in different subjects, got appointment by transfer to the post of HSST, on the same day under different orders, their seniority is necessarily to be fixed by looking into all the aforesaid provisions of law, as well. True that while fixing seniority list of HSST for the purpose of preparing integrated seniority list, the fact that one was appointed in a particular subject and another was appointed in a different subject would not be having any O.P.(KAT).51/2016 & conn. 44 relevance at all. Therefore, in such circumstances, it could be made with reference to age, necessarily, the older must be given the seniority. In a case where persons who are to be assigned seniority as above, are of the same age, it has to be fixed on the basis of the alphabetic order of their names. If both those aspects are also the same, then it has to be decided on the basis of the alphabetical order of the District concerned. At this juncture, the learned State Attorney submitted that in fact, Annexure-A2 list was prepared following the principles enunciated by us as above. But at the same time, it is to be noted that the said seniority list in full was not made available as part of the materials on record. In such circumstances, we are not in a position to consider the verity or otherwise of the said submission regarding the fixation of seniority in the list dated 26.5.2014. We are of the view that when the list in full was not produced before the Tribunal and there was absolutely no direct challenge against the seniority list, the O.P.(KAT).51/2016 & conn. 45 Tribunal went wrong in setting aside Annexure-A2 extract of seniority list dated 26.5.2014, in its entirity. We are, however, inclined to modify the order of the Tribunal carrying directions to the third respondent, the Director of Higher Secondary Education to prepare a fresh seniority list as one, for preparing an integrated seniority list of HSSTs if the list which was already prepared is not actually one, prepared strictly in conformity with the principles enunciated hereinbefore. In such eventuality, the Director of Higher Secondary Education shall prepare a fresh integrated seniority list of HSST in accordance with the provisions and strictly adhering to the principles laid hereinbefore. At this juncture, the learned counsel for the applicants/party respondents in the original petitions submitted that there is a chance of HSST in a particular subject may get a slot on a day on which a vacancy in that concerned subject had not actually fallen vacant. But at the same time, it is to be noted that we have issued the O.P.(KAT).51/2016 & conn. 46 aforementioned orders taking into account the fact that the Director had already issued orders of appointment reflecting the order of preference of different categories by virtue of the Special Rules, in such orders. In such circumstances, it cannot now be presumed that the Director had issued the orders of appointment even when vacancies were not actually existing and it can only be presumed that such orders of appointments were issued as against the existing vacancies. Since we had no opportunity to peruse the full text of the actual integrated final seniority list (we have already mentioned that such list was not available on record), we are not in a position to hold that such a list was already prepared strictly in accordance with the principles enunciated by us. Certainly, that is a matter now to be looked into by the official respondents, that is to say whether what was already prepared is an integrated seniority of HSST prepared in conformity with the principles laid down O.P.(KAT).51/2016 & conn. 47 hereinbefore. If no such list was prepared, the official respondents are bound to prepare such an integrated final seniority list. Even if already such a list was prepared, but at the same time, if while working out the inter se seniority in terms of the principles laid down hereinbefore, any mistake had been crept in, it will be open to the persons concerned to bring it to the notice of the Director of Higher Secondary Education by filing proper representations within a reasonable time. To enable persons feel aggrieved to file such representations, the third respondent/Director shall invite objection on such matters within one month from the date of receipt of a copy of this judgment and objections, if any, shall be submitted within one month thereafter. We also make it clear that in case an integrated seniority list is found to have been prepared already in consonance with the principles laid down herein, it will be open to the official respondents to operate the same for the purpose of O.P.(KAT).51/2016 & conn. 48 effecting further promotions, subject to any correction, if required, based on any representation received based on the liberty granted as per this judgment. The common order of the Tribunal in the original applications and the order in the review applications in so far as they go against the principles laid hereinbefore stand vacated and set aside. The original petitions will stand disposed of as above. Promotions, if any, already effected will be subject to the examination of the aforesaid aspects by the Director as directed in this judgment and the outcome of representations, if any, filed based on this judgment.

Sd/-

C.T. RAVIKUMAR (JUDGE) Sd/-

                                 K.P.JYOTHINDRANATH
                                           (JUDGE)

shg/spc

O.P.(KAT).51/2016 & conn.    49




                                C.T. RAVIKUMAR, J.

O.P.(KAT).51/2016 & conn.    50




                                JUDGMENT

                                September, 2010

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Kerala High Court