Kerala High Court
The S S V Higher Secondary School vs State Of Kerala on 6 April, 2022
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
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 6TH DAY OF APRIL 2022 / 16TH CHAITHRA, 1944
WA NO. 31 OF 2022
AGAINST THE JUDGMENT DATED 30.11.2021 IN WP(C) 11561/2021 OF HIGH
COURT OF KERALA
APPELLANTS/PETITIONERS:
1 THE S S V HIGHER SECONDARY SCHOOL
CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695 304,
REPRESENTED BY ITS MANAGER.
2 S.MAHIMA, AGED 35 YEARS, W/O PRAMOD, HIGHER SECONDARY
SCHOOL TEACHER (JUNIOR) ENGLISH, SSV HIGHER SECONDARY
SCHOOL, CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695 304.
BY ADVS.SRI.V.A.MUHAMMED
SRI.V.RAJASEKHARAN NAIR
RESPONDENTS/RESPONDENTS:
1 THE STATE OF KERALA,REPRESENTED BY ITS SECRETARY TO
GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT
ANNEX II, THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF GENERAL EDUCATION
(HIGHER SECONDARY SECTION), HOUSING BOARD BUILDINGS,
SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.
3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
EDUCATION, CORPORATION BUILDINGS, IVTH FLOOR, PALAYAM,
THIRUVANANTHAPURAM-695 033.
4 SMT.CHITRA A. P., HIGH SCHOOL ASSISTANT (ENGLISH),
S S V HIGHER SECONDARY SCHOOL, CHIRAYINKEEZHU,
THIRUVANANTHAPURAM-695 304.
BY ADVS.SRI.BRIJESH MOHAN
SMT.RESMI G. NAIR
BY SR. GOVT.PLEADER SRI. A.J VARGHESE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
06.04.2022, ALONG WITH WA.114/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
:2:
W.A.No.31 of 2022
&
W.A.No.114 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 6TH DAY OF APRIL 2022 / 16TH CHAITHRA, 1944
WA NO. 114 OF 2022
AGAINST THE JUDGMENT DATED 30.11.2021 IN WP(C).NO. 10075/2021 OF
HIGH COURT OF KERALA
APPELLANTS/3RD AND 4TH RESPONDENTS:
1 THE MANAGER, S S V G H SCHOOL
CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695 304,
2 MAHIMA.S, HSST(JR.), SSV HIGHER SECONDARY SCHOOL,
CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695 304.
BY ADVS.SRI.V.A.MUHAMMED
SRI.V.RAJASEKHARAN NAIR
RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3:
1 SMT.CHITRA A. P., AGED 36 YEARS, HIGH SCHOOL ASSISTANT
(ENGLISH), S S V G H SCHOOL, CHIRAYINKEEZHU,
THIRUVANANTHAPURAM-695 304.
2 THE STATE OF KERALA,REPRESENTED BY ITS SECRETARY TO
GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY,
THIRUVANANTHAPURAM-695 014.
4 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
EDUCATION, IVTH FLOOR, CORPORATION BUILDINGS,
PALAYAM, THIRUVANANTHAPURAM-695 033.
BY ADVS.SRI.BRIJESH MOHAN
SMT.RESMI G. NAIR
BY SR. GOVT.PLEADER SRI. A.J VARGHESE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.04.2022,
ALONG WITH WA.31/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
:3:
W.A.No.31 of 2022
&
W.A.No.114 of 2022
JUDGMENT
A.K.Jayasankaran Nambiar, J.
As both these Writ Appeals impugn a common judgment dated 30.11.2021 of a learned Single Judge in WP(C).Nos.10075 and 11561 of 2021 they are taken up for consideration together and disposed by this common judgment.
2. WP(C).No.10075 of 2021 was filed by Smt.Chitra A.P seeking to implement a Government Order dated 18.02.2021 that directed the Manager of the SSVGHSS, Chirayinkeezhu to consider the service particulars of Smt.Chitra A.P as well as Smt. S. Mahima, both of whom were working as H.S.A (English) in the school and were rival claimants to the vacancy of HSST Junior (English) that arose in the school with effect from 01.06.2017 in the category earmarked for by transfer appointments. WP(C).No.11561 of 2021 was preferred by Smt. S. Mahima and the Manager of the school impugning the very same Government Order dated 18.02.2021 to the extent it had rejected the Revision Petition preferred by Smt. S. Mahima seeking approval of her appointment as HSST Junior (English) to the vacancy that arose on 01.06.2017.
:4:W.A.No.31 of 2022 & W.A.No.114 of 2022
3. It would appear that while on the date of arising of the vacancy to the post of HSST Junior (English) on 01.06.2017, Smt.Chitra's appointment as H.S.A (English) with effect from 01.06.2011 had not received the approval of the educational authorities, and approval had been accorded on 23.10.2014 to the appointment of Smt. S. Mahima to a leave vacancy with effect from 03.06.2013 onwards, the appointment of Smt. S. Mahima as HSST Junior (English) was not accorded approval for the reason that no Selection Committee had been constituted by the Manager for making the appointment. Against the order of the educational authorities denying approval, Smt. S. Mahima preferred a Revision Petition before the Government, which culminated in Ext.P9 order that allowed the Revision Petition and directed the educational authorities to grant approval to the appointment of Smt. S. Mahima with effect from 01.06.2017. In the meanwhile, however, Smt.Chitra, whose appointment as H.S.A with effect from 01.06.2011 was approved on 26.07.2017, approached this Court through WP(C).No.10157 of 2020 seeking implementation of the order of the educational authorities that denied approval to the appointment of Smt. S. Mahima as HSST Junior (English) with effect from 01.06.2017. While the said Writ Petition was pending, and taking note of the order of the Government that subsequently allowed the revision preferred by Smt. S. Mahima as :5: W.A.No.31 of 2022 & W.A.No.114 of 2022 noticed above, Smt.Chitra amended her Writ Petition to challenge the said order as well. WP(C).No.10157 of 2020 was, thereafter, disposed by this Court by a judgment dated 26.02.2020, which set aside the Government Order passed in favour of Smt. S. Mahima, and directed the Government to consider the matter afresh by looking into the rival claims of both Smt.Chitra and Smt. S. Mahima to the vacancy in the post of HSST Junior (English) that arose in the school with effect from 01.06.2017.
4. In the proceedings that followed before the Government, the Government considered the rival claims and by Ext.P12 order dated 18.02.2021 the Government rejected Smt. S. Mahima's claim for approval of her appointment as HSST Junior (English) and directed the Manager to consider the appointment of Smt.Chitra as HSST Junior (English) to the vacancy that arose with effect from 01.06.2017 after constituting a Selection Committee for the purpose.
5. The learned Single Judge who considered the Writ Petitions found that Smt.Chitra had approved service as H.S.A English from 01.06.2011 whereas Smt. S. Mahima had approved service only in a leave vacancy from 2013. It was found, therefore, that between Smt.Chitra and Smt. S. Mahima the former was Senior to the latter. It was also found that inasmuch as the service of Smt. S. Mahima with :6: W.A.No.31 of 2022 & W.A.No.114 of 2022 effect from 03.06.2013 was in a leave vacancy, the said service rendered in a leave vacancy would not enure to her benefit for staking a claim for by transfer appointment as HSST Junior (English). The learned Single Judge also rejected the contention of Smt. S. Mahima that it was not necessary to evaluate the comparative merit of qualified teachers when there was a qualified hand for appointment by transfer. He also took note of the Government Order dated 21.01.2019, which directed that no Selection Committee was required for effecting by transfer appointments and found that prudence dictated that the manager had to conform to statutory Rules and Regulations, and hence, the constitution of a Selection Committee to consider the inter se merit of the candidates could not be said to be irregular. WP(C).No.10075 of 2021 preferred by Smt.Chitra was, therefore, allowed and WP(C).No.11561 of 2021 preferred by Smt. S. Mahima was dismissed by the learned Single Judge.
6. Before us, it is the submission of the learned counsel for the appellants in W.A.No.31 of 2022 filed by the Manager of the school and Smt. S. Mahima that at the time when the vacancy occurred in the post of HSST Junior (English) on 01.06.2017, she was the only candidate available for consideration under the by transfer route to the said posts. It is pointed out that although Smt.Chitra had been appointed as H.S.A with effect from 01.06.2011, the approval to the said appointment was :7: W.A.No.31 of 2022 & W.A.No.114 of 2022 granted only on 26.07.2017. The learned counsel would, therefore, contend that even after the directions in the judgment dated 26.02.2020 in WP(C).No.10157 of 2020, the Government could not have considered the candidature of Smt.Chitra since she was not an approved H.S.A (English) as on the date of arising of the vacancy. We find ourselves unable to accept the said contention of the learned counsel for the appellants for more reasons than one. Firstly, there was no challenge to the judgment dated 26.02.2020, which set aside the earlier Government Order that had allowed the Revision Petition preferred by Smt. S. Mahima and directed a fresh consideration of the claims of both Smt.Chitra and Smt. S. Mahima by the Government. Secondly, although it is a fact that Smt.Chitra had not secured approval to her appointment as H.S.A (English) with effect from 01.06.2011 till 26.07.2017, in the light of the approval subsequently granted we have to see the approval as relating back to the date of appointment, and hence, while considering the matter afresh, the Government had to see Smt.Chitra as an H.S.A, who had an approved service with effect from 01.06.2011. It is also brought to our notice that the appointment of Smt. S. Mahima with effect from 03.06.2013, that was initially approved as service rendered in a leave vacancy has since been approved as service rendered in a regular vacancy by an order dated 24.02.2020. We are at a loss to understand how such approval was granted with effect from 03.06.2013 when admittedly at the time of :8: W.A.No.31 of 2022 & W.A.No.114 of 2022 appointment the vacancy in question was a leave vacancy and not a regular vacancy. At any rate, since the said issue does not arise for scrutiny in these Writ Appeals we do not wish to make any observations regarding the same. We prefer to go by the material on record to find that as between Smt. S. Mahima and Smt.Chitra, the latter had approved service as H.S.A (English) with effect from 01.06.2011 whereas the former had service in a leave vacancy with effect from 03.06.2013. To the vacancy that arose in the post of HSST Junior (English) with effect from 01.06.2017, in the quota earmarked for by transfer appointment, we are of the view that it was Smt.Chitra, who had the superior claim both on account of her seniority in the category of H.S.A (English) and also on account of the fact that her service was rendered in a regular vacancy. We see no reason to interfere with the judgment of the learned Single Judge that holds so, and hence, for the reasons stated in the said judgment, as supplemented by the reasons in this judgment, we deem it appropriate to dismiss both the Writ Appeals.
The upshot of the aforesaid discussion is that the 1 st appellant Manager shall now appoint Smt.Chitra A.P as HSST Junior (English) to the vacancy that arose in the school with effect from 01.06.2017 and forward the letter of appointment to the educational authorities for approval thereof within one month from the date of receipt of a copy of :9: W.A.No.31 of 2022 & W.A.No.114 of 2022 this judgment. We further direct the educational authorities to grant approval to the said appointment, if there are no other legal impediments to the grant of such approval, within an outer time limit of three months from the date of receipt of a copy of this judgment.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE Sd/-
MOHAMMED NIAS C.P. JUDGE mns