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Showing contexts for: CREATION OF POST in S.Rani vs The State Of Kerala on 20 May, 2024Matching Fragments
3. The Respondent No.6/Smt.S.Rani who is the petitioner in W.P. (C).No.18339/2016 had been working as LPSA in SVHSS and she claims appointment in the above HSST (Junior) (Malayalam) post under By-Transfer category on the ground that she is qualified for getting appointment as on the date of creation of the post.
W.P(C)Nos.15643 & 18339 of 2016
4. The case of the Petitioner is that as per Ext.P1 Government Order dated 03.08.2011 a new Plus Two Batch was sanctioned to SVHSS along with sanctioning of new batches to other schools; that on account of the commencement of the said Batch during the academic year 2011- 2012 the number of periods for Malayalam increased from 48 to 54 and in view of Ext.P2 Government order the school was entitled for one more HSST (Junior)(Malayalam) with effect from the academic year 2011- 2012; that the Manager of the school published Ext.P3 Notification dated 19.08.2011 inviting candidates for the post of HSST and the Petitioner secured Rank No.1 in the selection and accordingly the Manager appointed the petitioner by Ext.P5 Order dated 12.09.2011 as HSST (Junior) (Malayalam) in the school; that the post continued in the subsequent years also; that the Respondent No.1 as per G.O.M.S.No.211/2013/G.Edn. dated 15.07.2013 which is produced as Ext.P8 accorded sanction for the creation of the post in the school; that since the post of HSST (Junior) (Malayalam) was created only with effect from 15.07.2013 the petitioner challenged the same in this Court by filing W.P.(C)No.24424/2015 and the same was disposed of along with W.P.(C)No.23792/2015 filed by the Respondent No.6 directing the Respondent No.1 to consider and pass orders on the Revision filed by the Manager of the school; that in compliance with the said judgment the W.P(C)Nos.15643 & 18339 of 2016 Respondent No.1 passed order No.ACD.V4./6558/12/HSE dated 21.07.2015 which is produced as Ext.P9, upholding the claim of the Respondent No.6 for appointment by transfer from 15.07.2013 and rejecting the claim of the petitioner and directing the Manager of the school to appoint the Respondent No.6 as HSST(Junior) (Malayalam) and to treat the posting of the petitioner as Guest Teacher on daily wages and further directed to submit proposal to the Regional Deputy Director, Thiruvananthapuram appointing the Respondent No.6 for approval; that the Respondent No.1 again considered the matter as per direction of this Court in the judgment dated 09.11.2015 in W.P.(C)No. 24424/2015; that the Respondent No.1 passed Order G.O. (Rt)No.1301/2016/G.Edn. dated 04.04.2016, which is produced as Ext.P10, rejecting the claim of the petitioner directing the Manager to give appointment to the Respondent No.6, if she is found eligible under by-Transfer appointment; and that the issue with respect to prospective operation of creation of post was considered by this Court in Ext.P11 judgment in W.P.(C) No.16613/2014 and Ext.P12 judgment in W.P. (C)No.1914/2013 in which it is held that prospective sanction of post is illegal and without any justifiable ground and declared that the petitioner therein are entitled for getting approval with effect from the initial date of appointment itself and not from any cut-off date fixed by the Government W.P(C)Nos.15643 & 18339 of 2016 of its own. On these contentions the petitioner challenges Ext.P8 order to the extent of prospective creation of the post of HSST (Junior) (Malayalam) only with effect from 15.07.2013 and Ext.P10 Order by which the claim of the Respondent No.6 for appointment under By- Transfer category was upheld and seeks direction to the Educational authorities to sanction the post of HSST from the academic year 2011- 2012 and to approve her appointment as HSST (Junior) (Malayalam) with effect from 12.09.2011 with all consequential benefits.
7. The Respondent No.4/Manager of SVHSS did not file any Counter Affidavit in these writ petitions.
W.P(C)Nos.15643 & 18339 of 2016
8. The Respondent No.6 filed a Counter Affidavit dated 17.08.2016 contending, inter alia, that though an additional batch was sanctioned to the school by Ext.P1 Government order no teaching post was granted along with the said sanction; that later Government issued order dated 10.02.2012 enabling appointment of Guest Lecturers on daily wages; that later Government issued Ext.P8 order dated 15.07.2013 creating post of HSST (Junior) for the additional batch sanctioned during 2010 - 2011; that the date of creation of post is 15.07.2013 and by that time she got qualified for being appointed as HSST (Junior) (Malayalam); that she falls within 25% By-Transfer category; that the petitioner was appointed before the teaching post was sanctioned; that at the time of creation of the post the Respondent No.6 was the only person who is qualified to be appointed as HSST (Junior) (Malayalam) under By-transfer category in the school and that in similar issue the Respondent No.1 issued Ext.R6(c) Government order granting approval to the teachers who are appointed prior to Ext.P8 Government order subject to the condition that the appointment of the Direct Recruits are to be approved only after giving By-transfer appointment to the qualified teachers who are working under the Management. On these contentions the Respondent No.6 prayed for dismissal of the writ petition. Along with the Counter Affidavit W.P(C)Nos.15643 & 18339 of 2016 the Respondent No.6 had filed I.A.No.21791/2016 to vacate the interim order.
23. In Ext.P12 judgment, the petitioners therein were appointed as HSST (Junior) in the academic year 2012 - 2013 consequent to sanctioning of additional batch by the very same Ext.P1 Government order which is produced in the present W.P(C) No.15463/2016. The grievance of the petitioners in Ext.P12 judgment was against the very same Government Order dated 15.07.2013, which is produced as Ext.P8 in the present W.P(C) No.15463/2016, by which the posts were sanctioned prospectively. In Ext.P12, the learned Single Judge considered the argument of learned Additional Advocate General that only Guest Lecturers are to be appointed till sanction is made by the Government and entered a specific finding that a condition for appointment of Guest Lectures in a particular year cannot have any application in any successive years unless the order of sanction specifically provide for such appointments and restricts regular appointment till the creation of a post. The learned Single Judge has specifically found that Ext.P1 does not anywhere speak about fresh appointment to be made as Guest Lecturers till a sanction of post or creation of such post is made by the Government. The learned Single W.P(C)Nos.15643 & 18339 of 2016 Judge found that the petitioners therein having been appointed in the academic year 2012 - 2013 would be entitled to get their appointment approved from the date of their appointment as HSST (Junior) in their respective subjects and further directed the Government to pass appropriate orders approving the appointment of the petitioners and also to disburse the arrears of salary. It is seen from the said judgment that in most of the cases the learned Single Judge directed to approve the teachers as HSST from the beginning of the academic year 2011 - 2012. The State of Kerala and its officers challenged Ext.P12 and identical judgments by filling Writ Appeals and all the Writ Appeals were dismissed by Ext.P14 common judgment dated 28.02.2019. The judgments of the learned Single Judge were challenged by the State on the ground that the learned Single Judge omitted to take note of the involvement of financial commitment on the part of the Government and that the teachers were permitted to be appointed only as Guest faculty until the regular hands were appointed. The Division Bench of this Court passed Ext.P14 judgment rejecting both the contentions raised by the State and dismissed the appeals. The Hon'ble Supreme Court has confirmed Ext.P14 judgment by Ext.P15 Order.
26. The Division Bench of this Court in Stella C.M. (supra) found that the principle insofar as the qualification being required at the time of occurrence of the vacancy would be satisfied if the candidate who seeks appointment by-transfer has acquired qualification on the date of creation of the post. In that case, the dispute was between two candidates under by-transfer category for the newly created post. In that case courses were sanctioned by the Government on 20.07.2010 and posts were created on 24.10.2011. Appellant therein obtained the qualification only on 16.09.2011 subsequent to the sanction of the post but before the creation of the post. The respondent No.1 therein was qualified on 20.07.2010, the date of sanction of the courses. The appellant challenged the judgement of the learned Single Judge upholding the claim of the respondent No.1 on the ground that the appellant was not qualified on the date of occurrence of vacancy and hence the respondent No.1 alone is qualified to be appointed. The W.P(C)Nos.15643 & 18339 of 2016 appellant filed the appeal on the ground that as on the date of creation of the post on 24.10.2011 both the appellant and respondent No.1 are qualified and since the appellant is senior to the respondent No.1 she is entitled to be appointed. The Division Bench upheld the claim of the appellant and set aside the judgment of the learned Single Judge. The learned Government Pleader invited my attention to some of the specific findings in the said decision that merely by the reason of the creation of so many vacancies there could be no appointment made since there should be sanction of post which has to be made by the educational authorities to the individual schools; that creation of post alone would not enable the manager to make appointment; and that there was no possibility or opportunity for the manager to have conducted a selection prior to 24.10.2011.