WP(C) NO. 19935 OF 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 19935 OF 2022
PETITIONER:
JYOTHI M
AGED 44 YEARS
W/O.MANOJKUMAR T.P, H.S.S.T, MALAYALAM, CHEMBILODE
HIGHER SECONDARY SCHOOL, THALAVIL, PODUVACHERY P.O.
KANNUR -670621, RESIDING AT MULLAPPALLI HOUSE,
EACHUR P.O., KANNUR
BY ADVS.
KALEESWARAM RAJ
THULASI K. RAJ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM-695001
2 DIRECTOR OF GENERAL EDUCATION,
DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
THIRUVANANTHAPURAM-695014.
3 DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
KANNUR- 670002.
4 DISTRICT EDUCATIONAL OFFICER,
OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
KANNUR- 670002.
5 MANAGER,
CHEMBILODE HIGHER SECONDARY SCHOOL,THALAVIL,
PODUVACHERY P.O., KANNUR -670621
SMT NISHA BOSE, SR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 19935 OF 2022 2
JUDGMENT
The petitioner has approached this Court seeking to quash Ext.P4 order issued by the 2nd respondent refusing to grant approval of the appointment of the petitioner on the ground that a selection committee including a representative of the Government was not convened for selecting the petitioner.
2. The petitioner asserts that she was appointed in the High School Section of the Chembilode Higher Secondary School with effect from 1.6.2016 in an additional division vacancy. Later she was appointed as HST (Malayalam) with effect from 23.7.2018 in the promotion vacancy of one Suresh Babu. On 31.5.2021, Sri. Suresh Babu, HSST (Malayalam) retired from service and in the vacancy that arose, the petitioner was appointed under the by-transfer category. She asserts that she is the senior most qualified person in the cadre of HST who is entitled to be appointed in the absence of qualified HSST (Jr.) in the 5th respondent school.
3. The petitioner asserts that the proposal for approval submitted by the Manager was rejected by Ext.P4 order dated 25.5.2022 on the ground that no duly constituted selection committee was convened. WP(C) NO. 19935 OF 2022 3 According to the petitioner, the Government has come out with Ext.P5 order dated 21.1.2019, laying down that there is no need for a selection committee when the appointment is effected by by-transfer. It is in the afore circumstances that the petitioner has approached this Court seeking to quash Ext.P4 and for consequential directions.
4. I have heard Smt.Thulasi K. Raj, the learned counsel appearing for the petitioner and the learned Government Pleader and have considered the submissions.
5. I find that the petitioner was appointed by by-transfer in terms of the provisions of Rule 4 of Chapter XXXII of the KER. There is no case for the respondents that the petitioner is not eligible for the appointment. The only reason stated is that a selection committee with a Government nominee was not constituted for selecting the candidate. A Division Bench of this Court in W.A.No.280/2020 taking note of Ext.P5 Government Order has taken the view that to make by-transfer appointments, the report of the selection committee is not required. The same view was taken by a learned Single Judge of this Court in judgment dated 22.2.2021 in W.P.(C) No.3019/2021. In that view of the matter, the petitioner is entitled to succeed.
Ext.P4 will stand quashed. There will be a declaration that Ext.P6 is unenforceable against the petitioner, who is a by-transfer appointee. It is WP(C) NO. 19935 OF 2022 4 held that the petitioner is entitled to have an appointment as HSST (Malayalam) approved with effect from 1.6.2021 and there will be a direction to the respondents 1 and 2 to pass orders approving the appointment with effect from 1.6.2021. There will be a further direction to the respondents to pay salary to the petitioner in the scale of pay of HSST (Malayalam) with effect from 1.6.2021 together with arrears and all consequential benefits.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE IAP WP(C) NO. 19935 OF 2022 5 APPENDIX OF WP(C) 19935/2022 PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF ORDER NO.B1/15693/2020 DATED 03.10.2020 ISSUED BY THE 4TH RESPONDENT.
Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED 17.05.2021 SUBMITTED BY THE PETITIONER BEFORE THE MANAGER.
Exhibit P3 TRUE COPY OF THE PROCEEDINGS DATED 22.12.2021 ISSUED BY THE 5TH RESPONDENT.
Exhibit P4 TRUE COPY OF THE ORDER DATED 25.5.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P5 TRUE COPY OF THE G.O RT NO. 247/2019, DATED 21.01.2019 Exhibit P6 TRUE COPY OF THE GOVERNMENT ORDER G.O. (RT) NO.1332/2022/GEDN DATED 05.03.2022, ISSUED BY THE GENERAL EDUCATION (T) DEPARTMENT.
Exhibit P7 TRUE COPY OF THE EXTRACT OF SERVICE BOOK OF
THE PETITIONER
Exhibit P8 TRUE COPY OF THE AFFIDAVIT IN
W.P(C)NO.11821/2021 FILED BY THE GOVERNMENT RESPONDENTS' EXHIBITS:
NIL