Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member Services -- Sign up today and get free trial for one month.
Kerala High Court
S.Rani vs The State Of Kerala on 20 May, 2024
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
WP(C) NO. 15643 OF 2016
PETITIONER/S:
JAYALEKSHMI K.M.
HIGHER SECONDARY SCHOOL TEACHER (MALAYALAM) SHANMUGHA VILASOM
HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT.
BY ADV SANDESH RAJA K
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION-HIGHER SECONDARY
EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001
2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001
3 THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION, CORPORATION BUILLDING, IVTH
FLOOR,'PALAYALAM, THIRUVANANTHAPURAM 695 034
4 THE MANAGER
SHANMUGHA VILASOM HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM
DISTRICT 690 525
5 THE PRINCIPAL
SHANMUGHA VILASOM HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM
DISTRICT 690 525
6 RANI S
L.P.S.A,SHANMUGHA VILASOM HIGHER SECONDARY SCHOOL, CLAPPANA,
KOLLAM DISTRICT 690 525
BY ADVS.
SR.GOVERNMENT PLEADER SRI. A.J.VARGHESE
SRI.V.A.MUHAMMED
SRI.M.SAJJAD
SRI.A.N.RAJAN BABU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2024, ALONG
WITH WP(C)18339/2016, THE COURT ON 20.05.2024 DELIVERED THE FOLLOWING:
W.P(C)Nos.15643 & 18339 of 2016
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
WP(C) NO. 18339 OF 2016
PETITIONER/S:
S.RANI
AGED 35 YEARS
W/O.PRADEEP, AGED 35 YEARS, LOWER PRIMARY SCHOOL ASSISTANT, SV
HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT
BY ADVS.
SRI.V.A.MUHAMMED
SMT.P.A.JENZIA
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDINGS, TRIVANDRUM-695 001.
3 THE DIRECTOR OF PUBLIC INSTRUCTIONS
JAGATHY, THIRUVANANTHAPURAM-695 014.
4 THE MANAGER
SV HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT-690 525.
*ADDL.R5 JAYALEKSHMI K.M
HIGHER SECONDARY SCHOOL TEACHER [MALAYALAM], SHANMUGHA VILASOM
HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT.
*[IS IMPLEADED AS PER ORDER DATED 29.08.2016 IN I.A.NO.13421/2016]
BY ADVS.
SRI.A.J.VARGHESE SR.GOVT.PLEADER
SRI.A.N.RAJAN BABU
SRI.SANDESH RAJA K
SMT.ASHA BABU
SMT.R.S.ASWINI SANKAR
SRI.M.MANOJKUMAR CHELAKKADAN
SRI.K.RAMAKUMAR SR.
SRI.T.RAMPRASAD UNNI
SRI.SAIJU S.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2024, ALONG
WITH WP(C).15643/2016, THE COURT ON 20.05.2024 DELIVERED THE FOLLOWING:
W.P(C)Nos.15643 & 18339 of 2016
3
'CR'
JUDGMENT
1. Since the issues involved in these two writ petitions are one and the same, I consider both the writ petitions together treating W.P.(C)No.15643/2016 as the leading case. The parties are referred according to their status in W.P.(C)No.15643/2016.
2. The petitioner/Smt. Jayalekshmi K.M is an HSST(Junior) (Malayalam) Teacher appointed on 12.09.2011 under the Direct Recruitment Category in the school - Shanmugha Vilasom Higher Secondary School (SVHSS) Clappana, Kollam on sanctioning of a new Plus Two batch to the said school.
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
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 5 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 6 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.
5. At the time of admission, this Court passed an Order dated 26.04.2016 staying the operation of Ext.P10.
6. The Respondent No.3 /the Regional Deputy Director of Higher Secondary Education filed Counter Affidavit dated 18.05.2017 contending, inter alia, that the Government is the authority to create post in Higher Secondary Schools after verification of the requirement of the post taking into account financial burden of the State; that the Manager can initiate the process of appointing teachers only after issuing Staff fixation Order by RDD; that the action of the Manager initiating the selection process before issue of Staff Fixation Order and neglecting the orders of educational authorities is irregular and against the rules; that W.P(C)Nos.15643 & 18339 of 2016 7 the action of the Manager inviting application for appointment by direct recruitment method negating rightful claimant is not in order; that By- Transfer quotas are not fulfilled in the school; that while inviting the application for sanctioning additional batch Government has clearly specified that the post will be created later; that the Managers applied for additional batches admitting this condition; that the post created only with effect from 15.07.2013 hence the procedure for appointment is to be initiated only after 15.07.2013; that when the posts are created from 15.07.2013 the Respondent No.6 is a legitimate claimant for the post as per Rule; that the Respondent No.6 is a qualified hand during June, 2013 and as on the date of creation of post on 15.07.2013; and that the claim of the petitioner to get appointment approval with effect from 12.09.2011 on the post created on 15.07.2013 is baseless and against Rules. In sum and substance, the Respondent No.3 supported the claim of the Respondent No.6 on the ground that the post was created only on 15.07.2013 and that the Respondent No.6 is qualified to get appointment to the post under By-Transfer category in preference to the petitioner under Direct Recruitment category.
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
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 9 the Respondent No.6 had filed I.A.No.21791/2016 to vacate the interim order.
9. The petitioner filed I.A.No.1/2022 to accept additional document produced as Ext.P13- copy of the Appointment Order dated 01.06.2016 issued by the Respondent No.4/Manager promoting the Respondent No.6 is as HSA (Malayalam) in the school which is approved by the DEO, Kollam. According to the petitioner since the Respondent No.6 accepted the promotion as per Ext.P13, she has relinquished her claim for promotion to the post of HSST. I.A.No.1/2022 is allowed by this Court as per order dated 16.08.2022. The petitioner filed I.A.No.2/2024 to accept additional documents produced as Exts.P14 and P15- copy of the judgment dated 28.02.2019 of the Division Bench of this Court in W.A.No.960/2016 arising from Ext.P12 judgment and copy of the Order dated 30.04.2024 of the Hon'ble Supreme Court in Special Leave Petition (c) No.18120/2019 & connected cases confirming Ext.P14 judgment. I.A.No.2/2024 is allowed.
10. The Respondent No.6 filed W.P.(C)No.18339/2016 on 25.05.2016 seeking direction to the Manager to grant appointment to her as HSST (Junior) (Malayalam) with effect from 15.07.2013 with all attendant W.P(C)Nos.15643 & 18339 of 2016 10 benefits, seeking direction to the Manager to implement G.O. (Rt)No.1301/2016/G.Edn. dated 04.04.2016, which is produced as Ext.P5 (Ext.P10 in W.P.(C)No.15643/2016) and for other reliefs. The contentions raised by the Respondent No.6 in the said Writ Petition are substantially the same as those which she made in the Counter Affidavit in W.P.(C)No.15643/2016. The Respondent No.6 filed W.P. (C)No.18339/2016 without impleading the petitioner who is the rival claimant. The petitioner filed I.A.No.13421/2016 to implead her as Additional Respondent No.5 in W.P.(C)No.18339/2016 and the same was allowed by this Court on 29.08.2016. The Petitioner, as Respondent No.5 filed Counter Affidavit dated 27.11.2016 in W.P.(C)No.18339/2016 raising the same contentions which she raised in W.P. (C)No.15643/2016. The Respondent No.6 filed Reply Affidavit dated 07.01.2017 in W.P.(C)No.18339/2016.
11. I heard Sri.K.Sandesh Raja, Learned Counsel for the petitioner Smt.P.A.Jenzia, Learned Counsel for the Respondent No.6, Sri. A.N.Rajan Babu, Learned Counsel for the Respondent No.4 and Senior Government Pleader Sri.A.J. Varghese, who appeared for the official respondents.
W.P(C)Nos.15643 & 18339 of 2016 11
12. Though the Respondent No.4/Manager did not file any Counter Affidavit in these writ petitions, Sri.A.N. Rajan Babu Counsel for the Manager submitted that the Manager is supporting the petitioner. According to him, Manager is the authority to make appointments in aided school and when additional batch is sanctioned in the school resulting increase in the number of periods requiring sanction of additional posts, in anticipation of sanction of the post by the Government the Manager appointed the petitioner after due selection made by the Selection Committee in which Government nominee is also included. According to him, Government is bound to sanction the post from the date of sanctioning the additional batch and on the basis of the same the appointment of the petitioner is to be approved from the date of her appointment.
13. The following issues arise for consideration in these writ petitions:
1. Whether the Manager of the school is justified to appoint teacher anticipating creation of additional post on sanctioning additional batch by the Government?
2. Whether the Government is justified to create teaching posts prospectively for the additional batches sanctioned earlier?
W.P(C)Nos.15643 & 18339 of 2016 12
3. Which is the relevant date for assessing the required qualifications of the candidates, is it the date of occurrence of vacancy or the date of creation of post?
14. Going by the pleadings in these writ petitions certain facts are admitted : (1) Government sanctioned additional batch to SVHSS for the academic year 2011 - 2012. (2) The Manager appointed the petitioner on 12.09.2011 anticipating sanction of additional post for the academic year 2011 - 2012 since she secured Rank No.1 in the selection conducted by the Selection Committee including Government Nominee after inviting applications through Advertisement. (3) The Respondent No.6 did not have the required qualification for appointment to the post during the academic year 2011 - 2012. (4) The Respondent No.6 attained the required qualification in June 2013 i.e. before 15.07.2013 the date on which Respondent No.1 created the post.
15. The issues involved in these writ petitions are to be considered in the light of the aforesaid admitted facts.
16. With respect to Issue No.1, Ext.P8 is the Order dated 15.07.2013 by which teaching posts are created and upgraded by the Respondent W.P(C)Nos.15643 & 18339 of 2016 13 No.1 for the academic years 2011 - 2012, 2012 - 2013. But, it is specifically stated in Ext.P8 that the Order will have only prospective effect. It implies that the appointment to the post created and upgraded by Ext.P8 could be made only after 15.07.2013. Petitioner is challenging Ext.P8 order to the extent of prospective creation of the post with effect from 15.07.2013. On the other hand, the Respondent No.6 relies on the said clause in Ext.P8 and contends that the post is created only on 15.07.2013 and hence appointment could not be done before that and as on 15.07.2013 she is qualified under By-transfer category and hence she alone can be appointed in the said post.
17. Counsel for the Respondent No.6 invited my attention to G.O.(Rt) No.680/12/G.Edn. dated 10.02.2012 which is produced as Ext.P1 in W.P.(C)No.18339/2016 which states that Government has accorded sanction for engaging Guest Lectures on daily wages both in Government and aided schools for conducting additional batches sanctioned as per Government order dated 03.08.2011 (produced as Ext.P1 in W.P.(C)No.15643/2016) subject to the existing rules and regulations governing such appointments and that orders for giving remuneration to the Guest Lectures so engaged will be issued later separately. I am of the view that the Government order dated W.P(C)Nos.15643 & 18339 of 2016 14 10.02.2012 does not in any way affect the appointment of Petitioner on 12.09.2011. The Government Order dated 10.02.2012 cannot have any retrospective application. It does not provide for retrospective application also. It cannot affect the appointment already made by the Manager in anticipation of sanctioning of the post.
18. The argument of the counsel for the Respondent No.6 is that in view of the Government order dated 10.02.2012, the Managers ought to have appointed Guest Lecturers on daily wages till 15.07.2013 and thereafter, to have made regular appointments after 15.07.2013 terminating the service of the Guest Lecturers who were appointed on daily wages. I am unable to accept the said argument since nobody including the Manager of the school could not have anticipated a Government Order like the Government order dated 10.02.2012 mandating appointment of Guest Lecturers on daily wages at the time when the appointment was made in favour of the petitioner. Moreover, the said Government order dated 10.02.2012 does not speak anything about the period from the date of sanctioning of additional batches to the date of the said Government order.
W.P(C)Nos.15643 & 18339 of 2016 15
19. The Respondent No.1/ Government issued Ext.P1 sanctioning a new Plus Two Batches in the aided Higher Secondary Sector in order to meet the difficulties suffered by the students on account of shortage of Plus Two seats in the districts of Kollam, Alappuzha, Idukki, Thrissur, Palakkad, Malappuram, Kozhikode and Kannur. SVHSS got one additional Batch as per Ext.P1 order. Ext.P1 order does not contain anything preventing appointment of teachers by the Managers on account of increase in teaching periods due to sanctioning of additional batches in the school. On the other hand, Ext.P1 specifically required the Director of Higher Secondary Education to submit detailed Report to the Government with respect to the financial burden on the Government on account of sanctioning additional batches. It necessarily implies that on account of additional batches, new posts are to be created causing financial burden to the Government. Increase in the numbers of students naturally requires more teaching staffs and the same is permitted as per Rules. The need for additional teacher starts with the starting of additional batch. When additional batches are allowed which in turn increase the number of teaching periods in different subjects, the Manager, who is the appointing authority with respect to an Aided school can appoint new teachers in anticipation of sanction by the Educational authorities for the newly required post in the absence of any prohibitory W.P(C)Nos.15643 & 18339 of 2016 16 order from the educational authorities. Hence, the Managers who appointed teachers in anticipation of sanction for the newly required post cannot be blamed in the absence of any prohibitory or restraining orders from the part of the educational authorities. Admittedly, as on the date of appointment of the petitioner on 12.09.2011, there was no order from the part of the educational authorities restraining the Manager of SVHSS to appoint the petitioner.
20. In view of Chapter XXXII Rule 4 of the K.E.R, direct appointment to the post of HSST (Junior) can be made only if qualified teachers are not available to fill up the vacancies set apart for appointment by transfer. Admittedly, the Respondent No.6 was not qualified for appointment on 12.09.2011, the day on which the Petitioner was appointed by the Manager. None of the parties has a case that any other qualified candidate under By-Transfer category is available on the date of appointment of the petitioner. Hence, the Manager was fully justified in appointing the Petitioner as HSST (Junior) (Malayalam) on 12.09.2011.
21. With respect to Issue No.2, the counsel for Petitioner relied on Ext.P11 judgment of the learned Single Judge of this Court disposing W.P.(C)No.16613/2014 and a batch of connected writ petitions and W.P(C)Nos.15643 & 18339 of 2016 17 Ext.P12 judgment of another learned Single Judge in W.P. (C)No.19141/2013.
22. In Ext.P11 judgment, the learned Single Judge has dealt with W.P. (C)Nos.11033 & 16683 of 2014 in the latter part of the judgment and all other cases in the former part. The facts in those two writ petitions are more identical with the facts in the present writ petitions and hence I refer to the latter part of Ext.P11. The facts in those writ petitions are that the petitioners therein were appointed as HSST in the years 2011, 2012 & 2013. But their appointments were approved only with effect from 03.06.2013. The learned Single Judge found that the petitioners therein are entitled to get approval from the date of appointment following his finding in the former part of the very same judgment. In the former part of the judgment the learned Single Judge relied on Ext.P21 judgment produced therein (Judgment in W.P.(C)No.5709/2007). In the said Ext.P21 judgment, a person was appointed as HSST on 25.02.2005 in a regular vacancy but approval of the said appointment was given only with effect from 11.07.2005. It was held that normally unless there in any legal objection against the appointment, the appointment has to be approved from the date of joining duty and accordingly it was declared that the petitioner therein is entitled to get approval from the W.P(C)Nos.15643 & 18339 of 2016 18 date of joining duty on 25.02.2005. Relying on the said Ext.P21 judgment, the learned Single Judge in Ext.P11 judgment allowed the writ petitions in the former part setting aside the impugned orders that approve the appointment of the petitioners therein as HSST with effect from a date subsequent to the date of their actual appointment in the school by holding that the petitioners are entitled to approval of their appointment with effect from their date of appointment in the school. In the latter part of Ext.P11 judgment the learned Single Judge considered an additional issue whether the sanctioning of the post in the school on 23.02.2013 with prospective effect would deprive the petitioners of approval of their appointment for the period from the dates of their actual appointment in the school in question till 23.02.2013 when the post were actually sanctioned by the school. The learned Single Judge relied on the judgment of this Court dated 19.09.2014 in W.P.(C)No.20849/2013 in which it is held that there was no legal or rational basis for the artificial cut off date of 23.02.2013 fixed for the purpose of upgradation of the post that were already created by the Government Order dated 24.10.2011 and declared that the petitioners therein are also entitled to the benefit of the judgment in W.P.(C)No.20849/2013 and that the impugned Government Order dated 23.02.2013 in its application to the petitioners therein shall have the effect from the commencement of the W.P(C)Nos.15643 & 18339 of 2016 19 academic year 2011 - 2012 when they were actually appointed in the school.
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 20 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.
W.P(C)Nos.15643 & 18339 of 2016 21
24. In view of the aforesaid Exts.P11 & P12 judgments, P14 judgement of the Division Bench confirming Ext.P12 and identical judgments and Ext.P15 Order of the Hon'ble Supreme Court confirming Ext.P14 judgment, the prospective application of the sanctioning of post in Ext.P8 Government order is illegal and unsustainable.
25. With respect to Issue No.3, Learned Counsel for the Respondent No.6 as well as the learned Government Pleader cited the Division Bench decisions of this Court in Stella C.M. v. P.L. Resmi and Ors. [2019 (3) KHC 535], the Judgment dated 26.08.2022 in W.A.No 334/2021 and the Judgment dated 11.10.2022 in W.A.Nos.7 and 111 of 2019 and contended that in view of these decisions, the candidate needs to obtain the required qualification only on the date of creation of the post and not on the date of occurrence of vacancy. Since the Respondent No.6 obtained the required qualification before the date of creation of the post as per Ext.P8 Government order dated 15.07.2013, the Manager ought to have appointed the Respondent No.6 in the post sanctioned as per Ext.P8. According to them, the Manager ought to have appointed Guest Lecturers to teach the students till the date of Ext.P8 order and ought to have appointed the Respondent No.6 to the additional post on sanctioning of the post as per Ext.P8 since the W.P(C)Nos.15643 & 18339 of 2016 22 Respondent No.6 is the senior most qualified teacher eligible under the By-Transfer category for appointment as HSST (Junior). According to them, there is no dispute by either party that candidate under direct recruitment can be appointed only in the absence of qualified hands in the by-transfer category.
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 23 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.
27. In the judgment in W.A.No.334/2011 also the dispute was between two HSAs in the school claiming appointment under by-transfer category. In that case, posts were created by the Government Order dated 24.10.2011 with retrospective effect from 06.08.2011. The appellants/respondent Nos.6 & 7 in the writ petition acquired qualification for appointment of the post only on 07.09.2011 and 16.09.2011 i.e after 06.08.2011 the date from which retrospective effect W.P(C)Nos.15643 & 18339 of 2016 24 was given. In other words, the appellants were qualified only on the date of creation of the post on 24.10.2011. They claimed appointment in preference to the respondents 1 & 2/writ petitioners since they were seniors to the petitioners. Relying on the decision in Stella C.M. (supra) the Division Bench of this Court set aside the impugned judgment and upheld the claim of the appellants finding that as on the date of creation of the post they were qualified.
28. In the judgment in W.A.Nos.7 and 111 of 2019 which is filed by the State Government, the Division Bench of this Court set aside the impugned judgment of the learned Single Judge directing the competent authority to approve the appointment of the writ petitioner as HSST with effect from the date of his appointment on 18.09.2014 under by-transfer category holding that the required number of posts of Higher Secondary School Teachers should have been created by the Government in the School simultaneous to the sanctioning of Higher Secondary courses itself. The Division Bench set aside the judgment of the learned Single Judge finding that it cannot be said that it was obligatory for the Government to create sufficient number of teaching and non teaching posts simultaneous to the sanctioning of the courses; that regular appointments of HSST were prohibited in terms of the order by which W.P(C)Nos.15643 & 18339 of 2016 25 additional batches were sanctioned and that higher secondary courses were sanctioned subject to the condition that initial appointment of teaching staff shall only be as Guest Lecturers. The learned Counsel for the Respondent No.6 took my attention to the specific finding of the Division Bench that the Manager of the School was incompetent to make any regular appointment in the Higher Secondary section of the school prior to the creation of the post by the Government and sanction of post by the Director of Higher Secondary Education.
29. In view of the aforesaid three Division Bench judgments, the legal proposition is clear that the relevant date for assessing the qualifications of the eligible candidates is the date of creation of the post by the Government and not the date of occurrence of vacancy. In other words, if a candidate who did not have the required qualification on the date of occurrence of vacancy acquires the required qualification before the date of creation of the post, he is eligible to get appointment.
30. I am of the view that the aforesaid three Division Bench judgments cited by the Government Pleader as well as counsel for the Respondent No.6 are distinguishable on facts of the present case. It appears from the facts of those cases that there was prohibition to the Managers to W.P(C)Nos.15643 & 18339 of 2016 26 make regular appointments to the newly occurred vacancies and they were required to make temporary appointments of Guest Lecturers on daily wages till the Government permits regular appoints. Paragraph 3 of Stella C M (Supra) would show that there was a condition to appoint HSST temporarily as Guest Lecturers when the courses were sanctioned by the Government. The judgment in W.A No.334/2021 would show that though the post was created on 24.10.2011 with retrospective effect from 06.08.2011, it is seen that nobody was appointed in the said post before the date of creation of the said post. In the judgment in W.A.Nos.7 and 111 of 2019 also there was specific condition to appoint temporary Guest Lecturers while sanctioning new batches as per Government Order dated 31.07.2014. In the present case, petitioner was appointed on 12.09.2011 in an anticipated HSST (Junior) vacancy on account of sanctioning of new Plus Two batch as per Ext.P1 Government Order dated 03.08.2011. Ext.P1 Government Order dated 03.08.2011 does not contain any restriction regarding appointment of teachers by the Manager nor does it contain any stipulation to appoint temporary Guest Lecturers to teach the additional strength of students. The requirement of qualified teacher is from the date of sanctioning of batch and cannot be counted from the date of creation of the post. Manager is the appointing authority of Aided W.P(C)Nos.15643 & 18339 of 2016 27 School. In the absence of any restriction or limitation imposed by the Educational Authorities, Manager of an Aided School has every right to make appointments when sanction of post is anticipated on account of increase in the periods as a result of sanctioning additional batches. Sanctioning of the course definitely creates need for Higher Secondary School Teachers. As the things stood on 12.09.2011, the day on which the petitioner appointed, Respondent No.6 could not have been appointed by the Manager as she was not qualified. When a vacancy arose, the normal procedure to be done by the Manager is to appoint a qualified hand for the post subject to the sanction by the Educational Authorities. The Manager cannot appoint Guest Lecturer without any authorisation from the Educational Authorities. If the contentions of the Educational authorities and Respondent No.6 are to be accepted, the Manager should have continued with additional batch with the existing number of teachers, as there is no qualified hand in the By-Transfer Category and there is no enabling provision to appoint Guest Lecturer on daily wages. The contention of the Counsel for Respondent No.6 and the Government Pleader that the Manager should have appointed Guest Lecturer till the date of Ext.P8 Government Order does not hold good in view of the fact that there was no such condition imposed by the Government while sanctioning the courses as per Ext.P1. The W.P(C)Nos.15643 & 18339 of 2016 28 Government Order dated 10.02.2012 (produced as Ext.P1 in W.P.(C) No.18339/2016) directing engagement of Guest Lecturers on daily wages for the additional batches created as per Ext.P1 order dated 03.01.2011 does not speak anything about the period between 03.08.2011 and 10.02.2012. Since the petitioner was appointed before the date of the Government Order dated 10.02.2012, her appointment cannot be affected by the said Government Order. The petitioner has produced Ext.P13 Appointment Order dated 01.06.2016 by which the Manager promoted the Respondent No.6 to the post of HSA(Malayalam) and the same was approved by the DEO, Kollam on 23.09.2016. The petitioner has been working in the school without approval and salary since the year 2011, whereas the Respondent No.6 has been continuing in the promoted post of HSA with approval and salary. In view of these facts in the present case which are clearly distinguishable from the facts in the above cited three decisions I am of the view that the claim of the petitioner is liable to be upheld in these writ petitions.
31. Sl. No.9 in Ext.P8 shows that one additional post of HSST (Junior) (Malayalam) is sanctioned to SVHSS for the academic year 2012-13. Though the petitioner claims appointment with effect from 12/09/2011 i.e; in the academic year 2011-12, in the Counter affidavit filed by the W.P(C)Nos.15643 & 18339 of 2016 29 respondent No. 3 nothing is stated about the claim of the petitioner with respect to the academic year 2011-12. The case of petitioner as well as the Manager is that in view of Ext.P2 Government Order, SVHSS is entitled to get one additional post of HSST(Junior) (Malayalam) with effect from the academic year 2011-12. Hence the Respondent No.1 is liable to be directed to consider the eligibility of the School for one additional post of HSST (Junior) (Malayalam) in the academic year 2011-12 taking note of Ext.P2 Government Order. If such post is admissible for the academic year 2011-12, the petitioner is entitled to get approval of appointment with effect from 12.09.2011. If the additional post of HSST (Junior) (Malayalam) is not admissible for the academic year 2011-12, petitioner is entitled to get approval of appointment with effect from the academic year 2012-13.
32. In the result W.P(C) No.15643/2016 is allowed :
a. by issuing a Writ of Certiorari setting aside Ext.P8 to the extent of the prospective creation of the post of HSST (Junior) (Malayalam) in SVHSS of Respondent No.4/Manager & setting aside Ext.P10 order, W.P(C)Nos.15643 & 18339 of 2016 30 b. by issuing a Writ Mandamus ordering the Respondent Nos. 1 to 3 to approve the appointment of the petitioner as HSST (Junior) (Malayalam) in SVHSS of Respondent No.4/Manager with effect from the academic year 2012-13 and disburse all consequential benefits within four months from the date of receipt of copy of this judgment.
c. by issuing a Writ Mandamus ordering the Respondent No.1 to consider the eligibility of SVHSS of Respondent No.4/Manager for one additional post of HSST (Junior) (Malayalam) in the academic year 2011-12 taking note of Ext.P2 Government Order within two months from the date of receipt of copy of this judgment. If such post is admissible for the academic year 2011-12, the petitioner is entitled to get approval of appointment with effect from 12.09.2011. d. W.P.( C).No.18339/2016 is dismissed.
Sd/-
M. A. ABDUL HAKHIM JUDGE Shgx17.5 W.P(C)Nos.15643 & 18339 of 2016 31 APPENDIX OF WP(C) 15643/2016 PETITIONER ANNEXURES P1 TRUECOPY OF THE G.O(MS) NO 167/11 G. EDN DATD 03-08- 2011 ALONG WITH THE RELEVANT PAGE OF ANNEXURE. P2 TRUE COPY OF THE G.O(MS) NO 398/2002/G.EDN DATED 29- 11-2002.
P3 TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE KERALA KAUMUDI DAILY DATED 19-08-2011 P4 TRUE COPY OF THE RANKLIST ISSUED BY THE 4TH RESPONDENT P5 TRUE COPY OF THE APPOINTMENT ORDER DATED 12-09-2011 ISSUED BY THE 4TH RESPONDENT P6 TRUE COPY OF THE RECOMMENDATION FOR FIXATION OF STAFF IN THE 4TH RESPONDENT'S SCHOOL FOR THE ACADEMIC YEAR 2011-12 P7 TRUE COPY OF THE RECOMMENDATION FOR FIXATION OF STAFF IN THE 4TH RESPONDENT SCHOOL FOR THE ACADEMIC YEAR 2012-13 P8 TRUE COPY OF THE G.O(MS) NO 211/2013/G.EDN DATED 15- 07-2013 ALONG WITH THE RELEVANT PAGEOF THE LISTS OF SCHOOL.
P9 TRUE COPY OF THE ORDER NO.ACD.B4/6558/12/HSE DATED 21- 07-15 ISSUED BY THE 1ST RESPONDENT P10 TRUE COPY OF GO(RT) NO 1301/2016/G.EDN DATED 4-04-2016 ISSUED BY THE 1ST RESPONDENT.
P11 TRUE COPY OF THE JUDGMENT DATED 1-6-2015 OF THIS HON'BLE COURT IN WP(C) NO. 16613/2014 P12 TRUE COPY OF THE JUDGMENT DATED 4-11-2015 OF THIS HON'BLE COURT IN WRIT PETITION (C) NO 19141 OF 2013 P13 TRUE COPY OF THE ORDER NO. B4/3570/2016/K DATED 22/09/2016 APPROVED BY THE DISTRICT EDUCATIONAL OFFICER, KOLLAM P14 TRUE COPY OF THE RELEVANT EXTRACT OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN W.A.NO.960/2016 DATED 28/2/2019 AND CONNECTED CASES P15 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN S.L.P. NO.18120/2019 DATED 30/4/2024 AND CONNECTED CASES RESPONDENTS' EXTS EXT.R6(A) TRUE COPY OF THE APPOINTMENT ORDER OF SMT.RANI S DATED 2.6.2003 EXT.R6(B) TRUE COPY OF THE APPLICATION UNDER RTI ACT DATED 17.8.2013 AND THE INFROMATION FURNISHED THEREON DATED 10.9.2013 EXT.R6(C) TRUE COPY OF THE G.O.(M.S.)NO.223/15/G.EDN. DATED 24.8.2015 OF THE GOVERNMENT W.P(C)Nos.15643 & 18339 of 2016 32 APPENDIX OF WP(C) 18339/2016 PETITIONER EXHIBITS P1 : TRUE COPY OF THE GO(RT)NO.680/12/GL.EDN DATED 10-2-
2012 OF THE GOVERNMENT.
P2 : TRUE COPY OF THE QUESTIONNAIRE DATED 17-8-2013 AND THE INFORMATION FURNISHED UNDER RTI ACT DATED 10-9-2013 P3 : TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 21- 7-2015.
P4 : TRUE COPY OF THE JUDGMENT IN WPC.NO.23792/2015-Y DATED 19-11-2015.
P5 : TRUE COPY OF THE GO(RT)NO.1301/2016/G.EDN DATED 4-4- 2016.
P6 : TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT DATED 15-4-2016.
P7 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN
WPC.NO.5486/2013 BY THE GOVERNMENT PLEADER.
P8 TRUE COPY OF THE G.O.(MS)NO.211/2013/G/EDN. DATED
15.7.2013 OF THE GOVERNMENT
P9 TRUE COPY OF THE G.O.(M.S.)NO.284/2014/G.EDN. DATED
30.12.2014 OF THE GOVERNMENT
RESPONDENTS' EXTS
EXT.R5(A) TRUE COPY OF THE NOTIFICATION PUBLISHED BY THE 4TH
RESPONDENT IN THE KERALA KAUMUDI DAILY DATED
19.08.2011
EXT.R5(B) TRUE COPY OF THE APPOINTMENT ORDER DATED 12.9.2011
ISSUED BY THE 4TH RESPONDENT
EXT.R5(C) TRUE COPY OF G.O.(MS)NO.211/2013/G/EDN. DATED
15.7.2013
EXT.R5(D) TRUE COPY OF THE JUDGMENT DATED 4.8.2015 IN
WP(C)14975/2014