Kerala High Court
Bibin K.S. vs The State Of Kerala on 1 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
WP(C).No.22064 OF 2019(G)
PETITIONER:
BIBIN K.S., AGED 43 YEARS, S/O.K.N.SURENDRAN,
UPPER PRIMARY SCHOOL TEACHER (UPST), JAYASREE HIGHER
SECONDARY SCHOOL, KALLUVAYAL, KALANDIKOLLY P.O.,
PULPALLY, WAYANAD DIST., PIN - 673 579,
RESIDING AT KOLLAPILLIEL HOUSE, NELLARCHAL P.O.,
AMBALAVAYAL, WAYANAD DIST., PIN - 673 593.
BY ADV. SRI.MURALI PALLATH
RESPONDENTS:
1 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO
GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.
SECRETARIAT (ANNEX II), THIRUVANANTHAPURAM, PIN - 695 001.
2 THE DIRECTOR OF GENERAL EDUCATION,
THIRUVANANTHAPURAM, PIN - 695 014.
3 THE REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION DEPARTMENT, REGIONAL OFFICE,
KALLAYI P.O., KOZHIKODE, PIN - 673 001.
4 THE MANAGER, JAYASREE HIGHER SECONDARY SCHOOL,
KALLUVAYAL, KALANADIKOLLY P.O., PULPALLY,
WAYANAD DIST., PIN- 673 579.
5 SINDHU GEORGE, HIGHER SECONDARY SCHOOL TEACHER (JUNIOR) IN
MATHEMATICS (UNAPPROVED), JAYASREE HIGHER SECONDARY
SCHOOL, KALLUVAYAL, KALANADIKOLLY P.O., PULPALLY,
WAYANAD DIST., PIN - 673 579.
BY ADVS. SRI.DIPU.R
SMT. DEVI KRIPA R.
SRI.K.S.BAIJU
SRI.SANAL P.RAJ
SMT.DHANYA BABU
SMT.P.A.PRIYA
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01.02.2021, ALONG WITH WP(C).22996/2019(Y), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C)Nos.22064 & 22996 OF 2019
-2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
WP(C).No.22996 OF 2019(Y)
PETITIONERS:
1 THE MANAGER, JAYASREE HIGHER SECONDARY SCHOOL,
(J.H.S.S.), KALLUVAYAL, KALANDIKOLLY P.O,
PULPALLY, WAYANAD - 673 579.
2 SINDHU GEORGE, AGED 41 YEARS, W/O. ANISH PHILIP,
HIGHER SECONDARY SCHOOL TEACHER (HSST),(JUNIOR), IN
MATHEMATICS, JAYA SREE HIGHER SECONDARY SCHOOL (JHSS),
KALLUVAYAL, KALANADIKKOLY P.O, PULPALLY,
WAYANAD-673 579, AND RESIDING AT KIZHAKKETHUNDATHIL (H),
CHEEYAMBAM P.O, PULPALLY, WAYANAD - 673 579.
BY ADVS.SRI.DIPU.R
SRI.K.S.BAIJU
SMT. DEVI KRIPA R.
SMT.DHANYA BABU
SMT.P.A.PRIYA
SRI.S.SAMEER
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT,
(ANNEX-II), THIRUVANANTHAPURAM - 695 001.
2 THE DIRECTOR OF GENERAL EDUCATION (FORMERLY THE
DIRECTOR, HIGHER SECONDARY EDUCATION), HIGHER SECONDARY
SECTION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
THIRUVANANTHAPURAM - 695 014.
3 THE REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, REGIONAL OFFICE,
KALLAI P.O, KOZHIKODE -673 003.
4 BIBIN K.S, AGED 43 YEARS, S/O. K.N SURENDRAN, UPPER
PRIMARY SCHOOL ASSISTANT (UPSA), JAYASREE HIGHER
SECONDARY SCHOOL (JHSS), KALLUVAYAL,
KALLANADIKKOLLY P.O, PULPALLY, WAYANAD 673 573, AND
RESIDING AT KOLLAPPILLIEL HOUSE, NELLARCHAL P.O,
AMBALAVAYAL, WAYANAD - 673 593.
BY ADVS. SRI.MURALI PALLATH
SRI.P.M.MANOJ, SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01.02.2021, ALONG WITH WP(C).22064/2019(G), THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C)Nos.22064 & 22996 OF 2019
-3-
JUDGMENT
[ WP(C).22064/2019, WP(C).22996/2019 ]
Dated this the 1st day of February 2021
I am considering these two writ petitions
together since the issues impelled therein
are similar, if not identical and the reliefs
sought for in one is opposing the reliefs in
the other.
2. The petitioner in W.P(C)No.22064 of
2019 - Sri.Bibin K.S., is stated to be
working as an Upper Primary School Teacher in
the services of "Jayasree Higher Secondary
School", Wayanad - of which the fourth
respondent is the Manager - and he claims
promotion to the post of Higher Secondary
School Teacher (Junior) in the Higher
Secondary Division of the said School, under
the 25% quota reserved for by-transfer
appointments, as per the provisions of Rule 4
Chapter XXXII of the Kerala Educational Rules
WP(C)Nos.22064 & 22996 OF 2019
('the KER' for short).
3. Sri.Bibin's allegation is that, in
spite of the fact that he is fully eligible
and entitled to be so appointed, the Manager
appointed Smt.Sindhu George to the said
vacancy through direct recruitment; and
therefore, that he was constrained to
approach the Educational Authorities, which
finally led to Ext.P21 Government Order dated
25.07.2019, under which the Manager was
directed to appoint him under the 25% by-
transfer quota. He contends that the
reasoning of the Government in Ext.P21 order
is irreproachable because, it was found by
them that the cadre strength in the post of
HSST (Junior) in the School is eleven and,
therefore, that 25% of it, being 2.75, will
have to be rounded as three, thus paving way
for this appointment. He thus prays that
Ext.P21 be directed to be implemented by the
WP(C)Nos.22064 & 22996 OF 2019
Manager at the earliest.
4. While so, the Manager of the
School and Smt.Sindhu George filed
W.P(C)No.22996 of 2019, impugning the
aforementioned order of the Government -
producing it as Ext.P10. According to them,
since Rule 4 Chapter XXXII of the KER makes
it clear that only 25% of the total posts can
be filled up through 'by-transfer'
appointments of qualified teachers in the
School, not more than two could have been
appointed, when the cadre strength is
admittedly eleven. They contend that if 2.75
is rounded to be taken as three, then it will
be more than 25% and, consequently that the
stipulations of the aforementioned Rule will
stand flagrantly violated. They, therefore,
pray that the impugned Government Order be
set aside and the appointment of Smt.Sindhu
George be directed to be approved.
WP(C)Nos.22064 & 22996 OF 2019
5. I have heard Sri.Murali Pallath -
learned counsel for the petitioner in
W.P(C)No.22064 of 2019; Sri.Dipu.R - learned
counsel for the petitioners in W.P(C)No.22996
of 2019 and the learned Senior Government
Pleader - Sri.P.M.Manoj.
6. A mere look through the afore
narrative makes it indubitable that the sole
controversy involved in this case is whether
the fraction of 2.75 will have to be rounded
as three or whether it should be construed
only as two. This assumes significance in
this case because, the cadre strength of the
School is admittedly eleven, and 25% thereof
is mathematically 2.75.
7. Sri.Bibin K.S. - the petitioner in
W.P(C) No.22064 of 2019, asserts that when
the fraction is 2.75, it will have to be
rounded to 3 and, therefore, that he ought to
have been appointed to the said vacancy;
WP(C)Nos.22064 & 22996 OF 2019
while the Manager and Smt.Sindhu George
assert that if it is so done, the 25%
stipulation will stand violated and
therefore, that only two vacancies can be
filled up by 'by-transfer' appointment.
8. Before I speak further on this issue,
I must record the submissions of the learned
Senior Government Pleader- Sri.P.M.Manoj, who
asserts that when the fraction is over 2.5,
the number should be taken as three, because
otherwise, it will create a situation where
the number of direct recruitment will become
in violation of the Rule. He submitted that
it is, therefore, that the Government has
issued its order, which is impugned by the
Manager of the School and Smt.Sindhu George,
directing that 2.75 be construed as three and
Sri.Bibin K.S., be appointed to the resultant
vacancy.
9. I find some force in the submissions
WP(C)Nos.22064 & 22996 OF 2019
of the learned Senior Government Pleader
because it has been well settled through a
catena of judgments of this Court - one of
which has been placed on record by Sri.Bibin
K.S. in W.P.(C)No.22064 of 2019 as Ext.P18 -
that when a fraction is encountered, it will
have to be rounded either to the nearest
lower number or to the nearest higher number
depending upon the nature of the said
fraction.
10. In this case, the fraction,
admittedly, is 2.75. The only question is
whether this should be construed as being two
or three, when it is applied in the context
of Rule 4 of Chapter XXXII of the KER.
11. I have no doubt in my mind that even
by a commonsense approach, the number to be
construed is the nearest to the fraction,
which is three and not two.
12. I am persuaded to this view because,
WP(C)Nos.22064 & 22996 OF 2019
interestingly, the Manager and Smt.Sindhu
George contend that if 2.75 is construed as
being three, the Mandate of Rule 4 Chapter
XXXII will be violated, because it stipulates
that only 25% of the total posts be filled up
by by-transfer appointment. However, what is
pertinent is that same reasoning would stand
against them, if 2.75 taken as two and nine
teachers are appointed through direct
recruitment, since, this again will violate
the afore Rule which indubitably mandates
that only 75% of such posts shall be filled
up through direct recruitment.
13. Obviously, therefore, the
argument of the the Manager and Sindhu George
cuts either way and cannot help them, when
they contend that the latter ought to have
been appointed to the ninth vacancy, since
the same certainly would have been filled up
only by 'by-transfer' appointment.
WP(C)Nos.22064 & 22996 OF 2019
In the afore circumstances, I dispose of
these writ petitions in the following manner:
a) W.P.(C)No.22064 of 2019 is allowed and
the Manger is directed to appoint Sri.Bibin
K.S., as HSST (Junior) to the third post
available for by-transfer appointment and
orders for such purpose shall be issued as
expeditiously as is possible, but not later
than one month from the date of receipt of a
copy of this judgment.
Needless to say, the proposal for
approval of appointment of Sri.Bibin K.S.,
will be, thereafter forwarded by the Manager
to the Competent Educational Authorities,
without any avoidable delay but not later
than two weeks thereafter.
b) W.P.(C)No.22996 of 2019 is dismissed,
however, directing the Manager to consider
the appointment of Smt.Sindhu George to the
resultant vacancy of Upper Primary School
WP(C)Nos.22064 & 22996 OF 2019
Teacher in the School, without any delay but
not later than one month from the date of
receipt of a copy of this judgment.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
akv
WP(C)Nos.22064 & 22996 OF 2019
APPENDIX OF WP(C) 22064/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF APPOINTMENT ORDER DATED
02/06/2004.
EXHIBIT P1A TRUE COPY OF APPOINTMENT ORDER DATED
12/08/2004.
EXHIBIT P2 TRUE COPY OF CERTIFICATE OF M.SC.DEGREE
PASSED BY THE PETITIONER.
EXHIBIT P2A TRUE COPY OF STATEMENT OF MARKS OF THE
PETITIONER FOR M.SC.DEGREE.
EXHIBIT P3 TRUE COPY OF ELIGIBILITY CERTIFICATE DATED
23/01/2004.
EXHIBIT P4 TRUE COPY OF CERTIFICATE OF B.ED.DEGREE
PASSED BY THE PETITIONER.
EXHIBIT P5 TRUE COPY OF MEMORANDUM OF MARKS OF B.ED.
DEGREE.
EXHIBIT P6 TRUE COPY OF CERTIFICATE OF STATE
ELIGIBILITY TEST PASSED BY THE PETITIONER.
EXHIBIT P7 TRUE COPY OF RELEVANT PAGES OF G.O.(MS)
NO.106/2017/G.EDN. DATED 21/08/2017.
EXHIBIT P8 TRUE COPY OF CIRCULAR
NO.ACD.C3/34033/16/HSE DATED 30/08/2017.
EXHIBIT P9 TRUE COPY OF SENIORITY LIST OF TEACHERS OF
JAYASREE HSS AS ON 01/01/2017.
EXHIBIT P10 TRUE COPY OF CIRCULAR
NO.A.C.D.C1/9000/2013/H.S.E. DATED
18/07/2013.
EXHIBIT P11 A TRUE COPY OF LETTER DATED 08/11/2017.
EXHIBIT P12 TRUE COPY OF COMPLAINT PETITION DATED
03/01/2018 SUBMITTED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT.
EXHIBIT P13 TRUE COPY OF JUDGMENT DATED 19/01/2018 OF
THE HON'BLE HIGH COURT IN WP(C) NO.2030 OF
2018.
WP(C)Nos.22064 & 22996 OF 2019
EXHIBIT P14 TRUE COPY OF ORDER NO.A3/1088/2018/K.DIS.
DATED 30/05/2018 PASSED BY THE 3RD
RESPONDENT.
EXHIBIT P15 TRUE COPY OF LETTER DATED 19/06/2018
SUBMITTED BY THE PETITIONER.
EXHIBIT P16 TRUE COPY OF JUDGMENT DATED 01/11/2018 IN
WP(C) NO.23674 OF 2018.
EXHIBIT P17 TRUE COPY OF ORDER NO.ACD B 3/101917/HSE/18
DATED 26/12/2018.
EXHIBIT P18 TRUE COPY OF 2005 KHC 603.
EXHIBIT P19 TRUE COPY OF REVISION PETITION DATED
06/01/2019 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT.
EXHIBIT P20 TRUE COPY OF JUDGMENT DATED 30/01/2019 OF
THE HON'BLE HIGH COURT IN WP(C) NO.515 OF
2019.
EXHIBIT P21 TRUE COPY OF GO(RT) NO.3011/2019/G.EDN.
DATED 25/07/2018.
EXHIBIT P22 TRUE COPY OF JUDGMENT DATED 22/03/2019 OF
THE HON'BLE HIGH COURT IN WP(C)
NO.32968/2015.
EXHIBIT P23 TRUE COPY OF JUDGMENT DATED 24/05/2019 OF
THE HON'BLE HIGH COURT IN WA NO.1277/2019.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R4(a) TRUE COPY OF THE ORDER WITH NO.G.O(RT)
NO.3456/2019/G.EDN DATED THIRUVANANTHAPURAM
30.8.2019.
RESPONDENT'S/S EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
WP(C)Nos.22064 & 22996 OF 2019
APPENDIX OF WP(C) 22996/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER IN FORM
27 DATED 01-01-2018 ISSUED BY THE 1ST
PETITIONER TO THE 2ND PETITIONER
EXHIBIT P2 TRUE COPY OF THE OF CIRCULAR NO.
ACDC3/34033/16/HSE DATED 30-08-2017
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 19-01-2018
IN W.P(C) NO. 2030/2018
EXHIBIT P4 TRUE COPY OF ORDER WITH NO. A3/1088/2018
K.DIS DATED 30-05-2018
EXHIBIT P5 TRUE COPY OF THE ORDER WITH NO. A3/2018/
K.DIS DATED 3-7-2018
EXHIBIT P6 TRUE COPY OF THE APPEAL DATED 30-06-2018
PREFERRED BY THE 1ST PETITIONER
EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.
23674/2018, DATED 1ST PETITIONER.
EXHIBIT P8 TRUE COPY OF THE ORDER WITH NO.
ACDB3/101917/HSE/18 DATED 26-12-2018 ISSUED
BY THE 2ND RESPONDENT
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 30-01-2019
IN W.P(C) NO 515.2019
EXHIBIT P10 TRUE COPY OF THE G.O(RT) NO. 3011/2019/G.
EDN DATED THIRUVANANTHAPURAM 25-7-2019
EXHIBIT P11 TRUE COPY OF THE CIRCULAR WITH NO ACDC
1/9000/2013/HSE, DATED 18-07-2013
EXHIBIT P12 TRUE COPY OF THE REVIEW PETITION SUBMITTED
BY THE 1ST PETITIONER.
EXHIBIT P13 TRUE COPY OF THE ORDER WITH NO.G.O.(RT)
NO.3456/2019/G.EDN DATED THIRUVANANTHAPURAM
30-8-2019
RESPONDENT'S/S EXHIBITS:
EXHIBIT R4(a) TRUE COPY OF APPOINTMENT ORDER DATED
02.06.2004.
WP(C)Nos.22064 & 22996 OF 2019
EXHIBIT R4(b) TRUE COPY OF APPOINTMENT ORDER DATED
12.08.2004.
EXHIBIT R4(c) TRUE COPY OF CERTIFICATE OF M.SC. DEGREE
PASSED BY THE PETITIONER.
EXHIBIT R4(d) TRUE COPY OF STATEMENT OF MARKS OF THE
PETITIONER FOR M.SC. DEGREE.
EXHIBIT R4(e) TRUE COPY OF ELIGIBILITY CERTIFICATE DATED
23.01.2004.
EXHIBIT R4(f) TRUE COPY OF CERTIFICATE OF B.ED. DEGREE
PASSED BY THE 4TH RESPONDENT.
EXHIBIT R4(g) TRUE COPY OF MEMORANDUM OF MARKS OF B.ED.
DEGREE.
EXHIBIT R4(h) TRUE COPY OF CERTIFICATE OF STATE
ELIGIBILITY TEST PASSED BY THE PETITIONER.
EXHIBIT R4(i) TRUE COPY OF CIRCULAR NO. A.C.D
C1/9000/2013/H.S.E DATED 18.07.2013.
//TRUE COPY//
P.A. TO JUDGE
