Mable Kunjachan vs The Director Of Higher Secondary ...
2021 Latest Caselaw 5334 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942

                        WP(C).No.18274 OF 2020(H)


PETITIONER:

               MABLE KUNJACHAN
               AGED 38 YEARS,
               W/O. BEJOY THOMAS,
               U.P.S.A ,
               MAR BASIL HIGHER SECONDARY SCHOOL,
               KOTHAMANGALAM,
               ERNAKULAM - 686 691,
               RESIDING AT MANNAPARAMBIL HOUSE,
               KARUKADOM P. O.,
               KOTHAMANGALAM - 686 691.

               BY ADVS.
               SRI. ELVIN PETER P. J.
               SRI. K. R. GANESH

RESPONDENTS:

      1        THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
               HOUSING BOARD BUILDING,
               SHANTI NAGAR, TRIVANDRUM - 695 121.

      2        THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
               EDUCATION,
               ERNAKULAM - 682 024.

      3        THE MANAGER,
               MAR BASIL H.S.S. KOTHAMANGALAM,
               ERNAKULAM - 686 691.

               SRI.   P. M. MANOJ - SR.GP
               R3 -   SRI. P. RAMAKRISHNAN
                  -   SMT. PREETHI RAMAKRISHNAN
                  -   SRI. T. C. KRISHNA
                  -   SRI. C. ANIL KUMAR
                  -   SMT. ASHA K. SHENOY
                  -   SRI. PRATAP ABRAHAM VARGHESE


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
15.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.18274 OF 2020

                                      2




                                 JUDGMENT

Dated this the 15th day of February 2021

The petitioner says that she is presently

working as an Upper Primary School Teacher

(UPST) in 'Mar Basil Higher Secondary School',

Kothamangalam; and that she has approached this

Court seeking a direction to the Manager of the

School to appoint her as a Higher Secondary

School Teacher (HSST) in Chemistry with effect

from 01.06.2020.

2. The petitioner asserts that she is the

only qualified teacher under the educational

agency, entitled to be appointed by-transfer as

HSST in Chemistry in the vacancy which arose on

01.06.2020 and asserts that same can only be

filled up by by-transfer and not by direct

recruitment. The petitioner, therefore, prays

that 3rd respondent - the Manager of the School WP(C).No.18274 OF 2020

be directed to take appropriate steps to effect

her appointment at the earliest.

3. In response to the submissions of the

petitioner as argued by her learned counsel

Smt.Priya Kaimal, the learned counsel for the

Manager - Smt.Preethy Ramakrishnan, submitted

that a counter affidavit has been filed on

record, wherein, they have explained the reasons

why the vacancy has not been filled up. She

submitted that the primary reason is the Covid

-19 pandemic disruptions; and also because there

are rival claims for being appointed to the

vacancy in question. Smt.Preethy Ramakrishnan,

therefore, prayed that the petitioner's request

in this writ petition, that she be directed to

be appointed, be not granted, since, even if she

is considered, her claim can only be evaluated

based on the rival claims put up by other

teachers. She then added that, going by the

statutory ratio involved, her client will have WP(C).No.18274 OF 2020

to first decide whether the vacancy has to be

filled up by by-transfer or by direct

recruitment and that this will be done at the

time when the process is taken forward.

4. The learned Senior Government Pleader -

Sri.P.M Manoj, submitted that though the

official Authorities do not have any role to

play at this stage, because before the

appointment in the School was made because the

Manager has not forwarded any such proposal for

the same. He submitted that, going by the

provisions in Chapter XXXII, Rule 4 of the

Kerala Education Rules (KER), appointments have

to be made in the manner as stipulated and in

the ratio as specified therein. He submitted

that as soon as the Manager forwards a proposal

for the same, necessary action will be taken by

the competent Educational Authorities.

5. I notice from the files that when this

matter was considered by this Court on an WP(C).No.18274 OF 2020

earlier occasion, there arose a doubt as to who

is in management of the School, pursuant to

Ext.R3 (b) judgment of this Court. The learned

Senior Government Pleader submits that the

person approved as the Manager is a certain

Sri.K.P George and that he is stated to be out

side India, being unable to return on account of

Covid - 19 induced travel restrictions. He

submitted that his instruction is however, that

Sri.K.P George may have returned on 04.02.2020

and that if he has not done so, then the

jurisdictional DEO is in charge as the Manager.

6. When I take note of the afore

submissions, it is obvious that whatever be the

issues with respect to the management of the

School, the fact that the vacancy arose on

01.06.2020 is conceded. Therefore, it does not

augur well for the School that said vacancy is

kept pending, since it certainly will cause

disservice to the students.

WP(C).No.18274 OF 2020

7. I am, therefore, of the firm view that

whoever is in management of the School - be that

Sri.K.P George or the jurisdictional DEO -

action must be now initiated for filling up of

the vacancy in terms of Rule 4 Chapter XXXII of

the KER and that this has to be done within a

time frame.

8. In the afore circumstances, I order

this writ petition and direct the Manager - be

that Sri.K.P George or the DEO as the case may

be - to immediately frame a proposal for filling

up the vacancy that arose on 01.06.2020 and take

steps to have the same filled up, either through

direct recruitment or through by-transfer,

strictly following the ratio of 1:3 stipulated

in Rule 4 Chapter XXXII of the KER and after

assessing all claims, including that of the

petitioner, for being appointed to the said

post.

The afore exercise shall be completed by the WP(C).No.18274 OF 2020

Manager as expeditiously as is possible, but not

later than one month from the date of receipt of

a copy of this judgment and the competent

educational Authority will ensure that a person

is properly selected and appointed to the said

post within this time frame.

Sd/-

DEVAN RAMACHANDRAN JUDGE

SPR WP(C).No.18274 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01.06.2016.

EXHIBIT P2 TRUE COPY OF THE M.SC DEGREE CERTIFICATE OF THE PETITIONER FROM THE M.G.UNIVERSITY DATED 22.08.2005.

EXHIBIT P3 TRUE COPY OF M.ED DEGREE CERTIFICATE OF THE PETITIONER FROM THE M.G UNIVERSITY.

EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 03.09.2020.

EXHIBIT P5 TRUE PHOTOCOPY OF THE ORDER G.O(RT) NO.247/2019/G.E. DATED 21.01.2019.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R3(a) TRUE COPY OF ORDER DATED 16.09.2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT R3(b) TRUE COPY OF JUDGMENT DATED 27.10.2020 IN WP(C) NO.22350/2020.

EXHIBIT R3(c) TRUE COPY OF CIRCULAR DATED 14.09.2020 ISSUED BY THE 1ST RESPONDENT.