The Manager vs State Of Kerala
2021 Latest Caselaw 3024 Ker

Citation : 2021 Latest Caselaw 3024 Ker
Judgement Date : 28 January, 2021

Kerala High Court

The Manager vs State Of Kerala on 28 January, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                      WP(C).No.32650 OF 2018(E)


PETITIONER:

               THE MANAGER,
               CHERUPUSHPAM GIRLS HIGHER SECONDARY SCHOOL,
               VADAKKENCHERY PALAKKAD,
               MARIAN EDUCATIONAL AGENCY,
               MUTTIKULANGARA,
               PALAKKAD DISTRICT

               BY ADVS.
               SRI.K.T.SHYAMKUMAR
               SHRI.HARISH R. MENON

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
               GENERAL EDUCATION DEPARTMENT,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM
               PIN- 695001

      2        THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
               HOUSING BOARD BUILDINGS, SANTHI NAGAR,
               THIRUVANANTHAPURAM, PIN - 695 001.

      3        THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
               EDUCATION,
               B-II BLOCK, CIVIL STATION, MALAPPURAM, PIN - 676 505.

      4        SR.DESSY V.J.,
               HIGHER SECONDARY SCHOOL TEACHER (BOTONY),
               CHERUPUSHPAM GIRLS HIGHER SECONDARY SCHOOL,
               VADAKKENCHERY, PALAKKAD DISTRICT, PIN - 680 582.

               R1-3 BY GOVERNMENT PLEADER
               R4 BY ADV. SMT.CHITHRA CHANDRASEKHARAN

               SRI. P.M.MANOJ, SENIOR GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.32650 OF 2018            2

                            JUDGMENT

The Manager of "Cherupushpam Girls

Higher Secondary School", Palakkad, has

approached this Court impugning Exts.P1 and

P3 orders, by which, the competent

Educational Authorities have denied approval

to the appointment offered by him to the 4 th

respondent - Sr.Dessy V.J., by transfer as

Higher Secondary School Teacher (Jr).

2. According to the petitioner, the

provisions of law enable appointment of a

teacher by transfer even in violation of the

ratio prescribed under Rule 4 of Chapter

XXXII of the Kerala Education Rules (KER for

short) and therefore, that the Educational

Authorities have erred in having rejected

the appointment of the 4th respondent. The

petitioner, therefore, prays that Exts.P1

and P3 be set aside and the appointment of

the 4th respondent be directed to be

approved.

3. In response to the above

submissions made on behalf of the petitioner

by Shri.K.T.Shyam Kumar, the learned Senior

Government Pleader - Shri.P.M.Manoj,

submitted that a counter affidavit has been

placed on record, wherein, it has been

contended that since the first vacancy in

the School had been filled up through a

transfer - appointment, the next three

vacancies ought to have been filled up only

through direct recruitment. He submitted

that since the vacancy in question was the

second one, the only method of appointment

ought to have been resorted to was by direct

recruitment and no other.

4. The learned Senior Government

Pleader relied on Note 1 to Rule 4(2) of

Chapter XXXII of the KER to contend that

though the vacancies set apart for transfer

appointment can be filled up through direct

recruitment, when there is no eligible

teacher, the vice versa situation is

prohibited. He submitted that this is more

so because of the latest judgment of the

Hon'ble Supreme Court wherein, the statutory

ratio has been affirmatively mandated to be

maintained. He, therefore, prayed that this

writ petition be dismissed.

5. In reply, Shri.K.T.Shyam Kumar,

learned counsel for the petitioner,

submitted that pending this writ petition,

Government has issued a further

communication, bearing number SC/1/8/2019

dated 09/04/2019, wherein, approval to the

appointments made by transfer in violation

of the statutory ratio, prior to the

judgment of the Hon'ble Supreme Court, has

also been directed to be considered, if

there was no other impediment standing in

the way. He, therefore, prayed that

Government be directed to reconsider the

matter, taking note of the afore mentioned

Circular issued by them and that this writ

petition be ordered at least to that extent.

6. When I consider the afore

submissions, prima facie, it is apodictic

that the Educational Authorities have

followed the mandate of Rule 4 Chapter XXXII

of the KER, while issuing Exts.P1 and P3.

This is because, when there were two

vacancies available in the School, it is

indubitable that the first one ought to have

been filled up through transfer, while the

second could have been filled up only by

direct recruitment. However, the Manager

appointed the 4th respondent again by

transfer to the second vacancy and the

Educational Authorities, therefore, objected

to it citing violation of the statutory

ratio.

               7.        That       said,               however,             since

        Shri.K.T.Shayam                  Kumar               submits          that

        Government          themselves             have      clarified        that

the appointments made prior to the judgment

of the Hon'ble Supreme Court can be

considered for regularization, through their

Circular No.SC/1/8/2019 dated 09/04/2019,

and through a subsequent order dated

03/08/2020, I am of the view that the

petitioner must be given the limited

latitude of having his claims considered in

terms of the said Circular as also any other

precedent or material that the petitioner

may place before the competent Authority.

For the sole reason above, I order this