Kerala High Court
K.P.Kunhi Narayanan vs M.Anitha on 26 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
WA NO. 334 OF 2021
AGAINST THE JUDGMENT DATED 22.12.2020 IN WP(C) 38571/2017
OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 6 & 7 IN TEH WRIT PETITION:
1 K.P.KUNHI NARAYANAN,
HIGHER SECONDARY SCHOOL TEACHER (HINDI),
(UNAPPROVED), IRITTY HIGHER SECONDARY SCHOOL,
KEEZHOOR, KANNUR-670 703.
2 K.SURESHAN,
HIGHER SECONDARY SCHOOL TEACHER (ENGLISH),
(UNAPPROVED), IRITTY HIGHER SECONDARY SCHOOL,
KEEZHOOR, KANNUR-670 703
BY ADVS.
M.P.SREEKRISHNAN
SRI.A.MUHAMMED MUSTHAFA
RESPONDENTS/PETITIONERS & RESPONDENTS 1-5 IN THE WRIT
PETITION:
1 M.ANITHA
W/O. T.P. SAJEEVAN, AGED 45 YEARS,
HIGH SCHOOL ASSISTANT (HINDI), IRITTY HIGHER
SECONDARY SCHOOL KEZHOOR, KANNUR-670 703.
2 K.K. JOSHITH KUMAR,
S/O. K.K. BALAGOPALAN, AGED 45 YEARS,
HIGH SCHOOL ASSISTANT (HINDI), IRITTY HIGHER
SECONDARY SCHOOL, KEEZHOOR, KANNUR-670 703.
3 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
Writ Appeal No.334 of 2021 2
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
ANNEXURE II THIRUVANANTHAPURAM-695 001.
4 THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
HOUSING BOARD BUILDINGS, SANTHI NAGAR,
THIRUVANANTHAPURAM-695 001.
5 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
EDUCATION, KANNUR DISTRICT-673 002
6 THE MANAGER,
IRITTY HIGHER SECONDARY SCHOOL, KEEZHOOR,
KANNUR-670 703.
7 THE PRINCIPAL,
IRITTY HIGHER SECONDARY SCHOOL, KEEZHOOR,
KANNUR-670 703
BY ADV SRI.V.A.MUHAMMED
ADV.B.VINITHA SR GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Writ Appeal No.334 of 2021 3
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
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Writ Appeal No.334 of 2021
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Dated this the 26th day of August, 2022.
JUDGMENT
P.B.Suresh Kumar, J.
This appeal is directed against the judgment dated
22.12.2020 in W.P.(C) No.38571 of 2017. The appellants were
respondents 6 and 7 in the writ petition. Parties are referred to
in this judgment for convenience, as they appear in the writ
petition.
2. The petitioners as also respondents 6 and 7
were teachers in the High School section of Iritty Higher
Secondary School when the same was upgraded as a Higher
Secondary School. As they were entitled to be considered for
appointment to the post of Higher Secondary School Teacher on
the school being upgraded, the Manager of the school
appointed respondents 6 and 7 as Higher Secondary School
Teachers in the school. Respondents 6 and 7 acquired the
qualification for appointment to the said post only on
07.09.2011 and 16.09.2011 respectively. The appointments of
respondents 6 and 7 were objected to by the petitioners on the
ground that the posts were created as per Ext.P2 Government
Order on 24.10.2011 with retrospective effect from 06.08.2011
and that respondents 6 and 7 were not qualified as on
06.08.2011, although they were senior to the petitioners, and
that the petitioners who were qualified as on 06.08.2011 should
have been appointed in the place of respondents 6 and 7. After
a few rounds of litigation before the statutory authorities and
before this Court, the dispute between the petitioners on one
side and respondents 6 and 7 on the other, was finally resolved
by the Government in terms of Ext.P6 order, upholding the
claim of respondents 6 and 7. It is aggrieved by Ext.P6 order
that the petitioners instituted the writ petition.
3. The learned Single Judge took the view that
since posts were created with retrospective effect from
06.08.2011, the vacancies in which respondents 6 and 7 were
appointed should have been treated as vacancies that arose on
06.08.2011, and having not acquired the qualification as on the
said date, they were not entitled to be considered for
appointment. It was also the view of the learned Single Judge
that, in the circumstances, the petitioners who were qualified as
on 06.08.2011 should have been appointed in the place of
respondents 6 and 7. Accordingly, the writ petition was allowed
and the official respondents were directed to appoint the
petitioners in the vacancies in which respondents 6 and 7 were
appointed. Respondents 6 and 7 are aggrieved by the decision
of the learned Single Judge and hence this appeal.
4. Heard the learned counsel for the parties.
5. The learned counsel for respondents 6 and 7
contended that respondents 6 and 7 were appointed only
against newly created posts and the vacancies, in the
circumstances, must have been treated as arisen only on the
date of creation of the posts.
6. The learned Government Pleader supported the
argument advanced by the learned counsel for respondents 6
and 7.
7. It is seen that this Court had occasion to
consider the consequence of the retrospective effect given in
Ext.P2 order as regards creation of posts, in W.A. No.107 of
2019, and it was held that retrospective effect was given only
to create such posts, in tandem with the creation of posts in
Government Schools and no consequences arise on account of
the same. It was also held by this Court in the said case that the
date of Ext.P2 order is to be reckoned as the date of occurrence
of vacancies. Paragraph 10 of the judgment reads thus:
10. We have to look at the facts of the case, based on the
principles so laid down by the Full Bench of this Court. We
again look at Ext P1 which is dated 24.10.2011. The
retrospective effect, from 6.8.2011 is for creation of the posts
and not for sanctioning the same. Merely by reason of the
creation of so many vacancies there could be no appointment
made, since there should be sanction of posts which has to be
made by the Educational Authorities to the individual schools.
There being no details available as to such sanction and the
same being possible only after the creation for the purposes
of this case we will adopt the date of Ext P1 as the date of
occurrence of vacancy. The retrospective effect given is only
to create such posts, in tandem with the creation of posts in
Government Schools. But for that no consequence arises from
such retrospective effect given. The Guest Lecturers who were
continuing from 6.8.2011 will not be confirmed in that posts
nor would a new appointee be entitled to even notional
consideration of appointment with retrospective effect from
6.8.2011. It is also pertinent that the creation of posts alone
would not enable the Manager to make an appointment. On
the facts of this case especially looking at Ext P1 and the
retrospective effect given for creation of posts, we find that
the principle in so far as the qualification being required at the
time of the occurrence of vacancy, would be satisfied if the
candidate who seeks appointment by-transfer has acquired
the qualification on 24.10.2011 ie: the date of Ext P1. There
could be no arbitrary exercise carried out by the Appointing
Authority; here the Manager, of delaying the selection, since
prior to Ext. P1 there could be no selection made.
Since the posts in which respondents 6 and 7 were appointed
were newly created and since no one had any right to claim
appointment in those posts before it was created, we do not
find any reason to disagree with the view taken by the Division
Bench in W.A.No.107 of 2019. In other words, the vacancies in
which respondents 6 and 7 were appointed must be treated to
have arisen only on the date of creation of the posts. Ext.P6
decision of the Government is, therefore, in order.
In the light of the judgment in W.A.No.107 of 2019,
the impugned judgment is set aside and Ext.P6 order is
restored.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
YKB
APPENDIX OF WA 334/2021
PETITIONER ANNEXURES
ANNEXURE A A TRUE COPY OF THE CIRCULAR ISSUED BY
THE JOINT DIRECTOR, OF THE OFFICE OF
THE HIGHER SECONDARY EDUCATION
DIRECTOR, DATED 15.11.2011.
