Jyothi M vs State Of Kerala
2022 Latest Caselaw 8296 Ker

WP(C) NO. 19935 OF 2022                1



             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
     FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                      WP(C) NO. 19935 OF 2022
PETITIONER:
          JYOTHI M
          AGED 44 YEARS
          W/O.MANOJKUMAR T.P, H.S.S.T, MALAYALAM, CHEMBILODE
          HIGHER SECONDARY SCHOOL, THALAVIL, PODUVACHERY P.O.
          KANNUR -670621, RESIDING AT MULLAPPALLI HOUSE,
          EACHUR P.O., KANNUR

            BY ADVS.
            KALEESWARAM RAJ
            THULASI K. RAJ


RESPONDENTS:
    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT,
          THIRUVANANTHAPURAM-695001

     2       DIRECTOR OF GENERAL EDUCATION,
             DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
             THIRUVANANTHAPURAM-695014.

     3       DEPUTY DIRECTOR OF EDUCATION,
             OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
             KANNUR- 670002.

     4       DISTRICT EDUCATIONAL OFFICER,
             OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
             KANNUR- 670002.

     5       MANAGER,
             CHEMBILODE HIGHER SECONDARY SCHOOL,THALAVIL,
             PODUVACHERY P.O., KANNUR -670621

             SMT NISHA BOSE, SR GOVERNMENT PLEADER


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   01.07.2022,   THE   COURT    ON       THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 19935 OF 2022               2




                                JUDGMENT

The petitioner has approached this Court seeking to quash Ext.P4

order issued by the 2nd respondent refusing to grant approval of the

appointment of the petitioner on the ground that a selection committee

including a representative of the Government was not convened for

selecting the petitioner.

2. The petitioner asserts that she was appointed in the High

School Section of the Chembilode Higher Secondary School with effect from

1.6.2016 in an additional division vacancy. Later she was appointed as HST

(Malayalam) with effect from 23.7.2018 in the promotion vacancy of one

Suresh Babu. On 31.5.2021, Sri. Suresh Babu, HSST (Malayalam) retired

from service and in the vacancy that arose, the petitioner was appointed

under the by-transfer category. She asserts that she is the senior most

qualified person in the cadre of HST who is entitled to be appointed in the

absence of qualified HSST (Jr.) in the 5th respondent school.

3. The petitioner asserts that the proposal for approval submitted

by the Manager was rejected by Ext.P4 order dated 25.5.2022 on the

ground that no duly constituted selection committee was convened.

According to the petitioner, the Government has come out with Ext.P5 order

dated 21.1.2019, laying down that there is no need for a selection

committee when the appointment is effected by by-transfer. It is in the

afore circumstances that the petitioner has approached this Court seeking to

quash Ext.P4 and for consequential directions.

4. I have heard Smt.Thulasi K. Raj, the learned counsel appearing

for the petitioner and the learned Government Pleader and have considered

the submissions.

5. I find that the petitioner was appointed by by-transfer in terms

of the provisions of Rule 4 of Chapter XXXII of the KER. There is no case for

the respondents that the petitioner is not eligible for the appointment. The

only reason stated is that a selection committee with a Government nominee

was not constituted for selecting the candidate. A Division Bench of this

Court in W.A.No.280/2020 taking note of Ext.P5 Government Order has

taken the view that to make by-transfer appointments, the report of the

selection committee is not required. The same view was taken by a learned

Single Judge of this Court in judgment dated 22.2.2021 in W.P.(C)

No.3019/2021. In that view of the matter, the petitioner is entitled to

succeed.

Ext.P4 will stand quashed. There will be a declaration that Ext.P6 is

unenforceable against the petitioner, who is a by-transfer appointee. It is

held that the petitioner is entitled to have an appointment as HSST

(Malayalam) approved with effect from 1.6.2021 and there will be a

direction to the respondents 1 and 2 to pass orders approving the

appointment with effect from 1.6.2021. There will be a further direction to

the respondents to pay salary to the petitioner in the scale of pay of HSST

(Malayalam) with effect from 1.6.2021 together with arrears and all

consequential benefits.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE IAP

APPENDIX OF WP(C) 19935/2022

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF ORDER NO.B1/15693/2020 DATED 03.10.2020 ISSUED BY THE 4TH RESPONDENT.

Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED 17.05.2021 SUBMITTED BY THE PETITIONER BEFORE THE MANAGER.

Exhibit P3 TRUE COPY OF THE PROCEEDINGS DATED 22.12.2021 ISSUED BY THE 5TH RESPONDENT.

Exhibit P4 TRUE COPY OF THE ORDER DATED 25.5.2022 ISSUED BY THE 2ND RESPONDENT

Exhibit P5 TRUE COPY OF THE G.O RT NO. 247/2019, DATED 21.01.2019

Exhibit P6 TRUE COPY OF THE GOVERNMENT ORDER G.O. (RT) NO.1332/2022/GEDN DATED 05.03.2022, ISSUED BY THE GENERAL EDUCATION (T) DEPARTMENT.

Exhibit P7     TRUE COPY OF THE EXTRACT OF SERVICE BOOK OF
               THE PETITIONER

Exhibit P8     TRUE COPY OF THE AFFIDAVIT IN

W.P(C)NO.11821/2021 FILED BY THE GOVERNMENT

RESPONDENTS' EXHIBITS:

NIL