Sabitha Cherian vs State Of Kerala
2022 Latest Caselaw 6048 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                     &
              THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
         Wednesday, the 1st day of June 2022 / 11th Jyaishta, 1944
                             WA NO. 142 OF 2020

    AGAINST JUDGMENT DATED 14.11.2019 IN WP(C) 8612/2016 OF THIS COURT

                                     ---

APPELLANT/PETITIONER:

     SABITHA CHERIAN, AGED 38, W/O ROY M.D., LAB ASSISTANT, MARTHOMA
     GIRLS HIGHER SECONDARY SCHOOL, THRISSUR, RESIDING AT MAROTTIMOOTTIL
     HOUSE, VRINDAVAN STREET, K.A.O.(P.O.). VELLANIKKARA, THRISSUR-680
     656.

BY ADVS.M/S. R.T.PRADEEP, BINDUDAS M., K.C.HARISH

RESPONDENTS/RESPONDENTS:

  1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,
     DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, GOVERNMENT
     OF KERALA, THIRUVANANTHAPURAM-695 001.
  2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING,
     SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.
  3. THE JOINT DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD
     BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.
  4. THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, ERNAKULAM,
     EDAPPALLY, ERNAKULAM-682 024.
  5. THE MANAGER, MAR THOMA GIRLS HIGHER SECONDARY SCHOOL, THRISSUR-680
     001.

BY GOVERNMENT PLEADER FOR R1 TO R4

BY ADVS.SRI V.A.MUHAMMED & SRI V.RAJASEKHARAN NAIR FOR R5.

     Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to direct the respondents to provisionally approve the appointment of
appellant as Lab Assistant in the School of 5th respondent from the date
of her actual appointment, pending disposal of the writ appeal.
     This Writ Appeal coming on for orders on 01/06/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:

                                                                     P.T.O.
 EXT.P1:TRUE COPY OF ORDER NO.B1/7143/13

DT.10.09.2014 ISSUED BY R4.

EXT.P5:TRUE COPY OF ORDER NO.ACD.A2/586/16/HSE

DT.11.02.2016 ISSUED BY R3 TO THE PETITIONER.

                              ---
 ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
              ---------------------------------------------------------
                            WA No. 142 of 2020
              [arising out of the impugned judgment dated 14.11.2019
                               in WP(C) No.8612/2016]
              ---------------------------------------------------------
                       Dated this the 1st day of June, 2022


                                     ORDER

The statutory rules for appointment for the post of Laboratory

Assistant in the Higher Secondary Education Department provide as

follows;

"6.Laboratory Assistant 1. By direct appointment, and

2. By transfer from among qualified last grade employees in Schools under the Educational Agency.

Note: 25% of the total posts of Laboratory Assistant shall be filled up by transfer from among qualified class IV employees in the Schools under the Educational Agency and the remaining 75% by direct appointment. Appointment to the said 25% would be on the basis of seniority.

In the absence of qualified candidates under item 2 above such vacancies shall be filled up by direct appointment."

2. The appellant would contend that the rules clearly provide

that 75% of the total posts of Laboratory Assistant is set apart for direct

recruitment from the open market from among qualified hands and 25% WA No. 142 of 2020

is set apart for by transfer appointment from among qualified last grade

employees in the schools under the educational agency, and that, in the

absence of qualified candidates for by transfer appointment, such

vacancies shall also be filled up by direct appointment, and that,

therefore, the rules clearly provide a ratio of 3:1 as between direct

appointment and by transfer appointment. That, initially, there was only

one sanctioned post of Laboratory Assistant in the 5 th respondent aided

school, which was filled up by appointing qualified candidate in the

direct recruitment quota from the open market and that, later, the

second post has been sanctioned as per GO(Rt) No.165/13/G.Edn. dated

15.05.2013. According to the appellant, she possesses all the

qualifications to hold the post of Laboratory Assistant as prescribed in

the rules and that, the 5th respondent Manager had selected and

appointed the appellant to the above said second post of Laboratory

Assistant in the 5th respondent School by direct recruitment and that, the

approval of the said appointment of the appellant has been rejected by

the 3rd respondent, the Joint Director of Higher Secondary Education, as

per Ext.P1 order dated 10.09.2014 and that, the appeal preferred by the

appellant as against the same has also been rejected by the appellate

authority, viz., the 4th respondent, the Regional Deputy Director of WA No. 142 of 2020

Higher Secondary Education, as per Ext.P5 order dated 11.02.2016. The

ground of rejection stated in the above said impugned orders is that

since there are only two sanctioned posts in the school, the second

appointment or second vacancy should necessarily go for by transfer

appointment, and that presumably, that is the only way for reasonably

working out the 75% to 25% quotas for direct recruitment and by

transfer appointments.

3. Per contra, Sri.R.T.Pradeep, learned counsel appearing for

the appellant, would strongly urge that the above said ground of

rejection is on a complete misreading and misunderstanding of the basic

statutory provisions and the general law involved. Further that, since the

prescribed direct recruitment and by transfer quota is 75% to 25%, then,

necessarily, the ratio to be followed is 3:1, i.e., the first three

appointments should necessarily go for direct recruitment from the open

market and the 4th appointment should go for by transfer appointment.

This could be the only reasonable way even if the number of sanctioned

post is less than four. Further that, indisputably, only two appointments

have been made so far. The first appointment was made by direct

recruitment from open market as against the then sole post sanctioned.

Later, the additional post was sanctioned, which is the second WA No. 142 of 2020

appointment and therefore, the second appointment of the second

vacancy should necessarily go for direct recruitment and not for by

transfer appointment. Only after the first three appointments, could

there be a question of claim for by transfer appointment under the 25%

quota. If the claimant, by transfer candidate from among the last grade

of service, is not having the qualification to hold the post of Laboratory

Assistant as on the date of occurrence of the said vacancy in the by

transfer quota, even in such a situation, that vacancy should also go for

direct recruitment, going by the mandate contained in the second limb

of the note appended to the rule for Category No.6, Laboratory

Assistant. That, in the instant case, the factual issues lie in an extremely

simple matrix inasmuch as the appellant's appointment was only the

second appointment and necessarily should go for direct recruitment,

and that, the appellant fulfills all the qualifications prescribed as per the

rules to hold the post of Laboratory Assistant.

4. Since the case has already been admitted, both sides should

be ready. Since the issues lie in a narrow compass, the matter could be

easily disposed of in the admission list itself. Both sides will point out

whether there is any statutory rule governing the appointment of

Laboratory Assistant in the Government Higher Secondary Education WA No. 142 of 2020

Schools and if so, whether the said rule is more or less pari materia or

similar to the above said provision for Laboratory Assistant in aided

Higher Secondary Education Schools.

List the case for orders at 10.15 am on 03.06.2022.

Hand Over

Sd/-

ALEXANDER THOMAS JUDGE

Sd/-

SHOBA ANNAMMA EAPEN JUDGE bka/-

01-06-2022 /True Copy/ Assistant Registrar