Kerala High Court
S.Rani vs The State Of Kerala on 20 May, 2024
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
WP(C) NO. 15643 OF 2016
PETITIONER/S:
JAYALEKSHMI K.M.
HIGHER SECONDARY SCHOOL TEACHER (MALAYALAM) SHANMUGHA VILASOM
HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT.
BY ADV SANDESH RAJA K
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION-HIGHER SECONDARY
EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001
2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001
3 THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION, CORPORATION BUILLDING, IVTH
FLOOR,'PALAYALAM, THIRUVANANTHAPURAM 695 034
4 THE MANAGER
SHANMUGHA VILASOM HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM
DISTRICT 690 525
5 THE PRINCIPAL
SHANMUGHA VILASOM HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM
DISTRICT 690 525
6 RANI S
L.P.S.A,SHANMUGHA VILASOM HIGHER SECONDARY SCHOOL, CLAPPANA,
KOLLAM DISTRICT 690 525
BY ADVS.
SR.GOVERNMENT PLEADER SRI. A.J.VARGHESE
SRI.V.A.MUHAMMED
SRI.M.SAJJAD
SRI.A.N.RAJAN BABU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2024, ALONG
WITH WP(C)18339/2016, THE COURT ON 20.05.2024 DELIVERED THE FOLLOWING:
W.P(C)Nos.15643 & 18339 of 2016
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
WP(C) NO. 18339 OF 2016
PETITIONER/S:
S.RANI
AGED 35 YEARS
W/O.PRADEEP, AGED 35 YEARS, LOWER PRIMARY SCHOOL ASSISTANT, SV
HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT
BY ADVS.
SRI.V.A.MUHAMMED
SMT.P.A.JENZIA
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDINGS, TRIVANDRUM-695 001.
3 THE DIRECTOR OF PUBLIC INSTRUCTIONS
JAGATHY, THIRUVANANTHAPURAM-695 014.
4 THE MANAGER
SV HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT-690 525.
*ADDL.R5 JAYALEKSHMI K.M
HIGHER SECONDARY SCHOOL TEACHER [MALAYALAM], SHANMUGHA VILASOM
HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT.
*[IS IMPLEADED AS PER ORDER DATED 29.08.2016 IN I.A.NO.13421/2016]
BY ADVS.
SRI.A.J.VARGHESE SR.GOVT.PLEADER
SRI.A.N.RAJAN BABU
SRI.SANDESH RAJA K
SMT.ASHA BABU
SMT.R.S.ASWINI SANKAR
SRI.M.MANOJKUMAR CHELAKKADAN
SRI.K.RAMAKUMAR SR.
SRI.T.RAMPRASAD UNNI
SRI.SAIJU S.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2024, ALONG
WITH WP(C).15643/2016, THE COURT ON 20.05.2024 DELIVERED THE FOLLOWING:
W.P(C)Nos.15643 & 18339 of 2016
3
'CR'
JUDGMENT
1. Since the issues involved in these two writ petitions are one and the
same, I consider both the writ petitions together treating
W.P.(C)No.15643/2016 as the leading case. The parties are referred
according to their status in W.P.(C)No.15643/2016.
2. The petitioner/Smt. Jayalekshmi K.M is an HSST(Junior)
(Malayalam) Teacher appointed on 12.09.2011 under the Direct
Recruitment Category in the school - Shanmugha Vilasom Higher
Secondary School (SVHSS) Clappana, Kollam on sanctioning of a new
Plus Two batch to the said school.
3. The Respondent No.6/Smt.S.Rani who is the petitioner in W.P.
(C).No.18339/2016 had been working as LPSA in SVHSS and she
claims appointment in the above HSST (Junior) (Malayalam) post under
By-Transfer category on the ground that she is qualified for getting
appointment as on the date of creation of the post.
W.P(C)Nos.15643 & 18339 of 2016
4. The case of the Petitioner is that as per Ext.P1 Government Order
dated 03.08.2011 a new Plus Two Batch was sanctioned to SVHSS
along with sanctioning of new batches to other schools; that on account
of the commencement of the said Batch during the academic year
2011- 2012 the number of periods for Malayalam increased from 48 to
54 and in view of Ext.P2 Government order the school was entitled for
one more HSST (Junior)(Malayalam) with effect from the academic year
2011- 2012; that the Manager of the school published Ext.P3 Notification
dated 19.08.2011 inviting candidates for the post of HSST and the
Petitioner secured Rank No.1 in the selection and accordingly the
Manager appointed the petitioner by Ext.P5 Order dated 12.09.2011 as
HSST (Junior) (Malayalam) in the school; that the post continued in the
subsequent years also; that the Respondent No.1 as per
G.O.M.S.No.211/2013/G.Edn. dated 15.07.2013 which is produced as
Ext.P8 accorded sanction for the creation of the post in the school; that
since the post of HSST (Junior) (Malayalam) was created only with
effect from 15.07.2013 the petitioner challenged the same in this Court
by filing W.P.(C)No.24424/2015 and the same was disposed of along
with W.P.(C)No.23792/2015 filed by the Respondent No.6 directing the
Respondent No.1 to consider and pass orders on the Revision filed by
the Manager of the school; that in compliance with the said judgment the
W.P(C)Nos.15643 & 18339 of 2016
Respondent No.1 passed order No.ACD.V4./6558/12/HSE dated
21.07.2015 which is produced as Ext.P9, upholding the claim of the
Respondent No.6 for appointment by transfer from 15.07.2013 and
rejecting the claim of the petitioner and directing the Manager of the
school to appoint the Respondent No.6 as HSST(Junior) (Malayalam)
and to treat the posting of the petitioner as Guest Teacher on daily
wages and further directed to submit proposal to the Regional Deputy
Director, Thiruvananthapuram appointing the Respondent No.6 for
approval; that the Respondent No.1 again considered the matter as per
direction of this Court in the judgment dated 09.11.2015 in W.P.(C)No.
24424/2015; that the Respondent No.1 passed Order G.O.
(Rt)No.1301/2016/G.Edn. dated 04.04.2016, which is produced as
Ext.P10, rejecting the claim of the petitioner directing the Manager to
give appointment to the Respondent No.6, if she is found eligible under
by-Transfer appointment; and that the issue with respect to prospective
operation of creation of post was considered by this Court in Ext.P11
judgment in W.P.(C) No.16613/2014 and Ext.P12 judgment in W.P.
(C)No.1914/2013 in which it is held that prospective sanction of post is
illegal and without any justifiable ground and declared that the petitioner
therein are entitled for getting approval with effect from the initial date of
appointment itself and not from any cut-off date fixed by the Government
W.P(C)Nos.15643 & 18339 of 2016
of its own. On these contentions the petitioner challenges Ext.P8 order
to the extent of prospective creation of the post of HSST (Junior)
(Malayalam) only with effect from 15.07.2013 and Ext.P10 Order by
which the claim of the Respondent No.6 for appointment under By-
Transfer category was upheld and seeks direction to the Educational
authorities to sanction the post of HSST from the academic year 2011-
2012 and to approve her appointment as HSST (Junior) (Malayalam)
with effect from 12.09.2011 with all consequential benefits.
5. At the time of admission, this Court passed an Order dated
26.04.2016 staying the operation of Ext.P10.
6. The Respondent No.3 /the Regional Deputy Director of Higher
Secondary Education filed Counter Affidavit dated 18.05.2017
contending, inter alia, that the Government is the authority to create post
in Higher Secondary Schools after verification of the requirement of the
post taking into account financial burden of the State; that the Manager
can initiate the process of appointing teachers only after issuing Staff
fixation Order by RDD; that the action of the Manager initiating the
selection process before issue of Staff Fixation Order and neglecting the
orders of educational authorities is irregular and against the rules; that
W.P(C)Nos.15643 & 18339 of 2016
the action of the Manager inviting application for appointment by direct
recruitment method negating rightful claimant is not in order; that By-
Transfer quotas are not fulfilled in the school; that while inviting the
application for sanctioning additional batch Government has clearly
specified that the post will be created later; that the Managers applied
for additional batches admitting this condition; that the post created only
with effect from 15.07.2013 hence the procedure for appointment is to
be initiated only after 15.07.2013; that when the posts are created from
15.07.2013 the Respondent No.6 is a legitimate claimant for the post as
per Rule; that the Respondent No.6 is a qualified hand during June,
2013 and as on the date of creation of post on 15.07.2013; and that the
claim of the petitioner to get appointment approval with effect from
12.09.2011 on the post created on 15.07.2013 is baseless and against
Rules. In sum and substance, the Respondent No.3 supported the claim
of the Respondent No.6 on the ground that the post was created only on
15.07.2013 and that the Respondent No.6 is qualified to get
appointment to the post under By-Transfer category in preference to the
petitioner under Direct Recruitment category.
7. The Respondent No.4/Manager of SVHSS did not file any Counter
Affidavit in these writ petitions.
W.P(C)Nos.15643 & 18339 of 2016
8. The Respondent No.6 filed a Counter Affidavit dated 17.08.2016
contending, inter alia, that though an additional batch was sanctioned to
the school by Ext.P1 Government order no teaching post was granted
along with the said sanction; that later Government issued order dated
10.02.2012 enabling appointment of Guest Lecturers on daily wages;
that later Government issued Ext.P8 order dated 15.07.2013 creating
post of HSST (Junior) for the additional batch sanctioned during 2010 -
2011; that the date of creation of post is 15.07.2013 and by that time she
got qualified for being appointed as HSST (Junior) (Malayalam); that she
falls within 25% By-Transfer category; that the petitioner was appointed
before the teaching post was sanctioned; that at the time of creation of
the post the Respondent No.6 was the only person who is qualified to be
appointed as HSST (Junior) (Malayalam) under By-transfer category in
the school and that in similar issue the Respondent No.1 issued
Ext.R6(c) Government order granting approval to the teachers who are
appointed prior to Ext.P8 Government order subject to the condition that
the appointment of the Direct Recruits are to be approved only after
giving By-transfer appointment to the qualified teachers who are working
under the Management. On these contentions the Respondent No.6
prayed for dismissal of the writ petition. Along with the Counter Affidavit
W.P(C)Nos.15643 & 18339 of 2016
the Respondent No.6 had filed I.A.No.21791/2016 to vacate the interim
order.
9. The petitioner filed I.A.No.1/2022 to accept additional document
produced as Ext.P13- copy of the Appointment Order dated 01.06.2016
issued by the Respondent No.4/Manager promoting the Respondent
No.6 is as HSA (Malayalam) in the school which is approved by the
DEO, Kollam. According to the petitioner since the Respondent No.6
accepted the promotion as per Ext.P13, she has relinquished her claim
for promotion to the post of HSST. I.A.No.1/2022 is allowed by this Court
as per order dated 16.08.2022. The petitioner filed I.A.No.2/2024 to
accept additional documents produced as Exts.P14 and P15- copy of
the judgment dated 28.02.2019 of the Division Bench of this Court in
W.A.No.960/2016 arising from Ext.P12 judgment and copy of the Order
dated 30.04.2024 of the Hon'ble Supreme Court in Special Leave
Petition (c) No.18120/2019 & connected cases confirming Ext.P14
judgment. I.A.No.2/2024 is allowed.
10. The Respondent No.6 filed W.P.(C)No.18339/2016 on 25.05.2016
seeking direction to the Manager to grant appointment to her as HSST
(Junior) (Malayalam) with effect from 15.07.2013 with all attendant
W.P(C)Nos.15643 & 18339 of 2016
benefits, seeking direction to the Manager to implement G.O.
(Rt)No.1301/2016/G.Edn. dated 04.04.2016, which is produced as
Ext.P5 (Ext.P10 in W.P.(C)No.15643/2016) and for other reliefs. The
contentions raised by the Respondent No.6 in the said Writ Petition are
substantially the same as those which she made in the Counter Affidavit
in W.P.(C)No.15643/2016. The Respondent No.6 filed W.P.
(C)No.18339/2016 without impleading the petitioner who is the rival
claimant. The petitioner filed I.A.No.13421/2016 to implead her as
Additional Respondent No.5 in W.P.(C)No.18339/2016 and the same
was allowed by this Court on 29.08.2016. The Petitioner, as Respondent
No.5 filed Counter Affidavit dated 27.11.2016 in W.P.(C)No.18339/2016
raising the same contentions which she raised in W.P.
(C)No.15643/2016. The Respondent No.6 filed Reply Affidavit dated
07.01.2017 in W.P.(C)No.18339/2016.
11. I heard Sri.K.Sandesh Raja, Learned Counsel for the petitioner
Smt.P.A.Jenzia, Learned Counsel for the Respondent No.6,
Sri. A.N.Rajan Babu, Learned Counsel for the Respondent No.4 and
Senior Government Pleader Sri.A.J. Varghese, who appeared for the
official respondents.
W.P(C)Nos.15643 & 18339 of 2016
12. Though the Respondent No.4/Manager did not file any Counter
Affidavit in these writ petitions, Sri.A.N. Rajan Babu Counsel for the
Manager submitted that the Manager is supporting the petitioner.
According to him, Manager is the authority to make appointments in
aided school and when additional batch is sanctioned in the school
resulting increase in the number of periods requiring sanction of
additional posts, in anticipation of sanction of the post by the
Government the Manager appointed the petitioner after due selection
made by the Selection Committee in which Government nominee is also
included. According to him, Government is bound to sanction the post
from the date of sanctioning the additional batch and on the basis of the
same the appointment of the petitioner is to be approved from the date
of her appointment.
13. The following issues arise for consideration in these writ petitions:
1. Whether the Manager of the school is justified to
appoint teacher anticipating creation of additional post
on sanctioning additional batch by the Government?
2. Whether the Government is justified to create
teaching posts prospectively for the additional batches
sanctioned earlier?
W.P(C)Nos.15643 & 18339 of 2016
3. Which is the relevant date for assessing the
required qualifications of the candidates, is it the date of
occurrence of vacancy or the date of creation of post?
14. Going by the pleadings in these writ petitions certain facts are
admitted : (1) Government sanctioned additional batch to SVHSS for the
academic year 2011 - 2012. (2) The Manager appointed the petitioner
on 12.09.2011 anticipating sanction of additional post for the academic
year 2011 - 2012 since she secured Rank No.1 in the selection
conducted by the Selection Committee including Government Nominee
after inviting applications through Advertisement. (3) The Respondent
No.6 did not have the required qualification for appointment to the post
during the academic year 2011 - 2012. (4) The Respondent No.6
attained the required qualification in June 2013 i.e. before 15.07.2013
the date on which Respondent No.1 created the post.
15. The issues involved in these writ petitions are to be considered in
the light of the aforesaid admitted facts.
16. With respect to Issue No.1, Ext.P8 is the Order dated 15.07.2013
by which teaching posts are created and upgraded by the Respondent
W.P(C)Nos.15643 & 18339 of 2016
No.1 for the academic years 2011 - 2012, 2012 - 2013. But, it is
specifically stated in Ext.P8 that the Order will have only prospective
effect. It implies that the appointment to the post created and upgraded
by Ext.P8 could be made only after 15.07.2013. Petitioner is challenging
Ext.P8 order to the extent of prospective creation of the post with effect
from 15.07.2013. On the other hand, the Respondent No.6 relies on the
said clause in Ext.P8 and contends that the post is created only on
15.07.2013 and hence appointment could not be done before that and
as on 15.07.2013 she is qualified under By-transfer category and hence
she alone can be appointed in the said post.
17. Counsel for the Respondent No.6 invited my attention to G.O.(Rt)
No.680/12/G.Edn. dated 10.02.2012 which is produced as Ext.P1 in
W.P.(C)No.18339/2016 which states that Government has accorded
sanction for engaging Guest Lectures on daily wages both in
Government and aided schools for conducting additional batches
sanctioned as per Government order dated 03.08.2011 (produced as
Ext.P1 in W.P.(C)No.15643/2016) subject to the existing rules and
regulations governing such appointments and that orders for giving
remuneration to the Guest Lectures so engaged will be issued later
separately. I am of the view that the Government order dated
W.P(C)Nos.15643 & 18339 of 2016
10.02.2012 does not in any way affect the appointment of Petitioner on
12.09.2011. The Government Order dated 10.02.2012 cannot have any
retrospective application. It does not provide for retrospective application
also. It cannot affect the appointment already made by the Manager in
anticipation of sanctioning of the post.
18. The argument of the counsel for the Respondent No.6 is that in view
of the Government order dated 10.02.2012, the Managers ought to have
appointed Guest Lecturers on daily wages till 15.07.2013 and thereafter,
to have made regular appointments after 15.07.2013 terminating the
service of the Guest Lecturers who were appointed on daily wages. I am
unable to accept the said argument since nobody including the Manager
of the school could not have anticipated a Government Order like the
Government order dated 10.02.2012 mandating appointment of Guest
Lecturers on daily wages at the time when the appointment was made in
favour of the petitioner. Moreover, the said Government order dated
10.02.2012 does not speak anything about the period from the date of
sanctioning of additional batches to the date of the said Government
order.
W.P(C)Nos.15643 & 18339 of 2016
19. The Respondent No.1/ Government issued Ext.P1 sanctioning a
new Plus Two Batches in the aided Higher Secondary Sector in order to
meet the difficulties suffered by the students on account of shortage of
Plus Two seats in the districts of Kollam, Alappuzha, Idukki, Thrissur,
Palakkad, Malappuram, Kozhikode and Kannur. SVHSS got one
additional Batch as per Ext.P1 order. Ext.P1 order does not contain
anything preventing appointment of teachers by the Managers on
account of increase in teaching periods due to sanctioning of additional
batches in the school. On the other hand, Ext.P1 specifically required
the Director of Higher Secondary Education to submit detailed Report to
the Government with respect to the financial burden on the Government
on account of sanctioning additional batches. It necessarily implies that
on account of additional batches, new posts are to be created causing
financial burden to the Government. Increase in the numbers of students
naturally requires more teaching staffs and the same is permitted as per
Rules. The need for additional teacher starts with the starting of
additional batch. When additional batches are allowed which in turn
increase the number of teaching periods in different subjects, the
Manager, who is the appointing authority with respect to an Aided school
can appoint new teachers in anticipation of sanction by the Educational
authorities for the newly required post in the absence of any prohibitory
W.P(C)Nos.15643 & 18339 of 2016
order from the educational authorities. Hence, the Managers who
appointed teachers in anticipation of sanction for the newly required post
cannot be blamed in the absence of any prohibitory or restraining orders
from the part of the educational authorities. Admittedly, as on the date of
appointment of the petitioner on 12.09.2011, there was no order from the
part of the educational authorities restraining the Manager of SVHSS to
appoint the petitioner.
20. In view of Chapter XXXII Rule 4 of the K.E.R, direct appointment to
the post of HSST (Junior) can be made only if qualified teachers are not
available to fill up the vacancies set apart for appointment by transfer.
Admittedly, the Respondent No.6 was not qualified for appointment on
12.09.2011, the day on which the Petitioner was appointed by the
Manager. None of the parties has a case that any other qualified
candidate under By-Transfer category is available on the date of
appointment of the petitioner. Hence, the Manager was fully justified in
appointing the Petitioner as HSST (Junior) (Malayalam) on 12.09.2011.
21. With respect to Issue No.2, the counsel for Petitioner relied on
Ext.P11 judgment of the learned Single Judge of this Court disposing
W.P.(C)No.16613/2014 and a batch of connected writ petitions and
W.P(C)Nos.15643 & 18339 of 2016
Ext.P12 judgment of another learned Single Judge in W.P.
(C)No.19141/2013.
22. In Ext.P11 judgment, the learned Single Judge has dealt with W.P.
(C)Nos.11033 & 16683 of 2014 in the latter part of the judgment and all
other cases in the former part. The facts in those two writ petitions are
more identical with the facts in the present writ petitions and hence
I refer to the latter part of Ext.P11. The facts in those writ petitions are
that the petitioners therein were appointed as HSST in the years 2011,
2012 & 2013. But their appointments were approved only with effect
from 03.06.2013. The learned Single Judge found that the petitioners
therein are entitled to get approval from the date of appointment
following his finding in the former part of the very same judgment. In the
former part of the judgment the learned Single Judge relied on Ext.P21
judgment produced therein (Judgment in W.P.(C)No.5709/2007). In the
said Ext.P21 judgment, a person was appointed as HSST on 25.02.2005
in a regular vacancy but approval of the said appointment was given
only with effect from 11.07.2005. It was held that normally unless there
in any legal objection against the appointment, the appointment has to
be approved from the date of joining duty and accordingly it was
declared that the petitioner therein is entitled to get approval from the
W.P(C)Nos.15643 & 18339 of 2016
date of joining duty on 25.02.2005. Relying on the said Ext.P21
judgment, the learned Single Judge in Ext.P11 judgment allowed the writ
petitions in the former part setting aside the impugned orders that
approve the appointment of the petitioners therein as HSST with effect
from a date subsequent to the date of their actual appointment in the
school by holding that the petitioners are entitled to approval of their
appointment with effect from their date of appointment in the school. In
the latter part of Ext.P11 judgment the learned Single Judge considered
an additional issue whether the sanctioning of the post in the school on
23.02.2013 with prospective effect would deprive the petitioners of
approval of their appointment for the period from the dates of their actual
appointment in the school in question till 23.02.2013 when the post were
actually sanctioned by the school. The learned Single Judge relied on
the judgment of this Court dated 19.09.2014 in W.P.(C)No.20849/2013 in
which it is held that there was no legal or rational basis for the artificial
cut off date of 23.02.2013 fixed for the purpose of upgradation of the
post that were already created by the Government Order dated
24.10.2011 and declared that the petitioners therein are also entitled to
the benefit of the judgment in W.P.(C)No.20849/2013 and that the
impugned Government Order dated 23.02.2013 in its application to the
petitioners therein shall have the effect from the commencement of the
W.P(C)Nos.15643 & 18339 of 2016
academic year 2011 - 2012 when they were actually appointed in the
school.
23. In Ext.P12 judgment, the petitioners therein were appointed as
HSST (Junior) in the academic year 2012 - 2013 consequent to
sanctioning of additional batch by the very same Ext.P1 Government
order which is produced in the present W.P(C) No.15463/2016. The
grievance of the petitioners in Ext.P12 judgment was against the very
same Government Order dated 15.07.2013, which is produced as
Ext.P8 in the present W.P(C) No.15463/2016, by which the posts were
sanctioned prospectively. In Ext.P12, the learned Single Judge
considered the argument of learned Additional Advocate General that
only Guest Lecturers are to be appointed till sanction is made by the
Government and entered a specific finding that a condition for
appointment of Guest Lectures in a particular year cannot have any
application in any successive years unless the order of sanction
specifically provide for such appointments and restricts regular
appointment till the creation of a post. The learned Single Judge has
specifically found that Ext.P1 does not anywhere speak about fresh
appointment to be made as Guest Lecturers till a sanction of post or
creation of such post is made by the Government. The learned Single
W.P(C)Nos.15643 & 18339 of 2016
Judge found that the petitioners therein having been appointed in the
academic year 2012 - 2013 would be entitled to get their appointment
approved from the date of their appointment as HSST (Junior) in their
respective subjects and further directed the Government to pass
appropriate orders approving the appointment of the petitioners and also
to disburse the arrears of salary. It is seen from the said judgment that in
most of the cases the learned Single Judge directed to approve the
teachers as HSST from the beginning of the academic year 2011 -
2012. The State of Kerala and its officers challenged Ext.P12 and
identical judgments by filling Writ Appeals and all the Writ Appeals were
dismissed by Ext.P14 common judgment dated 28.02.2019. The
judgments of the learned Single Judge were challenged by the State on
the ground that the learned Single Judge omitted to take note of the
involvement of financial commitment on the part of the Government and
that the teachers were permitted to be appointed only as Guest faculty
until the regular hands were appointed. The Division Bench of this Court
passed Ext.P14 judgment rejecting both the contentions raised by the
State and dismissed the appeals. The Hon'ble Supreme Court has
confirmed Ext.P14 judgment by Ext.P15 Order.
W.P(C)Nos.15643 & 18339 of 2016
24. In view of the aforesaid Exts.P11 & P12 judgments, P14 judgement
of the Division Bench confirming Ext.P12 and identical judgments and
Ext.P15 Order of the Hon'ble Supreme Court confirming Ext.P14
judgment, the prospective application of the sanctioning of post in
Ext.P8 Government order is illegal and unsustainable.
25. With respect to Issue No.3, Learned Counsel for the Respondent
No.6 as well as the learned Government Pleader cited the Division
Bench decisions of this Court in Stella C.M. v. P.L. Resmi and Ors.
[2019 (3) KHC 535], the Judgment dated 26.08.2022 in W.A.No
334/2021 and the Judgment dated 11.10.2022 in W.A.Nos.7 and 111
of 2019 and contended that in view of these decisions, the candidate
needs to obtain the required qualification only on the date of creation of
the post and not on the date of occurrence of vacancy. Since the
Respondent No.6 obtained the required qualification before the date of
creation of the post as per Ext.P8 Government order dated 15.07.2013,
the Manager ought to have appointed the Respondent No.6 in the post
sanctioned as per Ext.P8. According to them, the Manager ought to
have appointed Guest Lecturers to teach the students till the date of
Ext.P8 order and ought to have appointed the Respondent No.6 to the
additional post on sanctioning of the post as per Ext.P8 since the
W.P(C)Nos.15643 & 18339 of 2016
Respondent No.6 is the senior most qualified teacher eligible under the
By-Transfer category for appointment as HSST (Junior). According to
them, there is no dispute by either party that candidate under direct
recruitment can be appointed only in the absence of qualified hands in
the by-transfer category.
26. The Division Bench of this Court in Stella C.M. (supra) found that
the principle insofar as the qualification being required at the time of
occurrence of the vacancy would be satisfied if the candidate who seeks
appointment by-transfer has acquired qualification on the date of
creation of the post. In that case, the dispute was between two
candidates under by-transfer category for the newly created post. In that
case courses were sanctioned by the Government on 20.07.2010 and
posts were created on 24.10.2011. Appellant therein obtained the
qualification only on 16.09.2011 subsequent to the sanction of the post
but before the creation of the post. The respondent No.1 therein was
qualified on 20.07.2010, the date of sanction of the courses. The
appellant challenged the judgement of the learned Single Judge
upholding the claim of the respondent No.1 on the ground that the
appellant was not qualified on the date of occurrence of vacancy and
hence the respondent No.1 alone is qualified to be appointed. The
W.P(C)Nos.15643 & 18339 of 2016
appellant filed the appeal on the ground that as on the date of creation
of the post on 24.10.2011 both the appellant and respondent No.1 are
qualified and since the appellant is senior to the respondent No.1 she is
entitled to be appointed. The Division Bench upheld the claim of the
appellant and set aside the judgment of the learned Single Judge. The
learned Government Pleader invited my attention to some of the specific
findings in the said decision that merely by the reason of the creation of
so many vacancies there could be no appointment made since there
should be sanction of post which has to be made by the educational
authorities to the individual schools; that creation of post alone would
not enable the manager to make appointment; and that there was no
possibility or opportunity for the manager to have conducted a selection
prior to 24.10.2011.
27. In the judgment in W.A.No.334/2011 also the dispute was between
two HSAs in the school claiming appointment under by-transfer
category. In that case, posts were created by the Government Order
dated 24.10.2011 with retrospective effect from 06.08.2011. The
appellants/respondent Nos.6 & 7 in the writ petition acquired
qualification for appointment of the post only on 07.09.2011 and
16.09.2011 i.e after 06.08.2011 the date from which retrospective effect
W.P(C)Nos.15643 & 18339 of 2016
was given. In other words, the appellants were qualified only on the date
of creation of the post on 24.10.2011. They claimed appointment in
preference to the respondents 1 & 2/writ petitioners since they were
seniors to the petitioners. Relying on the decision in Stella C.M. (supra)
the Division Bench of this Court set aside the impugned judgment and
upheld the claim of the appellants finding that as on the date of creation
of the post they were qualified.
28. In the judgment in W.A.Nos.7 and 111 of 2019 which is filed by the
State Government, the Division Bench of this Court set aside the
impugned judgment of the learned Single Judge directing the competent
authority to approve the appointment of the writ petitioner as HSST with
effect from the date of his appointment on 18.09.2014 under by-transfer
category holding that the required number of posts of Higher Secondary
School Teachers should have been created by the Government in the
School simultaneous to the sanctioning of Higher Secondary courses
itself. The Division Bench set aside the judgment of the learned Single
Judge finding that it cannot be said that it was obligatory for the
Government to create sufficient number of teaching and non teaching
posts simultaneous to the sanctioning of the courses; that regular
appointments of HSST were prohibited in terms of the order by which
W.P(C)Nos.15643 & 18339 of 2016
additional batches were sanctioned and that higher secondary courses
were sanctioned subject to the condition that initial appointment of
teaching staff shall only be as Guest Lecturers. The learned Counsel for
the Respondent No.6 took my attention to the specific finding of the
Division Bench that the Manager of the School was incompetent to
make any regular appointment in the Higher Secondary section of the
school prior to the creation of the post by the Government and sanction
of post by the Director of Higher Secondary Education.
29. In view of the aforesaid three Division Bench judgments, the legal
proposition is clear that the relevant date for assessing the qualifications
of the eligible candidates is the date of creation of the post by the
Government and not the date of occurrence of vacancy. In other words,
if a candidate who did not have the required qualification on the date of
occurrence of vacancy acquires the required qualification before the
date of creation of the post, he is eligible to get appointment.
30. I am of the view that the aforesaid three Division Bench judgments
cited by the Government Pleader as well as counsel for the Respondent
No.6 are distinguishable on facts of the present case. It appears from
the facts of those cases that there was prohibition to the Managers to
W.P(C)Nos.15643 & 18339 of 2016
make regular appointments to the newly occurred vacancies and they
were required to make temporary appointments of Guest Lecturers on
daily wages till the Government permits regular appoints. Paragraph 3
of Stella C M (Supra) would show that there was a condition to appoint
HSST temporarily as Guest Lecturers when the courses were
sanctioned by the Government. The judgment in W.A No.334/2021
would show that though the post was created on 24.10.2011 with
retrospective effect from 06.08.2011, it is seen that nobody was
appointed in the said post before the date of creation of the said post. In
the judgment in W.A.Nos.7 and 111 of 2019 also there was specific
condition to appoint temporary Guest Lecturers while sanctioning new
batches as per Government Order dated 31.07.2014. In the present
case, petitioner was appointed on 12.09.2011 in an anticipated HSST
(Junior) vacancy on account of sanctioning of new Plus Two batch as
per Ext.P1 Government Order dated 03.08.2011. Ext.P1 Government
Order dated 03.08.2011 does not contain any restriction regarding
appointment of teachers by the Manager nor does it contain any
stipulation to appoint temporary Guest Lecturers to teach the additional
strength of students. The requirement of qualified teacher is from the
date of sanctioning of batch and cannot be counted from the date of
creation of the post. Manager is the appointing authority of Aided
W.P(C)Nos.15643 & 18339 of 2016
School. In the absence of any restriction or limitation imposed by the
Educational Authorities, Manager of an Aided School has every right to
make appointments when sanction of post is anticipated on account of
increase in the periods as a result of sanctioning additional batches.
Sanctioning of the course definitely creates need for Higher Secondary
School Teachers. As the things stood on 12.09.2011, the day on which
the petitioner appointed, Respondent No.6 could not have been
appointed by the Manager as she was not qualified. When a vacancy
arose, the normal procedure to be done by the Manager is to appoint a
qualified hand for the post subject to the sanction by the Educational
Authorities. The Manager cannot appoint Guest Lecturer without any
authorisation from the Educational Authorities. If the contentions of the
Educational authorities and Respondent No.6 are to be accepted, the
Manager should have continued with additional batch with the existing
number of teachers, as there is no qualified hand in the By-Transfer
Category and there is no enabling provision to appoint Guest Lecturer
on daily wages. The contention of the Counsel for Respondent No.6 and
the Government Pleader that the Manager should have appointed Guest
Lecturer till the date of Ext.P8 Government Order does not hold good in
view of the fact that there was no such condition imposed by the
Government while sanctioning the courses as per Ext.P1. The
W.P(C)Nos.15643 & 18339 of 2016
Government Order dated 10.02.2012 (produced as Ext.P1 in W.P.(C)
No.18339/2016) directing engagement of Guest Lecturers on daily
wages for the additional batches created as per Ext.P1 order dated
03.01.2011 does not speak anything about the period between
03.08.2011 and 10.02.2012. Since the petitioner was appointed before
the date of the Government Order dated 10.02.2012, her appointment
cannot be affected by the said Government Order. The petitioner has
produced Ext.P13 Appointment Order dated 01.06.2016 by which the
Manager promoted the Respondent No.6 to the post of HSA(Malayalam)
and the same was approved by the DEO, Kollam on 23.09.2016. The
petitioner has been working in the school without approval and salary
since the year 2011, whereas the Respondent No.6 has been continuing
in the promoted post of HSA with approval and salary. In view of these
facts in the present case which are clearly distinguishable from the facts
in the above cited three decisions I am of the view that the claim of the
petitioner is liable to be upheld in these writ petitions.
31. Sl. No.9 in Ext.P8 shows that one additional post of HSST (Junior)
(Malayalam) is sanctioned to SVHSS for the academic year 2012-13.
Though the petitioner claims appointment with effect from 12/09/2011
i.e; in the academic year 2011-12, in the Counter affidavit filed by the
W.P(C)Nos.15643 & 18339 of 2016
respondent No. 3 nothing is stated about the claim of the petitioner with
respect to the academic year 2011-12. The case of petitioner as well as
the Manager is that in view of Ext.P2 Government Order, SVHSS is
entitled to get one additional post of HSST(Junior) (Malayalam) with
effect from the academic year 2011-12. Hence the Respondent No.1 is
liable to be directed to consider the eligibility of the School for one
additional post of HSST (Junior) (Malayalam) in the academic year
2011-12 taking note of Ext.P2 Government Order. If such post is
admissible for the academic year 2011-12, the petitioner is entitled to get
approval of appointment with effect from 12.09.2011. If the additional
post of HSST (Junior) (Malayalam) is not admissible for the academic
year 2011-12, petitioner is entitled to get approval of appointment with
effect from the academic year 2012-13.
32. In the result W.P(C) No.15643/2016 is allowed :
a. by issuing a Writ of Certiorari setting aside Ext.P8 to the extent of
the prospective creation of the post of HSST (Junior) (Malayalam)
in SVHSS of Respondent No.4/Manager & setting aside Ext.P10
order,
W.P(C)Nos.15643 & 18339 of 2016
b. by issuing a Writ Mandamus ordering the Respondent Nos. 1 to 3
to approve the appointment of the petitioner as HSST (Junior)
(Malayalam) in SVHSS of Respondent No.4/Manager with effect
from the academic year 2012-13 and disburse all consequential
benefits within four months from the date of receipt of copy of this
judgment.
c. by issuing a Writ Mandamus ordering the Respondent No.1 to
consider the eligibility of SVHSS of Respondent No.4/Manager for
one additional post of HSST (Junior) (Malayalam) in the academic
year 2011-12 taking note of Ext.P2 Government Order within two
months from the date of receipt of copy of this judgment. If such
post is admissible for the academic year 2011-12, the petitioner is
entitled to get approval of appointment with effect from 12.09.2011.
d. W.P.( C).No.18339/2016 is dismissed.
Sd/-
M. A. ABDUL HAKHIM
JUDGE
Shgx17.5
W.P(C)Nos.15643 & 18339 of 2016
APPENDIX OF WP(C) 15643/2016
PETITIONER ANNEXURES
P1 TRUECOPY OF THE G.O(MS) NO 167/11 G. EDN DATD 03-08-
2011 ALONG WITH THE RELEVANT PAGE OF ANNEXURE.
P2 TRUE COPY OF THE G.O(MS) NO 398/2002/G.EDN DATED 29-
11-2002.
P3 TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE KERALA
KAUMUDI DAILY DATED 19-08-2011
P4 TRUE COPY OF THE RANKLIST ISSUED BY THE 4TH RESPONDENT
P5 TRUE COPY OF THE APPOINTMENT ORDER DATED 12-09-2011
ISSUED BY THE 4TH RESPONDENT
P6 TRUE COPY OF THE RECOMMENDATION FOR FIXATION OF STAFF
IN THE 4TH RESPONDENT'S SCHOOL FOR THE ACADEMIC YEAR
2011-12
P7 TRUE COPY OF THE RECOMMENDATION FOR FIXATION OF STAFF
IN THE 4TH RESPONDENT SCHOOL FOR THE ACADEMIC YEAR
2012-13
P8 TRUE COPY OF THE G.O(MS) NO 211/2013/G.EDN DATED 15-
07-2013 ALONG WITH THE RELEVANT PAGEOF THE LISTS OF
SCHOOL.
P9 TRUE COPY OF THE ORDER NO.ACD.B4/6558/12/HSE DATED 21-
07-15 ISSUED BY THE 1ST RESPONDENT
P10 TRUE COPY OF GO(RT) NO 1301/2016/G.EDN DATED 4-04-2016
ISSUED BY THE 1ST RESPONDENT.
P11 TRUE COPY OF THE JUDGMENT DATED 1-6-2015 OF THIS
HON'BLE COURT IN WP(C) NO. 16613/2014
P12 TRUE COPY OF THE JUDGMENT DATED 4-11-2015 OF THIS
HON'BLE COURT IN WRIT PETITION (C) NO 19141 OF 2013
P13 TRUE COPY OF THE ORDER NO. B4/3570/2016/K DATED
22/09/2016 APPROVED BY THE DISTRICT EDUCATIONAL
OFFICER, KOLLAM
P14 TRUE COPY OF THE RELEVANT EXTRACT OF THE JUDGMENT OF
THE HON'BLE HIGH COURT IN W.A.NO.960/2016 DATED
28/2/2019 AND CONNECTED CASES
P15 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN
S.L.P. NO.18120/2019 DATED 30/4/2024 AND CONNECTED
CASES
RESPONDENTS' EXTS
EXT.R6(A) TRUE COPY OF THE APPOINTMENT ORDER OF SMT.RANI S DATED
2.6.2003
EXT.R6(B) TRUE COPY OF THE APPLICATION UNDER RTI ACT DATED
17.8.2013 AND THE INFROMATION FURNISHED THEREON DATED
10.9.2013
EXT.R6(C) TRUE COPY OF THE G.O.(M.S.)NO.223/15/G.EDN. DATED
24.8.2015 OF THE GOVERNMENT
W.P(C)Nos.15643 & 18339 of 2016
APPENDIX OF WP(C) 18339/2016
PETITIONER EXHIBITS
P1 : TRUE COPY OF THE GO(RT)NO.680/12/GL.EDN DATED 10-2-
2012 OF THE GOVERNMENT.
P2 : TRUE COPY OF THE QUESTIONNAIRE DATED 17-8-2013 AND THE
INFORMATION FURNISHED UNDER RTI ACT DATED 10-9-2013
P3 : TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 21-
7-2015.
P4 : TRUE COPY OF THE JUDGMENT IN WPC.NO.23792/2015-Y DATED
19-11-2015.
P5 : TRUE COPY OF THE GO(RT)NO.1301/2016/G.EDN DATED 4-4-
2016.
P6 : TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE
2ND RESPONDENT DATED 15-4-2016.
P7 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN
WPC.NO.5486/2013 BY THE GOVERNMENT PLEADER.
P8 TRUE COPY OF THE G.O.(MS)NO.211/2013/G/EDN. DATED
15.7.2013 OF THE GOVERNMENT
P9 TRUE COPY OF THE G.O.(M.S.)NO.284/2014/G.EDN. DATED
30.12.2014 OF THE GOVERNMENT
RESPONDENTS' EXTS
EXT.R5(A) TRUE COPY OF THE NOTIFICATION PUBLISHED BY THE 4TH
RESPONDENT IN THE KERALA KAUMUDI DAILY DATED
19.08.2011
EXT.R5(B) TRUE COPY OF THE APPOINTMENT ORDER DATED 12.9.2011
ISSUED BY THE 4TH RESPONDENT
EXT.R5(C) TRUE COPY OF G.O.(MS)NO.211/2013/G/EDN. DATED
15.7.2013
EXT.R5(D) TRUE COPY OF THE JUDGMENT DATED 4.8.2015 IN
WP(C)14975/2014
