Kerala High Court
Sajina Salim vs The State Of Kerala on 13 August, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
W.A.No.1260 of 2025 1 2025:KER:60458
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 13TH DAY OF AUGUST 2025 / 22ND SRAVANA, 1947
WA NO. 1260 OF 2025
AGAINST THE JUDGMENT DATED 13.05.2025 IN W.P.(C)
NO.22754 OF 2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
SAJINA SALIM
AGED 34 YEARS
WIFE OF NIYAS M A HIGH SCHOOL TEACHER (SOCIAL
SCIENCE), LAJANATHUL MUHAMMADIYA HIGHER SECONDARY
SCHOOL, ALAPPUZHA, ALAPPUZHA DISTRICT
(RESIDING AT MATHIRAMPALLIL HOUSE, ALAPRA P O,
KOTTAYAM DISTRICT, PIN - 686544
BY ADVS.
SHRI.V.A.MUHAMMED
SRI.M.SAJJAD
RESPONDENTS/RESPONDENTS IN THE WRIT PETITION:
1 THE STATE OF KERALA
REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE II,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR OF GENERAL EDUCATION
JAGATHY, THIRUVANANTHAPURAM, PIN - 695014
W.A.No.1260 of 2025 2 2025:KER:60458
3 THE DEPUTY DIRECTOR OF EDUCATION
CIVIL LINES, ALAPPUZHA, PIN - 688001
4 THE DISTRICT EDUCATIONAL OFFICER
JAWAHAR BALABHAVAN ROAD, ALAPPUZHA,
PIN - 688001
5 THE MANAGER
LAJANATHUL MUHAMMADIYA HIGHER SECONDARY SCHOOL,
ALAPPUZHA, PIN - 688001
6 SMT. SEENA E
HEADMASTER, LAJANATHUL MUHAMMADIYA HIGHER SECONDARY
SCHOOL, ALAPPUZHA, ALAPPUZHA DISTRICT, PIN - 688001
7 SMT. A.RAJEENA HSA(SS)
LAJANATHUL MUHAMMADIYA HIGHER SECONDARY SCHOOL,
ALAPPUZHA, ALAPPUZHA DISTRICT, PIN - 688001
8 SMT. P.S.SAFIYA BEEVI HSA(SS)
LAJANATHUL MUHAMMADIYA HIGHER SECONDARY SCHOOL,
ALAPPUZHA, ALAPPUZHA DISTRICT, PIN - 688001
BY ADVS.
SMT.M.A.VAHEEDA BABU
SRI.T.R.RAJESH
SRI.BABU KARUKAPADATH
SMT.ARYA RAGHUNATH
SHRI.KARUKAPADATH WAZIM BABU
SMT.P.LAKSHMI
SMT.AYSHA E.M.
SHRI.ABUASIL A.K.
SMT.HANIYA NAFIZA V.S.
SHRI.HASHIM K.M.
SMT.JALAJAMANI K.R.
SMT.NISHA BOSE SR.G.P
THIS WRIT APPEAL WAS FINALLY HEARD ON 31.07.2025, THE
COURT ON 13.08.2025 PASSED THE FOLLOWING:
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JUDGMENT
Muralee Krishna, J.
This writ appeal is filed under Section 5(i) of the Kerala High
Court Act, 1958, by the petitioner in W.P.(C) No.22754 of 2024,
challenging the judgment dated 13.05.2025 passed by the learned
Single Judge in that writ petition.
2. The appellant was initially appointed as H.S.T (Social
Science) in the school of the 5 th respondent from 01.06.2018 to
14.07.2019 against a retirement vacancy. She was retrenched
from service on 15.07.2019 due to fall in division during 2019-
2020. The appellant was reappointed as H.S.T (Social Science)
from 01.06.2023 onwards against an anticipated additional
division vacancy, on daily wages as per Ext.P3 appointment order
dated 01.06.2023. The Government did not sanction the additional
divisions or posts. However, the Manager reappointed the
appellant from 01.10.2023 onwards on regular scale of pay basis,
as per Ext.P5 appointment order dated 01.10.2023. Her
appointment from 01.10.2023 to 14.07.2024 was later approved
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by Ext.P15 order dated 14.11.2024 of the 4 th respondent District
Educational Officer. According to the appellant, she is fully
qualified for by-transfer appointment to the post of H.S.S.T
(History).
2.1 The appellant pleads that 3 vacancies of H.S.S.T arose
in the School on 03.06.2024, while the appellant was working as
a regular teacher. The vacancies were in the category of H.S.S.T
(History), H.S.S.T (Zoology) and H.S.S.T (Economics). Out of the
3 vacancies, 1 vacancy has to be filled up with Persons with
Disabilities following the reservation. So also, 1 vacancy is liable
to be filled up by granting by-transfer appointment from the
qualified H.S.T in terms of Rule 6 Chapter XXXII of KER as
interpreted by the Apex Court in V.K.Girija v. Resma Parayil
(Civil Appeal No.11829 of 2018) dated 14.12.2022. As on the date
of arising of the vacancy, there was no willing qualified teacher
available in the feeder category of the post of H.S.S.T (Zoology),
H.S.S.T (Economics). As such, out of the 3 vacancies, only willing
qualified hands available for by-transfer appointment against the
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vacancy of H.S.S.T (History) are the appellant and respondents 7
and 8. The 5th respondent has managed to abolish 1 H.S.T (Social
Science) post in which the appellant was continuing during 2024-
2025. The appellant further states that, in the event of posting
either the 7th or 8th respondents as H.S.S.T (History) with effect
from 03.06.2024 under by-transfer method, the appellant could
continue as H.S.T (Social Science). For denying by-transfer
appointment, the Manager has identified H.S.S.T (History)
vacancy for disabled persons. The said act of the Manager was
under challenge in the writ petition.
2.2 It is the further case of the appellant that the setting
apart of vacancies for disabled candidates is subject to the right of
statutory claimants. Vacancies liable to be filled up under
promotion/reappointment cannot be set apart for disabled
candidates as clarified by the Government in Ext.P-11(f)
Government Order dated 15.07.2024 and Annexure 1 order dated
05.09.2024.
2.3. When the appellant filed the writ petition, her
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appointment from 01.10.2023 to 14.07.2024 was pending
approval. Hence, the appellant, inter alia, prayed to approve the
said appointment. However, during the pendency of the writ
petition, the said appointment was approved by Ext.P15 order and
the claim for by-transfer appointment of the appellant was
crystallised. Under a mistaken impression that the appellant has
no approved service as on 03.06.2024, her prayer for by-transfer
appointment as H.S.S.T (History) is not allowed by the learned
Single Judge. Hence, according to the appellant, an interference
with the impugned judgment by this Court, exercising the
appellate jurisdiction under Section 5(i) of the Kerala High Court
Act is necessary.
3. The appellant filed the writ petition under Article 226 of
the Constitution of India, seeking the following reliefs;
"(i) call for the records leading to Exhibit P-10 and set
aside the original of the same to the extent it limiting
approval from 01.06.2023 to 30.09.2023 on daily wages
and denied the entitlement for by transfer as HSST
(History) by the issue of a writ of certiorari or other
appropriate writ or order.
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(ii) issue a writ of mandamus or other appropriate writ
order or direction commanding the Respondents to
sanction additional post of HST (SS) admissible from
01.10.2023 and Petitioner is entitled for regular
appointment from 01.10.2023 onwards in view of sub-
rule 6 of Rule 12-A Chapter XXIII KERs and to grant
approval to the Exhibit P-5 appointment on regular basis.
(iii) issue a writ of mandamus or other appropriate writ
order or direction commanding the 5 th Respondent
Manager to refrain from appointing fresh disabled hand
against the vacancy of HSST (History) in view of Exhibit
P-11 order.
(iii a) issue a writ of mandamus or other appropriate writ,
order or direction directing the Manager to fill up the
vacancy of HSST (History) occurred on 01.06.2024 by
posting either the Petitioner or Respondent 7 or 8 under
by transfer appointment w.e.f. the date of re-opening of
the School in the academic year 2024-25.
(iii b) issue a writ of mandamus or other appropriate writ,
order or direction directing the Respondents to initiate
action against the Manager and Respondents 6 to 8 for
making illegality in uploading the 6th working day students
strength and not curing the defect in the UID portal in
time in order to abolish the 3rd post of HSA(Social Science)
for retrenching the Petitioner from service in an illegal
manner.
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(iii c) issue a writ of certiorari or other appropriate writ,
order or direction restraining the Manager from filling up
of the post of HSST (Social Science) occurred on
01.06.2024 otherwise than under by transfer method.
(iv) declare that the Petitioner is entitled for by transfer
appointment as HSST (History) from 03.06.2024 in view
of Exhibit P- 11 order."
4. The 5th respondent Manager, filed a counter affidavit
dated 09.08.2024 in the writ petition opposing the reliefs sought
therein and producing therewith Exts.R5(a) to R5(d) documents.
The 4th respondent, District Educational Officer, also filed a counter
affidavit dated 16.10.2024 in the writ petition opposing the reliefs
sought therein.
5. To the counter affidavits filed by respondents 4 and 5,
the appellant had filed a reply affidavit dated 15.11.2024,
producing therewith Ext.P14 document.
6. After considering the rival contentions of the parties
and the materials on record, the learned Single Judge by the
impugned judgment dated 13.05.2025 disposed of the writ petition
holding that as the additional vacancy for the academic year 2023-
W.A.No.1260 of 2025 9 2025:KER:60458
2024 has not been sanctioned by respondents 1 to 4 so far, the
appellant cannot stake any claim based on her service as H.S.T
(Social Science) from 01.06.2023 onwards. As the vacancy of
H.S.S.T (History) earmarked for Persons with Disability, the
appellant cannot claim appointment by transfer to the said
vacancy. Therefore, the prayer of the appellant for regular
appointment as H.S.S.T from 01.10.2023 cannot be allowed at this
stage, and the claim of the appellant for appointment as H.S.S.T
(History) by-transfer cannot be granted, as the vacancy is
earmarked for Persons with Disabilities. However, the learned
Single Judge directed the 5th respondent Manager to resubmit the
proposal for approval of the appointment of the appellant as H.S.T
(Social Science) on a daily wage basis on and from 01.06.2023, if
the Manager has not already resubmitted the proposal. It was
further directed that the resubmission of such a proposal shall be
made within a period of one month, and respondents 3 and 4 shall
take a decision thereon within a further period of two months. The
said judgment is under challenge in this writ appeal.
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7. Heard the learned counsel for the appellant, the learned
Senior Government Pleader and the learned counsel for the 5 th
respondent Manager and also the learned counsel for respondents
7 and 8.
8. The learned counsel for the appellant would argue that
the appointment of the appellant as H.S.T (Social Science) from
01.06.2018 to 14.07.2019 and from 01.10.2023 to 14.07.2024
was approved by the District Educational Officer. However, the
approval of the appointment of the appellant from 01.10.2023 to
14.07.2024 was not considered by the learned Single Judge, since
the said approval order was issued during the pendency of the writ
petition. Though the claim of the appellant in the writ petition was
to issue a writ of mandamus commanding the respondents to
sanction additional post of H.S.T (Social Science), admissible from
01.10.2023 and the appellant is entitled for regular appointment
from 01.10.2023 onwards in view of sub-rule (6) of Rule 12A
Chapter XXIII of KER, the appellant is now sticking on to the stand
that there is no necessity to set apart the vacancy of H.S.S.T
W.A.No.1260 of 2025 11 2025:KER:60458
(History) itself for the disabled hands, since 3 vacancies arose in
the post of H.S.S.T on the same date. Therefore, if the 7 th
respondent who submitted Ext.R5(b) application dated 25.03.2024
seeking by transfer appointment to the post of H.S.S.T (History),
if granted by setting apart one of the other two vacancies for the
disabled candidates, the appellant can be accommodated in the
arising vacancy of H.S.T (Social Science).
9. The learned Senior Government Pleader also supported
the argument of the learned counsel for the appellant and
submitted that 3 vacancies of H.S.S.T arose on 01.06.2024 in the
school. After the passing of Ext.P15 order, the appellant became
eligible for by transfer appointment. Since the 7 th respondent has
already made a claim by submitting Ext.R5(b) application, if the
7th respondent is accommodated in the vacancy of H.S.S.T
(History) by granting by transfer appointment, the appellant can
be accommodated in that vacancy of H.S.T. There is no mandate
that, when 3 simultaneous vacancies arise, a particular vacancy
has to be earmarked for the appointment of disabled candidates.
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10. The learned counsel for the 5 th respondent would
submit that the appellant had previously filed three writ petitions
before this Court as W.P.(C)Nos.15123 of 2024, 27915 of 2024
and 45904 of 2024 seeking various reliefs. The filing of those writ
petitions was not stated in the present writ petition. In fact the
appellant is now seeking relief with respect to the promotion of
respondents 7 and 8, and she cannot step into the shoes of those
respondents and seek a direction to give appointment to them to
the post of H.S.S.T. The 5th respondent Manager has already
issued a communication setting apart the vacancy of H.S.S.T
(History) for the disabled candidates. Hence, the claim of the
appellant is not maintainable.
11. The learned counsel appearing for respondents 6 to 8
submitted that the vacancy that arose in the post of H.S.S.T
(History) has to be filled up by giving by-transfer appointment to
the 7th respondent, who has already submitted an application for
the same.
12. Though the 1st relief sought in the writ petition by the
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appellant is to set aside Ext.P10 order dated 14.06.2024 issued by
the Government to the extent it limited her approval from
01.06.2023 to 30.09.2023 on daily wages and denied her
entitlement for by transfer appointment as H.S.S.T (History),
subsequently, by Ext.P15 order dated 14.11.2024, the period of
appointment of the appellant from 01.10.2023 till 14.07.2024 was
also approved by the District Educational Officer. Therefore, the 1 st
part of that relief has lost its significance at present. From the
impugned judgment, we notice that Ext.P15 was not properly
taken note of by the learned Single Judge while holding that the
appointment of the appellant from 01.10.2023 has not been
approved.
13. Three vacancies of H.S.S.T arose in the school on
01.06.2024. From Ext.P11(b) document, we notice that the
vacancies in the post of H.S.S.T that arose are in H.S.S.T
(Zoology), H.S.S.T (History), H.S.S.T (Economics). There is no
dispute on the point that to the vacancy of H.S.S.T (Zoology) and
H.S.S.T (Economics), there were no qualified hands in the feeder
W.A.No.1260 of 2025 14 2025:KER:60458
category for by transfer appointment. At the same time, to the
post of H.S.S.T (History), the appellant, 7 th respondent and 8th
respondent are qualified, and the 7 th respondent has submitted
Ext.R5(b) representation seeking by-transfer appointment.
However, without considering that eligibility, the 5 th respondent
sent Ext.R5(a) letter dated 04.04.2024 to the Employment Officer,
Thiruvananthapuram, setting apart the vacancy of H.S.S.T
(History) for the disabled hands. When there is no law that
mandates setting apart of a particular vacancy for the disabled
hands, under the provisions of the Rights of Persons With
Disabilities Act 2016, the 5th respondent ought to have considered
setting apart any of the other 2 vacancies than H.S.S.T (History)
to that category.
14. When considering the submissions made at the Bar and
the materials on record, we find force in the submission of the
learned counsel for the appellant that the 5 th respondent set apart
the vacancy of H.S.S.T (History) itself to the person with
disabilities and issued Ext.R5(a) communication to the
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Employment Officer with some vested interest, especially when
considering the fact that there is a claimant for by-transfer
appointment to the post of H.S.S.T (History), who is the 7 th
respondent herein and she submitted Ext.R5(b) application dated
25.03.2024 for the same. As noted above, if the 7 th respondent is
promoted to the post of H.S.S.T (History) by giving by-transfer
appointment, then the appellant can be given appointment in the
school in the post of H.S.T (Social Science). The learned Single
Judge failed to properly appreciate these contentions while
disposing of the writ petition.
15. Having considered the pleadings and materials on
record and the submissions made at the Bar, we find that the
appellant has made out sufficient ground to allow this writ appeal
in part.
In the result, this writ appeal is allowed in part by setting aside
the impugned judgment dated 13.05.2025 passed by the learned
Single Judge in W.P.(C)No.22754 of 2024 and the writ petition is
allowed in part by directing the 5 th respondent Manager to
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resubmit a proposal to the Employment Officer by setting apart
any of the vacancy of H.S.S.T (Zoology) or H.S.S.T (Economics)
for the disabled hands. The 5th respondent shall consider Ext.R5(b)
application submitted by the 7 th respondent for her by-transfer
appointment to the post of H.S.S.T (History) and also the
appointment of the appellant to the post of H.S.T (Social Science)
that will arise by the by-transfer appointment of the 7th respondent
to the post of H.S.S.T (History), as expeditiously as possible at any
rate within a period of two months from the date of receipt of a
copy of this judgment.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MSA
W.A.No.1260 of 2025 17 2025:KER:60458
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE ORDER NO. GE-
JR1/585/2023-G.EDN DATED 05.09.2024
RESPONDENT ANNEXURES
Annexure R5(a) A true copy of the above Government Order
dated 08/05/2025
