Kerala High Court
R.V.S.M.H.S.S vs M.G.Vinod Kumar on 3 February, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
WA.No.2138/2024
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2025:KER:12889
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 3RD DAY OF FEBRUARY 2025 / 14TH MAGHA, 1946
WA NO. 2138 OF 2024
AGAINST THE JUDGMENT DATED IN WP(C).NO.16646 OF 2018 OF HIGH COURT
OF KERALA
APPELLANT/S:
1 R.V.S.M.H.S.S
PRAYAR PO, OACHIRA, ALAPPUZHA-690574, REPRESENTED BY ITS
MANAGER., PIN - 690574
2 THE PRINCIPAL
R.V.S.M.H.S.S, PRAYAR PO, OCHIRA, ALAPPUZHA-690547., PIN -
690547
3 CHINCHULEKSHMI S.,
HSST(HISTORY), R.V.S.M.H.S.S, PRAYAR PO, OACHIRA, ALAPPUZHA-
690547
BY ADV V.A.MUHAMMED
RESPONDENT/S:
1 M.G.VINOD KUMAR
AGED 45 YEARS
S/O P.GOPALAKRISHNA PILLAI,H.S.A(SOCIAL SCIENCE),
R.V.S.M.H.S.S, PRAYAR PO,OCHIRA, ALAPPUZHA-690547, RESIDING
AT KULANGARASSERIL,NAMBARUVIKALA, ALUMKADAVU PO,
KARUNAGAPPALLY, KOLLAM-690573., PIN - 690547
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,DEPARTMENT OF
GENERAL EDUCATION, SECRETARIAT,THIRUVANANTHAPURAM-695001.,
WA.No.2138/2024
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PIN - 695001
3 THE DIRECTOR OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDING, SANTHI NAGAR,THIRUVANANTHAPURAM-
695001., PIN - 695014
4 THE REGIONAL DEPUTY DIRECTOR
OFFICE OF THE REGIONAL DEPUTY DIRECTOR,HIGHER SECONDARY
EDUCATION, CHENGANNUR-689121., PIN - 689121
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2025, THE COURT
ON 03.02.2025 DELIVERED THE FOLLOWING:
WA.No.2138/2024
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JUDGMENT
Dated this the 3rd day of February 2025
A.Muhamed Mustaque, J.
The question arising in this matter is whether a vacancy of
Higher Secondary School Teacher (HSST) (History) that arose on
1/6/2017 in R.V.M.HSS, an aided school, should be filled by direct
recruitment or by transfer.
2. Smt.Chinchulekshmi S., 3rd appellant in this case, was
appointed by direct recruitment. Approval of the appointment was
given to her as per the proceedings of the Regional Deputy Director,
Higher Secondary Education, Chengannur, dated 15/10/2018. In
respect of the same school, a similar issue arose which was
considered by a Division Bench of this Court in W.A.No.2609/2015
and connected case vide common judgment, dated 19/1/2016, and
the Court had held that by applying the ratio 1:3 between by-transfer
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and direct recruitees, the Manager was justified in filling up such
vacancy by direct recruitment. However, in a dispute that arose in
another matter regarding the application of the ratio, whether the
cadre strength has to be followed or it should be based on the
vacancy; the Division Bench by its judgment in W.A.No.1504/2015,
dated 17/8/2016, had held that it shall be based on vacancy and not
based on cadre strength. This was finally upheld by the Apex Court
in a reported judgment dated 4/12/2018. {See Girija v. Reshma
Parayil and Others, [2018 KHC 6960]}. By the time the above
judgment declaring the law was pronounced, Chinchulekshmi's
appointment was approved. The Government, taking note of the
declaration of law in Girija's case (supra), issued a circular on
08.05.2024 stating that, all appointments made based on the cadre
strength ratio of 1:3, and duly approved, need not be reopened.
3. Shri M.G.Vinod Kumar, a teacher working in High School
Assistant (Social Science), in fact, raised an objection against
approval of appointment of Chinchulekshmi; and succeeded before
this Court in the light of Girija's case (supra). It is questioning the
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judgment of the learned Single Judge, this appeal has been preferred
by the Manager, the Principal and Chinchulekshmi.
3. As rightly pointed out by the learned counsel for the first
respondent, a circular issued by the Government cannot obliviate the
law declared by the Apex Court. {See the judgment in
Commissioner of Central Excise, Bolpur v. Ratan Melting &
Wire Industries [2008 (4) KHC 877]}.
4. In the light of declaration of law in Girija's case (supra),
the first vacancy will have to go to the by-transfer appointee, and
therefore, the appointment of Chinchulekshmi cannot be sustained.
This was rightly interfered with by the learned Single Judge.
5. However, we note that if first respondent Vinod Kumar is
appointed as HSST, a consequent vacancy would arise. Therefore,
the appointment of Chinchulekshmi cannot be considered an illegal
appointment. It was followed by all other schools in the State as seen
from the circular issued by the Government. Chinchulekshmi's
appointment as HSST was also approved. In such circumstances, if
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there are no other better claimants than Chinchulekshmi and if she
is qualified, the Manager shall appoint Chinchulekshmi in the vacancy
that is likely to arise consequent upon Vinod Kumar's appointment
as HSST.
Thus, this appeal is disposed of without interfering with the
impugned order but with the directions as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
P.KRISHNA KUMAR, JUDGE
ms
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APPELLANTS ANNEXURES
Annexure I TRUE COPY OF THE ORDER NO. 7110/C6/2017/RDD/CNGR
DATED 15.10.2018 OF THE RDD HSE, CHENGANNUR
Annexure II TRUE COPY OF THE GOVERNMENT CIRCULAR NO.
JA2/13/2024-G.EDN DATED 08.05.2024
Annexure iii TRUE COPY OF THE JUDGMENT IN W.A. NO. 868/2019
DATED 17.07.2019
Annexure IV TRUE COPY OF THE JUDGMENT IN W.P. (C) NO.
36664/2007 DATED 03.07.2009
