Shyma A M vs State Of Kerala
2025 Latest Caselaw 188 Ker

Kerala High Court

Shyma A M vs State Of Kerala on 13 May, 2025

Author: N.Nagaresh

Bench: N.Nagaresh

                                           2025:KER:33535

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                        PRESENT

          THE HONOURABLE MR.JUSTICE N.NAGARESH

 TUESDAY, THE 13TH DAY OF MAY 2025 / 23RD VAISAKHA, 1947

                WP(C) NO. 44577 OF 2024

PETITIONER:

         SHYMA A M
         AGED 40 YEARS
         W/O AJITH N V,
         WORKING AS HST (MATHS), VANNERY HSS,
         PUNNAYURKULAM, PERUMPADAPPU P.O.,
         MALAPPURAM DISTRICT, PIN: 679 580.,
         RESIDING AT NTHAMGATTUVALAPPIL (H),
         KOLOLAMBA P.O., EDAPAL,
         MALAPPURAM DISTRICT, PIN - 679576

         BY ADVS.
         SRI. SAJITH KUMAR V.
         SRI. VIVEK A.V.


RESPONDENTS:

    1    STATE OF KERALA
         REPRESENTED BY SECRETARY TO GOVERNMENT,
         DEPARTMENT OF HIGHER SECONDARY EDUCATION,
         GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
         STATUE, THIRUVANANTHAPURAM, PIN - 695001

    2    THE DIRECTOR OF GENERAL EDUCATION
         DEPARTMENT OF HIGHER SECONDARY EDUCATION,
         GOVERNMENT OF KERALA, THIRUVANANTHAPURAM,
         PIN - 695014

    3    THE REGIONAL DEPUTY DIRECTOR
         DEPARTMENT OF HIGHER SECONDARY EDUCATION,
         UP HILL, MALAPPURAM, PIN - 676505
                                              2025:KER:33535
WP(C) No.44577 of 2024
                           2



    4    THE DEPUTY DIRECTOR OF EDUCATION
         OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
         MALAPPURAM, KOTTAPPADY DOWN HILL, MALAPPURAM,
         PIN - 676505

    5    THE VANNERY HIGHER SECONDARY SCHOOL
         REPRESENTED BY ITS MANAGER, PUNNAYURKULAM,
         PERUMPADAPPA P.O., PIN - 679580

    6    THE PRINCIPAL
         VANNERY HIGHER SECONDARY SCHOOL,
         PUNNAYURKULAM, PERUMPADAPPA P.O.,
         PIN - 679580

    7    ANJU P. JAISON
         HSST (MATHS), VANNERY HIGHER SECONDARY SCHOOL,
         PUNNAYURKULAM, PERUMPADAPPA P.O., PIN - 679580


         BY ADVS.
         SRI. K.SUJAI SATHIAN
         SRI. R.K.MURALEEDHARAN
         SMT. PREETHI. P.V.(K/1819/1999)
         SMT. MARY LIYA SABU(K/001533/2018)
         SMT. AISWARYA S. ASHOKAN(K/678/2021)
         SRI. NEERAJ KRISHNA KUMAR(K/1635/2024)
         SMT. ANIMA M., GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 24.03.2025 AND THE COURT ON 13.05.2025 DELIVERED THE
FOLLOWING:
                                               2025:KER:33535
WP(C) No.44577 of 2024
                             3




                         JUDGMENT

Dated this the 13th day of May, 2025

The petitioner is working as HST (Maths) in the 5 th

respondent-School. She is aggrieved by the appointment of a

daily wage employee against the vacancy of HSST (Maths).

2. The petitioner states that she joined service

in UP Section on 06.06.2019. She was subsequently

promoted as HST (Maths) on 01.06.2020. The petitioner

possesses M.Sc. Degree in Maths, KTET Category II and III

and SET. She is therefore fully eligible to be appointed as

HSST (Maths).

3. A vacancy of HSST (Maths) arose on

31.05.2023. The Manager of the School, as per Ext.P2 order

dated 01.06.2023, appointed the 7th respondent as HSST, 2025:KER:33535

who was then working on daily wage basis as HST, though

she was not eligible to hold the post.

4. The 7th respondent had worked on daily

wage basis from 02.06.2022 to 31.03.2023. She was not

working as on 01.06.2023. Her temporary service on daily

wage basis is not liable to be considered for appointment to

the post of HSST. The petitioner submitted Ext.P3

representation dated 01.03.2024 to the 3 rd respondent-

Regional Deputy Director. Though Ext.P3 representation has

not been considered, the Regional Deputy Director has

rejected approval to the appointment of the 7 th respondent as

per Ext.P4 order dated 29.05.2024.

5. In spite of Ext.P4, the petitioner was not

granted appointment as HSST. The petitioner therefore

submitted Ext.P5 representation dated 06.06.2024 to the 2 nd

respondent-DGE. In the meanwhile, Ext.P6 order was issued 2025:KER:33535

on 22.01.2024 approving the daily wage appointment of the

7th respondent. Ext.P6 made it clear that the 7 th respondent

will not be eligible for benefits available to the regular

employees including increments till the appointment is

regularised.

6. Subsequently, the petitioner submitted

Ext.P8 representation dated 01.06.2024 to the 5 th

respondent-Manager of the School. The request of the

petitioner was rejected as per Ext.P9 order dated 29.05.2024

of the Regional Deputy Director. Though the petitioner filed

W.P.(C) No.23789/2024 challenging Ext.P9, the writ petition

was disposed of by this Court as per Ext.P10 judgment dated

03.07.2024 directing the 2nd respondent to pass orders on the

representation of the petitioner. On 06.12.2024, the

petitioner's appeal was rejected by the 2 nd respondent as per

Ext.P1 order.

2025:KER:33535

7. The counsel for the petitioner argued that

she became eligible and qualified for appointment to the post

of HSST (Maths) with effect from February, 2024. The

appointment of the 7th respondent to the post of HSST (Maths)

was rejected as per Ext.P4 order dated 29.05.2024. As on

the date of Ext.P4 order, the petitioner was the sole person

fulfilling the eligibility and qualifications for appointment to the

post. However, respondents 2 to 5 have arbitrarily denied

promotion to the petitioner.

8. The counsel for the petitioner further argued

that regularisation of service / declaration of probation is an

essential tenet of service for consideration for promotion. The

7th respondent therefore was not eligible for promotion as

HSST. Exts.P1, P12 and P15 are therefore liable to be

quashed.

2025:KER:33535

9. The 5th respondent-School submitted that the

vacancy of HSST arose on 01.06.2023. The 5 th respondent

issued notice on 05.06.2023 informing the teaching staff who

are qualified to hold the post of HSST (Maths). The petitioner

did not make any claim. The 7th respondent pointed out that

her appointment as HST (Mathematics) was approved on a

regular pay scale as per Ext.R7(d) order dated 11.08.2024.

The 7th respondent was appointed as HSST (Maths) as per

Ext.R7(c) order dated 01.06.2023.

10. I have heard the learned counsel for the

petitioner, the learned Government Pleader representing

respondents 1 to 4, learned counsel appearing for the 5 th

respondent and the learned counsel for the 7th respondent.

11. The petitioner was appointed as HST

(Maths) on 01.06.2020. The petitioner possesses M.Sc.

Degree in Maths, KTET Category II and III and SET. The 7 th 2025:KER:33535

respondent was appointed as HST (Maths) on 02.06.2022

against a retirement vacancy which arose on 31.03.2020.

Approval was granted only on a daily wage basis from

02.06.2022 to 31.03.2023. The vacancy of HSST (Maths)

arose on 01.06.2023.

12. The petitioner did not possess SET as on

01.06.2020, which is a mandatory qualification for

appointment as HSST as per Rule 6(2)(iii), Chapter XXXII of

the KER. The petitioner acquired SET only on 29.02.2024. As

on the date of occurrence of vacancy or as on the date of

filling up the vacancy, the petitioner was not qualified for

appointment as HSST. Therefore, the petitioner has no right

to claim appointment as HSST.

13. The contention of the petitioner is that

though the 7th respondent was appointed as HST on

01.06.2020, the appointment was only on daily wage basis 2025:KER:33535

and approval for the appointment of the 7 th respondent as

HSST was rejected as per Ext.P4 on 29.05.2024. The

petitioner was fully qualified for appointment as HSST as on

that date and hence, the petitioner ought to have been

promoted as HSST with effect from 29.05.2024. The 7 th

respondent was working on daily wage basis as on

01.06.2023 and her probation was not declared when she was

promoted as HSST. Therefore, the 7 th respondent was not

eligible to be appointed as HSST.

14. To address this issue, one should consider

the circumstances under which the 7 th respondent was

appointed as HST on daily wage basis and the subsequent

orders passed by the educational authorities. The

appointment of the 7th respondent was made on daily wage

basis since there existed an issue of appointments of Persons

with Disabilities in the School. As per Ext.P7(b) judgment in 2025:KER:33535

WA No.1445/2022, a Division Bench of this Court clarified the

position and directed to approve the appointments in the

vacancies arose after 18.11.2018 and 08.11.2021

provisionally.

15. The 7th respondent was appointed as HST

on 02.06.2022 against a vacancy which arose before

08.11.2021, but the District Educational Officer approved the

appointment of the 7th respondent only with effect from

01.06.2023. Pursuant to Ext.P7 judgment, the petitioner's

appointment as HST was approved provisionally on scale of

pay basis for the period from 02.06.2022. It was thereafter the

7th respondent was appointed as HSST by-transfer with effect

from 01.06.2023. The daily wage appointment of the 7 th

respondent was provisionally approved with effect from

02.06.2022 as per Ext.R7(d)order dated 11.08.2024.

Therefore, since the petitioner's appointment as HST is 2025:KER:33535

approved retrospectively with effect from 02.06.2022, she

was qualified to be appointed as HSST as on 01.06.2023.

16. The petitioner cannot now claim that she

should be appointed as HSST since as on the actual date of

appointment of the 7th respondent as HSST, there was no

approval for the 7th respondent's appointment. Ext.R7(d) will

operate retrospectively. The petitioner cannot stake claim for

appointment as HSST for further reason that the petitioner did

not possess requisite qualifications for appointment as HSST

as on the date of appointment of the 7th respondent as HSST.

For all the afore reasons, the writ petition fails and the

writ petition is hence dismissed.

Sd/-

N.NAGARESH JUDGE spk 2025:KER:33535

APPENDIX OF WP(C) 44577/2024

PETITIONER'S EXHIBITS

Exhibit P1 A TRUE COPY OF THE ORDER NO.

HSE/5912/2024-ACDA4 DATED 06.12.2024 ISSUED BY THE 2ND RESPONDENT

Exhibit P2 A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2023 ISSUED TO THE 7TH RESPONDENT BY THE 5TH RESPONDENT

Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED 01.03.2024 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT

Exhibit P4 A TRUE COPY OF THE ORDER NO.

RDDHSE/MLPM/1540/2023-D DATED 29.05.2024 ISSUED BY THE REGIONAL DEPUTY DIRECTOR, MALAPPURAM

Exhibit P5 A TRUE OF THE REPRESENTATION DATED 06.06.2024 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

Exhibit P6 A TRUE COPY OF THE ORDER NO.

B3/55589/2023 DATED 22.01.2024 ISSUED ON BEHALF OF THE DISTRICT EDUCATIONAL OFFICER, TIRUR

Exhibit P7 A TRUE COPY OF THE JUDGMENT DATED 21.06.2024 IN W.P.(C) NO. 21360/2024 FILED BY THE 7TH RESPONDENT

Exhibit P8 A TRUE COPY OF THE REPRESENTATION DATED 01.06.2024 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT 2025:KER:33535

Exhibit P9 A TRUE COPY OF THE LETTER NO.

                  RDDHSE/MLPM/1355/2024-D               DATED
                  29.05.2024    ISSUED    BY    THE       3RD
                  RESPONDENT

Exhibit P10       A TRUE COPY OF THE JUDGMENT DATED

03.07.2024 IN W.P.(C) NO. 23789/2024 OF THIS HON'BLE COURT

Exhibit P11 A TRUE COPY OF THE REPRESENTATION DATED 31.08.2024 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT

Exhibit P12 A TRUE COPY OF THE CIRCULAR NO.

DGE/15133/2023(1)-H2-PART(1) DATED 30.11.2024 ISSUED BY THE 2ND RESPONDENT

Exhibit P13 A TRUE COPY OF THE G.O.(P) NO.

18/2018/SJD DATED 18/11/2018 ISSUED BY 1ST RESPONDENT

Exhibit P14 A true copy of the G.O.(P) No. 19/2021/GEDN dated 08/11/2021 issued by the 1st Respondent

Exhibit P2(a) A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2023 ISSUED TO THE 7TH RESPONDENT BY THE 5TH RESPONDENT

Exhibit P15 A TRUE COPY OF THE DGE/15133/2023-H 2- PART (1) DATED 22.02.2025 ISSUED BY THE 2ND RESPONDENT

RESPONDENTS' EXHIBITS

Exhibit-R7(a) TRUE COPY OF THE APPOINTMENT ORDER DATED 02.06.2022 2025:KER:33535

Exhibit-R7(b) TRUE COPY OF THE RELEVANT PAGES OF THE JUDGMENT IN WA NO. 1445/2022 DATED 13.03.2023

Exhibit-R7(c) TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2023

Exhibit-R7(d) TRUE COPY OF THE ORDER DATED 11.08.2024 ISSUED BY THE DEO, TIRUR

Exhibit-R7(e) TRUE COPY OF THE JUDGMENT IN WP(C) NO.

                  45980/2024 DATED 20.12.2024

Exhibit R7(f)     TRUE COPY OF THE    REQUEST SUBMITTED
                  BEFORE   THE 3RD    RESPONDENT  DATED
                  06.01.2025