[Cites 8, Cited by 0]
Kerala High Court
Rajasree M vs State Of Kerala on 24 February, 2026
Author: Anil K. Narendran
Bench: Anil K. Narendran
W.A.Nos.1882 and 1829 of 2025 1
2026:KER:15909
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 24TH DAY OF FEBRUARY 2026 / 5TH PHALGUNA, 1947
WA NO. 1882 OF 2025
AGAINST THE JUDGMENT DATED 22.05.2025 IN W.P.(C) NO.23315
OF 2024 OF HIGH COURT OF KERALA
APPELLANT/WRIT PETITIONER:
JITHIN T
AGED 35 YEARS
S/O. VENUGOPALAN HST(ENGLISH),
THIRUVANGOOR HIGHER SECONDARY SCHOOL THIRUVANGOOR,
KOZHIKODE DISTRICT, PIN - 678304
BY ADV SHRI.V.A.MUHAMMED
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GENERAL EDUCATION
DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR OF GENERAL EDUCATION
DIRECTORATE OF GENERAL EDUCATION, JAGATHI,
THIRUVANANTHAPURAM, PIN - 695014
3 THE DEPUTY DIRECTOR OF EDUCATION
OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
KOZHIKODE, PIN - 673001
4 THE REGIONAL DEPUTY DIRECTOR OF EDUCATION
OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF EDUCATION,
KOZHIKODE, PIN - 673001
5 DISTRICT EDUCATIONAL OFFICER, VATAKARA
W.A.Nos.1882 and 1829 of 2025 2
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OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
KOZHIKODE, PIN - 673104
6 THE MANAGER
THIRUVANGOOR HIGHER SECONDARY SCHOOL THIRUVANGOOR,
KOZHIKODE DISTRICT, PIN - 678304
7 MUHAMMAD M K
MANATHAMKANDI HOUSE, IRINGATH P.O
KOZHIKODE, PIN - 673523
BY ADVS.
SRI.JAMES ABRAHAM (VILAYAKATTU)
SHRI.AMMU ASHOKAN
SMT. NISHA BOSE, SR. GP
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.01.2026,
ALONG WITH WA.1829 OF 2025, THE COURT ON 05.02.2026 DELIVERED THE
FOLLOWING:
W.A.Nos.1882 and 1829 of 2025 3
2026:KER:15909
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 24TH DAY OF FEBRUARY 2026 / 5TH PHALGUNA, 1947
WA NO. 1829 OF 2025
AGAINST THE JUDGMENT DATED 22.05.2025 IN W.P.(C) NO.18825
OF 2024 OF HIGH COURT OF KERALA
APPELLANT/WRIT PETITIONER:
RAJASREE M,
AGED 34 YEARS
W/O. JITHESH HST(ENGLISH), (NOW ON RETRENCHMENT)
THIRUVANGOOR HIGHER SECONDARY SCHOOL, THIRUVANGOOR,
KOZHIKODE DISTRICT, PIN - 678304
BY ADV SHRI.V.A.MUHAMMED
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GENERAL EDUCATION
DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR OF GENERAL EDUCATION
DIRECTORATE OF GENERAL EDUCATION, JAGATHI,
THIRUVANANTHAPURAM, PIN - 695014
3 THE DEPUTY DIRECTOR OF EDUCATION
OFFICE OF THE DDE, KOZHIKODE,
PIN - 673001
4 THE REGIONAL DEPUTY DIRECTOR OF EDUCATION
OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF EDUCATION,
KOZHIKODE, PIN - 673001
W.A.Nos.1882 and 1829 of 2025 4
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5 DISTRICT EDUCATIONAL OFFICER, VATAKARA
OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
KOZHIKODE, PIN - 673004
6 THE MANAGER
THIRUVANGOOR HIGHER SECONDARY SCHOOL THIRUVANGOOR,
KOZHIKODE DISTRICT, PIN - 678304
7 MUHAMMAD M K
MANATHAMKANDI HOUSE, IRINGATH P.O KOZHIKODE,
PIN - 673523
BY ADV
SMT. NISHA BOSE, SR GP
SRI.JAMES ABRAHAM - R7
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.01.2026,
ALONG WITH WA.1882 OF 2025, THE COURT ON 05.02.2026 DELIVERED THE
FOLLOWING:
W.A.Nos.1882 and 1829 of 2025 5
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JUDGMENT
Muralee Krishna S., J.
The petitioners in W.P.(C)Nos.18825 of 2024 and 23315 of
2024 filed the respective writ appeals under Section 5(i) of the
Kerala High Court Act, 1958, challenging the common judgment
dated 22.05.2025, passed by the learned Single Judge in those
writ petitions. Since the point to be considered in both the writ
appeals is the same, they are heard together and are being
disposed of by this common judgment. For convenience of
reference, the parties to these writ appeals are referred to as they
are referred to in W.A.No.1882 of 2025 and in the common
judgment of the learned Single Judge.
2. The point that arises for consideration in these writ
appeals is whether the learned Single Judge erred in holding that
the appointment of the 7th respondent as HSST (Junior) in English
while he was working as HSA English in the same school is a by-
transfer appointment?
3. The appellant in W.A.No.1882 of 2025 was appointed
as HSA (English) in a newly created post by the 6th respondent,
Manager, with effect from 03.06.2013, by Ext.P1 order dated
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03.06.2013. The 7th respondent was appointed as HSA (English)
initially on 13.07.2011. While the 7th respondent was continuing
in the said post without approval, a vacancy of HSST (Junior) in
English had arisen in the Higher Secondary Section of the School
due to the promotion of one Deepu K., HSST (Junior) in English,
as HSST English, in the leave vacancy of one Jamsal P. In the said
vacancy, the 7th respondent was appointed as HSST (Junior) with
effect from 22.10.2011. The appointment of the 7th respondent as
HSST (Junior) was approved for the period from 22.10.2011 to
30.03.2012 and from 04.06.2012 to 31.03.2016. The appellant
was appointed as HSA (English) in the vacancy that arose
consequent to the appointment of the 7th respondent as HSST
(Junior) in English with effect from 03.06.2013. However, later the
appellant was shifted to the regular vacancy of HSA (English)
against which one Rajasree was appointed, and the said Rajasree
was shifted to the vacancy of the 7th respondent, giving preference
to the senior appointee.
3.1. In the meantime, an issue arose regarding the approval
of one T.K. Vidhyasree as HSST (Junior) in Maths through by
transfer method, along with the claim of Smt. Shini T.K, who was
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appointed through direct recruitment. The said issue was relating
to 25% quota for by transfer appointment, and while considering
the said question, the nature of appointment of the 7th respondent
as HSST (Junior), i.e., whether it was a direct appointment or by
transfer appointment, was considered, and Ext.P5 order dated
28.05.2019 was passed by the Government. In Ext.P5 order, the
Government found that the 7th respondent was appointed as HSST
(Junior), by way of direct recruitment. In the meantime, the 2 nd
respondent, the Director of General Education, passed an order in
favour of Smt. Rajasree, who is the appellant in W.A.No.1829 of
2025, finding that the appointment of the 7th respondent has to
be restricted till 21.10.2011 in the cadre of HSA (English) and
declared that he is not entitled to claim under Rule 51A of Chapter
XIVA of the KER and also found that the appointment of the
appellant is to be approved continuously from 03.06.2013. Ext.P6
was the order passed by the 2nd respondent in this regard.
3.2. Exts.P5 and P6 orders were challenged by the 7th
respondent by filing W.P(C) No.28934 of 2022, and
W.P(C)No.6178 of 2022 before this Court. Later, as per Ext.P7
common judgment dated 16.10.2023, both the writ petitions were
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disposed of by this Court, setting aside Ext.P5 order to the extent
it entered a finding that the appointment of the 7th respondent as
HSST (Junior) in English was by direct recruitment. Similarly,
Ext.P6 order issued by the 2nd respondent was also set aside, to
the extent it affects the claim of the 7th respondent. While
interfering in Exts.P5 and P6 orders, this Court directed the
Government to take a fresh decision after affording an opportunity
of hearing to the affected parties. According to the appellant,
though he was not a party to the said writ petitions, he was
entitled to be heard while a decision was being taken based on
Ext.P7 judgment, as the decision affects his rights as well.
However, while conducting a hearing by the Government, the
appellant was not heard, and ultimately Ext.P9 order dated
16.05.2024 was passed, holding that the 7th respondent was
appointed as HSST (Junior), through a by transfer appointment.
Thus, the consequence of the Ext.P9 order is that, as the
appointment of the 7th respondent was found to be through by
transfer appointment, he would be entitled to claim a lien over the
post of HSA (English) to which he was originally appointed with
effect from 13.07.2011.
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3.3. It is also the case of the appellant that, as per the
seniority list of the school as on 01.01.2016, the appellant was the
12th HSA (English) against 13 HSA (English) posts sanctioned for
the year 2016-2017. During 2022-2023, one post was reduced,
and the appellant became the junior-most. The grievance of the
appellant is that, if the 7th respondent is given appointment as
HSA (English) based on the lien consequent to the finding in Ext.P9
order to the effect that his appointment was a by-transfer
appointment, the appellant is likely to be retrenched for want of
posts. Therefore, the appellant filed W.P.(C)No.23315 of 2024
under Article 226 of the Constitution of India, seeking a writ of
certiorari to quash Ext.P9 order dated 16.05.2024 issued by the
1st respondent and Ext.P3 appointment order of the 7th respondent
to the extent of approving the appointment of the 7th respondent
from 13.07.2011 onwards.
3.4. Similarly, the appellant in W.A.No.1829 of 2025, who
was appointed as HSA (English) on 15.07.2015, filed
W.P.(C)No.18825 of 2024, raising similar contentions as that of
the appellant in W.A.No.1882 of 2025, under Article 226 of the
Constitution of India seeking a writ of certiorari to quash Ext.P13
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order therein, which is produced as Ext.P9 in W.P.(C)No.23315 of
2024; a writ of mandamus directing the respondents 1 to 6 therein
to approve the appointment of the appellant in W.A.No.1829 of
2025 as HSA (English) with effect from 15.07.2015 onwards with
all consequential benefits; to declare that the appointment of the
7th respondent as HSST (Junior) in English in the leave substitute
vacancy from 22.10.2011 is through direct recruitment and has
no lien subsisting in the category of HSA (English); and to declare
that the approval granted to the 7th respondent as HSA (English),
vide Ext.P2 therein, which is produced as Ext.P3 in
W.P.(C)No.23315 of 2024, from 13.07.2011 onwards by
overlapping the period of approval of HSST (Junior), vide Ext.P3
approval order dated 01.02.2013, which is produced as Ext.P4 in
W.P.(C)No.23315 of 2024, as illegal.
4. The 4th respondent and the 7th respondent filed
counter-affidavits in the writ petitions supporting Ext.P9 order of
the Government. To the counter affidavit filed by the 7 th
respondent, the appellant filed a reply affidavit.
5. After hearing both sides and on appreciation of the
materials on record, by the impugned judgment dated
W.A.Nos.1882 and 1829 of 2025 11
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22.05.2025, the learned Single Judge dismissed the writ petitions.
Being aggrieved, the petitioners in both the writ petitions have
filed the present writ appeals.
6. Heard the learned counsel for the appellants, the
learned counsel for the 7th respondent and the learned Senior
Government Pleader.
7. The argument of the learned counsel for the appellants
is that in Indu T. K. v. Sharafudeen M. and Others [2011 (2)
KLT 368], a Division Bench of this Court held that only when a
teacher gets regular appointment and on completion of probation,
he is entitled to be treated as a permanent High School Teacher,
which qualifies him for appointment by transfer to the Higher
Secondary School. This judgment was not placed before the
learned Single Judge while passing the impugned judgment in
these writ petitions. Relying on Indu T. K. [2011 (2) KLT 368],
the 7th respondent cannot be held as qualified for by transfer
appointment to the post of HSST (Junior) since his probation in
the post of HSA (English) was not declared while he was appointed
as HSST (Junior) in English.
8. On the other hand, the learned counsel for the 7th
W.A.Nos.1882 and 1829 of 2025 12
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respondent as well as the learned Senior Government Pleader
would submit that the facts of Indu T. K. [2011 (2) KLT 368],
are entirely different and hence not applicable to the facts of the
instant case. The learned counsel relied on the judgment of this
Court in Chandri v. State [ILR 1981 (1) Ker. 208] and
submitted that Rule 6(a) of chapter XIV A of the Kerala Education
Rules 1959 provides qualified teachers in the lower grade
promoted to the higher grade under Rule 43 before completing
their probation shall be on probation in the higher grade as if
appointed under Rule 3 in that category and at the end of the
period of probation the manager may issue an order declaring him
to have satisfactorily completed his probation. Therefore, the 7 th
respondent cannot be considered as disqualified for by transfer
appointment as HSST (Junior).
9. The appointment of the 7th respondent as HSST
(Junior) in English was against the vacancy arose consequent to
the promotion granted to one Deepu K., who was appointed as
HSST (Junior) at the relevant time since the said Deepu K. was
promoted as HSST in English against the leave vacancy of one
Jamshal P. Later, when said Jamshal P., cancelled the leave and
W.A.Nos.1882 and 1829 of 2025 13
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reported for duty, Shri. Deepu K. was repatriated to his original
post of HSST (Junior), which resulted in the removal of the 7 th
respondent from the post of HSST (Junior). The aforesaid
development was the reason for the filing of the writ petitions
since the 7th respondent claimed lien over the post of HSA
(English) to which he was appointed on 13.07.2011 by Ext.P3
order. The apprehension of the appellant is that the appointment
of the 7th respondent in exercise of lien would adversely affect his
prospects, since there may be a possibility of his retrenchment.
Similar is the apprehension of the appellant in W.A.No.1829 of
2025. The appellants contend that the appointment of the 7th
respondent as HSST (Junior) was by way of direct recruitment,
since at the relevant time, the approval of the appointment of the
7th respondent as HSA (English) was not granted. Now, the
appellants further contend that the probation of the 7th respondent
as HSA (English) was not declared at the time of his appointment
as HSST (Junior) and for that reason, also his appointment as
HSST (Junior) can only be treated as a direct recruitment.
10. At the time of the appointment of the 7th respondent
as HSST (Junior), the request for the approval of the appointment
W.A.Nos.1882 and 1829 of 2025 14
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of the 7th respondent as HSA (English) was pending consideration
before the authorities concerned. In Ext.P9 order, the Government
has taken note of this aspect also, while holding that the delay in
granting the approval of appointment should not result in the
denial of the rights of persons concerned, if he is otherwise
eligible. Subsequent to the appointment of the 7th respondent as
HSST (Junior), his appointment as HSA (English) was approved by
the authorities concerned, confining the period of appointment
from 13.07.2011 to 21.10.2011. Immediately thereafter, the 6 th
respondent Manager submitted Ext.R7(a) appeal dated
28.06.2014, before the Director of Higher Secondary Education,
which resulted in Ext.R7(b) order dated 16.07.2014. In Ext.R7(a),
the Manager stated that the appointment of the 7th respondent as
HSST (Junior) in English was made by way of by-transfer
appointment. In Ext.R7(b), this contention of the Manager was
accepted, holding the appointment of the 7th respondent as HSST
(Junior) in English as a by-transfer appointment. However, later,
it was cancelled by Ext.R7(c) order dated 25.08.2014 issued by
the Director of Higher Secondary Education. Ultimately, by Ext.P9
order dated 16.05.2024, the Government has arrived at a
2026:KER:15909
conclusion that the appointment of the 7th respondent as HSST
(Junior) in English is a by-transfer appointment.
11. Rule 4(3) of Chapter XXXII of KER provides the method
of appointment of HSST (Junior), which is extracted hereunder;
"1. (i) By transfer from qualified High School Assistants in
the subject concerned under the Educational Agency.
(ii) In the absence of qualified hands under item (i) above,
by transfer from qualified Upper Primary School
Assistants/Lower Primary School Assistants in the subject
concerned under the Educational Agency and also
2. By direct appointment
Note (i) of Rule 4 (3) of Chapter XXXII of KER provides that
25% of the total posts shall be filled up by the method
specified in item
(i) above on seniority-cum-suitability basis and 75% of such
post shall be filled up by direct appointment.
(ii) When qualified persons are not available to fill up the
vacancies set apart for appointment by transfer under item
1 above, such vacancies also shall be allotted for direct
appointment."
12. According to the 7th respondent, he is the only qualified
person available at the relevant time for by-transfer appointment
in the 25% quota. There is no much dispute with regard to the
fact that at the time of appointment of the 7th respondent as HSST
(Junior), there were 4 HSST (Junior) posts and only one post was
W.A.Nos.1882 and 1829 of 2025 16
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unfilled, which arose consequent to the promotion granted to Sri.
Deepu K.
13. As mentioned hereinabove, now the dispute centres
around the issue whether the 7th respondent was eligible to be
appointed as HSST (Junior) without declaring his probation in HSA
(English).
14. In Chandri [ILR 1981 (1) Ker. 208], the petitioner
therein was qualified to hold the post of language teacher (Hindi)
in the High School was appointed in a leave vacancy by the 3rd
respondent, the Manager, Calicut Girls High School, from 23 rd
November 1972 to 31st January 1973. The petitioner was relieved
from that post when the vacancy terminated. During the academic
year 1977-78, as per the staff fixation order, a post of language
teacher (Hindi) was sanctioned for the said High School. The
petitioner made an application on 30th May 1977 in anticipation of
this post, which, as a matter of fact, was subsequently sanctioned
on 15th July 1977, claiming protection under Rule 51A of Chapter
14A of the Kerala Education Rules, 1959 (the rules). She also
made a further application dated 20th July 1977, a true copy of
which is Ext. P1. The 3rd respondent, however, appointed the 4th
W.A.Nos.1882 and 1829 of 2025 17
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respondent as a teacher in the Upper Primary section with effect
from 14th July 1977, and appointed the 4th respondent as a High
School Assistant with effect from 19th September 1977, keeping
the post sanctioned from 15th July 1977 vacant till then. The
petitioner objected to the appointment of the 4th respondent in the
sanctioned post. As the objection was not considered within a
reasonable time, she filed O. P. No. 3784 of 1977 before this Court
for a direction to the 2nd respondent, the District Educational
Officer, Kozhikode, to pass appropriate orders. In pursuance to
the direction given by this Court, the 2nd respondent disposed of
the objection, and that decision was in favour of the 4 th
respondent. Ext. P2 is the copy of the order, dated 21.01.1978,
passed by the 2nd respondent. The 2nd respondent, however,
cancelled Ext. P2 order, upholding the claim of the petitioner by a
subsequent order, dated 27th February 1978, a true copy of which
was marked Ext.P3. The petitioner had also filed an appeal before
the Regional Deputy Director of Public Instruction, Kozhikode, and
the 3rd respondent also had filed an appeal against Ext.P3 decision
of the 2nd respondent. Both the appeals were disposed of by the
Regional Deputy Director of Public Instruction by order, dated 2 nd
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May 1978, a true copy of which was marked as Ext.P4. By Ext.P4
order the claim of the petitioner was upheld, and the appeal by
the 3rd respondent was dismissed. Aggrieved by Ext. P4 decision,
the 3rd respondent took up the matter before the 1st respondent,
the State of Kerala. The Government upheld the contention of the
Manager by Ext. P8 order G. O. Rt. No. 2907/79/G. Edn., General
Education (E) Department, dated 18th July 1979. Ext.P8 order was
under challenge in that writ petition.
15. In Chandri [ILR 1981 (1) Ker. 208], this Court held
thus;
"4. The counsel for the petitioner submitted that the 3rd
respondent ought to have appointed the petitioner to the
post inasmuch as on 15th July 1977, when the vacancy
arose, the 4th respondent was only a probationer, having
only one day's service in the U. P. Section as a Language
Teacher (Hindi). He referred to the provisions contained in
R.2 of Chap.14(A) which lay down that appointment of
qualified hands shall be deemed to be acting till they are
confirmed. R.41 of Chap.14(A) lays down that a teacher who
has or is deemed to have completed his probation
satisfactorily shall be confirmed in any permanent vacancy
that may exist or arise in the grade with effect from the date
of commencement of continuous service or the date of
occurrence of the vacancy, whichever is later. R.6(a) of the
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same chapter provides that teachers appointed under R.3
shall be on probation for a total period of one year on duty
within a continuous period of two years. The submission
made by the counsel for the petitioner is that it is
inconceivable that a probationer in the position of the 4th
respondent, having only one day's service on the date of the
occurrence of the vacancy, or even if the date of
appointment is considered to be the relevant date, was
having only a little more than two months' service, could be
treated to have completed probation to be eligible for
promotion to a higher grade. I do not, however, find it
possible to agree with this line of reasoning inasmuch as,
rightly pointed out by the Government Pleader and the
counsel for the 3rd respondent, there is nothing in the rules
which requires that it is only those who have completed their
period of probation in the post they were holding that could
be promoted or appointed in a post higher than the one they
were holding. The indication on the other hand appears to
be the other way. R.6(a) provides inter alia that qualified
teachers in the lower grade promoted to the higher grade
under R.43 before completing their probation shall be on
probation in the higher grade as if appointed under R.3 in
that category; at the end of the period of probation the
manager may issue an order declaring him to have
satisfactorily completed his probation. Arguments were
advanced by the Government Pleader placing reliance on
the decision of this Court in Radhakrishna Kamath v. Cochin
T. D. Corporation 1976 KLT SN 31 to the effect that unlike
R.28(bb) of the Kerala State and Subordinate Services Rules
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there is no provision in the rules that the qualification should
be as on the date of occurrence of the vacancy, not on the
date of appointment. The relevant date, according to the
Government Pleader, is 19th September 1977 on which date
the 4th respondent was appointed, not on 15th July 1977
on which date the post was sanctioned and the vacancy
arose. The counsel for the petitioner submitted that in the
light of the dictum laid down by the Full Bench of this Court
in a subsequent decision, James Thomas and others v. The
Chief Justice, High Court of Kerala and others 1977 KLT 622
(FB) the decision relied on by the Government Pleader would
require reconsideration. Referring to the wording in
R.28(bb) of the Kerala State and Subordinate Services Rules
the Full Bench has held that it affords some indication that
the general rule is what is indicated by the concluding part
of R.28(bb). It also held that the general rule is that
promotion should be made vis a vis the date of occurrence
of the vacancy, not of the date of making the appointment.
I do not, however, think it necessary to go into this question
in this case, because the 4th respondent's qualification
remained the same whether it was on 15th July 1977 on
which date the vacancy arose, or on 19th July 1977 on which
date she was actually appointed. What emerges, therefore,
is that when the principle, is that where there is a conflict
between a claim under R.51A and a claim under R.43 of
Chap.14(A) of the rules, the former should give way to the
latter, the Government was justified in preferring the 4th
respondent to the petitioner for filling up the vacancy which
arose as a result of the sanction granted to the school of the
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3rd respondent in the High School section".
(Underline supplied)
16. In Indu T. K. [2011 (2) KLT 368], The short question
arose for consideration before the Division Bench of this Court was
whether the learned Single Judge was right in holding that the 1 st
respondent therein was appointed to the Higher Secondary School
as Junior Teacher (part time) on transfer basis from High School
entitling him to count his service in the High School for seniority
or whether the 1st respondent's appointment should be treated as
a direct recruitment, no matter he has obviously served in the
High School for some time.
17. In Indu T. K. [2011 (2) KLT 368], this Court held
thus:
"4. The admitted facts are that the 1st respondent was
appointed in a leave vacancy in the High School on
01.12.1999 and he continued up to 31.03.2000 i.e. till the
closure of the school for summer vacation. Again in the same
leave vacancy, the 1st respondent was appointed on
05.06.2000, and while continuing so, he was appointed as a
Part Time Higher Secondary School Teacher in a vacancy in
his subject i.e. Arabic, on 20.08.2000. The case of the 1st
respondent is that he is entitled to be treated as a Teacher
appointed by transfer under Ext.P8 Government Orders. On
the other hand, the contention raised by the appellant as well
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as the learned Government Pleader appearing for the State
and the Educational Authorities is that the 1st respondent's
appointment as a Part Time Teacher in the Higher Secondary
School cannot be treated as appointment by transfer
because his short term appointment for around 5 months in
the High School in a leave vacancy does not entitle him to be
treated as a regular High School Teacher, and so much so
his appointment in the Higher Secondary School as a Part
Time Teacher (Junior) should be treated as direct
recruitment. The short question to be considered is whether
the 1st respondent was qualified to be appointed as HSST on
transfer basis as on the date of appointment i.e. on
20.08.2000. Learned counsel for the appellant and learned
Government Pleader referred to R 3 & R 6(a) of Chapter XIVA
of the Kerala Educational Rules (hereinafter referred to as
the Rules for short), which provide that a High School
Assistant will have to be appointed as a Teacher on probation
and only on successful completion of probation for one year,
the Teacher's appointment gets confirmed. Admittedly, the
1st respondent was appointed in the High School in a leave
vacancy, and therefore he was not entitled to regularisation
even if he continued more than one year as a High School
Teacher in the leave vacancy. The benefit the 1st respondent
would have got by serving in the High School in the leave
vacancy for five months is preferential treatment for
appointment in the same school in a vacancy arising in the
future under R.51A of the Rules. Only when the 1st
respondent gets regular appointment in such a vacancy and
on completion of his probation he is entitled to be treated as
W.A.Nos.1882 and 1829 of 2025 23
2026:KER:15909
a permanent High School Teacher, which qualifies him for
appointment by transfer to the Higher Secondary School.
5. Learned counsel for the 1st respondent contended that Ext.
P8 Government Order does not prohibit appointment by
transfer of a High School Teacher working in a leave vacancy
to Higher Secondary School on transfer basis. We are unable
to accept this contention because appointment by transfer
can be given only to persons permanently employed in a
lower cadre and in this case, R.3 & R.6(a) of Chapter XIVA
of the Rules make it clear that a Teacher in the High School
becomes a permanent Teacher on completion of one year
probation. Therefore, the appointment of the 1st respondent
after five months' service in a leave vacancy in the High
School to the Higher Secondary School cannot be treated as
appointment by transfer, but should be treated as a direct
recruitment and necessarily all consequences will follow."
18. In Indu T. K. [2011 (2) KLT 368], the appointment
of the 1st respondent as HSA was in a leave vacancy, but in the
instant case, the appointment of the 7th respondent is a regular
appointment and not in a leave vacancy. At the time when the
appointment of the 7th respondent as HSST (Junior) was made,
the request for approval of the appointment of the 7th respondent
as HSA (English) was pending consideration before the authorities
concerned. Taking note of this aspect, in Ext.P9, it was observed
that delay on the part of the Educational authorities in considering
2026:KER:15909
the approval of appointment should not result in the denial of
rights of the person concerned if he is otherwise eligible.
Admittedly, the request for approval of appointment of the 7 th
respondent as HSA (English), which was pending consideration,
was approved on 03.06.2013. The delay in approving the
appointment was on the part of the authorities concerned.
19. Rule 6(a) of Chapter XIVA of KER does not apply to the
appointment of Higher Secondary school teachers, since the mode
of their appointment is governed by Rule 4(3) of Chapter XXXII of
KER, either by transfer or by direct recruitment as extracted
above. [See: Lilly V. A v. State of Kerala [2016 (2) KLT 649],
and Rajeswari Devi S. v. State of Kerala (2023 (2) KHC
589)]. In Indu T. K. [2011 (2) KLT 368] and Chandri [ILR
1981 (1) Ker. 208], it was Rule 6(a) of Chapter XIVA of KER that
was considered by this court. Therefore, those judgments are not
applicable to the facts of the instant case.
20. The learned Single judge considered the rival
contentions of the parties in their proper perspective. Even though
the judgment in Indu T. K. [2011 (2) KLT 368] was not placed
before the learned Single Judge, the said judgment has no bearing
2026:KER:15909
upon the facts of the instant case, for the reason stated above.
The contention of the appellant regarding not hearing him before
passing Ext.P9 order was also considered by the learned Single
judge in paragraph 17 of the impugned judgment, which reads
thus:
"17. As far as the petitioner in W.P.(C) No.23315 of 2024 is
concerned, he raised a specific contention that, in Ext.P7
judgment, while setting aside Exts.P5 and P6, this Court
directed the Government to consider and pass orders on the
questions relating to the nature of appointment of the 7th
respondent after hearing all the affected parties. It was
pointed out that despite the above direction, the petitioner
in W.P(C) No.23315 of 2024 was not heard even though he
was an affected party. However, as rightly contended by the
learned counsel for the 7th respondent, I do not find that any
interference is required on the basis of such contention for
the reasons hereinafter mentioned. First of all, the issue to
be decided therein was with regard to the nature of
appointment of the 7th respondent alone, which could be
decided even without hearing the petitioner. Admittedly, the
said petitioner is a junior appointee as he was appointed as
HSA English only on 03.06.2013, whereas the 7th
respondent was appointed as HSA on 13.01.2011. The
original appointment of the petitioner was against the
vacancy that arose consequent to the promotion
appointment of the 7th respondent as HSST (Jr.) as well. The
apprehension of the petitioner in W.P(C) No.23315 of 2024
W.A.Nos.1882 and 1829 of 2025 26
2026:KER:15909
is that, if the 7th respondent is granted appointment based
on the lien which he exercises consequent to the finding in
Ext.P9, the petitioner will be retrenched for want of post.
However, it is evident from the records that, the petitioner
is having the benefit of protection and he is already
deployed to another school as per Ext.R7(g) dated
24.08.2022. Therefore, the question of retrenchment of the
petitioner does not arise. As far as the petitioner in
W.P(C)No.18825 of 2024 is concerned, the said petitioner is
already retrenched for want of posts as the post which she
was holding was reduced during the year 2022-2023.
Therefore, I do not find any reason to entertain the said
contention".
Having considered the pleadings and materials on record and
the submissions made at the Bar, we find no illegality or
impropriety in the impugned judgment of the learned Single
Judge, which warrants interference by exercising appellate
jurisdiction.
In the result, these writ appeals stand dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MSA
W.A.Nos.1882 and 1829 of 2025 27
2026:KER:15909
APPENDIX OF WA NO. 1882 OF 2025
PETITIONER ANNEXURES
Annexure -I TRUE COPY OF THE PROCEEDINGS OF THE RDD HSE,
KOZHIKODE VIDE ORDER NO. A2/9937/13 DATED
07.11.2014
Annexure -II TRUE COPY OF THE DECISION REPORTED IN 2011
KHC 267 DATED 15.03.2011(INDU T. K. V.
SHARAFUDEEN M. AND OTHERS)
Annexure -III . TRUE COPY OF THE DECISION REPORTED IN 1979
KHC 602 DATED 21.02.1979 ( TARINIKAMAL PANDIT
AND OTHERS V. PERFULLA KUMAR CHATTERJEE)
Annexure -IV TRUE COPY OF THE DECISION REPORTED IN 1979
KHC 739 DATED 20.02.1979 (MERWANJI NANABHOY
MERCHANT V. UNIOIN OF INDIA AND OTHERS)
Annexure -V TRUE COPY OF THE DECISION REPORTED IN 1995
KHC 1318 DATED 28.07.1995 (ANIL KUMAR GUPTA
V. STATE OF UTTAR PRADESH AND OTHERS)
Annexure -VI TRUE COPY OF THE DECISION REPORTED IN 2015
KHC 4827 DATED 16.12.2015( SRI. JAGANNATH
TEMPLE MANAGING COMMITTEE V. SIDDHA MATH AND
OTHERS)
Annexure-VII TRUE COPY OF THE ORDER NO. ACD.
B1/10130/2014/HSE DATED 11.06.2014 OF THE
DIRECTOR
Annexure-VIII COPY OF THE G.O(RT) NO. 1347/2016/G.EDN.
DATED 07.04.2016
RESPONDENT ANNEXURES
Annexure R7(a) True copy of the Order No.
E.M.6/138/2025D.G.E. dated 28.8.2025
W.A.Nos.1882 and 1829 of 2025 28
2026:KER:15909
APPENDIX OF WA NO. 1829 OF 2025
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE PROCEEDINGS OF THE RDD HSE,
KOZHIKODE VIDE ORDER NO. A2/9937/13 DATED
07.11.2014
Annexure -II TRUE COPY OF THE DECISION REPORTED IN 2011
KHC 267 DATED 15.03.2011(INDU T. K. V.
SHARAFUDEEN M. AND OTHERS)
Annexure-III TRUE COPY OF THE DECISION REPORTED IN 1979
KHC 602 DATED 21.02.1979 ( TARINIKAMAL PANDIT
AND OTHERS V. PERFULLA KUMAR CHATTERJEE)
Annexure -IV TRUE COPY OF THE DECISION REPORTED IN 1979
KHC 739 DATED 20.02.1979 (MERWANJI NANABHOY
MERCHANT V. UNIOIN OF INDIA AND OTHERS)
Annexure -V TRUE COPY OF THE DECISION REPORTED IN 1995
KHC 1318 DATED 28.07.1995 (ANIL KUMAR GUPTA
V. STATE OF UTTAR PRADESH AND OTHERS)
Annexure -VI TRUE COPY OF THE DECISION REPORTED IN 2015
KHC 4827 DATED 16.12.2015( SRI. JAGANNATH
TEMPLE MANAGING COMMITTEE V. SIDDHA MATH AND
OTHERS)
Annexure -VII TRUE COPY OF THE ORDER NO. ACD.
B1/10130/2014/HSE DATED 11.06.2014 OF THE
DIRECTOR
Annexure-VIII TRUE COPY OF THE G.O(RT) NO. 1347/2016/G.EDN.
DATED 07.04.2016
