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2015 DIGILAW 1438 (KER)

Sreelatha v. State of Kerala

2015-10-14

K.VINOD CHANDRAN

body2015
JUDGMENT : K. Vinod Chandran, J. 1. The petitioner in W.P.(C). No. 20737/2015 is aggrieved with the manner in which the appointments are made to the Higher Secondary School Teacher (H.S.S.T.) posts in the respondent school, specifically the ratio employed of 1:3 between; 'by transfer appointments' and direct recruitments. The controversy has arisen by reason of the method of appointment to the post of H.S.S.T. which is as provided in R. 4 of the Chapter XXXII of Kerala Education Rules ('KER' for short): Sl.No. Category Method of Appointment 2 Higher Secondary School Teacher (1) By transfer from Junior Lecturer in the subject concerned under the management/Higher Secondary School Teacher (Junior) (2) In the absence of qualified hands under clause (1) above, the vacancies shall be apportioned in the ratio 1:3 between appointment by transfer and direct appointment as detailed below: (i) (a) By transfer from High School Assistants, who possess the requisite qualifications, under the Educational agency. (b) In the absence of qualified persons under (a) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants who possess the requisite qualification in th subject concerned, under the Educational agency. (ii) By direct recruitment Note:- (i) When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under item 2(i) above such vacancies shall also be alloted for direct appointment. (ii) Appointments under item (I) above shall be made from select lists of qualified persons prepared on the basis of seniority and merit. The method of appointment hence is primarily by transfer from Junior Lecturer in the concerned subject. Only in the absence of such qualified hands could a different method be employed; which has to be in the ratio 1:3; between the qualified High School Assistants and Direct Recruits. It is also to be specifically noticed that the ratio is not to be applied to the cadre as such. The ratio, in the absence of qualified HSST (Junior), is to be applied apportioning the vacancies arising: between 'by transfer' and direct recruitment. 2. A High School Assistant has filed W.P.(C). No. 20737 of 2015 claiming that, the 1:3 ratio has to be maintained in the cadre and that, at any point of time for three direct recruitees, there should be one 'by transfer' appointee from H.S.A. The Manager (petitioner in W.P.(C). 2. A High School Assistant has filed W.P.(C). No. 20737 of 2015 claiming that, the 1:3 ratio has to be maintained in the cadre and that, at any point of time for three direct recruitees, there should be one 'by transfer' appointee from H.S.A. The Manager (petitioner in W.P.(C). No. 24924/2015) however contends that, the ratio has to be maintained in the appointments and not in the cadre, since the appointment 'by transfer' from High School Assistants and Direct Recruitment can be resorted to only when the qualified hands in the Higher Secondary School Teacher (Junior) is not available. 3. The facts to be noticed are that, the school was upgraded in the academic year 2000-01 when there were sanctioned four posts of H.S.S.T. and seven posts of H.S.S.T. (Junior). Obviously, since no appointment could be made from H.S.S.T. (Junior), all the four H.S.S.T. posts were filled up by the alternate method of appointment. The ratio of 1:3 could have been maintained but the Manager appointed two persons from High School Assistants, being one P.B. Girijamoni and S. Unnikrishnan, and two persons from the open merit. In 2001-02, seven posts in the H.S.S.T. (Junior) were upgraded as H.S.S.T. and there existed then 11 posts of H.S.S.T. In 2002-03 again, two additional posts were sanctioned, making the total posts of H.S.S.T. to be 13. Of the two appointments then made, one was from the High School Section and the other by direct recruitment. Hence as on 2003 when six appointments were made by the alternate method, there were three persons appointed from the High School Section more than satisfying the quota; of 1:3. The ratio then was 1:1 (3 by transfer and 3 direct recruitment). 4. Again in 2013-14 two further senior posts were sanctioned making the total 15. Both the said posts were filled up by direct recruitees. Hence out of eight, three were then, 'by transfer' from HSA and five by Direct Recruitment. Girijamoni retired on 31.03.2013, when again a direct recruitee was appointed. Then the ratio in the alternate method of appointment become 3:9; thus satisfying the ratio correctly as 1:3, is the contention of the Manager. Again a further vacancy arose by the retirement of one Lethadevi who was Junior H.S.S.T. who had been posted as H.S.S.T., on up-gradation. The said post is the bone of contention here. Then the ratio in the alternate method of appointment become 3:9; thus satisfying the ratio correctly as 1:3, is the contention of the Manager. Again a further vacancy arose by the retirement of one Lethadevi who was Junior H.S.S.T. who had been posted as H.S.S.T., on up-gradation. The said post is the bone of contention here. As to whether it should be conceded to the direct recruitees or filled up 'by transfer' from the High School Section. 5. The contention of the petitioner is that on Girijamoni's retirement and a direct recruitee being appointed, out of the 12 appointees, only two remaining in the cadre are persons appointed 'by transfer', and there are six direct recruits. This violates the 1:3 ratio, is the argument. This Court, however, is unable to countenance such a contention. The ratio prescribed cannot be said to be to the cadre, since what is provided is only an alternate method of appointment wherein a ratio would have to be followed, with reference to the vacancies, to which appointments are made. If the contention of the petitioner is accepted, then once an H.S.A. is appointed by transfer, for reason only of their being no qualified H.S.S.T. (Junior), then that would have to be always filled up by 'by transfer' appointment from High School Section. This, is not the intention in the prescription made for a method of alternate appointment which provides for apportioning of vacancies on the basis of the ratio provided. 6. Even going by the averments of the petitioner, the 10th post could be filled up by a direct recruitee, since the 1st, 5th, 9th and 13th posts are the entitlement of the teachers in the High School Section; to be appointed 'by transfer' to the post of H.S.S.T. The present appointment being to the 10th post, the petitioner cannot have a contention that the same has to be conceded to the High School Section. Already three appointments were granted to the High School Section out of the nine made satisfying the ratio of 1:3 provided in the alternate method of appointment. 7. In fact if the petitioner had staked a claim to the 9th post i.e., the one which fell vacant on the retirement of Girijamoni, the result would have been different. True, the Manager always made 'by transfer' appointments in excess of the ratio. 7. In fact if the petitioner had staked a claim to the 9th post i.e., the one which fell vacant on the retirement of Girijamoni, the result would have been different. True, the Manager always made 'by transfer' appointments in excess of the ratio. But that cannot disentitle a person entitled 'by transfer' to the vacancy reserved for that mode; as per the ratio prescribed. This is especially so since the Manager could then, anticipate the occurrence of vacancies and also could, consciously keep out an H.S.A., with reference to the retirement dates of the teachers in the High School Section, by making 'by transfer' appointments even to vacancies apportioned to be filled up by direct recruitment. 8. An illustration on the facts herein would be appropriate to put the issue in the proper perspective. The Manager in 2000-01 made two 'by transfer' appointments and two direct recruitments, when the ratio prescribed was 1:3. Hence the first vacancy due to 'by transfer' and another due to direct recruits was filled up 'by transfer'. Again in 2002-03 also when two vacancies arose one was conceded to 'by transfer' quite rightly since the same was the 5th vacancy. The 6th vacancy went to Direct Recruits. Both the vacancies that were additionally sanctioned in 2013-14, were the 7th and 8th vacancies which the Manager is entitled to fill up by direct recruitment. When Girijamoni retired on 31.03.2013; that was the 9th vacancy which ought to have gone to the 'by transfer' appointment. The fact that there was one other person already in the cadre, 'by transfer', would not have stood in the way of the H.S.A.'s from staking a claim to it. The ratio is to be applied to the vacancy and not to the cadre posts. That was by-passed. The mere fact that the Manager had made the requisite number of appointments would not have enabled the Manager, to fill up the 9th vacancy, apportioned by the Rule to 'by transfer' appointments; to be filled up by direct recruitment. However no challenge was made to that appointment. The apportionment of the vacancies as per the ratio mandates that the specific vacancies set apart for the 'by transfer' appointments ought to be filled up in that manner. However no challenge was made to that appointment. The apportionment of the vacancies as per the ratio mandates that the specific vacancies set apart for the 'by transfer' appointments ought to be filled up in that manner. But the petitioner sought to by-pass her claim when the 9th vacancy was filled up and staked a claim to the 10th vacancy which the Manager is entitled to fill up by direct recruitment. The petitioner cannot stake claim to the 10th vacancy which arose on 31.03.2014 by retirement, since that has to be filled up by direct recruitment. In fact even if the 10th vacancy is appointed on 'by transfer', the 13th vacancy filled up by the alternate method, for want of HSST (Junior) would have to go to the 'by transfer' appointment. On the findings rendered above, this Court concludes as follows: The orders in Exts. P17 in W.P.(C). No. 20737/2015 has to be upheld. Hence, W.P.(C). No. 20737/2015 is dismissed. W.P.(C). No. 24924/2015 is allowed. Exts. P3 is set aside. 10th post now coming up for appointment has to be conceded to the direct recruitees. No costs.