Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 1174 (KER)

Shyma A M W/o Ajith N V v. State of Kerala

2025-05-13

N.NAGARESH

body2025
JUDGMENT : N.NAGARESH, J. 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 7 th respondent as HSST, who was then working on daily wage basis as HST, though she was not eligible to hold the post. 4. The 7 th 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 on 22.01.2024 approving the daily wage appointment of the 7 th 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 2 nd 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. 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. On 06.12.2024, the petitioner’s appeal was rejected by the 2 nd respondent as per Ext.P1 order. 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 7 th 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 7 th respondent therefore was not eligible for promotion as HSST. Exts.P1, P12 and P15 are therefore liable to be quashed. 9. The 5 th 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 7 th 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 7 th 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 7 th 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 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. 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 7 th respondent was appointed as HST on 01.06.2020, the appointment was only on daily wage basis 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 7 th 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 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 7 th 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 7 th 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 7 th 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 approved retrospectively with effect from 02.06.2022, she was qualified to be appointed as HSST as on 01.06.2023. 16. 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 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 7 th respondent as HSST, there was no approval for the 7 th 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 7 th respondent as HSST. For all the afore reasons, the writ petition fails and the writ petition is hence dismissed.