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2025 DIGILAW 1341 (KER)

Jithin T. S/o. Venugopalan v. State of Kerala

2025-05-22

ZIYAD RAHMAN A.A.

body2025
JUDGMENT : [WP(C) Nos.23315/2024, 18825/2024] In both these writ petitions, the main question that arises for consideration is whether the appointment of the 7 th respondent in these writ petitions as HSST (Jr) in English with effect from 22.10.2011 was a direct recruitment or was it a by transfer appointment. Ext.P9 in W.P(C).No.23315 of 2024 is the order passed by the Government, wherein, it was found that the 7 th respondent was appointed in the vacancy of HSST (Jr) in English as a by transfer appointment. The petitioners in both these writ petitions are aggrieved by the said finding, as according to them, it would affect their rights to continue in the posts of HSA (English) in the same school. These writ petitions are submitted in such circumstances, challenging the aforesaid Government Order. Ext.P9 in W.P(C)No.23315 of 2024 is produced as Ext.P13 in W.P(C)No.18825 of 2024, (For convenience, the parties and the exhibits are referred to hereinafter as per the sequences as referred to in W.P(C).No.23315 of 2024). 2. The facts in brief are as follows: The petitioner in W.P(C)No.23315 of 2024 was appointed as HSA (English) in a newly created post by the 6 th respondent Manager, with effect from 03.06.2013. Ext.P1 is the said appointment order. The 7 th respondent was initially appointed as HSA (English) in the said school on 13.07.2011. While the 7 th respondent was continuing in the said post without approval, a vacancy of HSST (Jr.) in English had arisen in the Higher Secondary Section of the School due to the promotion of one Deepu K., HSST (Jr.) in English, as HSST English, in the leave vacancy of one Jamsal P. In the said vacancy, the 7 th respondent was appointed as HSST (Jr) with effect from 22.10.2011. Appointment of the 7 th respondent as HSST (Jr) was approved for the period from 22.10.2011 to 30.03.2012 and 04.06.2012 to 31.03.2016. 3. The petitioner was appointed as HSA (English) in the vacancy that arose consequent to the appointment of the 7 th respondent with effect from 03.06.2013. However, later he 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 7 th respondent, giving preference to the senior appointee. The said Rajasree is the petitioner in W.P.C.No.18825 of 2024 and her appointment was with effect from 15.07.2015. However, later he 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 7 th respondent, giving preference to the senior appointee. The said Rajasree is the petitioner in W.P.C.No.18825 of 2024 and her appointment was with effect from 15.07.2015. The 5 th respondent approved the appointment of Rajasree from 15.07.2015 to 31.03.2016 on the presumption that the 7 th respondent possesses a lien in the post of HST (English). 4. In the mean time, an issue arose regarding the approval of one T.K. Vidhyasree as HSST (Jr.) in Maths through by transfer method, along with the claim of Smt.Shini T.K, who was appointed on 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 7 th respondent as HSST (Jr), i.e., whether it was a direct appointment or by transfer appointment, was considered, and Ext.P5 order was passed. In Ext.P5, the Government found that, the 7 th respondent was appointed as HSST (Jr), 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, the petitioner in W.P(C) No.18825 of 2024, 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 XIV of the KER and also found that the appointment of the petitioner is to be approved continuously from 03.06.2013. Ext.P6 was the order passed by the 2 nd respondent in this regard. 5. Ext.P5 order was challenged by the 7 th respondent by filing W.P(C) No.28934 of 2022 and he also challenged Ext.P6 order by filing W.P(C)No.6178 of 2022 before this Court. Later, as per Ext.P7 common judgment, both the above writ petitions were 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 (Jr.) in English was by direct recruitment. Similarly, Ext.P6 order issued by the 2 nd respondent was also set aside, to the extent it affects the claim of the 7th respondent. Similarly, Ext.P6 order issued by the 2 nd 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 petitioner in W.P(C)No.23315 of 2024, he was not a party to the said writ petitions, but yet, 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 as per Ext.P7 judgment, the petitioner in W.P.(C) No.23315 of 2024 was not heard and ultimately Ext.P9 order was passed, by holding that, the 7 th respondent was appointed as HSST (Jr) , through a by transfer appointment. Thus, the consequence of Ext.P9 order is that, as the appointment of the 7 th 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. 6. It is also the case of the petitioner that, as per the seniority list of the school as on 01.01.2016, the petitioner was the 12 th HSA (English) against a 13 HSA (English) posts sanctioned for the year 2016-2017. During 2022-2023 one post was reduced and the petitioner became the junior most. Grievance of the petitioner is that, if the 7 th 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 by transfer appointment, the petitioner is likely to be retrenched for want of posts. Therefore, in these circumstances, the petitioner in W.P (C).No.23315 of 2024 is challenging Ext.P9 order. 7. As mentioned above, Smt.Rajasree, who is the petitioner in W.P(C)No.18825 of 2024 is also aggrieved by Ext.P9 order (Ext.P13 in W.P(C)No.18825 of 2024). As mentioned above, Smt.Rajasree was appointed as HST (English) on 15.07.2015. The contentions raised by Rajasree are also similar to the contentions raised by the petitioner in W.P(C).No.23315 of 2024. 8. The 7th respondent has filed a detailed counter affidavit in both these writ petitions supporting the findings entered into by the Government in Ext.P9 order. As mentioned above, Smt.Rajasree was appointed as HST (English) on 15.07.2015. The contentions raised by Rajasree are also similar to the contentions raised by the petitioner in W.P(C).No.23315 of 2024. 8. The 7th respondent has filed a detailed counter affidavit in both these writ petitions supporting the findings entered into by the Government in Ext.P9 order. It was averred that the 7 th respondent was issued with an appointment order as HSST (Jr.) on 22.10.2011, while he was working as HSA (English). At the relevant time, the approval of appointment of the 7 th respondent as HSA (English) was not approved and the same was pending consideration. Later, the 5 th respondent approved the appointment of the 7 th respondent as HSA (English) vide order dated 25.03.2013. It was averred that, the 7 th respondent was promoted to the post of HSST (Jr.) in English, as he was the only qualified hand for that appointment at that time and the said appointment was approved by the 5 th respondent as well. Ext.P4 is the approval of appointment of the 7 th respondent as HSST (Jr.). However, as the vacation salary for 2011 was denied in Ext.P4, the 6th respondent manager filed an appeal against the same before the Director of Higher Secondary Education and the said appeal was allowed as per Ext.R7(b) order holding that the appointment of the petitioner was by way of by transfer. However, immediately thereafter, Ext.R7(b) order was recalled by the Director of Higher Secondary Education, on the basis of a complaint received from another person and Ext.R7(c) is the said order. Against Ext.R7(c), the 6th respondent filed a revision petition before the Government, the 1 st respondent. But the 1 st respondent issued Ext.R7(d), rejecting the contentions of the 6 th respondent. Challenging Ext.R7(d), the 7th respondent filed W.P.(C) No.20623 of 2016 before this Court and the said writ petition was disposed of along with connected W.P.C.No.17750 of 2015 by setting aside Ext.R7(d) by directing the respondent therein to approve the appointment of the 7 th respondent to the post of HSST (Jr.) from 22.10.2011 onwards and directed to grant him vacation salary. Ext.R7(e) is the said judgment. Ext.R7(e) is the said judgment. Even though some of the parties in W.P.(C) No.17750 of 2015, which was disposed of by Ext.R7(e) judgment along with W.P. (C) No.20623 of 2016 filed by the petitioner, challenged the judgment by filing W.A.No.483 of 2018, in the judgment rendered by the Division Bench, it was clarified that, the appellants therein were not aggrieved by the directions issued in the common judgment in favour of the 7 th respondent herein. Ext.R7(f) was the judgment rendered in the said writ appeal. On the basis of Ext.R7(f) judgment, the 1 st respondent heard the parties and passed Ext.P5 order, wherein the 1 st respondent found that the appointment of the 7 th respondent as HSST (Jr.) English was not a direct recruitment. According to the 7 th respondent, the said order was passed without hearing them. In the mean time, Ext.P6 order was also passed by the 2 nd respondent based on the Ext.P5 order. Thus, the 7th respondent filed W.P.(C) No.28934 of 2022, challenging Ext.P5 and W.P(C) No.6178 of 2022 challenging Ext.P6, which resulted in Ext.P7 common judgment quashing Exts.P5 and P6 with the directions as referred to above. Now Ext.P9 is passed by upholding the contentions of the 7 th respondent. According to the 7 th respondent, the said legally sustainable and no interference is required. 9. A reply affidavit was submitted by the petitioner to the counter affidavit submitted by the 7th respondent. 10. Heard Sri.R.K.Muraleedharan, learned counsel for the petitioners in both these writ petitions, Sri.K.M.Faisal, learned Government Pleader, Sri.V.N.Rameshan Nambisan, learned counsel for the 6 th respondent and Sri.James Abraham, learned counsel for the 7 th respondent. 11. The basic question that arises for consideration is whether the appointment of the 7 th respondent as HSST (Jr.) with effect from 22.10.2011 was by way of direct recruitment or a by transfer appointment. Significance of the aforesaid question from the point of view of the petitioners herein is that, the appointment of the 7 th respondent as HSST (Jr.) English was against the vacancy arose consequent to the promotion granted to one Deepu K., who was HSST (Jr.) at the relevant time. Significance of the aforesaid question from the point of view of the petitioners herein is that, the appointment of the 7 th respondent as HSST (Jr.) English was against the vacancy arose consequent to the promotion granted to one Deepu K., who was HSST (Jr.) at the relevant time. The said Deepu K. was thus promoted as HSST against the leave vacancy of one Jamsal P. As Jamsal cancelled the leave and reported for duty, Sri.Deepu K. was repatriated to his original post of HSST (Jr.) which resulted in the removal of the 7 th respondent from the post of HSST (Jr.). Thus, if the appointment of the 7 th respondent as HSST (Jr.) on 22.10.2011 is treated as direct recruitment, he cannot claim any lien over the post of HSA (English) to which he was originally appointed on 13.07.2011. On the other hand, if the finding of the Government in Ext.P9 that the said appointment was by way of by transfer, the 7 th respondent would be entitled to claim a lien over the post of HSA (English) in which event, he has to be given appointment as such. The apprehension of the petitioners is that, the appointment of the 7 th respondent in exercise of his lien, would adversely a prospects of the petitioners in these writ petitions. 12. When considering the aforesaid question, one of the crucial aspects to be noticed is that, the specific case of the petitioners is that the appointment of the 7 th respondent as HSST (Jr.) was by way of direct recruitment, as at the relevant time, the approval of appointment of the 7 th respondent as HSA(English) was not approved. Therefore, according to the petitioners, he could not have made any claim for a by transfer appointment as HSST (Jr), as the same could have been made only for persons who are holding a regular approved post. However, the crucial aspect to be noticed in this regard is that, the documents would suggest that the original appointment of the 7 th respondent as HSST (Jr) was as a direct recruitment and apparently such a mode of appointment was adopted because of the fact that at the relevant time, the approval of appointment of the 7 th respondent as HSA (English) was pending consideration. Subsequent to the appointment of the 7 th respondent as HSST (Jr.), his appointment as HSA (English) was approved by the authorities concerned, confining the period of appointment from 13.07.2011 to 21.10.2011. The period was restricted to 21.10.2011 because of the fact that he was granted appointment as HSST (Jr.) with effect from 22.10.2011. 13. Immediately thereafter, the 6 th respondent manager submitted Ext.R7(a) before the Director of Higher Secondary Education, which culminated in Ext.R7(b) order. In Ext.R7(a), one of the relevant requests was to treat the appointment of the 7 th respondent as HSST (Jr) in (English) with effect from 22.10. 2011 as the one made by way of a by transfer appointment. The same was considered positively, and Ext.R7(b) was passed holding that the 7 th respondent’s appointment was by way of by transfer. However, later, the same was cancelled by Ext.R7(c), which, after various levels of litigation, now culminated in Ext.P9, wherein the Government found that the appointment of the 7 th respondent as HSST(Jr) in English was a by transfer appointment. 14. When going through the statutory stipulations in this regard, it is to be noted that, as per the Rule 4(3) of Chapter XXXII of Kerala Education Rules , 25% of the total vacancies of HSST (Jr.) have to be filled up through by transfer appointment from the HSTs and HSAs eligible for appointment based on the seniority. It is discernible from the various documents produced, including the orders passed by the Educational authorities concerned that, at the time of the appointment of the 7 th respondent as HSST (Jr.), there were four HSST (Jr.) posts. However, none of the posts were filled up by way of by transfer appointments. Going by the statutory stipulations in Rule 4(3) of Chapter XXXII KER referred to above, it was mandatory on the part of the authorities concerned to fill up 25% of the posts by way of by transfer appointment. Therefore, since at the relevant time four posts were available, it was obligatory on the part of the authorities concerned to fill up one vacancy by way of by transfer appointment. It is discernible from the records that, there is apparently no dispute that the 7 th respondent was the only eligible candidate at the time to be given appointment by way of by transfer. 15. It is discernible from the records that, there is apparently no dispute that the 7 th respondent was the only eligible candidate at the time to be given appointment by way of by transfer. 15. Of course, the petitioners have a specific case that, at the time when the 7 th respondent was appointed as HSST (Jr.), one Smt.Seena Pallothantavide had the eligibility to be appointed as HSST (Jr) and she was senior to the 7 th respondent. According to the petitioners, as the said Seena who was senior to the 7th respondent, obtained SET qualification during the month of March 2004, she should have been considered for appointment as HSST (Jr.), if the appointment was to be made by way of by transfer. However, from the report of the Educational authorities as referred to in Ext.P9, it is discernible that even though the said Seena acquired the SET qualification during the month of March 2004, necessary endorsement in this regard was made in the official records only on 02.12.2014. Moreover, the said Seena did not put forward any claim at any point of time. Therefore, the contention of the 7 th respondent that, he was the only eligible candidate to be considered for the by transfer appointment, is only to be accepted and upheld. 16. Similarly, it is also evident from the records that, at the time when the appointment of the 7 th respondent as HSST (Jr.) was made, the request for approval of the appointment of the 7 th respondent as HSA (English) was pending consideration before the authorities concerned. This aspect was specifically taken note of by the Government in Ext.P9 and it was observed that, delay on the part of the Educational authorities in considering the approval of appointment, should not result in the denial of rights of the person concerned, if he is otherwise eligible. I find that the said finding is rational and legally sustainable. Admittedly, the request for approval of appointment of the 7 th respondent as HSA (English) was pending consideration and the same was approved on 03.06.2013. Therefore, merely because of the delay on the part of the authorities concerned, in approving the appointment, the legitimate rights of the 7 th respondent cannot be defeated. 17. Admittedly, the request for approval of appointment of the 7 th respondent as HSA (English) was pending consideration and the same was approved on 03.06.2013. Therefore, merely because of the delay on the part of the authorities concerned, in approving the appointment, the legitimate rights of the 7 th respondent cannot be defeated. 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 7 th 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 7 th 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 7 th 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 7 th 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 7 th respondent as HSST (Jr.) as well. The apprehension of the petitioner in W.P(C) No.23315 of 2024 is that, if the 7 th 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. 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. Thus, after considering all the relevant aspects, I find that the petitioners could not make out any justifiable grounds to interfere with the Ext.P9 order passed by the Government. Accordingly, I do not find any merits in these writ petitions and accordingly, these writ petitions are dismissed.