IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 WP(C).No. 25176 of 2010(V) -------------------------- PETITIONER(S): ---------------------- 1. N.V.VALSAN, HSST (JUNIOR)(MALAYALAM), GOVT.ACHUTHAN GIRLS H.S.S., CHALAPPURAM,KOZHIKODE. 2. SUJATHA V.R., HSST(JUNIOR)(MALAYALAM), GOVT.VOCATIONAL HIGHER SECONDARY SCHOOL, PULLANUR, VALLUVAMBRAM P.O., MALAPPURAM DISTRICT. 3. SOBHANA.M., HSST(JUNIOR)(MALAYALAM), G.H.S.S.IRIMBILIYAM, VALIYAKUNNU P.O., MALAPPURAM DISTRICT. 4. VATSALA.P., HSST(JUNIOR)(MALAYALAM), GOVT.JANATHA H.S.S.NADUVATTOM P.O., PATTAMBI. 5. VIJAYALAKSHMI K.P., H.S.S.T.(JUNIOR)(MALAYALAM), GOVT.J.N.M.H.S.S.PUDUPPANAM, VATAKARA, KOZHIKODE DISTRICT. 6. MANOHAR JAWAHAR K.K., H.S.S.T.(JUNIOR)(MALAYALAM), GOVT.MODEL H.S.S.KOZHIKODE, KOZHIKODE DIST. 7. RADHA V.P., H.S.S.T(JUNIOR)(MALAYALAM), G.R.H.S.S.KOTTAKKAL, MALAPPURAM DISTRICT. 8. KUNHIMOOSA.E., H.S.S.T.(JUNIOR)(MALAYALAM), G.V.H.S.S.PAYYOLI, KOZHIKODE DIST. WP(C).No. 25176 of 2010 9. NARAYANAN V.K., H.S.S.T.(JUNIOR)(MALAYALAM), G.H.S.S.KARUVANPOYIL, KOZHIKODE DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 25176 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the order dated 14.7.2010 issued by the 2nd respondent. Ext.P2 :- Copy of the seniority list prepared for the purpose of appointment by transfer of H.S.As as HSST. Ext.P3 :- Copy of the judgment dated 30.7.2010 in W.P.(C)No.16511/2010. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge K.T.SANKARAN, J. ------------------------------ W.P.(C).No.25176 OF 2010 ------------------------------ Dated this the 10th day of November, 2010 JUDGMENT The petitioners are working as HSST(Malayalam) Junior . They completed their period of probation in September and October, 2009. The petitioners relied on the decision reported in Abdussalam v. State of Kerala and others(ILR 2008(4) Kerala 270) to contend that they are entitled to be appointed as HSSTs. They apprehended that PSC hands may be appointed in the available 33 vacancies of HSST (Malayalam). 2. The reliefs prayed for by the petitioners in the Writ Petition are the following: i) to issue a writ of mandamus directing the respondents to appoint the petitioners as HSST(Senior)(Malayalam) against the vacancies of HSST (Senior)(Malayalam) available with effect from October, 2009; ii) to issue a writ of mandamus directing the respondents to refrain from filling up of vacancies in the cadre of HSST(Senior) W.P.(C).No.25176 OF 2010 2 (Malayalam) by any other means than by appointment by transfer of qualified HSST (Junior)(Malayalam) like the petitioners; iii) to issue a writ of mandamus directing the respondents to pass orders declaring completion of probation by respondents 2 to 6 and 8; iv) to issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fit on the facts and circumstances of the case.” 3. In Abdussalam v. State of Kerala and others, it was held thus: “4. Going by the rules, appointment to the post of H.S.S.T. can be made only by transfer from H.S.S.T.(Junior) in the subject concerned if such qualified hands are available. If H.S.S.T.(Junior) is not available, the rule permits appointment by transfer from H.S.A. and by transfer from qualified U.P.S.A. and L.P.S.A. and also by direct recruitment in the manner indicated therein. The petitioners state that they have successfully completed the period of probation. In some of the cases, the probation has not been declared. Their grievance is that the delay in declaration of their probation has caused hardship and impediment in getting appointment as H.S.S.T. Learned counsel for the petitioners relies on the decision of this court in Appukuttan Nair v. State of Kerala, wherein it was held that a person who has satisfactorily completed the period of probation should be adjusted to the substantive vacancy. It was held thus: “Their seniority in the cadre has to be reckoned from the date of commencement of probation. The delay in actual declaration of W.P.(C).No.25176 OF 2010 3 their probation due to administrative reasons and for no fault of the officers concerned can in no manner affect his seniority in the cadre. The delay in actual declaration of probation cannot have any effect on the seniority of the officer concerned.” The intervenors in some of these Writ Petitions are persons included in the Rank List published by the Public Service Commission and they seek appointment as H.S.S.T. by direct recruitment. The question of direct recruitment would arise only in the absence of qualified H.S.S.T.(Junior) in the subject concerned. It is also necessary that qualified H.S.S.T.(Junior) should have successfully completed their probation. The mere fact that there is delay in declaring the probation should not be taken as a disability to H.S.S.T(Junior) who are awaiting appointment as H.S.S.T., in getting the appointment which is otherwise due to them. 5. There cannot be any dispute that going by Rule 3 of the Special Rules, persons who are included in the Rank List for direct recruitment could not aspire for appointment as H.S.S.T. so long as candidates who satisfy the required qualification for appointment from the category of H.S.S.T. (Junior) are available. Now the question is whether the petitioners are eligible to be appointed as H.S.S.T. so long as they have necessary qualification in the subject concerned and so long as they have satisfactorily completed their period of probation. They are entitled to be considered for promotion as H.S.S.T. in any vacancy which arose after the date of completion of their probation. As regards this position, there is no dispute by the Government Pleader and by the counsel for the intervenors.” W.P.(C).No.25176 OF 2010 4 4. Going by the decision in Abdussalam v. State of Kerala and others, the petitioners are entitled to relief No.(i) in the Writ Petition. The Writ Petition is allowed to that extent. The qualified HSST (Juniors) after completion of their probation period will be entitled to be appointed as HSST (Malayalam) in the vacancies which arose after the period of completion of probation. The Writ Petition is disposed of with the above direction. Appropriate orders shall be issued by the respondents within a period of two months from the date of receipt of a copy of the judgment. K.T.SANKARAN, JUDGE. cms