IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 W.P(C).No. 31366 of 2008(H) ---------------------------------- PETITIONERS: ---------------- 1. PRABHA VASUDEV.G., D/O.G.VASUDEVAN NAIR, AGED 34 YEARS, RESIDING AT PREETHI NIVAS, PUNNAPRA NORTH P.O., ALAPPUZHA 688014, NOW WORKING AS HSA (PHYSICAL SCIENCE)-PHYSICS, GOVERNMENT HIGH SCHOOL, PUNNAPRA NORTH P.O., ALAPPUZHA DISTRICT. 2. LAKSHMI.V.RADHAKRISHNAN, D/O.RADHAKRISHNAN, AGED 35, R/AT KANNANTHANATHU HOUSE, PELA P.O., MAVELIKKARA, ALAPPUZHA DISTRICT, NOW WORKING AS HSA (PHYSICAL SCIENCE)-PHYSICS, GOVERNMENT HIGH SCHOOL, VEEYAPURAM, ALAPPUZHA DISTRICT. 3. NISHAD.V.K., S/O.A.KOYAKUTTY, AGED 33 RESIDING AT VELIYIL HOUSE, ADINADU SOUTH, KATTILKADAVU P.O., KARUNAGAPALLY, KOLLAM DISTRICT, NOW WORKING AS HSA (PHYSICAL SCIENCE)-CHEMISTRY, GOVERNMENT HIGHER SECONDARY SCHOOL, CHENGALAM SOUTH, KOTTAYAM DISTRICT. 4. ANIMON.V.V, S/O.VISWANATHAN.C.N, AGED 31 YEARS, RESIDING AT VISWALAYAM, CHERUKUNNAM, KURATHIKKADU P.O., MAVELIKKARA, ALAPPUZHA DISTRICT, NOW WORKING AS HSA (PHYSICAL SCIENCE)-PHYSICS K.K.M.GOVERNMENT V & H.S.S. ELIIPPAKULAM, ALAPPUZHA DISTRICT. 5. SAJITH.T, S/O.THOMAS, AGED 30 YEARS, RESIDING AT 'AISWARYA', THANNEERMUKKOM P.O., CHERTHALA, ALAPPUZHA DISTRICT, HSA (PHYSICAL SCIENCE)-CHEMISTRY, GOVERNMENT HIGHER SECONDARY SCHOOL, CHERTHALA SOUTH, ALAPPUZHA DISTRICT. BY ADV. SRI.JOICE GEORGE WPC 31366/08 (H) RESPONDENTS: ----------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, OFFICER OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BLDG., SANTHI NAGAR, THIRUVANANTHAPURAM. BY GOVT. PLEADER, SRI. A.J. VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2008, ALONG WITH WPC NO.31574 & 31227 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ============== W.P.(C) Nos. 31366 OF 2008 (H) 31574 OF 2008 (H) & 31227 OF 2008 (P) ========================== Dated this the 28th day of October, 2008 J U D G M E N T The issue that arises for consideration in these cases being similar, these cases are disposed of by this common judgment. For convenience, I shall be referring to the pleadings and documents in W.P.(C)No. 31366/2008. 2. Petitioners are HSA's who are aspiring to be appointed as HSST's in the by transfer quota earmarked for HSA's, as per the provisions contained in the Special Rules for the Kerala Higher Secondary Education State Service (hereinafter referred to as the “Special Rules” for short). Ext.P6 notification has been issued by the 2nd respondent inviting applications for preparation of a state wise seniority list of qualified HSAs/ UPSAs/ LPSAs for 'by transfer' appointment to the post of HSST/ HSST (Jr). 3. The complaint of the petitioners is regarding the prescription in the notification that the applicants should have satisfactorily completed probation. Referring to Ext.P7, a notification issued on 30.05.2005, it is contended that on the previous occasion, consistent with the Special Rules, successful completion of probation, was not a condition prescribed. WPC Nos. 31366/08 (H), 31227/08 (P) & 31574/08 (H) : 2 : On this basis it is contended that the aforesaid prescription is illegal and unwarranted. 4. As noticed the dispute lies in a narrow compass, i.e., whether the respondents could have insisted that only those successfully completed probation could have applied against Ext.P6 notification. Admittedly, none of the petitioners have successfully completed probation. In my view, this issue has to be decided against the petitioners. This is for the reason that on a combined reading of the Special Rules and the KS & SSR, only a full member or an approved probationer is entitled to by transfer appointment to the post of HSST/ HSST (Jr.). 5. In the context of the Special Rules, similar claim raised by HSST (Jrs) for appointment as HSST, was considered by this Court in Shamna vs. State of Kerala (2006 (2) KLT 673), where it has been held as follows: “Learned counsel for the petitioners contended that HSST (Juniors) who have not completed probation are not entitled to be considered for transfer appointment to the post of HSST even if they possess the qualification prescribed by the Special Rules. Learned counsel for additional respondents 4 and 5 in WPC No.26483/2005 on the other hand contended that satisfactory completion of probation is not a condition prescribed in the Special Rules for transfer appointment to the post of HSST and therefore, HSST (Juniors) having the requisite WPC Nos. 31366/08 (H), 31227/08 (P) & 31574/08 (H) : 3 : qualification are entitled to be appointed by transfer against all available vacancies of HSST irrespective of their completing two years and the declaration of probation. On a conspectus of the relevant statutory provisions, I find force in the argument advanced by the learned counsel for the petitioners. Rule 2(1) of Part I of Kerala State & Subordinate Service Rules, 1958 (for short 'K.S & S.S.R') says that a person is said to be “appointed to a service” when in accordance with the said rules or in accordance with the rules applicable at the time, as the case may be, he discharges for the first time duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof. It is laid down in Rule 2(13) that a candidate can be said to be recruited by transfer to a service if only he is either a “full member” or an “approved probationer” in the class or category. The proviso to the above sub-rule says that where the Special Rules for a service provide for recruitment by transfer to any class or category thereof from any specified class or category of another service, a candidate shall, unless the recruitment is made from a post carrying an identical scale of pay, be a full member or an approved probationer in the class or category so specified. Hence if the Special Rules have prescribed a period of probation, members of that service will not become eligible for appointment by transfer to another service or post without satisfactorily completing the period of probation. The term 'full member of a service” means a person who is appointed substantively to a permanent post borne on the cadre thereof. (see R.2(7) of Part I, K.S. & S.S.R). “Approved probationer in service” means a person who has satisfactorily completed his probation and awaits appointment as a full member of such service, class or category (see Rule 2(3) of Part I, K.S. & S.S.R) Since none of the HSST (Juniors) had become either full member or approved probationer in that category or service, they were not entitled for transfer appointment from the Subordinate Service to the post of HSST in the State Service. Post of HSST (Junior) carries a lower time scale when WPC Nos. 31366/08 (H), 31227/08 (P) & 31574/08 (H) : 4 : compared to the pay scale of HSST. It is pertinent to note that members of the service who belong to the category of HSST (Junior) will not automatically become entitled to be appointed as HSST solely on the basis of their qualification for the post.” This judgment of the Learned Single Judge has been confirmed by the Division Bench in W.A.No. 1000 of 2006 and connected cases, where in para 7, it has been specifically held that only those who had completed their probation are eligible. 6. In view of the position as above, the claim of the petitioners to be considered in response to Ext.P6 notification is unsustainable and is liable to be rejected. The writ petitions are accordingly dismissed. ANTONY DOMINIC, JUDGE Rp