IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 12881 of 2004(H) -------------------------- PETITIONER(S): --------------- P. ASHA SINDHU, H.S.A. (MALAYALAM) P.R.W.HSS, KATTAKKADA, KATTAKKADA P.O., NEYYATTINKARA. BY ADV. SRI.BENOY THOMAS RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION THIRUVANANTHAPURAM. 3. MANAGER, P.R.W. HIGHER SECONDARY SCHOOL, KATTAKKADA, KATTAKKADA P.O., NEYYATTINKARA. 4. JOY, H.S.S.T (JR) (MALAYALAM) PRW HSS, KATTAKKADA, KATTAKKADA P.O., NEYYATTINKARA. 5. K.K. GOERGE, HSST (JR) (ECONOMICS), PRW HSS, KATTAKKADA, KATTAKKADA P.O., NEYYATTINKARA. ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE FOR R3 T O5 SRI.MILLU DANDAPANI FOR R3 TO 5 GOVERNMENT PLEADER SSMT. M.R. SREELATHA FOR R1,R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 7/04/2010, THE COURT ON 17/05/2010, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 12881/2004 -------------------------------------------------------------------- EXT.P1 TRUE COPY OF COMMUNICATION DT. 22-8-2003. EXT.P2 PAPER PUBLICATION DT. 25-8-2003. EXT.P3 CALL LETTER DT. 4-9-2003. EXT.P4 SERIES. DEGREE CERTIFICATES. EXT.P5 REPRESENTATION SUBMITTED TO R2. EXT.P6 JUDGMENT IN W.P.C. NO. 29985/2003. EXT.P7 ORDER DT. 1-3-2004. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P. (C) No. 12881 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th day of May, 2010. J U D G M E N T The petitioner is an aspirant for appointment to the post of Higher Secondary School Teacher (HSST) (Junior) in the subject of Malayalam under the 25% quota set apart for HSAs/UPSAs/LPSAs in aided schools under the same educational agency, in the P.R.W. Higher Secondary School, Kattakkada, an aided school, of which the 3rd respondent is the manager. She is challenging the action of the manager in overlooking her superior claim in appointing the 4th and 5th respondents as HSST (Junior) (Malayalam) and HSST (Junior) (Economics), respectively. The facts relevant for disposal of the case may be summarised as follows: The petitioner is working as a High School Assistant (Malayalam) in the 3rd respondent’s school. She was originally appointed as a U.P.S.A. with effect from 15-7-1998 and was promoted as H.S.A. (Malayalam) with effect from 1-4-2000. She possesses all the qualifications prescribed for appointment by transfer as HSST (Junior) (Malayalam). The 3rd respondent’s school was upgraded as a Higher Secondary School in the year 2003-04. There were 12 posts of Higher Secondary School Teachers including the post of Higher Secondary School Teacher (Junior) in Malayalam, all of which were to be filled up for the first time. Pursuant to applications invited by the 3rd respondent, for appointment by transfer to the vacancies reserved for appointment by transfer from among qualified teachers of the school, in the 25% vacancies reserved for the purpose, the petitioner also applied. But by Ext. P1 communication, the petitioner was informed that she need not appear for the interview fixed for W.P.C. No. 12881/2004 -: 2 :- selection, since the manager has decided to select HSSTs (Junior) in the subjects of Physics, History and Economics only in the 25% quota. Although the petitioner applied in the direct recruitment quota also, in response to the advertisement made by the manager inviting applications for direct recruitment and appeared for the interview pursuant thereto, the petitioner was not selected. According to the petitioner, for the subjects Physics and History qualified HSAs were appointed, in the post of HSST (Junior) in Economics and the manager appointed the 5th respondent, who was only a UPSA, although the petitioner, who was an HSA was available to be appointed as an HSST (Junior) in Malayalam in one of the posts to be filled up in the 25% quota, for appointment by transfer. The petitioner would submit that since, as per the special rules, appointment by transfer is first from among HSAs and only in the absence of qualified HSAs, appointment by transfer from among UPSAs and LPSAs can be resorted to only if a qualified HSA is not available for appointment, a UPSA or a LPSA can be considered for appointment, which has not been followed by the manager. In the above circumstances, the petitioner filed Ext. P5 representation before the 2nd respondent. By judgment in W.P. (C) No. 29985/2003, this Court directed the 2nd respondent to consider and pass orders on Ext. P4. Pursuant thereto, the 2nd respondent passed Ext. P7 order rejecting the claim of the petitioner, on the ground that it is in the discretion of the manager to select the posts to be filled up in the 25% quota, in the exercise of which discretion, the 2nd respondent cannot interfere. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) Declare that the petitioner is entitled to be appointed by transfer to the post of HSST (Jr) (Mal) in the in-service quota of 25% and further that the appointment of the 5th respondent as HSST (Jr) (Economics) who is only an UPSA as W.P.C. No. 12881/2004 -: 3 :- well as the appointment of the 4th respondent as HSST (Jr) (Mal) are illegal being violative of statutory rules. ii) issue a writ of certiorari or any other order quashing Ext. P7 order issued by the R2 as well as the appointments of respondents 4 and 5. iii) issue a writ of mandamus or direction directing the 3rd respondent to appoint the petitioner by transfer in the 25% quota set apart for in-service candidates as HSST (Jr) (Mal).” 2. A counter affidavit has been field by the 3rd respondent. He would contend that on sanctioning of higher secondary course in the school, the following 12 posts became necessary to be filled up namely: 1) Principal 2) HSST (Junior) Mathematics 3) HSST (Junior) Chemistry 4) HSST (Junior) Botany 5) HSST (Junior) Zoology 6) HSST (Junior) History 7) HSST (Junior) Economics 8) HSST (Junior) Sociology 9) HSST (Junior) Political Science 10)HSST (Junior) Malayalam 11)HSST (Junior) English 12)HSST (Junior) Hindi As per the special rules, out of the said 12 posts, 3 posts were to be filled up by transfer from among HSAs/UPSAs/LPSAs. He submits that since as per KER, the authority to appoint teachers in aided schools is the manager, the authority to choose the subjects to which appointments by transfer in the 25% quota are to be made, is also the manager. Therefore he, in his discretion, chose the subjects of Physics, History and Economics for appointment by transfer from among HSAs/UPSAs/ LPSAs and appointed qualified teachers of his W.P.C. No. 12881/2004 -: 4 :- school to those posts and the other 9 posts were filled up by direct recruitment. Since the post of HSST (Junior) Malayalam was to be filled up by direct recruitment, a selection was made by a selection committee constituted in accordance with the special rules and the petitioner was not selected by the selection committee, although she was also considered. According to the 3rd respondent, since it is the discretion of the manager to decide which posts are to be filled up by transfer, the petitioner cannot claim that the post of HSST (Junior) Malayalam ought to have been filled up in the 25% quota, instead of the post of HSST (Junior) Economics and the petitioner should have been appointed to that post. According to the 3rd respondent, therefore, the appointment of the 5th respondent as HSST (Junior) in Economics by transfer and appointment of the 4th respondent as HSST (Junior) Malayalam by direct recruitment are perfectly valid and proper and the writ petition challenging those appointments is liable to be dismissed. 3. The petitioner has filed a reply affidavit seeking to refute the contentions of the 3rd respondent in his counter affidavit. She would contend that there cannot be any such discretion vested with the manager in the matter of selecting the subjects for appointment by transfer in accordance with his preference of teachers, which is evident from the language used in the special rules, wherein the first preference is given to HSAs. Therefore, according to the petitioner, in the first instance appointments are to be made to those subjects, in which qualified HSAs are available for appointment by transfer in accordance with their seniority. Only after exhausting HSAs, the manager can consider UPSAs/LPSAs for appointment, is the contention raised by the petitioner. She would further point out that if such a an arbitrary discretion is conferred on the manager, it would lead to junior teachers stealing a march over senior teachers, which in turn would lead to violation of the fundamental rights of such senior W.P.C. No. 12881/2004 -: 5 :- teachers, which cannot be the intention of the rule making authority while framing the special rules. The counsel for the petitioner would also rely on the Division Bench decision of this court in W.A. No. 1057/2002, which judgment is reported as a short note in Viswanathan V. Director of Higher Secondary Education, 2005 (3) KLT SN 78 (Case No. 91), rendered in similar fact circumstances. The petitioner also relies on the decision of the Supreme Court in Valsala Kumari Devi V. Director, Higher Secondary Education, 2007 (4) KLT 494 (SC), on the meaning of the words “subject to seniority and suitability” occurring in the special rules, wherein the Supreme Court has held that once the requirement of the prescribed qualification is satisfied, the selection for appointment by transfer has to be made on the basis of seniority. 4. The learned Government Pleader supports Ext. P7 order, on the same reasons stated therein. 5. I have considered the contentions of the parties on the basis of the pleadings and the decisions cited before me. 6. The special rules prescribing the method of recruitment of HSST (Junior) is found in Rule 4 (3) of Chapter XXXII of the Kerala Education Rules, prescribing the method of appointment and qualifications of teachers and non-teaching staff in aided Higher Secondary Schools, which reads thus: “4. Method of appointment:- Appointment to the various categories specified in Column (2) of the Table below shall be made by the method of appointment specified against each in column (3) thereof- ---------------------------------------------------------------------------------------------------- Sl. Category Method of Appointments No. ---------------------------------------------------------------------------------------------------- xx xx xx 3. Higher Secondary School Teacher (Junior) 1. (i) By transfer from W.P.C. No. 12881/2004 -: 6 :- qualified Higher School Assistants in the subject concerned under the Educational Agency. (ii) In the absence of qualified hands under item (i) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants in the subject concerned under the Educational Agency. 2. By direct appointments Note:- (i) 25% of the total posts shall be filled up by the method specified in item (l) above on seniority-cum suitability basis and 75% of such post shall be filled up by direct recruitment. (ii) When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under item 1 above, such vacancies also shall be allotted for direct appointment.” Going by the same, in the 25% vacancies to be set apart for recruitment by transfer, the first chance to be considered for appointment by transfer goes to HSAs and only if there are no HSAs available, UPSAs and LPSAs can be considered for such appointment. If the vacancy available is only in particular subject/s, there cannot be any choice for anybody. The senior-most teacher qualified in the subject has to be appointed. But when vacancies in all subjects are to be filled up for the first time and qualified teachers in several subjects are available, or when vacancies arise both in the category for by transfer appointment and direct recruitment arise simultaneously and qualified teachers are available for by transfer appointment in one or W.P.C. No. 12881/2004 -: 7 :- more subjects, the question arises as to how the choice of subjects to be filled up by transfer has to be made. In my opinion, if discretion is conceded to the manager to choose the subject for which the vacancy is to be filled up in the 25% quota, that would lead to anomalous results. Even otherwise, in appointments for which salary is from the public exchequer, the procedure adopted has to conform to the principles of Articles 14 and 16 of the Constitution of India and the manager has to exercise that discretion in a judicious manner and not according to his preference of teachers or subjects. If such a discretion is conferred on the manager, on an extreme interpretation, it can also be said that the manager can choose subjects in which no qualified teachers are available in his school, thus excluding appointment by transfer altogether, which cannot be the intention of the special rules. Evidently that cannot be done and therefore in the matter of appointment by transfer, a reasonable method in consonance with the spirit of the rules has to be adopted by the manager. Therefore the manager necessarily has to adopt a reasonable method in consonance with Articles 14 and 16, keeping in mind the language used in the rules, while choosing the subjects in which vacancies are to be filled up by transfer. Such a reasonable method would be, to first ascertain how many qualified HSAs are available in the school to be considered for appointment as HSSTs. Then the subjects, in which they are qualified are to be looked into. Thereafter, those subjects are to be chosen, in which the senior-most among them are qualified to be appointed. If there are no sufficient qualified persons available among HSAs, then only UPSAs and LPSAs shall be considered. Such a reasonable procedure would obviate arbitrariness and discrimination. Otherwise, the manager would be inclined to arbitrarily prefer juniors and UPSAs/LPSAs among the qualified teachers violating fundamental rights of and causing heartburn to HSAs and senior teachers, which certainly is to be W.P.C. No. 12881/2004 -: 8 :- avoided. As pointed out by the petitioner, the language of the rule also supports such a procedure, since the first choice as per the rules goes to HSAs and only if no qualified HSAs are available for such appointment, the manager can turn to UPSAs and LPSAs. It is to be noted here that the posts in the 25% category are to be filled up based on seniority-cum-suitability, which can be ensured only if the above reasonable method is adopted. 7. I am supported in this view by the Division Bench decision in Viswanathan V. Director of Higher Secondary Education, 2005 (3) KLT SN 78 (Case No. 91), the full text of which has been made available for perusal by the counsel for the petitioner. In that case, five vacancies of HSSTs arose in an aided school, of which one had to be filled up in the 25% category by transfer from qualified teachers of the school. There were two qualified teachers available in the school; one was in English and the other in Hindi. The manager chose the junior Hindi teacher for appointment by transfer excluding the senior English teacher available in the school and the post of HSST in English was filled up by direct recruitment. Upholding the claim of the English teacher for appointment in preference to the Hindi teacher, who was senior to the Hindi teacher in the service of the school, the Division Bench held thus in paragraphs 6 and 7: “6. At this juncture, it is submitted on behalf of the first appellant that Exhibit P2 order prescribing the ratio of 25:75 between promotion and direct recruitment does not stipulate that the Manager should fill up first the post to which senior incumbent is entitled. When there is no such stipulation for regulating appointment or promotion based on seniority in Exhibit P2 or in any other order, the Manager being the authority invested with power to make appointment and promotion of his own staff, has to follow a reasonable method. The reasonable method is that when there are several teachers belonging to different subjects entitled for consideration to few vacancies, those posts to which senior incumbents are to be considered shall be set apart for quota of inservice candidates, so that senior incumbent shall not be superseded by a junior incumbent. Otherwise it will be arbitrary W.P.C. No. 12881/2004 -: 9 :- and discriminatory. 7. Admittedly, there were five vacancies to be filled up during the year 2005-2006. One shall be from among the qualified teachers on any count following Exhibit P2. The eligible persons at that point of time, were the second respondent and the petitioner in O.P.No. 12706 of 2003. The former was senior. He was qualified for the post of English Teacher. That was available. The latter was junior. He was qualified for the post of Hindi Teacher. That was also available. But the Manager could prefer only one incumbent following the reasonable method. Senior shall be preferred, ordinarily. No extraordinary situation is pointed out. So the Manager ought to have appointed the second respondent.” (Emphasis supplied) The principles laid down by the Division Bench in that case squarely apply in this case, on all fours. Therefore in this case, when a senior HSA qualified to be appointed as HSST (Junior) in Malayalam is available for appointment by transfer, the manager cannot resort to direct recruitment to that post, on the ground that he has chosen the post of HSST (Junior) in Economics for by transfer appointment in the 25% category and the senior-most qualified teacher who happened to be a UPSA was chosen for that post. Here admittedly, the petitioner was a HSA possessing the requisite qualifications for appointment as HSST (Junior) in Malayalam and the 5th respondent was only a UPSA having qualifications for appointment as HSST (Junior) in Economics. In such circumstances, the manager had no option but to choose the post of HSST (Junior) in Malayalam to be filled up by transfer, instead of the post of HSST (Junior) in Economics. Here, I note that in Valsala Kumari’s case (supra), the Supreme Court has also stressed the importance of seniority in by transfer appointments as HSSTs, which would also indirectly support such a course of action. 8. I am rather surprised that, in Ext. P7, the 2nd respondent has taken a stand in favour of the manager, in the matter of selection of the subjects to be chosen for by transfer appointment and conceded an arbitrary discretion to the manager, which is against the language W.P.C. No. 12881/2004 -: 10 :- used in the rules, throwing up his hands in helplessness. Not only courts, but educational authorities are also bound to test the actions of a manager of an aided school, for appointment to a post, salary for which is borne by the Government, in the anvil of Articles 14 and 16 of the Constitution of India, which the 2nd respondent has sadly failed to do in this case. In fact the decision of the single judge, which was affirmed in Viswanathan’s case (supra), was rendered as early as on 13-3-2002 and Ext. P7 was passed only subsequently on 11-3-2004. At least, when this court lays down the law on a particular subject, the 2nd respondent is duty bound to note the same for future reference so that the same can be applied in other cases coming up before him subsequently so that there would be uniformity in his decisions. The 2nd respondent should have been aware of that decision when Ext. P7 was passed. As such there was no reason for the 2nd respondent not to follow the decision of the single bench in that case, while passing Ext. P7 order. 9. In view of my above findings, the petitioner is entitled to succeed in this writ petition. Accordingly, the appointment of the 5th respondent as HSST (Junior) in Economics by transfer and consequently, the appointment of the 4th respondent as HSST (Junior) in Malayalam, by direct recruitment, are hereby quashed. It is declared that since the petitioner, a HSA qualified to be appointed as HSST (Junior) in Malayalam was available for appointment by transfer in the 25% vacancy, as against a UPSA qualified to be appointed as a HSST (Junior) in Economics, the 3rd respondent manager was bound to choose the post of HSST (Junior) (Malayalam) as the third post to be filled up by transfer in the 25% quota. Accordingly the 3rd respondent is directed to forward an order appointing the petitioner as HSST (Junior) in Malayalam, with effect from the date when the 4th respondent was appointed as HSST (Junior) in Malayalam, and forward the proposal to the 2nd respondent for approval, within three W.P.C. No. 12881/2004 -: 11 :- weeks from today. The 2nd respondent shall pass orders regarding approval of such proposal within one month from the date of receipt of the proposal. The petitioner will be entitled to all service benefits including monetary benefits arising from such appointment. The 5th respondent shall be allowed to continue as a UPSA, as if he was never appointed as an HSST (Junior) and he will also be entitled to all service benefits treating the period during which he worked as HSST (Junior) as service as UPSA. The resultant vacancy of HSST (Junior) in Economics, arising as a result of the above directions, shall be filled up in accordance with law. However, the excess salary paid to the 5th respondent in the post of HSST (Junior) shall not be recovered from him. The salary paid to the 4th respondent for the work done by him consequent to the irregular appointment as HSST (Junior) in Malayalam shall not also be recovered from him. Any loss caused to the Government on account of the irregular appointments made by the manager shall be recovered from the manager. In view of the arbitrary action of the manager, the 3rd respondent manager shall pay the costs of the petitioner in this writ petition, which I quantify as Rs.10,000/-, and direct the same to be paid within one month. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/