IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 WA.No. 1213 of 2006() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.5843/2005 Dated 21/04/2006 .................... APPELLANT: PETITIONER: ----------------------------------------- Y.JAHNCY, W/O.HILK RAJ, UPPER PRIMARY SCHOOL ASSISTANT, L.M.S.HIGHER SECONDARY SCHOOL, CHEMBOOR, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS: RESPONDENTS: ---------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM-1. 3. THE CORPORATE MANAGER, L.M.S.SCHOOL, L.M.S.COMPOUND, THIRUVANANTHAPURAM-33. 4. SMT. ANI ROSE L., HIGHER SECONDARY SCHOOL TEACHER, L.M.S.HIGHER SECONDARY SCHOOL, AMARAVILA, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SRI.BENNY GERVACIS – R1 & R2 BY ADV. SRI.BENOY THOMAS - R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- W.A.NO.1213 OF 2006 ---------------------------------------------------- Dated this the 1st day of July, 2008. JUDGMENT Koshy, J: The appellant/petitioner was appointed as LPSA in L.M.S L.P. School, Karakkode against a regular vacancy on 7.6.1995. The 4th respondent was appointed as LPSA in 1995. In the year 1998-99 a higher secondary school was granted. For the appointment in the Higher Secondary School, 25% quota was reserved for qualified in service candidates . A selection committee was constituted as per the then existing Government orders consisting of a management nominee, a subject expert and a government nominee. They selected the 4th respondent and she was appointed. The contention of the appellant was that seniority alone was the criteria for selecting 25% quota. Both the appellant and the 4th respondent were educationally qualified. Since the appellant was senior, she ought to have been selected for appointment as HSS teacher. The learned Single Judge was of the opinion that it is not a mere promotion post. All in service candidates can apply for the in service quota. There may be W.A.NO.1213/06 . 2 LPS Assistants or HSS Assistants and mere seniority cannot be a criteria for selecting 25% quota. In any event before the rules were finalised and final judgment was pronounced the Hon'ble Supreme Court by an interim order directed that selection committee can select persons for appointment as per the guidelines and byelaws. The Government considered the matter in Ext.P13 and found as follows: "Government have examined the case in detail in consultation with Director of Higher Secondary Education. The appointment order in question was issued on 21.8.1998. The orders issued in the Government Order read as 1st paper above was the relevant one then governing the appointments to the post of Higher Secondary School Teachers. With regard to the appointment under 25% quota, the Government order provided as- '25% vacancies will be reserved for appointment from qualified High School Assistants and Primary School Teachers. Seniority is not insisted as a criteria for such appointment. The post of Higher Secondary School Teacher is not a promotion post of High School Assistants/IPSAs. One amount the method of appointments to the post of Higher Secondary School Teacher is by transfer appointment from the qualified High School Assistants/UPSAs/LPSAs. In the present issue, Smt. Jahncy claims preference over Amt.Ani Rose purely on seniority basis. The post of Higher Secondary School Teacher is not a promotion post of High School Assisitants/UPSAs/LPSAs. It is a selection post. The selection committee had recommended the appointments after taking into consideration W.A.NO.1213/06 . 3 of all aspects involved in such selection. The method of appointment "By transfer" is intended for selection of most suitable candidates from among the existing teachers. The claim of Smt. Jahncy for appointment as Higher Secondary School Teacher on seniority basis cannot be accepted and there is nothing under rules, which nullifies the selection process followed by Management for selection under 25% quota in this case". The learned Single Judge also noticed that the appointment was made in 1998 and the Hon'ble Supreme Court while passing final orders in the judgment reported in M.M. Dollichan & others v. State of Kerala & others (2001 (1) SCC 151) protected all appointments up to 14.11.2000 provided the candidates appointed were educationally qualified as per the government orders. The 4th respondent's appointment was thus regularised. Even in that special rules framed (Chapter XXXII Rule 5 of KER), appointment has to be made on the recommendation of the selection committee. In any view of the matter since the 4th respondent was protected by the Apex Court and she was also qualified, we see no ground to interfere with the impugned judgment of the learned single judge or in the appointment of the 4th respondent in the year 1998. J.B. KOSHY, JUDGE. W.A.NO.1213/06 . 4 P.N. RAVINDRAN, JUDGE. cl