ANNES K. A. Vs. STATE OF KERALA
LAWS(KER)-2017-3-126
HIGH COURT OF KERALA
Decided on March 01,2017

Annes K. A. Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

C.T.RAVIKUMAR, J. - (1.) The unsuccessful applicants before the Kerala Administrative Tribunal in T.A. No. 4029/2012, O.A. Nos. 1556/2012 and 503/2012 have filed the captioned Original Petitions. They were rank holders in a ranked list published by the Kerala Public Service Commission (PSC) for appointment to the post of Higher Secondary School Teacher (Chemistry) which was brought into force with effect from 07/05/2007. Applicants 1 to 4 in T.A. No. 4029/2012 were holding rank Nos.120, 121, 125 and 138 respectively in the said rank list. It is stated that applicants 1 and 4 therein had obtained appointment and they are impleaded in the Original Petition as respondents 6 and 7. In other words, the Original Petition against the order in T.A. No. 4029/2012 is filed only by applicants 2 and 3. The applicants in O.A. Nos. 503/2012 and 1556/2012 are also rank holders in the same ranked list. The applicants in T.A. No. 4029/2012 obviously approached this Court by filing W.P.(C) No. 22608/2011 seeking issuance of a writ of certiorari calling for the records leading to Exts.P12 and P13 to the extent it includes Sl. Nos. 20 to 39 and to quash the same. The further prayers are as follows: "(ii) Issue a writ of mandamus or any other appropriate writ, direction or order declaring that the appointment made to the category of Higher Secondary School Teacher (Chemistry) by appointment by transfer from the category of HSAs / UPSAs / LPSAs are in excess of the quota available to them under the Special Rules and those appointees in excess of the quota have to be removed and in their place petitioners should be advised and appointed. (iii) Issue a writ of mandamus or any other appropriate writ, direction or order declaring that vacancies of Higher Secondary School Teachers (Chemistry) in which HSSTs (Junior) were appointed when they did not complete probation at the time when the vacancies arose have to be removed from the said post and in those vacancies the petitioners should be given advice and appointment on the basis of the rank obtained by them in the selection made by the PSC. (iv) Issue a writ of mandamus or any other appropriate writ, direction or order declaring that all the vacancies of Higher Secondary School Teacher (Chemistry) in which excess appointments were made by appointment by transfer of has / UPSA / LPSA are to be earmarked for advice and appointment of the petitioners on the basis of the rank obtained by them in the ranked list and appropriate seniority legitimately due to them in that category should be given to them. (iv)(a) Call for the records leading to Annexure A1 order and set aside the same."
(2.) After the constitution of the Administrative Tribunal, W.P.(C) No. 22608/2011 was transferred to the Tribunal and subsequently it was re - numbered as T.A. No. 4029/2012. The said transfer application was considered and ultimately it was dismissed as per Ext.P6 order dated 27/12/2013. Though the Original Applications were filed during the pendency of T.A. No. 4029/2012, they were considered and disposed of by separate orders by the Tribunal. Evidently, relying on the order dated 27/12/2013 in T.A.No.4029/2012, O.A. No. 503/2012 was dismissed as per order dated 31/03/2014 and O.A.No.1556/2012 was heard separately and relying on the order dated 27/12/2013 in T.A. No. 4029/2012, it was dismissed as per order dated 25/02/2014. O. P. (KAT) No. 29/14 arises from the order dated 27/12/2013 in T.A.No.4029/2012 and O.P.(KAT) Nos. 157/2014 and 210/2014 arise from the order dated 25/02/2014 in O.A. No. 1556/2012 and order dated 31/03/2014 in O.A.No.503/2012, respectively. Evidently, all the petitioners are having common grievance. As noticed hereinbefore, they were rank holders in a ranked list published by PSC on 07/05/2007 (produced as Ext.P1 in T.A. No. 4029/2012). Essentially, the main challenge in all the three Original Petitions is against the action on the part of the authorities in not identifying the number of vacancies available for direct recruitment quota taking into account the fact that quota was not followed while effecting appointments from 1998 to 2000 and even thereafter, despite the framing of the Special Rules based on the ratio fixed for effecting appointment by transfer and direct recruitment.
(3.) Admittedly, the Kerala Higher Secondary Education State Service Rules, 2001 came into force only on 16/04/2001. Prior to that, appointment to the post of Higher Secondary School Teachers were being effected based on executive orders. It is the contention that prior to the coming into force of the said Rules, 25% of the vacancies in that cadre were to be filled up by transfer and appointment from qualified High School Assistants and Primary School Teachers and 75% of the vacancies were to be filled up by effecting direct recruitment. It is the contention that though 75% of the vacancies were to be filled by direct recruitment, no direct recruitment was actually made for years together and all those vacancies were filled up by effecting 'by transfer' appointments. After the coming into force of the Special Rules, virtually, the position has been changed and going by R.2(2), the entire vacancies in the post of Higher Secondary School Teachers are to be filled up by transfer from Higher Secondary School Teachers (Junior) in the subject concerned. Only in the absence of persons in the said category, by transfer appointment and direct recruitment could be effected in the ratio 1:3. The first preferential category for by transfer appointment is High School Assistant subject to the satisfaction of the qualifications prescribed thereunder. Only in the absence of fully qualified hands in the said category, persons belonging to UPSA / LPSA having the prescribed qualifications could be given by transfer appointment against that quota. It is the contention of the petitioners that appointees under Order No. ADB5/7068 / HSE / 11 dated 23/07/2011 and Order No.ADB5/7000 / HSE / 11 dated 25/07/2011 (produced and marked as Exts.P12 and P13 in T.A. No. 4029/12) and Annexure A1 order bearing No. G.O.(Rt.) No. 4098/2011 / G.Edn. dated 29/09/2011 had not completed their period of probation on the date of their appointment. The appointments made under Exts.P12 and P13 are challenged on the ground that by transfer appointees from the category of HSSTs (Jr.) had not completed their period of probation on the date of their appointment. It is the contention that in the light of the decision of a Division Bench of this Court in Ajithakumari v. Shamma, 2009 (1) KHC 556, an HSST (Jr.) would acquire entitlement for being considered for appointment by transfer as HSST only on satisfactorily completion of the period of probation. The period of probation for HSST (Jr.) is prescribed under R.6 of the Kerala Higher Secondary Education Subordinate Service Rules, 2001. To support the said contention, the petitioners also places reliance on the provisions under R.28 (b)(ii) of Part II KS and SSR. In short, it is the contention that as per Ext.P12, in violation of the ratio prescribed, persons belonging to the categories HSA and UPSA / LPSA were given appointment by transfer. The further contention is that as per Ext.P13 teachers from the category of HSSTs (Jr.) were given appointment by transfer prior to completion of the period of probation. In fact, the contention is that Sl.Nos.20 to 39 in Ext.P13 belong to the said category and therefore their appointments to the post of HSST (Jr.) is illegal. Evidently, all these contentions were unsuccessfully raised before the Tribunal;


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