IMPORTANT POINT
The relevant date for assessing the qualifications of the candidates is the date of creation of the post by the Government, and the prospective application of the post creation is illegal and unsustainable.

1. Since the issues involved in these two writ petitions are one and the same, I consider both the writ petitions together treating W.P.(C)No.15643/2016 as the leading case. The parties are referred according to their status in W.P.(C)No.15643/2016.

2. The petitioner/Smt. Jayalekshmi K.M is an HSST(Junior) (Malayalam) Teacher appointed on 12.09.2011 under the Direct Recruitment Category in the school – Shanmugha Vilasom Higher Secondary School (SVHSS) Clappana, Kollam on sanctioning of a new Plus Two batch to the said school.

3. The Respondent No.6/Smt.S.Rani who is the petitioner in W.P. (C).No.18339/2016 had been working as LPSA in SVHSS and she claims appointment in the above HSST (Junior) (Malayalam) post under By-Transfer category on the ground that she is qualified for getting appointment as on the date of creation of the post.

4. The case of the Petitioner is that as per Ext.P1 Government Order dated 03.08.2011 a new Plus Two Batch was sanctioned to SVHSS along with sanctioning of new batches to other schools; that on account of the commencement of the said Batch during the academic year 2011-2012 the number of periods for Malayalam increased from 48 to 54 and in view of Ext.P2 Government order the school was entitled for one more HSST (Junior)(Malayalam) with effect from the academic year 2011-2012; that the Manager of the school published Ext.P3 Notification dated 19.08.2011 inviting candidates for the post of HSST and the Petitioner secured Rank No.1 in the selection and accordingly the Manager appointed the petitioner by Ext.P5 Order dated 12.09.2011 as HSST (Junior) (Malayalam) in the school; that the post continued in the subsequent years also; that the Respondent No.1 as per G.O.M.S.No.211/2013/G.Edn. dated 15.07.2013 which is produced as Ext.P8 accorded sanction for the creation of the post in the school; that since the post of HSST (Junior) (Malayalam) was created only with effect from 15.07.2013 the petitioner challenged the same in this Court by filing W.P.(C)No.24424/2015 and the same was disposed of along with W.P.(C)No.23792/2015 filed by the Respondent No.6 directing the Respondent No.1 to consider and pass orders on the Revision filed by the Manager of the school; that in compliance with the said judgment the Respondent No.1 passed order No.ACD.V4./6558/12/HSE dated 21.07.2015 which is produced as Ext.P9, upholding the claim of the Respondent No.6 for appointment by transfer from 15.07.2013 and rejecting the claim of the petitioner and directing the Manager of the school to appoint the Respondent No.6 as HSST(Junior) (Malayalam) and to treat the posting of the petitioner as Guest Teacher on daily wages and further directed to submit proposal to the Regional Deputy Director, Thiruvananthapuram appointing the Respondent No.6 for approval; that the Respondent No.1 again considered the matter as per direction of this Court in the judgment dated 09.11.2015 in W.P.(C)No. 24424/2015; that the Respondent No.1 passed Order G.O. (Rt)No.1301/2016/G.Edn. dated 04.04.2016, which is produced as Ext.P10, rejecting the claim of the petitioner directing the Manager to give appointment to the Respondent No.6, if she is found eligible under by-Transfer appointment; and that the issue with respect to prospective operation of creation of post was considered by this Court in Ext.P11 judgment in W.P.(C) No.16613/2014 and Ext.P12 judgment in W.P. (C)No.1914/2013 in which it is held that prospective sanction of post is illegal and without any justifiable ground and declared that the petitioner therein are entitled for getting approval with effect from the initial date of appointment itself and not from any cut-off date fixed by the Government of its own. On these contentions the petitioner challenges Ext.P8 order to the extent of prospective creation of the post of HSST (Junior) (Malayalam) only with effect from 15.07.2013 and Ext.P10 Order by which the claim of the Respondent No.6 for appointment under By-Transfer category was up