Vacancies must be filled based on occurrence dates, not appointment timings; the ratio of 1:3 for transfer vs. direct recruitment is mandated by law.

JUDGMENT :

T.R.RAVI, J.

Heard Sri V.A.Muhammed, counsel for the petitioner in W.P.(C)No.16740 of 2023 and for the 6^th respondent in W.P.(C)No.20223 of 2023, Sri T.R. Rajesh for the petitioner in W.P.(C)No.20223 of 2023, Sri Poovamulle Parambil Abdul Kareem for respondents 4 and 5 in W.P. (C)No.16740 of 2022 and for respondents 3 and 4 in W.P.(C)No.20223 of 2023, Sri Venugopal, Government Pleader for official respondents/State.

W.P.(C) No.16470 of 2022

2. The petitioner was appointed as a UPSA in the 4^th respondent School with effect from 19.08.1996. She was promoted as HSA (English) with effect from 02.06.2008. She is a Post Graduate in English with more than 50% marks, B.Ed. in English, and is also SET qualified, which makes her eligible for appointment to the post of HSST (English).

3. Chapter 32 of the KERALA EDUCATION RULES (hereinafter referred to as 'KER') deals with the appointment of Teachers in the Higher Secondary Section. As per Rule 3 of Chapter 32 KER, the HSST and HSST Junior posts are categorised as categories 2 and 3, respectively. The method of appointment is dealt with in Rule 4. An HSST is to be appointed by transfer from among the Junior Lecturers in the subject concerned under the management/HSST Junior. In the absence of qualified hands in the above category, the vacancy is to be filled up by “by transfer” appointment and direct appointment in the ratio of 1:3. By transfer appointment is to be from among High School Assistants who possess the requisite qualifications under the educational agency and in the absence of High School Assistants, from among qualified UPSA/LPSA who possesses the requisite qualification in the subject concerned under the educational agency. The note to Serial No.2 in the table in Rule 4 says that when qualified persons are not available to fill up the vacancies set apart for appointment by transfer from among High School Assistants/ UPSA/LPSA, such vacancies are also to be allotted for direct recruitment.

4. A retirement vacancy of HSST English occurred in the school on 01.06.2020. No HSST Junior English was available for promotion. The petitioner contends that the vacancy was to be filled up by a “by transfer” appointment of a qualified HSA. A second vacancy of HSST English occurred on 01.06.2021. Due to the ban on appointments owing to the COVID-19 pandemic, no appointments were made towards the above-mentioned vacancies at the time when the vacancies arose. The seniormost HSA English who was eligible to be appointed by transfer as HSST English was appointed as HSST English in 2021, towards the vacancy which arose on 01.06.2020. However, instead of filling up the vacancy that arose on 01.06.2021 consequent to the retirement of Smt.K.Jaya, HSST English, the Manager notified the post for direct appointment, by treating both the vacancies as having arisen in 2021. The petitioner contends that the two vacancies could not have been clubbed together as vacancies that arose in 2021.

5. The petitioner submitted Ext.P1 representation before the3^rd respondent, claiming appointment to the vacancy that arose in2021. The request was rejected stating that as per Circular No.3257/2021 dated 06.07.2021, the Director has directed to effect appointment against existing vacancies only on 15.07.2021, treating the same as one single unit, and hence, only one vacancy can be filled up under the transfer method and the next vacancy will have to be filled up by direct recruitment. The petitioner preferred Ext.P3 revision before the Government,