The 25% quota for By-transfer appointments must apply to total sanctioned posts, not to vacancies, as per Rule 4(3) of the Kerala Education Rules.

JUDGMENT :

N.NAGARESH, J.

W.P.(C) No.2704/2024 has been filed by the petitioner, who is working as HSST (Junior) Chemistry in the MSM HSS, Chathinamkulam, Kollam. The petitioner seeks to declare that the petitioner is entitled to get her appointment approved as HSST (Junior) in Chemistry under By-transfer quota at the MSM HSS, Chathinamkulam, Kollam. W.P.(C) No.9502/2024 has been filed by the 5^th respondent in W.P.(C) No.2704/2024 seeking to direct the 2^nd respondent-Regional Deputy Director to approve the appointment of the petitioner as HSST (Junior) Hindi.

2. The parties and exhibits in these writ petitions are referred to in this judgment as they are described/marked in W.P.(C) No.2704/2024, for convenience.

3. The petitioner states that she was initially appointed as UPSA on 06.06.2019 in MSM HSS, Chathinamkulam. She was later appointed as HSST Junior on 12.03.2022. After the appointment of the petitioner as HSST Junior, the Manager had forwarded proposal for approval of petitioner's appointment. The proposal was rejected by the Regional Deputy Director as per Ext.P3 order dated 22.10.2022.

4. The petitioner states that Note 1 below Rule 4(3) Chapter XXXII, KER provides that 25% of the total posts shall be filled up by “By-transfer” appointment from qualified HSTs. The MSM HSS has a strength of 24 HSST Seniors and 11 HSST Juniors. As the strength of HSST Juniors is 11, three HSTs/UPSTs are entitled to appointment By-transfer as HSST Junior. However, the 3^rd respondent-Regional Deputy Director reported that one By-transfer appointment in English will fulfill 25% as mandated in Rule 4(3). Therefore, the petitioner was shown as selected as HSST Junior under direct appointment category.

5. The petitioner therefore preferred Ext.P6 revision petition dated 07.02.2023. The 1^st respondent rejected the claim as per Ext.P9 order dated 20.12.2023 on untenable and unsustainable grounds. The petitioner states that the 3^rd respondent issued Ext.P10 order approving the service of the 6^th respondent which order was followed by Ext.P11 order of the 2^nd respondent and Ext.P12 order of the 3^rd respondent. The petitioner states that Ext.P9 order in the revision filed by the petitioner rejecting approval of the petitioner on the ground that it will exceed 25%, is illegal.

6. In her W.P.(C) No.9502/2024, the 5^th respondent stated that she was appointed as Junior Hindi Language Teacher in MSM HSS on 15.07.2021. There are 11 sanctioned posts of HSST Junior. The post of Higher Secondary School Teacher (Junior) is to be filled up By-transfer from qualified HSAs in the subject concerned. In the absence of such qualified hands, By-transfer appointment from UPSAs/LPSAs can be made, failing which direct appointment can be resorted to.

7. Note 1 under Rule 4(3) lays down that 25% of the total posts shall be filled up By-transfer. 75% posts shall be filled up by direct appointment. Rule 4(3), Note 1 clearly provides that the ratio of 25% has to be applied to the total posts. Therefore, the ratio will have to be applied to the sanctioned strength and not to the arising vacancies. The total number of sanctioned posts in the School in the category of HSST Junior being 11, three posts shall be filled up By-transfer and eight posts shall be filled up by direct recruitment.

8. The 5^th respondent states that when a vacancy of HSST Junior arose in the Higher Secondary section on 25.08.2022, the 5^th respondent was the only qualified Teacher available in the lower category. Hence, the Manager appointed the 5^th respondent as HSST Junior Hindi as per order dated 21.02.2