The court established that government is not obliged to create teaching posts concurrently with sanctioning higher secondary school status; appointments made prior to post creation are invalid.

JUDGMENT

P.B.Suresh Kumar, J.

Among these appeals, W.A.No.7 of 2019 is preferred against the judgment in W.P.(C) No.41809 of 2017 and W.A.No.111 of 2019 is preferred against the judgment in W.P.(C) No.27184 of 2016. In both the appeals, the official respondents in the writ petitions are the appellants. The issues arose for consideration in the writ petitions were closely interlinked and they were, therefore, disposed of by a common judgment. The writ appeals also, in the circumstances, are disposed of by this common judgment. Parties are referred to in this judgment, as they appear in W.P.(C) No.41809 of 2017.

2. The petitioner was appointed as a High School Assistant in an aided High School (the School) on 06.06.2007. While the petitioner was working as such, the School was upgraded as a Higher Secondary School in terms of G.O.(MS) No.143/2014/GE dated 31.07.2014 and the School was functioning as a Higher Secondary School from the academic year 2014-15 onwards. On the School being upgraded as a Higher Secondary School, as the petitioner was qualified to be considered for appointment as Higher Secondary School Teacher, the Manager appointed her by transfer as Higher Secondary School Teacher (Jr) in English on 18.9.2014 in an anticipated vacancy. Ext.P1 is the order of appointment of the petitioner. It is stated by the petitioner that though several high schools have been upgraded as higher secondary schools from the academic year 2014-15, steps have not been taken by the Director of Higher Secondary Education for creation of necessary posts in the upgraded schools. According to the petitioner, insofar as the schools including the School in which the petitioner was working were upgraded as higher secondary schools from the academic year 2014-15 onwards, it was obligatory on the part of the Director of Higher Secondary Education and the officers subordinate to him to sanction sufficient number of teaching and non-teaching posts in the respective schools in the year 2014-15 itself. W.P.(C) No.27184 of 2016 was filed by the petitioner, in the circumstances, seeking appropriate directions to the officers concerned in the Directorate of Higher Secondary Education to expedite the process of sanction of teaching posts in the School and to approve the appointment of the petitioner as Higher Secondary School Teacher from the date of her appointment.

3. While W.P.(C) No.27184 of 2016 was pending, on 21.08.2017, the Government created teaching and non- teaching posts in the schools upgraded as higher secondary schools from 2014-15 and 2015-16 onwards. Ext.P4 is the order issued by the Government in this regard. In terms of Ext.P4 order, a post of Higher Secondary School Teacher (Jr) in English was created in the School. When the said post was created, the sixth respondent, another High School Assistant in English in the School who became qualified much after the upgradation of the School, staked a claim for appointment as Higher Secondary School Teacher (Jr) in English in preference to the petitioner on the ground that he is senior to the petitioner for appointment against the 25% quota earmarked for High School Assistants in the School in terms of the provisions contained in Chapter XXXII of the Kerala Education Rules (the Rules). According to the petitioner, insofar as the provisions contained in Chapter XXXII of the Rules confer a right on High School Assistants working in the School to claim appointment against 25% of the vacancies of Higher Secondary School Teachers, it was obligatory for the Government to create sufficient number of posts of Higher Secondary School Teachers in the School simultaneous to the sanctioning of higher secondary courses itself, or otherwise, the right of a junior qualified High School Assistant to claim appointment as Higher Secondary School Teacher will be defeated by a senior High School Assistant who was not qualified at the time of upgradation of the School. The petitioner, in the circumstances, institu