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2024 Supreme(Online)(Ker) 68599
‘CR’
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946 WP(C) NO. 15643 OF 2016 PETITIONER/S:
JAYALEKSHMI K.M.
HIGHER SECONDARY SCHOOL TEACHER (MALAYALAM) SHANMUGHA VILASOM HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT.
BY ADV SANDESH RAJA K RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION-HIGHER SECONDARY EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001
3 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, CORPORATION BUILLDING, IVTH FLOOR,'PALAYALAM, THIRUVANANTHAPURAM 695 034
4 THE MANAGER SHANMUGHA VILASOM HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT 690 525
5 THE PRINCIPAL SHANMUGHA VILASOM HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT 690 525
6 RANI S L.P.S.A,SHANMUGHA VILASOM HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT 690 525 BY ADVS.
SR.GOVERNMENT PLEADER SRI. A.J.VARGHESE SRI.V.A.MUHAMMED SRI.M.SAJJAD SRI.A.N.RAJAN BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2024, ALONG WITH WP(C)18339/2016, THE COURT ON 20.05.2024 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946 WP(C) NO. 18339 OF 2016 PETITIONER/S:
S.RANI AGED 35 YEARS W/O.PRADEEP, AGED 35 YEARS, LOWER PRIMARY SCHOOL ASSISTANT, SV HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT BY ADVS.
SRI.V.A.MUHAMMED SMT.P.A.JENZIA RESPONDENT/S:
1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDINGS, TRIVANDRUM-695 001.
3 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695 014.
4 THE MANAGER SV HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT-690 525.
*ADDL.R5 JAYALEKSHMI K.M HIGHER SECONDARY SCHOOL TEACHER [MALAYALAM], SHANMUGHA VILASOM HIGHER SECONDARY SCHOOL, CLAPPANA, KOLLAM DISTRICT.
*[IS IMPLEADED AS PER ORDER DATED 29.08.2016 IN I.A.NO.13421/2016]
BY ADVS.
SRI.A.J.VARGHESE SR.GOVT.PLEADER SRI.A.N.RAJAN BABU SRI.SANDESH RAJA K SMT.ASHA BABU SMT.R.S.ASWINI SANKAR SRI.M.MANOJKUMAR CHELAKKADAN SRI.K.RAMAKUMAR SR.
SRI.T.RAMPRASAD UNNI SRI.SAIJU S.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2024, ALONG WITH WP(C).15643/2016, THE COURT ON 20.05.2024 DELIVERED THE FOLLOWING:
‘CR’
Post creation timelines do not impede rightful appointment based on earlier qualifications if done under valid anticipation of position necessity.
Headnote:(A) Government Orders pertaining to appointment of teachers in higher secondary education; relevant orders include G.O.M.S.No.211/2013/G.Edn. dated 15.07.2013. (Paras 2, 4, 10, 16, 32)
(B) Statutory rights of teachers to appointment based on qualifications and the timing of the post creation; the court upheld that approvals should backdate to actual appointment dates unless stipulated otherwise. (Paras 24-30)
(C) The court addressed the issue of prospective vs. retrospective effect regarding appointment posts and clarified that anticipation in appointments by Manager is permissible when vacancies arise due to sanctioned new batches. (Paras 26-30)
Facts of the case:
The first petitioner was appointed as HSST (Junior) on 12.09.2011 under a new batch sanction, while the second petitioner claimed her post under By-Transfer, contending she was qualified when the post was created. The core issue revolved around the legitimacy of appointing the first petitioner before the formal creation of the post by the government.
Findings of Court:
The court found in favor of the first petitioner, ordering retrospective approval of her appointment as HSST (Junior) with all benefits from the academic year 2012-2013.
Issues: The central questions were whether the Manager properly appointed teachers anticipating future sanctioning of posts, and the appropriate date for valid qualifications relating to such appointments.
Ratio Decidendi: The court determined that appointments made before the official sanctioning of posts under proper anticipation of necessity were valid, emphasizing the need for qualified teachers as per government orders without limiting the appointments to prospective only.
Result: W.P
(C) No.15643/2016 is allowed with specified directives for appointment approval from 2012-2013 onwards; W.P.
(C)No.18339/2016 is dismissed.
JUDGMENT
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 ca
