IMPORTANT POINTS
• The vacancy now sought to be filled up is the fourth vacancy arising, which was entitled to be filled up by direct recruitment. The Manager has resorted to direct recruitment, according to us, correctly, considering the vacancy position. In such circumstance, we set aside the judgment of the learned Single Judge and find the direct recruitment made to the fourth vacancy to be proper and correct. The Manager has undertaken in the writ appeals that the next available vacancy will be given to Saritha P.V. Even otherwise, the 5th vacancy will be entitled to a by-transfer appointment, going by the ratio.
• There could have been no ratio applied to the cadre since obviously, the cadre is consisting of persons from three different sources, the HSST (Jr.), H.S.As and direct recruitees. The ratio applicable to HSA and direct recruitment, will have application only when an appointment is made to a vacancy, by reason of the absence of HSST(Jr.).

JUDGMENT :

K.VINOD CHANDRAN, J.

Two appeals by the Manager and one by the teacher, who lost before the learned Single Judge. We will refer to the parties by their names.

2. Elizabeth Kuriakose, was appointed as an Higher Secondary School Teacher [HSST] (English), by direct recruitment to the Iqbal Higher Secondary School, Ajanur. Saritha P.V, who was working as H.S.A in the said school claimed that the appointment ought to have been made, by-transfer from qualified High School Assistants(HSA); in which case she would be entitled to the post. Saritha P.V was the senior most HSA entitled to the said post.

3. The learned Single Judge looked at Rule 4 in Chapter XXXII of the Kerala Education Rules (KER) and relying on the ratio 1:3, prescribed for the purpose of appointment of HSST's, when there is no HSST(Jr.) available, held that Saritha P.V. is entitled to the post. The reasoning was that the vacancy, which was filled up by the Manager was the first vacancy that arose after the Rule prescribing the ratio 1:3 was introduced in the K.E.R in 2001. As per the ratio the first vacancy has to be conceded to by-transfer appointment, was the finding. The Manager and the teacher who was appointed by direct recruitment is before us in appeal.

4. Learned Senior Counsel, Sri. Jaju Babu, instructed to appear for the Manager, relies on the judgments of this Court in Sreelatha v. State of Kerala [2015 (4) KLT) 736 (by one of us, KVC(J))], affirmed in W.A. No.2609/2015 by judgment dated 19.01.2016 and the decision of the Hon'ble Supreme Court in V.K.Girija v. Reshma Parayil [(2019) 2 SCC 347]. It is contented that there were altogether 15 appointments made in the Higher Secondary School, a list of which is produced at Ext.P9. Eleven HSST's were promoted from the post of HSST (Jr.) and one HSST (Jr.) (Arabic) is remaining as such. There were three appointments made from the cadre of HSA's to the post of HSST and hence this is the 4th vacancy arising. The 4th vacancy as per the ratio 1:3 has to be conceded for direct recruitment, is the contention. Sri.Aravindakshan Pillai, the learned Counsel appearing for the direct recruit adopts the contention raised by the Manager.

5. Sri. M. Sasindran, learned Counsel appearing for the HSA, however points out that if such an understanding of the rule is accepted, then necessarily, it would result in the rule having retrospective effect, which has not been provided in the K.E.R. When introducing the rule, the executive was careful not to provide for a retrospective effect and hence it can only have a prospective effect. If a prospective effect is given to the rule, then the vacancy is the first one arising after the rule came into force and this will have to be conceded to by- transfer appointment as per the ratio.

6. It is also pointed out that Muhammed Haneefa and M.Mohanan, who are said to be appointed by-transfer are no more in service, having superannuated. With respect to Muhammed Haneefa, he was appointed in 1991, when there was no ratio applicable. It was only in the year 1998 that the ratio of 25:75 between by-transfer appointments and direct recruitment was brought in by a Government Order. Aniamma Thomas, again who was appointed as an HSST in the year 1991 had been continuing as an H.S.A only for 14 days. Hence, her appointment also cannot be said to be a by-transfer appointment. In such circumstances, the vacancy arising has to be conceded to HSA's for by-transfer appointment, is the argument.

7. We have gone through the judgments placed before us by the learned Senior Counsel. The judgment in Sreelatha (supara) specifically notice that the ratio is not to be applied to the cadre as such and can only be applied in the absence of qualified HSST(Jr.), by apportioning the vacancies arising between by-transfer and direct appointees. The Division Bench affirming the aforesaid decision also found that therein it was the 10th vacancy that was being filled up and in such circumstance, the application of the rati