Point of Law: Only obligation of the appointing authority when a select list is drawn is to make appointments only in the order of merit, and the said requirement of law has been complied with in the case on hand.

JUDGMENT :

P.B.Suresh Kumar, J.

This appeal is directed against the judgment dated 22.12.2020 in W.P.(C) No.28642 of 2019. The appellant was the fifth respondent in the writ petition. Parties and documents are referred to in this judgment, as they appear in the writ petition.

2. The petitioner is the Manager of an aided Higher Secondary School. The Higher Secondary section of the school was sanctioned from the year 2014-2015. Since there were no qualified hands then in the school for appointment by transfer as Higher Secondary School Teacher [HSST] or Higher Secondary School Teacher (Junior), the petitioner took steps to appoint the required number of teachers from the open market. It is stated that there were three posts of HSST and four posts of HSST (Junior) in the school. A selection was conducted and appointments were made by the petitioner to the said posts from the ranked lists prepared by the Selection Committee. The fourth respondent secured first rank in the selection for appointment to the post of HSST and respondents 5 and 6 secured ranks 3 and 2 respectively in the said selection. The petitioner appointed the fourth respondent on 05.01.2018 and respondents 5 and 6 on 06.01.2018. The said appointments were approved with effect from the respective dates of appointment in terms of Ext.P2 order issued by the third respondent.

3. The fifth respondent preferred an appeal against Ext.P2 order before the second respondent seeking a direction to the Manager to submit a revised proposal for approval of her appointment with effect from 05.01.2018. On the said appeal, the second respondent took the view that insofar as three vacancies were existing at the time of preparation of the select list and since respondents 4 to 6 were included in the same select list, they should have been appointed on the same day itself and consequently directed the third respondent to approve the appointment of respondents 5 and 6 as HSST in the school with effect from 05.01.2018. Ext.P3 is the order issued by the second respondent in this regard. Although Ext.P3 order was challenged by the petitioner in revision before the Government, the same was affirmed by the Government as per Ext.P5. In the meanwhile, the fourth respondent being the earliest appointee to the post of HSST in the school, the petitioner appointed her as Principal-in-Charge of the School. Exts.P3 and P5 orders were under challenge in the writ petition.

4. The case set out by the petitioner in the writ petition was that being the appointing authority, he has absolute discretion in the matter of making appointments and that the appointees cannot claim that they should be appointed with effect from a particular date. It was also the case of the petitioner that the dates of appointments were fixed based on the merits of the candidates and the fourth respondent being a candidate who secured more marks in the selection, she was appointed earlier to others and there is nothing illegal in the same.

5. A counter affidavit has been filed in the matter by the fifth respondent contending, inter alia, that insofar as the selection was conducted on the same day and since vacancies were available on the date of selection, the vacancies should have been filled up by appointing all the selected candidates on the same day itself. It was also contended by the fifth respondent that had the Manager adopted the said course, the fifth respondent being elder to the fourth respondent, she would have had a claim for appointment as Principal in preference to the fourth respondent and it was with a view to appoint the fourth respondent as Principal that the appointments were made by the petitioner in the manner aforesaid.

6. The learned Single Judge took the view that in the absence of any specific provision in the Kerala Education Act (the Act) and the Kerala Education Rules (the Rules) interdicting the Manager from making appointments in the manner in which appointments have been made by him, there is no illega