Abdussalam vs State of Kerala and Others

K.T. Sankaran, J.—Since common questions are involved, these Writ Petitions are being disposed of by this common judgment. In some cases, persons included in the Rank List have filed applications for impleading and those applications have been allowed.

Almost identical reliefs are prayed for in these Writ Petitions. W.P.(C) No. 27577 of 2007 is taken as the main case in which a counter-affidavit is also filed by the second Respondent. The reliefs prayed for in W.P. (C) No. 27577 of 2007 are the following:

(i) to issue a writ of mandamus directing the Respondents to appoint the Petitioner as H.S.S.T. (Senior)(Commerce);

(ii) to issue a writ of mandamus directing the Respondents to treat the Petitioner as H.S.S.T. (Junior) who has completed the period of probation with effect from 4-9-2007;

(iii) to issue a writ of mandamus directing the Respondents to issue formal orders declaring satisfactory period of completion of probation with effect from 4-9-2007;

(iv) to issue such other orders, directions or writs as may be prayed for and that this Hon''ble Court may deem fit under the facts and circumstances of the case.

The Petitioners in these Writ Petitions are Higher Secondary School Teachers (Junior) in different subjects. The claim of the Petitioners is that they are entitled to be appointed as Higher Secondary School Teachers in the subjects concerned as per Rule 3 of the Special Rules for the Kerala Higher Secondary Education State Service (hereinafter referred to as the Special Rules). The case of the Petitioners is that as per Rule 3 of the Special Rules, the post of H.S.S.T. shall be filled up by transfer from H.S.S.T. (Junior) in the subjects concerned. Only in the absence of H.S.S.T. (Junior), any other category mentioned in Rule 3 could be considered for appointment as H.S.S.T., it is submitted. The relevant portion of Rule 3(2) reads as follows:

Appointment.- Appointment to the categories shall be made as follows:

Sl. No. Category Method of appointment

1 Principal ***

Higher Secondary School Teacher (I) By transfer from Higher Secondary School Teacher (Junior) in the subject concerned.

(II) In the absence of qualified hands under Clause (I) above, the vacancies shall be apportioned in the ratio of 1:3 between appointment by transfer and direct recruitment as detailed below:

(1) a. By transfer from High School Assistants included in the General Education Subordinate Service who possess the requisite qualification in the subject concerned.

b. In the absence of qualified persons under item (a) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants included in the General Education Subordinate Service who possess the requisite qualification in the subject concerned.

2

(2) By direct recruitment.

Notes. 1. When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under item (II)(1), such vacancies shall also be allotted for direct recruitment.

Appointments under item (I) above shall be made from select lists of qualified persons prepared on the basis of merit and ability.

Direct recruitment under item II(2) shall be made on statewise basis by the Kerala Public Service Commission.

Going by the rules, appointment to the post of H.S.S.T. can be made only by transfer from H.S.S.T. (Junior) in the subject concerned if such qualified hands are available. If H.S.S.T. (Junior) is not available, the rule permits appointment by transfer from H.S.A. and by transfer from qualified U.P.S.A. and L.P.S.A. and also by direct recruitment in the manner indicated therein. The Petitioners state that they have successfully completed the period of probation. In some of the cases, the probation has not been declared. Their grievance is that the delay in declaration of their probation has caused hardship and impediment in getting appointment as H.S.S.T. Learned Counsel for the Petitioners relies on the decision of this Court in Appukuttan Nair v. State of Kerala 1990 (2) KLT 806, wherein it was held that a person who has satisfactorily completed the period of probation should be adjusted to the substantive vacancy. It was held thus:

Their seniority in the cadre has to be reckoned from the date of commencement of probation. The delay in actual declaration of their probation due to administrative reasons and for no fault of the officers concerned can in no manner affect his seniority in the cadre. The delay in actual declaration of probation cannot have any effect on the seniority of the officer concerned.

The interveners in some of these Writ Petitions are persons included in the Rank List published by the Public Service Commission and they seek appointment as H.S.S.T. by direct recruitment. The question of direct recruitment would arise only in the absence of qualified H.S.S.T.(Junior) in the subject concerned. It is also necessary that qualified H.S.S.T. (Junior) should have successfully completed their probation. The mere fact that there is delay in declaring the probation should not be taken as a disability to H.S.S.T. (Junior) who are awaiting appointment as H.S.S.T., in getting the appointment which is otherwise due to them.

There cannot be any dispute that going by Rule 3 of the Special Rules, persons who are included in the Rank List for direct recruitment could not aspire for appointment as H.S.S.T. so long as candidates who satisfy the required qualification for appointment from the category of H.S.S.T. (Junior) are available. Now the question is whether the Petitioners are eligible to be appointed as H.S.S.T. so long as they have necessary qualification in the subject concerned and so long as they have satisfactorily completed their period of probation. They are entitled to be considered for promotion as H.S.S.T. in any vacancy which arose after the date of completion of their probation. As regards this position, there is no dispute by the Government Pleader and by the counsel for the intervenors.

A counter-affidavit is filed in the Writ Petition No. 27577 of 2007 which is adopted in all other connected cases wherein it is stated that the vacancies which arose after the date of successful completion of probation of H.S.S.T. (Junior) will only be filled up by transfer appointment of qualified H.S.S.T. (Junior) as specified in the Special Rules and K.S. and S.S.R. It is also stated that there is no basis for the apprehension of the Petitioners for denial of promotion. In paragraph No. 6 of the counter-affidavit, it is stated that the candidates would be eligible to be considered for appointment by transfer as H.S.S.T. against the vacancies that arose after the date of their declaration of probation. Learned Government Pleader concedes that this is a mistake and what is intended is with respect to the vacancies which arose after the date of successful completion of probation. As regards fee delay in declaring probation, it is stated in paragraph 12 of the counter-affidavit as follows:

The number of candidates appointed through direct recruitment as H.S.S.T./H.S.S.T. (Jr.) in 2005 is about 4800. The establishment matters of about 7000 teachers are dealt with by a limited number of ministerial staff. So the jobs related to the regularization of service and declaration of probation in respect of teachers appointed in 2005 have not yet been completed. Before regularizing their service the reports regarding the character and antecedents of each of the candidate are to be obtained from the respective Commissioner of Police or the Superintendent of Police. The qualification acquired by each candidate has to be verified. Before declaring their probation their service credentials, leave account, certificate of work, character and conduct etc. are to be verified. The verification of such details is a time consuming work which cannot be completed all on a sudden.

It is stated by the learned Counsel for the Petitioners that in the case of H.S.S.T. (Junior) (Hindi), the process of declaration of probation has been completed and the same treatment is to be made in favour of other categories of H.S.S.T. (Junior) as well. Learned Government Pleader submitted that urgent steps would be taken to complete the process of declaration of probation of H.S.S.T. (Junior) in all the subjects concerned, so that eligible candidates would not be denied appointment as H.S.S.T.

In the facts and circumstances of the case and taking into account the submissions made by the learned Counsel for the Petitioners, the learned Government Pleader and the learned Counsel for the intervenors, the Writ Petitions are disposed of with the following directions:

(i) The post of H.S.S.T. shall be filled up strictly in accordance with Rule 3 of the Special Rules for the Kerala Higher Secondary Education State Service.

(ii) When any H.S.S.T. (Junior) who is qualified and who has satisfactorily completed the period of probation is available, no candidate other than H.S.S.T. (Junior) shall be appointed against a vacancy which arose subsequent to the date of successful completion of the period of probation of H.S.S.T. (Junior).

(iii) The process for declaring successful completion of probation of the Petitioners shall be expeditiously carried out and the probation of the Petitioners concerned shall be declared without delay.

(iv) It is necessary to ensure that eligible candidates in the category of H.S.S.T. (Junior) shall not be denied appointment as H.S.S.T. only because of the delay in getting their probation declared.