G.R.Roshini vs State Of Kerala

T.R. Ravi, J.

The writ petition has been filed challenging Ext.P3 order, whereby the claim of the petitioner to be senior to the 5th respondent has been negatived. There is also a prayer for a declaration that the petitioner is the seniormost HSST of the 4th respondent School and entitled to appointment as Principal with effect from the date of occurrence of the vacancy, that is, 01.06.2019 instead of the 5th respondent, who is junior to the petitioner. There is no dispute with regard to the dates of appointment. The petitioner was appointed directly as HSA on 05.06.1995 and later as HSST (Malayalam) on 07.08.2000. The 5th respondent entered service as UPSA on 11.07.1994, became HSA on 05.06.2000 and as HSST on 07.08.2000. A vacancy to the post of Principal arose on 01.04.2019. The Government in Ext.P3 order has taken a view that the 5th respondent is senior since the date of first appointment as UPSA which is 11.07.1994 is prior to the first appointment of the petitioner as HSA on 05.06.1995. The view of the Government is on the basis of Rule 37(2) of Chapter XIV A KER, which says that in the case of Teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment and if the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior. The contention of the petitioner is that Rule 37(2) of Chapter XIV A cannot be relied upon for determining the seniority in the HSST cadre and Chapter XXXII alone can be looked into for that purpose.

A counter affidavit has been filed by the Government, wherein it is stated that if the seniority in the service as HSA is taken into account, the petitioner will be senior, but if the date of first appointment is taken into account, the 5th respondent will be senior. The counter affidavit also stated that Ext.P3 order is reasonable and legal since it goes by the first appointment as required under Rule 37 (1) & (2).

A Division Bench of this Court has considered the issue in the judgment in Ramesan & Ors. v. Manoj Kumar & Ors. [2019 (3) KHC (DB)]. In the case before the Division Bench, the appellant Ramesan was appointed as UPSA on 15.07.1992, became an HSA on 01.06.1998 and thereafter he was appointed as HSST on 02.08.2000. The contesting respondent Manoj Kumar was appointed as HSA on 18.7.1995 while the appellant Ramesan was continuing as a UPSA and he was also appointed as HSST on 02.08.2000. Going by the date of appointment as UPSA, Ramesan was senior. In the cadre of HSA, Manoj Kumar was admittedly senior. If Rule 37(2) of Chapter XIV A is applied, Ramesan was entitled to succeed. The Division Bench considered the effect of Rule 2 of Chapter XXXII of KER which is a non obstante clause making the method of appointment and promotion in Higher Secondary Section to be only in accordance with Chapter XXXII in exclusion of the other provisions in the KER and held that no parallel could be drawn from Rule 37 of Chapter XIVA. The Court considered Chapter XXXII and held that the provision provides sufficient guidelines to determine the seniority as between by transfer appointees to the cadre of HSST. Paragraph 17 of the judgment is extracted below;

“17. We, find that there is no complete lacuna in Chapter XXXII, at least insofar as the fixation of seniority as against by-transfer appointments made to the cadre of HSST. As in the present case, if 12 posts were to be filled up in the cadre of HSST. Rule 6 Sl.No.1(2) provides that in the absence of persons in the cadre of HSST (Junior), the HSST posts can be filled up from HSA's/UPSA's and by direct recruitment in the ratio of 1:3. The ratio provided, enables by-transfer appointment to the vacancies coming at positions 1, 5, 9 and so on. This provides sufficient guidelines to determine the seniority as between the by-transfer appointees to the cadre of HSST. Obviously on operation of the ratio of 1:3 the first vacancy would go to the senior most, the 5th one to the then junior and the 9th one to the 3rd in seniority. Hence as against the HSA's promoted by-transfer, to the post of HSST there is no difficulty in determining the seniority. The senior among the HSA's would be senior in the cadre of HSST also. This is not reckoning the service of HSST for seniority, but, the mandate of the rule which prescribes a ratio for appointment.

It can thus be seen that the seniormost in the post of HSA would be the senior in the cadre of HSST also if the date of appointment as HSST is the same.

Going by the judgment of the Division Bench, in the case on hand, the petitioner is senior in the cadre of HSA. As the petitioner and the 5th respondent were promoted on the same day as HSST, necessarily the petitioner has to be held to be senior to the 5th respondent in the cadre of HSST. The petitioner is hence entitled to succeed.

In the result, the writ petition is allowed. Ext.P3 is set aside. It is declared that the petitioner is the seniormost HSST in the 4th respondent school and entitled to be appointed as Principal with effect from the date of occurrence of vacancy, i.e., 01.06.2019. The 4th respondent Manager shall issue necessary orders appointing the petitioner, the seniormost HSST of the School, as Principal with effect from 01.06.2019 and the proposal shall be placed before the Educational Authorities for approval, which shall be done within three weeks from the date of receipt of the proposal from the Manager. The Manager shall submit the proposal within two weeks from the date of receipt of a certified copy of this judgment.