Manager vs State Of Kerala And Ors

The Manager of “Cherupushpam Girls Higher Secondary Schoolâ€, Palakkad, has approached this Court impugning Exts.P1 and P3 orders, by

which, the competent Educational Authorities have denied approval to the appointment offered by him to the 4th respondent - Sr.Dessy V.J., by

transfer as Higher Secondary School Teacher (Jr).

According to the petitioner, the provisions of law enable appointment of a teacher by transfer even in violation of the ratio prescribed under Rule 4

of Chapter XXXII of the Kerala Education Rules (KER for short) and therefore, that the Educational Authorities have erred in having rejected the

appointment of the 4th respondent. The petitioner, therefore, prays that Exts.P1 and P3 be set aside and the appointment of the 4th respondent be

directed to be approved.

In response to the above submissions made on behalf of the petitioner by Shri.K.T.Shyam Kumar, the learned Senior Government Pleader -

Shri.P.M.Manoj, submitted that a counter affidavit has been placed on record, wherein, it has been contended that since the first vacancy in the

School had been filled up through a transfer â€" appointment, the next three vacancies ought to have been filled up only through direct recruitment. He

submitted that since the vacancy in question was the second one, the only method of appointment ought to have been resorted to was by direct

recruitment and no other.

The learned Senior Government Pleader relied on Note 1 to Rule 4(2) of Chapter XXXII of the KER to contend that though the vacancies set apart

for transfer appointment can be filled up through direct recruitment, when there is no eligible teacher, the vice versa situation is prohibited. He

submitted that this is more so because of the latest judgment of the Hon'ble Supreme Court wherein, the statutory ratio has been affirmatively

mandated to be maintained. He, therefore, prayed that this writ petition be dismissed.

In reply, Shri.K.T.Shyam Kumar, learned counsel for the petitioner, submitted that pending this writ petition, Government has issued a further

communication, bearing number SC/1/8/2019 dated 09/04/2019, wherein, approval to the appointments made by transfer in violation of the statutory

ratio, prior to the judgment of the Hon'ble Supreme Court, has also been directed to be considered, if there was no other impediment standing in the

way. He, therefore, prayed that Government be directed to reconsider the matter, taking note of the afore mentioned Circular issued by them and that

this writ petition be ordered at least to that extent.

When I consider the afore submissions, prima facie, it is apodictic that the Educational Authorities have followed the mandate of Rule 4 Chapter

XXXII of the KER, while issuing Exts.P1 and P3. This is because, when there were two vacancies available in the School, it is indubitable that the

first one ought to have been filled up through transfer, while the second could have been filled up only by direct recruitment. However, the Manager

appointed the 4th respondent again by transfer to the second vacancy and the Educational Authorities, therefore, objected to it citing violation of the

statutory ratio.

That said, however, since Shri.K.T.Shayam Kumar submits that Government themselves have clarified that the appointments made prior to the

judgment of the Hon'ble Supreme Court can be considered for regularization, through their Circular No.SC/1/8/2019 dated 09/04/2019, and through a

subsequent order dated 03/08/2020, I am of the view that the petitioner must be given the limited latitude of having his claims considered in terms of

the said Circular as also any other precedent or material that the petitioner may place before the competent Authority.

For the sole reason above, I order this writ petition and set aside Exts.P3; with a consequential direction to the competent Secretary of the

Government to reconsider the proposal for approval of appointment of the 4th respondent, after affording an opportunity of being heard to the said

respondent and the petitioner herein â€" either physically or through video conferencing â€" thus culminating in an appropriate order thereon, as

expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment.

Needless to say, since the afore directions have been issued solely based on the submissions of Shri.K.T.Shyam Kumar, that Government Circular

No.SC/1/8/2019 dated 09/04/2019, as also its order dated 03/08/2020, give leeway for approval of the appointment of the 4th respondent, the

competent Secretary of the Government will advert to this Circular and Order specifically, while fresh orders are issued in terms of this judgment.