BY AD vs SRI. P.C SASIDHARAN

BY ADVS. SRI. P.C SASIDHARAN SRI. PREMCHAND R NAIR, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.365 of 2024 3 JUDGMENT Dated this the 28th day of March, 2025 Petitioner has approved service as HSA (English) in the School from 02.01.2006 to 31.03.2006. She commenced continuous service from 05.06.2006. While continuing so, being qualified, the petitioner was granted by-transfer appointment as HSST (Junior) English from 28.10.2019. It was duly approved as well. Yet, she is not paid in the category of HSST (Junior). The salary which was being paid in the category of HSA is also stopped by Ext.P6. It is highly arbitrary and grossly illegal, contends the petitioner.

2. The petitioner submitted that the post of HSST (Junior) English had been duly sanctioned as per Ext.P5. Before granting by-transfer appointment to the petitioner as HSST (Junior) English, the Manager addressed WP(C) No.365 of 2024 4 the Government stating it vividly. The 3rd respondent also addressed the Government stating that 7 posts of HSST (Junior) are available and of these, 2 posts shall be filled up under by-transfer method. The petitioner has thus been continuing as HSST (Junior) English since 28.10.2019 under by-transfer appointment with approval as born out from Exts.P4 and P5(a) to P5(e). That position is reversed without notice and in violation of the principles of natural justice.

3. By-transfer appointment of the petitioner and approval since 28.10.2019 has been unilaterally undone by the 3rd respondent without notice to the petitioner. The reason stated by the 3rd respondent to undo Exts.P3 and P4 is that two posts cannot be set apart for by-transfer appointment when the sanctioned strength of HSST (Junior) is only 7. It was duly intimated to respondents 1 to 3 before granting by- transfer appointment to the petitioner as HSST (Junior) as born out from Exts.P5(a) to P5(e). Evidently, 7 is the number WP(C) No.365 of 2024 5 of sanctioned posts for HSST (Junior).

4. The question is whether the second by- transfer appointment under 25% quota is justified as per Ext.P9. The by-transfer appointment of the petitioner was not something which was made overnight keeping the 3rd respondent on tenterhook or under coercion. Exts.P5(a) to P5(e) evidence the stages of the by-transfer appointment of the petitioner.

5. The question of percentage and fraction of quota could be reconciled once the principles laid down by this Court as per the judgment dated 22.03.2019 in W.P.(C) No.32968/2015 is applied on all fours. It is declared by the 3rd respondent that the petitioner will not be paid even the scale of HSA Salary, contends the petitioner.

6. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader representing respondents 1 to 4. WP(C) No.365 of 2024 6

7. Going through the pleadings, I find that the petitioner has preferred Ext.P11 Revision Petition in this regard, invoking the provisions of the KER. As Ext.P11 is a statutory Revision Petition, it would be only appropriate that the 1st respondent considers the same in accordance with law. The writ petition is therefore disposed of directing the 1st respondent to consider Ext.P11 Revision Petition and take appropriate decision thereon within a period of four months, after granting an opportunity of hearing to the petitioner. Till orders are passed on Ext.P11, the benefit of the interim order passed in this case will continue to enure to the benefit of the petitioner. Sd/- N.NAGARESH JUDGE WP(C) No.365 of 2024 7 APPENDIX OF WP(C) 365/2024 PETITIONER EXHIBITS Exhibit P-1 Exhibit P-2 TRUE COPY OF APPOINTMENT ORDER DATED 02.01.2006 ALONG WITH APPROVAL RECORDED THEREON DATED 05.10.2006 TRUE COPY OF APPOINTMENT ORDER DATED 05.06.2006 ALONG WITH APPROVAL RECORDED THEREON DATED 19.01.2007 Exhibit P-3 TRUE COPY OF THE APPOINTMENT ORDER DATED 28.10.2019 Exhibit P-4 TRUE COPY OF THE APPROVAL ORDER OF 3RD NO. RESPONDENT D/13572/2019/RDD/MLPM/HSE DATED 14.08.2020 ORDER VIDE Exhibit P-5 TRUE COPY OF ORDER OF 3RD RESPONDENT VIDE ORDER NO.D/55/2018/RDD/HSE/MLPM DATED 13.03.2018 Exhibit P-5(a) TRUE COPY OF THE LETTER SUBMITTED BY THE MANAGER BEFORE THE GOVERNMENT DATED 26.09.2019 Exhibit P-5(b) TRUE COPY OF THE LETTER SUBMITTED BY THE 3RD RESPONDENT TO GOVERNMENT VIDE NO. D/8230/19/RDD/HSE/MLPM DATED 30.09.2019 Exhibit P-5(c) TRUE COPY OF G.O(RT) NO. 4005/2019/G.EDN DATED 04.10.2019 WP(C) No.365 of 2024 8 Exhibit P-5(d) TRUE COPY OF SELECTION COMMITTEE MINUTES DATED 26.10.2019 Exhibit P-5(e) TRUE COPY OF THE ORDER NO. A1/2019- 20/HSE DATED 28.10.2019 Exhibit P-6 Exhibit P-7 Exhibit P-8 Exhibit P-9 TRUE COPY OF THE ORDER OF 3RD NO. RESPONDENT D/3189/23/RDD/HSE/MLPM DATED 20.12.2023 ORDER VIDE TRUE COPY OF THE DECISION REPORTED IN 2017(3) KHC 429 DATED 19.06.2017 (AJITH KUMAR K.V V. STATE OF KERALA AND OTHERS) TRUE COPY OF THE DECISION REPORTED IN 2020 (1) KHC 236 DATED 04.12.2019 (ABDULLA T.A V. SUPPLYCO AND OTHERS) TRUE COPY OF CIRCULAR NO. A.C.D.C1/9000/2013/HSE DATED 18.07.2013 ISSUED BY 2ND RESPONDENT Exhibit P-10 TRUE COPY OF THE JUDGMENT IN W.P(C) NO. 32968/2015 DATED 22.03.2019 Exhibit P-11 TRUE COPY OF REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 22.12.2023 Exhibit P-12 TRUE COPY OF THE CIRCULAR NO. 23323/J1/89/G.EDN DATED 06.11.1989 Exhibit P-13 TRUE COPY OF G.O(RT) NO. 1332/2020/G.EDN DATED 17.03.2020 Exhibit P-14 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 20953/2021 DATED 04.10.2021 WP(C) No.365 of 2024 9 Exhibit P-15 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 32084/2017 DATED 09.10.2017 Exhibit P-16 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 33755/2016 DATED 07.12.2016