✦ High Court of India · 04 Apr 2025

BY AD vs V.A.MUHAMMED

Case Details High Court of India · 04 Apr 2025
Court
High Court of India
Decided
04 Apr 2025
Bench
N NAGARESH
Length
1,110 words

SMT. P. NILEENA, HSST, (ENGLISH), SN HSS, IRINJALAKUDA, THRISSUR DISTRICT, PIN – 680125. BY ADV.SMT. ANIMA M., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.13799 of 2025 :3: J U D G M E N T Dated this the 4th day of April, 2025 The petitioner states that she entered service in the School as UPSA from 07.07.2006 onwards and she has got approval as well. She is qualified to hold the post of HSST (Botany), for she has M.SC (Botany), B.Ed (Natural Science) and SET (Botany). She has served as HSA (Natural Science) in the School from June, 2016 to June, 2018, as against a leave vacancy.

2. The petitioner states that Smt.K.C.Bindu, HSST (Botany) was the Principal of the School. She retired on

31.03.2024. Thus, a vacancy in the cadre of HSST (Botany) arose on 01.04.2024. The petitioner then claimed by-transfer appointment against the said post in writing. But the request was ignored by the Manager. Since Ext.P1 was left unattended W.P.(C)No.13799 of 2025 :4: to, the petitioner moved the 3rd respondent with petition dated

28.06.2024, seeking for issuance of necessary direction to the Manager to grant by-transfer appointment to the petitioner as HSST (Botany).

3. Ext.P2 was resolved by the 3rd respondent as per letter dated 05.08.2024. In Ext.P3, the fact of the availability of the post of HSST (Botany) vacant in 2024 is declared. Ext.P3 also indicates that one vacancy of HSST (English) arose in the recruitment year 2024 under the Management.

4. The petitioner further states that Smt.C.R. Latha, HSST (English), retired on 30.04.2024. It is the second vacancy of HSST that arose on 01.05.2024, the first vacancy being HSST (Botany), which arose on 01.04.2024. It is asserted that the first vacancy in the category of HSST arose under the Management was in the category of Botany owing to the retirement of Smt. K.C. Bindu, HSST (Botany) turned Principal W.P.(C)No.13799 of 2025 :5: who retired on service on 31.03.2024. In the circumstances, it is obligatory on the part of the Management to grant the first post in the category of HSST i.e HSST (Botany), for appointment under by-transfer.

5. The manner in which the 1:3 ratio should be followed in the matter of appointment for the post of HSST between by-transfer appointment and direct recruitment is explained by the Hon'ble Supreme Court in the case of V.K.Girija v. Reshma Parayil and others [2018 KHC 6960]. It is clear from the said judgment that the by-transfer appointment goes to the first vacancy. Necessarily, therefore, in the recruitment year 2024, the post of HSST (Botany) ought to be filled up under by-transfer appointment, granting the said position to the petitioner.

6. The petitioner submits that there are no other qualified hands in the category of either HSA or UPSA, duly W.P.(C)No.13799 of 2025 :6: qualified, for being appointed as HSST (Botany), than the petitioner. Now, the second post in the category of HSST is filled up by appointing Smt.P.Nileena, HST (English) as HSST (English) by the Management. It certainly offends the Rule. The said post of HSST (English) is the second one in the recruitment year (2024) which ought to be filled up under direct recruitment. That apart, the qualifications that are possessed by the appointee, Smt.P.Nileena, HSST (English), are not declared equivalent qualifications for the post of HSST (English) by any one of the Universities in Kerala. She obtained the qualifications under distance education from Madurai Kamaraj University in

2014. By the time she acquired the aforesaid qualifications through distance mode, the very affiliation of the said University was cancelled by the UGC. The UGC had reservation in conducting distance education by Universities beyond their territorial jurisdiction. W.P.(C)No.13799 of 2025 :7:

7. I have heard the learned Counsel for the petitioner and the learned Government Pleader representing respondents 1 to 3.

8. The petitioner is challenging the appointment of the 5th respondent as HSST. The petitioner would submit that there is no justification in denying the approval of the appointment of the petitioner as HSST. Equally, the by-transfer appointment granted to the 5th respondent is highly arbitrary.

9. Be that as it may, I find that the petitioner has preferred Exts.P6 and P7 representations before the 2nd respondent in this regard. In the facts of the case, it would be sufficient if the 2nd respondent takes a decision in the matter after hearing the petitioner and the 5th respondent, taking note of Ext.P4 judgment also. The writ petition is therefore disposed of directing the 2nd respondent to consider Exts.P6 and P7 representations W.P.(C)No.13799 of 2025 :8: submitted by the petitioner and pass appropriate orders thereon within a period of three months, after giving an opportunity of hearing to the petitioner, the 5th respondent and the Manager, adverting to Ext.P4 also. It is made clear that this Court has not expressed any opinion on the merits of the claim raised by the petitioner. Sd/- N. NAGARESH JUDGE W.P.(C)No.13799 of 2025 :9: APPENDIX OF WP(C) 13799/2025 PETITIONER EXHIBITS Exhibit P-1 Exhibit P-2 Exhibit P-3 Exhibit P-4 Exhibit P-5 Exhibit P-6 Exhibit P-7 TRUE COPY OF THE LETTER OF THE PETITIONER ADDRESSING THE MANAGER DATED 03.04.2024 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE RDD HSE DATED 28.06.2024 TRUE COPY OF THE LETTER OF THE RDD HSE, EKM ADDRESSING THE PETITIONER DATED 05.08.2024 TRUE COPY OF THE DECISION REPORTED IN 2018 KHC 6960 (GIRIJA V.K V. RESHMA PARAYIL AND OTHERS) DATED 04.12.2018 TRUE COPY OF THE REVISION SUBMITTED BY THE PETITIONER BEFORE THE RDD HSE, EKM DATED 11.10.2024 TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR DATED 16.01.2025 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF GENERAL EDUCATION DATED 31.01.2025

SMT. P. NILEENA, HSST, (ENGLISH), SN HSS, IRINJALAKUDA, THRISSUR DISTRICT, PIN – 680125. BY ADV.SMT. ANIMA M., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.13799 of 2025 :3: J U D G M E N T Dated this the 4th day of April, 2025 The petitioner states that she entered service in the School as UPSA from 07.07.2006 onwards and she has got approval as well. She is qualified to hold the post of HSST (Botany), for she has M.SC (Botany), B.Ed (Natural Science) and SET (Botany). She has served as HSA (Natural Science) in the School from June, 2016 to June, 2018, as against a leave vacancy.

2. The petitioner states that Smt.K.C.Bindu, HSST (Botany) was the Principal of the School. She retired on

31.03.2024. Thus, a vacancy in the cadre of HSST (Botany) arose on 01.04.2024. The petitioner then claimed by-transfer appointment against the said post in writing. But the request was ignored by the Manager. Since Ext.P1 was left unattended W.P.(C)No.13799 of 2025 :4: to, the petitioner moved the 3rd respondent with petition dated

28.06.2024, seeking for issuance of necessary direction to the Manager to grant by-transfer appointment to the petitioner as HSST (Botany).

3. Ext.P2 was resolved by the 3rd respondent as per letter dated 05.08.2024. In Ext.P3, the fact of the availability of the post of HSST (Botany) vacant in 2024 is declared. Ext.P3 also indicates that one vacancy of HSST (English) arose in the recruitment year 2024 under the Management.

4. The petitioner further states that Smt.C.R. Latha, HSST (English), retired on 30.04.2024. It is the second vacancy of HSST that arose on 01.05.2024, the first vacancy being HSST (Botany), which arose on 01.04.2024. It is asserted that the first vacancy in the category of HSST arose under the Management was in the category of Botany owing to the retirement of Smt. K.C. Bindu, HSST (Botany) turned Principal W.P.(C)No.13799 of 2025 :5: who retired on service on 31.03.2024. In the circumstances, it is obligatory on the part of the Management to grant the first post in the category of HSST i.e HSST (Botany), for appointment under by-transfer.

5. The manner in which the 1:3 ratio should be followed in the matter of appointment for the post of HSST between by-transfer appointment and direct recruitment is explained by the Hon'ble Supreme Court in the case of V.K.Girija v. Reshma Parayil and others [2018 KHC 6960]. It is clear from the said judgment that the by-transfer appointment goes to the first vacancy. Necessarily, therefore, in the recruitment year 2024, the post of HSST (Botany) ought to be filled up under by-transfer appointment, granting the said position to the petitioner.

6. The petitioner submits that there are no other qualified hands in the category of either HSA or UPSA, duly W.P.(C)No.13799 of 2025 :6: qualified, for being appointed as HSST (Botany), than the petitioner. Now, the second post in the category of HSST is filled up by appointing Smt.P.Nileena, HST (English) as HSST (English) by the Management. It certainly offends the Rule. The said post of HSST (English) is the second one in the recruitment year (2024) which ought to be filled up under direct recruitment. That apart, the qualifications that are possessed by the appointee, Smt.P.Nileena, HSST (English), are not declared equivalent qualifications for the post of HSST (English) by any one of the Universities in Kerala. She obtained the qualifications under distance education from Madurai Kamaraj University in

2014. By the time she acquired the aforesaid qualifications through distance mode, the very affiliation of the said University was cancelled by the UGC. The UGC had reservation in conducting distance education by Universities beyond their territorial jurisdiction. W.P.(C)No.13799 of 2025 :7:

7. I have heard the learned Counsel for the petitioner and the learned Government Pleader representing respondents 1 to 3.

8. The petitioner is challenging the appointment of the 5th respondent as HSST. The petitioner would submit that there is no justification in denying the approval of the appointment of the petitioner as HSST. Equally, the by-transfer appointment granted to the 5th respondent is highly arbitrary.

9. Be that as it may, I find that the petitioner has preferred Exts.P6 and P7 representations before the 2nd respondent in this regard. In the facts of the case, it would be sufficient if the 2nd respondent takes a decision in the matter after hearing the petitioner and the 5th respondent, taking note of Ext.P4 judgment also. The writ petition is therefore disposed of directing the 2nd respondent to consider Exts.P6 and P7 representations W.P.(C)No.13799 of 2025 :8: submitted by the petitioner and pass appropriate orders thereon within a period of three months, after giving an opportunity of hearing to the petitioner, the 5th respondent and the Manager, adverting to Ext.P4 also. It is made clear that this Court has not expressed any opinion on the merits of the claim raised by the petitioner. Sd/- N. NAGARESH JUDGE W.P.(C)No.13799 of 2025 :9: APPENDIX OF WP(C) 13799/2025 PETITIONER EXHIBITS Exhibit P-1 Exhibit P-2 Exhibit P-3 Exhibit P-4 Exhibit P-5 Exhibit P-6 Exhibit P-7 TRUE COPY OF THE LETTER OF THE PETITIONER ADDRESSING THE MANAGER DATED 03.04.2024 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE RDD HSE DATED 28.06.2024 TRUE COPY OF THE LETTER OF THE RDD HSE, EKM ADDRESSING THE PETITIONER DATED 05.08.2024 TRUE COPY OF THE DECISION REPORTED IN 2018 KHC 6960 (GIRIJA V.K V. RESHMA PARAYIL AND OTHERS) DATED 04.12.2018 TRUE COPY OF THE REVISION SUBMITTED BY THE PETITIONER BEFORE THE RDD HSE, EKM DATED 11.10.2024 TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR DATED 16.01.2025 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF GENERAL EDUCATION DATED 31.01.2025

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