IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31366 of 2008(H)
1. PRABHA VASUDEV.G., D/O.G.VASUDEVAN NAIR,
... Petitioner
2. LAKSHMI.V.RADHAKRISHNAN,
3. NISHAD.V.K., S/O.A.KOYAKUTTY, AGED 33
4. ANIMON.V.V, S/O.VISWANATHAN.C.N,
5. SAJITH.T, S/O.THOMAS, AGED 30 YEARS,
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR, HIGHER SECONDARY
For Petitioner :SRI.JOICE GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :28/10/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) Nos. 31366 OF 2008 (H)
31574 OF 2008 (H) & 31227 OF 2008 (P)
==========================
Dated this the 28th day of October, 2008
J U D G M E N T
The issue that arises for consideration in these cases being similar,
these cases are disposed of by this common judgment. For convenience, I
shall be referring to the pleadings and documents in W.P.(C)No.
31366/2008.
2. Petitioners are HSA’s who are aspiring to be appointed as
HSST’s in the by transfer quota earmarked for HSA’s, as per the provisions
contained in the Special Rules for the Kerala Higher Secondary Education
State Service (hereinafter referred to as the “Special Rules” for short).
Ext.P6 notification has been issued by the 2nd respondent inviting
applications for preparation of a state wise seniority list of qualified HSAs/
UPSAs/ LPSAs for ‘by transfer’ appointment to the post of HSST/ HSST (Jr).
3. The complaint of the petitioners is regarding the prescription
in the notification that the applicants should have satisfactorily completed
probation. Referring to Ext.P7, a notification issued on 30.05.2005, it is
contended that on the previous occasion, consistent with the Special
Rules, successful completion of probation, was not a condition prescribed.
WPC Nos. 31366/08 (H), 31227/08 (P)
& 31574/08 (H)
: 2 :
On this basis it is contended that the aforesaid prescription is illegal and
unwarranted.
4. As noticed the dispute lies in a narrow compass, i.e., whether
the respondents could have insisted that only those successfully completed
probation could have applied against Ext.P6 notification. Admittedly, none
of the petitioners have successfully completed probation. In my view, this
issue has to be decided against the petitioners. This is for the reason that
on a combined reading of the Special Rules and the KS & SSR, only a full
member or an approved probationer is entitled to by transfer appointment
to the post of HSST/ HSST (Jr.).
5. In the context of the Special Rules, similar claim raised by
HSST (Jrs) for appointment as HSST, was considered by this Court in
Shamna vs. State of Kerala (2006 (2) KLT 673), where it has been
held as follows:
“Learned counsel for the petitioners contended that HSST
(Juniors) who have not completed probation are not entitled to
be considered for transfer appointment to the post of HSST
even if they possess the qualification prescribed by the Special
Rules. Learned counsel for additional respondents 4 and 5 in
WPC No.26483/2005 on the other hand contended that
satisfactory completion of probation is not a condition
prescribed in the Special Rules for transfer appointment to the
post of HSST and therefore, HSST (Juniors) having the requisiteWPC Nos. 31366/08 (H), 31227/08 (P)
& 31574/08 (H): 3 :
qualification are entitled to be appointed by transfer against all
available vacancies of HSST irrespective of their completing two
years and the declaration of probation.
On a conspectus of the relevant statutory provisions, I
find force in the argument advanced by the learned counsel for
the petitioners. Rule 2(1) of Part I of Kerala State &
Subordinate Service Rules, 1958 (for short ‘K.S & S.S.R’) says
that a person is said to be “appointed to a service” when in
accordance with the said rules or in accordance with the rules
applicable at the time, as the case may be, he discharges for
the first time duties of a post borne on the cadre of such
service or commences the probation, instruction or training
prescribed for members thereof. It is laid down in Rule 2(13)
that a candidate can be said to be recruited by transfer to a
service if only he is either a “full member” or an “approved
probationer” in the class or category. The proviso to the above
sub-rule says that where the Special Rules for a service provide
for recruitment by transfer to any class or category thereof
from any specified class or category of another service, a
candidate shall, unless the recruitment is made from a post
carrying an identical scale of pay, be a full member or an
approved probationer in the class or category so specified.
Hence if the Special Rules have prescribed a period of
probation, members of that service will not become eligible for
appointment by transfer to another service or post without
satisfactorily completing the period of probation. The term ‘full
member of a service” means a person who is appointed
substantively to a permanent post borne on the cadre thereof.
(see R.2(7) of Part I, K.S. & S.S.R). “Approved probationer in
service” means a person who has satisfactorily completed his
probation and awaits appointment as a full member of such
service, class or category (see Rule 2(3) of Part I, K.S. & S.S.R)
Since none of the HSST (Juniors) had become either full
member or approved probationer in that category or service,
they were not entitled for transfer appointment from the
Subordinate Service to the post of HSST in the State Service.
Post of HSST (Junior) carries a lower time scale when
WPC Nos. 31366/08 (H), 31227/08 (P)
& 31574/08 (H)
: 4 :
compared to the pay scale of HSST. It is pertinent to note that
members of the service who belong to the category of HSST
(Junior) will not automatically become entitled to be appointed
as HSST solely on the basis of their qualification for the post.”
This judgment of the Learned Single Judge has been confirmed by
the Division Bench in W.A.No. 1000 of 2006 and connected cases, where
in para 7, it has been specifically held that only those who had completed
their probation are eligible.
6. In view of the position as above, the claim of the petitioners
to be considered in response to Ext.P6 notification is unsustainable and is
liable to be rejected. The writ petitions are accordingly dismissed.
ANTONY DOMINIC, JUDGE
Rp