JUDGMENT
K.K. Denesan, J.
WPC 18178/200
1. Petitioners are included in the rank list published by the third respondent Commission for appointment to the post of Higher Secondary School Teacher (for short ‘HSST’) in Botany. The rank list which includes a main list and a supplementary list came into force with effect from 15.7.2004. Main list contains 86 candidates. First petitioner is rank No: 83 in the main list. The second petitioner is rank No. 5 in the supplementary list of Muslim candidates.
WPC 26583/2005
Petitioner is rank No: 64 in the main list. Additional respondents 4 and 5 are HSST (juniors).
WPC 14502/2005
Petitioner is rank No: 70 in the main list.
WPC 14419/2005
Petitioner is rank No: 71 in the main list.
WPC 36992/2004
Petitioner is rank No: 57 in the main list.
2. Petitioners have prayed for a writ of mandamus directing the second respondent-Director of Higher Secondary Education to report all the vacancies of HSST in Botany reckoning the same as 75% of the total posts of HSST in Botany including posts occupied by Principals and Lecturers and Junior Lecturers deputed/deployed from private colleges and to direct the third respondent to advise candidates against all those vacancies and the second respondent to appoint the candidates thus advised as HSST Botany. Petitioners have sought for a declaration that appointments made by transfer of HSAs and Primary School Teachers in excess of 25% of the total posts is illegal and that 75% of the total posts of HSST are liable to be filled up by direct recruitment through Public Service Commission from the existing ranked list in accordance with the provisions contained in the Special Rules and to issue appropriate directions to the respondents to fill up the vacancies in accordance with the Special Rules.
3. Higher Secondary (plus 2) courses were started in the Government as also the private schools in the State of Kerala, for the first time, in the year 1991-92. During the initial few years, the requirement of teaching staff was met by utilizing the services of qualified High School Assistants and Primary School Teachers. By 1997, Government accorded sanction for the creation of a substantial number of Higher Secondary Schools in the Government as well as the private sector. Till statutory rules were framed, the service conditions of HSST were governed by executive orders. The method of appointment of HSST in the Govt. Schools was by transfer appointment of departmental teachers and by direct recruitment of open merit candidates. As per G.O.(MS)No:162/98/G.Edn. dated 13.5.98, a ratio of 25:75 was introduced between departmental hands and the direct recruits. Relevant provision thereof may be extracted as follows:
The posts of Higher Secondary School teachers in Government Higher Secondary Schools and Aided Higher Secondary Schools will be filled up as follows:
(i) 25% vacancies will be reserved for appointment from qualified High School Assistants and Primary School Teachers.
ii) The remaining 75% posts in Government schools will be filled up by direct recruitment through the Public Service Commission. In the absence of select list with the Public Service Commission the vacancies will be filled up by candidates from Employment Exchange. Should there be shortage of suitable candidates from the Employment Exchange, Guest Lecturers may be appointed as is done in colleges. The selection of Employment Exchange candidate will be done by Director of Higher Secondary Education and that of Guest Lecturers will be done by the concerned Deputy Director Education by constituting a selection committee consisting of the Principal, Deputy Director/and President of the concerned PTA.
4. A pass in the State Eligibility Test was prescribed as one of the qualifications for the departmental hands to become eligible for appointment as HSST. Disputes relating to the working up of the ratio of 25:75 and the validity of the State Eligibility Test as a condition for appointment to the post of HSST became the subject matter of Writ Petitions filed before this Court, and thereafter, Special Leave Petitions filed before the Hon’ble Supreme Court. While disposing of the Special Leave Petitions, the Apex Court as per order passed on 14.11.2000, directed the State Government to bring into force statutory rules with regard to the appointment and service conditions of the teachers of the Higher Secondary Schools.
5. Special Rules for the Kerala Higher Secondary Education State Service (hereinafter called the Special Rules for the State Service) and Special Rules for the Kerala Higher Secondary Education Subordinate Service (hereinafter called the Special Rules for the Subordinate Service) were notified as per G.O(P) No: 144/2001/G. Edn. dated 16.4.2001. State Service consists of Category No:l Principal of Higher Secondary Schools and Category No:2 consists of Higher Secondary School Teachers in various subjects starting from English to Electronics.
R.3 of the Special Rules for State Service prescribes the method of appointment. Having regard to its relevance in the context of the issues arising for consideration, the same is extracted below:
3. Appointment: Appointment to the categories shall be made as follows;-
Sl. No: Category Method of appointment
------------------------------------------------------------------------------------
1 Principal 1. By Promotion from category 2
And
2. By transfer from qualified Headmasters of High
Schools in the Kerala General Education services.
Note: The posts shall be filled up by the methods specified in item (1) and (2) above
the ratio 2:1. If qualified candidates are not available for appointment to a vacancy
by any one of the methods specified above, such vacancies shall be filled up by the
other method.
2. Higher Secondary (i) By transfer from Higher Secondary School
Teacher (Junior) in the subject concerned.
(ii) In the absence of qualified hands under clause
(1) above, the vacancies shall be apportioned
in the ratio of 1:3 between appointment by
transfer and direct recruitment as detailed below:
1) a. By transfer from High School Assistants
included in the General Education Subordinate
Services who possess the requisite qualification
in the subject concerned.
b. In the absence of qualified persons under item
(a) above, by transfer from qualified Upper
Primary School Assistants/ Lower Primary
School Assistants included in the General
Education Subordinate Service who possess
their requisite qualification in the subject
concerned.
2. By direct recruitment.
Notes:
1. When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under item II (1), such vacancies shall also be allotted for direct recruitment.
2. Appointments under item (1) above shall be made from select lists of qualified persons prepared on the basis of merit and ability.
3. Direct recruitment under item 11 (2) shall be made on Statewise basis by the Kerala Public Service Commission.
6. Appointing authority in respect of Principals is the Government and that of HSST is the Director of Higher Secondary Education,
7. Higher Secondary School Teacher (Junior) is category No: 1 in the Special Rules for Subordinate Service. Posts of Higher Secondary School Teacher (Junior) have to be filled up (1) by appointing qualified High School Assistants and Primary School Assistants in the concerned subject by transfer and (2) by direct recruitment through the Public Service Commission.
8. Rule 3 of the Special Rules for State Service makes it clear that HSST (Junior) in the subject concerned is the first option to fill up vacancies of HSST. In the absence of qualified HSST (Junior) for transfer appointment, number of posts of HSST shall be appointed in the ratio of 1:3 between departmental candidates and direct recruits vide Note 3 below Rule 3. Note 2 below Rule 3 stipulates that transfer appointments of High School Assistants and qualified Primary School Teachers shall be made from the select list of qualified persons prepared on the basis of merit and ability.
9. Appointments of HSST (Juniors) were made for the first time only as per order dated 28.6.2003. Naturally, they could join duty and commence actual service only on dates subsequent to 28.6.2003.
10. Rule 6 of the Special Rules for the Subordinate Service mandates that every person appointed to any of the categories included in that service, shall, from the date on which he joins duty be on probation, if appointed by direct recruitment or by transfer, for a total period of two years on duty within a continuous period of three years and if appointed by promotion or by transfer for a total period of two years on duty within a continuous period of two years. Since HSST (Juniors) have joined duty only after 28.6.2003, none of them could complete even the minimum period of probation of two years till 1.7.2005.
11. 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 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 requisite 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.
12. 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 Rule 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)
13. 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 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.
14. As rightly contended by the learned Counsel for the petitioners, appointments of HSST (Juniors) as HSST shall have to be made from select lists of qualified persons prepared on the basis of merit and ability. This is what Note 2 below category 2 of Rule 3 of the Special Rules for State Service mandates. Rule 28(b)(i) of Part II K.S & S.S.R clearly lays down that appointments to posts in a selection category or grade shall be made from a select list prepared from among the members eligible for appointment to such category or grade in accordance with the said rules and the special rules, on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal. The manner in which the select list shall be prepared has also been laid down in the aforesaid rule. It is therefore clear that select list is prepared from among eligible members for appointment to such category or grade. A member of the service who has not satisfactorily completed the period of probation cannot be said to be eligible for inclusion in the select list or for appointment to a higher category. Sub-rule (7) of Rule 28(b)(i) makes fhe above legal position explicit and mandatory.
15. Learned Counsel for the additional respondents argued that candidates included in the rank list of HSST can claim appointment only if HSST (Juniors) are not available. It was contended that the above preference statutorily guaranteed to HSST (Juniors) is based on the experience gained by such teachers and that Rule 2(13) of Part I K.S & S.S.R and Rule 28(b)(i) of Part II K.S. & S.S.R (otherwise called General Rules) are in conflict with Rule 3 of the Special Rules for State Service and therefore the latter shall prevail over the former.
16.1 am unable to agree with the above contentions. Though experience has got its own importance in a given fact situation, it can have relevance only to the extent the rules governing the service conditions give space for its application. It is clear from the scheme of the statutory provisions that govern the appointment of HSSTs that members belonging to the category of HSST (Juniors) who have not completed the minimum period of probation will not be eligible for appointment as HSST. Mere experience in the teaching post is no substitute for satisfactory completion of probation. Hence no valid argument can be built purely on the ground of experience.
17. There is absolutely no conflict between the Special Rules and the General Rules as far as Rule 3 of the Special Rules for State Service and Rule 2 (13) and Rule 28(b)(i) of K.S. & S.S.R are concerned. Special Rules have laid down the qualification for the post of HSST. It says that qualified hands shall be appointed by transfer. Rule 6 of the Special Rules prescribes the period of probation. General Rules supplement the above Special Rule by laying down the ubiquitous condition applicable to all members of the service that in order to become eligible for promotion or appointment, satisfactory completion of probation is a must. The above two prescriptions can go together, harmoniously. They are not inconsistent with each other or mutually exclusive. Hence the contention of the counsel for the additional respondents in WPC 26583/2005 is liable to be rejected.
18. Since the main prayer in these Writ Petitions is for a direction to the second respondent to report vacancies in the post of HSST (Botany) earmarked for direct recruitment, it is necessary to find out the number of vacancies available for direct recruitment. According to the second respondent transfer appointments have not been made to the post of HSST after 1998 and till the implementation of the Special Rules in 2001. When the Special Rules came into force, the vacancies were ascertained as on 20.9.2001 and 25% of the total vacancies earmarked for departmental teachers were filled up by transfer and 75% earmarked for direct recruits were reported to the Kerala Public Service’ Commission on 15.9.2003. Thus the total number of vacancies in Botany ascertained as on 20.9.2001 is 116. 25% of 116 is 29. Out of this 26, departmental teachers were posted as HSST by transfer from qualified HSAs on 28.6.2003 and teachers on 15.9.2003. The remaining 75% comes to 87. There are 10 teachers working as HSST on deployment from Colleges. The remaining 77 vacancies were reported to PSC on 15.9.2003 (see statement filed by the first respondent on behalf of the official respondents on 19.7.2005).
19. Sub-rule (3) of Rule 5 of Part II K.S & S.S.R says that whenever a ratio of percentage is fixed for different methods of recruitment/appointment to a post, the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time. In the light of the above provisions the statement made by the second respondent that the ratio of 1:3 has to be worked out taking into account the number of vacancies of HSST does not reflect the correct legal position. As directed by this Court vide interim orders passed on 25.11.2005 and 4.1.2006 the second respondent-Director has furnished relevant particulars pertaining to the total number of sanctioned posts and the number of HSSTs belonging to different categories actually holding the posts. Affidavit sworn to on 9.1.2006 in LA. 14636/2005 in WPC 18178/2005 may be referred to in this context. As per this affidavit number of HSSTs in Botany required for 2004-2005 and 2005-2006 is 246. It is therefore clear that the cadre strength or the total number of sanctioned posts of HSST (Botany) is “246 during the relevant period, that is, on and from the date of publication of the ranked list. When the total posts are apportioned in the ratio of 1:3,62 posts shall be earmarked for transfer appointment of departmental teachers and 184 posts shall be earmarked for direct recruits. It is admitted position that number of direct recruits is only 77. It is seen from the affidavit that the physical strength of HSST in the academic year 2004-2005 is 218 and the physical strength for 2005 2006 is 220. But, according to the petitioners the actual physical strength of HSST for 2004-2005 is 213 and for the year 2005-2006 is 215. The above difference, of five in the actual strength is due to the reason that out of the 10 Junior Lecturers ordered to be deployed as HSST only 5 had actually joined duty, Second respondent has taken into account the figure ’10’ as the actual number of deployed hands based on the number shown in the order of deployment. But it is evident that only 5 among them joined duty and 5 did not. Therefore, the actual physical strength of HSST in 2004-2005 is 213 and not 218. Similarly the actual physical strength for 2005-2006 is 215 and not 220. Whatever that be, the position that emerges is that 107 posts have to be earmarked for direct recruits in addition to 77 posts presently occupied by them (107 + 77 = 284). In order to do justice to the ratio prescribed by the Special Rules and to apply that ratio the total cadre strength, direct recruits are entitled to claim that all the 107 posts are liable to be filled up by direct recruits selected by the third respondent Commission. However, taking into account certain realities that have come into existence as a result of indiscriminate and bulk issue of orders in favour of transfer appointees belonging to the category of departmental teachers in the High Schools and the Primary Schools during the initial few years and consequently the actual physical vacancy is far below than what it ought to be, that is, 107 the petitioners have moulded the prayers in such a manner that at least the entire vacancies actually available shall be directed to be reported to the Public Service Commission. Viewed in that factual situation, 36 vacancies are liable to reported (246-215 + 5 = 36) to the respondent Commission. The figure 246 represents the total number of posts, the figure 215 represents the actual physical strength and the balance 5 represents posts held by Junior Lecturers deployed from colleges under executive orders.
20. There is force in the submission made by the counsel for the petitioners that posts occupied by Junior Lecturers under orders of deployment shall be deemed to be vacant posts because the Special Rules do not provide for the appointment of anybody by way of deployment from the college service or elsewhere. It is only reasonable to find that the aforesaid 5 posts shall be deemed to be vacant and 5 Junior Lecturers working as HSST on deployment can be allowed to continue against supernumerary posts, until they are repatriated to their parent service or regularly absorbed as HSST in accordance with law.
21. In the result, these Writ Petitions are allowed. It is declared that 36 vacancies of HSST (Botany) are to be filled up by direct recruitment from among candidates included in the rank list published by the respondent Commission over and above the direct recruits who were already advised and appointed. Vacancies reported as per the interim orders passed by this Court shall be utilised for advising candidates from the rank list. The rider incorporated therein that candidates need not be advised until further orders shall stand deleted. If additional vacancies are to be reported to make up the deficiency, the same shall be done forthwith so that, the total number of vacancies to be reported to the respondent Commission will not be less than 36. The respondent Commission shall advise the candidates against vacancies already reported and the further vacancies to be reported pursuant to the above findings and directions. Needless to state that as soon as eligible candidates are advised by the Commission, the second respondent shall issue appointment orders, as expeditionsly as possible, at any rate within two weeks from the date of receipt of the advice letters in the office of the second respondent.