P.S. Gopinathan, J.@mdashFourth Respondent in W.P. (C) No. 12881/2004 is the Appellant. The first Respondent herein, Smt. P. Asha Sindhu is the writ Petitioner. On 15-7-1998, she was appointed as an Upper Primary School Assistant in PRW Higher Secondary School, of which the 4th Respondent is the Manager. On 1-4-2000, she was promoted as High School Assistant (Malayalam). While so, the High School was upgraded as Higher Secondary School with effect from 2003-2004. Consequently, 12 posts of Higher Secondary School Teachers (HSST) were created, of which one is in Malayalam. As per the existing Rules, 75% of the posts are to be filled up by direct recruitment. The remaining 25% shall be filled up by transfer from the High School Assistants in the subject concerned under the educational agency. In the absence of High School Assistants, Assistants in Primary, both Upper and Lower, are entitled. The 4th Respondent in his wisdom opted three posts namely, in Physics, History and Economics to be filled up by transfer appointment and invited applications from those who are working in the school. Though the first Respondent, who is duly qualified, applied for, she was not given appointment stating that the post in Malayalam is reserved for direct recruitment. On the other hand, the 5th Respondent, who was an Upper Primary School Assistant, was appointed as HSST (Economics). The Appellant, a direct recruitee was appointed as HSST (Malayalam). In Physics and History two qualified HSAs were appointed.
2. The first Respondent, though applied for direct recruitment, it was stated that she was not selected. Being aggrieved she preferred Ext.P-5 representation to the 3rd Respondent quoting relevant provisions regarding the method of appointment. But, no action was taken on Ext.P-5. Aggrieved by the inaction of the 3rd Respondent in disposing Ext.P-5, the first Respondent moved this Court by filing W.P. (C) No. 29985/2003 and obtained a judgment dated 24-9-2003 whereby the 3rd Respondent was directed to hear the first Respondent and to pass appropriate orders. The 3rd Respondent by Ext. P-7 dated 11-3-2004 rejected Ext. P-5. The appointment of the Appellant as HSST (Malayalam) was approved. Feeling aggrieved the first Respondent moved the writ petition seeking a declaration that she is entitled to be appointed as HSST (Malayalam) in the service quota of 25% instead of appointing the 5th Respondent who was only an Assistant in the Upper Primary School and that the appointments of the Appellant as HSST (Malayalam) and that of the 5th Respondent as HSST (Economics) are illegal and ultra vires of the rules and for a writ of mandamus directing the 3rd Respondent to consider the first Respondent for appointment in the service quota after quashing Ext. P-5.
3. The learned Single Judge by judgment dated 17-5-2010 found that, though the 4th Respondent had the discretion to choose the subject, he cannot exercise the same so as to deny right of a qualified person and to appoint the juniors. The learned Single Judge in arriving at a conclusion followed the decision of the Apex Court in Valsala Kumari Devi''s case as well as a Division Bench of this Court in Viswanathan''s case 2007 (4) KLT 494 and
4. The learned Counsel for the first Respondent took notice. We heard the learned Counsel for the Appellant as well as the first Respondent and the learned Government Pleader representing Respondents 2 and 3.
5. Rule 4(3) of Chapter XXXII of the Kerala Education Rules quoted in the impugned judgment would show that while making appointment by transfer, qualified UPSA/LPSA can be considered only in the absence of High School Assistants. It is not disputed that the first Respondent had applied for appointment as HSST (Malayalam) by transfer appointment for which she was qualified. While the 4th Respondent selecting the post in Economics for by transfer appointment, the 4th Respondent was aware that no qualified High School Assistants had advanced claim for appointment in Economics. Whereas, the first Respondent had made claim for HSST (Malayalam). As stated earlier, in Physics and History there were qualified High School Assistants and they were given due appointments. It is obvious that the 4th Respondent selected Economics for by transfer appointment with the knowledge that such selection would, in fact, defeat the claim of the first Respondent and would give a chance to the 5th Respondent, who is entitled to claim for by transfer appointment only in the absence of an HSA. It is in the above background and following the decisions in Valsala Kumari Devi''s case and Viswanathan''s case (supra), the learned Single Judge found that the selection of the 4th Respondent for appointment by transfer in Economics was arbitrary and discriminatory. In Viswanathan''s case (supra), Anr. Division Bench of this Court had held that:
the reasonable method is that when there are several teachers belonging to different subjects entitled for consideration to few vacancies, those posts to which senior incumbents are to be considered shall be set apart for quota of inservice candidates, so that senior incumbent shall not be superseded by a junior incumbent.
In Valsala Kumari Devi''s case (supra), the Apex Court had held that in by transfer appointments, seniority is a factor that shall be reckoned.
6. The learned Counsel for the Appellant vehemently argued that when rules do not prescribe any criteria for identifying the posts for by transfer appointments and the first Respondent could not establish any mala fides in selecting the post in Economics for by transfer appointment, the authority exercised by the Manager shall not be interfered in the manner done by the learned Single Judge. We find no merit in the argument. Even though the rules do not provide any criteria for identifying/selecting the posts for by transfer appointments the Manager is bound to follow the principles of equity and good conscience. Exercise of authority by the Manager in selecting/identifying the posts for by transfer appointments shall not be arbitrary or discriminatory but with prudence and good reasoning. He shall take into account of the situation prevailing in the institution. It shall not be detrimental to any legitimate claimant or to the undue advantage of an undeserving person. 4th Respondent has no case that the first Respondent is not qualified or unfit for considering for by transfer appointment. He is also aware that the 5th Respondent can be considered only in the absence of HSA. The 4th Respondent couldn''t show any rhyme or reason for selecting the post of HSST (Economics) to the disadvantage of the first Respondent who is a preferential claimant and to the advantage of the 5th Respondent, a residuary category. The learned Single Judge was absolutely right in finding that the selection of post made by the 4th Respondent was arbitrary and discriminatory as it defeated the legitimate claim of the first Respondent entitling the 5th Respondent for undue advantage.
7. We find that the learned Single Judge had correctly arrived at a finding that the 4th Respondent appointed the 5th Respondent by transfer appointment only to decline the legitimate claim made by the first Respondent. The appointment of the Appellant to the post to which the first Respondent is entitled is also vitiated by mala fides and liable to be quashed. In the above circumstance, we find that the learned Single Judge was absolutely correct in quashing the appointment of the Appellant to the post of HSST (Malayalam) as well as that of the 5th Respondent to the post of HSST (Economics). In this intra-court appeal we find no good reason to interfere with the impugned judgment. The appeal is devoid of any merit. Accordingly, it is dismissed.
8. The learned Counsel for the Appellant submitted that the Appellant had been working for the last six years and he is now to be thrown out. Occasion for such submission is only because of the delay in disposal of the Writ Petition. Delay in disposal wouldn''t accrue any right to an undeserving party or would turn to the disadvantage of a legitimate claimant. So, the submission that the Appellant had been holding the post for six years deserves no consideration. However, the learned Counsel sought for a direction to the 4th Respondent to appoint the Appellant to the consequential vacancy created by the appointment of the first Respondent as HSST (Malayalam). We find that it is for the 4th Respondent to take appropriate decision in a just and fair manner and hope that the claim would be considered with deserving merit.
