IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 WP(C).No. 26764 of 2007(J) ------------------------------------- PETITIONER: ------------------- 1. BIJIMOL M.K., KUNNUKUZHI, CHANIYIL, OLATHALA, PATTANAKKAD P.O., ALAPPUZHA. 2. PREMOL.P., KANDATHIL HOUSE, AVALOOKUNNU PO., SOUTH ARYANAD. 3. SREELATHA T., VARIKAL HOUSE, KUTHAITHODE P.O., ALAPPUZHA. 4. BIJIMOL DEVASSIA, NOORUPARACHIRA, PULLANGADI P.O., CHAMBAKKULAM, ALAPPUZHA. 5. SINDHU K.NAIR, CHIRAYIL HOUSE, THAKAZHI P.O. ALAPPUZHA. 6. NISHA RAMACHANDRAN, PATHIYANKARA, THRIKKUNNAPPUZHA PO. ALAPPUZHA. BY ADV. SRI.P.N.MOHANAN RESPONDENTS: ------------------------ 1. DEPUTY DIRECTOR (EDUCATION) OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 2. KERALA PUBLIC SERVICE COMMISSION, PATTOM PALACE P.O., THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY. GOVERNMENT PLEADER SMT.T.B.RAMANI FOR R1 SRI.ALEXANDER THOMAS, SC FOR PSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2008, ALONG WITH WPC NO. 12984 OF 2008 THE COURT 23/09/2008 DELIVERED THE FOLLOWING: W.P.(C) NO.26764/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE RANK LIST PUBLISHED BY THE PSC ON 2.5.05. EXT.P2:- COPY OF THE ORDER ISSUED BY THE GOVERNMENT DT. 25.5.99. EXT.P3:- COPY OF THE PETITION FILED BEFORE THE 2ND RESPONDENT DT. 15.6.07. EXT.P4:- COPY OF THE LETTER ISSUED TO THE 3RD PETITIONER. EXT.P5:- COPY OF THE PAPER PUBLICATION IN MATHYAMAM DAILY. EXT.P6:- COPY OF THE COMMUNICATION NO.43/2239/06 FROM THE DEPUTY DIRECTOR (EDN) ALAPPUZHA. THE ADVOCATE GENERAL DT. 18.2.06. EXT.P7:- COPY OF THE DETAILS ISSUED TO THE PETITIONER FROM THE SCHOOLS AS PER THE RIGHT TO INFORMATION ACT. EXT.P8:- COPY OF THE ORDER OF THE GOVERNMENT DT. 26.5.08. /TRUE COPY/ P.S. TO JUDGE tss ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = = W.P.(C) Nos. 26764/07 & 12984 OF 2008 = = = = = = = = = = = = = = = = = Dated this the 23rd day of September 2008 J U D G M E N T Petitioners were included in the rank list published by the Public Service Commission on 2.5.2005 for the post of H.S.A. (Malayalam) for Alappuzha District. The complaint in these writ petitions is that although several vacancies were available to be recruited, there was inaction on the part of the authorities in reporting the same as a result of which, the petitioners were likely to loose their opportunity to get advised, since the list was to expire on 1.5.2008. 2. By order dated 16.4.2008 passed in W.P.(C) No. 12984/08, this Court directed the 1st respondent in these cases to report 17 vacancies of HSA (Malayalam) to the P.S.C. on or before 25.4.2008. This order has been incorporated in W.P.(C) No. 26764/07 also. In the counter affidavit filed in W.P.(C) No. 12984/08 the 1st respondent has taken the plea that as per the recruitment rules, the W.P.(C) Nos. 26764/07 & 12984/2008 -2- posts are to be filled up by direct recruitment, inter-district transfer, promotion of P.D. teachers and by transfer of appointments in the ratio of 30:30:30:10. It is stated that in terms of Note 3 to Rule 5 of the General Rules of K.S. & S.S.R., the number of vacancies to be filled up from each quota shall be decided by applying the ratio to the cadre strength and not to the vacancies available. 3. According to the 1st respondent, the cadre strength of H.S.A. (Malayalam) as on 30.4.2008, was 118. It is stated that although there are 16 vacancies of HSA (Malayalam) existing as on 30.4.2008 this includes 4 vacancies carried forward from the year 2007-08, 10 retirement vacancies and 2 vacancies due to appointment of HSA (Malayalam) as Lecturers in D.I.E.Ts. According to the respondents out of 16 vacancies, 10 vacancies are to be set apart for direct recruitment and that out of it, 3 vacancies are to be set apart for adjustment of reductions due to staff fixation and the remaining 7 vacancies can be taken up for immediate appointment. However, it is contended that the cadre strength being 118, towards the direct recruitment quota though only 35 vacancies are to be W.P.(C) Nos. 26764/07 & 12984/2008 -3- allotted, 53 persons are already working. It is also stated that against inter-district transfer quota as against 35 posts, only 20 persons are working and similarly against 35 posts earmarked for promotion of P.D. teachers in their 30% quota, only 27 persons are working and that towards 10% earmarked for by transfer appointments only one person is working. Thus, it is stated that towards direct recruitment quota there is already an excess representation and hence the vacancies available cannot be utilised for filling up the same by direct recruitment. 4. Going by the figures that are available, though even according to the respondents, 7 vacancies are available to be taken up for recruitment, according to them there is over representation in the direct recruitment quota, if calculated on the cadre strength as on 30.4.2008. This contention in the counter affidavit is sought to be contradicted by the learned counsel for the petitioners by contending that the quota cannot be worked out on the cadre strength, but has to be worked out on the number of vacancies available for each year. In support of this contention counsel for W.P.(C) Nos. 26764/07 & 12984/2008 -4- the petitioners in W.P.(C) No. 26764/07 has referred me to Ext. P6, a communication issued by the Deputy Director of Education, Alappuzha on 18.2.2006 to the Advocate General's office which supports the contention raised by him. Though the source from which the petitioners have procured the document is undisclosed, and it lends credence to what they contend for, I am still not in a position to accept this document and decide the issue in the petitioners' favour. 5. In my view, as already noticed, Note 3 to Rule 5 of the General Rules provides that approved vacancies to be filled up by candidates from each source shall be decided by applying the percentage fixed to the cadre strength of the respective posts. Since rule provides that the vacancies should be assessed on the basis of the cadre strength, this Court will not be justified in placing reliance on a letter and hold that ignoring the rule, the vacancies should be filled up in the manner as indicated in the letter. If that be the position, vacancies will have to be assessed on the strength of the cadre strength and applying the quota that is fixed. W.P.(C) Nos. 26764/07 & 12984/2008 -5- 6. The petitioners in W.P.(C) 12984/08 have a further contention relying on Exts. P6 and P7 that only 10% of the vacancies arising in the District in a year shall be filled up by inter-district transfer. According to them even though for inter-district transfer, a higher quota is fixed in the rule itself, in any given year the vacancies earmarked for that category cannot exceed 10% of the available vacancies. I have gone through Exts. P6 and P7. True, Ext. P6 provides for an upper limit as contended by the learned counsel. However, a reading of Ext. P6 Govt. Order would give the impression that it is not intended to dilute the prescription in the rule, but will only apply in a case where there is no quota prescribed. If a different interpretation is accepted that will run counter to the rule that provides that 30% of the vacancies are to be filled up by inter- district transfer and that cannot be the purport of Ext. P6. Therefore, Ext. P6 can apply only in a case where there is no such quota prescribed. 7. Thus the resultant position is that though vacancies are available as indicted in the counter affidavit of the 1st respondent, W.P.(C) Nos. 26764/07 & 12984/2008 -6- on the material that is placed before me I am not in a position to conclude that any vacancy is available to be filled up from among the direct recruits in which case alone the petitioners can seek a direction to advise the candidates against the vacancies reported pursuant to the interim order dated 16.4.2008. Writ petitions are only to be dismissed and I do so. ANTONY DOMINIC JUDGE jan/-