IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 WP(C).No. 26024 of 2006(W) -------------------------- PETITIONER: ------------ 1. RAJASREE T.N., AGED 38 YEARS, W/O.M. SURESH, `AMBADI', ELAPPULLY GRAM, ELAPPULLY P.O., PALAKKAD DISTRICT. 2. VINITHA C.V., AGED 33 YEARS, W/O. NANDANAN, KARIMIYAMKODE, ELAPPULLY P.O., PALAKKAD DISTRICT. 3. SINDHU. C., AGED 31 YEARS, W/O. ANIL KUMAR T.V., CHELATTAKALAM, KADAMBOOR P.O., OTTAPPALAM, PALAKKAD DISTRICT. 4. SUSHAMA. M.P., AGED 31 YEARS, W/O. VINOD, `SREYAS', MANNANUR, KAVALAPPARA (VIA), OTTAPPALAM, PALAKKAD DISTRICT. 5. RAJANI. C.C., W/O. K.M. MANOJ, `MADDHAVAM', KANNARA STEET, ROBINSON ROAD, PALAKKAD. 6. JAYACHANDRAKUMAR. K., AGED 29 YEARS, S/O. K.K. KUMARAN, `HARISREE NIVAS' KADAKURISSI, KANNADY P.O., PALAKKAD DISTRICT. BY ADV. SRI.GEORGE ABRAHAM RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 3. DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, PALAKKAD. WP(C).No. 26024 of 2006 4. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, TRIVANDRUM. BY GOVERNMENT PLEADER SRI.T.T. MAHMOOD SRI. ALEXANDER THOMAS - SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/02/2008, ALONG WITH WPC NO. 1238 OF 2007 WPC NO. 11139 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26024 of 2006 APPENDIX EXT.P1: COPY OF G.O.(MS) 120/99/G.EDN. DATED 25.5.1999. EXT.P2: COPY OF LIST OF HIGH SCHOOLS IN PALAKKAD DISTRICT. EXT.P3: COPY OF COMMUNICATION ISSUED BY HEADMISTRESS, GOVERNMENT HIGH SCHOOL, CHUNDAMBATTA DATED 19.9.2006. EXT.P4: COPY OF COMMUNICATION ISSUED BY THE HEADMASTER OF GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, KOPPAM DATED 2.8.2006. EXT.P5: COPY OF LETTER DATED 18.9.2006 ISSUED BY THE HEADMISTRESS, GOVERNMENT GIRLS' HIGHER SECONDARY SCHOOL, KUMARANALLOOR. EXT.P6: COPY OF LETTER ISSUED BY THE HEADMASTER, GOVERNMENT HIGH SCHOOL, ALANALLOOR DATED 22.9.2006. EXT.P7: COPY OF LETTER ISSUED BY THE HEADMASTER, GOVERNMENT HIGH SCHOOL, KARAKKURISSI DATED 3.8.2006. EXT.P8: COPY OF CIRCULAR DATED 24.6.06 ISSUED BY THE GOVERNMENT. EXT.P9: COPY OF REPRESENTATION DATED 26.6.2006 SUBMITTED BY PETITIONERS TO THE HON'BLE CHIEF MINISTER OF KERALA. EXT.P10: COPY OF INTIMATION DATED NIL RECEIVED FROM THE HON'BLE CHIEF MINISTER'S OFFICE FOR HAVING FORWARDED EXHIBIT P9 TO THE DEPARTMENT CONCERNED. EXT.P11: COPY OF ORDER NO.AD.C1/6789/6/IISE DT 5.10.06 ISSUED BY DIRECTOR OF HIGHER SECONDARY EDUCATION APPOINTING 8 PESONS AS H.S.S.T's. EXT.P12: COPY OF COMMUNICATION ISSUED BY HEAD MISTRESS-IN- CHARGE, P.G.P.H.S., POLPULLY STATING AVAILABILITY OF A POST OF HST (HIND) IN THE SCHOOL. EXT.P13: COPY OF COMMUNICATION DATED 15.10.06 ISSUED BY HEADM MISTRESS VATEENAD GOVERNMENT GHSS STATING AVAILABILITY OF A POST OF HST (HINDI) IN THE SCHOOL. EXT.P14: COPY OF COMMUNCIATION DATED 11.10.06 ISSUED BY HEADMISTRESS GOVT. ORIENTAL HIGH SCHOOL, KATHANATTUKARA STATING AVAILABILITY OF 2 POSTS OF H.S.T.(HINDI) IN THE SCHOOL. EXT.P15: COPY OF COMMUNICATION DATED 7.10.06 ISSUED BY HEADMISTRESS GOVERNMENT HIGH SCHOOL, KARAKURISSI STATING AVAILABILITY OF A POST OF H.S.T. (HINDI) IN THE SCHOOL. WP(C).No. 26024 of 2006 EXT.P16: COPY OF INTERIM ORDER DATED 25.6.07 IN W.P.(C)NO. 11139/07 OF THIS HON'BLE COURT. EXT.P17: COPY OF THE VACANCY POSITION ISSUED BY THE HEADMASTER, GOVT. HIGH SCHOOL, ANANALLUR. EXT.P18: COPY OF THE VACANCY POSITION ISSUED BY THE HEADMISTRESS, G.H.S. POTTASSERI. EXT.P19: COPY OF THE VACANCY POSITION ISSUED BY THE HEADMASTER, GOVT. ORIENTAL HIGH SCHOOL, EDATHANATTUKARA. EXT.P20: COPY OF THE VACANCY POSITION ISSUED BY THE HEADMASTER, G.H.S. VATTANAD. EXT.P21: COPY OF THE VACANCY POSITIION ISSUED BY THE HEADMISTRESS, G.H.S. KUMARANELLUR. EXT.P22: COPY OF THE VACANCY POSITION ISSUED BY THE HEADMASTER, G.H.S. CHUNDAMBATTA. EXT.P23: COPY OF THE VACANCY POSITION ISSUED BY THE HEADMISTRESS, G.H.S.S. PATTAMBI. EXT.P24: COPY OF THE VACANCY POSITION ISSUED BY THE HEADMISTRESS-IN-CHARGE, P.G.P. HIGH SCHOOL, CHOORIKKAD. EXT.P25: COPY OF THE VACANCY POSITION ISSUED BY THE HEADMISTRESS, GOVT HS SCHOOL, BIG BAZAR, PALAKKAD. EXT.P26: COPY OF VACANCY POSITION ISSUED BY THE HEADMASTER, GOVT. H.S. AGALI. EXT.P27: COPY OF GOVT. ORDER DATED 28.4.2007. EXT.P28: COPY OF PAPER PUBLICATION IN MALAYALA MANORAMA DT. 20.7.2007. EXT.P29: COPY OF PAPER PUBLICATION IN MALAYALA MANORAMA DT. 4.9.2007. EXT.P30: COPY OF PAPER PUBLICATION MALAYALA MANORAMA DT. 6.9.2007 EXT.P31: COPY OF PAPER PUBLICATION IN MALAYALA MANORAMA DT. 10.9.2007. EXT.P32: COPY OF PAPER PUBLICATION IN MALAYALA MANORAMA DT. 7.9.2007. EXT.P33: COPY OF PAPER PUBLICATION IN MALAYALA MANORAMA DT. 24.8.2007. EXT.P34: COPY OF PAPER PUBLICATION IN MALAYALA MANORAMA DT. 30.8.2007. WP(C).No. 26024 of 2006 EXT.P35: COPY OF PAPER PUBLICATION IN MALAYALA MANORAMA DT. 27.8.2007. EXT.P36: COPY OF PAPER PUBLICATION IN MALAYALA MANORAMA DT. 1.9.2007. EXT.P37: COPY OF PAPER PUBLICATION IN MALAYALA MANORAMA DT. 31.8.2007. EXT.P38: COPY OF PAPER PUBLICATION IN MALAYALA MANORAMA DT. 29.8.2007. EXT.P39: COPY OF THE CERTIFICATE ISSUED BY THE HEAD MASTER DT. 27.12.2007. EXT.P40: COPY OF THE CERTIFICATE ISSUED BY THE HEAD MASTER DT. 27.12.2007. EXT.P41: COPY OF THE CERTIFICATE ISSUED BY THE HEADMASTER DT. 18.1.2008. EXT.P42: COPY OF THE CERTIFICATE ISSUED BY THE HEAD MASTER DT. 21.1.2008. EXT.P43: COPY OF THE CERTIFICATE ISSUED BY THE HEAD MASTER DT. 14.1.2008. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)Nos.26024/06, 1238 & 11139 OF 2007 ---------------------------------------- Dated this the 14th day of February, 2008 JUDGMENT In all these writ petitions, the petitioners are candidates included in the rank list prepared by the Kerala Public Service Commission for advice to vacancies reported in HSA(Hindi) in Palakkad District. The list expired on 25.6.07. Prior to that, by order dated 22.6.07 this Court directed reporting of vacancies subject to further orders in these writ petitions. But it was made clear that no advice need be issued pursuant to the reporting of the vacancies by the Commission without obtaining orders from this Court. Now the only question remaining for consideration in these writ petitions is as to whether advice can be made to those vacancies, which have been reported as per interim orders of this Court, from the list expired on 25.6.07. Counter affidavits have been filed by the Government in this regard stating that there were no vacancies to which advice could have been made from the list. The petitioners have also filed a plethora of documents to prove their case to show that there were vacancies existing for W.P.(c) No.26024/06&con.cases 2 advice from the list prior to the expiry of the validity of the list. 2. As evidenced by Ext.P1 Government Order in W.P. (C) No.26024/06, the Government have prescribed the quota for filling up of the post of High School Assistants by direct recruitment through PSC, by promotion from primary teachers and Clerks/Typists and by inter-district transfer thus: “H.S.A.S Science Social Language studies % % Direct recruitment 50 40 30 Inter-district transfer 30 30 30 Promotion of Primary Teachers 10 20 30 Promotion of Clerks/Typists 10 10 10” 3. An additional affidavit dated 16.1.2007 in W.P.(C) No.11139/07 has been filed by the 3rd respondent. In the same the cadre strength and vacancy position have been detailed thus: “(1) Total No. of sanctioned post of HSA (Hindi) in Palakkad : 149 (2) No. of Teachers appointed through PSC : 135 (3) No. of Teachers appointed through promotion : 6 (4) No. of existing vacancies including W.P.(c) No.26024/06&con.cases 3 retirement vacancies upto 30.6.2007 : 8 The above 8 vacancies are to be filled up as shown below: (1) Vacancy reported to PSC on 24.5.2007 (30% of total vacancies) : 2 (2) Vacancies for promotion (as above) : 2 (3) Vacancies set apart for Inter District Transfer (as above) : 2 (4) By Transfer – 10% of total vacancy : 1 (5) Compassionate appointment : 1” 4. According to the 3rd respondent, the vacancies have to be filled up in the proportion fixed by the Government as per Government Orders applicable in the various quota obtaining on the cadre strength. The affidavit also states as to how these vacancies have been filled up thus: “It is submitted that the 8 vacancies as on 30.6.2007 have been filled up as follows. Against the 2 vacancies reported to Public Service Commission on 24.5.2007 two candidates were advised and they have already been appointed. They are (1) Smt. Sudha K.K. and (2) Siji Markose. Against the two vacancies set apart for promotion Smt. S. Rema and Smt. L. Sherry have been promoted as H.S.A. (Hindi) and posted at Government Higher Secondary School, Kumaranalloor and Government Higher Secondary School, Chundanbatta respectively as per order No.A3/5194/07 dated 3.10.2007 issued by the Deputy Director of Education, palakkad. Likewise W.P.(c) No.26024/06&con.cases 4 the 2 vacancies set apart for inter district transferees have also been filled up by giving transfer to Smt. V.N. Sathyavathi and Sri. A. Anandan as per order No.A3/3842/07 dated 23.8.2007. The vacancies set apart for by-transfer appointment has already been reported to the Public Service Commission and the advice from the PSC is awaiting. The Government Order is awaiting for appointing the candidate against the one vacancy already set apart for compassionate appointment. Therefore it is evidently clear that all the available vacancies set apart for promotees and inter district transfers have already been filled up and other two vacancies have been set apart by transfer appointment and for compassionate appointment. Therefore absolutely there is no further vacancy to report to the Public Service Commission from the above 8 vacancies for the direct recruitment. As stated above and in the earlier counter affidavit, there are large number of excess H.S.A's occupying the post of H.S.A. (Hindi) under direct recruitment quota. Against the permissible number of 45 now more than 135 hands are working under direct recruitment quota. Therefore it is clear that 90 excess teachers are working under said quota. Apart from that there are other qualified hands available under other categories. 5. The petitioners in W.P.(C) No. 26024/06 has filed an affidavit dated 10.2.2007 detailing the number of vacancies available in various schools in Palakkad District which according to them is proved by the information obtained by the W.P.(c) No.26024/06&con.cases 5 petitioners in that writ petition by resort to proceedings under the Right to Information Act. As per the same, the petitioners in that writ petition would claim that there were actually 32 vacancies before the expiry of the list and therefore advice could be made to the vacancies, which have been reported pursuant to interim orders of this Court. 6. The question as to whether these vacancies are existing, is a contentious matter. But at the same time, the petitioners do not dispute the fact that the vacancies available have to be filled up in accordance with proportion fixed in the Government Orders, whereby separate quotas have been fixed for separate categories depending on the cadre strength, which has been explained above. The petitioners in these writ petitions could not bring any material to contradict the averment in the additional counter affidavit to the effect that as per the cadre strength, only 45 posts could be filled up by direct recruitment as against which 135 persons directly recruited through PSC are working leaving a total of 90 excess teachers working under the said quota. Therefore without satisfying the quota prescribed for other categories no further W.P.(c) No.26024/06&con.cases 6 appointment could be made from among the PSC list prepared for direct recruitment. In answer to this, the petitioners in W.P.(C) No.26024/06 rely on a Government order dated 28.4.2007 which is produced as Ext.P27 in that writ petition. According to them, by that Government order, the Government have directed to fill up all existing vacancies from the list prepared by the PSC for direct recruitment. Therefore they would contend that since that order is dated 28.4.07, about two months prior to the date of expiry of the rank list, there cannot be any bar in advising candidates from the list to the vacancies, which have been reported pursuant to interim orders of this Court. Therefore I need now only consider the contention of the petitioners based on Ext.P27. The relevant portion of Ext.P27 relied on by the petitioners reads thus: W.P.(c) No.26024/06&con.cases 7 7. I have carefully gone through the above portion of Ext.P27 Government Order. First of all I must note that Ext.P27 does not say that, that order has been issued in super- cession of or in modification of any Government Order, prescribing the quota prescribed for the four categories. Therefore the Government orders fixing separate quotas for different categories for appointment to the post still stands. Now the above quoted portion from Ext.P27 Government Order only says that appointments should be made from PSC list for which a list is available for the particular category. According to me, that would mean that the categories as per Government Orders. Therefore only if there are PSC lists separately for the categories, advice and appointments could be made from those lists to that vacancies in that particular category. Therefore according to me, Ext.P27 cannot come to the assistance of the petitioners to get advice from the rank list to the vacancies, which have been reported pursuant to interim orders of this Court. In the above circumstances I am satisfied that no advice can be made to the vacancies, which have been reported W.P.(c) No.26024/06&con.cases 8 pursuant to interim orders of this Court. Since the list has already expired, no further reliefs can be granted to the petitioners in these writ petitions. Accordingly these writ petitions are dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c) No.26024/06&con.cases 9