IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 WP(C).No. 6620 of 2010(B) ------------------------------------- PETITIONERS: --------------------- 1. VINOD.K, KARUTHODI HOUSE, CHETHALLUR P.O, MANNARKKAD VIA., PALAKKAD DISTRICT. 2. SAMEENA. A,, W/O.MUHAMMED RAFFI, MOOTHA HOUSE,SOUTH STREET, PUDUNAGARAM, PALAKKAD DIST. 3. HEMAMBIKA .R, W/O.CHENTHAMARA. C, ANAKKAD HOUSE, PANAYUR P.O, ATHIKODE, POLPULLY, PALAKKAD DIST. BY ADV. SRI.KALEESWARAM RAJ. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION,PATTOM, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 4. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, PALAKKAD. R1 & R3 BY GOVERNMENT PLEADER SMT. NISHA BOSE, R2 & R4 BY SRI. ALEXANDER THOMAS, S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2010, ALONG WITH W.P.(C). NO. 25964 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.6620/2010-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RANKED LIST FOR THE POST OF U.P. SCHOOL ASSISTANT (MALAYALAM MEDIUM) IN PALAKKAD DIST. EXT.P.2: COPY OF THE G.O.(P)NO.10/10 DTD. 12/01/2010. EXT.P.3: COPY OF THE ORDER DTD. 10/11/2009. EXT.P.4: COPY OF THE G.O.(MS).NO.95/2008 DTD. 26/05/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. K.T.SANKARAN, J. --------------------------------- W.P.(C).Nos.6620 & 25964 OF 2010 --------------------------------- Dated this the 3rd day of December, 2010 JUDGMENT The petitioners applied for appointment to the post of UPSA (Malayalam Medium) in Palakkad District. They were included in Ext.P1 ranked list. The grievance of the petitioners is that though there were sufficient number of vacancies they were not reported and therefore, the petitioners did not get appointment. The ranked list expired on 30.4.2010. 2. An interim order dated 20.4.2010 was passed in WP(C) No.6620 of 2010 which reads as follows: “Heard learned counsel on both sides. There will be an interim order directing the 3rd respondent to provisionally report 33 vacancies of UPSA (Malayalam Medium) in Palakkad District to the 4th respondent. The vacancies shall be reported in the prescribed proforma and shall be sent in such a manner that it reaches the 4th respondent before the close of office hours on 29.4.2010. It is clarified that reporting of such vacancies will be purely provisional and subject to W.P.(C).Nos.6620 & 25964 OF 2010 2 further orders and that the Kerala Public Service Commission need not advice candidates against such vacancies.” 3. It is submitted that 33 vacancies were provisionally reported in compliance with the interim order. The petitioners seek a direction to the Kerala Public Service Commission to issue advice in respect of those 33 vacancies. 4. The learned Government Pleader submitted that the vacancies of UPSA (Malayalam Medium) are to be filled up in accordance with the Government Orders in force. It is submitted that the cadre strength is 904. The number of candidates appointed by direct recruitment is 804. Going by the cadre strength, the maximum number of vacancies to be filled up by direct recruitment is 588, being 65% of the cadre strength. 5% of the cadre strength shall be set apart for by transfer appointment and no person was appointed in that category. 30% is reserved for inter district W.P.(C).Nos.6620 & 25964 OF 2010 3 transfer. 69 persons are at present working in this category, while in fact, 30% would come to 271 vacancies. It is submitted by the learned Government Pleader that there is no substantive vacancy for the appointment by direct recruitment. The learned Government Pleader also submits that at present there are 10 vacancies which are to be filled up by by transfer appointment as well as by inter district transfer. The learned counsel for the petitioner submitted that as per the judgment in Saji v. State of Kerala, (2010(1) KLT 753), it was held that once a rank list comes into force, there shall not be any further deployment of protected teachers and those vacancies shall not be filled up by deploying aided school teachers after a Public Service Commission list is brought into force. If the principle in Saji's case is applied, it is submitted that there would be vacancy for direct recruitment. The counsel for the petitioner also submitted that vacancies earmarked for inter district transfer, if not available, can be W.P.(C).Nos.6620 & 25964 OF 2010 4 filled up by appointing PSC recruits, going by GO(MS) No.95/2008/G.Edn. Dated 26.5.2008. 5. In view of the contentions raised by the petitioners as well as the learned Government Pleader, it is seen that disputed questions of fact arise and that it is necessary to find out the exact number of substantive vacancies to be reported for being filled up by direct recruitment. Such an exercise cannot be done in a Writ Petition under Article 226 of the Constitution of India. This exercise can be done by the Deputy Director of Education, Palakkad. In the facts and circumstances mentioned above, the Writ Petition is disposed of as follows: The Deputy Director of Education, Palakkad shall consider with reference to the facts and figures and also the documents, the exact number of substantive vacancies which were available before the expiry of W.P.(C).Nos.6620 & 25964 OF 2010 5 the ranked list for being appointed from candidates for direct recruitment in the quota earmarked for them. The petitioners would be entitled to submit a detailed representation, documents or other relevant data to enable the Deputy Director of Education to arrive at a correct conclusion. After finding out the exact number of substantive vacancies as aforesaid, as on 30.4.2010, the Deputy Director shall intimate the same to the Kerala Public Service Commission. If there are substantive vacancies, the Kerala Public Service Commission shall advise those candidates from out of the 33 vacancies already reported based on the interim order referred to above. The petitioners shall produce a copy of the Writ Petitions and certified copy of the judgment before the Deputy Director of Education. K.T.SANKARAN, JUDGE. cms