IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 29393 of 2006(Y) ------------------------------------ PETITIONERS: ---------------------- 1. JAYAPRAKAS T.K., S/O.K.P.GOPALA KURUP, LECTURER (NON VOCATIONAL - ENGLISH), GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, ORKATTERI, KOZHIKODE DISTRICT. 2. PRAKASH. S., S/O.M.G. SUNDARESAN, LECTURER (NON VOCATIONAL ENGLISH), GOVERNMNET VOCATONAL HIGHER SECONDARY SCHOOL VALATHUNGAL, KOLLAM DISTRICT. BY ADVS. MR.T.P.KELU NAMBIAR, SENIOR ADVOCATE MR.P.G.RAJAGOPALAN MR.M.GOPIKRISHNAN NAMBIAR RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMNET SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. A.T. JOHNSON, S/O.THOMAS, LOWER DIVISION CLERK (HIGHER GRADE) GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, KADAPPURAM, THRISSUR DISTRICT. 4. P.D. SAM DANIEL, LOWER DIVISION CLERK, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, THALAVADY, ALAPPUZHA DISTRICT. BY GOVERNMENT PLEADER MR. DILIP MOHAN FOR R1 & R2 ADV. MR.V.A.MUHAMMED FOR R3 & R4 MR .K.E.HAMZA FOR R3 & R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON02/07/2009 , ALONG WITH WPC NO. 12135 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29393 of 2006(Y) APPENDIX PETITIONERS'EXHIBITS: EXT.P1 - TRUE COPY OF THE ORDER NO. E2/12227/96, DTED 29.10.1996, OF THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION. EXT.P2 - TRUE COPY OF THE ORDER, G.O.(Rt) NO. 566/97/G/.Edn. DATED 20.2.1997. EXT.P3 - TRUE COPY OF THE ORDER G.O.(Rt) NO.. 3736/97/G.Edn. DATED 12.10.1997. EXT.P4 - TRUE COPY OF PROCEEDINGS NO. E4/11100/2000, DATED 4.2.2002, OF THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION. EXT.P5 - TRUE COPY OF ORDER NO. E2/3693/2006, DATED 31.10.2006, OF THE DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. EXT.P6 - TRUE COPY ORDER NO. E2/14269/04, DATED 18.7.2006, DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION. RESPONDENTS'EXHIBITS: EXT.R3(a) - TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN CONTEMPT CASE © NO. 120/2004. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P.(C) Nos. 12135 of 2005 & 29393 of 2006 ................................................. Dated this the 2nd day of July, 2009 J U D G M E N T These two writ petitions are filed by two sets of employees who seek provisional continuance in employment as Non- Vocational teachers in Vocational Higher Secondary Education Department. Both sets of employees are ministerial staff of the department. As per the special rules, 10% of the total post available in the cadre of Non-Vocational teacher is reserved for appointment by transfer from among qualifying ministerial staff. Petitioners in W.P.(C) No. 29393 of 2006 were originally appointed provisional by under Rule 9(a)(i) of Part I of KS&SSR, at a time when special rules were yet to be framed. They were appointed with the specific condition that the said appointment is pending finalisation of the Special Rules and by virtue of that appointment they would not have any preferential right in the service later. Subsequently, petitioners in W.P(C) No. 29393 of 2006 were replaced by petitioners in W.P.(C) No.12135 of 2005. Therefore, the petitioners in W.P.(C) No. 29393 of 2006 filed the writ petition contending that one set of provisional employees cannot be W.P.(C) Nos. 12135 of 2005 & 29393 of 2006 -2- replaced by another set of provisional employees. They therefore seek the following reliefs: (i) issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exhibit P5; (ii) issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to post the petitioners as Lecturers (Non Vocational - English) in the place in which they have been working prior to Exhibit P5; (iii) Declare that the petitioners are not liable to be reverted from the post of Lecturer to accommodate, by promotion, respondents 3 and 4, who are juniors to the petitioners.” 2. As I have said, the petitioners in W.P.(C) No. 12135/2005 replaced the petitioners in the other writ petition. They have filed the writ petition seeking the following reliefs: “(a) Call for the records relating to Exhibit P-5 and quash the original of the same to the extent it requires further direction from the Government for effecting appointment to the post of non-vocational lecturers under 10% quota from any of the Ministerial Staff and also Exhibits P-10 and P-13 by the issue of a writ of certiorari or other appropriate writ or order. (b) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to appoint the Petitioners and non-vocational lecturers forthwith in compliance with Exhibits P-1 and P-2 as against the vacancies which were available prior to the issuance of the Special Rules, in terms of the then existing orders.” 3. As far as the first prayer in W.P.(C) No. 12135/2005 is concerned, I have already held in W.P.(C) 35802/07 that the 10% W.P.(C) Nos. 12135 of 2005 & 29393 of 2006 -3- quota reserved for qualified ministerial staff for the post of Non- Vocational lecturers cannot be filled up except by qualified ministerial staff, although, provisional appointment can be made till qualified hands are available. 4. As far as the claim for continuance in service is concerned, I am of opinion that both sets of employees should fail in so far as both are admittedly not qualified to hold the post as per the special rules. (The 2nd petitioner was subsequent to filing of the writ petition selected through PSC and appointed. Therefore his case is not considered in this writ petition). Of course the other petitioner has got a contention that PSC has not so far conducted any eligibility test as prescribed under the rules and what has been conducted is a selection which is different from the eligibility test contemplated in the special rules. According to the learned Government Pleader, applications were invited from qualified ministerial staff and a test was conducted and that the same was the eligibility test conducted. At the time when the PSC invited applications the 1st petitioner did not have the other qualifications and he did not apply also. The learned Government Pleader further submits that out of 9 parts reserved in the 10% quota fixed for qualified ministerial staff only 3 were selected as qualified as and W.P.(C) Nos. 12135 of 2005 & 29393 of 2006 -4- when again the applications are invited for appointment to the balance six posts, the petitioners can very well apply. 5. In so far as, both sets of employees are not qualified as per the Special Rules, I do not think that this court can direct that they be continued in service. Of course if the petitioners are otherwise qualified for direct recruitment except for pass in the eligibility test, it is for the 1st respondent to consider whether they can be continued provisionally until regular appointment is made. With the above observation these writ petitions are disposed of. The counsel for the petitioner submits that pursuant to interim orders in the W.P.(C) No. 29393/2006, the petitioners had been paid salary subject to the result of the writ petition. The counsel submits that if it is held that they are not entitled to continue in service the salary paid to them may not be recovered. I am of opinion that in so far as the petitioners had actually worked, the salary paid to them shall not be recovered. These writ petitions are disposed of as above. S. SIRI JAGAN, JUDGE rhs