IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 WP(C).No. 21429 of 2008(A) --------------------------------------- PETITIONER(S): ----------------------- SMITHA.V.P, W/O. SREEKUMAR.B, C TYPE QUARTERS, 110 KV SUB STATION, CHEVAYOOR, KOZHIKODE-17. BY ADVS. MR.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. REP. BY ITS SECRETARY. BY GOVERNMENT PLEADER MR.T.T.MUHAMOOD FOR R1-2 BY ADV. MR.ALEXANDER THOMAS,SC,KPSC FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21429/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GAZETTE NOTIFICATION DT. 7.11.01 ISSUED BY THE PUBLIC SERVICE COMMISSION. P2:- COPY OF THE RANK LIST PUBLISHED ON 30.7.04 BY THE PUBLIC SERVICE COMMISSION. P3:- COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE AMRITHA INSTITUTE OF MEDICAL SCIENCES DT. 4.7.08. P4:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S HUSBAND ON 23.5.08 BEFORE THE STATE INFORMATION OFFICER. P5:- COPY OF THE INFORMATION FURNISHED BY THE STATE INFORMATION OFFICER ON 9.6.08. P6:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S HUSBAND ON 23.5.08 BEFORE THE PUBLIC SERVICE COMMISSION. P7:- COPY OF THE PROCEEDINGS NO.IDS 1(3) 20972/08/GW DT. 10.6.08 ISSUED BY THE PSC TO THE PETITIONER'S HUSBAND. P8:- COPY OF THE APPLCIATION DT. 20.6.08 FILED BEFORE THE STATE INFORMATION OFFICER BY THE PETITIONER'S HUSBAND. P9:- COPY OF THE COMMUNICATION NO.IDS 1 (3) 20972/08/GW DT. 1.7.08 ISSUED BY THE PUBLIC SERVICE COMMISSION. P10:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 7.7.08 BEFORE THE PUBLIC SERVICE COMMISSION. P11:- COPY OF THE REPRESENTATION DT. 25.6.08 SUBMITTED BY THE PETITIONER BEFORE THE ADALAT. P12:- COPY OF THE DECISION REPORTED IN ILR 2006 KERALA PAGE 680. P13:- COPY OF THE APPLICATION FILED BY THE PETITIONER DT. 19.1.09 BEFORE THE PUBLIC INFORMATION OFFICER. P14:- COPY OF THE COMMUNICATION DT. 21.1.09 FROM THE PUBLIC INFORMATION OFFICER TO THE PETITIONER. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE ORDER G.O.(MS) NO.110/07/H.EDN. DT. 17.8.07. R2(b):- COPY OF THE ORDER NO.B2/17062/01 /COLL.EDN. DT. 25.7.07. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 21429 of 2008-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June, 2009. JUDGMENT In this writ petition the petitioner is aggrieved by the delay in making advice by the Public Service Commission pursuant to publication of Ext.P2 rank list. Ext.P1 is the notification published by the Public Service Commission for appointment to various posts in the Kerala Collegiate Education Service (Training Colleges). There are two vacancies in Education Technology. Going by Ext.P2 rank list, the petitioner is rank No.1 under category II direct recruitment. Category No.1 is by-transfer appointment and there are two candidates included, under it. 2. The petitioner mainly contended that in spite of the fact that two vacancies have been reported and the first rank holder in category I did not join, no steps were taken for advice of the petitioner who is the next eligible candidate. 3. In the counter affidavit filed by the second respondent on 10/02/2009, it is stated that the posts were sanctioned under Plan fund. There was no allotment available under Plan fund for meeting the expenditure towards salary. Hence the Department was not in a position to wpc 21429/2008 2 fill up the posts forthwith. The Government accorded permission to fill up the posts only on 17/08/2007. It is also submitted that the Public Service Commission advised two candidates from the rank list, viz. Shri Baiju K.Nath and Smt.V.K.Sobha. The first one had already been given appointment as Lecturer in Natural Science and therefore he did not respond. The second candidate was appointed in the vacancy which arose in the Government Training College, Thiruvananthapuram, due to a promotion. It is pointed out that as the rank list had already expired on 29/07/2007 and as the petitioner was not advised, nothing can be done further in the matter. 4. In the counter affidavit filed by the Public Service Commission, it has been explained that apart from two candidates in category I, a third candidate was also included by way of an addendum notification. It is pointed out that only two vacancies were reported to the Commission and two candidates were thus advised. It is also stated in para 4 that no other vacancies were reported by the department till the expiry of the rank list. No NJD vacancy due to the non joining duty of candidates advised on 29/10/2004 was also reported. It is further contended that category II list can be operated only in the absence of candidates under List I. The petitioner was not the next eligible candidate. wpc 21429/2008 3 5. When matters stood thus, this Court passed an interim order directing the Director of Collegiate Education to file a fresh affidavit stating as to the date on which the two vacancies of Lecturer in the said discipline was notified and reported to the Commission. The appointment orders in respect of the two candidates were also directed to be produced. Accordingly, an additional affidavit has been filed on 06/04/2009. 6. Going by the averments in the additional counter affidavit, it is clear that the Commission advised two candidates as per advice dated 29/10/2004 from the list of departmental candidates and they are Shri Baiju K.Nath and Smt.V.K.Sobha. It is further pointed out that the first rank holder Shri.Baiju K.Nath was not issued with any order of appointment, and he has already been appointed in regular post. Exts.R2(a) and R2(b) have been produced to show that the Government issued directions to fill up the post only by order dated 17/08/2007 and that the second candidate was appointed when a vacancy arose due to the promotion of Smt.C.Valsala. It is further explained that as the non joining duty vacancy was not reported, there is no further claim for the petitioner. 7. Learned counsel for the petitioner submitted that the method by which the second rank holder was appointed, shows that actually the vacancy arose due to the promotion of Smt.C.Valsala. The two vacancies wpc 21429/2008 4 reported were prior to the expiry of the rank list. It is therefore submitted that the entitlement of the petitioner is in tact. It is also submitted by relying upon the Division Bench judgment, Ext.P12 that once the vacancy has been reported, it cannot be filled up by any other method, by promotion, etc. 8. Learned counsel for the Public Service Commission and the learned Govt. Pleader submitted that actually only two vacancies were reported. Rank No.2 was advised against a vacancy which was reported in the year 2001. The vacancy that arose due to the promotion of Smt.C.Valsala was not reported to the Commission. The Director has only posted the second rank holder against the said vacancy and the justification as sought in para 4 of the additional counter affidavit is that the post of Lecturer in Education Technology is necessary as M.Ed. course is offered in the said Government College whereas in all other Government Colleges M.Ed course is not offered. It is therefore submitted that as the rank list has expired and that the NJD vacancy was not reported, there was no vacancy to which the petitioner could be advised and appointed. Learned Govt. Pleader further submitted that going by the notification itself, a candidate under direct recruitment quota could be advised only in the absence of candidates under by-transfer category. An addendum notification was issued by which wpc 21429/2008 5 a third name was also included under category I. Therefore, even if three vacancies arose and were reported to the Commission, the petitioner will not be eligible for appointment. 9. I find force in the above submission. This is a case where two vacancies were reported in the year 2001. There was delay in the matter on the part of the Director, since they were awaiting orders from the Government. Rank No.1 was appointed. The NJD vacancy was not reported since no Government sanction was obtained and rank No.2 was available before the expiry of the rank list. The second rank holder Smt.Sobha was advised in one of the vacancies which was reported already. Merely because she was posted in the place from where Smt.C.Valsala was promoted, that does not mean that the said vacancy was reported to the Commission. In that view of the matter, the other contentions raised by the petitioner that the vacancy has been filled up by different methods and therefore the dictum laid down by this Court in Ext.P12 will apply, need not be considered. Going by the admitted facts, the respondents have not wpc 21429/2008 6 resorted to any other method of appointment also. In the above view of the matter, the petitioner is not entitled to any relief in this writ petition. The same is dismissed. (T.R. Ramachandran Nair, Judge.) kav/