IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 WP(C).No. 18832 of 2009(Y) -------------------------- PETITIONER(S): --------------- 1. ABDUL MUNEER.K.K., KACHILIKALAYIL HOUSE, UNNIKULAM.P.O., KOZHIKODE DISTRICT-673 574. 2. BEENA.P., KUNNIKKAL HOUSE, MENHANNIAN.P.O., PERAMBRA, KOZHIKODE DIST.-673 525. 3. NAJMA.M.P., UNNIRAM PARAMBIL HOUSE, KIZHAKKOTH.P.O., KODUVALLY (VIA), KOZHIKODE DIST.-673 572. 4. PRABEENA.M., PRABHA NIVAS, KOLLOTH KANDI THAZHAM HOUSE, ANNASSERY.P.O., THALAKKULATHUR, KOZHIKODE-673 317. 5. SATHEERETNAM, VALIYAVEETIL HOUSE, NAYAKUZHI.P.O., NIT VIA, KOZHIKODE-673 601. 6. SHABNA.A., ATTUPURAM HOUSE, KATCHERY, MUKKAM.P.O., KOZHIKODE. 7. SREEREKHA.K., SRUTHI HOUSE, PUNNASSERY.P.O., NARIKKUNI VIA, KOZHIKODE-673 585. 8. RENJINI.M.K., MELICKANDY HOUSE, ORAVIL.P.O., NADAVANNUR VIA, PIN-673 614. 9. SMITHA.E., MOOTHEDATH, PUNNASSERY, NARIKKUNI, KOZHIKODE-673 585. 10. NISHA.V.P., PADIKKAL, NANMINDA.P.O., KOZHIKODE-673 613. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNM,ENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, REP. BY SECRETARY, PATTOM, THIRUVANANTHAPURAM. 3. DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KOZHIKODE. 4. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 5. RAJINI.P.K.,. D/O.DEVI, KANNAVAM COLONY, HOUSE NO.32, KANNAVAM,CHITTARIPARAMBA VIA, KANNUR-670 650. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R2 & 3 GOVERNMENT PLEADER SMT.R.BINDU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2010, ALONG WITH WPC NO.17700/07 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.18832/2009 A P P E N D I X PETITIONER'S EXHIBITS : EXT.P1 : TRUE COPY OF THE NOTIFICATION ISSUED BY THE SECOND RESPONDENT. EXT.P2 : TRUE COPY OF THE RANKED LIST PUBLISHED BY THE 2ND RESPONDENT DT. 1.11.2006. EXT.P3 : TRUE COPY OF THE RANKED LIST FOR APPOINTMENT TO THE POST OF UPSA DT. 18.12.2006. EXT.P4A: TRUE COPY OF THE APPLICATION SUBMITTED BY THE 9TH PETITIONER DT. 6.1.2009 TO THE THIRD RESPONDENT. EXT.P4B : TRUE COPY OF THE REPLY GIVEN BY THE THIRD RESPONDENT DT. 22.1.2009. EXT.P5 : TRUE COPY OF THE REPLY SUBMITTED BY THE 2ND RESPONDENT DT. 14.1.2009. EXT.P6 : TRUE COPY OF THE NOTIFICATION ISSUED BY THE 2ND RESPONDENT AS CATEGORY NO.98 OF 1999 TO THE POST OF LPSA/UPSA (MALAYALAM) EXT.P7 : TRUE COPY OF THE REPLY DT. 25.5.2009 RECEIVED BY THE 8TH PETITIONER. EXT.P8A: TRUE COPY OF THE REQUEST SUBMITTED BY MADHU M. DT. 2.1.2009 TO THE 4TH RESPONDENT. EXT.P8B : TRUE COPY OF THE REPLY SUBMITTED BY THE 4TH RESPONDENT DT. 16.3.2009. EXT.P9 : TRUE COPY OF THE CIRCULAR NO.127135/SD(4)/82/GAD DT. 25.1.1983. EXT.P10 : TRUE COPY OF THE ORDER DT. 4.6.2009 OF THE 4TH RESPONDENT. EXT.P11 : TRUE COPY OF THE GO(P) NO.403/2002/G.EDN. DT. 4.12.2002. EXT.P12A : TRUE COPY OF THE REPLY RECEIVED UNDER THE RIGHT TO INFORMATION ACT DT. 13.8.2009. EXT.P12B : TRUE COPY OF THE REPLY RECEIVED UNDER THE RIGHT TO INFORMATION ACT DT. 23.7.2009. EXT.P12C : TRUE COPY OF THE REPLY RECEIVED UNDER THE RIGHT TO INFORMATION ACT DT. 31.7.2009. EXT.P12D : TRUE COPY OF THE REPLY RECEIVED UNDER THE RIGHT TO INFORMATION ACT DT. 21.8.2009. EXT.P13 : TRUE COPY OF THE ORDER DT. 14.7.2009 OF THE 4TH RESPONDENT. EXT.P14 : TRUE COPY OF THE DETAILS OF PROTECTED TEACHER WORKING IN FEROOK SUB DISTRICT AS PER LETTER DT. 10.9.2009. EXT.P15 : TRUE COPY OF THE REPLY DT. 31.8.2009 RECEIVED FROM HEADMISTRESS GLPS KOTTUMMEL. EXT.P16 : TRUE COPY OF THE INFORMATION SUBMITTED DT. 26.8.2009. EXT.P17 : TRUE COPY OF THE REPLY GIVEN DT. 8.9.2009 BY THE HEADMISTRESS GOVT.GANAPATH UPS, MUKKUNNU, KOZHIKODE. EXT.P18 : TRUE COPY OF THE REPLY DT. 10.9.2009. EXT.P19 : TRUE COPY OF THE INFORMATION DT. 9.9.09 RECEIVED FROM GOVT.LPS AZCHAVATTOM, KOZHIKODE. EXT.P20 : TRUE COPY OF THE REPLY RECEIVED FROM HEADMISTRESS GLPS, KAPPAKKAL. EXT.P21 : TRUE COPY OF THE INFORMATION DT. 7.9.2009 RECEIVED FROM HEADMISTRESS GLPS BYRAIKULAM. EXT.P22 : TRUE COPY OF THE REPLY DT. 5.9.2009 RECEIVED FROM HEADMASTER KHEP GLPS KAKKAYAM. EXT.P23 : TRUE COPY OF THE REPLY RECEIVED FROM THE OFFICE OF THE DISTRICT PROJECT OFFICER SSA DT. 12.10.2009. EXT.P24A : TRUE COPY OF THE INFORMATION RECEIVED FROM GMUPS CHENNAMANGALLUR. EXT.P24B : TRUE COPY OF THE INFORMATION RECEIVED FROM PULLANUR GLPS. EXT.P24C : TRUE COPY OF THE INFORMATION RECEIVED FROM PULLANUR NEW GLPS. EXT.P24D : TRUE COP OF THE INFORMATION RECEIVED FROM GLPS, VALAYANUR. EXT.P24E : TRUE COPY OF THE INFORMATION RECEIVED FROM GLPS, CHERUKULATHUR. K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.P.(C) Nos.17700/07, 18832, 22282 & 35940 of 2009 ---------------------------------------------- Dated 2nd February, 2010. J U D G M E N T Balakrishnan Nair, J. W.P.(C) No.18832/2009 The petitioners are persons included in Ext.P2 rank list published by the Kerala Public Service Commission (for short, 'PSC'), for appointment to the post of Lower Primary School Assistant(for short, 'LPSA'), in Kozhikode District. The rank list was brought into force, on 1.11.2006. Though, it was due to expire on 30.10.2006, the PSC extended its validity upto 30.4.2010. The petitioners approached this Court, alleging that all the existing vacancies available in the cadre of LPSAs are not being reported by the appointing authority, to the PSC. Certain vacancies have been filled up, by deploying protected teachers. They also say that, if no teacher is available for inter-district transfer, the said vacancies can be filled up by direct recruitment. Finally, they would say, the uncompensated turns which were pending satisfaction, in relation to the earlier rank list of P.D.Teacher (Upper Primary School Assistants and Lower Primary WP(C) NO.18832/09 & connected cases 2 School Assistants working in Government Primary Schools are commonly called as P.D.Teachers), are sought to be compensated from Ext.P2 list of LPSAs alone. According to the petitioners, those turns should have been bifurcated and a portion alone should have been compensated from the list of LPSAs. If there is any difficulty in apportioning, those turns should have been satisfied from Ext.P3 list of Upper Primary School Assistants (for short, 'UPSAs'), published by the PSC, on 18.12.2006. Raising these contentions, the petitioners have preferred this Writ Petition. 2. The Deputy Director of Education, has filed a counter affidavit, stating that 65% of the vacancies, ascertained with reference to the cadre strength alone are available for direct recruitment. It is also submitted that 126 vacancies were already reported to the PSC for advice, after the publication of Ext.P2 rank list. Going by the cadre strength, now there is excess representation for the PSC recruits. So, at present, there are no vacancies available to be reported. The PSC submitted that WP(C) NO.18832/09 & connected cases 3 bifurcation of uncompensated turns between two lists, is impossible. For the post of UPSA, both B.Ed. Degree holders and T.T.C. holders can apply. Number of vacancies are ordinarily less, in the cadre of UPSAs. For the post of LPSA, only TTC holders can apply, and vacancies are larger in number also. Having regard to the above facts, the PSC decided to satisfy the uncompensated turns from the list of LPSAs. As far as the list of UPSAs is concerned, the PSC decided to start the rotation afresh. The PSC has taken this decision, in good faith and having regard to the relevant facts before it. Therefore, the same cannot be faulted with, it is submitted. 3. All the points raised by the petitioners, except the question of rotation, are covered against them, by the decision of the Division Bench of this Court in W.P.(C) No.21147/2009. Therefore, those contentions are rejected. The only point remains to be considered is regarding the operation of the 100-point roster and the satisfaction of the pending uncompensated turns, under the heads-NCA (no candidate available), TPO (temporary pass WP(C) NO.18832/09 & connected cases 4 over) and NJD (non-joining duty)vacancies. Having regard to the relevant facts, the PSC has taken a decision. The persons in the list of UPSAs would say that the decision is rightly taken, and the persons in the list of LPSAs would say that the compensation should have been from the list of UPSAs. So, the views of the candidates are mainly dependent on their interest in the subject matter. The PSC, which is a constitutional body, has no special interest in this matter, in favour of or against one group or the other. The reasons stated by them for taking a decision in this matter, we have already mentioned above. We think, they are relevant matters. Having regard to those relevant matters, a decision has been taken by the PSC, in good faith. Therefore, we find no reason to interfere with the same. But, the learned counsel for the petitioners pointed out that, at least in the case of Kozhikode District, more vacancies are available in the cadre of UPSAs., than in the cadre of LPSAs. But, we think, the said fact is not a sufficient ground to interfere with the decision of the PSC. The PSC has to take into account, the availability of vacancies in WP(C) NO.18832/09 & connected cases 5 all the districts in the State. Having regard to the past experience, they took the view that in the cadre of UPSAs, there will be lesser vacancies and more candidates. That view cannot be condemned for the reason that the same appears to be not correct, in relation to Kozhikode district. But, having regard to the facts of this case, we direct the Deputy Director of Education, to report all the vacancies available for direct recruitment, to the District PSC office, on or before 15.4.2010. If the petitioners have a case that any protected teacher has been deployed to Kozhikode District, after 1.11.2006, they may bring it to the notice of the Deputy Director of Education, as, such deployment will be against the terms of G.O.(P) No.403/02/G.Edn. dated 4.12.2002. In that event, the Deputy Director of Education shall look into the same and take steps to remedy the action taken contrary to the terms of the said Government Order. The learned counsel for the petitioners further pointed out that the uncompensated turns, pending satisfaction as on 2.2.2006 should also be filled up, by making direct recruitment and not from the list published after the said WP(C) NO.18832/09 & connected cases 6 date. We think, the said contention is plainly untenable. A reading of the Note to Rule 15 Part II Kerala State and Subordinate Service Rules would show that any NCA vacancies arising after 2.2.2006 have to be filled up by special recruitment. The NCA vacancies pending as on 2.2.2006 can be filled up from the rank list published subsequently. The Writ Petition is disposed of as above. W.P.(C) Nos.17700/07, 35940 & 22282/09 : These Writ Petitions are also disposed of in terms of the judgment in W.P.(C) No.18832/09. The directions issued in that judgment shall be treated as the directions to the Deputy Directors of Education concerned in these cases. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. tgs K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.P.(C) Nos.17700/07, 18832, 22282 & 35940 of 2009 ---------------------------------------------- J U D G M E N T Dated 2nd February, 2010.