IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 WP(C).No. 7249 of 2008(K) PETITIONER: ------------ ALIAS.A.G., PEON, M.G.M. GOVERNMENT HIGHER SECONDARY SCHOOL, NAYATHODE, ERNAKULAM DISTRICT. BY ADV. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENTS: ------------- 1. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, THRIKKAKKARA PANCHAYATH OFFICE BUILDINGS, KAKKANADU, ERNAKULAM DISTRICT. 3. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 4. THE HEADMISTRESS, M.G.M. GOVERNMENT HIGHER SECONDARY SCHOOL, NAYATHODE, ERNAKULAM DISTRICT. R1 & R2 BY STANDING COUNSEL SRI.ALEXANDER THOMAS GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- W.P.(C) NO. 7249 OF 2008 K -------------------------------------------- Dated this the 18th August, 2008 JUDGMENT The petitioner is working as a Peon in M.G.M.Government Higher Secondary School, Nayathode, Ernakulam District. He was appointed as a Peon in the Education Department on 6.7.2001 by an interdepartmental transfer. The petitioner had earlier been appointed as Watchman in the Industrial Training Department. It is stated that the petitioner possesses B.A. and M.A. Degrees in Malayalam with First and Second Class respectively. He has also acquired B.Ed.Degree in Malayalam with First Class. According to the petitioner, he is fully qualified to be appointed as HSA (Malayalam). 2. The posts of HSA in the General Education Department are to be filled up as per (a) direct recruitment; (b) by promotion/transfer from Primary Teachers and ministerial staff; and (c) inter-district transfer. It is stated that 10% of the posts of HSAs in Language are earmarked for the category of ministerial staff, namely, Clerks, Typists etc., as per G.O.(MS) No.120/99/Edn.,dated 25.5.1999. Ext.P2 Government Order, G.O.(MS) No.20/2001/G.Edn., dated 25.1.2001 was issued as a clarification to Ext.P1 Government Order, by which the category of Peons was also included in the by transfer category. W.P.(C) NO.7249 OF 2008 :: 2 :: 3. According to the petitioner, going by the cadre strength, the direct recruitees have exceeded the quota earmarked for them. The petitioner, being a person eligible to be appointed as HSA as per by transfer appointment, is the only candidate available for being appointed as HSA in that category. The grievance of the petitioner is that bypassing the petitioner, respondents 1 and 2 have advised a candidate for direct recruitment as HSA in the vacancy which is earmarked for by transfer appointment. 4. As per the order dated 8.7.2008 in R.P.No.686 of 2008 in W.A.No.979 of 2008 and connected case, the position has been made clear that a person can be appointed from the rank list for direct recruitment to the vacancy earmarked for by transfer appointment only if a candidate in that category is not available. In view of the settled position, the petitioner is entitled to the relief prayed for in the Writ Petition. It is submitted by the learned counsel for the petitioner that the Public Service Commission has invited applications for preparing the rank list for by transfer appointment to the vacancy of HSA as per Ext.P3 notification and the petitioner has submitted Ext.P4 application. It is also submitted that the test is going to be conducted by the Public Service Commission on 27.9.2008. W.P.(C) NO.7249 OF 2008 :: 3 :: In the facts and circumstances of the case, the Writ Petition is disposed of in the following manner: a) The first respondent shall not appoint any person who is included in the rank list for direct recruitment to the post of HSA (Malayalam) in Ernakulam District, which is earmarked for by transfer appointment, except when no qualified candidate is available in the category of by transfer appointment. b) In view of Ext.P3 notification and submission of Ext.P4 application and also in view of the test scheduled to be held on 27.9.2008, the vacancy earmarked for by transfer appointment shall not be filled till the matter is finally decided as to whether a qualified candidate is available for by transfer appointment pursuant to Ext.P3, P4 and the scheduled test. c) The interim order passed by this Court on 29.2.2008 shall be in force till the matter is finally decided in the manner indicated above. (K.T.SANKARAN) Judge ahz/