IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 WA.No. 78 of 2009() ------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.12984/2008 Dated 23/09/2008 .................... APPELLANTS/PETITIONERS 3 AND 4: -------------- 1. BEENA KUMARI.J., ROHINI, PUNNAPRA NORTH PO., ALAPPUZHA-688 014. 2. PREETHI.N.P. NIVARTHIL OLATHALA, PATTANAKAD PO., CHERTHALA-688 531. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS/RESPONDENTS AND PETITIONERS 1, 2 AND 5: --------------- 1. DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 2. STATE OF KERALA,REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION REP. BY ITS SECRETARY, PATTOM, TRIVANDRUM. 4. DISTRICT OFFICER, KPSC, ALAPPUZHA. 5. REKHA.K.R., CHURAKKATTU HOUSE, KARUVATTUMKUZHY, KARIYILAKULANGARA-690572. 6. USHA.T., PULARI, KARITHIKA NIVAS, MANNARSALA PO., HARIPAD. 7. JAYALAKSHMI.K.M., KRISHNA BHAVANAM, KUNNIDA, KURUMBAKARA PO, PATHANAPURAM-689695. ADV. SRI.N.K.THANKACHAN FOR R5-7 SRI.ALEXANDER THOMAS, SC, PSC FOR R3 & R4 GOVERNMENT PLEADER, SRI.K.SANDESH RAJA FOR R1 & R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ. ------------------------------ W.A. No. 78 OF 2009 ------------------------------ Dated this, the 24th day of August, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioners 3 and 4 in the Writ Petition are the appellants. 2. The brief facts of the case are the following: The appellants were persons included in Ext.P1 rank list published by the PSC for appointment to the post of High School Assistant (Malayalam) in Alappuzha District. The said list came into force on 2.5.2005 and expired on 1.5.2008. Alleging that, though there were several vacancies available for direct recruitment and they are not being reported by the appointing authority, the Writ Petition was filed. During the pendency of the Writ Petition, there was an interim order to report 17 vacancies on or before 25.4.2008 with a stipulation that advices to those vacancies need be made only after getting further orders from this Court. After the expiry of the W.A. No.78/2009 2 list, the Writ Petition was finally heard on 23.9.2008 along with a connected Writ Petition filed by similarly placed candidates. The point that arose for decision before the learned Judge was how many vacancies were actually available for direct recruitment as on 1.5.2008. After considering the submissions of both sides, the learned Judge took the view that no vacancies were available in the Direct recruitment quota and therefore, dismissed the Writ Petition. 3. In the Writ Appeal the respondents have filed a counter affidavit, wherein the details of the cadre strength, the existing strength and the vacancies available etc. are stated. Referring to the above statement, the learned counsel for the appellant submitted that in the inter-district transfer quota, there is a dearth of 12 vacancies. Relying on Annexure-1 Government Order (G.O.MS No.95/2008/G.Edn. dated 26.5.2008), produced along with I.A.No.768/2009 in this appeal, it is submitted that the vacancies set apart for inter- district transfer can also be filled up by direct recruitment, provided, no candidates are available for inter- district transfer. Relying on Annexure-2 Government Order W.A. No.78/2009 3 (G.O.P.36/91 P&ARD dated 2.12.1991), it is contended that only 10% of the vacancies arising in the district in an year in a category in a department alone shall be filled up by inter- district transfer. So, it is submitted that there are excess inter-district transferees. So, all those vacancies should go to direct recruits. 4. We heard the learned Government Pleader for the official respondents and learned Standing Counsel for the P.S.C. The learned Government Pleader pointed out that as on 1.5.2008 only six vacancies were actually available. There is a dearth of six vacancies due to Primary Department Teachers. Though the PD Teachers are entitled 34 posts, only 28 persons are in position. There are ten qualified PD Teachers. Therefore, the entire vacancies should go for them. It is also pointed out that there is one qualified inter- district transferee awaiting appointment. There is no vacancy to accommodate him. Though the strength available for direct recruit is only 35, there are 56 persons in position. So, there is an excess of 21 persons. So, no more candidates could be appointed from the PSC list, it is submitted. W.A. No.78/2009 4 5. We considered the rival submissions made at the Bar and also the Government Orders produced by the appellant. The details of the availability of posts in different quota in the cadre of HSA Malayalam for the year 2008-2009 given in the paragraph 3 of the counter affidavit of the official respondents presented on 8.4.2009 is extracted below for convenient reference. Method of appointment % fixed Maximum Appointments admissible as per cadre strength Presently working Vacancies reported pending advice Total Excess/ Shortfall Direct recruitment 30% 34.5 53 3 56 +21 Inter District Transfer 30% 34.5 22 - 22 -12 Promotion PD.Teacher 30% 34.5 28 - 28 -6 Promotion of Clerks etc. (by transfer) 10% 11.5 1 1 2 -9 Compassionate employment Scheme (No Ratio fixed) - - 4 - 1 - Total 100% 115.0 105 +4 109 W.A. No.78/2009 5 6. It is common ground that the PSC hands are entitled to get only 35 posts out of the cadre strength of 115, going by the order governing method of appointment to the post of HSA in Government High Schools. We notice that Annexure-1 order was issued by the Government only on 26.5.2008, after the expiry of the Ext.P1 rank list on 1.5.2008. Therefore, the said G.O. cannot have any application to the filling up of the vacancies concerned in this case. The contention raised relying on Annexure-II also cannot be accepted. Even assuming that order is valid and will have the effect of modifying the order prescribing the qualifications and method of appointment to the post of has, still, in the absence of an order in the nature of Annexure-1 in force at the relevant time, the appellants cannot claim any vacancy that may arise by reducing the vacancies set apart for inter- district transferees. For yet another reason also, the said contention is of no avail to the petitioner as the vacancy available in hand is only six and there are ten qualified P.D.Teachers awaiting appointment. There is a dearth of six vacancies in the quota for P.D.Teachers. The appellants have no case that the quota of P.D.Teacher is reduced by any order. W.A. No.78/2009 6 In view of the above position, the existing six vacancies in any view of the matter cannot be allotted for direct recruitment. Accordingly, the Writ Appeal fails and it is dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps