IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 WP(C).No. 25829 of 2010(C) -------------------------- PETITIONER(S): --------------------- BINDU.K.S., AGED 40 YEARS, CHALAM VETTIL HOUSE, PANANGAD P.O., KODUNGALLUR, NOW WORKING AS PEON, G.H.S.S., EDAVILANGU, THRISSUR DISTRICT. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA RESPONDENT(S): ---------------------- 1. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM, PIN – 650 001. 2. DEPUTY DIRECTOR OF EDUCATION, THRISSUR, PIN 680 001. 3. KERALA PUBLIC SERVICE COMMISSION REP.BY DISTRICT OFFICER, THRISSUR PIN – 680 001. GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.25829 of 2010 --------------------------------------------- Dated this the 15th day of October, 2010 JUDGMENT The petitioner is working as Peon in G.H.S.S., Edavilangu, Thrissur District. The petitioner holds a Bachelors Degree in Mathematics from the University of Calicut and B.Ed. Degree in Mathematics from M.G. University. She aspires for appointment as High School Assistant (Mathematics). 2. It is not in dispute that as per the Government Orders in force for appointment to the post of HSA, 10% is earmarked for by transfer appointment. As per Exhibit P4 ranked list published by the Kerala Public Service Commission for selection to the post of High School Assistants (Mathematics) (By Transfer) in the Education Department in Thrissur District, the petitioner is ranked as No.2. The grievance of the petitioner is that in spite of the fact that there are vacancies of HSA's in Thrissur District, the vacancies for appointment by by-transfer are not reported to the Public Service Commission, thereby WPC 25829/2010 2 denying the chance of getting appointment to the petitioner. It is submitted by the petitioner that there are 14 vacancies of High School Assistants (Mathematics) in various Government Schools in Thrissur District. The petitioner voiced an apprehension that steps were being taken to fill up these vacancies by direct recruitment. 3. A statement dated 8th September, 2010 is filed on behalf of the second respondent. In paragraphs 4 and 5 therein, it is stated as follows : “4. The remaining three vacancies for direct recruitment and vacancy set apart for promotion from P.D. Teachers and by transfer appointment from Ministerial staff are unfilled as the staff fixation process is not over. There is possibility for the reduction of post during the year 2010-11. Only after finalisation of staff fixation order final vacancy position can be ascertained. 5. Before finalisation of staff fixation order, there is only 14 vacancies available. So by applying the ratio (10%) to above there will be WPC 25829/2010 3 only one vacancy for by transfer appointment from Ministerial staff. After finalising the staff fixation of 2010-11 if vacancy exists it will be reported to the K.P.S.C. for appointment.” 4. When the Writ Petition came up for hearing on 30.9.2010, the following order was passed : “The learned counsel for the petitioner submitted that what is relevant is that the required percentage for by transfer appointment should be set apart taking note of the cadre strength and not on the basis of the vacancies existing. The petitioner has also filed I.A.No.13246 of 2010 praying for the issue of a direction to the second respondent to report the total number of vacancies of H.S.A. in Thrissur District from 1997 onwards for by transfer appointment of Department. The learned Government Pleader sought two weeks' time to get instructions.” 5. Thereafter, a statement dated 13.10.2010 was filed on behalf of the second respondent. In the statement referred to WPC 25829/2010 4 above, reliance is placed on Annexure R2(a) Circular. The respondents contend that in the light of the Circular, the percentage earmarked for by transfer appointment is based on existing vacancies. The second respondent contends that applying the 10% ratio to the available vacancy, only one vacancy could be reported to the Public Service Commission for by transfer appointment. 6. The learned counsel for the petitioner relied on the judgment dated 4th December 2003 in O.P.No.8060 of 2002 and submitted that 10% ratio for by transfer appointment is to be computed with reference to the cadre strength and not with reference to the available vacancy, in O.P.No.8060 of 2002, relying on the Supreme Court judgment in Prakash vs. Kurien (1999(2) KLT 710, it was held thus : “Learned counsel for the petitioners invited my attention to the decision of the Supreme Court in Prakash vs. Kurien (1999 (2) KLT 710) to fortify his submission that in a case where the method of recruitment postulates direct WPC 25829/2010 5 recruitment and promotion as per the prescribed ratio, the vacancies shall be filled up by apportioning the same in such a manner as to maintain the cadre strength of the respective class of employees or candidates in accordance with the ratio prescribed. In paragraph 14 of the judgment of the Supreme Court referred to above, it was held that Rule 5 of Part II, K.S. & S.S.R. has got a wider application bringing within its fold the method of appointment prescribed under various special rules. It was held that Note (3) specifically provides that whenever a ratio or percentage is fixed for different methods of recruitment to a post, the number of vacancies to be filled up by candidates from each method is to be decided by applying a fixed ratio or percentage to the cadre strength of the post to which the recruitment is made and not to the vacancies existing at that time. In the opinion of the Supreme Court, the entire Rule 5 deals with the special rules which provide for filling up of the vacancies to any service, class or category by direct recruitment and by transfer. It was held in unambiguous terms that Rule 5 applies to all special rules whenever a ratio or percentage is prescribed in the Rules. Therefore, there cannot be any doubt that the number of vacancies to be WPC 25829/2010 6 filled up in accordance with the prescribed percentage, has to be computed on the cadre strength of the post to which the recruitment is to be made and not on the basis of the vacancies existing at that time. I therefore hold that the percentage of vacancies in the post of H.S.A. (Malayalam) has to be computed on the basis of the cadre strength.” 7. In the light of the judgment in O.P.No.8060 of 2002, the contentions raised by the respondents are unsustainable. The vacancies earmarked for by transfer appointment should be computed with reference to the cadre strength and not with reference to the vacancies available. It is admitted that there are 14 vacancies available, but it is also stated that taking into account the staff fixation, it is likely that there may be a change in the vacancies available. At any rate, if the 10% earmarked for by transfer appointment is computed on the basis of cadre strength, it is most likely that the petitioner will get appointment, she being included in Exhibit P4 list as rank No.2. The second respondent shall report the vacancies available for by transfer appointment, after computing the same on the basis WPC 25829/2010 7 of cadre strength. The second respondent shall report such vacancies to the Kerala Public Service Commission within a period of one month from the date of receipt of a copy of the judgment. 8. The learned Government Pleader pointed out that in Exhibit P5 notification, it is noticed that if sufficient number of candidates are not available for by transfer appointment, such vacancies could be filled up by direct recruitment. It is also made clear that so long as the rights of the persons included in Exhibit P4 ranked list and the persons included in similar rank lists in respect of other districts are not affected, the mention made in Exhibit P5 for resorting to direct recruitment can be made, if it is otherwise permitted by law or by any binding Government Orders. The Writ Petition is allowed as above. K.T.SANKARAN JUDGE csl