IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 WA.No. 60 of 2008() ------------------- AGAINST THE ORDER IN WPC.21616/2007 Dated 13/08/2007 .................... APPELLANTS: RESPONDENTS 1 & 2 ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. K.SANDESH RAJA RESPONDENTS: PETITIONER & 2ND RESPONDENT ---------------------------------------- 1. LAVAKUMAR K.S., KAILAS BHAVAN, PERIYAPPURAM P.O., ONAKKOOR, ERNAKULAM DISTRICT. 2. KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY. R1 BY ADV. SRI. ELVIN PETER P.J. R2 BY SRI. ALEXANDER THOMAS, SC. , PSC. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== W.A.No.60 of 2008 ======================== Dated this the 16th day of January, 2008. JUDGMENT Balakrishnan Nair,J. The appellants are respondents 1 and 2 in the interim order passed by the learned single Judge in W.P.(C) No.21616 of 2007. 2. The writ petitioner is a candidate included as rank No.3 in Ext.P2 rank list published by the Public Service Commission for appointment to the post of Lecturer in Sanskrit (Jyothisham) in the Department of Collegiate Education. The candidates placed at rank Nos. 1 and 2 were already appointed. The third candidate as per the roster goes to Ezhava candidate. The petitioner belongs to Other Backward Community. The learned single Judge by the order under appeal directed to fill that vacancy by appointing the writ petitioner. Hence this appeal by the official respondents. WA 60/08 -: 2 :- 3. In view of Ext.P5 amendment to Rule 15 of Part II of the Kerala State and Subordinate Service Rules, if a candidate belonging to a particular community is not available to be appointed to the vacancy reserved for that community, that vacancy has to be kept open. A fresh notification has to be issued to fill up that vacancy. There are specific instructions in the amended Rule 15 as to how the vacancy should be filled up. In view of the above position, direction to fill up the vacancy provisionally cannot be sustained. But the learned counsel for the writ petitioner submitted that it being a teaching post and for the benefit of the students the direction has been issued. We notice that the provisional appointment under Rule 9(a)(i) can be done only from among the candidates waiting in the Employment Exchange. The learned counsel for the writ petitioner pointed out that in the particular subject concerned, there may not be any candidates, who have registered with the Employment Exchange. In this appeal, we are concerned only with the question whether the direction issued by the learned single Judge should be sustained or not. A temporary vacancy cannot be filled up provisionally by a candidate included in the rank list published by WA 60/08 -: 3 :- the Public Service Commission. Therefore, the direction of the learned Judge cannot be sustained. 4. Accordingly, this writ appeal is allowed. The impugned order of the learned single Judge is set aside. The petitioner may move for early hearing of the writ petition in which Ext.P5 Rules are also challenged. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 17/1