IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WP(C).No. 23044 of 2008(R) -------------------------- PETITIONER(S): --------------- 1. LIJEESH.K.K, KURIYADIKURIYIL.P.O, AYANAKAD, IRINGAL (VIA), KOZHIKODE-12. 2. ANILKUMAR.K.G, KAVUNKAL HOUSE, KAVUMBHAGAM.P.O, T. KAVALA (VIA), KOTTAYAM DISTRICT. BY ADV. SMT.P.V.ASHA RESPONDENT(S): --------------- 1. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SRVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-4. GOVERNMENT PLEADER SRI.A.J.VARGHESE FOR R1 STANDING COUNSEL FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 23044/2008 APPENDIX PETITIONERS' EXHIBITS: EXT.P1: COPY OF THE RELEVANT PORTION OF RANK LIST DATED 29.12.2007 FOR THE POST OF HSST HISTORY. EXT.P2: COPY OF THE APPLICATION DATED 16.5.08 OF 1ST PETITIONER. EXT.P2A: COPY OF LETTER DATED 19.6.2008 OF THE PUBLIC INFORMATION OFFICER. EXT.P3: COPY OF THE APPLICATION DATED 9.6.08 OF A CANDIDATE. EXT.P3A: COPY OF THE LETTER DATED 8.7.08 OF THE PUBLIC INFORMATION OFFICER. EXT.P4: COPY OF THE APPLICATION DATED 19.6.2008 OF FIRST PETITIONER. EXT.P4A: COPY OF THE LETTER DATED 3.7.08 OF THE PUBLIC INFORMATION OFFICER OF PSC. EXT.P5: COPY OF THE APPLICATION DATED 25.7.08 OF FIRST PETITIONER. EXT.P5(A): COPY OF THE LETTER DATED 8.8.08 OF THE PUBLIC INFORMATION OFFICER. EXT.P6: COPY OF THE G.O.(MS) NO.160/08/G.EDN. DATED 15.9.2008. RESPONDENTS' EXHIBITS: ANNEXURE -I: COPY OF THE LETTER NO.AD B2/11150/01HSE DATED 15.10.2008 ANNEXURE -II- COPY OF THE LETTER NO.AD C3/34267/08/HSE DATED 7.1.2009. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.23044 of 2008 --------------------------------------------- Dated this the 23rd day of January, 2009 JUDGMENT The petitioners are candidates included in the rank list published by Kerala Public Service Commission for appointment to the post of Higher Secondary School Teachers in History. The rank list came into force with effect from 29.12.2007. It is stated that the petitioners are rank No.57 (Thiyya) and rank No.38 (Open competition) respectively in Ext.P1 rank list. 2. The qualification and method of appointment are provided by the Special Rules for Kerala High Secondary Education State service, 2001. As per Rule 3 of the Special Rules, the appointment shall be made by transfer from Higher Secondary School Teacher (Junior) in the subject concerned. In the absence of HSST (Junior), the vacancies shall be apportioned in the ratio of 1:3 between appointment by transfer and direct recruitment. The grievance of the petitioners is that though vacancies were available, they were not reported to the Kerala Public Service Commission. 3. The reliefs prayed for in the Writ Petition are the WPC No.23044/2009 2 following: “(i) issue a writ of mandamus or other appropriate writ, order or direction commanding the first respondent to report all the vacancies of HSST (History) available for direct recruitment to the PSC strictly in accordance with the Special Rules, reckoning the eligibility as on the date of occurrence of vacancies without any delay and to direct the PSC to advise the candidates from Ext.P1 rank list for appointment against those vacancies and further direct the first respondent to appoint the candidates thus advised. (ii) direct the first respondent to fill up the vacancies of HSST History duly observing the 1:3 ratio between HSAs and direct recruits and ensure that no appointment is made in excess of the quota for HSAs after the enforcement of Special Rules and fill up the vacancies in strict adherence to the directions contained in W.A.1000/06. (iii) to issue such other directions as this Hon'ble Court may deem fit and proper. (iv) grant the costs of this petition.” 4. The interim reliefs prayed for in the Writ Petition read as follows: “(1) not to fill up any vacancy of HSST History, by transfer of HSST Juniors, which arose before completion of their probation and not to fill up any vacancy of HSST History by transfer of HSAs in excess of their quota reckoning the appointments made after the issuance of Special Rules in 2001; WPC No.23044/2009 3 (2) to report the 40 vacancies of HSST (History) mentioned in Ext.P3(a) to the PSC forthwith, pending disposal of the Writ Petition.” On 30.7.2008, this Court passed an interim order which reads as follows: “Learned Government Pleader takes notice for R1. Standing Counsel takes notice for R2. Interim relief No.1 is granted. Interim relief No.2- there will be an interim order that 40 vacancies of HSST (History) mentioned in Ext.P3(a) shall be provisionally reported to the PSC without prejudice to the contentions, however that PSC shall not advise any candidates there from until further orders.” It is submitted that pursuant to the order dated 30.7.2008, 40 vacancies of HSST History were reported to the PSC. However, PSC could not advise any candidate in view of the interim order dated 30.7.2008. As per I.A.No.14442/08, the petitioners have produced Ext.P6 order dated 15.9.2008 passed by the Government whereunder 866 posts of HSST (Senior) were created. It is further stated that by Ext.P6 order, 655 posts of HSST (Junior) were upgraded as HSST. The petitioners state that 93 out of 866 posts created are of HSST (History). According to the petitioner, 55 more vacancies would be available for direct recruitment. WPC No.23044/2009 4 5. A statement dated 15.1.2009 is filed on behalf of the first respondent wherein it is stated that all the available 44 vacancies have been reported to the Public Service Commission. How the break up figures were computed have been stated in paragraphs 3 to 5 of the statement, relevant portion of which is extracted below: “The details/split up ratio of vacancies excluding the 40 vacancies reported to PSC pursuant to the direction of this Hon'ble Court are furnished below (prepared on the basis of the provisions contained in the Special Rules after its formulation on 16.4.2001). ---------------------------------------------------------------------------------------- Date of Total No. No. of No. of Vacancies coming occurrence of vacancy qualified remaining under each quota of vacancy HSST(Jr) vacancy 25% 75% --------------------------------------------------------------------------------------------------------- 23/9/2001 162 - 162 40 122 31/7/2005 59 2 57 15 42 31/10/2006 20 4 16 4 12 31/7/2007 23 - 23 6 17 31/7/2008 25 14 11 3 8 31/10/2008 3 - 3 1 2 -------------------------------------------------------------------------------------------------------- 4. Out of the above, all the vacancies coming under 75% quota (203 only) had already been filled up through direct recruitment. Only 55 out of 69 vacancies had been filled up under 25% quota. The 28 vacancies now available are to be filled up by transfer appointment of 14 qualified HSST (Jrs.) and 14 qualified departmental teachers. As qualified HSST (Jrs.) were available as on 31.7.2005 and 31.10.2006. 6 of the vacancies arose as on that dates were WPC No.23044/2009 5 filled up by their transfer appointment. 5. The 40 vacancies reported provisionally as per Court Order in anticipation of the vacancies that were newly created. As stated earlier the Govt. have created 866 posts of HSSTs in various subjects as per G.O. Dated 15.9.2008. Out of the above, there are 73 vacancies are available for HSST (History). There are 14 HSST (Jr) eligible for promotion. After setting aside the 14 vacancies, the remaining 59 vacancies are apportioned in the ratio 1:3 as 15 and 44 (25% quota for by transfer appointment and 75% quota for direct recruitment as per Special Rules). Thus, there are 44 vacancies of HSST (History) to be reported to PSC (including the 40 vacancies provisionally reported to PSC in compliance with the interim order of this Hon'ble Court dated 30.7.2008). Therefore, there are only 4 more vacancies to be reported to PSC. The above four vacancies have already been reported to PSC as per this office letter No.Ad C3/34267/08/HSE dated 9.1.2009.” 6. The petitioners have filed a reply affidavit dated 19th January 2009. The relevant portion of the reply affidavit is extracted below : “In the table given in para 3 of the statement, it is stated that as on 31.7.08 there were 14 qualified HSST Juniors and 25 vacancies. After setting apart 14 vacancies for the HSST Juniors the remaining 11 vacancies are shown as apportioned in 1:3 ratio. The table further shows that there is no qualified HSST Junior as on 31.10.2008. But in para 5 it is stated out of the 73 vacancies which arose on creation of new posts, 14 are to be set apart for them again, saying that there are 14 HSST Juniors. 866 posts are created on 15.9.08. If there was no other WPC No.23044/2009 6 HSST Juniors available as on 31.10.08, as shown in the table, it is not understood why another set of 14 vacancies should be set apart again. If at all there are any such Junior Teachers, from the table itself it is clear that they were not qualified even on 31.10.08. Vacancies are to be filled up in accordance with the position as on the date of occurrence of vacancies. 3. In fact we were given to understand that altogether 93 posts of HSST History are sanctioned on creation of 866 new posts and upgradation of 655 Junior posts. The statement refers only to the vacancies which arose on creation of 866 alone. It is silent about the vacancies which arose on account of upgradation of the 655 Junior posts by the very same order dated 15.9.08. This order also makes it clear that the posts are sanctioned with effect from the academic year 2007-08, i.e., 1.6.07. 4. It is also pertinent to note that it was the information furnished by the Public Information Officer in Ext.P2A and P3A that there were 52 vacancies of HSST on 19th June 2008 and 40 on 8th July 2008. Now the 2nd respondent says that the number of vacancies was only 28 as on 31st July 2008. 5. At any rate even assuming that there are only 73 vacancies on account of creation of posts, all those vacancies are liable to be apportioned in the ratio of 1:3, when there would be 55 vacancies for direct recruitment, as against the 44 now stated to be available. Hence, even without taking into account the vacancies which arose on upgradation of posts, 11 more vacancies are to be reported to PSC.” 7. In view of the statement as well as the reply affidavit, the question to be resolved is as to how many vacancies of HSST Junior (History) are available. According to the first respondent, WPC No.23044/2009 7 only 44 vacancies are available and those vacancies have been reported. According to the Writ Petitioners, going by the details furnished by the first respondent in the statement, 11 more vacancies would be available. These disputes cannot be resolved in the Writ Petition under Article 226 of the Constitution of India. These are all matters which are to be looked into with reference to the relevant records by the first respondent. 8. The first respondent shall consider the averments in the Writ Petition, the statement filed by the first respondent as well as the reply affidavit by the Writ Petitioners and decide the question as to how many vacancies of HSST's are available to be reported and whether the stand taken by the first respondent in the statement that only 44 vacancies are available is correct or not. The petitioners would be entitled to bring to the notice of the first respondent the relevant particulars and details to arrive at a correct conclusion. The first respondent shall fix a date for hearing and the petitioners would be heard on that day. Final orders shall be passed by the first respondent within a period of three months from today. If it is found that apart from the 44 vacancies already reported, there are other vacancies to be reported, necessary steps shall be taken to report those WPC No.23044/2009 8 vacancies within a period of one month thereafter. 9. The restriction in the interim order dated 30.7.2008 that the PSC shall not advise any candidate is vacated. The Public Service Commission shall take urgent steps to advise the candidates for appointment expeditiously. The Writ Petition is disposed of as above. K.T.SANKARAN, JUDGE csl