IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 10392 of 2008(K) -------------------------- PETITIONER: ------------ SAJEEV.B, S/O.BASHEER, AGED 29, VALATHANTAVILA, VAKKAM P.O, VAKKAM, THIRUVANANTHAPURAM, PIN 695 308. LAB ASST. AGRICULTURE IN GVT. V.H.S.S., VAKKAM, TVM (TERMINATED) BY ADV. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, SOCIAL WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY, PERSONNEL AND ADMINISTRATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SMT. T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 31.8.2007 EXT.P2 TRUE COPY OF THE PROCEEDINGS DATED 26.10.1998 EXT.P3 TRUE COPY OF THE CERTIFICATE DATED 22.4.1999 EXT.P4 TRUE COPY OF THE CERTIFICATE DATED 29.7.2005 EXT.P5 TRUE COPY OF THE GO(P) NO.43/2007/SWD DATED 9.8.2007 EXT.P6 TRUE COPY OF GO(P) NO.85/2007/SWD DATED 30.11.2007 EXT.P6(a) TRUE COPY OF THE LIST FOR THIRUVANANTHAPURAM DISTRICT APPENDED TO EXT.P6 EXT.P7 TRUE COPY OF THE LETTER DATED 7.1.2008 EXT.P8 TRUE COPY OF THE JUDGMENT DATED 6.5.2008 IN WP(C) NO.7044/2008 EXT.P9 TRUE COPY OF CIRCULAR DATED 21.5.2008 ISSUED BY THE RESPONDENT //TRUE COPY// K.T. SANKARAN,J. -------------------------------------- W.P.(C) No.10392 OF 2008 K -------------------------------------- Dated this the 11th day of August, 2008. J U D G M E N T The petitioner states that he is a physically challenged person having 50% disability. He was provisionally appointed as Lab Assistant - Agriculture, under Rule 9(a)(1) of Kerala State & Subordinate Service Rules through the Divisional Employment Exchange, Thiruvananthapuram. He was working as Lab Assistant - Agriculture in the Government Vocational Higher Secondary School, Vakkam for the period from 2.11.1998 to 22.4.1999. The Government issued Ext.P6 order dated 30.11.2007 providing regular appointment to handicapped persons who were earlier appointed in provisional service through Employment Exchange. The district wise list was appended to the Government Order. Petitioner's name is also included in the list as Sl.No.20 for Thiruvananthapuram District. Going by Ext.P6 order, the petitioner is entitled to get appointment in the next arising vacancy. It is also provided in Ext.P6 that if there is no existing vacancy, appointment should be made towards the 3% vacancies reserved for handicapped persons. 2. The reliefs prayed for in the Writ Petition are the following:- WP(C) No.10392/2008 2 (i) issue a writ of mandamus or any other appropriate writ or order directing the respondents to reappoint the petitioner as Lab Assistant - Agriculture in the Vocational Higher Secondary Education Department at the earliest and within a definite time frame; (ii) Issue a writ of mandamus or any other appropriate writ or order directing the respondents to create supernumerary post for reappointing the petitioner if it is necessary; (iii) Issue a writ of certiorari or any other writ or order quashing Exhibit P7 after calling for records leading thereto; and (iv) Pass such other orders as are deemed fit and necessary in the interest of justice and for proper and effective adjudication of the case.” 3. A counter affidavit is filed on behalf of the respondents wherein it is stated as follows:- WP(C) No.10392/2008 3 “5. It is submitted that consequent to the promulgation of VHSE Special Rules, 4th respondent had reported all the existing vacancies of Lab Assistant to PSC for permanent appointment. That has been done long before the publication of the list of candidates eligible for reappointment by Government. Consequent to the reporting of vacancies PSC had already conducted the selection test and published the main list. In this circumstance 4th respondent is not in a position to appoint the petitioner due to lack of vacancies. Since all the existing vacancies had already been reported to PSC for permanent appointment VHSE department have no authority to direct the PSC to stop the selection procedures. As per GO(MS) No.232/71/PD dated 12.8.1971 and Government Circular No.123786/SD-5/72/PD dated 5.12.1972 once the vacancies are reported to the PSC they should neither be cancelled nor reduced. Public Service Commission had reminded VHSE department about this fact vide letter dated 28.9.2007 in connection with the appointment of Lab Assistant and certain other categories of Post. But VHSE department has no hesitation to appoint the petitioner against the newly arising vacancies of Lab Assistant. Due to the sanctioning of new VHS Schools and up gradation of existing schools in 2007 there is a sure chance of creating 100 + post of WP(C) No.10392/2008 4 Lab Assistant in the department of Vocational Higher Secondary Education and the department will take all the efforts to appoint the petitioner in that post. It may be noted that in the GO(P) No.85/07/SWD dated 30.11.2007 it is clearly stated that if the vacancies to accommodate the candidates eligible for re- appointment are not available in the concerned department they will be considered in the coming vacancies.” In view of the statement made by the respondents in the counter affidavit, the stand taken by the fourth respondent in Ext.P7 dated 7.1.2008 that the petitioner would be appointed in the next arising vacancy cannot be faulted. Since the vacancies existing as on the date of Ext.P6 order were already reported, the petitioner can aspire for appointment only in the next arising vacancy. Counter affidavit filed by the respondents is taken as an undertaking that the petitioner would be appointed in the next arising vacancy. Recording this undertaking, Writ Petition is disposed of. K.T. SANKARAN, JUDGE. cks