IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 WP(C).No. 3614 of 2008(E) ------------------------- PETITIONER: --------------- DR.S.S.VIVEKANANDAN, NANDANAM, OTTASEKHARAMANGALAM, THIRUVANANTHAPURAM. BY ADV. SRI.P.C.SASIDHARAN SRI.E.S.ASHRAF RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R3 GOVERNMENT PLEADERSRI.T.T.MOHAMMED FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.3614/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE RANKED LIST PUBLISHED BY THE COMMISSION NO.467/2005/SSIV. EXT.P2: TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN WPC NO.7181/06. EXT.P3: TRUE COPY OF THE ORDER OF THIS HON'BLE COURT INWPC NO.21616/2007. EXT.P4: TRUE COPY OF THE INFORMED RECEIVED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. EXT.P5: TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT DT 7.12.2007. EXT.P6: TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT DT 12.12.2007. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 3614 OF 2008 E ==================== Dated this the 17th day of September, 2008 J U D G M E N T Petitioner was included in the ranklist of Lecturer Sanskrit (Nyaya). Ext.P1 is the ranklist where he has been included at Sl.No.6. Subsequently, yet another person was included at Sl.No.3A and therefore effectively, the petitioner's ranking is at Sl.No.7. 2. According to the petitioner, upto Rank no.6, candidates have been advised and he is the next one to be advised from the list. In this writ petition, referring to Ext.P4, petitioner submits that as on 16/6/2006, out of a cadre strength of 16, there were 8 vacancies available and that there is a leave vacancy of one Lakshmi, who is absent from duty since 12/6/2007. It is contended that if these vacancies are reported, the petitioner is bound to be advised and therefore the prayer is sought that the vacancies should be reported for advising candidates from the ranklist. 3. A statement has been filed on behalf of the 2nd respondent. Referring to Ext.P4 and the statement filed by the 2nd respondent, learned Government Pleader contends that though as on 16/6/2006, there were 8 vacancies as is seen from Ext.P4, 9 vacancies were already reported and 6 WPC 3614/08 :2 : candidates were already advised. It is stated that 3 vacancies are set apart for reserve communities and are to be re-notified. However, in so far as the leave vacancy of Smt.Lakshmi pointed out by the petitioner is concerned, in para 2 of the statement, it is stated that a Lecturer is absent w.e.f.12/6/07 and that her application for sanctioning leave is under process and the Government have to take a decision in the matter of sanctioning leave. According to the 2nd respondent, at this stage, her absence cannot be treated as a substantive vacancy to be reported to the Public Service Commission and that there is no other vacancy remaining to be reported. 4. From the facts as noticed above, if at all there is any admitted vacancy, that vacancy can be only the one arising out of the leave applied for by Smt.Lakshmy, who is absenting from duty from 12/6/07. Referring to Rule 5 of Para 2 KS & KSSR, learned counsel for the petitioner submits that even a leave vacancy for a period beyond 6 months is a substantive vacancy. However, as at present, since leave is yet to be granted, I do not think it is possible to accept that contention and hold that the said vacancy is a substantive vacancy which is liable to be reported now. Any such reporting of vacancy will depend upon the decision to be taken by the WPC 3614/08 :3 : Government on the leave application submitted by the concerned Lecturer, about which reference has been made in para 2 of the statement. 5. However, fact remains that if leave is granted and the vacancy is available, necessarily the same has to be reported and if so reported, petitioner will be the beneficiary. In view of this, what is now required to be done is that the Government should process the application of leave submitted by the Lecturer referred to above and based on the decision to be taken, the vacancy should be reported and filled up from among candidates advised. 6. Therefore, it is directed that the 1st respondent shall process the leave application about which reference has been made in para 2 of the statement. This shall be done, as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment. Depending upon the decision to be taken on the leave application, if any vacancy is available, the same shall be reported and candidate should be advised on that post. 7. At this stage, learned counsel for the petitioner submits that unless the one vacancy is provisionally reported, atleast at this stage, there is a possibility that the PSC might come out with a new list, in which WPC 3614/08 :4 : case, his chances of employment will be foreclosed for ever. Having considered this submission of the learned counsel for the petitioner, I feel that this apprehension of the petitioner is a reasonable one. Therefore, in order to avoid the possibility of the petitioner loosing his employment prospects following his inclusion in Ext.P1 rank list, I direct that the possible vacancy, on account of the absence of the candidate about which reference has been made in para 2 of the statement, be reported to the PSC on a provisional basis, but advise need be made only depending upon the availability of vacancy pursuant to the decision to be taken by the Government as directed above. It is also clarified that it will be open to the petitioner to move the 1st respondent for provisional appointment in the meanwhile, in which case, it is entirely for the 1st respondent to take a decision in the matter. Writ petition is disposed of as above. Petitioner shall produce a copy of this judgment before the 1st respondent for compliance. ANTONY DOMINIC, JUDGE Rp