IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 21174 of 2008(U) ----------------------------------------- PETITIONER(S): ------------------------ K.K.SHAMSUDHEEN, AGED 36 YEARS, S/O.K.K.YAHU, P.D.TEACHER, GOVERNMENT U.P.SCHOOL, NARIPPARAMBA, PATTAMBI,PALAKKAD DISTRICT AND RESIDING AT KALADIKUNNUMMAL HOUSE, CHEMBRA PO., THIRUVEGAPPURA VIA., PALAKKAD DISTRICT, 679 304. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 3. DEPUTY DIRECTOR OF EDUCATION, PALAKKAD 4. FAREES.M., HIGH SCHOOL ASSISTANT (MATHEMATICS), GOVERNMENT HIGH SCHOOL, EDATHANATTUKARA, MANNARKKAD, PALAKKAD. *ADDL.R5 IS IMPLEADED: R5. THE DISTRICT OFFIER, KERALA PUBLIC SERVICE COMMISSION, PALAKKAD. (*ADDL.R5 IS IMPLEADED AS PER ORDER DTD. 22/07/2008 IN I.A.NO.9538/08) R1 TO R3 BY SR.GOVERNMENT PLEADER MR.NOBLE MATHEW R5 BY ADV. MR. ALEXANDER THOMAS, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.RAVINDRAN, J. ------------------------------------- W.P.(C).No.21174 of 2008 -------------------------------------- Dated 23rd March, 2009 JUDGMENT Heard Dr.George Abraham, the learned counsel appearing for the petitioner, Sri. Noble Mathew, the learned Senior Government Pleader appearing for respondents 1 to 3 and Sri.Alexander Thomas, the learned standing counsel appearing for the fifth respondent. 2. The writ petitioner is a P.D. Teacher. He was appointed on 26.9.1997. He possesses BSc. Degree in Mathematics, B.Ed. Degree in Mathematics and T.T.C. He is, therefore, eligible and qualified to be appointed as High School Assistant (Mathematics). 3. As per the existing Government orders, posts of High School Assistant are filled up in the following manner: Direct recruits – 50% Inter-district Transfer – 30% Promotion of Primary Teachers – 10% Promotion of Clerks/Typists – 10%. The writ petitioner is admittedly Sl.No.1 in the seniority list of P.D. Teachers in Palakkad District, eligible for promotion as High School Assistant (Mathematics). He has however been denied promotion for the past several W.P(C)No.21174/2008 2 years on the ground that direct recruits are holding posts in excess of the quota earmarked for them. 4. The official respondents have filed a counter affidavit stating that the cadre strength of High School Assistant (Mathematics) in Palakkad District is 258 and that at present there are 285 teachers. They contend that 27 teachers are in excess. It is stated that, later, the number of excess teachers was reduced to 14 and that seven candidates selected by the Kerala Public Service Commission are awaiting appointment. It is also contended by the respondents that as direct recruits are in excess of the quota earmarked for them and the cadre strength has been exceeded, the petitioner cannot be promoted. 5. The writ petitioner had earlier filed W.P.(C)No.17985 of 2007 in this Court. That writ petition was disposed of by Ext.P7 judgment recording the submission made by the respondents in the counter affidavit. In the said counter affidavit, the respondents had stated that there are 230 direct recruits against the 50% earmarked for them and that the number of P.D. Teachers appointed by promotion is only 15. Going by the cadre strength, P.D. Teachers are entitled to be promoted to 25 posts. The respondents have no case that 25 P.D. Teachers have been promoted as High School Assistant (Mathematics). Their own statement shows that only 15 P.D.Teachers are occupying the post of High School Assistant (Mathematics) in Palakkad District. The petitioner is admittedly the senior W.P(C)No.21174/2008 3 most P.D. Teacher who is eligible and qualified to be promoted as High School Assistant (Mathematics). He is however, denied appointment on the ground that 230 direct recruits have been appointed though direct recruits can be appointed only to 50% of 258 posts. In other words, the petitioner is denied promotion due to the illegal action of the respondents in appointing direct recruits in excess of the quota earmarked for them. Since direct recruits are holding posts in excess of the quota reserved for them, such direct recruits only be stated to be holding supernumerary posts. The petitioner cannot, in my opinion, be visited with the consequences of the illegal action of the respondents in appointing direct recruits in excess of the quota earmarked for them. I am, therefore, of the opinion that the stand taken by the respondents in not promoting the petitioner as High School Assistant (Mathematics) is patently illegal. 6. In the result, I dispose of this writ petition with a direction to the competent authority among respondents 1 to 3 to promote the petitioner as High School Assistant (Mathematics) in the 10% quota earmarked for primary teachers and give him a suitable posting. Necessary orders in that regard shall be issued at the earliest and in any event, on the date on which the schools re-open during the academic year 2009-2010. If any direct recruit is to be retrenched to give room to the petitioner, the respondents shall take necessary steps in that regard for the reason that, direct recruits have been appointed in excess of the quota W.P(C)No.21174/2008 4 earmarked for them. Needless to say, while effecting such retrenchment, the junior most among the direct recruits shall be retrenched. The writ petition is allowed to the above extent. P.N.RAVINDRAN Judge TKS