IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 WP(C).No. 19358 of 2007(D) -------------------------- PETITIONERS: ------------ 1. SUDHEER A.K., LABORATORY ASSISTANT, G.V.H.S.S., KOONATHARA, PALAKKAD DIST. 2. MOHAMMEDUNNI.K., LABORATORY ASSISTANT, G.V.H.S.S., VATTENAD, KOTTANAD, PALAKKAD DIST. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. ADDL. R3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, TRIVANDRUM. (ADDL. R3 IS IMPLEADED AS PER ORDER DT. 31/1/08 IN IA. 1658/08 IN THIS WPC) BY SENIOR GOVERNMENT PLEADER, SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19358/2007/D APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF DISABILITY CERTIFICATE DT. 9-10-1996 ISSUED TO THE 1ST PETITIONER. EXT. P2: COPY OF DISABILITY CERTIFICATE DT. 22-5-1996 ISSUED TO THE 2ND PETITIONER. EXT. P3: COPY OF THE ORDER DATED 23.3.1999 ISSUED BY THE 2ND RESPONDENT; ALONGWITH THE LIST OF PERSONS APPOINTED. EXT. P4: COPY OF THE ORDER DATED 10-9-2004 OF THE 2ND RESPONDENT. EXT. P5: COPY OF ORDER DATED 30-10-2004 OF THE 2ND RESPONDENT. EXT. P6: COPY OF ORDER DATED 28-1-2005 OF THE 2ND RESPONDENT. EXT. P7: COPY OF ORDER DATED 29-12-2004 OF THE 2ND RESPONDENT. EXT. P8: COPY OF THE NOTIFICATION PUBLISHED BY THE P.S.C. IN THE MATHRUBHUMI THOZHIL VARTHA DT. 7-5-2005. EXT. P9: COPY OF THE REPRESENTATION DT. 8-1-2007 FILED BY THE FIRST PETITIONER BEFORE THE 2ND RESPONDENT. EXT. P10: COPY OF THE REPRESENTATION DT. 26-9-2006 FILED BY THE 2ND PETITIONER TO THE 2ND RESPONDENT. EXT. P11: COPY OF REPRESENTATION DT. 1-6-2007 FILED BY THE 1ST PETITIONER TO THOE 1ST RESPONDENT. EXT. P12: COPY OF REPRESENTATION DT. 22-1-2007 FILED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= W.P.(C) No.19358 of 2007(D) ======================= Dated this the 2nd day of April, 2008 JUDGMENT The petitioners who are physically handicapped persons were appointed as Laboratory Assistants on provisional basis and they were regularised in that post with effect from 13.10.99 as per Ext.P4 and P5 orders dated 10.9.2004 and 30.10.2004. Their probation in that category was declared with effect from 13.10.2001 and 14.10.2001 by Exts.P6 and P7 orders dated 28.1.2005 and 29.12.2004 respectively. Petitioners are fully qualified for promotion as Vocational Instructor in Accountancy and Auditing. As per the Special Rules applicable for the post of Vocational Instructors, the post has to be filled up by 3 methods which are: (i) By promotion from qualified Laboratory Assistant. (ii) By transfer from qualified staff in the Ministerial Subordinate Service in the Department. (iii) By direct recruitment. As per the note attached to Rule 3 of the Kerala Vocational Higher Secondary Education Subordinate Service Rules, 2004, the total W.P.(C) No.19358/2007/D -2- number of posts sanctioned in the cadre of Vocational Instructors shall be filled up by methods mentioned above in the ratio of 2:1:7 subjectwise. On 30.3.2004, the 2nd respondent reported 36 vacancies of Vocational Instructors in Accountancy and Auditing to the Public Service Commission for advise of candidates for appointment. According to the petitioner, although the PSC has invited applications, the rank list has not yet been published. Contention of the petitioner is that in the Vocational Higher Secondary Education Department so far in Accountancy and Auditing, no vocational teacher has been appointed by promotion from among the Laboratory Assistants. Going by the cadre strength namely 40, 8 posts have to be filled up by promotion from among Lab Assistants to satisfy the ratio prescribed in the Special Rules. The petitioners contend that in so far as they have become qualified as on 13.1.2001 and 14.1.2001, they are entitled to be considered for promotion to that vacancies which have arisen subsequent to that stage. The allegation is that instead of making promotions from among Laboratory Assistants, the entire vacancies available has been W.P.(C) No.19358/2007/D -3- reported to the PSC as a result of which there are no vacancies for appointment from other categories. Therefore, the petitioners seek the following reliefs: i) issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to give promotion to the petitioners as Vocational Instructors as Accountancy and Auditing with retrospective effect from 15-10-2001 with all consequential benefits. ii) issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to give promotion to the petitioners as Vocational Instructors in Accountancy and Auditing forthwith. iii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the action of the respondents in filling up the vacancies of Vocational Instructors in Accountancy and Auditing under the quota set apart for promotion by direct recruitment, while qualified hands like the petitioners are available as illegal. iv) issue a writ of mandamus or any other appropriate writ, direction or order restraining the respondents from filling up the two posts of Vocational Instructors in Accountancy and Auditing by direct recruitment. And v) grant such other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case including costs. 2. A counter affidavit and an additional counter affidavit have been submitted by the 2nd respondent. The Government W.P.(C) No.19358/2007/D -4- Pleader would submit that petitioners' services were regularised only on 10.9.2004 and 30.10.2004 and even prior to that on 30.3.2004 the vacancies available have been reported. Although with retrospective from 13.10.2001 and 14.10.2001, the probation of the petitioners were declared only on 28.1.2005 and 29.12.2004 respectively. According to the Government Pleader, therefore, the 2nd respondent cannot be found fault with for reporting the vacancies in so far as at the time when the vacancies were reported, there were no persons eligible for promotion from among Laboratory Assistants and as per the Special Rules, if sufficient number of qualified persons are eligible from the first two categories as mentioned in the rules are available such vacancies shall also be filled up by direct recruitment. The learned Government Pleader further submits that the petitioners would be considered for promotion in the next arising vacancies. 3. Along with I.A. No.2634/2008, the petitioners have produced Ext.P13 proceedings of the 2nd respondent whereby 9 batches of Accountancy and Auditing courses have been W.P.(C) No.19358/2007/D -5- sanctioned in various Vocational Higher Secondary Courses. Correspondingly, vacancies would also arise. However, the Government have not yet sanctioned posts for those courses yet. 4. I have considered the rival contentions. May be because of no fault of the 2nd respondent, the entire vacancies available as on 30.3.2004 happened to be reported to the PSC. As on that date the right of the petitioners had not crystallized. Of course, subsequently their rights have crystallized with effect from 13.10.2001 and 14.10.2001. Therefore, not withstanding the fact that the vacancies were reported to the PSC, the rights which have accrued to the petitioners cannot now be denied to them, especially since no rank list has been prepared pursuant to the reporting of vacancies. Therefore, I am satisfied that the petitioners are eligible to be considered for promotion to two of the vacancies which have been reported to the PSC. In the above circumstances, the writ petition is disposed of with the following directions: The 3rd respondent Public Service Commission shall advise candidates only to 34 vacancies out of the 36 vacancies which W.P.(C) No.19358/2007/D -6- have been reported on 30.3.2004. In the other two vacancies, the petitioners' claim for promotion shall be considered and orders passed by the 2nd respondent. This shall be done within a period of two months from the date of receipt of a copy of this judgment. The petitioners' claim for seniority is left open to be agitated by the petitioners, if occasion arises. Sd/- S.SIRI JAGAN, JUDGE jp /True copy/ P.A. to Judge