IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 WP(C).No. 12886 of 2010(I) --------------------------------- PETITIONER(S): ------------------- 1. SARITHA B., HAS, TECHNICAL HIGH SCHOOL, KUTTIPURAM, MALAPPURAM DISTRICT. 2. ANILKUMAR B.K., has, GOVERNMENT GIRLS HIGH SCHOOL, MADAPPULLY, VADAKARA. 3. PRABHA VASUDEV G., has, GOVERNMENT HIGH SCHOOL, PARAVOOR, PUNNAPPRA NORTH, ALAPPUZHA. 4. LAKSHMI V. RADHAKRISHNAN,HSA, GOVERNMENT HIGH SCHOOL, VIEYAPURAM, ALAPPUZHA. 5. ANOOP, UPSA, GOVERNMENT U.P. SCHOOL. CHEMMANATHUKARA, VAIKOM-KOTTAYAM DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): -------------------- 1. STATE OF KERALA REPRESENTED BY, SECRETARY TO GOVERNMENT, GENERAL EDUCATION, SECRETARIAT. THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI.V. VIJULAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011, ALONG WITH WPC.NO.7763/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 12886/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF NOTIFICATION DATED 30/09/2008 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF PROCEEDINGS ISSUED BY THE 2ND RESPONDENT DATED 17/02/2010. P3: COPY OF REPRESENTATION SUBMITTED BY ONE OF THE PETITIONERS DATED 12/03/2010. P4: COPY OF RANK LIST PUBLISHED FOR THE POST OF HIGHER SECONDARY SCHOOL TEACHERS (JUNIOR)- PHYSICS. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.12886/2010-I & 7763/2011-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10 th day of August, 2011 J U D G M E N T In W.P.(C).No.12886/2010, petitioners 1 to 4 are working as High School Assistants and the fifth petitioner is working as an Upper Primary School Assistant, in different schools. The petitioner in W.P.(C).No.7763/2011 is an Upper Primary School Assistant. 2. In both the writ petitions, the issue raised is identical, namely, with regard to the delay in preparation of seniority list for by-transfer appointment as Higher Secondary School Teachers (Junior). 3. Going by the averments in the writ petitions, there are 24 posts of H.S.S.T (Physics) and 77 posts of H.S.S.T (Physics)(Junior). The second respondent- Director of Higher Secondary Education invited applications for preparing a seniority list of the eligible candidates working in General Education Department as H.S.A, U.P.S.A and Lower Primary School W.P.(C). Nos.12886/2010 & 7763/2011 -:2:- Assistant against the vacancies that arose on 31/07/2008. 4. It is the case of the petitioners that since 31/07/2008 is fixed as cut off date, the petitioners could not be included in the said seniority list. 5. What is projected in the writ petitions is the grievance that since fresh seniority list is not prepared for consideration to the posts of H.S.S.Ts, the entire vacancies which are set apart for 25% quota will be filled up by direct recruitment by the Public Service Commission. Accordingly, they pray for a direction to the Department to publish a fresh seniority list. 6. In the counter affidavit filed by the second respondent in W.P.(C).No.7763/2011, in para.3 it is pointed out that as per notification dated 30/09/2008, applications are invited from among qualified HSAs/UPSAs/LPSAs for preparing seniority list against the vacancies that arose on 31/07/2008 (under 25% category for 'by-transfer' appointment). There were 24 W.P.(C). Nos.12886/2010 & 7763/2011 -:3:- posts in H.S.S.T (Physics) and 77 posts in H.S.S.T (Junior)(Physics). But, there were only 17 applicants and out of them only 13 qualified candidates were available for by-transfer appointment. As per the Special Rule, the remaining 11 vacancies in H.S.S.T Physics and 77 vacancies in H.S.S.T (Junior)(Physics) were reported to the Public Service Commission. It is further averred that the Department will issue fresh notification for the preparation of the next seniority list for by-transfer appointment against the vacancies that arose after 31/07/2008 after the appointment of candidates in the existing select list. It is also stated that 13 qualified candidates were appointed as per order dated 23/07/2011. In para.5 it is pointed out that the Department will issue notifications for preparing the seniority list of departmental teachers for filling up the vacancies that arose after 31/07/2008 and it is not practical to prepare a seniority list of qualified Departmental Teachers for W.P.(C). Nos.12886/2010 & 7763/2011 -:4:- the subject Physics alone as requested by the petitioners. 7. The learned counsel for the petitioners submitted that the averment that they will issue a notification will not alleviate the grievance of the persons like the petitioners who are waiting for appointment under the by-transfer appointment category. It is pointed out that the last of the notifications was issued by taking 31/07/2008 as the cut off date. Thereafter, no fresh seniority list has been prepared. It is also pointed out that it has resulted in reporting of the remaining vacancies to the Public Service Commission at the cost of the qualified candidates like the petitioners and, therefore, the Department should have initiated simultaneous process to ascertain the qualified number of candidates and for preparation of seniority list. 8. The learned Government Pleader submitted that once the seniority list is published, it can be finalised only after hearing the objections and W.P.(C). Nos.12886/2010 & 7763/2011 -:5:- ascertaining various aspects, which is a time consuming process. It is therefore, pointed out that action cannot be initiated simultaneously before finalising the various procedures. 9. Evidently, 25% appointments are for by- transfer category. They will get appointment only if a proper seniority list is published, depending upon the eligibility. Therefore, a fresh decision has to be taken to publish and finalise a seniority list within a time frame. Herein also, one thing to be noticed is that even though vacancies are there, only 13 qualified hands got appointment under the by-transfer category. A lot of candidates are waiting, who are also qualified. 10. It is a case where various factors including the administrative delay have caused hardship for the qualified candidates, which is the matter for the Government and the Department to consider. Therefore, expeditious steps will be taken to see that a seniority list is published, at any rate, within a period of W.P.(C). Nos.12886/2010 & 7763/2011 -:6:- eight months from the date of receipt of a copy of this Judgment. The writ petitions are disposed of as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms