IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 WP(C).No. 22969 of 2003(H) --------------------------------------- PETITIONERS: --------------------- 1. NARAYANAN PAROL, S/O.AMBUKUTTY, WORKING AS HSST(JR), AT TAGORE VIDHYA NIKETHAN GVHSS, TALIPARAMBA, KANNUR, RESIDING AT "ANAMIKA", PANAKKAD, P.O.KARIMBAM - 670 142. 2. PRABHAKARAN T., S/O.K.P.KUNHAMBU, AGED 44 YEARS, WORKING AS HSST (JR), CH MKS GHSS MATTOOL, KANNUR, RESIDING AT "SREE PRABHA", PALLIKULAM, P.O.CHIRAKKAL, KANNUR - 670 011. 3. MANIKANDHAN.N., S/O.KRISHNAN P., AGED 41 YEARS, WORKING AS HSST (JR), GHSS, MADAYI, KANNUR RESIDING AT "THRIPTHI", PADANNAPPURAM, P.O.VILAYANKODE - 670 501. 4. VENUGOPALAN K.V., S/O.CHIRUKANDAN, AGED 41 YEARS, WORKING AS HSST (JR), GHSS, MATHAMANGALAM, KANNUR, RESIDING AT PERUL PARATHODE P.O.M.M.BAZAR - 670 306. 5. SUDHEER BABU P.K., S/O.KUNHIKANNAN, AGED 43 YEARS, WORKING AS HSST (JR), GHSS, IRIKKUR, KANNUR, RESIDING AT "KAYANADATH", P.O.PINARAYI - 670 741. BY ADV. SRI.R.SURENDRAN. RESPONDENTS: ----------------------- 1. THE DIRECTOR, HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM-1. 2. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT. T.B. REMANI FOR R1 & R2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.22969/2003-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. AD. B1-8542/01/HSE DTD. 12/05/2003 TOGETHER WITH THE SENIORITY LIST (UP TO S1.NO.28) OF has (HINDI) IN GOVERNMENT SERVICE QUALIFIED FOR APPOINTMENT AS HSST AS ON 20/09/2001. EXT.P.2: COPY OF THE ORDER NO. AD. B3/31719/2002/HSE DTD. 27/11/2002 APPOINTING THE PETITIONERS PROVISIONALLY AS HSST (JR). EXT.P.3: COPY OF THE ORDER NO. AD.B3/31719/2002/HSE DTD. 28/06/2003 APPOINTING THE PETITIONERS AS HSST (JR). EXT.P.4: COPY OF THE ORDER NO. AD. B3/31719/2002/HSE DTD. 28/06/2003 APPOINTING THE SL.NO.1 TO 3 & 5 TO 11 IN THE SENIORITY LIST AS HSST. EXT.P.5: COPY OF THE REPRESENTATION DTD. 31/10/2005 FILED BY THE P.2. (FIRST PETITIONER HEREIN). EXT.P.6: COPY OF THE REPRESENTATION DTD. 05/11/2005 FILED BY THE P.3. (SECOND PETITIONER HEREIN). EXT.P.7: COPY OF THE REPRESENTATION DTD 02/11/2005 FILED BY THE P.4. (THIRD PETITIONER HEREIN). EXT.P.8: COPY OF THE REPRESENTATION DTD. 05/11/2005 FILED BY THE P.5. (FOURTH PETITIONER HEREIN). RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. ANTONY DOMINIC, J. ===================== W.P.(C) NO. 22969 OF 2003 (H) ==================== Dated this the 23rd day of October, 2008 J U D G M E N T Petitioners were High School Assistants in Hindi. Ext.P1 is the seniority list as on 20.9.2001. Initially by Ext.P2 order dated 27.11.2002 26 High School Assistants including the petitioner were transferred and posted as H.S.S.T (Jr.) under Rule 9(a)(i) KSR. Subsequently, by Ext.P3 order dated 28.6.2003 on a regular basis they were transferred and posted as H.S.S.T (Jr.). It is stated that by Ext.P4 order which was also issued on 28.6.2003, 10 of their seniors were transferred and posted as H.S.S.T. According to the petitioners, there were 70 vacancies out of which 1/4th should be of which they have to be filled up as provided in the special rules. According to them if ratio is so applied more number of vacancies of H.S.S.T have to be filled up from among H.S.A.'s and that if that is done they also ought to have been posted as H.S.S.T. and not as H.S.S.T. (Jr.) along with those posted by Ext.P4. 2. Two counter affidavits have been filed in this writ petition. In the first counter affidavit filed on 20.7.2006, in paragraph 11 it is stated that while making appointment as H.S.S.T.'s total number of vacancies available was 65. It is stated that out of that 19 teachers were already WPC 22969/03 :2 : appointed as H.S.S.T's and that therefore the total number of vacancies were proportionately reduced. On such reduction, according to the respondents as on 20.9.2001, there were only 11 vacancies in the quota available to H.S.A's and that eligible persons from Ext.P1 seniority list were appointed. 3. When this counter affidavit was filed this Court passed order dated 21.2.2008 requiring the respondents to file a further affidavit giving the details of appointments made to the 19 vacancies mentioned in paragraph 5 of the counter affidavit referred to above. In pursuance of the said order an additional counter affidavit was filed on 3.4.2008. In the said counter affidavit, it is stated that the vacancies assessed as on 20.9.2001 were 65 and that 19 teachers were already appointed before the special rules came into force on 16.4.2001. According to the respondents though these 19 teachers were appointed as H.S.S.T. (Jr.) they were drawing the pay in the scale of HS.S's and were treated as full time teachers irrespective of workload, as per the G.O(MS)162/90 dated 13.5.1998. It is stated that these 19 teachers were shifted to Government Higher Secondary Schools as there existed workload and therefore, reducing the 19 vacancies so filled up, the remaining vacancies were only WPC 22969/03 :3 : 46. It is stated that out of the 46, the 25% quota of departmental teachers was only 11 and that 10 vacancies were filled up by Ext.P4. It is also stated that 11th vacancy was also filled up by appointing a teacher on 23.12.2003. Thus, according to the respondents the quota available to H.S.A has thus been filled up. 4. The petitioner's submit that these 19 teachers who were already appointed and treated as promoted in terms of the provisions contained in the G.O dated 13.5.2008, should not have been adjusted towards the number of vacancies which were available as on 20.9.2001. It is stated that if the vacancies were worked out on that basis, they would have been posted against those vacancies 5. However the fact remains that the workload in the schools where the aforesaid 19 teachers were posted justified only posting of H.S.S.T (Jrs.) It is also evident that they were drawing scale of H.S.S.T(Sr.) and were treated as full time teachers irrespective of workload by virtue of the provisions contained in the G.O dated 13.5.1998. According to the Government, posting of the aforesaid 19 teachers were in the 25% quota specified in the aforesaid Government order. If that be so, though they were drawing salary of H.S.S.T, they were H.S.S.T. (Jrs.) coming within WPC 22969/03 :4 : category No:1 to the post of H.S.S.T, provided in the special rules which came into force on 16.4.2001. If so, they are entitled to be posted against H.S.S.T. and the turn of the other categories in the feeder category can arise only in the absence of the 1st category. 6. Therefore, the claim of the petitioners could arise only after exhausting the 19 H.S.S.T. (Jrs.). Viewed in this manner, posting of 19 H.S.S.T. (Jrs.) against a 19 vacancies out of 65 vacancies cannot be faulted. Evidently the 25% quota out of the balance 46 is only 11 and those 11 vacancies have been filled up by appointing 10 by Ext.P4 and the one by order dated 23.12.2003. In that view of the matter I do not find any irregularity and the claim of the petitioners is unsustainable. Dismissed. ANTONY DOMINIC, JUDGE jj