IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 WA.No. 979 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.8190/2008 Dated 04/04/2008 .................... APPELLANT: PETITIONER: --------------------------------------- RAJEESHA C.P. (CHENNNIPARAMBATH) "KARTHIKA" KOTTAYAMPOYIL P.O., KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: RESPONDENTS: -------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM,THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION,KANNUR. 4. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KANNUR. BY GOVERNMENT PLEADER SRI. BENNY GERVACIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2008 ALONG WITH W.A.NO.980 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- W.A.NO.979 & 980 OF 2008 () ----------------------------------- Dated this the 4th day of June, 2008 J U D G M E N T KOSHY,J. These two appeals are filed from the common judgment dated 3.4.2008 in W.P.(C).No.21137/07 and W.P.(C). No.6568/08 by persons included in the rank list prepared by the Public Service Commission for appointment to the post of H.S.A. (Mathematics) in Kannur District. W.P.(C). No.22354/2007 was filed by three P.D.Teachers who claim that they are entitled to be promoted as H.S.A. (Mathematics). It was found that excess PSC hands were recruited considering the cadre strength. In R.K.Sabharwal and Others v. State of Punjab ((1995) 2 SCC 745), Apex Court held that it is the cadre strength that has to be looked into. If cadre strength is looked into, admittedly no direct recruitment can be made but promotion has to be given to the candidates. That factual position is not in dispute. Now the only contention raised is that based upon the request, five persons WA.979 & 980/08 2 were given advice memos and those advice memos could not be cancelled and petitioner relied on the decision in K.Harindran v. State of Kerala (ILR 2006 (4) Kerala 680). Facts of that case are different. At the time of vacancy arises, there was no qualified persons to be promoted and Court stated that those advices are correct and that cannot be cancelled. Here the question is that the departmental candidates were qualified but without falling up, the departmental quota requisition was made and requisition itself was incorrect. If requisition was incorrect, there was no prohibition for cancelling of advice memo. Even otherwise, we are of the opinion that under Rule 3 (c) Part II of Kerala State and Subordinate Services rules, 1958, even if PSC advised and appointments are made, if it is found to be not in order, appointing authority can terminate the service. Here, since it was found that requisition as well as the advices were not according to the rules, merely because advice memos were given, they cannot be appointed in the vacancies that are reserved for departmental quota. The rank list was also expired. The learned Government Pleader submitted that in the last four years, no vacancies were reported. Considering WA.979 & 980/08 3 the facts and circumstances of the case, we agree with the views of the learned Single Judge, and hence, this appeal is dismissed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 26th May, 2008