IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WP(C).No. 36234 of 2007(L) -------------------------- PETITIONERS: --------------- 1. DILEEP KUMAR B., S/O. SRI. K.BHASKARAN PILLAI, AGED 28 YEARS, PEON, GOVERNMENT VHSS, MUTTARA, KOLLAM DISTRICT, RESIDING AT 'CHENGAYIL THEKKETHIL', PERUMKULAM P.O., PALLICKAL, KOTTARAKKARA. 2. GOPALAKRISHNAN N., S/O. SRI. S.NANOO, AGED 41 YEARS, PEON, TKDM GOVERNMENT VHSS, ULIYAKOVIL, KADAPPAKKADA, KOLLAM DISTRICT, RESIDING AT 'KRISHNASREE', CHANGANKULANGARA, VAVVAKKAVU P.O., KOLLAM-690 528. 3. KRISHNAKUMARI L., D/O. SRI. GOPI PILLAI, AGED 34 YEARS, PEON, GOVERNMENT VHSS FOR GIRLS, KOTTARAKKARA, RESIDING AT THETTIYIL HOUSE, KADAPPA, MYNAGAPPILLY P.O., KOLLAM-690 519. 4. SHAJIL A.P., S/O. SRI. A.K.PADMANABHAN, PEON, GOVERNMENT VHSS, PAZHANJI, THRISSUR DIST., RESIDING AT AYINIPULLI HOUSE, PANANGAD P.O., ERNAKULAM-680 665. 5. JAYAN KUMAR D., S/O. SRI. R.DHAMODHARAN, AGED 32 YEARS, PEON, GOVERNMENT VHSS, MOOLAMATTOM, IDUKKI DISTRICT, RESIDING AT NULLIVILA VEED, MARIAPURAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM-695 127. 6. SAJEEVAN K.R., S/O. SRI. RAMAN K.K., AGED 31 YEARS, PEON, GOVERNMENT VHSS, OLLUR, THRISSUR DISTRICT, RESIDING AT KALLIKKADA HOUSE, KODALI, P.O.PADY, THRISSUR-680 699. 7. RAJAN A.V., S/O. SRI. KRISHNAN KERALA VARMAN, AGED 39 YEARS, PEON, VPPMKPS GOVERNMENT VHSS, THRIKARIPUR, KASARAGOD DISTRICT, RESIDING AT AKKACHI VADAKKE VEEDU, PADUVALAM, PILICODE P.O., KASARAGOD DISTRICT-671 353. BY ADV. SRI.ANTONY MUKKATH SRI.PREMCHAND R.NAIR WPC : 36234/07 RESPONDENTS: ---------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION (SPECIAL CELL) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR, DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM-36. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. ADDL 4. AJITH KUMAR T.V., S/O RAMAN, THAIVALAPPIL HOUSE, MANIYAT P.O., KASARGOD DISTRCT - 671 370. (IMPLEADED AS ADDL R4 VIDE ORDER DT.24.9.08 IN IA 11543/08) R1 & R2 BY GOVERNMENT PLEADER, SRI.TEK CHAND R3 BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 36234/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE KERALA GAZETTE DT.2.11.04. EXT.P2 : TRUE COPY OF THE SPECIAL RULES FOR KERALA VOCATIONAL HIGHER SECONDARY EDUCATION SUBORDINATE SERVICE RULES, 2004. EXT.P3 : TUR COPY OF THE RELEVANT PORTION OF THE KERALA GAZATTE DT.16.11.04. EXT.P4 : TRUE COPY OF THE JUDGMENT DT.7.7.06 IN W.P.(C). No. 1740/05 EXT.P5 : TRUE COPY OF THE LETTER DT.31.10.06 OF 2ND RESPONDENT. EXT.P6 : TRUE COPY OF THE GO(MS) 123/07/G.EDNDT.23.6.07 EXT.P7 : TRUE COPY OF THE REPRESENTATIO DT.6.8.07 EXT.P8 : TRUE COPY OF THE LETTER DATED 14.8.07 EXT.P9 : TRUE COPY OF THELETTER DT.4.9.07 EXT.P10 : TRUE COPY OF THE REPRESENTATION DT.4.9.07 EXT.P11 : TRUE COPY OF THELETTER DT.22.9.07 OF THE STATE INFORMATION OFFICER. EXT.P12 : TRUE COPY OF THE LETTER DATED 28.9.07 OF 3RD RESPONDENT. EXT.P13 : TRUE COPY OF THE LETTER DATED 27.11.07 OF 2ND RESPONDENT. EXT.P14 : TRUE COPY OF THE LETTER ISSUED FROM PSC DT.31.3.08. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 36234 OF 2007 ------------------------------------------------- Dated this the 11th day of June, 2009 JUDGMENT Petitioners are Last Grade servants in the Vocational Higher Secondary Education Department of the Government of Kerala. They are aspiring for the promotion to the post of Laboratory Assistants. Prior to the amendment of the special rules, by Ext.P6 on 23.06.07, the post of Lab Assistants had to be filled up by two methods. One was by transfer from qualified staff in the Ministerial Subordinate Service in the Department and second by direct recruitment. As per the note attached to the special rules, which is Ext.P2, the total number of sanctioned post in the cadre of Laboratory Assistants shall be filled up by the above two methods in the ratio 1:9, subject wise. It was further stipulated that, if sufficient number of qualified persons are not available under item No.1, such vacancy shall also be filled up by direct recruitment. Prior to Ext.P6 amendment to the special rules, the Government reported 57 vacancies to the PSC. By Ext.P1 notification, PSC invited applications for direct recruitment and again by Ext.P3 PSC invited applications from qualified hands for recruitment by transfer in 10% WPC :36234/07 -:2:- vacancies set apart for such recruitment. None applied in the category set apart for recruitment by transfer. Therefore, the PSC completed the selection procedure for direct recruitment and prepared a list. The petitioner’s grievance in this writ petition is that insofar as the PSC had no power to make recruitment in the vacancy set apart for recruitment by transfer, those vacancies have to be now filled up in accordance with the amended rules giving the petitioners also an opportunity for being considered fro appointment. Their contention is that since Rule 28(b) (ii) of the KS & SSR stipulates that recruitment by transfer shall be done in accordance with seniority, there is no question of PSC preparing a rank list after conducting selection and it was for the appointing authority to first set apart the 10% vacancies out of the 57 and then ascertain whether there are any qualified hands in the Department for appointment by transfer, which process had not been undertaken and therefore those vacancies have to be now filed up in accordance with the amended special rules in which case the petitioners would also be entitled to be considered for such appointment, insofar as they are qualified for such appointment by transfer. WPC :36234/07 -:3:- 2. Counter affidavits have been filed by the State and the PSC. Their contention is that all vacancies which have arisen prior to the amendment of the Special rules and reported to the PSC have to be filled up from the rank list prepared by the PSC pursuant to such reporting of vacancies, insofar as the petitioners have no case that there was anybody qualified to be appointed by transfer as per the unamended special rules, therefore according to them, the entire 57 vacancies have to be filled up by direct recruitment and therefore it is now futile to contend that since the appointing authority had not undertaken the process of ascertaining whether any qualified persons were available in the 10% vacancy set apart for recruitment by transfer those vacancies have to be filled up as per the amended special rules. They also rely on the decision of Mohanan v. Director of Homeopathy[2006(3) KLT 641] (F.B). 3. I have considered the rival contentions in detail. I am of opinion that, in view of the Full Bench decision in Mohanan’s case (supra) this issue is no longer res integra. The Full Bench has categorically stated that once the recruitment procedure has started, in respect of vacancies which arose prior to the amendment of the WPC :36234/07 -:4:- special rules, prior to that amendment itself, those vacancies have to be necessarily filed up from the rank list prepared by the PSC pursuant to the selection procedure initiated prior to the amendment of the special rules. Admittedly there were no qualified hands available to fill up vacancies is the quota for recruitment by transfer as per the unamended rules. Therefore those vacancies also have to be filled up by direct recruitment. The petitioners can aspire for appointment only in vacancies which arose after the amendment. Therefore, I do not think that the petitioners are entitled to the reliefs prayed for in this writ petition. Counsel for the petitioner would stake a claim to direct the respondents to appoint them in the 10% quota out of the 100 posts subsequently created by the Government. I am not inclined to anticipate that the respondents would make appointments in violation of the special rules. It is the petitioners to stake their claim as and when the respondents seek to fill up those posts. The writ petition is accordingly dismissed. S. SIRI JAGAN, JUDGE ttb WPC :36234/07 -:5:-