IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 WP(C).No. 6297 of 2010(J) PETITIONER: --------------- RANJITH.S.R,S/O.K.T.RAGHAVAN, 'PULARI',THAZHUVANOOR PO, VALANCHERRY VIA, MALAPPURAM DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: --------------- 1. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRERTARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. R1 AND R2 BY GOVERNMENT PLEADER SMT.M.R.SREELATHA R3 BY STANDING COUNSEL SRI.ALEXANDER THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE RANKED LIST FOR THE POST OF VOCATIONAL TEACHER (MRRTV). EXT.P2 TRUE COPY OF THE APPLICATION DATED 9.11.2009 FILED BY THE PETITIONER'S FATHER SRI.K.T.RAGHAVAN. EXT.P3 TRUE COPY OF THE ANSWER SHEET DATED 2.12.2009. EXT.P4 TRUE COPY OF THE QUESTIONNAIRE DATED 30.12.2009 FILED BY PETITIONER'S FATHER SRI.K.T.RAGHAVAN. EXT.P5 TRUE COPY OF THE ANSWER SHEET DATED 19.1.2010. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 6297 OF 2010 J ------------------------------------------------------ Dated this the 9th day of December, 2010 JUDGMENT The petitioner applied for selection to the post of Vocational Teacher (MRRTV), pursuant to the notification issued by the Kerala Public Service Commission. The petitioner was included in the rank list. The grievance of the petitioner is that though there are enough vacancies, they were not reported to the Kerala Public Service Commission. 2. An interim order was passed on 23.4.2010, which reads as follows: “Heard learned counsel on both sides. There will be an interim order directing the second respondent to report ten vacancies of Vocational Teacher (MRRTV) to the 3rd respondent. The requisition shall be sent in the prescribed form and in such a manner that it is received by the Secretary, Kerala Public Service Commission before the close of office hours on 29.4.2010. It is clarified that reporting of such W.P.(C) NO.6297 OF 2010 :: 2 :: vacancies will be purely provisional and that the claims of persons seeking appointment by transfer will not be defeated by such reporting of vacancies if they are entitled to be appointed by transfer against such vacancies. It is also clarified that the Kerala Public Service Commission need not make advices against such vacancies until further orders.” 3. A counter affidavit dated 1.12.2010 is filed by the second respondent, in which, it is stated as follows: “It is submitted that as stated in the statement filed on 31.03.2010 the total cadre strength of Vocational Teacher (MRRTV) is 54. Out of the same 2 posts have been occupied by physically handicapped candidates whose services are regularized. The remaining 52 vacancies were reported to the Public Service Commission. As per the Special Rules of the department of Vocational Higher Secondary Education which promulgated with effect from 12.3.2004 as per G.O.(P) No.80/04/G.Edn. dated 12.3.2004, the method of appointment to the category of Vocational Teacher is as shown below: i) By transfer from among the qualified Vocational Instructors in the subordinate service of the Department. W.P.(C) NO.6297 OF 2010 :: 3 :: ii) By transfer from qualified ministerial staff in the Subordinate service in the Department; and iii) By direct recruitment. Therefore being 20% of the total cadre strength of Vocational Instructors in the subordinate service are entitled for 11 vacancies. It is submitted that at present there are 14 vacancies in various schools as stated below: Fresh Vacancies Name of School Date on which the vacancy arose 1. GVHSS, Kadiroor 08-08-2008 2. GVHSS, Meppayur -do- 3. GVHSS, Orkkattery 18-12-2008 4. GVHSS, Arimbra 10-08-2009 5. GVHSS, Mankada 28-12-2009 (2 vacancies) 6. GVHSS, Kondotty 21-10-2009 7. GVHSS, Chettiyankinar 11-02-2010 8. GVHSS, Karakkurissi 11-02-2010 9. GVHSS, Kalpakancherry 21-10-2010 10. GVHSS, Pattazhi -------- W.P.(C) NO.6297 OF 2010 :: 4 :: NJD Vacancies 1. GVHSS, Achankovil 2. GVHSS, Arimbra 3. GVHSS, Meenchanda. Out of the three NJD vacancies, one vacancy have been reported to the Public Service Commission and the Public Service Commission had advised one candidate against the said NJD vacancy. Order appointing the candidate has already been issued. The remaining 2 NJD vacancies will be reported to the Public Service Commission without any further delay. The remaining 11 vacancies are there occurred as shown above. Since the Vocational Instructors in subordinate service are entitled for 20% of the total cadre strength of Vocational Teacher, the above 11 vacancies have been set apart for Vocational Instructors in the subordinate services. It is submitted that as per the ratio fixed direct recruitees are entitled for only 38 posts of the Vocational Instructors wherein at present 40 direct recruitees, (including 2 physically handicapped hands regularized) are working. Apart from that 3 NJD vacancies which is set apart for direct recruitees are also thereon. Therefore, the direct recruitees are there over and above the quota set apart for them. In the above W.P.(C) NO.6297 OF 2010 :: 5 :: circumstances, the direct recruitees are not entitled for any of the above 11 vacancies which is set apart for by transfer appointment of the Vocational Instructors in the subordinate services.” 4. Learned counsel for the petitioner submitted that as per Rule 3(5) of the Kerala Vocational Higher Secondary Education State Service Rules, the method of appointment of Vocational Teacher is the following: “3. Appointment-- (a) Appointment to various categories shall be made as follows:- TABLE --------------------------------------------------------------------------- Sl.No. Category Method of Appointment (1) (2) (3) --------------------------------------------------------------------------- ............ ........ 5. Vocational Teacher (i) By Transfer from qualified Vocational Instructors in the subordinate service of the Department; (ii) By Transfer from qualified Ministerial staff in the subordinate service in the Department; and W.P.(C) NO.6297 OF 2010 :: 6 :: (iii) By direct recruitment Note:-The total number of posts of Vocational Teachers in each discipline shall be filled up by the methods (i), (ii) and (iii) mentioned above, in the ratio 2:1:7. If sufficient numbers of qualified persons are not available for appointment by transfer under item (i) and/or, (ii) above, such vacancies shall also be filled up by direct recruitment.” 5. Learned counsel for the petitioner submitted that in the absence of availability of qualified hands from category (i) and (ii) as mentioned above, such vacancies shall be filled up by direct recruitment. In ground A of the Writ Petition , the writ petitioner has stated that at present, there are no qualified Vocational Instructors in the subordinate service of the Department. From the counter affidavit it would appear that there are sufficient number of qualified Vocational Instructors who could be appointed by 'by transfer' method. The resultant position is that there is not much dispute regarding the availability of vacancies but the dispute is whether there are qualified Vocational Instructors or qualified Ministerial staff to be appointed by 'by transfer' method. If there are no qualified Vocational Instructors or qualified Ministerial staff, as pointed out by the petitioner, the Note to Rule 3 of the Rules will apply and those W.P.(C) NO.6297 OF 2010 :: 7 :: vacancies shall be filled up by direct recruitment. If, on the other hand, the case of the respondents that qualified Vocational Instructors and qualified Ministerial staff in the subordinate service in the Department are available is correct, the contention of the petitioner that the vacancies shall be filled up by direct recruitment would not be sustainable. In short, there is a disputed question of fact. Such a disputed question of fact is normally beyond scope of consideration in a Writ Petition under Article 226 of the Constitution of India. 6. Learned counsel for the petitioner as well as the learned Government Pleader submitted that the disputed questions of fact can be considered by the Director of Vocational Higher Secondary Education. The Director of Vocational Higher Secondary Education shall consider this question and take a final decision in the matter, as expeditiously as possible and, at any rate, within a period of one month, after affording an opportunity of being heard to the petitioner. Based on such decision, the vacancies shall be filled up by the methods provided in Rule 3 of the Rules and the Note thereunder. The petitioner would be entitled to make a detailed representation W.P.(C) NO.6297 OF 2010 :: 8 :: and he would be entitled to produce such other materials and documents in support of his contention before the Director of Vocational Higher Secondary Education. Needless to say that reporting of the two NJD vacancies as mentioned in the counter affidavit shall be done in accordance with law. The Writ Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/