IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 WP(C).No. 20957 of 2007(T) -------------------------------------- PETITIONER(S): ---------------------- 1. SIJU M.,AGED 30 YEARS,S/O.LATE M.P.MATHAI,PALAMOOTTIL HOUSE, ARYANKAVU P.O.,KOLLAM DISTRICT. 2. ANILKUMAR, V.R. AGED 30 YEARS, S/O.K.RAMAKRISHNA PILLAI, THOTTATHIL PADINJATATHIL, AMPALATHUMKALA P.O.,EZHUKONE, KOLLAM. 3. SHANAVAS, AGED 25 YEARS, S/O.EBRAHIM,SHAILA MANZIL,PAZHAVILA, PANGODE P.O., THIRUVANANTHAPURAM. 4. MUHAMMED THAHA. A., AGED 25 YEARS, S/O. ABDUL RASHEED, MUBEENA MANZIL, MUNIYIRUNNAKALA,KOLLAYIL P.O.,KOLLAM DISTRICT. 5. MANZA M.M., AGED 27 YEARS, D/O.MUHAMMED HUSSAIN M., MANZA MANZIL, PALODE, PACHA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN ABRAHAM M.GEORGE SRI.A.ABDUL SAMAD RESPONDENT(S): ------------------------- 1. DIRECTOR, DEPARTMENT OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 2. THE KERALA PUBLIC SERVICE COMMISSION, PATTAM P.O.,THIRUVANANTHAPURAM. W.P.(C). NO. 20957/2007-T * ADDL. R3 TO R12 ARE IMPLEADED ADDL. R3: SAJI VARGHESE, GOVERNMENT HSS, CHERPULASSERY. ADDL. R4: ASOKAN T.P., GOVERNMENT GIRLS, HSS PAYYANNUR, KANNUR. ADDL. R5: JAYAPRAKASH P.M., GOVERNMENT GIRLS, HSS KOILANDI. ADDL. R6: BERNAD T.T., GOVERNMENT HSS, NEELESWARAM, KOZHIKODE. ADDL. R7: SEENA M. CHANDRAN, GOVERNMENT GIRLS, HSS THRIPUNITHURA, ERNAKULAM. ADDL. R8: ABDUNNASAR U.K., GOVERNMENT HSS KODUVALLY, KOZHIKODE. ADDL. R9: SAJINA K.A., GOVERNMENT HSS SOUTH THRIKKARIPPUR. ADDL. R10: REJEEVAN K.V., GOVERNMENT BRENNEN HSS THALASSERY, KANNUR. ADDL. R11: ROY THOMAS, GOVERNMENT HSS VECHOOCHIRA COLONY, PATHANAMTHITTA. ADDL. R12: SMT. SUSMITHA T.M., GOVERNMENT HSS MALOTHKASBA, KASARGODE. * ADDL. R3 TO R12 ARE IMPLEADED AS PER ORDER DATED 20/02/2008 IN I.A. NO.2235 OF 2008. GOVERNMENT PLEADER SRI.RAVIKRISHNAN FOR R.1 ADV. SRI.ALEXANDER THOMAS, SC, KPSC FOR R2 ADV. SRI.K.BABU THOMAS FOR R4,6,7, R9 TO R12 ADV. SMT.MARYKUTTY BABU FOR R4,6,7, R9 TO R12 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 20957/2007-T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PORTION OF THE RANK LIST PUBLISHED BY THE PSC WHICH CAME IN TO FORCE WITH EFFECT FORM 13/03/2007, FOR APPOINTMENT TO THE POST OF HSST (BOTANY), IN THE HIGHER SECONDARY EDUCATION DEPARTMENT. EXT.P2: COPY OF THE LETTER NO.AA/23440/INFO/2007 DATED 13/06/2007 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT TO THE 4TH PETITIONER. EXT.P3: COPY OF THE CIRCULAR NO.1634/ADV. C3/1999/P & ARD DATED 18/02/1999. EXT.P4: COPY OF THE PROCEEDINGS NO.ADC2/18845/06/R(B)HSE DATED 10/10/2006 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE ORDER NO.AD.C2/18845/06/HSE DATED 31/07/07. EXT.R1(b): COPY OF THE ORDER NO.AD.C2/18845/06/HSE DATED 21/11/07. EXT.R3(a): COPY OF THE ORDER OF THE FIRST RESPONDENT. EXT.R3(b): COPY OF THE COMMON JUDGMENT IN W.A.NO.1000/2006 AND W.A.NO.1279/2006. EXT.R3(c): COPY OF THE ODER OF THE FIRST RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rs/ ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.20957/2007 ----------------------------------------------------------- Dated this the 4th day of November, 2008 JUDGMENT Petitioners were included in Ext.P1, the ranked list prepared by the Public Service Commission for the post of HSST(Botany). The ranked list came into force on 13.3.2007. According to the petitioners, there are 10 vacancies of HSST and this does not seem to be disputed by the respondents. Petitioners state that, though the vacancies are to be filled up in terms of the Kerala Higher Secondary Education State Service(Special Rules), which provides for appointments to the post of HSST, by transfer from HSST(Junior), even if HSST(Junior) who have completed probation as on the date of occurrence of these vacancies are available, in the absence of a select list prepared by the Departmental Promotion Committee on the WP(c).No.20957 2 basis of merit and ability as provided in Rule 3, the vacancies are to be reported to the PSC for advising candidates from Ext.P1 ranked list. 2. On the other hand, from the counter affidavit, what is disclosed is that, though 10 vacancies in the category of HSST(Botany)are available, there are sufficient number of HSST(Junior),who have completed probation. According to the first respondent, in terms of the special rules, the vacancies should be filled up by transfer from HSST(Junior) in the subject concerned and in the absence of qualified hands in that category, the qualified HSAs are eligible to be considered for appointment by transfer. It is stated that in the absence of qualified HSA, those in the category of UPSA and LPSA are only to be considered and that if none is available in all these categories, then alone vacancies are to be reported for direct recruitment. 3. It is stated that, the preparation of select list by the DPI is delayed due to want of sufficient number of WP(c).No.20957 3 ministerial staff in the department and that the delay in finalization of select list cannot cause prejudice to the qualified HSST (Junior) and to avoid prejudice to HSST (Junior) who are thus eligible, they have been appointed as HSST, provisionally based on Ext.R1(a) order dated 31.7.2007. It is stated that, such action of their's is fully consistent with the law laid down by the Division Bench of this court in WA.No.1000/06, a copy of the judgment is produced as Ext.R3(b). 4. Admittedly, the first category eligible for appointment is HSST (junior) in the by transfer method. In this case, it does not seem to be of dispute that HSST (Junior) who had completed probation were available at the time of occurrence of vacancies. As per the special rules only in the absence of HSST(Junior) who have completed probation, the appointing authority can fill up the vacancies from other categories in terms of the provisions contained Rule 3. This position is clear from Ext.R3(b) WP(c).No.20957 4 judgment rendered by a Division Bench of this court in W.A.No.1000/2006 and connected cases. In that judgment, it has also been held that, rule 5 of KS & SSR, is inapplicable in the context of rule 3 of the special rules. 5. Learned counsel for the petitioner, referring to the provisions contained in the KS & SSR, submits that in the absence of a Select List of HSST(Junior) and other categories, all the vacancies are liable to be reported to the PSC for advising candidates from the ranked list. In support of this contention she is referring to Rule 28(b)(1), Part I, KS & SSR. I am not in a position to accept this contention of the learned counsel for the petitioner. Concededly, HSST (junior) who have completed their probation is eligible for appointment by transfer. Only in their absence can any one aspire to be considered against the vacancies of HSST. The respondents have conceded in the counter affidavit that provisional appointment was made only due to delay on the part of the DPC in finalizing the select list and that such a WP(c).No.20957 5 stand was taken for preventing prejudice being caused to the eligible HSST(Junior). Going by the Division Bench judgment referred to above, if there is any eligible HSST (junior) is available, he is entitled to be appointed by transfer. Hence I see no illegality in provisionally appointing HSST(junior) as HSST. 6. On the other hand, if I accept the contention of the learned counsel for the petitioner that, if DPC is delayed, those vacancies should be reported to the PSC for direct recruitment, in that process, this court will be re-writing the rule which provides that only in the absence of eligible HSST (junior) can the other categories be considered. Further that will deprive the eligible HSST(junior) from their entitlement in terms of the provisions contained under Rule 3 of the Special Rules for no fault of theirs. 7. The 10 vacancies mentioned in Ext.P2 and in the counter affidavit admittedly belongs to HSST(Junior) and as eligible HSST(junior) are available in service, only they can WP(c).No.20957 6 be given appointment to the post. The provisional appointment made by Ext.R1(a), in the circumstances made out, cannot be faulted and the claim made by the petitioner cannot be accepted. Writ Petition fails and is dismissed. ANTONY DOMINIC JUDGE vi. WP(c).No.20957 7