IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 19788 of 2008(E) -------------------------- PETITIONER: ------------------ SHAI MOL.J.S., JAYANTHI NIVAS, PATTANAKKAD P.O., CHERTHALA, ALAPPUZHA 688 531. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. R1 AND R2 BY GOVERNMENT PLEADER ADV. SHRI A.J. VARGHESE. R3 BY ADV. SHRI ALEXANDER THOMAS, SC, PSC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN, J. ............................................................................ W.P.(C) No. 19788 OF 2008 ............................................................................ Dated this the 11th August, 2008 J U D G M E N T The petitioner is working as Lab Assistant (Accountancy and Auditing ) which is now re-designated as Technical Assistant . The petitioner was sponsored by the Employment Exchange and was appointed on a provisional basis under Rule 9(a) (i) of the K.S. & S.S.R. as per Ext.P5 order dated 21.02.2000. It is stated that the petitioner is a physically handicapped person. In the Golden Jubilee year of the Indian Independence, it was decided by the Government of Kerala to regularise the service of physically handicapped persons who are appointed under Rule 9(a) (i) of the KS & SSR. Accordingly, as per Ext. P6 order dated 27.09.2006, the service of the petitioner was regularised with effect from 24.02.2000. 2. The Kerala Vocational Higher Secondary Education Subordinate Service Rules came into force as per Government Order dated 12.03.2004 . For the post of Vocational Instructor , the methods of appointment provided under the Special Rules are as follows: “i) By promotion from qualified Laboratory Assistant. ii) By transfer from qualified staff in the Ministerial Subordinate Service in the Department. iii) By Direct Recruitment. In the Note (1) to Rule 3 of the Special Rules, it is provided that the posts shall be filled W.P.(C) No. 19788 OF 2008 2 up by the methods mentioned under items (i), (ii) and (iii) in the ratio 2:1:7. It is also provided in the Note that if sufficient number of qualified persons are not available under items (i) and (ii), such vacancies shall also be filled up by direct recruitment. Note (2) to Rule 3 provides that the direct recruitment shall be made on state-wise basis. The qualification prescribed for Vocational Instructor in Accountancy and Auditing is also provided in the Special Rules. The petitioner states that she is qualified to be appointed as she comes under the third category under the relevant rule. It is stated that the cadre strength in the category of Vocational Instructor in Accountancy and Auditing is 40 and therefore in accordance with the ratio prescribed in the Special Rules, 8 posts of Vocational Instructors in Accountancy and Auditing should be set apart for appointment by promotion from Laboratory Assistants. 3. The grievance of the petitioner is that instead of promoting persons like petitioner, the second respondent, Director of Vocational Higher Secondary Education has reported 36 vacancies of Vocational Instructors in Accountancy and Auditing to the Public Service Commission for direct recruitment, though, it is stated by the petitioner that , actually 28 vacancies are available for direct recruitment. 4. Challenging the reporting of 36 vacancies to the Public Service Commission by the second respondent, one Sudheer and another filed W.P.(C)No. 19358 of 2007, which was disposed of by Ext.P9 judgment dated 02.04.2008. The petitioners in Ext.P9 judgment were regularised in service by orders dated 10.09.2004 and 30.10.2004. In the aforesaid case, the vacancies were reported on 30.03.2004, prior to the regularisation of the petitioners therein. The respondents took up the defence that the probation of the petitioners therein was declared only on 28.01.2005 and 29.12.2004 though with retrospective effect from 13.10.2001 and 14.10.2001 and that W.P.(C) No. 19788 OF 2008 3 since the vacancies were reported on 30.03.2004, the petitioners therein were not entitled to the reliefs. That contention was repelled by this Court by Ext.P9 judgment holding thus: “I have considered the rival contentions. May be because of no fault of the 2nd respondent, the entire vacancies available as on 30.03.2004 happened to be reported to the PSC . As on that date the right of the petitioners had not crystallized. Of course, subsequently their rights have crystallized with effect from 13.10.2001 and 14.10.2001. Therefore, not withstanding the fact that the vacancies were reported to the PSC, the rights which have accrued to the petitioners cannot now be denied to them, especially since no rank list has been prepared pursuant to the reporting of vacancies. Therefore, I am satisfied that the petitioners are eligible to be considered for promotion to two of the vacancies which have been reported to the PSC. ” Accordingly this Court in Ext. P9 judgment directed the Public Service Commission to advice only 34 vacancies out of 36 vacancies which had been reported . In the other two vacancies, the claims of the petitioners in W.P(C) No.19358 of 2007 were directed to be considered. It is submitted that pursuant to Ext. P9 judgment, the petitioners in W.P.(C)No. 19358 of 2007 were appointed as per Ext.P10 order dated 28.04.2008. 5. The contention of the petitioner is that she is a similarly situated person as the petitioners in Ext.P9 judgment and therefore, she is also entitled to be appointed as Vocational Instructor in Accountancy and Auditing. It is submitted by learned counsel for the petitioner that the same treatment which was meted out to the petitioners in W.P (C)No. 19358 of 2007 should be made available to the petitioner as well. 6. A counter affidavit is filed on behalf of the second respondent, wherein it is stated that the petitioner had provisional service as Laboratory Assistant for the period W.P.(C) No. 19788 OF 2008 4 from 30.07.1996 to 24.07.1997 and she was re-appointed in the VHS School, Aryad, Alappuzha District as Lab Assistant by order dated 21.02.2000 and she had joined duty on 24.02.2000. It is stated in the counter affidavit that while joining duty the petitioner had produced the disability certificate dated 14.12.1999 issued by the Medical Board of Alappuzha Medical College instead of producing the disability certificate issued before the commencement of her provisional service through Employment Exchange, which was necessary to prove that she was having physical disability at the time of joining the provisional service. It is stated in the counter affidavit that on humanitarian ground, the second respondent had regularised the petitioner 's service on 27.09.2006 with retrospective effect from 24.02.2000 and her probation was declared on 14.01.2006 with retrospective effect from 07.04.2002. It is further stated that though the petitioner had joined on 24.02.2000, she had produced the medical certificate only on 08.08.2006. The declaration of probation was delayed not due to the fault of the second respondent, but due to laches on the part of the petitioner, it is contended. It is further pointed out in the counter affidavit that since all the vacancies had already been reported to the Public Service Commission long before the declaration of probation of the petitioner, the second respondent is not in a position to promote the petitioner to the post of Vocational Instructor. I am of the view that the facts disclosed in the counter affidavit would not deprive the petitioner to have the same treatment as other similarly situated persons had in Ext.P9 judgment. The petitioners in Ext. P9 judgment as well as the petitioner in the present case stand on the same footing. In the case of the petitioners in Ext. P9 judgment, their probation was declared subsequent to the reporting of the vacancies. In the case on hand also, the probation was declared subsequent to the reporting of the W.P.(C) No. 19788 OF 2008 5 vacancies. The same defence which is taken in the present case was the defence in Ext. P9 case as well. But those contentions were repelled by this Court while disposing of W.P.(C)No.19358 of 2007 by Ext. P9 judgment. I respectfully follow Ext. P9 judgment. Therefore, I am of the view that the petitioner is entitled to the relief in the Writ Petition to the extent that she is entitled to be promoted as Vocational Instructor in Accountancy and Auditing provided she has the other requisite qualifications. The mere fact that her probation was declared subsequent to the reporting of the vacancies should not deprive her the right to get promoted to the vacancy. In these circumstances, the Public Service Commission shall advice only 33 vacancies. The second respondent as well as the Public Service Commission shall do the needful to re-arrange the vacancy position. The second respondent shall pass consequential orders as expeditiously as possible and at any rate within a period of two months. K.T. SANKARAN, JUDGE. lk