IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 WP(C).No. 3432 of 2008(H) ------------------------- PETITIONER: -------------------- VINOD K., PEON, GOVERNMENT HIGHER SECONDARY SCHOOL, SOUTH EZHIPURAM, ALUVA, ERNAKULAM DISTRICT. BY ADV. SRI.N.RAGHURAJ ADV. SMT.K.AMMINIKUTTY RESPONDENTS: --------------------- 1. THE KERALA STATE PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, THRIKKAKARA PANCHAYAT OFFICE, KAKKANAD, ERNAKULAM DISTRICT. 3. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 4. THE HEADMASTER, GOVERNMENT HIGHER SECONDARY SCHOOL, SOUTH EZHIPURAM, ERNAKULAM DISTRICT. ADDL. RESPONDENTS IMPLEADED AS PER ORDER DATED 28.02.2008 ON I.A.NO. 2785 OF 2008 ADDL.R5 RAJI, W/O. SANTHOSH KUMAR, AGED 34 YEARS, ALADY HOUSE, IRINGOL P.O., PERUMBAVOOR, ERNAKULAM DISTRICT. ADDL.R6 SABIDA P.E., W/O. KABEER M.M. AGED 28 YEARS, SANOJ MANZIL, MUDAVOOR P.O., PULINCHODUKAVALA, MUVATTUPUZHA, ERNAKULAM DISTRICT. ADDL. RESPONDENT IMPLEADED AS PER ORDER DATED 10.06.2008 ON I.A.NO. 6985 OF 2008. WP(C).No. 3432 of 2008(H) ADDL.R5 VIDYAMOL V., W/O. BINUMON P.D., (As shown VRINDAVANAM, in I.A.) PATTITHANAM P.O. ETTUMANOOR, KOTTAYAM. R1 AND R2 BY ADV. SHRI ALEXANDER THOMAS, SC, PSC. BY GOVERNMENT PLEADER ADV. SRHI T.T. MUHAMOOD BY ADV. SRI.SHAJI P.CHALY FOR ADDL.RESPONDENTS BY ADV. SRI.S.SUBHASH CHAND FOR ADDL.R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/09/2008, ALONG WITH WP(C) NO. 17612 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3432 of 2008(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE PHOTOCOPY OF G.O.(MS)NO. 120/99/Edn. DATED 25.05.1999. EXT.P2 : TRUE PHOTOCOPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHUMI THOZHIL VARTHA DATED 10.11.2007. EXT.P3: TRUE PHOTOCOPY OF THE APPLICATION OF THE PETITIONER DATED 17.11.2007. RESPONDENTS' EXHIBITS: EXT.R3(a) & R3 (b) : TRUE COPY OF THE PROFORMA. EXT.R3(c) TRUE COPY OF THE ADVICE MEMO DATED 08.01.2008 EXT.R3(d) COPY OF LETTER NO.A1-1630/2008 DATED 08.02.2008 ISSUED BY THE 3RD RESPONDENT TO THE PSC. EXT.R3(e) COPY OF LETTER NO.E2(1)3226/04 DATED 14.03.2008 ISSUED BY THE PSC TO THE 3RD RESPONDENT. EXHIBITS PRODUCED BY THE PETITIONER IN I.A.NO. 6985 OF 2008 EXT.R5(a) TRUE COPY OF THE RANKED LIST PUBLISHED BY THE KERALA PUBLIC SERVICE COMMISSION UNDER CATEGORY NO.125/2004. EXT.R5(b) TRUE COPY OF ADVICE MEMO DATED 08.01.2008 ISSUED BY THE DISTRICT REGIONAL OFFICER , KERALA PUBLIC SERVICE COMMISSION, ERNAKULAM. EXT.R5(c) TRUE COPY OF G.O.(MS)NO. 120/99/G.Edn. DATED 25/5/1999 EXT.R5(d) TRUE COPY OF THE DOCUMENT EVIDENCING THE FACT THAT THE DISTRICT OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION HAS ADVISED ALTOGETHER 17 POSTS OF H.S.A. (MATHS) AS ON 6/2/2008 /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. ............................................................................ W.P.(C) No. 3432 & 17612 OF 2008 ............................................................................ Dated this the 1st September , 200 J U D G M E N T Since common questions arise for consideration in these Writ Petitions, a common judgment is being rendered disposing of these Writ Petitions. A statement dated 22.08.2008 is filed by the third respondent in W.P.(C)No. 3432 of 2008 and that statement is adopted as statement in the other case as well for the purpose of disposal of the Writ Petitions. It is not necessary to refer the counter affidavits and reply affidavits filed in the case. 2. The petitioner in W.P.(C) No. 3432 of 2008 is a peon working in the Government Higher Secondary School, South Ezhipuram, Aluva. It is not disputed that he has the requisite qualification to be appointed as HSA (Maths). 10% posts of H.S.A. in Ernakulam district are earmarked for 'by transfer' appointment from among the ministerial staff including peons. Applications were invited by the first respondent-Public Service Commission from the qualified ministerial staff for appointment as HSA (Maths). Pursuant to the notification dated 31.10.2007, the petitioner submitted application. It is stated that while reporting vacancies, the Deputy Director of Education had clearly stated that seven vacancies are to be filled up 'by transfer ' appointment. The complaint raised by the petitioner is that the Kerala Public Service Commission , W.P.(C) No. 3432 & 17612 OF 2008 2 instead of adhering to the report of the Deputy Director of Education that seven vacancies are to be filled up by 'by transfer' appointment, had advised those vacancies as well for being filled up from among the direct recruitees on the ground that no candidate was available for 'by transfer' appointment. The reliefs prayed for in W.P.(C) 3432 of 2008 are the following : “i) to issue a writ in the nature of Mandamus or such other writ, direction or order, commanding the respondents 1 to 3 to fill up the 7 vacant posts of H.S.A. (Maths) in Ernakulam District from among the qualified ministerial staff, working in Ernakulam District. ii) to issue a writ of Mandamus or such other appropriate writ, order or direction, declaring that the filling up of all the 14 vacancies reported by the 3rd respondent to the 1st and 2nd respondents from the list of direct recruitees alone as per Communication No.EII(1)/3224/04 dated 08.01.2008 is illegal and unconstitutional. iii) to issue a writ in the nature of Mandamus or such other writ, direction or order commanding respondents 1 to 3 to appoint the petitioner as H.S.A. (Maths) in any one of the posts/vacancies earmarked for qualified ministerial staff as per Ext.P1 G.O. iv) to grant the cost of these proceedings to the petitioner AND v) to grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case.” 2. The petitioner in W.P.(C) No. 17612 of 2008 was included in Ext. P2 rank list prepared by the Public Service Commission as rank No.10 for the post W.P.(C) No. 3432 & 17612 OF 2008 3 of H.S.A.(Maths) in Ernakulam district. Though Ext. P3 advice memo was issued to her, no appointment order was issued. The reliefs prayed for in W.P. (C) No. 17612 of 2008 are the following: “i) to issue a Writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos. 1 and 3 to issue appointment order to the petitioner as HSA (Maths) as per Ext. P2 ranked list and Ext. P3 advice memo forthwith or within such time as this Hon'ble Court may deem fit and proper in the interest of justice ii) to issue a declaration that in case of absence of qualified hands for appointment in the category change/transfer quota from among the ministerial staff in the Education Department in Ernakulam District, vacancies earmarked for them shall be filled up by way of candidates included in the list for direct recruitment as the teaching posts are not liable to be left unfilled since the same would adversely affect public interest. iii) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos. 1 and 2 to forthwith appoint the petitioner as HSA (Maths) in view of Ext. P2 ranked list and P3 advice memo in view of the fact that qualified candidates are not available in any ranked list prepared by the Kerala Public Service Commission under category change/transfer quota, within such time as this Hon'ble Court may deem fit and proper in the interest of justice. iv) To issue a declaration that the petitioner is entitled to be appointed as HSA (Maths) in any one of the vacancies W.P.(C) No. 3432 & 17612 OF 2008 4 remaining unfilled in the cadre of HSA (Maths) in the Education Department in Ernakulam District forthwith or within such time as this Hon'ble Court may deem fit and proper in the interest of justice; and v) to mould and grant such other reliefs, as this Hon'ble Court shall deem just and proper in the interest of justice, including costs. “ 3. As per the statement dated 22.08.2008 filed by the third respondent, the Deputy Director of Education, 21 vacancies of H.SA.(Maths ) are available in Ernakulam district, out of which 7 vacancies are earmarked for 'by transfer' appointment. The relevant portion in the statement is extracted below for the purpose of convenience. “4. It is submitted that after the finalization of the staff fixation in departments schools during the year 2007-08 in Ernakulam Revenue district, the cadre strength of H.S.A. (Maths ) were as follows: Total cadre strength 150. Sl.No. H.S.As. Ratio fixed by the G.Os. Permissible Strength Existing list on rolls. 1. Direct Recruitment 50% 75 68 2. Inter District Transfer 30% 45 45 3. Promotion of P.D. Teachers 10% 15 15 4. By transfer from Ministerial Staff. 10% 15 1 5. Apart from that 3 teacher who were absorbed due to the W.P.(C) No. 3432 & 17612 OF 2008 5 closure of uneconomic school were working against the total cadre strength. Further to it 4 protected teachers were also working. Therefore, the total existing teacher at that time was 136 and total vacancy was 14. 7 vacancies each were reported for by transfer and direct recruitment as stated in para 3 of this statement. After filling up the 7 vacancies, the total existing strength of direct recruitees arose to 75. Subsequently 10 more vacancies of H.S.A. (Maths) in Ernakulam revenue district arose consequent on the promotion of existing H.S.As as Headmasters. The above said 10 H.S.As were direct recruitees and therefore this respondent reported 10 more vacancies to the Public Service Commission on 6.6.2008 for direct recruitment. But, so far no advice has been received from the Public Service Commission for making appointment against the vacancies reported. It is also submitted that though appointment orders were issued to the 7 candidates against the vacancies already advised, one candidate did not join duty and therefore one more vacancy of H.S.A. (Maths) arose. The said vacancy was reported as N.J.D. vacancy to the Public Service Commission on 14.7.2008 as per letter No.A1/1630/08 dated 14.07.2008. But so far no advice has been received against the said vacancy also. 6. Further to it, 3 more vacancies were also arose due to the promotion of H.S.A. (Maths) as Headmasters. In fact, the said candidates were also direct recruitees and therefore this respondent, as per letter No.A1/1630/08 dated 4.8.2008 reported 3 more vacancies also to the Public Service Commission for advising the candidates under direct recruitment quota. It is submitted that at present there are 14 vacancies including one NJD vacancy is pending with the Public Service Commission for making advice under the direct recruitment quota. It is submitted that at present there are 21 W.P.(C) No. 3432 & 17612 OF 2008 6 vacancies of H.S.A. (Maths ) in Ernakulam Revenue District. Out of the same, 7 vacancies have already been reported to the Public Service Commission for making appointments under 'by transfer ' appointments. Remaining 14 vacancies have to be filled up by appointing direct recruitees. The appointment of the above candidates will be done on receipt of the advice from the Public Service Commission.” 4. The facts in the statement dated 22.08.2008 are not disputed either by the petitioners or by the Public Service Commission. It has been clearly brought out that the only candidate available for 'by transfer' appointment is the petitioner in W.P.(C)No.3432 of 2008. However no select list has been prepared and the process of selection is not yet completed. The petitioner in W.P.(C)No. 3432 of 2008 is aggrieved by the delay in preparing the select list after the selection process. According to the petitioner, the appointment, which is due to him was delayed due to the delay in the process of selection. It is also not disputed that instead of giving advice for filling up the seven vacancies earmarked for 'by transfer' appointment, the Public Service Commission had given advice to the seven candidates from the rank list for direct recruitment. For the present, the course adopted by the Public Service Commission would affect only the petitioner in W.P.(C) No. 3432 of 2008. The legality or otherwise of the action taken by the Public Service Commission in giving advice in respect of the other six vacancies in the 'by transfer' category need not be gone into in W.P.(C) No. 3432 & 17612 OF 2008 7 these Writ Petitions. 5. Going by the statement dated 22.08.2008 filed by the third respondent, there are 14 vacancies to be filled up by appointing direct recruitees as per the advice given by the Public Service Commission. Six vacancies are also available, which were earmarked for 'by transfer' appointment. The petitioner in W.P.(C)No.17612 of 2008 would be satisfied if she is appointed as per the advice given by the Public Service Commission. After hearing the learned counsel for the petitioners, the learned Standing Counsel for the Public Service Commission and the learned Government Pleader, the Writ Petitions are disposed of by issuing the following directions : i) As far as the petitioner in W.P.(C) No. 3432 of 2008 is concerned, the Public Service Commission shall complete the process of selection pursuant to Ext.P2 notification and prepare the select list . ii) The Public Service Commission shall also issue advice to the petitioner in W.P.(C) No. 3432 of 2008 to fill up one of the vacancies in the category of 'by transfer' appointment, provided he is included in the select list . The selection process shall be completed, as expeditiously as possible, and at any rate within a period of four months. iii) The petitioner in W.P.(C) No. 17612 of 2008 is a candidate for direct recruitment as H.S.A. (Maths). There are 14 vacancies reported for direct recruitment. Seven vacancies earmarked for 'by transfer' appointment have been advised by the Public Service Commission to be filled up from among the W.P.(C) No. 3432 & 17612 OF 2008 8 direct recruitees, of which one vacancy is set apart, as per the direction Nos. (i) and (ii) above for 'by transfer' appointment for the petitioner in W.P.(C) No.3432 of 2008. The Public Service Commission shall, if necessary, cancel the advice and complete the process of issuing advice in respect of 20 vacancies reported to the Public Service Commission. This process shall be completed within a period of two months. On such advice, the Deputy Director of Education shall issue appointment order to the petitioner in W.P.(C) No. 17612 of 2008 in accordance with the advice thus issued by the Public Service Commission. K.T. SANKARAN, JUDGE. lk