Rekha K.R. vs State of Kerala and Others

P.N. Ravindran, J.—1. The petitioners herein are persons included in the ranked list published by the Kerala Public Service Commission (''the Commission'' for short) for appointment by direct recruitment to the post of H.S.A. (Malayalam) in the General Education Department in Alappuzha District. The ranked list ceased to be in force on 14.4.2015. They filed O.A. Nos. 680 of 2015 and 2323 of 2013 respectively before the Kerala Administrative Tribunal, hereinafter referred to as ''the Tribunal'' for short, praying for an order directing the Deputy Director of Education, Alappuzha to report vacancies of H.S.A. (Malayalam) in Alappuzha District, to the District Office of the Commission. They contended that vacancies of H.S.A. (Malayalam) are available in Alappuzha District. The Deputy Director of Education filed a reply statement contending that vacancies are not available. After considering the rival contentions, the Tribunal passed the following interim order on 10.4.2015 in O.A. No. 2323 of 2013:

"The applicants are persons included in Annexure A1 ranked list, for appointment to the post of High School Assistant (Malayalam), which will expire on 14.4.2015. Alleging that vacancies are available in the cadre of High School Assistant (Malayalam) in Alappuzha District and praying for a direction to the third respondent to report those vacancies to the P.S.C. this Original Application is filed.

The third respondent has filed reply statement stating that no vacancies are available. The applicants have failed to produce any cogent materials to show that the said assertion is not correct. But, having regard to the facts of the case, the third respondent is directed to consider whether there are any further vacancies available, which could be reported to the P.S.C. and, if so, report the same to the second respondent before the closure of office hours on 13.4.2015.

The learned Government Pleader may inform the third respondent of this order today itself."

Thereafter, when the matter came up for consideration before the Tribunal on 20.8.2015, the learned Government Pleader submitted that since there were no vacancies, the Deputy Director of Education did not report any vacancy to the Commission. In view of that submission, the Tribunal closed O.A. No. 2323 of 2013 as infructuous. On the same reasoning, O.A. No. 680 of 2015 was even earlier closed by order passed on 16.4.2015. The said orders which are marked as Ext. P3 in the respective original petitions, are under challenge in these original petitions filed under Article 227 of the Constitution of India.

When these original petitions came up before a Division Bench of this court on 4.12.2015, this court directed the learned Government Pleader to get instructions and to file a statement setting out the details regarding the number of vacancies which were available to be filled up by direct recruitment from the ranked list which ceased to be in force on 14.4.2015 as also the details regarding the number of persons advised from that ranked list. Such a statement was to be filed on or before 23.12.2015. The statement was however not filed within the said time limit. Instead, when these original petitions came up for further hearing on 6.1.2016, the learned Government Pleader sought one weeks further time to comply with the direction issued by this court on 4.12.2015. That request was granted and these original petitions were adjourned by a week. Thereafter, the original petitions came up before us on 21.1.2016. The Deputy Director of Education had in the meanwhile filed a statement dated 19.12.2015 wherein it is stated that no vacancy of H.S.A. (Malayalm) was in existence at the end of the academic year 2014-2015, that during the academic year 2014-15 six vacancies of H.S.A.(Malayalam) including two vacancies which arose during the academic year 2013-14 were available for appointment, that two vacancies which arose during the year 2013-14 and were carried over to 2014-15 were filled up by appointing candidates by direct recruitment and inter district transfer as per norms, that though four vacancies arose during the year 2014-15, as there was reduction of five posts during the staff fixation for that year, three out of the five excess teachers were adjusted against the vacancies which arose during 2014-15, that one post was utilised for promoting a P.D. Teacher pursuant to the directions issued by the Tribunal in O.A. No. 38 of 2014 and that the two excess teachers were adjusted against vacancies which arose in the year 2015-16. It is contended that no vacancies were in existence as on the date of expiry of the ranked list, for appointment by direct recruitment. The Deputy Director of Education has also set out the details regarding the cadre strength and the number of teachers actually holding the post. On noticing the said statement, when these original petitions came up before us on 21.1.2016 we passed an order directing the Deputy Director of Education to furnish particulars regarding the vacancy position referred to in paragraphs 2 and 3 of the statement dated 19.12.2015, within a period of two weeks. Such an order was passed having regard to the averment in the reply affidavit dated 19.1.2016 filed by the petitioner in O.P.(KAT) No. 347 of 2015 that it is not clear from the averments in paragraphs 2 and 3 of the statement filed by the Deputy Director of Education as to how the vacancies were filled up. Pursuant to the said direction the Deputy Director of Education has filed a statement dated nil which was presented on 10.2.2016. Paragraphs 2 and 3 thereof read as follows:

"2. It is submitted that during the academic year 2014-2015 there were 6 vacancies of H.S.A. (Malayalam) available for appointment including 2 vacancies which were existing in 2013-2014 and carried forward to the academic year 2014-2015. In 2014-2015 academic year, the vacancies existed for the academic year 2013-2014 wee filled up by appointing candidates from Direct Recruitment and Inter District Transfer as per norms. During 2014-2015, 5 posts in H.S.A. (Malayalam) were reduced due to want of students in the Staff Fixation for the academic year 2014-2015. Out of 5 excess teachers, thus available 3 of them were adjusted in the academic year 2014-2015, in the available vacancy of the above said 4 vacancies. Thus the vacancy position 2014-15 was reduced to one (4-3). Remaining 2 excess teachers after adjusting above referred 3 were adjusted and posted in the vacancies arose during year 2015-16, i.e., the current academic year. As stated above though one post of H.S.A. was available after adjusting the above said 3 excess teachers, that was filled up by promoting a PD teacher as per direction from the Hon''ble Administrative Tribunal in O.A. No. 38/14. So there is no vacancy existing in Alappuzha District for direct recruitment.

As per the guidelines 30% of the available vacancies of H.S.A. (Malayalam) has to be recruited directly from PSC. As per the said norms the number of prescribed quota earmarked was 34. But number of teachers now working in the PSC quota is 51, that means 17 persons are excess in the PSC quota. Therefore, as per the existing rule, no vacancy is available to accommodate the petitioner or the other person through PSC as quota allotted to the PSC was filled up and is now excess."

It is evident from the materials presently before us that as against the cadre strength to be filled up by direct recruitment (34), 51 teachers appointed by direct recruitment are now in place, meaning thereby that 17 excess teachers have been appointed by direct recruitment. As per the norms currently in force, only 30% of the available vacancies of H.S.A. (Malayalam) can be filled up by direct recruitment. Since the number of teachers appointed by direct recruitment to the post of H.S.A. (Malayalam) exceeds the prescribed quota, the petitioners cannot, merely for the reason that they had approached the Tribunal in time, contend for the position that vacancies in excess of the cadre strength should be filled up. The petitioners cannot in our opinion seek or be granted a relief which will have the effect of compelling the Government to violate the quota reserved for appointment by direct recruitment and appoint candidates in excess of the prescribed quota. Though learned counsel for the petitioners contended that the Government have, while reckoning the cadre strength, taken into account the post held by the recently upgraded schools, we are of opinion that nothing turns on the said aspect. The two schools upgraded are Government High School, Naluchira and Kollakadavu Muhammadens High School. Even according to the petitioners, the number of teachers working as H.S.A. (Malayalam) in the aforesaid schools is only 2. Even if two teachers are excluded from the number of teachers appointed by direct recruitment, the number of teachers presently in service will be 49 which is also in excess of the quota fixed, viz. 34. Under the rules, the post of H.S.A. is to be filled up by direct recruitment/inter district transfer/promotion in the ratio 3 : 3 : 1. If all the vacancies are filled up by direct recruitment, it will lead to a situation where the inter district transferees will not get a transfer and Lower Primary/Upper Primary teachers will never get promotion. This in turn will prevent persons who possess only the qualifications for appointment as LPSA/UPSA from getting appointment to Government service. We are therefore of opinion that this court cannot by a mandamus direct the Government to fill up vacancies in excess of the quota earmarked for appointment by direct recruitment to the detriment of the persons seeking inter district transfer and teachers aspiring for promotion. Though learned counsel for the petitioners submitted that six promotees were reverted, even if six promotees were in fact reverted, then also the number of direct recruits holding the post of H.S.A. (Malayalam) will be in excess of the prescribed quota.

We therefore find no goods ground to entertain these original petitions. The original petitions fail and are accordingly dismissed.