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Judgment
Manjula Chellur, C.J.—The petitioner has approached this Court aggrieved by the rejection of the application filed by him before Kerala Administrative Tribunal in T.A. No. 3238 of 2012 by order dated 17.05.2012. According to the petitioner, in W.P. (C) No. 37401 of 2009 he approached this Court and in the said writ petition a counter affidavit came to be filed by the respondent authority stating how many vacancies were available, i.e. three numbers, which could be filled up by advising candidates from the Public Service Commission''s (for short ''PSC'') list. As per the interim order, PSC was directed to advise candidates to the said three vacancies. According to the petitioner, there were more than three vacancies which could have been considered but not advised intentionally by the Department concerned.
The additional counter affidavit filed by the Department which is at Ext.P8 clearly indicates from paragraph 3 onwards how many vacancies were available and how it has to be distributed to different categories including appointment by transfer and what exactly had happened to the vacancies. It is relevant to quote paragraph Nos. 3, 4, 5 and 6 of the counter affidavit which is self explanatory by the Department and how the vacancy position was arrived at and advised. Paragraph Nos. 3, 4, 5 and 6 of the counter affidavit read as under:
On 04.04.2010 the petitioner filed an Interlocutory Application along with the same he produced Exhibit P3 and P4 documents. Exhibit. P4 is the communication issued by the Public Information officer, attached to the office of the Deputy Director of Education, wherein it is seen that he has admitted 9 vacancies of UPSA (Malayalam Medium) in Kasargod District as on 30.03.2010. It is true that as on 30.03.2010, 9 vacancies of UPSA (Malayalam Medium) were available in Kasargod District. The said vacancies were continued upto 30.04.2010. Out of the 9 vacancies available, 2 were NJD vacancies and those 2 vacancies were reported to the Public Service Commission on 08.04.2010. Against those vacancies PSC advised candidates and accordingly 2 candidates joined duty on 07.04.2010. Out of the remaining 7 vacancies, 3 were reported to the PSC on 08.04.2010, i.e. 2 vacancies for direct recruitment and one for by transfer appointment. The 3 vacancies were set apart for Inter District Transfer and the appointment orders were issued to 3 candidates. Though there are more than 14 applicants for Inter District Transfer, only 3 vacancies were set apart for Inter District Transfer. Appointment orders were issued on 30.03.2010. One candidate joined duty, but 2 of them did not join. Remaining one vacancy was filled up by the candidates, who have been appointed under the quota for the Inter District transfer on compassionate grounds. The said appointment was made by the Director of Public Instruction and he has joined duty. Therefore, all those vacancies, which were set apart for direct recruitment has already been filled up.
The petitioner has also pointed out one vacancy will arise on the retirement of Leelamma. It is true that Leelamma, who was working in GMNHS, retired from service on 30.01.2010. Therefore the said vacancy arose only on 01.04.2010. Since the said vacancy have been arisen after the closing of the academic year, the said vacancy can be taking into consideration only after finalising the next staff fixation as there is every likelihood of reduction and adjustment of the post. Regarding the retirement of H.M., it is submitted that a vacancy in the post of UPSA will arise only after effecting the promotion of the UPSA to the post of H.M. It is submitted that all those promotions were effect after the expiry of the rank list i.e. after 30.04.2010. It is submitted that following vacancies have arisen in the post of UPSA in Kannur District after the expiry of the Exhibit. P1 ranked list.
It is submitted that apart from that 3 vacancies have arisen in the post of UPSA (Malayalam) in Kasaragod Revenue District as on 28.04.2010 due to the creation of Additional Division Vacancies.
Though there arose 15 vacancies during the period from 01.04.2010 to 10.11.2010, 11 vacancies were filled up by absorbing excess teachers, who were rendered surplus due to the division fall during the staff fixation for the year 2010-11. Out of the remaining 4 vacancies, one vacancy has to be filled up by candidate advice under ''By transfer'' appointment. It is true that as stated above 3 vacancies have arisen on 28.04.2010 due to creation of Additional Division vacancies and those vacancies have arisen within the validity period of Exhibit. P1 ranked list.
It is submitted that this Hon''ble Court as per interim order dated 20.04.2010 directed this respondent to report 40 vacancies of UPSA (Malayalam Medium) to the 2nd respondent on provisional basis. It was also clarified that such reporting of vacancies will be provisional and advice need not made against the said vacancies. In compliance with the direction in the above interim order, this respondent has already reported 40 vacancies to the PSC. It is submitted that though 40 vacancies were reported in pursuance to the interim direction, no appointment can be made against those vacancies. As stated above there are only 4 vacancies available and out of the same, one vacancy has been set apart for ''By transfer'' appointment, in which advice has already been received from the PSC. The remaining vacancies are only 3, which occurred on 28.04.2010. We find no irregularity or illegality in the distribution of vacancies to different categories as stated in the above paragraphs and the Tribunal was justified in saying that there is no material to hold that there was more than vacancies reported in the Department at the relevant point of time, if at all any vacancy that had to arise after retirement of Smt. Leelamma, as rightly pointed out by the Department, it has to be considered only when the academic year starts after re-fixation of the staff in accordance with the procedure.
Having regard to these observations of the Tribunal, the Tribunal arrived at right conclusion and we do not find any good ground to interfere with the same. Accordingly, the Original Petition is dismissed.