AJITHAKUMARI Vs. SHAMMA

JUDGEMENT

(1.) The first among these two writ appeals is by a contesting respondent, who got impleaded in the writ petition and the remaining is by the State. They are aggrieved by the direction issued by the learned Single Judge to report all the vacancies of Higher Secondary School Teachers (for short 'HSST') born on the Kerala Higher Secondary Education State Service, for which Special Rules have been issued as per SRO No. 410/01 (hereinafter referred to as 'the Special Rules'), published in Kerala Gazette dated 19/04/2001. It is contended by the appellants that as per the method of appointment provided for in R.3 of the said Special Rules, the vacancies of HSST shall be filled up by transfer from Higher Secondary School Teacher (junior) [HSST (junior)] in the subject concerned, a post born on the Kerala Higher Secondary Education Subordinate Service Rules. In the absence of qualified hand in that category, appointment shall be in the ratio of 1:3, between appointment by transfer from qualified High School Assistants (HSA) or Primary School Assistants (UPSA) on the one hand and direct recruitment on the other. There are several incumbents at present in service duly qualified for appointment as HSST, working in the feeder category, namely HSST (junior). When such qualified candidates are available in the feeder category, necessarily, direct recruitment is not possible, it is contended by the appellants. Therefore, the learned Single Judge ought not have issued a direction to report all the existing vacancies in the category of HSST in different subjects to the Public Service Commission (PSC) for advising candidates on direct recruitment, it is submitted. The Department has to take into account, before making appointment to the post concerned, whether qualified HSSTs (junior) are available for appointment. In their absence, qualified High School Assistants or Primary School Assistants have to be considered for one out of four vacancies and the remaining three alone can be made use of for direct recruitment. Direct recruitment is possible by virtue of R.3 of the Special Rules only in the absence of qualified HSST (junior), that too only to the limited quota in such available vacancies, it is contended by the appellants. It is submitted that the entire vacancies of HSST in the concerned subject shall be given to the HSST (junior) and in their absence only the vacancies so left shall be filled up by qualified High School Assistants or Primary School Assistants and by direct recruitment in the ratio of 1:3.

(2.) On the other hand, it is urged by the counsel for the respondents that notification for direct recruitment was published by the PSC on 20/09/2001. That means, as on the said date, there was not even a single hand for appointment by transfer, either in the category of HSST (junior) or in the categories of HSA / UPSA. Necessarily, all the vacancies that had arisen until the date of the notification shall be filled up by appointing the incumbents included in the ranked list published by the PSC. The vacancies that had arisen subsequently also shall be filled up by the candidates included in that ranked list, subject to ascertainment whether qualified hands in the category of HSST (junior) are available or not and in their absence three fourth of such vacancies shall go to direct recruitment. When qualified HSAs / UPSAs are also not available, whole of such vacancies shall go to direct recruitment, it is contended. Therefore, there is nothing illegal in the direction issued by the learned Single Judge, they submit.

(3.) A reading of the judgment will disclose that the entire vacancies available shall have to be filled up by direct recruitment. The method of appointment to the post of HSST provided for as per the Special Rules is by appointment by transfer from the category of HSST (junior) in the subject concerned. So, normally, the entire vacancies shall go to them and no direct recruitment is possible. But, when there are no hands in that category, the Rules provide that the vacancies available for want of HSST (junior) shall be filled up by appointment by transfer of qualified HSA / UPSA and by direct recruitment, in the ratio of 1:3. If qualified HSAs / UPSAs are not available, those vacancies set apart for them shall also go to direct recruitment. The Rules have, therefore, to be worked out with reference to the date of occurrence of vacancies. Filling up shall be against the vacancies occurred and the position as on the date of occurrence of vacancies of HSST shall be ascertained in order to determine, whether the HSST (junior) is to be appointed or HSA / UPSA is to be appointed or a direct recruit candidate is to be appointed. The principle that filling up of vacancies shall be as per situation on the date of occurrence of vacancies is an accepted position, in order to avert the possible discrimination and arbitrariness in preferring one candidate to another. It has been held by a Full Bench of this Court in Varghese v. State of Kerala, 1981 KHC 148 : 1981 KLT 458 : 1981 KLT SN 83 : ILR 1981 (2) Ker. 285 : 1981 KLN 477 that, that shall be the norms to be followed while making appointments by promotion, which include appointment by transfer from one category in a service to another category in another service, as in this case, in respect of those in the feeder category, viz., HSST (junior) or in their absence, HSA / UPSA to one fourth of the vacancies, as the case may be. This aspect is not seen taken note of in the impugned judgment. This is not much disputed by the writ petitioners / respondents as well.