RETNAMMA Vs. KPSC

JUDGEMENT

(1.) 2. It is contended on behalf of the petitioner that under r. 3 of the Kerala State and Subordinate services Rules, 1958 there was a mandatory duty cast on the appointing authority to notify the vacancies to the Public Service Commission and to fill up the vacancies only by appointing the candidates advised by the Public service Commission. According to the petitioner, in deviating from the aforesaid procedure and filling up the vacancies by posting aided school teachers to work on deputation basis or otherwise, the 2nd respondent has acted in manifest contravention of the mandatory provision contained in R. 3 of the kerala State and Subordinate Services Rules and the said action is therefore illegal. Alternatively it is urged on behalf of the petitioner that the 2nd respondent has acted illegally in filling up two vacancies that had arisen in government High Schools in the Palghat District by posting respondents Nos. 3 and 4 to work in those vacancies despite the fact that respondents Nos 3 and 4 are language teachers of aided schools who were not entitled to the benefit of g. O. (MS) 104/69. On the strength of the aforesaid averments the petitioner has sought the issuance of a writ of mandamus compelling the 2nd respondent to report to the 1st respondent the Kerala Public Service Commission the next vacancy of Senior Language Teacher (Hindi) so as to enable the 1st respondent to advise the petitioner's name for appointment against the said vacancy. 3. In our opinion there are insuperable difficulties in the way of the petitioner in claiming any relief from this court under Art. 226 of the Constitution. Firstly, R. 3 (b) of the Kerala State and Subordinate services Rules clearly lays down that the inclusion of a candidate's name in any list of approved candidates for any service, State or Subordinate, or any class or category in a service, shall not confer on him any claim to appointment to the service, class or category. The petitioner cannot therefore contend merely on the strength of the inclusion of her name in the select list published by the Public Service Commission that she has acquired a legally enforcible right to be appointed to the post of Senior Language Teacher From the averments contained in the Original Petition itself it is seen that the turn for appointment of the petitioner had not arrived during the period when the select list was in force. It may be that this was due. to the fact that all the vacancies which had arisen during that period were not notified to the public Service Commission by the appointing authority and instead, some of those vacancies were filled up by posting language teachers of aided schools, who were entitled to the protection conferred by G. O. (MS) 104/69. 4. It is contended on behalf of the petitioner that except in respect of temporary appointments covered by R. 9 (a) (i) other appointments can validly be effected only by the process of direct recruitment in view of the provision contained in R. 3 (a ). On this basis it is argued that in filling up the vacancies of High School Assistants (Senior Language teachers) by implementing, the directive given in G. O. (MS) 104/69, there has been a contravention of the mandatory provision contained in R. 3 (a ). We are unable to uphold this contention. The provisions of R. 3 (a) will get attracted only at the time of making first appointments to a service and the said sub-rule only lays down the procedure for making such first appointments to a service. The expression "first appointments to the service" in that rule must be understood as taking in only cases where the person appointed would become a member of the concerned service by virtue of such appointment see definition of the expression "appointed to a service" contained in R. 2 (1 ). When a person is posted to work in a particular post purely on a deputation basis such person doss not get appointed to the service since he does not become a member of the concerned service by virtue of a posting which is only in the nature of a temporary work arrangement. The direction contained in G. O. (MS) 104/69 is only to give such a temporary posting in Government schools to thrown out aided school teachers on a work arrangement or deputation basis The said arrangement is intended to enure only until such time as and when a vacancy arises in the concerned aided schools wherefrom the teachers were found liable to be retrenched. Such being the position, we have no hesitation to hold that the directions issued in G. O. (MS) 104/69 are not in any way inconsistent with the provision contained in R. 3 (a) of the Kerala State and Subordinate Services Rules. The contention advanced by the petitioner that the 2nd respondent has acted illegally and without jurisdiction in posting aided school teachers to work in the vacancy that arose in the Palghat educational District without notifying the vacancies to the Public Service commission cannot therefore be accepted. 5. In the view that we have taken regarding the validity of G. O. (MS) 104/69 and the legality of the action taken by the 2nd respondent in implementation of the said Government Order, it is unnecessary for this court to consider, whether it was incumbent on the 2nd respondent to notify to the Public Service Commission the vacancies of Senior Language Teachers (Hindi)that had arisen in Palghat District during the period of validity of the select list wherein the petitioner's name was included. In as much as we have found that the petitioner had no enforceable right or claim to be appointed into the vacancies in which respondents Nos. 2 and 3 were posted on deputation it is strictly unnecessary for us to consider the contention advanced by the petitioner that respondents 2 and 3 are not persons entitled to benefits of g. O. (MS) 104/69. We may however observe that having regard to the averments contained in the counter affidavits filed by those respondents the correctness of which we see no reason to doubt it is not possible to uphold the petitioner's ease that respondents Nos. 2 and 3 were not eligible for the benefits of the said Government Order. In the result, the Original Petition fails and it is dismissed. But in the circumstances we do not make any order costs. Dismissed. . .