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2006 DIGILAW 437 (KER)

Ajithakumari v. Shamma

2006-07-18

K.A.ABDUL GAFOOR, K.P.BALACHANDRAN

body2006
JUDGMENT K. A. Abdul Gafoor, 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 Rule 3 of the said Special Rules, the vacancies of HSST shall be filled up by transfer from Higher Secondary SchoolTeacher (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 Rule 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. Direct recruitment is possible by virtue of Rule 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. 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 KLT 458 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. 4. There is yet another contention that while working out the quota and turn between HSAs/UPSAs and direct recruits (in the absence of HSST (junior)), cadre strength shall be the basis. In this regard, Rule 5 of the General Rules in Part II of the Kerala State Subordinate Services Rules, 1958 (KS & SSR) is relied on. Therefore, while ascertaining the vacancies for direct recruitment to three fourth of the vacancies remaining due to non-availability of Higher Secondary School Teacher (junior), it shall be up to 75% of the cadre strength of HSST. 5. This contention is due to misreading of Rule 5 of KS & SSR. The said Rule reads as follows: "5. Method of recruitment. Therefore, while ascertaining the vacancies for direct recruitment to three fourth of the vacancies remaining due to non-availability of Higher Secondary School Teacher (junior), it shall be up to 75% of the cadre strength of HSST. 5. This contention is due to misreading of Rule 5 of KS & SSR. The said Rule reads as follows: "5. Method of recruitment. Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer but is both by direct recruitment and by transfer" (a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by persons recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre; (b) a person shall be recruited direct only against a substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the Special Rules referred to in clause (a); and ( c) recruitment to all other vacancies shall be made by transfer Note- (1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies. (2) Leave vacancies and vacancies of less than 6 months' duration shall be treated as vacancies of short duration. (3) Whenever a ratio or percentage is fixed for different methods of recruitment/ appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at the time. This Rule is applicable, as its opening sentence indicates: "Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer but is both by direct recruitment and by transfer-". In the case of HSST, going by Item No. 2 in Rule 3 of the Special Rules, the normal method of appointment is: "by transfer from the Higher Secondary School Teacher (junior) in the subject concerned". Only in the absence of sufficient hands in the category, other method, including transfer of HSA/UPSA and direct recruitment, is indicated and permitted. In the case of HSST, going by Item No. 2 in Rule 3 of the Special Rules, the normal method of appointment is: "by transfer from the Higher Secondary School Teacher (junior) in the subject concerned". Only in the absence of sufficient hands in the category, other method, including transfer of HSA/UPSA and direct recruitment, is indicated and permitted. When, thus, normal method of recruitment is solely 'by transfer, from Higher Secondary School Teacher .(junior)', Rule 5 of the General Rules in KS & SSR has no application. It will apply when normally more than one method is prescribed. This is not the case here. Normal method of recruitment to the post of HSST is by transfer from HSST (junior) as discussed above. Whenever vacancies of HSST occur, those vacancies have to be filled up by appointing HSST (junior) in the concerned subject. Only such of the vacancies remaining unfilled for want of HSST (junior), alone can be filled up by other methods including direct recruitment. Necessarily, the ratio prescribed in the Special Rules is in the special situation of non-availability of candidates in the feeder category, viz., HSST (junior) in the subject concerned, for the normal method of recruitment, and can be worked out only for such vacancies remaining unfilled. So, the vacancies, thus available for appointment by transfer of HSA/UPSA and direct recruitment cannot be worked out on the cadre strength as provided in Note (3) under Rule 5, as these are not 'the normal method of recruitment mentioned in Rule 5 of the General Rules in K.S. & S.S.R. 7. Accordingly, we are of the view that taking into account the provisions contained in the Special Rules, as discussed above and the competing claims of the candidates, the direction in the impugned, judgment shall be modified as under: (1) All the vacancies that had arisen until the date of the notification issued by the PSC, viz., 20/09/2001 shall go to the candidates included in the ranked list prepared by the PSC as now in force. (2) The vacancies that had occurred later than Month="9">20/09/2001, shall be filled up after ascertaining whether as on the dates of the occurrence of the respective vacancies, those belonging to the category of HSST (junior) in the concerned subject, who had completed the period of probation, were/are available in service. If there are such candidates, the vacancies shall go to such hands. If there are such candidates, the vacancies shall go to such hands. (3) In their absence, first out of a block of four vacancies thus available in the Subject concerned shall be filled up by appointing High School Assistants or Primary School Assistants duly qualified and the remaining four vacancies shall go to direct recruitment. (4) In the absence of such qualified HSAs/UPSAs, those vacancies shall also go to direct recruitment. (5) Reporting of vacancies to the Public Service Commission, as directed by the learned Single Judge shall be, subject to the directions as above. With these modifications in the judgment impugned, these Writ Appeals are disposed of.