Kerala High Court
The Kerala Public Service Commission vs Jilson K.X on 30 July, 2015
Author: P.V.Asha
Bench: K.Surendra Mohan, P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 29TH DAY OF MARCH 2016/9TH CHAITHRA, 1938
OP(KAT).No. 7 of 2016 (Z)
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AGAINST THE ORDER/JUDGMENT IN OA 86/2015 of KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 30-07-2015
PETITIONER/2ND RESPONDENT:
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THE KERALA PUBLIC SERVICE COMMISSION
DISTRICT OFFICE, TOWN HALL ROAD, THRISSUR,
KERALA-680 020.
BY ADV.SRI.P.C.SASIDHARAN, SC, KPSC
RESPONDENTS/APPLICANTS & RESPONDENTS 1 & 3:
---------------------------------------------
1. JILSON K.X., AGED 44 YEARS
OFFICE ATTENDANT, GUPS, PUTHENCHIRA,
PUTHENCHIRA EAST P.O., THRISSUR-680 682.
2. NASYMOLE T.C., AGED 39 YEARS,
OFFICE ATTENDANT, GVHSS, VALAPPAD, THRISSUR-680 572.
3. THE DEPUTY DIRECTOR OF EDUCATION
IRINJALAKUDA, THRISSUR, KERALA-680 121.
4. SREEJA P.C., AGED 41 YEARS
W/O. DASAN P.K., PUTHEN VEETTIL HOUSE,
KANIMANGALAM P.O., THRISSUR-680 027,
CURRENTLY RESIDING AT PYNIKKAL HOUSE, CHITTILAPPILLY P.O.,
NEAR VYASAPEEDAM, THRISSUR-609 551.
SMT.ANITHA RAVINDRAN, GOVERNMENT PLEADER
R2 BY ADV. SRI.ELVIN PETER P.J.
R2 BY ADV. SRI.K.R.GANESH
R4 BY ADV. SRI.SHABU SREEDHARAN
R4 BY ADV. SRI.S.VIJAYAN
R4 BY ADV. SRI.K.P.UNNIKRISHNAN (ELOOR)
R4 BY ADV. SRI.V.PRINCE DEV
R4 BY ADV. SRI.M.RAHUL
R4 BY ADV. SRI.P.R.VIBHU
R4 BY ADV. SRI.K.V.PREMSANKAR
R4 BY ADV. SMT.RESHMA ABDUL RASHEED
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 29-03-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RKC
OP(KAT).No. 7 of 2016 (Z)
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APPENDIX
PETITIONER'S EXHIBITS
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P1 : COPY OF THE OA NO.86 OF 2015 ALONG WITH ANNEXURES.
P2 : COPY OF REPLY STATEMENT ALONG WITH ANNEXURES FILED BY THE 1ST
RESPONDENT.
3 : COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT ALONG
WITH EXHIBITS.
P4 : COPY OF THE ADDITIONAL REPLY STATEMENT ON 21.7.2015 FILED BY 1ST
RESPONDENT.
P5 : COPY OF THE ORDER IN OA NO.86 OF 2015 DTD.30.7.2015.
2ND RESPONDENTS' EXHIBITS
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R2(A): COPY OF THE ORDER DATED 20.1.2015 IN OA NO.86/2015 OF THE
HON'BLE KERALA ADMINISTRATIVE TRIBUNAL
R2(B): COPY OF THE ORDER DATED 6.3.2015 IN OA NO.86/2015 OF THE
HON'BLE KERALA ADMINISTRATIVE TRIBUNAL
R2(C): COPY OF THE ORDER DATED 29.4.2015 IN OA NO.86/2016 OF THE
HON'BLE KERALA ADMINSITRATIVE TRIBUNAL
R2(D): COPY OF THE ORDER DATED 26.5.2015 IN O.P.KAT NO.152/2015 OF
THIS HON'BLE COURT
R2(E): COPY OF THE ORDER DATED 1.6.2015 IN OP.KAT NO.152/2015 OF THIS
HON'BLE COURT
R2(F): COPY OF THE JUDGMENT DATED 16.7.2015 IN OP. KAT NO.152/2015 OF
THIS HON'BLE COURT
RKC
TRUE COPY
PA TO JUDGE
K.SURENDRA MOHAN &
P.V.ASHA, JJ.
OP (KAT) No.7 of 2016
Dated this the 29th day of March, 2016
JUDGMENT
Asha, J.
The Kerala Public Service Commission (hereinafter referred to as 'the PSC' for short) has filed this Original Petition against Ext.P5 order of the Kerala Administrative Tribunal ('the KAT' for short) in O.A.No.86 of 2015, in as much as it directed the PSC to advise candidates from the rank list for appointment under by transfer quota to the post of High School Assistant (Physical Science) (Malayalam) as against the two NJD (non-joining duty) vacancies which were originally reported and advised from the ranked list published for appointment by direct recruitment.
2. Respondents 1 and 2 are candidates included in Annexure-A1 rank list for appointment to the post of High School Assistants (Physical Science) (Malayalam Medium) in Thrissur District, in the quota for by transfer appointment. They filed the Original Application before the KAT seeking directions to the Deputy Director of Education to report three vacancies of HSA (Physical Science) to the District Office of the PSC, Thrissur, so OP (KAT) No.7 of 2016 :2: that all the candidates included in Annexure A1 ranked list, which form part of Ext.P1, could get advice and appointment.
3. Appointment to the post of HSA (Physical Science) is to be made in the ratio of 50:30:10:10 between direct recruits, inter district transferees, promotees and by transfer appointees. According to the party respondents, the cadre strength of HSA (Physical Science) is 152; therefore there is admissibility of only 76 HSAs in the quota for direct recruitment where as there should be 15 teachers appointed in the quota of by transfer appointment. The applicants/party respondents herein alleged that there were 101 direct recruits already occupying the post of HSA (Physical Science) whereas there were only 5 by transfer appointees as against the 15 posts available for them, going by the ratio.
4. The Tribunal after considering the materials on record, found that the cadre strength of the post was 152 and there was excess representation in the quota for direct recruits. It was further found that there were only two NJD vacancies available and those two can be apportioned between the inter district OP (KAT) No.7 of 2016 :3: transferees and by transfer appointees, since PSC hands as well as promotees were in excess of their quota. In these circumstances, the Tribunal directed that the PSC shall advise one candidate against one of the two NJD vacancies -i.e in the OC (Open Competition) turn, pending with it, from the rank list for appointment by transfer. It was further directed not to advise any candidate as against the 2nd NJD vacancy reported to it.
5. The PSC filed this original petition contending that, NJD vacancies cannot be utilised for advice from any rank list other than the one from which the advice was originally made, as the same will violate the principles of reservation apart from causing practical difficulties in working out the rotation turns in the 100 point roster. The two NJD vacancies available were those against which advices were already made from the ranked list for direct recruitment, consequent to reporting of those vacancies for appointment by direct recruitment, for which there was a separate ranked list. One candidate in OC turn and the other in SC (Scheduled Caste) turn appointed from that ranked list -for direct recruitment did not join duty. In such a contingency, OP (KAT) No.7 of 2016 :4: advice and appointment against those NJD vacancies can be made only of another candidate belonging to the respective (OC/reservation ) turn from the very same ranked list in order to maintain the 50% reservation in appointments.
6. We heard Sri.P.C.Sasidharan, learned standing counsel appearing for the PSC, Sri.Elvin Peter, learned counsel appearing for the party respondents and Smt. Anitha Raveendran, the learned Government Pleader.
7. According to the party respondents the original reporting of vacancies for direct recruitment, based on which advice was made by the PSC was far in the excess of their quota and therefore there is nothing wrong in the direction of the KAT.
8. On consideration of the rival contentions, we find that the direction of the Tribunal to advise a candidate from Annexure-A1 ranked list, against the NJD vacancy, was issued, seeing that there was excess representation in the quota for direct recruitment. At the same time, we find merit in the contention of the PSC that the advice of a candidate from Annexure-A1 ranked list against the NJD vacancy of another OP (KAT) No.7 of 2016 :5: ranked list i.e the ranked list for direct recruitment is not practicable as the same will imbalance the 100 point roster to be maintained in accordance with the principles of reservation and rotation as envisaged in Rules 14 to 17 of the Kerala State and Subordinate Service Rules, 1958, causing, unavoidable problems in working out the rotation. As the KAT has found that there was excess representation in the quota for direct recruits and the two vacancies available at the time of disposal of the OA were NJD vacancies, it was only just and proper that there was a declaration that the original reporting of the vacancies which were then available in the form of NJD vacancies, for direct recruitment was illegal, being in excess of the quota set apart for them and the original reporting of those vacancies was treated as cancelled. As far as the vacancy in SC turn is concerned, it is pointed out that the said NJD vacancy is already filled up by another candidate of the same community from the same ranked list. We are therefore required to consider the case with respect to the NJD vacancy in OC turn, alone.
9. We therefore modify Ext. P5 order of the KAT as follows: OP (KAT) No.7 of 2016 :6:
(i) The original reporting of the vacancy of HSA (Physical Science) by the Deputy Director of Education, Trissur, for direct recruitment, which resulted in one NJD vacancy in OC turn, which is referred to by the Tribunal in Ext.P5 order, shall be treated as cancelled.
(ii) The Deputy Director of Education, Thrissur shall re-report one vacancy of HSA (Physical Science) to the District Officer, PSC for advice and appointment from the ranked list Annexure-A1 in the quota for by transfer appointment, within a period of two weeks from the date of receipt of a copy of this judgment.
(iii) The PSC - the petitioner herein shall thereafter advise a candidate from Annexure-A1 rank list in accordance with law, without any further delay.
This O.P.(KAT) is disposed of accordingly.
Sd/-
K.SURENDRA MOHAN JUDGE Sd/-
P.V.ASHA JUDGE rkc