S.SHERIFF v. STATE OF KERALA

5. SMT.DEEPTHI GANGADHARAN, DHANYALAYAM.P.O,VENGA,SASTHAMCOTTA KOLLAM DISTRICT,PIN-690521.

6. THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION,KOLLAM-690001.

7. SMT.SMITHA VENUGOPAL, W/O.HARIDAS,NEDUVILAYIL,PUTHENVEEDU PATTOMTHURUTHU.P.O,MANTROTHURUTHU,PERINAD VIA. ASRAMAM,KOLLAM,NOW RESIDING AT RESIDENCY NAGAR 149 KOLLAM EASTVILLAGE,ASRAMAM,KOLLAM-691002.

8. SMT.RETHY DEVI.R, W/O.PADMAKUMAR.A,PANCHELIL VEEDU,SNEHA NAGAR-70 ULIYACOVIL.P.O, KOLLAM-691019.

9. SHRI.SAJI.J, S/O.JOHN.D,KIZHAKKETHIL VEEDU,KOCHIDAPPUVILA.P.O ODANAVATTOM.P.O,KOTTARAKKARA,KOLLAM. BY GOVERNMENT PLEADER A SRI.P.I. DAVIS BY SRI.P.C.SASIDHARAN, SC, KPSC THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 09-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S) EXHIBITS EXT-P1 TRUE COPY OF THE WP(C) 19541/2007 FILED BY THE PETITIONER AND 2 0THERS EXT-P1 NO.87/2005)PUBLISHED IN THE GAZETTE DATED 8.6.2005. TRUE COPY OF THE NOTIFICATION (CATEGORY EXT-P2 TRUE COPY OF THE RANKED LIST. EXT-P3 TRUE COPY OF THE LETER NO.QR3(2)/5899/06 DATED 21.12.2006 OF THE K.P.S.C.,KOLLAM EXT-P4 TRUE COPY of the G.O.(MS)NO.143/02.G.EDN DATED 4.6.2002. EXT-P2 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 9.11.2010 FILED BY THE 6TH RESPONDENT EXT-R6(A) TRUE COPY OF THE TABLE SHOWING THE VACANCY POSITION OF LPSA IN KOLLAM DISTRICT AS ON 30.4.2010. EXT-P3 TRUE COPY OF THE ADDITIONAL COUNTER AFFIDAVIT DATED 19.3.2011 FILED BY THE 6TH RESPONDENT EXT-P4 TRUE COPY OF THE REVIEW APPLICATION NO.2/2012 IN T.A.1503/2012 FILED BY THE PETITIONER BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL. ANNEXURE A1 TRUE COPY OF THE INTERIM ORDER DATED 27.4.2010 OF THE HON'BLE HIGH COURT IN I.A.5711/201O IN WP (C)19541/2007. ANNEXURE A2 LETTER NO.A7- TRUE COPY OF THE 3054/12/L.DIS.DATED 17.3.2012 OF THE PUBLIC INFORMATION OFFICER ATTACHED TO THE OFFICE OF THE 6TH RESPONDENT ADDRESSED TO ONE SHRI.AKHILESH.N. ANNEXURE A2(A) TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE A2. ANNEXURE A3 TRUE COPY OF THE LETTER NO.A/4750/10 DATED 1.1.2011 OF THE EDUCATIONAL OFFICER,SUB DISTRICT EDUCATIONAL OFFICE,PUNALUR, ENCLOSING THE DETAILS OF THE NUMBER OF PROTECTED TEACHER. ANNEXURE A3(A) TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE A3. ANNEXURE A4 TRUE COPY OF THE 35543/2O07 OF THE HON'BLE HIGH COURT OF KERALA. JUDGMENT IN WP(C) ANNEXURE A5 TRUE COPY OF THE INTERIM ORDER DATED 22.3.2011 OF THE HON'BLE HIGH COURT OF KERALA IN I.A.1421/2011 IN WP(C) 19541/2007. ANNEXURE A6 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA, IN O.P.20887/2012 ANNEXURE A7 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN W.A.2136/2003. ANNEUXURE A8 TRUE COPY OF THE ORDER DATED 4.4.2011 OF THE HON'BLE HIGH COURT IN I.A.5968/2011 IN WP(C)3734/2009. ANNEXURE A9 TRUE COPY OF THE JUDGMENT DATED 19.7.2011 OF THE HON'BLE HIGH COURT IN WP(C)3734/2009 CERTIFIED COPY OF THE ORDER DATED 9.2.2012 OF THIS HON'BLE TRIBUNAL IN T.A.1503/2012. APPLICATION FOR CONDONATION OF THE DELAY. EXT-P5 TRUE COPY OF THE ORDER DATED 18.6.2012 IN REVIEW APPLICATION NO.2/2012 IN T.A.1503/2012 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXT-P6 TRUE COPY OF THE LETTER NO.QR III(2) 1852/05 DATED 7.5.2010 OF THE DISTRICT OFFICER,DISTRICT OFFICE,KERALA PUBLIC SERVICE COMMISSION, KOLLAM ADDRESSED TO THE 6TH RESPONDENT. EXT-P7 TRUE COPY OF THE ORDER NO.A4-27155/06 DATED 2.5.2010 OF THE 6TH RESPONDENT APPOINTING L.P.SCHOOL ASSISTANTS (MALAYALAM)IN THE GENERAL EDUCATION DEPARTMENT,IN KOLLAM DISTRICT FROM THE RANK LIST PREPARED BY THE KERALA PUBLIC SERVICE COMMISSION. EXT-P8 TRUE COPY OF THE ORDER NO.A4-27155/06 DATED 3.6.2011 OF THE 6TH RESPONDENT APPOINTING L.P.SCHOOL ASSISTANTS (MALAYALAM)IN THE GENERAL EDUCATION DEPARTMENT,IN KOLLAM DISTRICT FROM THE RANK LIST PREPARED BY THE KERALA PUBLIC SERVICE COMMISSION. Manjula Chellur,Ag. CJ., & A.M. Shaffique, J. ................................................. O.P. (KAT) No. 2589 of 2012 .................................................. Dated: 9-08-2012 JUDGMENT Manjula Chellur,Ag. CJ., Heard learned counsel for petitioner and learned Government Pleader.

2. We have gone through the order of Kerala Administrative Tribunal, (“KAT” for short) which is impugned before us apart from other relevant documents which were produced as Annexures 6,7 and 8 upon which the learned counsel for the petitioner is placing reliance. It is not in dispute that T.A. 1503 of 2012 came to be disposed of holding it as become infructous. Thereafter, a review application was filed. Hence, a O.P. (KAT) No. 2589 of 2012 -:2:- detailed order came to be passed in Review Application 2/ 2012 by order dated 18-6-2012.

3. According to the petitioners, who were applicants before KAT, there were totally 67 vacancies as on 30-4-2010. Therefore, if all the vacancies were reported, the petitioners would have also got advice from the Commission out of the ranked list which expired on 30-4-2010. So far as expiry of rank list on 30-4-2010, we have no dispute. The only dispute is with regard to what were actual vacancies available for reporting to Commission as on 30-04-2010. According to learned Government Pleader, they have clarified entire position in the counter affidavit filed in W.P.C. 19541 of 2007. This Writ Petition, later on transferred to KAT, therefore, it was re-numbered as T.A. before KAT. At paragraph 4 of this counter affidavit ( page 49) the exact vacancy position is shown.

4. According to Department, though there were vacancies O.P. (KAT) No. 2589 of 2012 -:3:- in the position of LPSA numbering 67, the actual vacancies available for reporting were only 40 which again got reduced to 26 on account of restriction to report only 65 of net vacancies available. According to them, by 30-4-2010, 25 vacancies were already reported to PSC. Therefore, as on the date of expiry of rank list there were no actual vacancies that could be reported to PSC. At page 55 of subsequent affidavit in the very same Writ Petition, they have also clarified the exact position at paragraphs 3 and 4 which reads as under:- “3. It may kindly be noted that 25 vacancies were already reported to PSC out of which 12 candidates were advised by PSC and they were appointed in various schools. Only 11 candidates have joined duty there. Balance one NJD vacancy was also reported to PSC. These 14 LPSA vacancies which were already reported to PSC were still pending for making appointment due to non receipt of advice from PSC authorities. The number of vacancies set apart for Inter Department Transfer and by transfer recruitment had already been filled up in time. It reveals that only one vacancy can be set apart for reporting to the PSC.

4. In G.O. (Ms) 68/2010 dated 16-4-2010, it is directed that all the vacancies of Panchayath schools should be reported to PSC by the concerned Deputy Director of Education's based on the prescribed rules allotted for them. As on 30-04-2010, O.P. (KAT) No. 2589 of 2012 -:4:- details of LPSA vacancies in Panchayath schools of Kollam District are noted below. Number of sanctioned post of LPSA - 43 Number of LPSA working as on 30-04-2010 - 36 Number of vacancies - 7 Reading of the above paragraphs clarifies the vacancy position but no vacancy as such was available was to be reported. This is what the submission made before KAT by the learned G.P. placing reliance on the statements of them in the two counter affidavits as stated above. The Tribunal, after taking into account all these facts with reference to available 26 vacancies and also the contention that there ought not to be reduction of vacancies in that academic year as the Rules provide for continuation of service even in the case of reduction of strength of teaching faculty upto the end of academic year was considered and after referring to Chapter 23 Rule 12 of Kerala Education Rules, opined that the provision to continue the service of the teachers up to the end of academic year applies to the existing teachers who are already in O.P. (KAT) No. 2589 of 2012 -:5:- service but does not apply to vacancy position as such. Reading of Rule 12 clearly indicates that by 15th July of every year the Educational Officer has to finalise the strength of the teaching faculty depending upon the strength of the pupils available in each faculty needed in a particular school and, thereafter, if the teachers are found in excess they should be continued till the end of that academic year. This principle cannot be applied to the case of the present applicants.

5. We are not concerned with the teachers who are already in service. We are concerned with the position of vacancies available as on 30-4-2010. This Rule definitely indicates that no teachers who are already in service should be put to inconvenience or embarrassment by terminating their service on account of reduction in strength of teaching faculty by the report of Educational Officer but it does not mean that actual vacancies available have to be filled up before the end of that O.P. (KAT) No. 2589 of 2012 -:6:- academic year. The Tribunal was justified in saying any appointment of teacher after 31st March is for the next academic year and it can only validly made according to the staff fixation of the new academic year. The academic year so far as the present case is concerned is from 1-6-2010 to 31-3-2011. We are concerned with the vacancy position as on 30-4-2010.

6. Having regard to the above explanation, we are convinced with the stand of learned Government Pleader by placing reliance on Rule 12. Chapter XXIII of the Kerala Education Rules, that there was no duty cast upon the Educational Officer to report vacancies available as on 30-4-2010 as they could do it only for the next academic year. In that view of the matter, having regard to the explanation offered by the Department, KAT was justified in saying there was no right as such vested with the petitioners to claim or compel the department to report vacancies as such, as there were no vacancies O.P. (KAT) No. 2589 of 2012 -:7:- at all to be reported as all the vacancies that were to be reported were already reported by the Department to P.SC. We find no good ground to interfere with the order of the Tribunal. Therefore petition deserves to be dismissed. Accordingly, it stands dismissed. Dated this the 9 th day of August, 2012. Sd/-Manjula Chellur, Acting Chief Justice. Sd/-A.M. Shaffique, Judge. ani.