Neena T.C. v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** ## **MONDAY, THE 1ST DAY OF SEPTEMBER 2014/10TH BHADRA, 1936** **OP(KAT).No. 3406 of 2013 (Z)** **-----------------------------** ## **AGAINST THE ORDER/JUDGMENT IN OA 1920/2012 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 06-07-2013** ## **PETITIONER :** **--------------------** **NEENA T.C. AGED 31 YEARS W/O. SHAJI P.V., PUTHIYA VALAPPIL HOUSE NEAR MUNICIPAL H.S.S., KANDANKALI, PAYYANNUR P.O. KANNUR DISTRICT-670 307.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENTS :** **------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE SECRETARY DEPARTMENT OF GENERAL EDUCATION GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR VOCATIONAL HIGHER SECONDARY EDUCATION DEPARTMENT HOUSING BOARD BUILDING, THIRUVANANTHAPURAM-695001.** **3. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM P.O. THIRUVANANTHAPURAM-695 004.** **R2 BY ADV. SR GOVERNMENT PLEADER SRI.MOHAMMED SHAH BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 01-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No. 3406 of 2013 (Z)** **-----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **P1 : COPY OF THE ORDER DTD.6.6.2013 IN OA NO.1920/2012 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **P2 : COPY OF THE ORIGINAL APPLICATION NO.1920/2012 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. P3 : COPY OF THE STATEMENT FILED BY THE 2ND RESPONDENT.** **RESPONDENT(S)' EXHIBITS NIL** **---------------------------------------** **//True Copy//** **PA TO JUDGE** **Rp** ## **ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ================================ OP (KAT) No. 3406 of 2013 ====================** ## **Dated this the 1[st] day of September, 2014** ## **J U D G M E N T** ## Dama Seshadri Naidu, J. Aggrieved by Ext.P1 order dated 6/6/13, rendered in OA No.1920/12 by the Kerala Administrative Tribunal at Thiruvananthapuram, the petitioner, being the applicant therein, approached this Court by filing the present O.P. 2. Briefly stated, the facts of the case are that the petitioner has been working in the 2[nd] respondent department as a Vocational Instructor having possessed the qualification in Agriculture. It is discernible from the record that she had entered into the service on 23/1/2008 and had her probation declared on 23/1/2010. 3. In terms of career advancement, Vocational Instructor is the feeder category for the promotional post of Vocational Teacher, which has three strands of recruitment, viz., by direct recruitment, by transfer and by promotion from the post of Vocational Instructor, in the pool of category I. The rules mandate that the recruitment to the post of Vocational Teacher shall be by transfer from the qualified **OP(KAT) No.3406/13** ## **: 2 :** Vocational Instructors, by transfer from qualified ministerial staff and by direct recruitment at the ratio of 2:1:7. 4. The petitioner approached the Kerala Administrative Tribunal by filing OA No.1920 of 2012 with a grievance that despite such clear demarcation of ratio of recruitment as has been indicated above, the 2[nd] respondent has reported to PSC for direct recruitment 14 vacancies which are meant for eligible Vocational Instructors to be appointed by transfer. On appreciation of the rival contentions, the Administrative Tribunal has eventually disposed of the matter, directing the 2[nd] respondent not to report any further vacancies to PSC without taking a decision on the claims of the Vocational Instructors. 5. In the above factual backdrop, the learned counsel for the petitioner has submitted that, though the Tribunal has in principle accepted the petitioner's contention in all respects especially with regard to the reporting of 14 excess vacancies which were meant for Vocational Instructors, who form the feeder category for recruitment by transfer to the post of Vocational Teacher, it has, however, in the **OP(KAT) No.3406/13** ## **: 3 :** end only given a direction to the 2[nd] respondent to consider the case of Vocational Instructors before reporting any further vacancies. 6. The learned counsel for the petitioner, having placed reliance on the judgment in **State of Kerala v. Krishna Kumar** (2009(3) KLT 274), has strenuously contended that the rules have been specific that out of the total cadre strength of 119, 24 posts ought to be reserved in terms of the ratio fixed in favour of the Vocational Instructors. He has further contended that unless there are no sufficient number of candidates, the said reserved posts cannot be allocated to the candidates of direct recruitment. The learned counsel has drawn our attention to paragraphs 19 and 21 of the said judgment, which, in fact, are to the effect that recruitment different strands shall be strictly confined to the ratio prescribed, as applicable to the cadre strength. Accordingly, the learned counsel for the petitioner has urged the Court to allow the OP as prayed for. 7. _Per contra_ , the learned Government Pleader has submitted that when it comes to determining the ratio of recruitment to the promotional cadres, it is not the cadre strength that matters but only the actual number of incumbents and the vacancies that arise **OP(KAT) No.3406/13** ## **: 4 :** therefrom. He has also submitted that in so far as the petitioner is concerned, her probation was declared on 23/01/2010 when incidentally the very notification in Annexures A4 and A5 dated 16/8/2012 came to be issued by the PSC. Since the Tribunal has given a direction that the case of the Vocational Instructors shall be considered before reporting any further vacancies, the 2[nd] respondent has already recruited five Vocational Instructors by transfer to the posts of Vocational Teacher. According to him, as soon as the vacancies arise, the petitioner's case can also be taken care of. The learned Government Pleader, thus, contends that no prejudice has been caused to the petitioner. 8. Heard the learned counsel for the petitioner, learned Government Pleader for the 2[nd] respondent and the learned standing counsel appearing for the PSC. 9. On a perusal of the entire material, it can be seen that the issue lies in a narrow compass. It is the singular grievance of the petitioner that there have been clear vacancies in the promotional cadre of Vocational Teachers and in terms of the ratio fixed in the rules concerned, 24 posts are earmarked for the candidates from **OP(KAT) No.3406/13** ## **: 5 :** Category I, i.e., Vocational Instructors, one of whom the petitioner is. Though the Kerala Administrative Tribunal has specifically held that reporting of vacancies in excess of what has been allotted for the direct recruitment or in other words, reporting the vacancies which actually belonged to promotional category in favour of the direct recruits cannot be sustained, more pertinently by overlooking the availability of qualified candidates in the feeder category. In any event, the correctness of the above observation has not been disputed or denied either by the Government or by the PSC. Having held that reporting of excess vacancies for direct recruitment was bad, the Tribunal, in our considered view, ought to have further directed the respondents concerned to rectify the said mistake, lest it should amount to giving a judicial imprimatur to a measure sans statutory sanctity. 10. In our view, as has been held in _**Krishna Kumar**_ (supra) by another learned Division Bench of this Court, the allocation of more number of vacancies to one particular category to the exclusion of another category despite the fact that the said category has no sufficient representation is _ex facie_ illegal and unsustainable. **OP(KAT) No.3406/13** **: 6 :** 11. At this juncture, another aspect that is required to be addressed is that the petitioner having completed her probation on 23/1/2010, there is no legal impediment for the authorities to consider her case against a vacancy, which has admittedly arisen subsequent to that by way of notifications in Annexures A4 and A5. In those circumstances, the note appended to Annexure A2 that the question of passing up of the vacancies in favour of direct recruits in the face of the clear availability of candidates in the feeder category does not arise. 12. Under those facts and circumstances, we are of the considered opinion that the Kerala Administrative Tribunal having held that reporting of vacancies belonging to the promotional category for direct recruitment being _ex facie_ illegal, it ought to have further declared that the candidature of the petitioner shall be considered in the vacancies notified through Annexures A4 & A5, instead of directing the authorities to consider the cases of Vocational Instructors in future vacancies. Accordingly, the finding of the Kerala Administrative Tribunal to the extent of directing the 2[nd] respondent to provide promotional **OP(KAT) No.3406/13** **: 7 :** opportunities to the Vocational Instructors in the future vacancies without disturbing the 14 vacancies that have already been reported for direct recruitment is set aside. As a natural corollary, we set aside the Gazette Notification, dt.16.08.2012 (Category No.459/2012) published by the 3[rd] respondent. Consequently, we further direct the 2[nd] respondent to consider the case of the petitioner to be appointed Vocational Teacher by transfer, provided she fulfils all other eligible criteria. No order as to costs. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **DAMA SESHADRI NAIDU JUDGE** Rp //True Copy// PA to Judge