OP(KAT) No.208 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943** ## **OP(KAT) NO. 208 OF 2020** **AGAINST THE ORDER DATED 30.09.2019 IN OA NO.1623/2018 OF KERALA** ## **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT IN O.A.:** **REJITHA.R** **AGED 34 YEARS,W/O.SANTHOSH KUMAR, KARUTHERIL,KALLELIBHAGAM MURI, KARUNAGAPPALLY,KOLLAM-690 518** **BY ADVS. T.G.SUNIL (PRANAVAM) SRI.J.OM PRAKASH SRI.C.X.ANTONY BENEDICT SHRI.T.S.BHARATH KRISHNA SHRI.ADHEEP VIJAY** ## **RESPONDENTS/RESPONDENTS IN O.A.:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE DIRECTOR, DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM-695 035** - **3 THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-695 004** **R1 & R2 BY SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER, R3 BY ADV.SRI.P.C.SASIDHARAN, SC,KPSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No.208 of 2020 2 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **................................................................. O.P.(KAT) No.208 of 2020** _[Arising out of the order dated 30.09.2019 in O.A.No.1623 of 2018 on the file of the KAT, TVM Bench]_ **.................................................................** Dated this the 3[rd] day of March, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** Heard Sri.J.Om Prakash, learned counsel appearing for the petitioner in the O.P., Sri.P.C.Sasidharan, learned Standing Counsel for the Public Service Commission appearing for R3 and Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for R2 & R3. 2. The main matter in issue raised in this O.P. is covered by the dictum laid down by a Division Bench of this Court in the judgment rendered on 09.07.2019 in O.P.(KAT) No.168 of 2019, in the case in _**Revathy V.S. v. Kerala Public Service Commission & Ors. [2019 (3) KHC 940 = 2019 (3) KLT 959]**_ . The review petition filed against the said judgment in _**Revathy**_ ’s case supra has also been dismissed by the Division Bench, as per final order dated 22.08.2019 in R.P.No.744 of 2019, arising out of O.P.(KAT) No.168 of 2019. Therein, it has been held by the Division Bench of this Court that though the State Government O.P.(KAT) No.208 of 2020 3 has issued a ban order as per G.O.(Ms) No.56/2018/G.Edn. dated 09.05.2018, ordering that in view of the revision of the curriculum, as has been undertaken by the State authorities on the basis of the directives of the Central authority, in the Vocational Higher Secondary Stream, the appointment to the categories of posts involved in the present selections in the Higher Secondary Education Department will have to be stopped and decision regarding recruitment can be taken only after re-structuring of posts, etc. The Division Bench of this Court in _**Revathy**_ 's case supra, has held that the said ban order dated 09.05.2018, issued by the State Government, can have prospective effect only and that substantive vacancies in the abovesaid posts in question, which have arisen before 09.05.2018 [date of issuance of G.O.(Ms) No. 56/2018/G.Edn. dated 09.05.2018], have to be utilized for advice and appointment of eligible candidates included in the ranked lists finalized by the Public Service Commission for the various posts in question, as in the instant case. Being aggrieved by the abovesaid verdict of the Division Bench of this Court in _**Revathy**_ 's case supra, the State of Kerala had preferred an S.L.P. for Civil Appeal as S.L.P.(C) Nos.30379-30380 of 2019 before the Apex Court and wherein, final order dated 01.09.2021 has been rendered by the Apex Court, dismissing the said O.P.(KAT) No.208 of 2020 4 S.L.P. and thus affirming the dictum laid down by the Division Bench of this Court in _**Revathy**_ ’s case supra. 3. We have also disposed of a batch of cases as per common judgment dated 28.02.2022 in O.P.(KAT) No.290 of 2019 & connected cases, wherein we have held that the matter in issue is covered by the dictum laid down by the Division Bench of this Court in _**Revathy**_ ’s case supra. Further, it has also been held that all substantive vacancies in the various posts for the ranked list in question, which have arisen before 09.05.2018 [date of the ban order] and which have been duly reported by the appointing authority to the PSC, before the expiry of the ranked list in question and where such vacancy requisition report has reached the PSC authorities before the expiry of the ranked list, then such vacancies could be utilized for advice and appointment process of candidates included in the ranked list prepared by the PSC, etc. We have also issued certain directions for ascertaining as to whether provisional vacancies reported in terms of the interim orders passed by the Tribunal, etc. are substantive vacancies or not, which have arisen before the cut off date of 09.05.2018. 4. In the instant case, Annexure-A1 ranked list has been finalized on 29.12.2017 for the post of Laboratory Technical O.P.(KAT) No.208 of 2020 5 Assistant-Computer Science in which the petitioner has been included as rank No.9. Going by the submissions of the respondent Public Service Commission, it appears that 10 vacancies in the abovesaid post were reported and the Public Service Commission has duly made advice against such 10 vacancies on 10.04.2018. It also appears that the above 10 vacancies reported, which have been utilised for advice on 10.04.2018 are substantive vacancies which have arisen before 09.05.2018. Thereafter, it appears that 5 NJD vacancies have been reported by the appointing authority to the PSC on 03.10.2018. The petitioner is now claiming right to be considered for advice and appointment as against one among the said 5 NJD vacancies. 5. Going by the dictum laid down by the Division Bench of this Court in _**Revathy**_ 's case supra, advice process can be made in the instant case only as against a substantive vacancy which has arisen before 09.05.2018, provided such vacancy has been reported before the expiry of the ranked list. Here the ranked list has expired on 28.12.2020 after running its three year maximum currency period. _Prima facie,_ it may appear that the abovesaid 5 NJD vacancies, which have been reported by the appointing authority to the PSC on 03.10.2018, must have arisen as against 5 out of the 10 O.P.(KAT) No.208 of 2020 6 vacancies utilised for advice earlier on 10.04.2018. 6. The main question is the exact date on which the above 5 NJD vacancies have arisen. We are not fully apprised regarding the factual aspects on that point. It could be that since the advice memos issued as against the said 10 vacancies were made only on 10.04.2018, appointment orders as against such 10 vacancies would have been made thereafter and the NJD process would have occurred after 09.05.2018. If all the abovesaid 5 NJD vacancies have actually arisen after 09.05.2018, then there is no question of the petitioner or other candidates included in the abovesaid ranked list getting the right to be considered for advice. The candidates, like the petitioner, included in Annexure-A1 ranked list will get the right to be considered for advice as against such NJD vacancies only if the date of occurrence of said NJD vacancy is before 09.05.2018. That is a factual aspect which is to be ascertained by the competent authority of the Public Service Commission. Hence, it is ordered that the competent authority of the respondent Public Service Commission may ascertain the correct factual aspects and may ascertain as to whether the abovesaid NJD vacancies had actually arisen before 09.05.2018 or on or after 09.05.2018. If the abovesaid NJD vacancies have arisen before 09.05.2018, then the said vacancies O.P.(KAT) No.208 of 2020 7 have to be utilised for advice and appointment of candidates included in Annexure-A1 ranked list. Process in that regard may be duly completed by the competent authority of the Public Service Commission, without much delay, preferably within a period of six weeks from the date of production of a certified copy of the judgment. The outcome of the decision making in that process shall be duly intimated by the respondent PSC authorities to the petitioner. The impugned Ext.P3 verdict of the Tribunal rendered on 30.09.2019 in the instant O.A.No.1623 of 2018 will stand modified as above. With these observations and directions, the above Original Petition will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** Sd/- **VIJU ABRAHAM JUDGE** cks O.P.(KAT) No.208 of 2020 8 ## **APPENDIX OF OP(KAT) 208/2020** PETITIONER ANNEXURES ANNEXURE-A1 TRUE COPY OF THE MARK LIST FOR THE POST LABORATORY TECHNICAL ASSISTANT-COMPUTER SCIENCE IN VOCATIONAL HIGHER SECONDARY EDUCATION PUBLISHED BY THE 3RD RESPONDENT ON 29.12.2017-CATEGORY NO.124/2014 - ANNEXURE-A2 TRUE COPY OF LETTER DATED 15.05.2018 SENT BY ONE SAVITHA K.B.TO THE 2ND RESPONDENT - ANNEXURE-A3 TRUE COPY OF LETTER NO.155/SC3/2018/G. EDN. DATED 14.06.2018 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT - EXHIBIT P1 TRUE COPY OF OA NO.1623/2018 FILED BY THE PETITIONER BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM EXHIBIT P2 TRUE COPY OF REPLY STATEMENT DATED 31.01.2019 FILED ON BEHALF OF 1ST RESPONDENT EXHIBIT P3 TRUE COPY OF ORDER DATED 30.09.2019 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM IN OA 1623/2018