OP(KAT) NO.250 OF 2022

## **N THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945** ## **OP(KAT) NO. 250 OF 2022** **[AGAINST THE ORDER DTD.20.4.2022 IN OA (EKM) 87/2022 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM]** ## **PETITIONERS/APPLICANTS IN THE O.A.:** - **1 SHEENA JOSON AGED 35 YEARS** **W/O JINSON P.L., RESIDING AT THERATTIL HOUSE, TRINITY HOUSE, TRINITY GARDEN GANDHIJI NAGAR J5, PULLAZHI P.O, MANAKKODI, THRISSUR-, PIN - 680012** - **2 DEEPTHI.K AGED 39 YEARS R/AT CHAITHANYA,CHORODE,KURIKILLAD.PO,VADAKARA VIA,KOZHIKKODE, PIN - 673104** - **3 SHEJINA N.M. AGED 32 YEARS W/O RAMIN M ASHRAF ,AGED 32 YEARS RESIDING AT MULAMPARAMBIL HOUSE, CHITTILAPPAILLY P.O, THRISSUR, PIN - 680551** **BY ADVS. RAGHUL SUDHEESH** **K.J.GLAXON J.LAKSHMI ELIZABETH MATHEW BINI DAS** ## **RESPONDENTS/RESPONDENTS IN THE O.A.:** - **1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF HIGHER EDUCATION, 4TH FLOOR, ANNEXURE 2, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** **O.P.(KAT) NO.250 OF 2022** :-2-: - **2 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM -695004** - **3 THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM THIRUVANANTHAPURAM -695004** - **4 DIRECTOR OF TECHNICAL EDUCATION DIRECTORATE OF TECHNICAL EDUCATION, PADMAVILASOM STREET, FORT P.O. THIRUVANANTHAPURAM – 695023** **Sr.Govt.Pleader Smt.Vinitha.B.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 23.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P.(KAT) NO.250 OF 2022** :-3-: **A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. -----------------------------------------O.P.(KAT) NO.250 OF 2022 'C.R.' -----------------------------------------Dated this the 23rd day of November, 2023** **J U D G M E N T** ## **SHOBA ANNAMMA EAPEN,J:** **The above original petition is filed by the applicants in the O.A. aggrieved by the order dated 20.04.2022 of the Kerala Administrative Tribunal, Thiruvananthapuram Addl.Bench, Ernakulam in O.A.(EKM) No.87/2022 dismissing the application of the applicants/petitioners. The petitioners are the applicants in the O.A. For convenience, the parties are hereinafter being referred to by their respective status before the Tribunal.** **2. The original application was filed by the applicants challenging Annexure A6 Government Order dated 1.7.2021, rejecting the prayer of the** ## **O.P.(KAT) NO.250 OF 2022** :-4-: **petitioners to report substantive vacancies available before the expiry of the ranked list to the Public Service Commission for advice and appointment.** **3. We have heard the learned counsel for the petitioners and the learned Senior Government Pleader.** **4. The applicants are candidates included in Annexure A1 ranked list, for the post of Lecturer in Computer Engineering in the Technical Education Department (Polytechnics), which was brought into force by the Public Service Commission with effect from 06.05.2015. The applicants were ranked 73,81 and 92 respectively in the above list, which ceased to exist as on 05.05.2018. During the life span of the ranked list, the applicants preferred O.A.(Ekm) No.308/2017 for a direction to report all the existing substantive vacancies in the post for appointment and advice from Annexure A1 ranked** ## **O.P.(KAT) NO.250 OF 2022** :-5-: **list. As per Annexure A2 interim order, the Tribunal directed the official respondents to report all the substantive vacancies in existence in the department in the cadre of Lecturer in Computer Engineering. In another O.A.No.611/2018, as per the interim order dated 25.04.2018, the Tribunal directed the Director of Technical Education to provisionally report seven vacancies to the Public Service Commission on or before 05.05.2018, which were also reported. Thereafter, it was found that six substantive vacancies were available and those were reported as substantive vacancies for issuance of advice against the seven provisionally reported vacancies. In O.A.Nos.308 of 2017 and 611 of 2018, the contention was that the vacancies over and above, the aforesaid six vacancies were available and those were not reported against Annexure A1 ranked list. The Tribunal disposed of O.A.(Ekm) No.308 of 2017 and** ## **O.P.(KAT) NO.250 OF 2022** :-6-: **rejected the above contention stating that the ranked list had expired on 05.05.2018 and after the expiry of the ranked list, no direction could be issued to advise candidates, in the light of the Full Bench judgment in Vimalakumari v. State of Kerala [1994(2) KLT 47].** **5. Thereafter, O.A (Ekm)No. 1185/2020 was filed seeking for a declaration that the vacancies in the post of Lecturer in Computer Engineering that had arisen during the life span of Annexure A1 ranked list, but were reported after its expiry, were to be filled up from Annexure A1 ranked list. The above O.A. was disposed of directing the first respondent to consider and pass appropriate orders on the representation preferred by the applicants and the claim of the applicants to invoke Rule 39 Part II of the K.S.& S.S.R. was rejected by the Government as per Annexure A6 order. Challenging Annexure A6, the** ## **O.P.(KAT) NO.250 OF 2022** :-7-: **petitioners herein have filed the original application before the Tribunal.** **6. Annexure A6 order states that the fourth respondent had reported all vacancies earmarked for direct recruitment to the P.S.C. during the pendency of the ranked list and 64 appointments were made against the reported vacancies. It is also stated in Annexure A6 that the subsequent vacancies were earmarked for by-transfer appointments.** **7. The appointments to the post notified are governed by the Kerala Technical Education Service Rules, which provide for a ratio of 13:7 between direct recruitment and by transfer appointment. As discussed earlier, the applicants are ranked Nos.73,81 and 92. The applicants do not have a case, whether they were the next eligible candidates to be advised from the list on working out the turns based on the rotation by the P.S.C.** ## **O.P.(KAT) NO.250 OF 2022** :-8-: ## **8. Paragraphs 6 to 8 of Annexure A6 order are** ## **extracted hereinbelow:-** _“6) The Director of Technical Education in her report read as 14th paper above has reported as follows:_ _The total number of sanctioned posts of Computer Engineering/Campus Hardware Engineering Lecturer in Polytechnic Colleges during 2015 was 135. The ratio of direct recruitment: By-transfer appointment as per Special Rules is 13:7. Hence the ratio of posts shall be direct recruitment: By transfer appointment 88:47. Public Service Commission had advised 43 candidates, later 10 vacancies were reported to PSC on 2016 (6+4). Government vide Government order read as 6th paper above created 20 posts of Computer Engineering Lecturers thereby increasing the cadre strength 161. Out of this 17 vacancies were reported to Public Service Commission for direct recruitment and the ratio of 13: 7 maintained in the cadre. Thus it all vacancies earmarked for direct recruitment was reported to Kerala Public Service Commission during the span of the ranked list under discussion. As per Government order read as 8th paper above four posts of Computer Engineering Lectures were created and allotted to academic years 2018-19 and 2019-20. Also as per Government order read as 10th paper above 30 posts of Computer Engineering Lectures were created and cadre strength is increased to 195. The vacancies that occurred in the span of rank list one vacancy was reported to NJD vacancy and two as NCA vacancies. The vacancies that arose after the expiry of ranked list was also reported to Kerala Public Service Commission. Meanwhile the new All India Council for Technical Education notification for the implementation of 7th pay commission outlines direct recruitment for the entire posts._ _7) Government have examined the matter in detail in the light of the facts and circumstances stated above and with all relevant rules in force. It is observed that Director of Technical Education had reported all vacancies earmarked for direct recruitment to Kerala Public Service Commission during the span of the ranked list. From the said ranked list Kerala Public Service Commission had placed 64 appointments. The vacancies pointed out by the petitioners were those reserved for by transfer appointment as per Special Rules. The procedure for by transfer appointment is a_ ## **O.P.(KAT) NO.250 OF 2022** :-9-: _lengthy process which involves preparation of interse seniority list from different feeder categories, convening of Departmental Promotion Committee and making appointments. In order to confirm that the classes are not affected due to the delay in making by transfer appointments, Director of Technical Education has given permission to Principals concerned to make Guest Lecturer appointments. This in no way had affected the reporting of vacancies to Kerala Public Service Commission for direct recruitment. Violation of Rules, as alleged, could not be established. Moreover Government have created sufficient Lecturer posts in the first and second phase to meet All India Council for Technical Education requirements._ _Besides, this issue does not call for the invoking of Rule 30 K.S. & S.S.R. as the same is invoked in the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service. Neither the applicants come under the category of persons serving in a civil capacity under Government of Kerala nor on the category of candidates for appointment to a service as the appointment to a service is to be made under the advice of KPSC and these applicants are not the candidates advised by KPSC but mere rank holders. In the instant case, making appointments from an expired ranked list would set a bad precedent and hence this cannot be agreed to._ _8) In the above circumstances, Annexure A21 representation read as 12th paper above preferred by the applicant Smt. Sheena Joson is rejected and the directions in the order read as 13th paper above is complied with accordingly.”_ **It is evident that substantive vacancies, which** **were in existence and eligible to be filled up, reserving the ratio of 13:7 between direct recruitment and by transfer appointments were** ## **O.P.(KAT) NO.250 OF 2022** :-10-: **reported to the Kerala Public Service Commission before the expiry of the ranked list.** **9. The learned counsel for the petitioners relied on a decision of the Full Bench of this Court in State of Kerala v. C.A. Sreekantan [1993(1) KLJ 401]. The said judgment has no application to the facts of this case as there was no attempt on the part of the respondents to purposefully deny appointments to the applicants. Moreover, the petitioners do not have a case that the ratio of 13:7 was not followed. The reasoning in Annexure A6 order remains uncontroverted and no reasons have been offered to controvert the findings rendered in Annexure A6. It cannot be said that the authority has acted purposefully and with** _**mala fide**_ **intention in not reporting the vacancies. It is clearly stated that all the substantive vacancies that were eligible and existing, were reported to the P.S.C. before the expiry of the** ## **O.P.(KAT) NO.250 OF 2022** :-11-: **ranked list.** **10. A Division Bench of this Court in Kerala Public Service Commission v. Shaina.C. and others [O.P.(KAT) 441 of 2020 & connected cases] [2022:KER:21673], held that it is elementary that the matters relating to reporting of vacancies are exclusively within the province and domain of the appointing authority/departmental authorities concerned/ Government. It was also held that the Public Service Commission is not in a position to, in any manner, direct the departmental authorities to report vacancies and that would be an intrusion into the province of the appointing authority.** **11. This Court cannot use its authority to enquire about the number of vacancies, or how the vacancies will have to be reckoned. Unless there is manifest arbitrariness, the Tribunal or the court should not interfere. The court cannot undertake the exercise as to reporting the number** ## **O.P.(KAT) NO.250 OF 2022** :-12-: **of vacancies available in the Department concerned. It is not the duty of the Court or the Tribunal to look into those matters. Accordingly, we do not find any reason to interfere with the order passed by the Tribunal.** **The Original Petition (KAT) is dismissed.** **sd/-** **A.MUHAMED MUSTAQUE, JUDGE** **sd/-** **SHOBA ANNAMMA EAPEN, JUDGE** **MBS/-** ## **O.P.(KAT) NO.250 OF 2022** :-13-: ## **APPENDIX OF OP(KAT) 250/2022** - **PETITIONERS' ANNEXURES:Annexure A1 TRUE COPY OF THE RANKED LIST NO. 180/2015/SSVI AGAINST CAT NO. 212/2009 DATED 06.05.2015.** - **Annexure A2 TRUE COPY OF THE INTERIM ORDER OF THE HON'BLE TRIBUNAL IN O.A (EKM) 308/2017 DATED 11.04.2018.** - **Annexure A3 TRUE COPY OF THE ORDER OF THE HON'BLE TRIBUNAL DATED 06.06.2019 IN O.A. 611/2018.** - **Annexure A4 TRUE COPY OF THE ORDER OF THE HON'BLE TRIBUNAL DATED 23.09.2019 IN O.A (EKM) 308/2017.** - **Annexure A5 TRUE COPY OF ORDER OF THE HON'BLE TRIBUNAL IN O.A (EKM) 1185/2020 DATED 27.10.2020.** - **Annexure A6 TRUE COPY OF G.O. (RT) NO: 869/2021/HEDN DATED 01.07.2021 OF THE HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA.** - **Annexure A7 TRUE COPY OF THE ORDER OF THE HON'BLE TRIBUNAL IN C.P (EKM) 44/2021 IN O.A (EKM) 1185/2020 DATED 05.10.2021.** - **Annexure A8 TRUE COPY OF THE DECISION OF THIS HON'BLE COURT DATED 07.10.2020 IN KERALA PUBLIC SERVICE COMMISSION VS. SHEEJAMOL [2020 (5) KHC 555].** - **Exhibit P1 TRUE COPY OF THE O.A (EKM) NO.87/2022 DATED 13.01.2022 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** - **Exhibit P2 TRUE COPY OF THE ORDER OF HON'BLE TRIBUNAL DATED 20.04.2022 IN O.A. (EKM) NO. 87/2022.**