Kerala High Court
Sindhu.K.M vs The State Of Kerala on 24 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
OP(KAT) NO. 191 OF 2019
AGAINST THE JUDGMENT IN OA 194/2017 OF KERALA ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH
PETITIONER
SINDHU.K.M (R.119)
AGED 36 YEARS, W/O.MURALEEDHARAN,
MUTHAVATTUMMAL HOUSE, CHELANNUR P.O,
CALICUT-673616.
BY ADVS.
KALEESWARAM RAJ,VARUN C.VIJAY,A.ARUNA,
RIYA RAYMOL IYPE,MAITREYI SACHIDANANDA HEGDE
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED TO REPRESENTED BY ITS SECRETARY,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT,THIRUVANANTHAPURAM-KERALA-695001.
2 DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
KOZHIKODE, KERALA-673001.
3 THE DIRECTOR OFFICER,
KERALA PUBLIC SERVICE COMMISSION,
DISTRICT OFFICE, CIVIL STATION,
KOZHIKODE, KERALA 673020.
4 SUMUNAS P
(RANK NO.121), AGED 34 YEARS,
S/O. MOOSA V.V, PUTHALATH HOUSE,
KOZHUKKALLUR P.O, MEPPAYUR(VIA) 673524.
5 SUNITHA K.T,
(R134), AGED 37 YEARS, KILAYILTHAZHA HOUSE,
IRINGATH P.O-673523.
O.P.(KAT) No. 191/2019
..2..
6 SUJITH K.T,
AGED 36 YEARS, (R-150), S/O. ACHUTHA VARIER,
KILIYILTHAZHA HOUSE, IRINGATH P.O, PAYYOLI
ANGADI(VIA)-673523.
7 SHOMA K
(171), AGED 37 YEARS, W/O. VIBIN R.C., SARITHA
HOUSE, MOODADI P.O, KOYILANDI VILLAGE-673307.
8 SINI ABDULLA G(175)
AGED 37 YEARS, W/O. SHABEERALI T, SHABEER MANZIL,
NADUVANNUR-P.O, 673614.
9 AMRUTHA R.G,
(R.182), AGED 30 YEARS, W/O. ANAND LALU, THANDAYIL
HOUSE, KARAYAD, MEPPAYYUR, CALICUT-673524.
10 T.K. GEETHA,
(R.186), AGED 35 YEARS, W/O. RAJAN, PASHNAMBALATHIL
HOUSE, NADUVANNUR P.O, KOZHIKODE DISTRICT-673614.
11 RASHINA K
(R-2014), AGED 33 YEARS, W/O. SUBASH BABU K,
PEEDIKAKANDY HOUSE, POONATH P.O, NADUVANNUR
VILLAGE, KOZHIKODE-673614.
SRI.B.UNNIKRISHNA KAIMAL, GP
ADV SMT. ALEENA NELSON
SRI.P.C.SASIDHARAN, SC
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 17.3.2021, THE COURT ON 24.06.2021 DELIVERED
THE FOLLOWING:
O.P.(KAT) No. 191/2019
..3..
ALEXANDER THOMAS & K.BABU, JJ.
------------------------------------------------------------------------------
O.P.(KAT) No. 191 of 2019
[arising out of impugned final order dated 5.12.2018 in
O.A. (Ekm) No. 194/2017 on the file of the KAT, EkmBench]
-------------------------------------------------------------------------------
Dated this the 24th day of June, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the aforecaptioned Original Petition (KAT) filed
under Articles 226 & 227 of the Constitution of India are as follows
{See page 8 of the paper book of the OP(KAT)} :
"(1) To allow this OP(KAT) and to set aside Ext.P1 order of the Hon'ble
Kerala Administrative Tribunal in OA No.194/2017 and to allow the
said O.A as prayed for;
And
(ii) To issue such other orders, directions or writs as may be prayed for
and that this Hon'ble Court may deem fit under the facts and
circumstances of the case."
2. Heard Sri.Kaleeswaram Raj, learned counsel appearing for
the petitioner, Sri.B.Unnikrishna Kaimal, learned Government Pleader
appearing for official respondents 1 & 2, Sri.P.C.Sasidharan, learned
Standing Counsel for the Kerala Public Service Commission, appearing
for R-3 and Smt.Aleena Nelson, learned counsel appearing for
contesting respondent No.4. Though service of notices on R-5 to R-11
has been duly completed, the said parties have not entered appearance.
O.P.(KAT) No. 191/2019
..4..
3. The prayers in the instant Ext.P-2 Original Application O.A.
(Ekm) No.194/2017 filed by the sole petitioner herein as 1 st applicant
and 9 others, on 22.1.2017 before the KAT, Ernakulam Bench, are as
follows: {See pages 32 & 33 of the paper book of this OP(KAT)}
"i. To direct the respondent No.3 to advise the name of the applicants from
Annexure A1 rank list to the post of Lower Primary School Assistant
(Malayalam Medium) in the Education Department Kozhikode subject
to the communal rotation contained in Rule 14 to 17 of KS & SSR and to
direct the second respondent to appoint the Applicants to the post of
Lower Primary School Assistants (Malayalam Medium) in Kozhikode
Education Department.
ii. To direct the second respondents to determine and report all substantive
vacancies of LPSA (Malayalam Medium) in Kozhikode district to Kerala
Public Service Commission that arose before 30.5.2016 enabling the
third respondent to advise and consequently to appoint the applicants to
the post of LPSA (Malayalam Medium) in Education Department.
iii. Any other appropriate order or direction this Hon'ble Tribunal deem fit
in the interest of justice. "
4. Ext.P-3 is the reply statement dated 16.3.2017 filed by the
appointing authority (R-2 herein/Deputy Director of Education) and
Ext.P-4 is the additional reply statement dated 20.7.2017 filed by R-2
herein before the Tribunal.
5. The Tribunal after hearing both sides has rendered the
impugned Ext.P-1 final order dated 5.12.2018 dismissing the above O.A.
on the ground that, out of the 177 vacancies provisionally reported by
the 2nd respondent appointing authority to the 3rd respondent PSC
before the expiry of rank list, 102 vacancies have been allotted to PSC
hands for direct recruitment from the above list, and that 75 vacancies
O.P.(KAT) No. 191/2019
..5..
were utilized for inter district transfer as per the rules, and that Anx.A-1
rank list which came into force on 18.11.2011, has expired on 17.5.2016
and further that the prayer of the petitioner for advising further
candidates from the rank list cannot be granted as any further
vacancies reported by the appointing authority to the PSC after the
expiry of rank list, cannot be utilized for advice and appointment of
candidates from such expired rank list, and that thus the prayer of the
plea of the applicants to direct the PSC to advise candidates from the
expired rank list as against 29 more vacancies is legally impermissible,
etc.
6. Though there are 9 applicants in Ext.P-1 O.A., only the first
applicant therein has approached this Court by filing the instant
original petition as the sole petitioner for impugning Ext.P-1 final order
rendered by the Tribunal on 5.12.2018. The petitioner herein claims to
be included in Anx.A-1 rank list for selection and appointment to the
post of Lower Primary School Assistant (LPSA) Malayalam Medium,
General Education Department, Kozhikode District, which came into
force on 18.11.2011. The 9 applicants would say that they have been duly
assigned between rank numbers 119 to 204 in the said rank list. It is
common ground that, going by the PSC Rules of Procedure, ordinarily
the life span of the list is one year and its outer time limit is 3 years.
O.P.(KAT) No. 191/2019
..6..
However, due to extensions, the rank list was in force even beyond the
3 year period, and it has expired on 17.5.2016. One of the complaints of
the applicants is that not all the substantive vacancies, which are
apportioned in the direct recruitment quota, have been duly reported
by the appointing authority to the PSC, etc. By Anx.A-7 interim order
dated 18.2.2016 rendered in yet another O.A., O.A.(Ekm) No. 309/
2016, the Tribunal had directed the appointing authority (DDE) to
report provisionally 68 vacancies of LPSA (Malayalam Medium) to the
PSC and further Anx.A-8 interim order was also issued by the Tribunal
on 10.3.2016 in O.A. (Ekm) Nos. 116/2015 & 277/2016 by directing the
appointing authority to provisionally report 109 vacancies to the
appointing authority. Anx.A-9 is the communication issued by the 2 nd
respondent DDE, which would show that the abovesaid 177 vacancies
(viz, 68 covered by Anx.A-7 + 109 vacancies covered by Anx.A-8) were
provisionally reported. The Tribunal in the impugned Ext.P-1 final
order has found on the basis of the pleadings of the 2 nd respondent as
per Exts.P-3 and P-4 reply statements that, out of above vacancies, 99
vacancies and 3 more vacancies have been duly utilized for advice of
candidates for direct recruitment from the above list, before the expiry
of rank list on 17.5.2016, thus totalling to 102 vacancies. Further, the
Tribunal has noted that as per the norms providing for various methods
O.P.(KAT) No. 191/2019
..7..
of appointment, 65% is set apart for direct recruitment of PSC hands
and 5% is set apart for the method of by-transfer appointment and 30%
is set apart for inter district transfer hands. Further that, going by the
facts and figures pleaded by the 2nd respondent as well as provided in
Anx.A-9 letter, out of the cadre strength in the post of LPSA Malayalam
Medium, General Education Department, Kozhikode District, 65% for
PSC direct recruitment comes to 780 whereas 782 direct recruits are
already in position and thus 2 are in excess. {See page 65 of the paper
book of this OP(KAT)} Further that, 5% for by-transfer appointment comes
to 60 posts and only 1 incumbent is working in that quota, and 59
personnel are in dearth in the by-transfer quota, whereas the 30% inter
district transfer quota will come to 360, out of which, only 240
incumbents are working and 120 personnel are in dearth. Further, it is
clearly stated by the 2nd respondent Deputy Director of Education, more
particularly in Anx.A-9, that in the category of LPSA/UPSA there are
150 inter district transfer applications in the common list waiting for
appointment in the said district, ie. Kozhikode district and 50% of the
applicants in the inter district transfer list have to be appointed in the
available LPSA vacancies, and 50% applicants are to be appointed in
the UPSA vacancies. Further it is also stated in Anx.A-9 that the
Government has issued directives as per Government letter No.J-
O.P.(KAT) No. 191/2019
..8..
3/39986/2015/G.Edn dated 14.10.2015 directing the authorities
concerned to strictly follow the cadre strength ratio in all teaching
posts. Anx.A-9 would further show that the net vacancy of 174 is to be
apportioned by setting apart 75 vacancies for inter district transfer
appointees as LPSA and 99 vacancies could be set apart for PSC direct
recruitment, and that as there is no valid list for by-transfer
appointments, no vacancy out of the said net vacancies of 174 could be
utilized for by-transfer appointments and that hence out of the net 174
vacancies, 99 vacancies could be utilized for direct recruitment, and 75
vacancies have to be necessarily utilized for inter district transfer
appointees as LPSA.
7. So, the specific case of the 2nd respondent appointing
authority is that they have provisionally reported 177 vacancies to the
PSC only for provisional compliance of the interim orders issued by the
Tribunal, and that out of the said 177 vacancies, 99 vacancies have been
utilized for direct recruitment of PSC hands from the above list and that
75 vacancies have been utilized for inter district transfer appointees as
LPSA. Further that 3 vacancies in existence were also reported and it
appears that advices have already been as against those 3 vacancies as
well, as can be seen from the factual aspects referred to in paras 5 & 6 of
the impugned Ext.P-1 final order rendered by the Tribunal.
O.P.(KAT) No. 191/2019
..9..
8. One of the main contentions urged on behalf of the
petitioner is that the teacher-student ratio for the academic year 2015-
2016 is 1:30 based on prescriptions of the State Government in G.O.(P)
No. 29/ 2016/G.Edn dated 29.1.2016 and hence the cadre strength was
increased from 1278 posts to 1307 posts and that the cadre strength
stood as 1278 posts, the number of vacancies available was 177. Further
that, necessarily on increase of the total cadre strength, the total
number of vacancies available will only increase from 177 to 206, and
that out of the increase in vacancies as 206, 65% of the same ie, 134
vacancies out of the 206 vacancies, have to be filled up by PSC direct
recruits, and that in the instant case, only 102 vacancies were filled up
by PSC hands, instead of filling up of 134 vacancies among the 206
vacancies during the academic year 2015-2016, and that applying the
ratio of 65:30:5 in the 206 vacancies, altogether 134 vacancies should
have been utilized for PSC direct recruitment (65% of 206 vacancies =
134), etc.
9. The petitioner would also place reliance on Anx.A-9 letter
dated 16.7.2016. Page 1 of Anx.A-9 letter would show that the staff
fixation process for the academic year 2015-2016 has been completed in
Kozhikode District on the basis of the 5 th reference mentioned therein,
viz GO(P) No.29/2016/G.Edn dated 29.1.2016. Further, Anx.A-9 would
O.P.(KAT) No. 191/2019
..10..
also show that the total sanctioned post in the cadre strength of LPSA
during 2015-16 is 1278 posts and that, at that time 1101 incumbents
were already holding the posts of LPSA, and so the vacancies appear to
be 177 (viz, 1278 - 1101 = 177). It is common ground that the 2 nd
respondent had provisionally reported the 177 vacancies (68 vacancies
covered by Anx.A-7 interim order + 109 vacancies covered by Anx.A-8
interim order to the PSC). As already stated herein above, 3 vacancies
which were in existence, were also reported as can be seen from the
factual aspects referred to para 6 on page 4 of the impugned Ext.P-1
final order of the Tribunal. It is further stated in page No.2 of Anx.A-9
that the net vacancy is 174. The only dispute is as to the application of
the ratio. Page 2 of Anx.A-9 would clearly and categorically show that
at that time, 150 applications were already received and pending for
consideration of inter district transfer appointments in Kozhikode
district, which is a common list for both LPSA and UPSA categories. As
per the instructions, 50% of the applicants in the inter district transfer
list is to be set apart for LPSA appointments and the balance 50% of the
applicants is to be considered for UPSA appointments. Thus, 75 LPSAs
were already awaiting for appointments by the method of inter district
transfer as LPSA in Kozhikode District at that time. The quota set apart
for inter district transfer is 30% and Anx.A-9 would show that only 240
O.P.(KAT) No. 191/2019
..11..
incumbents were in position in the inter district transfer quota, and
about 120 personnel were thus in dearth in that quota, etc. It is on this
basis that the appointing authority has taken the considered decision
that as against the 177 vacancies provisionally reported, 75 have been
duly allotted to the inter district transfer quota, as 75 candidates were
duly waiting for posting and appointment in that quota at that time.
Hence, in view of abovesaid aspects 99 vacancies, out of 177 vacancies
have been allotted for direct recruitment from the PSC list and 3
vacancies were already reported to the PSC, and thus altogether 102
vacancies have been duly allotted in the direct recruitment quota, as
against the said 177 vacancies provisionally reported. Hence, the
appointing authority has taken the considered stand that, out of the
said 177 vacancies provisionally reported, 102 vacancies (99 + 3 = 102)
have been utilized for advising candidates from Anx.A-1 rank list, and
the balance 75 vacancies have been utilized for inter district transfer
appointments.
10. The applicants in the O.A. and the sole petitioner in the
present O.P., have not challenged the appointments given to the inter
district transferee hands to the abovesaid 75 vacancies out of the 177
vacancies provisionally reported and 102 vacancies have been thus
utilized for direct recruitment of PSC hands. Hence, the plea of the
O.P.(KAT) No. 191/2019
..12..
petitioner that direction should be issued to the PSC to make advices
for appointments as against additional vacancies (134 vacancies as
contended by the petitioner - 102 vacancies already utilized for advice)
could not have been granted by the Tribunal for the simple reason that
the same could be considered only if such additional vacancies are
reported by the appointing authority to the PSC, and even if such
direction is given, the same cannot be utilized for advice and
appointment of candidates from Anx.A-1 rank list, which has already
expired on 17.5.2016, and it is absolutely illegal to issue direction to
report vacancies after the expiry of rank list, for effectuating advice of
candidates from expired list as against such vacancies. That apart, the
applicants in the O.A and the sole petitioner in the O.P have not
challenged the 75 appointments made in the inter-district transfer
quota, out of the total 177 vacancies provisionally reported and there is
no prayer for quashment of any such appointments and none of those
affected persons are made parties either before the Tribunal or before
this Court. In view of the above aspects, it is crystal clear that all the
pending vacancies provisionally reported have already been utilized for
appointments as aforesaid and in view of the expiry of the rank list,
there is no question of issuing any directions to the PSC to make advice
of candidates as against any vacancies reported after the expiry of the
O.P.(KAT) No. 191/2019
..13..
rank list. On this sole ground, it is only to be held that no interdiction
is warranted as against the considered verdict of the Tribunal at
Ext.P-1. That apart, from the abovesaid aspects, it cannot be said that
the action of the appointing authority in allotting 75 vacancies for inter-
district transfer candidates, who were then awaiting for such
appointments at that time, more particularly, as only 240 incumbents
alone were in position in the said inter-district transfer quota at that
time. A further contention has also been raised by the petitioner that
even if assumed that there are only 177 vacancies available as on the
date of expiry of the rank list, then the number of vacancies that should
have been utilized for direct recruitment of PSC hands should be 113
vacancies out of the 174 or 177 vacancies, as the same is to be worked
out on 65% of those vacancies and that therefore, 11 more candidates
should be advised by the PSC for appointment of candidates in the
above rank list in question.
11. The petitioner has raised yet another contention that the
total sanctioned strength for the Academic Year 2015-16 based on the
staff fixation process is 1307 posts, going by the prescriptions in G.O(P)
No. 29/2016/G.Edn. dated 29.01.2016 and that 177 vacancies arrived at
in Anx.A-9 is on the premise that the total sanctioned strength is only
1278 posts. That, indisputably for the Academic Year 2015-16, going by
O.P.(KAT) No. 191/2019
..14..
the prescriptions in the above G.O dated 29.01.2016, the teacher-
student ratio is 1:30 and therefore, the sanctioned posts in the cadre of
LPSA (Malayalam Medium) in Kozhikode District would be 1307 posts
and hence, the sanctioned strength is increased from 1278 to 1307 and
that the ratio for the various methods of appointments has been applied
as against the arising vacancy position and not as against the total cadre
strength and if that be so, the vacancy that has arisen is 206 and that
65% of 206 vacancies would be 134 vacancies, which should have been
filled up by direct recruitment from Anx.A-1 rank list, whereas only 102
vacancies have been utilized for such direct recruitment and that
therefore, directions should be issued to the PSC to advise candidates as
against the balance vacancies, etc.
12. We are not prepared to countenance the said pleas of the
petitioner for reasons more than one. It is clearly stated in page No.1 of
Anx.A-9 letter dated 16.07.2016 issued by R2 (DDE/appointing
authority) that the staff fixation process for the Academic Year 2015-16
has been made on the basis of the prescriptions stipulated in G.O (P)
No.29/2016/G.Edn. dated 29.01.2016 referred to as fifth paper therein
and that thus the total sanctioned posts in the cadre of LPSA during
2015-16 is 1278 posts. Whereas, the petitioner would contend in this
O.P. filed before this Court that based on the prescriptions in the said
O.P.(KAT) No. 191/2019
..15..
G.O dated 29.01.2016, the cadre strength should be taken as 1307. We
are not in a position to hold that the factual figures shown in Anx. A-9
are incorrect. No pleadings with supporting materials are raised in the
OA filed before the Tribunal that the facts and figures in Anx. A-9 are
wrong and incorrect. Ordinarily, the minimum life span of the rank list
is one year, subject to an outer time limit of three years. In the instant
case, extensions have been granted to the rank list and the same has
expired on 17.05.2016. Even if, the abovesaid contentions are assumed
to be correct, since all the abovesaid 177 vacancies provisionally
reported have been utilized for appointments in the manner referred to
hereinabove, there is no question of granting any relief to the petitioner
in a case like this. The Tribunal has also noted in para 7 of Ext.P-1 final
order that the staff fixation for the subsequent years 2016-17 & 2017-18
have been duly completed on 15.07.2017 and 205 vacancies had
occurred 15.07.2017, etc. Even if the due date for staff fixation for the
Academic Year 2016-17 is taken as 15.07.2016, the same will not have
any bearing on the facts of this case, inasmuch as the Academic Year
2016-17 has commenced only on 01.06.2016, whereas the rank list has
expired on 17.05.2016, even before the commencement of the Academic
Year 2016-17. The said findings of the Tribunal also cannot be held as
illegal or unreasonable.
O.P.(KAT) No. 191/2019
..16..
13. Yet another contention has been raised that 21 non joining
of duty (NJD) vacancies were also reported. The learned Standing
Counsel for the Public Service Commission has pointed out that the
said 21 NJD vacancies were reported only on 04.04.2017, which is
much after the expiry of Anx.A-1 rank list on 17.05.2016 and therefore,
there is no question of the petitioner having any claim for advice to any
one of those NJD vacancies, which have been reported indisputably
much after the expiry of the said rank list. The Tribunal has also thus
rightly rejected the said contention of the petitioner, as can be seen
from a reading of paras 8 & 9 of Ext.P-1 final order.
14. The petitioner has also raised a contention that the ratio for
the various methods of appointments, has to be worked out as against
the arising vacancies and not as against the total number of posts as per
the cadre strength, by placing reliance on Exts.P-5, P-6 & P-7
Government Orders. In that regard, the learned counsel for the
petitioner would point out that the amended provisions of Note (3) to
Rule 5 of KS & SSR Part II made effective from 2.3.1993, stipulating
that ratio or percentage fixed for different methods of appointments is
to be applied to the cadre strength of the post and not to the vacancies
existing at that time, etc. will not apply in the instant case, in view of
the subsequent prescriptions made by the State Government as per
O.P.(KAT) No. 191/2019
..17..
Exts.P5 to P7 Government Orders, etc. In that regard the petitioner
would place reliance on the judgment of the Apex Court in the case in
Maya Mathew v. State of Kerala & Ors [(2010) 4 SCC 498]
wherein it has been held that where the Special Rules are amended
subsequently to the prescriptions in Note (3) to Rule 5 of the General
Rules made effective from 2.3.1993, and if it is provided in those
subsequent Special Rules that the ratio is to be worked out as against
the arising vacancies, then those subsequent prescriptions of the
Special Rules will prevail over the General Rules going by the mandate
contained in Rule 2 of KS & SSR which envisages that if any provisions
in the General Rules is repugnant to the Special Rules applicable to a
particular service, then the latter shall in respect of that service, prevail
over the provisions of the General Rules, etc. On this basis, it is argued
by the petitioner that the Apex Court has held in Maya Mathew's
case supra that the dictum laid down by the Apex Court in the previous
decisions as in S. Prakash & anr. v. K.M. Kurian & anr. [(1999) 5
SCC 624], Prasad Kurien & Ors. v. K.J. Augustine & Ors.
[(2008) 3 SCC 529] about the requirements for compliance of Note (3)
to Rule 5 of KS & SSR Part II, will not apply in such a case. The
petitioner would mainly contend that the prescriptions made by the
Government as per Ext.P5 G.O. dated 25.05.1999, Ext.P6 G.O. dated
O.P.(KAT) No. 191/2019
..18..
03.07.2007, Ext.P7 G.O. dated 20.1.2009, etc. are stipulations made by
the Government subsequent to the amendment to Note (3) to Rule 5 of
Part II KS & SSR made w.e.f. 02.02.1993. The abovesaid contentions
are strongly opposed by the learned Government Pleader appearing for
respondents 1 & 2.
15. Note (3) to Rule 5 of KS & SSR Part II (General Rules)
stipulate that whenever a ratio or percentage is fixed for different
methods of recruitment/appointments to a post, the number of
vacancies to be filled up by candidates from each method shall be
decided by applying the fixed ratio or percentage to the cadre strength
of the post to which the recruitment/transfer is made and not to
vacancies existing at that time. The abovesaid amendment in Note (3)
to Rule 5 of Part II KS & SSR has been made as per G.O.(P)
No.57/92/P&ARD dated 16.12.1992, published in Kerala Gazette dated
02.03.1993 as per S.R.O. No.194/93. Thus, the abovesaid provisions in
Note (3) to Rule 5 of the General Rules have been made effective from
02.03.1993. The Apex Court in the decision in Prakash's case supra
[(1999) 5 SCC 624] has interalia held therein that there is no
repugnancy between Rule 5 Note (3)of the General Rules and the
method of appointment provided in the Special Rules of the service
concerned in that case and that even if there is repugnancy or
O.P.(KAT) No. 191/2019
..19..
inconsistency, it is settled law that the General Rules later in time
prevails over earlier Special Rules if it clearly and directly supersede the
Special Rules and that the intention of the Legislature for adding Note
(3) to Rule 5 is clear and that it is added to fill in the existing lacunae in
the method of recruitment provided in the Special Rules and that Note
(3) has emphatically stated that the ratio has to be computed on the
cadre strength of the post to which recruitment is to be made and not
on the basis of vacancies existing at that time, and that the language of
the Note is crystal clear and there is for removal of any ambiguity and
that it applies to all Special Rules whenever a ratio or percentage is
prescribed in the rules, etc.
16. The abovesaid dictum laid down by the Apex Court in
Prakash's case supra [(1999) 5 SCC 624] regarding the applicability of
Rule 5 Note (3) of the General Rules has been reiterated in the
subsequent decision of the Apex Court in the case in Prasad Kurien's
case supra [(2008) 3 SCC 529]. Later, the Apex Court in the afore
cited decision in Maya Mathew's case supra [(2010) 4 SCC 498], has
considered the applicability of Note (3) of Rule 5 of Part II KS & SSR
(General Rules) made effective from 02.03.1993 to the case involving
selection to a post covered by the Special Rules for the Kerala State
Homoeopathy Services, 1989, to which an amendment was made with
O.P.(KAT) No. 191/2019
..20..
effect from 12.04.1999 vide G.O. dated 27.05.1999. The said amended
provisions of the said Special Rules were subsequent to the amended
provisions of Rule 5 Note (3) of KS & SSR made with effect from
02.03.1993, which inter alia stipulated the ratio of different methods of
appointments by way of direct recruitment, transfer, etc. and it was also
stipulated in the Special Rules that, in the absence of candidates by
transfer, those vacancies in each category will be filled up by direct
recruitment in the open quota and that the back log for such categories
will not be restored, etc. The Apex Court in para No.11 in Maya
Mathew's case supra [(2010) 4 SCC 498] has noted that the abovesaid
provisions subsequently made to Special Rules in that case on
12.04.1999 is repugnant to Note (3) to Rule 5 of the General Rules,
which came into force on 02.03.1993. Accordingly, it was held therein
that the previous decisions in Prakash's case supra [(1999) 5 SCC 624]
and Prasad Kurien's case supra [(2008) 3 SCC 529] regarding the
overriding effect of the General Rules to the prescriptions in the Special
Rules made earlier to the said General Rules, will not apply in the case
considered therein, inasmuch as the said repugnant provision in the
Special Rule was made subsequent to the abovesaid prescription in the
General Rules. Accordingly, it was held that in view of the mandate
contained in Rule 2 of the General Rules, the Special Rules will prevail
O.P.(KAT) No. 191/2019
..21..
over the General Rules, etc.
17. In that regard, the petitioner would place reliance on
Exts.P5 to P7 Government Orders to contend for the position that the
said Government Orders make prescriptions, which lead to the
situation that the ratio of various methods of appointment to the post of
LPSA/UPSA, etc. is to be applied as against the arising vacancies and
not as against to the total number of posts as per the cadre strength,
and that the said prescriptions in the above Government Orders are at a
later point of time compared to the prescriptions in the abovesaid
General Rules and hence the dictum in Maya Mathew's case supra
[(2010) 4 SCC 498] would squarely apply to the facts and
circumstances of this case. In that regard, it is to be borne in mind that
the petitioner has never raised such a contention before the Tribunal.
Exts.P5 to P7 are Government Orders said to have been issued on
25.05.1999, 03.07.2007 & 20.01.2009, respectively. The petitioner has
not raised any such pleadings and contentions in the above original
application filed before the Tribunal. Therefore, it is not right and
proper for the petitioner to raise such contentions for the first time
before this Court without raising those contentions before the Tribunal,
which is the Court of first instance. The petitioner would contend that
the prescriptions made in Exts.P5 & P6 as in para 6 of Ext.P5, para
O.P.(KAT) No. 191/2019
..22..
5(iii) of Ext.P6, etc. would clearly show that the ratio for the method of
appointments is to be worked out as against the vacancies and not as
against the cadre strength inasmuch as it has been stipulated therein
that 65% of the remaining vacancies in UPSA posts has to be reported
to the PSC separately and that vacancies shall be filled up from the
respective rank list of LPSA/UPSA, etc. After hearing both sides it is
seen that Exts. P5 to P7 are all executive orders issued by the State
Government. Part I of KS & SSR deals with definitions, Part II contains
General Rules and Part III thereof contains Special Rules applicable to
different services or class of services. Reference in that connection may
be made to Prakash's case supra [(1999) 5 SCC 624]. Rule 2 (16) of
Part I KS & SSR defines "Special Rules" as "Special Rules shall mean
the rules in Part III applicable to each service or class of service." Rule
2 of Part II KS & SSR deals with the relation to the Special Rules and
the same reads as follows:-
"2.Relation to the Special Rules._ If any provision in the general rules
contained in the Part is repugnant to a provision in the Special Rules applicable to
any particular service contained in Part III, the latter shall, in respect of that
service, prevail over the provision in the general rules in this Part."
18. The mandate contained in Rule 2 will apply only in respect
of the statutory Special Rules framed in exercise of the powers
conferred under the Kerala Public Services Act. Maya Mathew's case
supra [(2010) 4 SCC 498] was also dealing with the case of statutory
O.P.(KAT) No. 191/2019
..23..
Special Rules, which were amended subsequently that resulted in the
repugnancy to the abovesaid provision in the General Rules.
19. After hearing both sides, we are of the prima facie view that
the prescriptions in Exts.P5 to P7 executive orders of the Government
may not have the effect of overriding the statutory provision contained
in Rule 5 Note (3) of KS & SSR Part II. The learned counsel for the
petitioner would then contend that there are no statutory special rules
framed by the Government for regulating the service such as the one for
LPSA/UPSA, etc. and that those aspects are covered by executive orders
and that therefore, those executive orders should be treated as akin to
Special Rules as understood in Rule 2 (16) of Part I KS & SSR as well as
Rule 2 of Part II KS & SSR and that therefore the dictum laid down by
the Apex Court in Maya Mathew's case supra [(2010) 4 SCC 498]
would apply, etc.
20. From a reading of Anx.A9 letter dated 16.07.2016 issued by
the 2nd respondent appointing authority (DDE) it is seen that, there is a
specific mention in page 2 of Anx.A9 that as per Government letter
No.J-3/39986/2015/G.Edn. dated 14.10.2015 has issued directions to
the authorities concerned to strictly comply with the cadre strength
ratio in all the teaching post.
21. The learned Government Pleader has contended that even if
O.P.(KAT) No. 191/2019
..24..
it is assumed that there have been stipulations in Exts.P5 to P7
executive orders issued subsequent to the provisions of the above
General Rules, the abovesaid direction issued by the Government as per
Government letter dated 14.10.2015 has been subsequent to the
issuance of Exts.P5 to P7 G.O.s and that therefore, there is no question
of any repugnance with the General Rules and that the ratio has to be
applied as against the cadre strength, etc. The learned Government
Pleader has also invited our attention certain decisions of the Apex
Court including a recent decision of the Apex Court in the judgment
dated 11.01.2021 in Civil Appeal Nos.3974-75 of 2020 in the case in
High Court of Kerala v. Reshma A. & Ors [(2021) 3 SCC 755] for
the position that recruitment over and above the notified vacancies is
legally impermissible, and that operation of the abovesaid rank list any
further would amount to blatant violation of the abovesaid dictum, etc.
22. As indicated hereinabove, the petitioner has never raised
the abovesaid contentions based on Exts.P5 to P7 before the Tribunal
and therefore, it is not right and proper for us to adjudicate and render
a final opinion on these issues pertaining to Exts.P5 to P7 as well as the
subsequent Government directives issued on 14.10.2015. Hence, we are
not pronouncing any final opinion on these issues and would leave
those matters for final determination in future appropriate cases, if the
O.P.(KAT) No. 191/2019
..25..
occasion therefor necessarily arises. That apart, even if the abovesaid
contention of the petitioner is accepted, actual relief can be granted to
the petitioner only if additional vacancies are reported as the pending
vacancies in question were already utilised for the appointments as
mentioned herein above and such a course of action to direct the Public
Service Commission to advise candidates from expired list as against
the vacancies reported after the expiry of the rank list is clearly illegal.
23. In the light of these aspects, we are not in a position to hold that
the considered verdict of the Tribunal at Ext.P1 is in any manner,
tainted by illegality, unreasonableness, etc. and no reliefs can be
granted in this petition. Accordingly, the above Original Petition will
stand dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
K.BABU, JUDGE
sdk+
O.P.(KAT) No. 191/2019
..26..
APPENDIX
PETITIONER'S EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 5.12.2018
IN OA(EKM)NO.194/2017 PASSED BY THE KAT
THIRUVANANTHAPURAM(ADDITIONAL BENCH AT
ERNAKULAM)
EXHIBIT P2 A TRUE COPY OF THE MEMORANDUM OF THE
ORIGINAL APPLICATION(EKM) NO.194/2017
ALONG WITH ITS ENCLOSURES.
EXHIBIT P2(A1) TRUE COPY OF THE RELEVANT PAGE OF RANK
LIST DATED 18.11.2011.
EXHIBIT P2 A2 TRUE COPY OF REPRESENTATION DATED
25.10.2016.
EXHIBIT P2(A3) TRUE COPY OF ORDER IN OA NO.1154/2013
DATED 13.12.2013.
EXHIBIT P2(A4) TRUE EXTRACT OF THE PRESS REPORT OF
DESHABHIMANI DAILY DATED 14.02.2014.
EXHIBIT P2(A5) TRUE EXTRACT OF THE PRESS REPORT OF
MADHYAMAM DAILY DATED 14.03.2014.
EXHIBIT P2(A6) TRUE EXTRACT OF THE PRESS REPORT OF
INDIAN EXPRESS DAILY.
EXHIBIT P2(A7) TRUE EXTRACT OF THE INTERIM ORDER IN OA
EKM 309/2016 DATED 18.2.2016.
EXHIBIT P2(A8) TRUE COPY OF THE ORDER IN OA NO.EKM.
116/2015 AND OA NO.EKM 277/2016 DATED
10.03.2016.
EXHIBIT P2(A9) TRUE COPY OF THE COMMUNICATION DATED
16.07.2016.
EXHIBIT P2(A10) TRUE COPY OF THE APPOINTMENT CHART DATED
5.12.2016.
EXHIBIT P3 A TRUE COPY OF THE REPLY STATEMENT FILED
BY THE SECOND RESPONDENT IN THE OA.
EXHIBIT P4 A TRUE OF THE ADDITIONAL REPLY STATEMENT
FILED ON BEHALF OF THE 2ND RESPONDENT IN
THE OA.
O.P.(KAT) No. 191/2019
..27..
EXHIBIT P5 A TRUE COPY OF GO(MS) NO.120/99/G.EDN
DATED 25.5.1999.
EXHIBIT P6 A TRUE COPY OF GO(MS) NO.133/2007/DATED
3.7.2007.
EXHIBIT P7 A TRUE COPY OF GO(MS) NO.8/2009/G.EDN
DATED 20.1.2009.
