IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10392 of 2008(K)
1. SAJEEV.B, S/O.BASHEER, AGED 29,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. SECRETARY, PERSONNEL AND ADMINISTRATIVE
3. THE SECRETARY, GENERAL EDUCATION
4. THE DIRECTOR, VOCATIONAL HIGHER
For Petitioner :DR.V.N.SANKARJEE
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.T.SANKARAN
Dated :11/08/2008
O R D E R
K.T. SANKARAN,J.
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W.P.(C) No.10392 OF 2008 K
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Dated this the 11th day of August, 2008.
J U D G M E N T
The petitioner states that he is a physically challenged person
having 50% disability. He was provisionally appointed as Lab Assistant –
Agriculture, under Rule 9(a)(1) of Kerala State & Subordinate Service Rules
through the Divisional Employment Exchange, Thiruvananthapuram. He was
working as Lab Assistant – Agriculture in the Government Vocational Higher
Secondary School, Vakkam for the period from 2.11.1998 to 22.4.1999. The
Government issued Ext.P6 order dated 30.11.2007 providing regular
appointment to handicapped persons who were earlier appointed in provisional
service through Employment Exchange. The district wise list was appended to
the Government Order. Petitioner’s name is also included in the list as Sl.No.20
for Thiruvananthapuram District. Going by Ext.P6 order, the petitioner is entitled
to get appointment in the next arising vacancy. It is also provided in Ext.P6 that
if there is no existing vacancy, appointment should be made towards the 3%
vacancies reserved for handicapped persons.
2. The reliefs prayed for in the Writ Petition are the
following:-
WP(C) No.10392/2008
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(i) issue a writ of
mandamus or any other appropriate writ or
order directing the respondents to reappoint
the petitioner as Lab Assistant – Agriculture in
the Vocational Higher Secondary Education
Department at the earliest and within a
definite time frame;
(ii) Issue a writ of
mandamus or any other appropriate writ or
order directing the respondents to create
supernumerary post for reappointing the
petitioner if it is necessary;
(iii) Issue a writ of
certiorari or any other writ or order quashing
Exhibit P7 after calling for records leading
thereto; and
(iv) Pass such other
orders as are deemed fit and necessary in the
interest of justice and for proper and effective
adjudication of the case.”
3. A counter affidavit is filed on behalf of the
respondents wherein it is stated as follows:-
WP(C) No.10392/2008
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“5. It is submitted that
consequent to the promulgation of VHSE
Special Rules, 4th respondent had reported all
the existing vacancies of Lab Assistant to PSC
for permanent appointment. That has been
done long before the publication of the list of
candidates eligible for reappointment by
Government. Consequent to the reporting of
vacancies PSC had already conducted the
selection test and published the main list. In
this circumstance 4th respondent is not in a
position to appoint the petitioner due to lack of
vacancies. Since all the existing vacancies had
already been reported to PSC for permanent
appointment VHSE department have no
authority to direct the PSC to stop the selection
procedures. As per GO(MS) No.232/71/PD
dated 12.8.1971 and Government Circular
No.123786/SD-5/72/PD dated 5.12.1972 once
the vacancies are reported to the PSC they
should neither be cancelled nor reduced.
Public Service Commission had reminded
VHSE department about this fact vide letter
dated 28.9.2007 in connection with the
appointment of Lab Assistant and certain other
categories of Post. But VHSE department has
no hesitation to appoint the petitioner against
the newly arising vacancies of Lab Assistant.
Due to the sanctioning of new VHS Schools
and up gradation of existing schools in 2007
there is a sure chance of creating 100 + post of
WP(C) No.10392/2008
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Lab Assistant in the department of Vocational
Higher Secondary Education and the
department will take all the efforts to appoint
the petitioner in that post. It may be noted that
in the GO(P) No.85/07/SWD dated 30.11.2007
it is clearly stated that if the vacancies to
accommodate the candidates eligible for re-
appointment are not available in the concerned
department they will be considered in the
coming vacancies.”
In view of the statement made by the respondents in the
counter affidavit, the stand taken by the fourth respondent in Ext.P7 dated
7.1.2008 that the petitioner would be appointed in the next arising vacancy
cannot be faulted. Since the vacancies existing as on the date of Ext.P6 order
were already reported, the petitioner can aspire for appointment only in the next
arising vacancy. Counter affidavit filed by the respondents is taken as an
undertaking that the petitioner would be appointed in the next arising vacancy.
Recording this undertaking, Writ Petition is disposed of.
K.T. SANKARAN,
JUDGE.
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