JUDGMENT
K.S. Radhakrishnan, J.
1. Petitioner, a member of the Scheduled Caste, was placed at Rank No. l in the supplementary list of Scheduled Caste for selection and appointment to the post of Tradesman (TV Maintenance and Repair) in the Technical Education Department in the Kannur District.
2. Petitioner was not advised for recruitment as the turn of the petitioner did not arise while advising candidates as per the rules of reservation and rotation. Rank list which was brought into force with effect from 7-2-1998 had passed through two selection years, viz. 7-2-1998 to 6-2-1999, 1st selection year and 7-2-1999 to 6-2-2000, 2nd selection year. Since the post of Tradesman (TV Maintenance and Repair) was notified for the first time in Kannur District, fresh rotation was followed starting from MRI 1 OC. Five candidates were advised for recruitment from the rank list. During the first selection year, ie., from 7-2-1998 to 6-2-1999, three candidates were advised for recruitment against the three fresh vacancies, the details of which are furnished hereunder:
MRI 1OC Jacob Thomas (R. No. l) : Advised on MRI 2E Girija. M. (R. No. 2 Thiyya) : 5-3-1998 MRI 30C SreedharanNair. K. (R. No. 3) : Ad vised on 20-1-1999. Above details would indicate that two candidates were advised against open competition turns and one against reservation turn in the first selection year.
3. We may now come to second selection year, ie., from 7-2-1999 to 6-2-2000. During the period of second selection year two vacancies were reported. One was NJD vacancy due to nonjoining duty of Sreedharan Nair.K. who was advised on 20-1-1999 against the turn of MR 1 3 OC and another vacancy was a fresh vacancy. In other words, only one fresh vacancy was reported during second selection year, Resultantly the next OC candidate Shaji. M.S. (R. No. 4) was advised against the NJD vacancy (MRI 3 OC). While advising candidate against the only one fresh vacancy reported during the second selection year, theturn MR 14 SC was temporarily passed over and one Anilkumar.P. (Rank No. 5) was advised against the turn MR I 5 OC, The turn MR 14 SC which arose for advice was temporarily passed over to keep the 50% rule, i.e. to ensure that in no selection year reservations including carrying forward vacancies to a category of post shall exceed 50% of the total number of vacancies for which direct recruitment to that category is resorted to in that year as provided in the proviso to Rule 15 of the KS & SSR. Petitioner is aggrieved by the above procedure followed by the Public Service Commission.
4. Sri. K. Bidan Chandran, counsel appearing for the petitioner submitted that when an NJD vacancy is reported it should be treated as a vacancy of the year of reporting made after getting information about the non-joining of the candidate advised. Counsel submitted, it should not be taken as a vacancy of the year when the first advice was made. Counsel submitted, in case the NJD vacancy reported during the second selection year is treated as belonging to that year, the petitioner would have been advised for appointment. In support of his contention counsel placed reliance on the decision of a Division Bench of this Court in Babu v. Public Service Commission 1996 (1) KLT 349.
5. Counsel appearing for the Public Service Commission Sri. P.C. Sasidharan, on the other hand, contended that the turn MR I 4 SC which arose for advice was temporarily passed over to keep the 50% rule, so that in no selection year reservations including carrying forward vacancies to a category of post shall exceed 50% of the total number of vacancies. In support of that contention counsel placed reliance on the judgment of the learned single Judge in K. Mohanan v. Secretary, Public Service Commission 1998(2) ILR Kerala 268. Learned Single Judge of this Court felt that there is conflict in the statement of law laid down by the Division Bench as well as the learned single Judge in Mohanan’s case (supra), consequently, referred the matter to a Division Bench for an authoritative pronouncement and hence the matter has been placed before us.
6. Facts are undisputed. The only question to be considered is whether the Public Service Commission is justified in passing over of the turn of MR 14 SC temporarily so as to see that in no selection year reservations including carrying forward vacancies to a category of post shall exceed 50% of the total number of vacancies. Such a process was adopted by the Public Service Commission evidently to see that no violation is made to the first proviso to Rule 15 of KS & SSR, For easy reference we may extract Rule 15:
15.(a) The integrated cycle combining the rotation in Clause (c) of Rule 14 and the sub-rotation in sub-rule (2) of Rule 17 shall be as specified in the Annexure to this Part. If a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, the said community or group shall be passed over and the post shall be filled up by a suitable candidate from the community or group of communities immediately next to the passed over community or group in the said Annexure in the order of rotation. If no suitable candidate is available for selection in any of the above communities of group of communities, selection shall be made from open competition candidates.
(b) If a suitable candidate is not available for selection from the group of communities classified as “Scheduled Castes” in the turn allotted for such a group in the Annexure the said group shall be passed over and the post shall be filled up by a suitable candidate from the group of communities classified as “Scheduled Tribes” and vice versa. If no suitable candidate is available for selection in any of the two groups classified as “Scheduled Castes or Scheduled Tribes” selection shall be made from among the communities immediately next to the group of communities entitled to be appointed according to the turn allotted in the Annexure in the order of rotation. If no suitable candidate is available for selection in any of the communities or group of communities selection shall be made from open competition candidates.
(c) The benefit of the turn forfeited to a particular community or to a group of community by reason of it being passed over under sub-rule (a) and (b) shall be restored to it, at the earliest possible opportunity, if a suitable candidate from that particular community or group is available for selection by making adjustment against the claims of the particular community or group thafderived the extra benefit by reason of such passing over:
Provided that in no year reservations including carrying forward vacancies to a category of post shall exceed 50% of the total number of vacancies for which selection by direct recruitment to that category is resorted to in that year:
Provided also that the said right of restoration shall not extend to a case where the selection has gone to an open competition candidate.
Note:- For purposes of application of the proviso limiting the number of vacancies to be reserved in a year as 50% in respect of recruitment to a category of post, the period of one year shall commence on and from the day on which the ranked list of candidates prepared by the Commission in respect of that post comes into force:
Provided that in regard to ranked list brought into force prior to 13th June 1975 and remaining valid, the year of reservation shall continue to be one year from the 15th June 1974.
The first proviso to Rule 15 stipulates that in no year reservations including carrying forward vacancies to a category of post shall exceed 50% of the total number of vacancies for which selection by direct recruitment to that category is resorted to in that year, Further, Note below Rule 15 also provides that for purposes of application of the proviso limiting the number of vacancies to be reserved in a year 50% in respect of recruitment to a category of post, the period of one year shall commence on and from the day on which the ranked list of candidates comes into force.
7. Reservation of appointments has to be made in accordance with Rules 14 to 17 of K.S.& S.S.R. Rule 14 stipulates that appointments under this rule shall be made in the order of rotation specified therein in every cycle of 20 vacancies. Going by the rotation the 4th appointee from the rank list should be a member of Schedule Caste. Question is while applying the first proviso to Rule 15 the substantial right of reservation granted to Schedule Caste Community could be defeated. In case NJD vacancy reported during the second selection year is treated as belonging to that year then there is no question of passing over of S,C. turn so as to keep the 50% rule. Proviso to Rule 15 in our view shall not override the substantial provision of Rule 14(c). Above being the legal position we find it difficult to accept the reasoning of the learned single Judge in K. Mohanan’s case (supra) wherein the learned single Judge has taken the view that principles of reservation have to be worked out with reference to the year of reservation and the mere advice of candidate during a year will not satisfy the principles of communal rotation if the candidate does not join duty. Principle laid down in Babu’s case (supra) in our view would advance the cause of justice. Reference may be made to the following portion of the judgment in Babu’s case:
According to counsel, the non-joining duty vacancy should be treated as vacancies that had already been reported to the Public Service Commission prior to the date of expiry of the list. This argument cannot hold good, because to fill up 115 vacancies, which were reported to the Public Service Commission prior to the date of expiry of the ranked list, candidates were’advised. Once the advice is issued, vacancy stands extinguished. After the extinguishment of the vacancy, on account of the advice of the candidates alone could the appointing authority ascertain the non-joining duty. Such vacancies, which came to the notice of the appointing authority on a subsequent day, can only be treated as a vacancy that was reported on that day. If that day happens to be a day after the expiry of the ranked list, for filling up that vacancy the expired list cannot be operated on.
NJD vacancy reported during the second selection year should be treated as belonging to that year, then the principle laid down under Rule14(c) could be given effect to, resultantly, that vacancy would go to a Schedule Caste candidate.
8. We are therefore inclined to allow the original petition and overrule the decision in Mohanan ‘s case and hold that the NJD vacancy should be treated as vacancy of second selection year, thereby the vacancy goes to MRI 4 SC. We make it clear that this declaration would operate only prospectively and the settled position would not be unsettled.