IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30722 of 2008(G)
1. SYAM MARINAL V.V.,
... Petitioner
Vs
1. THE KERALA PUBLIC SERVICE COMMISSION,
... Respondent
2. THE DISTRICT OFFICER, KERALA
3. THE DIRECTOR, SOCIAL WELFARE DEPARTMENT,
4. THE DISTRICT COLLECTOR,
For Petitioner :SRI.P.C.SASIDHARAN
For Respondent : No Appearance
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :27/01/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No. 30722 of 2008-G
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Dated this the 27th day of January, 2009.
JUDGMENT
The short question that is raised in this writ petition is whether the
petitioner who was included in the supplementary list, as belonging to a
Scheduled Caste community, can be advised for appointment in any of the
four Non Joining Duty vacancies (NJD vacancies) which arose on the non-
joining of candidates belonging to Scheduled Caste community, as the main
list has exhausted in the meanwhile.
2. The bare facts necessary for the disposal of the writ petition are
the following: The notification in question was issued by the first
respondent, Public Service Commission inviting applications for
appointment to the post of Lower Division Clerk in various districts
including Ernakulam District. The petitioner was an applicant to the post in
Ernakulam District. A rank list was brought into force with effect from
1.1.2006. He is included in the supplementary list of Scheduled Castes as
rank No.71. Ext.P1 is the relevant extract of the said rank list published by
the Public Service Commission.
3. As on 4.7.2008, 992 candidates were advised in Ernakulam
WPC 30722/2008 2
District and according to the petitioner, the last candidate advised from the
supplementary list of Scheduled Caste candidates was rank No.64.
Subsequently, a total number of 55 candidates were also advised during the
last week of September, 2008 and thus, the last candidate advised from the
supplementary list of SC candidates is rank No.67, one Nandakumar K.M.
If four more vacancies are reported, the petitioner is entitled to be advised.
According to the petitioner, four candidates belonging to Scheduled Caste
community advised by the Commission and issued with appointment orders,
did not join duty and all the four NJD vacancies have been reported to the
Commission which are pending for advice. The details of the four
candidates who did not join duty pursuant to the appointment order issued
by the Commission, are stated in para 4 of the writ petition. It is also
pointed out that in the main list six more candidates remain to be advised
and therefore, there is no impediment in advising candidates from the
supplementary list to the NJD vacancies. Accordingly, the petitioner
sought for a direction to respondents 1 and 2 to advice candidates to the
four NJD vacancies of Scheduled Caste community.
4. Respondents 1 and 2 have filed a detailed counter affidavit. The
details regarding advices made from the main list and supplementary list
are the following: In the rank list for the post of L.D. Clerks in various
WPC 30722/2008 3
departments in Ernakulam District, 798 candidates were included in the
main list and 252 candidates were included in the supplementary list which
was brought into force on 1.1.2006. The main list exhausted on 29.10.2008
since all the candidates included in the main list got advice while honouring
the vacancies received upto 19.8.2008. The community-wise break-up of
the rank numbers show that from Scheduled Caste category, upto serial
No.69 have been advised from the supplementary list. The petitioner being
rank No.71, could not therefore be advised. Regarding the four NJD
vacancies, the Commission has made it clear in the counter affidavit that
details were received in the Ernakulam District Office on 3.9.2008,
24.9.2008, 26.9.2008 and 30.9.2008. But they are pending to be advised for
want of a live rank list for the post. Actually, the main rank list exhausted
on 29.10.2008 while honouring the vacancies received upto 19.8.2008 in
the office. Therefore, the subsequent vacancies reported have to be
honoured from a fresh rank list.
5. In the counter affidavit, the respondents have also explained the
time lag between 19.8.2008 to 29.10.2008, i.e. the date of receipt of the
requisitions by which the main list was exhausted on advising candidates
and the date on which the advice process was completed. It is averred that
for the vacancies reported from Municipal Common Service, trial rotation
WPC 30722/2008 4
had to be worked out for identifying candidates whose turns of advice arisea
gainst the vacancies in the Municipal Common Service. It is stated that as
per the practice in vogue, willingness has to be called from those
candidates who figure in the trial rotation and such additional number of
candidates to the tune of 5 times the number of vacancies reported in order
to ensure that willingness from sufficient number of candidates is received
and notwithstanding the unwillingness, if any, of the candidates figures in
the trial rotation. In the rotation so approved on 29.10.2008, the first four of
the 17 vacancies honoured were those from the Municipal Common
Services and the candidates with rank Nos.787, 788, 789, 781, 792 & 794
were not willing to be appointed in Municipal Common Services and so
they were passed over. The candidates with rank Nos.794 A and 795 who
were willing for Municipal Common Services were advised in the
Municipal Common Services on 29.10.2008. All the aforementioned passed
over candidates were thereafter advised on 29.10.2008 against subsequent
vacancies reported from other departments. Candidates with rank numbers
790 and 793 belonging to Muslim community, were advised for
appointment earlier on 2.6.2007 and 27.7.2007 respectively against Muslim
reserved turns. The last ranking candidate in the main list is the candidate
with rank No.795. Thus, all the candidates in the main list stood advised,
WPC 30722/2008 5
while honouring vacancies received upto 19.8.2008. Time was taken upto
29.10.2008 for completing the advice process, as stated above, as time had
to be taken in the approval of the rotation, the details of which have been
stated earlier. Various procedural formalities had to be completed, like
calling for willingness from candidates, etc. Besides, the orders of the
Commission had to be obtained before advising blind candidates, who
figured in the rotation as earlier directed by the Commission since the
matter was subjudice at that time and orders were received only on
21.10.2008. In view of these aspects, time had to be taken upto 29.10.2008
for completing the advice process in respect of vacancy requisitions
received upto 19.8.2008. By advising candidates for requisitions received
upto 19.8.2008, all the candidates in the main list got advised and the list
thus got exhausted.
6. Learned Standing Counsel for the Public Service Commission
relied upon a decision of the Apex Court in Nair Service Society v.
District Officer, Kerala Public Service Commission {2003 (3) KLT 1126
(SC)} and that of a Division Bench of this court in Janardhanan v. State
of Kerala (2006 (2) KLT 607) to contend that after the main list is
exhausted or expired, the NJD vacancies cannot be filled up by the
WPC 30722/2008 6
candidates included in the supplementary list. It is therefore pointed out
that there is no illegality in the stand taken by the Public Service
Commission.
7. In the reply affidavit filed by the petitioner, it is contended that the
dictum laid down in Nair Service Society’s case {2003 (3) KLT 1126(SC)}
will not apply to the facts of this case. It is pointed out that the NJD
vacancy of a particular community can be filled up only by the candidates
belonging to the same community. Reliance is placed on the meaning of
“selection year” which is the period from the date on which the rank list of
candidates comes into force to the date on which it expires and not
exhausted. It is further contended that 50% ceiling to reservation specified
in the rules shall not apply to the filling up of any number of reserved
vacancies kept unfilled and notified separately to be filled exclusively by
direct recruitment from among a community or group of communities.
8. Going by the facts stated above, it is clear that as on 1.1.2006 there
were 798 candidates in the main list and 252 candidates in the
supplementary list. Rank numbers up to 69 in the supplementary list of SC
were advised. The NJD vacancies were received in the District Office of
the Commission at Ernakulam on 3.9.2008, 24.9.2008, 26.9.2008 and
30.9.2008. While advising candidates against the vacancies received up to
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19.8.2008, the ranked list for the post exhausted on 29.10.2008. Even
though it is contended by the learned counsel for the petitioner that the
crucial date that is to be considered is 19.8.2008 and not 29.10.2008 and
that the explanation offered by the Commission cannot be accepted, I am of
the view that the averments in the counter affidavit satisfactorily explains
the actions that had to be taken by them in regard to advising of candidates
when vacancies are reported. They have explained that time was taken up
to 29.10.2008 for completing the advice process, since it depends upon the
rotation that had to be followed. In that view of he matter, the argument
that 19.8.2008 cannot be the crucial date and the explanation offered by the
Commission cannot be accepted, does not appear to be correct. Learned
counsel for the petitioner relied upon the amended rule 15 of KS & SSR to
contend for the position that the dictum laid down in Nair Service Society’s
case ( 2003 (3) KLT 1126 (SC) cannot apply to the facts of this case.
9. In the above case, the legal position was considered with reference
to Rules 14 to 17 of KS & SSR. After considering the various aspects
including the definition of “ranked list” in Rule 2(g) of the Kerala Public
Service Commission Rules of Procedure, their Lordships held in para 19
thus:
WPC 30722/2008 8
“The above definition shows that there is only one ranked list.
Therefore, the supplementary list prepared by the KPSC to satisfy
the rules of reservation has, in fact, no statutory backing. For that
reason when the main list is exhausted or expired, supplementary
list cannot be allowed to operate. If the supplementary list alone is
allowed to operate it would amount to giving greater sanctity to it
and long life than the main list prepared in accordance with the
Rules. Secondly, after the expiry of exhaustion of the main list if
the supplementary list is operated it would violate the first proviso
to Rule 15(c) of the General Rules. The reason is that the NJD
vacancies in respect of OBC candidates cannot be filled up after the
expiry or exhaustion of the main list and only reserved candidates
can be advised from the supplementary list which would violate
50% rule as no OC category candidates could be advised.”
In the concurring judgment rendered by S.B. Sinha, J., it was held that
“preparation of only one supplementary list for filling up the vacancies by
some candidates not joining their posts, only from the reserved category of
candidates, therefore, would be illegal, as thereby the relevant provision
relating to the percentage of reservation contained in Rule 15 of the
statutory rule would stand infringed.”
10. Therefore, the question is whether the supplementary list survives
after the exhaustion of the main list. Even though learned counsel for the
petitioner contended that in view of the amendment of the rules brought out,
WPC 30722/2008 9
the said principle will not apply to the facts of this case, I am of the view
that the said argument cannot be accepted. The substantial question is
whether once the main list is exhausted, what will be the fate of the
supplementary list. As held by the Apex Court in the above decision, the
supplementary list will not have any life after the main list is exhausted. In
the light of the above legal position, the argument that the amended rules
will result in a different situation, cannot be accepted. In the decision of the
Division Bench of this court in Janardhanan’s case (2006 (2) KLT 607),
their Lordships have categorically held that “the reservation is in addition to
the rights of candidates belonging to the respective community for claiming
selection on the basis of merits. The number of posts reserved are not to be
affected by selection of persons belonging to said categories in merit
quota………….When there were no candidates in the merit list, naturally PSC
has to resort to fresh recruitment. When there is no candidate in the merit
list, it is not possible to put them to the pegion holes which were there
because of the non-joining of advised candidates.” Thus, there cannot be
any ambiguity in that regard. In that view of the matter, the stand of the
Public Service Commission that the four NJD vacancies in question
pertaining to SC turn received by them could be considered only along with
other vacancies from a fresh rank list to be finalised in respect of the post of
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L.D. Clerk, cannot be said to be unsustainable.
In the above view of the matter, the relief sought for by the petitioner
cannot be granted. The writ petition fails and the same is dismissed. No
costs.
(T.R. Ramachandran Nair, Judge.)
kav/