IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14781 of 2008(I)
1. BETTY P.S., W/O. M.K.SUBRAMANIAN,
... Petitioner
Vs
1. KERALA PUBLIC SERVICE COMMISSION,
... Respondent
For Petitioner :SRI.B.GOPAKUMAR
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :01/01/2009
O R D E R
ANTONY DOMINIC, J.
==============
W.P.(C) NOS. 14781 & 28499 OF 2008
=========================
Dated this the 1st day of January, 2009
J U D G M E N T
In these writ petitions, the challenge raised is regarding the
correctness of the application of the rules of reservation as provided in the
KS & SSR. The post of Lecturer in Sanskrit (General) in the Collegiate
Education Service is filled up in terms of the Special Rules for Kerala
Collegiate Education Service, 1994. According to the petitioners, 9
vacancies were reported to the PSC and the PSC issued notification inviting
applications for filling up the vacancies on 29/6/2004. Rank list was
published on 26/12/2006.
2. Petitioner in WP(C) No.14781/08 was included at Rank No.19
of the ranked list and the petitioners in WP(C) No.28499/08 were included
at rank Nos.20 and 21. All these petitioners are candidates belonging to
Ezhava community. According to the petitioners, there were 27 vacancies
reported by the 2nd respondent and although candidates were advised,
despite the fact that they had secured rank Nos. 19, 20 and 21, they were
not advised for appointment. Petitioners state that the reason for not
advising them is that the 3rd respondent was not working out the rotation
correctly.
WPC 14781 & 28499/08
:2 :
3. It is stated that the main rotation started at MRI 31 and out of
the 27 vacancies reported, 9 vacancies are set apart for issuing fresh
notifications. It is contended that there is only one post reserved for
Dheevara out of every 100 post, Dheevara has already been
accommodated at MRI 22(LC) on 16/1/2003 and therefore MRI 50, the
Dheevara turn, cannot be reserved any more and that MRI 50 must be
given to Ezhava in the absence of LC candidate. They also state that
against MRI 12(SC), an Ezhava candidate was erroneously accommodated
on 29/1/82. It is stated that although MRI 14 (Ezhava) has been given to
Viswakarma, according to the 3rd respondent, MRI 54 (Ezhava) cannot be
given to Ezhava as MRI 12 has been given to Ezhava. It is stated that if at
all such adjustment is necessary, it is the Viswakarma turn which should
be given to SC and not that of Ezhava. The petitioners also contended
that MRI 28 was given to open competition candidate on 16/1/2003, but
the said adjustment has not been remedied so far although there are
atleast 3 candidates now presently available in the ranked list. On this
basis, it is contended that petitioners were not advised on account of the
fact that the 3rd respondent was not applying the rules of rotation in the
WPC 14781 & 28499/08
:3 :
proper manner.
4. PSC has filed a counter affidavit. According to the PSC, at the
time of finalisation of the ranked list on 26/12/2006, NCA turns were
pending to be compensated. According to the PSC, the turn which was
pending to be compensated by Ezhava Community was for MRI 12 (SC)
advised on 29/1/82. PSC submits that the rotation for the post started at
MRI 31(OC), while working out the rotation of 23 vacancies, there arose
two Ezhava turns at MRI 34 and 42 and that as there was no SC candidate
in the ranked list pending to be advised against MRI 12, without
compensating the same, two Ezhava candidates at Rank Nos.16 and 17
were advised for appointment against MRI 34 and 42. PSC says that in
view of the amendment to the rules of reservation by notification dated
8/3/2006, if suitable candidates are not available from any particular
community or group of communities, such vacancy shall be kept unfilled
and notified separately for selection. Therefore, when MRI 54 (Ezhava)
arose for appointment, that turn had to be compensated to MRI 12(SC)
advised on 29/1/82. Therefore, PSC states that the vacancy set apart for
separate notification is to be filled up from SC candidates.
WPC 14781 & 28499/08
:4 :
5. In so far as the advise made against MRI 12 is concerned, it is
stated that on account of the absence of SC candidate, a candidate
belonging to Ezhava community was advised on 29/1/82 and extra benefit
was derived to the Ezhava Community. According to the PSC, since there
was no SC candidate in the ranked list, SC vacancy was not compensated
and hence the NCA vacancy arose. It is also stated that against MRI 14
(Ezhava), on account of the absence of Ezhava candidate in the ranked
list, a Viswakarma candidate was advised on 29/1/82 and thus MRI 14
(Ezhava) occurred as a NCA vacancy. However, PSC proceeds to state
that MRI 20(Viswakarma) was compensated to Ezhava Community on
12/8/92.
6. Answering the allegation of the petitioners that even if
adjustments were made in 1982, when ranked lists were finalised in 1985
and 2003, compensation ought to have been made, PSC contends that
after 1982, SC candidates were not available in the subsequent ranked lists
to compensate the extra benefit derived by Ezhava community, which is
now to be compensated against MRI 54 (Ezhava). In so far as the
contention of the petitioners that MRI 28(Ezhava) filled up by an open
WPC 14781 & 28499/08
:5 :
competition candidate has to be compensated, PSC submits that the right
of restoration or compensation shall not extend to a case where selection
has gone to open competition candidate.
7. Admittedly, the rules of reservation have undergone
amendment and if candidate belonging to the specified category is not
available, unlike in the past, there is no temporary pass over and the
vacancies are set apart, re notified and filled up in the manner as provided
in the rules. If against MRI 12, the Ezhava community has derived extra
benefit, necessarily that will have to be compensated, and if so, PSC
cannot be faulted for setting apart MRI 54 (Ezhava) to be compensated by
a SC candidate. Similarly, the rules of reservation also do not permit the
compensation, when reserved vacancies are filled up by open competition
candidate. However, the petitioners contention that a Dheevara candidate
has already been appointed and therefore, there cannot be any further
reservation in their favour, is not answered by PSC in the affidavit filed.
This necessarily is a matter that the PSC shall examine and if necessary,
the PSC shall take such correction steps, as is permissible in law.
8. Therefore, on the facts, it can be seen that the PSC has
WPC 14781 & 28499/08
:6 :
satisfactorily answered the plea raised by the petitioners that the PSC has
not followed the rules of rotation in the proper manner except in the case
of the Dheevara candidate.
Therefore, the writ petitions are disposed of directing the PSC to
examine the case of the petitioners regarding the reservation provided for
Dheevara candidate and take corrective steps in that regard.
ANTONY DOMINIC, JUDGE
Rp