IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 31267 of 2004(V)
1. H.RAJESH, 'SIVADAM', CHEVAYUR P.O.,
... Petitioner
Vs
1. ASSISTANT EXCISE COMMISSIONER,
... Respondent
2. KERALA PUBLIC SERVICE COMMISSION,
3. DISTRICT OFFICER, KERALA PUBLIC
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :SRI.P.C.SASIDHARAN, SC, KPSC
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :10/04/2007
O R D E R
T.R. Ramachandran Nair, J.
- - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C).NO.31267 of 2004-V
- - - - -- - - - - - - - - - - - - - - - - - - - -
Dated this the 10th day of April, 2007
JUDGMENT
The petitioner approached this court aggrieved by the non-reporting
of existing vacancies of Excise Guards in Wayanad District, during the
currency of Ext.P1 rank list. The rank list for appointment to the post of
Excise Guards was published as per Ext.P1 by the Public Service
Commission on 29.10.2001. The list expired on 31.12.2004. The petitioner
is rank No.68 in the main list.
2. The petitioner points out in the writ petition that the cadre strength
of Excise Guards in Wayanad District is 87 and since the existing number of
such Guards is only 74, there were 13 vacancies to be reported. This court
on 26.10.2004 by way of an interim order, directed the first respondent to
report all the vacancies in the post of Excise Guard in the Excise
Department in Wayanad Division to the third respondent within three weeks
from that date. Thereafter, the first respondent filed a statement as directed
by this court wherein the vacancy position was shown as 14. In the
statement it was also averred that out of the 14 vacant posts, six posts are
exclusively reserved for special recruitment of SC/ST candidates which are
WPC 31267/2004 2
already reported to the Public Service Commission, two posts are
exclusively reserved for the posting of candidates in compassionate
employment scheme and one post is kept vacant as per interim order dated
5.8.2002 in O.P. No.22210/2002. The balance five vacancies were reported
to the Public Service Commission on 12.10.2004 and the District Office has
advised five candidates as per letter No.WR.II(3)/493/91 dated 27.10.2004
and posting orders to these candidates will be issued shortly.
3. The petitioner thereafter filed I.A. No.16698/2004 for a direction to
report 14 vacancies to the Public Service Commission. The apparent
contention taken in the affidavit is that even if vacancies have been ear-
marked for special recruitment and appointment under the compassionate
employment scheme, vacancies need not be reserved anticipating their
appointment. When the above I.A. came up for hearing on 3.12.2004, a
learned single judge of this court passed the following order:
“In continuation of the interim order passed on 26.10.2004, there
shall be a further direction to R1 to report 14 vacancies of Excise
Guards in Wayanad Division to PSC. This shall be done within two
weeks from today. Candidates need not be advised from the rank list
against the vacancies ordered to be reported without getting further
orders from this court.
Post on 20.12.2004 for reporting compliance.”
4. Thereafter, the petitioner filed I.A. No.14626/2005 praying to
issue a direction to the first respondent to reserve 8 vacancies of Excise
Guard which arose after 31.12.2004 for appointing special recruits and
WPC 31267/2004 3
candidates appointed under compassionate employment scheme and take
steps to fill up the 8 vacancies that arose prior to 31.12.2004 by appointing
candidates from Ext.P1 list. In paragraph 8 of the affidavit filed in support
of the I.A., it was mainly contended that as there are enough vacancies to
accommodate special recruits and candidates to be appointed under the
compassionate employment scheme, there is no necessity to continue the
reservation for them against the vacancies that arose prior to 31.12.2004.
When the I.A. came up for hearing, this court passed an order directing the
first respondent to file a counter affidavit in relation to the averments made
in the affidavit. Accordingly, the first respondent has filed a counter
affidavit on 6.12.2005. Subsequently, on 24.5.2006 the following order has
been passed in I.A. No.14626/2005:
“Heard.
It is not in dispute that one vacancy of Excise Guard is available
for filling up with PSC hand. Accordingly, the third respondent is
directed to advise a candidate to one of the vacancies reported as
per the interim orders of this court. The claim of the petitioner for
advise to additional vacancies shall be considered at the time of
final hearing. Post for hearing after two weeks. It is clarified that
this interim order will not stand in the way of appointing
candidates under the dying in harness or who are recruited as per
special recruitment for SC/ST.”
5. The Public Service Commission has filed a counter affidavit
wherein it is stated that the petitioner was not advised as his turn for advice
did not arise and as far as open category candidates are concerned, only
WPC 31267/2004 4
upto rank No.57 were advised for appointment.
6. When the case came up for hearing on 14.2.2007, the learned
counsel for the petitioner argued for the position that going by the
averments in the counter affidavit filed by the first respondent, there can be
a direction to advise candidates from the rank list as it will not affect the
rights of candidates appointed through special recruitment and under the
dying in harness scheme. Since the details of the vacancy position from
29.10.2001 till 31.12.2004 and the vacancies which exist as on today which
arose after 31.12.2004 were required to be made available, this court passed
an interim order on 14.2.2007 directing the first respondent to furnish those
details by way of an affidavit. On 26.2.2007 on behalf of the first
respondent, an additional affidavit has been filed stating various details
regarding the vacancy position covering the above periods and also
producing various orders of appointments. A reading of the affidavit
reveals the following facts:
7. As on 29.10.2001, the number of vacancies in the category of
Excise Guards in the Division was 52 and out of these vacancies, five were
set apart for special recruitment and were thus reported to the Public Service
Commission. The remaining 47 vacancies were filled up by direct
recruitment. These appointments were made as per Ext.R1(a) dated
19.11.2001. Ext.R1(b) is the order by which five vacancies have been filled
WPC 31267/2004 5
up by way of special recruitment on 21.10.2005. It is further stated that
from 30.10.2001 to 31.12.2004, 35 vacancies of Excise Guards arose and
out of these, three vacancies were filled up resorting to compassionate
appointment which were made on 22.3.2004, 19.5.2004 and 20.7.2004
respectively (Exts.R1(c), R1(d) and R1(e)). Out of the remaining 32
vacancies, on 18.4.2002 17 vacancies were filled up by direct recruitment
(Ext.R1(f). Out of these, four vacancies were N.J.D. vacancies of earlier
period and the remaining 13 vacancies were vacancies which arose from
30.10.2001 t0 31.12.2004. Out of the 17 vacancies filled up on 18.4.2002,
one N.J.D. vacancy arose which was filled up on 4.11.2003. Thus, all the
35 vacancies which arose between 30.10.2001 to 31.12.2004 have been
filled up as pointed out earlier. From 1.1.2005 to 22.2.2007 31 vacancies
arose and one special recruitment was effected on 20.3.2006 as per Ext.R1
(k) order. It is stated that 30 vacancies which arose after 31.12.2004, after
the expiry of the rank list, are pending to be filled up.
8. Shri S.P. Aravindakshan Pillai, learned counsel for the petitioner
argued that as far as the stand taken by the first respondent that six
vacancies have been reserved for special recruitment under Rule 17-A of
K.S. & S.S.R. and three vacancies for appointment under the
compassionate employment scheme is concerned, as a matter of fact, those
vacancies have been filled up only at a later point of time and therefore in
WPC 31267/2004 6
respect of those 9 vacancies which arose prior to 31.12.2004, the candidates
included in Ext.P1 rank list ought to have been advised. Learned counsel
pointed out that the word “reserved” has no special significance as far as
special recruitment and appointment under compassionate employment
scheme are concerned; there is no actual reservation as such and it is only to
be ensured that at the time of appointment there are sufficient number of
vacancies to appoint such candidates. It is therefore argued that the said
method of appointment made at a later point of time cannot militate against
the rights of candidates to be advised in the 9 vacancies which were
reported pursuant to the interim order passed by this court prior to
31.12.2004.
9. In reply, Shri P.C. Sasidharan, learned counsel for the Public
Service Commission and the learned Govt. Pleader pointed out that as far as
reservation for special recruitment is concerned, those vacancies were
actually reserved for them and hence they are not available for appointment
from Ext.P1 rank list. This is so in the case of appointment under the dying
in harness scheme. Mr. Sasidharan also pointed out that if petitioner and
other 8 candidates are directed to be advised, it will be only in respect of
vacancies which arose after 31.12.2004 which cannot be done and at any
rate, those vacancies shall be filled up only by way of a fresh recruitment
and if any such directions are issued, that will affect the rights of persons
WPC 31267/2004 7
who are expecting a fresh selection. He also relied upon the decision
reported in Jayachandran v. State of Kerala & others (1984 KLN 102).
10. Therefore, the effect of Rule 17-A mainly arises for
consideration. The said rule provides for special recruitment from among
the Scheduled Castes and Scheduled Tribes. The rule reads as follows:
“17-A. Special recruitment from among the Scheduled Castes
and Scheduled Tribes.- Notwithstanding anything contained in
these rules or in the special rules, the State Government may reserve
a specified number of posts in any service, class, category or grade
to be filled by direct recruitment exclusively from among the
members of Scheduled Castes and Scheduled Tribes.”
The Rule specifically provides that the State Government may “reserve a
specified number of posts, to be filled up by direct recruitment exclusively
from among the members of Scheduled Castes and Scheduled Tribes.”
This rule, as held by this court in various decisions, confers power to fill up
posts by making special recruitment which is separate from and
independent of the power available under Rule 14 of the K.S. & S.S.R. It
is supplementary to the provisions in Rule 14. (State of Kerala v. Sivadas
– 1979 KLT 678.) Later, a Full Bench of this court in State of Kerala v.
Sreekantan (1993 (1) KLT 107) held as follows:
“The wording of the Rule is categoric that a specified number of
posts in any service, class, category or grade shall be reserved to be
filled by direct recruitment exclusively from among the members of
the Scheduled Castes and Scheduled Tribes. the Rule further
provides that the above reservation is notwithstanding anything
contained in the KSSR or in the Special Rules. The fact that special
WPC 31267/2004 8
recruitment can be made from among the Scheduled Castes and
Scheduled Tribes notwithstanding anything contained in the
Subordinate Service Rules or the Special Rules makes it clear that
the direct recruitment contemplated under Rule 17A of the KSSR is
to be made outside the purview of the provisions contained in the
Subordinate Service Rules and the Special Rules. It is de hors and
independent of the Special Rules. Though in common parlance
special recruitment under R.17A is also a direct recruitment, it is not
a recruitment as contemplated under the Special Rules. Special
recruitment is confined to a category of persons, namely from among
the members of the Scheduled Castes and Scheduled Tribes alone.
The direct recruitment contemplated under the Special Rules is from
the open market and it is not confined to any particular section of the
public but from among the general public as a whole, though no
doubt, reservation has to be made as provided for under Rules 14 to
17. The direct recruitment under Rule 17A differs from a direct
recruitment under the Special Rules, for the former is confined to
Scheduled Castes and Scheduled Tribes alone whereas the latter is
open to all people. It is in independent recruitment not governed by
the provisions of the Special Rules but to be made in accordance
with R.17A. Even in cases where the appointment is to be made
solely by transfer or by promotion alone under the Special Rules, the
State Government is entitled to reserve a specified number of posts
to be filled by special recruitment from among the Scheduled Castes
and Scheduled Tribes under R.17A. This also is an indication that
the special recruitment under Rule 17A is not an appointment under
the Special Rules, but outside the same. The fact that for direct
recruitment under the Special Rules a specified number of posts shall
be filled by candidates belonging to the Scheduled Castes and
Scheduled Tribes under Rules 14 to 17 will not make any difference,
for Rule 17A is an additional provision for giving appointment to
the members of the Scheduled Castes and Scheduled Tribes. In that
view of the matter, even though special recruitment under R.17A is
also by way of direct recruitment, it is distinct and different from the
direct recruitment contemplated under the Special Rules and such
special recruitment cannot be taken into account in fixing the quota
of direct recruits as fixed under the Special Rules. Special
recruitment under R.17A has to be treated as a separate category of
direct recruits and it will be unfair to accommodate such special
recruits exclusively in the quota earmarked for direct recruits. The
number of special recruits will have to be deducted from the total
WPC 31267/2004 9
number of vacancies and the ratio prescribed for direct recruits and
promo tees under the Special Rules has to be applied for the
remaining posts. Recruits under the Sports Quota or under the dying
in harness scheme also stand on the same footing and such posts also
cannot be taken into account in fixing the quota available to direct
recruits under the Special Rules. The special recruitment under Rule
17-A, appointment under Sports Quota and appointment under the
Dying-in-Harness Scheme stand outside the Special Rues. To
determine the number of posts available for direct recruits and
promotees/transferees under the Special Rules, the number of special
recruits under the aforesaid three categories will have to be excluded
and the ratio applied for the remaining posts.”
Therefore, going by the above dictum, the number of special recruits will
have to be deducted from the total number of posts so as to determine the
number of posts available for direct recruitment. The said principle applies
for appointment under the dying in harness scheme and also under the
sports quota which also stands outside the special rules.
11. It is evident from the statement and the affidavits filed by the first
respondent that six posts were exclusively reserved for special recruitment
of Scheduled Castes and Scheduled Tribes candidates which were “already
reported to the Public Service Commission” and two posts are exclusively
reserved for posting of candidates under the compassionate employment
scheme. It is clear from the statement filed on 18.12.2004 that even though
there were 14 vacancies, five vacancies have been filled up on 27.10.2004
from the rank list Ext.P1 itself. Therefore, the remaining vacancies were
only 9. It is evident from the affidavit filed on 26.2.2007 that as on
WPC 31267/2004 10
29.10.2001, i.e. the date of Ext.P1 rank list, the number of vacancies were
52 and out of which, five were set apart for special recruitment and reported
to the Public Service Commission. Evidently one more was reported for
special recruitment making the total to 6. The petitioner has no contention
that the reservation of six vacancies for special recruitment for Scheduled
Castes and Scheduled Tribes breaches the percentage of reservation
provided in the rules. Therefore, going by the data available, 79 vacancies
were filled up from the rank list between 29.10.2001 and 31.12.2004. The
special recruitment has been made only in respect of six vacancies from the
category of Scheduled Castes and Scheduled Tribes. Therefore, at any rate,
it cannot be contended that the percentage of reservation has been exceeded
at any point of time. The petitioner can succeed only if it is shown that
either at the time of reservation of six vacancies for special recruitment of
Scheduled Castes and Scheduled Tribes plus 2 vacancies for appointment
under the compassionate employment scheme or at the time when the
beneficiaries of such reservation were appointed, the percentage of
reservation has been exceeded going by the total number of vacancies or by
the cadre strength of Excise Guards in the District. Since the petitioner
could not point out any breach of such percentage of reservation provided
under Rule 14 of K.S. & S.S.R. either at the time of making the reservation
or at the time of appointment of such candidates, there cannot be any
WPC 31267/2004 11
transfer of vacancies in favour of persons included in Ext.P1 rank list to
accommodate them. Even though in the decision reported in Babu v.
Poulose (2003 (2) LT 428) a Division Bench of this court held that the
point of time the percentage has to be seen is the date of appointment and
not on the date on which requisition is made to the Public Service
Commission, it makes no difference here.
12. The vacancies presently existing are which arose after
31.12.2004. It is evident that the persons appointed under Rule 17-A under
SC/ST categories and persons who were appointed under compassionate
employment scheme, were appointed in vacancies which arose prior to
31.12.2004. Unless by any legally known method such vacancies are liable
to be counted for direct recruitment from Ext.P1 rank list, no direction can
be issued to advise candidates from Ext.P1 list as admittedly the existing
vacancies arose after the expiry of the rank list going by the affidavit filed
by the first respondent. It is true that as argued by the counsel for the
petitioner, candidates could be directed to be advised from Ext.P1 to those
nine vacancies even without disturbing the appointees under the special
recruitment scheme and under the dying in harness scheme. But since the
first respondent has taken a definite stand that those nine persons were
appointed in vacancies reserved for them prior to 31.12.2004, no further
vacancies are available to advise candidates from Ext.P1 prior to
WPC 31267/2004 12
31.12.2004. In 1984 KLN 102, it was held in paragraph 14 that direct
recruits are entitled only to the posts available to them under the rules.
13. Counsel for the Public Service Commission invited my attention
to Rule 2(12) of the definition clause in the K.S. & S.S.R. to point out that a
candidate is said to be “recruited direct” to a service, class, category or post
when, in case the appointment has to be done in consultation with the
Commission, on the date of the notification by the Commission inviting
applications for the recruitment, and in any other case, at the time of
appointment. It is therefore contended that reservation of posts under Rule
17-A has to be considered at the point of time when the Commission invited
applications for recruitment and not at the time of their appointment.
Counsel for the petitioner disputed this position. Any way, in the light of
the view that I have taken in the matter, it is not necessary to decide the
scope of the said rule here. Rule 17-A clearly empowers the Government to
reserve a specified number of posts “to be filled up by members of
Scheduled Castes and Scheduled Tribes” and in this case also such
reservation was made and they were reported to the Public Service
Commission. Since there is no breach of the percentage of reservation
provided in favour of Scheduled Castes and Scheduled Tribes in Rule 14(c)
of the Rules, according to me, the petitioner cannot seek for transfer of
vacancies so as to accommodate candidates from the ranked list Ext.P1.
WPC 31267/2004 13
Therefore, the writ petition fails and the same is dismissed without
any order as to costs.
(T.R. Ramachandran Nair, Judge.)
kav/