IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2055 of 2009()
1. K.B. ALI, SECTION OFFICER (HIGHER
... Petitioner
Vs
1. SREE SANKARACHARYA UNIVERSITY
... Respondent
2. P.A. THAHA, SECTION OFFICER,
3. K.M, MEERAN, SECTION OFFICER (HIGHER
4. ANTONY P.A. ASSISTANT REGISTRAR,
5. SURENDRAN A.K, P.S. TO VICE
6. SOUDAMINI K.G., ASSISTANT REGISTRAR,
7. VALSALA P.N., SECTION OFFICER (HIGHER
8. GEORGE M.J.,
9. SHAJI V.N.,
10. PRADEEP BABU P.D,
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :SRI.ASOK M.CHERIAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :30/03/2010
O R D E R
(C.R)
P.R.RAMAN & P.N.RAVINDRAN, JJ.
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W.A.No. 2055 of 2009
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Dated this the 30th day of March, 2010
J U D G M E N T
Raman, J.
The appellant is working as Section Officer in the
Sree Sankaracharya University of Sanskrit, Kalady, the first
respondent herein. He is a candidate belonging to the Muslim
community. The university issued Ext.P1 notification, dated
4.12.1999, inviting applications from qualified
Assistants/Sections Officers working in the Universities of Kerala
State to the post of Section Officer in the scale of pay of
Rs.6500-10550. The number of posts advertised was 15
(approximate). The appellant and respondents 2 to 10 were
also candidates who applied for the said post. The rank list
consisting of 50 candidates was published on 1.4.2000, as
evidenced by Ext.P2. The appellant and respondents 2 to 10
were included in the rank list and they were appointed to the
post of Section Officers on 5.4.2000, applying the rules of
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2
rotation contained in Rules 14 to 17 of the Kerala State &
Subordinate Services Rules, 1958, for short ‘the K.S & S.S.R’.
In the rank list, there were five candidates belonging to the
Muslim Community including the appellant and respondents 2
and 3. Respondents 2 and 3 were Serial Nos.6 and 10,
whereas the appellant was Serial No.23. However the
appellant got appointment, as per order dated 5.4.2000,
earlier to respondents 2 and 3, since he was appointed
against 6th turn as a reserved candidate. Prior to the
appointment, candidates eligible for community reservation
were directed to produce non creamy layer certificates and the
appellant produced the same and obtained the benefit of
reservation. The party respondents belonging to Muslim
Community however did not produce any such certificate and
they were selected against open competition turns. In the
provisional gradation list, Ext.P6, the University assigned
seniority to respondents 2 and 3 above the appellant.
Respondents 2 and 3 were assigned serial Nos.6 and 11
respectively and the appellant was serial No.16. The other
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3
Muslim candidate who was also appointed in the reservation
turn was assigned Serial No.19. Though the appellant filed
objections, the same was rejected and the final gradation list
was published, as evidenced by Ext.P8 produced in W.P.(C)
No.1118 of 2008, confirming the provisional gradation list.
2. The contention of the appellant in the writ
petition was that the seniority position of the appellant could
not have been disturbed at the time of preparation of the
gradation list, extending the benefit of third proviso to Rule 14
(c) of the K.S. & S.S.R, in so far as the other two Muslim
candidates, respondents 2 and 3, were not eligible to claim
any reservation, as they did not produce the non creamy layer
certificate. According to him, after the decision of the Apex
Court in Indra Sawhney v. Union of India (1992 Suppl (3)
SCC 217), the inequity, if any, to be remedied by virtue of
the third proviso to Rule 14(c) of K.S. & S.S.R. should be
confined among the candidates eligible for reservation from
the same community. According to him, in so far as the other
two persons were not eligible to be considered against the
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4
reservation turns, the Rule has no application in fixing the
seniority.
3. Per contra, it is contended by the learned
counsel appearing for the University as also the learned
counsel for the contesting respondents that the inequity
sought to be remedied by the third proviso to Rule 14(c) of the
K.S. & S.S.R is between the candidate appointed on merit, vis-
a-vis, the candidate appointed against the reservation turn
from the same community and in a situation where a
candidate who is selected on merit in the open competition
turn is pushed down to accommodate a candidate of the
same community selected in the reservation turn, the
resultant inequity is sought to be remedied by the third
proviso to Rule 14(c) of K.S. & S.S.R. We will consider the
said contention in detail later.
4. A few more facts are necessary to be stated for
the disposal of this writ appeal. The selection of the appellant
and the party respondents was the subject matter of
W.A.No.2055/2009
5
challenge in O.P.No.8571 of 2002 and connected cases and
this Court by a common judgment rendered in those cases
quashed the selection and appointment. Writ Appeals
preferred therefrom were also dismissed by a Division Bench
of this Court. Thereafter, a Special Leave Petition was filed
against the common judgment in W.A.No.1760 of 2005 and an
interim order was passed by the Apex Court, a copy of which
is produced as Ext.P12, by which the Apex Court stayed the
judgment of this Court. Based on the interim order of stay
passed by the Apex Court, the University subsequently
effected promotions and the selected candidates were
promoted to higher posts up to the level of Joint Registrar.
Therefore, as far as the selection and appointment is
concerned, the same having been quashed by a co-ordinate
bench of this Court, except for the order of stay granted by
the Apex Court and because of the pendency of the SLP, the
question regarding the interpretation to be placed on the third
proviso to Rule 14(c) of the K.S. & S.S.R. would have
become academic. It is to be noticed that the appellant had
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filed an earlier writ petition before this Court as O.P.No.16945
of 2002 challenging Ext.P8 seniority list. This Court by
Ext.P11 judgment rendered in the said case and another
connected case left the contention of the petitioners to be
considered in appropriate proceedings, subject to the outcome
of the appeal, if any, filed against the judgment in
O.P.No.26486 of 2003. The said Original Petition,
O.P.No.26486 of 2003, was one among the group of cases
disposed of by this Court by a common judgment quashing the
entire selection to the post of Section Officer in the first
respondent University and has become final, by virtue of the
subsequent Division Bench decision, stated supra. Ext.P11
judgment is binding as far as the appellant is concerned and
has become final in so far as no appeal has been preferred
therefrom. Now that the common judgment rendered by this
Court quashing the selection having been confirmed in appeal
by a Division Bench, the effect of Ext.P11 judgment is that the
appellant could opt to challenge the gradation list only after
final judgment is rendered by the Apex Court in the SLP now
W.A.No.2055/2009
7
pending, since, as far as this Court is concerned, the matter
has become final in the light of the Division Bench decision of
this Court. But this was not seen brought to the notice of the
learned single Judge while deciding the preset writ petition. In
view of Ext.P11, the appellant could not have filed any writ
petition, until the validity of the selection is upheld by the
Apex Court.
5. Be that it may, since the issue regarding the
validity of the gradation list was challenged and rejected by
the learned single Judge, after interpreting the third proviso to
Rule 14(c) of the K.S. & S.S.R and since the appellant did not
chose either to withdraw the appeal and the writ petition
reserving his right, as per the judgment in Ext.P11, we
proceeded to hear the respective counsel on the issue
regarding the interpretation to be placed on the third proviso
to Rule 14(c) of K.S. & S.S.R. and the correctness of the
judgment under appeal.
6. The crux of the argument raised by
W.A.No.2055/2009
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Sri.Kaleeswaram Raj, appearing on behalf of the appellant, is
that persons from the backward classes who come within the
category of creamy layer are not entitled for reservation. He
placed reliance on Indra Sawhney v. Union of India (1992
Suppl (3) SCC 217) and second decision in Indra Sawhney v.
Union of India (AIR 2000 SC 498). It is his contention that
by granting the benefit of inter change to persons who are
appointed in the open competition turns, unequals are treated
equally. According to him, only persons who are entitled for
reservation can be grouped together and only among them,
an interchange can be made, as provided in the third proviso
to Rule 14(c) of the K.S. & S.S.R. Before we consider the
above contention, it will be useful to refer to the provisions
contained in Rule 14(c) to the extent they are relevant for our
purpose. Rule 14 of the K.S.& S.S.R. is extracted below:-
“14. Reservation of appointments:- Where
the Special Rules lay down that the principle of
reservation of appointments shall apply to any
service , class or category, or where in the case of
any service, class or category for which no Special
Rules have been issued, the Government have by
notification in the Gazette declared that the principleW.A.No.2055/2009
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of reservation of appointments shall apply to such
service, class or category shall be made on the
following basis:-
(a) The unit of appointment for the
purpose of this rule shall be 20, of which 2 shall be
reserved for Scheduled Castes and Scheduled Tribes
and 8 shall be reserved for the Other Backward
Classes and the remaining 10 shall be filled on the
basis of merit:
[Provided that out of every five posts
reserved for Scheduled Castes and Scheduled
Tribes, one shall go to Scheduled Tribe candidate
and the remaining four shall go to Scheduled Caste
candidates and in the absence of a candidate to fill
up the post reserved for Scheduled Tribe candidates,
it shall go to a Scheduled Caste candidates and vice
versa.]
(b) The claims of members of
Scheduled Castes and the Scheduled Tribes and
Other Backward Classes shall also be considered for
the appointments which shall be filled on the basis
of merit and where a candidate belonging to a
Scheduled Caste, Scheduled Tribe or Other
Backward Class is selected on the basis of merit,
the number of posts reserved for Scheduled Castes,
Scheduled Tribes or for Other Backward Classes as
the case may be, shall not in any way be affected.
(c) Appointments under this rule shall
be made in the order of rotation specified below in
every cycle of 20 vacancies.
1. Open competition
2. Other Backward Classes
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3. Open competition
4. Scheduled Castes and Scheduled Tribes
5. Open competition
6. Other Backward Classes
7. Open competition
8. Other Backward Classes
9. Open competition
10. Other Backward Classes
11. Open competition
12. Scheduled Castes and Scheduled Tribes
13. Open competition
14. Other Backward Classes
15. Open competition
16. Other Backward Classes
17. Open competition
18. Other Backward Classes
19. Open competition
20. Other Backward Classes
[Provided that the fourth turn in the third
rotation and the twelfth turn in the fifth rotation
shall go to Scheduled Tribe candidates and the
fourth and twelfth turns in the first, second and
fourth rotations, the twelfth turn in the third
rotation and the fourth turn in the fifth rotation shall
go to Scheduled Caste candidate and in the absence
of a candidate for appointment against the turn
allotted for Scheduled Tribe candidates, it shall go
to a Scheduled Caste candidate and vice versa.]
[Provided that the rule shall not apply in the
following cases:-
(i) appointment of near relatives of military
personnel killed, permanently disabled or reported
to be missing in action, and near relatives of
Government servants dying in harness, if they are
W.A.No.2055/2009
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or have been wholly dependent on such military
personnel or Government servants, as the case may
be, subject to the condition that priority in the
matter of appointment shall be given only to one
relation in the case of each such personnel or
Government servant.
(ii) appointment of disabled jawans who are
to be rehabilitated on completion of their medical
treatment.
Persons referred to in items (i) and (ii) above
shall be given priority in the matter of appointment
to Government service provided they possess the
prescribed qualifications.
[Provided also that in preparing the list of
eligible candidates to be appointed under this rule
applying the rotations specified above in every cycle
of 20 vacancies, the candidates eligible to be
selected on open competition basis, that is, turns
1,3,5,7,9,11,13,15, 17 and 19 shall be selected first
and then the candidates for the reservation turns,
out of those available in the ranked list in the
particular groups having regard to their ranks. In
finalising the select list any candidate of the same
community selected on open competition turns if
found to be below in the order of the candidates
selected from the same community on the basis of
reservation, for the fixation of ranks as per rule 27
of these rules, candidates of the same community
obtaining higher marks shall be interchanged with
the candidates of the same community in the
reservation turn for the purpose of ranking.]
” (emphasis supplied)
W.A.No.2055/2009
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7. As per Rule 27(a) of the K.S. & S.S.R., seniority
of a person in a service, class, category or grade shall, unless
he has been reduced to a lower rank as punishment, be
determined by the date of the order of his first appointment to
such service, class, category or grade. Rule 27(c) states that
notwithstanding anything contained in clauses (a) and (b)
thereof, the seniority of a person appointed to a class,
category or grade in a service on the advice of the Commission
shall, unless he has been reduced to a lower rank as
punishment, be determined by the date of first effective advice
made for his appointment to such class, category or grade and
when two or more persons are included in the same list of
candidates advised, their relative seniority shall be fixed
according to the order in which their names are arranged in
the advice list.
8. Therefore, on a combined reading of Rule 27(c)
read with the third proviso to Rule 14(c), before finalising the
select list, if a candidate of the same community selected in
the open competition turn is found to be below the order of
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candidates selected from the same community on the basis of
reservation, then the candidate of the same community
obtaining higher marks shall be interchanged with the
candidates of the same community in the reservation turn for
the purpose of ranking.
9. Admittedly, the appellant, respondents 2 and
3, and two others belonging to the Muslim community were
included in the rank list. The appellant and another were
selected against reservation turns. It is also not disputed that
in the rank list published, they are lower in the rank. The
appellant and the other candidate selected against reservation
turns were Rank Nos.23 and 28, whereas respondents 2 and 3
were Rank Nos.6 and 10 in Ext.P2 rank list. It was against
the 6th turn that the appellant was selected. Though
respondents 2 and 3 had obtained higher marks and were
assigned higher ranks in the select list, they were selected
only against the open competition turns, viz., turns 11 and
19.
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10. On a plain reading of the third proviso to Rule
14(c) of the K.S.& S.S.R., extracted above, there cannot be
any doubt that the inequity sought to be remedied is between
a candidate selected in the open competition turn having
higher marks and a candidate of the same community having
lesser marks and a lower rank in the rank list, on the latter
superceding the former, by virtue of the reservation to which
he is entitled. The contention of the appellant is that the
expression “candidate of the same community” should be
understood as a person belonging to the same community
who is eligible for reservation but was selected in the open
competition turn. In other words, the appellant wants us to
restrict the benefit of the third proviso only to remedy the
inequity, if at all, arising between two candidates selected
against reservation turns. We find no force in the said
contention.
11. On a plain reading of the Rule, the inequity
sought to be remedied is between a candidate selected in the
open competition turn who is pushed down by another
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candidate of the same community, the latter being appointed
in the reservation turn. In other words, it is not to remedy the
situation among the equals as contended by the appellant, but
it is to remedy a situation of inequality arising on account of a
reserved candidate superceding another candidate of the
same community, but who has got higher marks and had
been assigned higher rank in the select list. The Honourable
Apex Court in Indra Sawhney’s case only held that in order to
claim reservation, a candidate should not only belong to the
particular community entitled for reservation, but should also
be a candidate in the non creamy layer category. Even after
Indra Sawhney’s case, the Rule making authority did not
choose to amend the Rule. The Rule as such is not under
challenge. We do not find, in such circumstances, any reason
to accept the interpretation confining the benefit of the third
proviso only among the candidates eligible for reservation. In
the case of a Scheduled Caste or Scheduled Tribe candidate,
there is no creamy layer concept for claiming reservation.
Therefore, if this Rule has to be interpreted in case of a
W.A.No.2055/2009
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Scheduled Caste/Scheduled Tribe candidate, the word
“Community” has necessarily to be understood as the
community to which the candidate belongs, irrespective of
whether they belongs to the non creamy layer or not. But in
the case of Other Backward Classes communities, to say that
very same expression should be understood in a different way,
virtually interpreting the Rule in two different ways in two
different contingencies is not permissible under law.
12. Even though learned counsel for the
appellant placed reliance on Ext.P9 circular issued by the
Kerala Public Service Commission, we do not find it fit or
proper to comment on the same, since they are not in the
party array. Further, a guideline issued by the Kerala Publis
Service Commission is not a guideline to be followed by us
while interpreting a statutory rule. In case we accept the
interpretation placed on the third proviso to Rule 14(c) of the
K.S.& S.S.R. by the appellant, we will be virtually re-writing
the rule which is the function of the Rule making authority and
is in the field of subordinate legislation. Nair Service
W.A.No.2055/2009
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Society v. Beermasthan (2009 (2) KLT 123 (SC) was a case
where the interpretation placed by this Court on Rules 14 to
17 of the K.S.& S.S.R. was not accepted by the Apex Court.
In that context, in paragraphs 41 and 42, it was held as
follows:-
” 41. It may be mentioned that
there is no challenge to the validity of
these Rules. Hence we have to read the
Rules as they are. In our opinion, the so-
called purposive interpretation sought to
be placed on the Rules by the High Court
was misconceived and is, therefore, not
acceptable.
42. The High Court in its
observation quoted above has sought to
find out the intention of Rr.14 to 17. In
our opinion the question of finding the
intention arises only when a statute is not
clear. If the statute is clear as it is in this
case, it has to be read as it is, and the
literal rule of interpretation is to be
applied. In our opinion intention seeking
is ordinarily to be done only when the
statute is not clear.”
Further, in paragraph 46, the Apex Court has stated as
follows:-
W.A.No.2055/2009
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“46. In our opinion the High Court was
in error in directing the Commission to
ignore the express mandate of R.14(a).
The High Court was wrong in holding that
the said Rule only applies when the
vacancies are less than 20. In fact the
direction of the High Court in the
impugned judgment really amounts to
treating the entire number of vacancies
which in the present case is 250 as one
unit, which is against the express
mandate of R.14(a). Thus the High
Court has really amended R.14(a) and
(c) of the Rules, which was not in its
jurisdiction. It is only the legislature
which can amend the law, and not the
Court.”
13. As we have already held, the object of the
third proviso to Rule 14(c) of K.S. & S.S.R. is to remedy the
inequity flowing from the supercession of a candidate selected
in the open competition turn by a candidate of the same
community selected in the reservation turn, the former
admittedly being ranked higher to the latter. The Rule
envisages that though the turn for appointment against a
reserved vacancy may arise first, that shall not affect the
seniority of the meritorious candidate having obtained higher
rank, and it is with a view to protect such seniority that third
W.A.No.2055/2009
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proviso was inserted in Rule 14(c) of the K.S.&S.S.R.
The learned Single Judge has elaborately
considered the various aspects of the matter and after
referring to various authorities, held that the interpretation
sought to be placed on the third proviso to Rule 14(c) of the
K.S. & S.S.R., as contended by the appellant, cannot be
accepted. We are in complete agreement with the view taken
by the learned single Judge. We find no merit in this writ
appeal. Accordingly, this writ appeal fails and is dismissed.
P.R.RAMAN, JUDGE.
P.N.RAVINDRAN, JUDGE.
nj.