JUDGMENT
K.S. Radhakrishnan, J.
1. The question that has come up for consideration in this case is whether the Kerala Public Service Commission (hereinafter called ‘the Commission’) has properly applied the reservation principles enumerated in Rule 15(c) of the Kerala State and Subordinate Services Rules (for short ‘the Rules’).
2. Before we go into the legal question, let us examine the facts of the case. The Commissioner published a rank list for appointment to the post of Lecturer in Electronics and Communication Engineering in the Technical Education Department. The rank list was published on 23.7.1999. Writ Petitioner-first respondent was assigned rank No. 74, He belongs to Other Christian (O.X.). Appellant-third respondent in the Writ Petition was assigned rank No. 98. he belongs to Dheevara community. Members of both the communities are eligible to reservation in the matter of appointment in government service as per the provisions of Rules 14 to 17 of Part II of the Rules. Communal rotation as per Rules 14 to 17 of Part II of the rules is an integrated cycle consisting of 50 open turns and 50 communal turns. In the cycle of 100 turns there is only one turn of Other Christian (O.X.), that is 48. Commission maintains a compensation register. The register shows that turn 48 relating to Other Christian was passed over on 2.4.1991 as no candidate from the said community was available when its turn arose. In that turn the next available community in the order of rotation was Dheevara at turn 50. A member of Dheevara community was accordingly nominated. Subsequently when the turn of Dheevara community was reached, there was no other candidate available either from Other Christian community or from Dheevara community. Consequently turn was passed of to the next vacancy in the order of rotation. Accordingly the turn was filled up with a member of Ezhava community. This was the position was regard to previous selection.
3. the present rank list was published on 23.7.1999. turn started at 57 which was earmarked for open competition. Next turn is 58 which according to rotation goes to Ezhava community. The Commission accordingly filled up turn 58 by a member of the Dheevara community, the third respondent on the plea that earlier rotation of Dheevara community was passed off and a member of Ezhava community was nominated. First respondent herein belongs to other Christian. He challenged the action of the commission stating that the turn should have gone to Other Christian. Learned Single Judge held in favour of the writ petitioner-first respondent. Aggrieved by the same, this appeal has been preferred by additional third respondent.
4. Counsel for the appellant-additional third respondent and the Commission defended the appointment of additional third respondent. According to him, turn 48 relates to Other Christian which was passed over and turn 50 of Dheevara was passed over to Ezhava. The communities passed over were Other Christian and Dheevara. Dheevara derived the benefit of other Christian and Ezhava derived the benefit of Dheevara. The benefit forfeited to Other Christian is to be adjusted against the claim of Dheevara community and the benefit forfeited to Dheevara is to be adjusted against the claim of Ezhava community as per Sub-rule (c) of Rule 15.
5. Counsel for the writ petition submitted that the Service Commissioner has wrongly applied the principle of reservation under Rule 15(c) of the Rules. According to him writ petitioner was assigned rank No. 74 in the list published on 23.7.1999 and additional third respondent was assigned rank No. 98. Turn of Other Christian arose in the previous list at 48. Since member of the said community was not available, member from the Dheevara community was accommodated. When the turn of Dheevara community in the previous list at turn 50 arose, there was no member available from Other Christian community. Consequently the same was passed over to the next community representation that is, Ezhava. In other words, Ezhava community has got the benefit of that turn because member from Other Christian community was not available. Now that the turn of Ezhava community at 58 has arisen. Consequently that turn should go to Other Christian a benefit which was accrued to Ezhava due to non availability of Other Christian. According to him Public Service Commission was duty bound to compensate the turn of Other Christian at the earliest opportunity. Denial of appointment to the writ petitioner, according to the counsel, is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India.
6. Rule 14 of the rules lays 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 the special rules have been issued. The integrated cycle of rotation comprising of 100 turns is given in the Annexure to the said rules. Rule 14 lays down the procedure for filling OC and BC turns in the cycle of rotation. Rules 15 specifics the procedure in filling the BC turn/turns allocated to a particular group of community, when candidates belonging to that particular group of community are not available. According to Sub-rules (a) and (b) of Rule 15, if a suitable candidate is not available for selection from a particular community specified in the annexure, the said community shall be passed over and the post shall be filled up by a suitable candidate from the community immediately next to the passed over community in the said annexure in the order of rotation. Sub-rule (c) of Rule 15 requires that 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-rules (a) and (b) shall be restored to it at the earliest opportunity, by making adjustment against the claims of the particular community or group that derived the extra benefit by reason of such passing over. In this connection it is worthwhile to extract Rule 15(c) for easy reference.
(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 the particular community or group is available for selection by making adjustment against the claims of the particular community or group that derived the extra benefit by reason of such passing over.
The above rule specifically says that 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-rules (a) and (b) shall be restored to it at the earliest possible opportunity. The rule emphasises the legal obligation to restore the benefit of the turn forfeited by particular community. Second limp of Rule 15(c) says that if a suitable candidate from the particular community or group is available for selection by making adjustment against the claims of the particular community or group that derived the extra benefit by reason of such passing over the post shall be filled up by suitable candidate from the community or group of communities immediately next to the passed over community or group in the order of rotation. When we read Rule 15(a) as well as Rule 15(c) together it is imperative that the community which had forfeited its benefit be compensated at the earliest possible opportunity. If such a compensation is not given at the earliest opportunity the very basis of reservation principle enunciated in Article 16(4) of the Constitution of India would be defeated.
7. In Preeti Srivastava (Dr.) v. State of M.P. ((1999 7 SCC 120) the Apex Court held that the constitutional protection of equality before law under Article 14 is one of the basic tenets of the Constitution and it was a cardinal value which would govern our policies and actions, particularly policies for employment and education. That is why Article 16(4) permits reservation of appointments or posts in favour of any backward class which is not adequately represented int he services under the State. Reservation is linked with adequate representation in the services. Reservation is thus a dynamic and flexible concept. Departure form the principle of equality of opportunity has to be constantly watched. So long as the backward group is not adequately represented in the services, reservation should be made. Clearly, reservations have been considered as a transitory measure that will enable the backward to enter and be adequately represented in the State services.
8. Article 16(4) is an enabling provision which permits reservation of appointments or posts in favour of any backward class which is not adequately represented in the services under the State. Government of Kerala therefore in exercise of the power under Article 309 of the Constitution of India made the Kerala State and Subordinate Services Rules, 1958, Rules 14 and 17 of Part II deal with reservation. The integrated cycle of rotation consists of 100 and principle of Rules 14 and 17 has to be applied. We find there is only one turn for Other Christian, that is turn 48 in the integrated cycle. If the turn of that community is not compensated at the earliest possibility opportunity that community’s right to enter State service would be defeated. The object is to see that the community which is not adequately represented in State service and passed over because of non-availability of the member from that particular community, has to be accommodated at the earliest opportunity when the turn of passed over community is available in the rank list. If such a community is not given appointment at the earliest opportunity the very purpose of reservation in Article 16(4) would be defeated, otherwise it would render the right of such community to be compensated at the earliest possible opportunity meaningless and illusory.
9. We are therefore of the view that when we read Rule 15(a) and 15(c) together read with Article 16(4) of the Constitution of India, the purpose and object of the Rule is to compensate the one forfeited by passed over community at the earliest point of time. In effect this is the principle laid down by a Division Bench of this court in Cochin University of Science and Technology v. Mohammed Aslam (1996 (1) KLT 214). We indicate that the principle followed by the Commission as it is done in the case would defect the object and purpose of reservation as well as the object of restoration of benefit of turn forfeited by the community. We may point out in the case the community which forfeited the benefit at the earliest point of time was Other Christian community. It is in its turn member of Dheevara community was accommodated. Turn of Dheevara community arose at turn No. 50. There was no member of Other Christian community or Dheevara community. Consequently member of Ezhava community was appointed. In other words, member of Ezhava community got appointment because of non-availability of member of Other Christian community and member of Dheevara community. Therefore, it is imperative that a community which lost the benefit at the earliest point of time has to be accommodated first when the turn of that community which was accommodated in that vacancy arises. In the instant case turn of Ezhava community arose at 58. Therefore as and when turn of Dheevara and Other Christian communities arises the turn of the community which was forfeited earlier has to be compensated at the earliest. We are of the view that such a reasoning would only advance the object and purpose of Rules 15(a) and 15(c) of the Rules. We therefore find no infirmity in the judgment of the learned Single Judge to be interfered in this appeal. This appeal lacks merits and it is accordingly dismissed.