IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 WP(C).No. 35442 of 2005(T) -------------------------- PETITIONERS: ------------ 1. S. SHAFEEK, AGED 22 YEARS, S/O. LATE SAIDALI, SHAFEEK MANZIL, PADAM P.O., KALANJOOR, PATHANAMTHITTA. 2. K.K. AJEESH, AGED 21 YEARS, S/O. KUMARAN, KOLUPATTAM HOUSE, VELIYATHUNADU, ERNAKULAM. BY ADV. SRI.BABU KARUKAPADATH SRI.K.A.NOUSHAD SMT.M.A.VAHEEDA BABU RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA AGRO MACHINERY CORPORATION LTD., A GOVERNMENT OF KERALA UNDERTAKING, REGD. OFFICE, ATHANI-683585, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.ANTONY DOMINIC SRI.A.M.SHAFFIQUE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.H.B.SHENOY SRI.B.ASHOK SHENOY GOVERNMENT PLEADER MR.K.SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 35442/05 APPENDIX PETITIONER'S EXHIBITS : EXT.P1 TRUE COPY OF THE TRADE CERTIFICATE ISSUED BY THE SECRETARY STATE COUNCIL OF VOCATIONAL TRG INDL.TRG DEPT, GOVT OF KERALA TO THE FIRST PETITIONER EXT.P2 TRUE COPY OF THE TRADE CERTIFICATE ISSUED BY THE SECRETARY STATE COUNCIL OF VOCATIONAL TRG INDL.TRG DEPT, GOVT OF KERALA TO THE SECOND PETITIONER EXT.P3 TRUE COPY OF THE NOTIFICATION IN MALAYALA MANORAMA DAILY DT.23.3.05 EXT.P4 TRUE COPY OF THE NONCREAMY LAYER CERTIFICATE DT.15.7.2005 ISSUED BY THE TAHSILDAR, ADOOR TALUK RESPONDENT'S EXHIBITS : EXT.R2(a) TRUE COPY OF THE SELECT LIST INDICATING RESERVATION TRUE COPY PA TO JUDGE K.BALAKRISHNAN NAIR, J. -------------------------------------------------------------------------------- Writ Petition (C) No.35442 of 2005-T -------------------------------------------------------------------------------- Judgment The petitioners were applicants for appointment to the post of Trainee Mechanic in the 2nd respondent company. The said respondent invited applications for the above said post by Ext.P3 notification dated 23.03.2005. The notified vacancies were 12. A written test was conduced for the candidates who applied for the post on 19.06.2005. The petitioners claim, both of them did well in the written test. Thereafter, the first petitioner was invited to participate in an interview scheduled to be held on 23.07.2005. He was also directed to produce the original certificates to prove his qualifications and experience and also the non-creamy layer certificate if he claims the benefit of reservation. The first petitioner, thereupon produced Ext.P4 non-creamy layer certificate dated 15.07.2005 issued by the Tahsildar. He belongs to Muslim community and in view of Ext.P4, he is eligible to get the benefit of reservation. The second petitioner is a member of the Scheduled Caste community and therefore, he should also have been invited for the interview, it is submitted. After the interview held on 23.07.2005, there was no further intimation from the 2nd respondent. Later, the petitioners came to understand that 12 persons were WPC 35442/05 2 selected and were going to be appointed by the 2nd respondent. Apprehending that the rules of reservation will not be followed by the 2nd respondent, though it was mandatory to follow the same, the Writ Petition was filed, praying to set aside the selection and appointments, if any, made pursuant to Ext.P3 to the extent the same violates the principles of reservation. During the pendency of the Writ Petition, 12 persons were appointed subject, of course, to the final orders in the Writ Petition. 2. The 2nd respondent has filed a counter affidavit and also an additional counter affidavit in the Writ Petition. In the said counter affidavit, it is stated that 1170 candidates participated in the written test for the post of Trainee Mechanic. A rank list was prepared based on the marks secured in the written test and it was decided to call the first 60 candidates in the said list for the interview. Since sl.nos. 60 to 65 secured the very same marks, altogether, 65 candidates were called for the interview. Since the second petitioner did not come within the said range, he was not called for the interview. After the interview, a ranklist of 24 candidates was published and from the said list, 12 vacancies of Trainee Mechanic were filled up. The 2nd respondent would submit that the selection and appointments were make strictly in accordance WPC 35442/05 3 with the merits of the candidates. Since the petitioners did not secure the requisite merit, they did not find a place in the select list, it is submitted. It is also submitted that the communal rotation was applied in making appointment from among the 24 candidates included in the final select list. The petitioners have filed a reply affidavit, dealing with the averments in the counter affidavit. 3. It is common case that the rules of reservation contained in Rules 14 to 17 of Part II KS & SSR will apply to the appointments in the 2nd respondent company. But, going by Ext.R2(a) list, it is seen that no member of the Scheduled Caste or Scheduled Tribe is included in it, nor any Muslim candidate finds a place in it. They were excluded obviously for the reason that the 2nd respondent decided to select only 24 candidates, based on merit among the 65 candidates called for the interview and thereafter applied the communal rotation. If the 65 candidates who were found eligible to participate in the interview were taken as the field of choice for applying the communal rotation, the members of the SC/ST and Muslim communities would have definitely found a place among the 12 appointees. Going by the roster under Rule 17 of Part II KS & SSR, turn numbers 4 and 12 would have gone to the SC/ST candidates and the 6th turn would have gone to a Muslim candidate. In WPC 35442/05 4 view of the above undisputed facts, the learned counsel for the petitioners submitted that the selection and appointment to the post of Trainee Mechanic should be unsettled and a fresh list should be prepared applying the communal rotation correctly. The learned counsel also pointed out that if the rank list is prepared strictly going by the marks alone in the written test and the interview, the first petitioner's rank would have been 35 having secured the total marks of 39. There are five other candidates also who secured 39 marks. Among them, there is an SC candidate. There is another SC candidate who secured rank no.34. So, there was no justification for not appointing two members of the SC/ST community and a member of the Muslim community, it is submitted. 4. I heard the learned Standing Counsel for the 2nd respondent and also the learned Government Pleader appearing for the 1st respondent. The above submissions by the learned counsel for the petitioners are made based on a merit list, prepared based on the marks disclosed from the pleadings and materials produced before this Court including the files furnished by the 2nd respondent. The ranking given in the said list is not disputed by the learned counsel for the 2nd respondent. Therefore, I take the said list furnished by the learned counsel for the petitioners as the correct merit list of the 65 candidates WPC 35442/05 5 who were called for the interview. 5. In view of the above facts, it is clear that the first petitioner would have got appointment had the communal rotation applied, treating the 65 candidates to be in the field of choice. But the point to be decided is whether the restriction of the filed of choice from 65 to 24 is justified or not. Normally, candidates are called @ 1:3 or 1:5 with reference to the total number of vacancies. In this case, the 2nd respondent has chosen to call candidates @ 1:5. Since six candidates obtained very same marks, altogether, 65 candidates were included in the list. Out of more than 1000 candidates, only 65 alone were called for the interview. It means that they are fairly meritorious candidates. Therefore, there is no justification for further restricting the field of choice after the interview for the purpose of application of communal rotation. Going by the records, it is seen that the balance in favour of one candidate or the other tilted because of the difference in the marks obtained in the interview. In other words, the basic merit in the written test reflected in Ext.P5 does not show much of a difference. So, I am of the view that the 2nd respondent should have maintained the field of choice of 65 candidates for the purpose of application of communal rotation also. There was no valid ground for restricting WPC 35442/05 6 it further. Such an action has resulted in practically denying appointment to communities eligible for reservation. Therefore, it is declared that the 2nd respondent was bound to apply the rules of communal reservation in the matter of appointment, treating the field of choice as the candidates who attended the interview. If consequential action is taken, the first petitioner will get appointment. Since others were appointed and they have been working for some time, it is not proper to unsettle the entire appointments. Further, it is unnecessary also as this Court is concerned only with the claim of the petitioners who came here in time and attacked the selection and appointment. The second petitioner is ineligible for appointment because he did not find a place in the list of candidates called for the interview. In the result, the Writ Petition is allowed, directing the 2nd respondent to appoint the first petitioner as Trainee Mechanic within one month from today. The learned Standing Counsel for the 2nd respondent submitted that there is already a vacancy in that cadre. Therefore, it may not be necessary to retrench any of the candidates already appointed to accommodate the writ petitioner. 01.02.2008 K.BALAKRISHNAN NAIR,JUDGE WPC 35442/05 7 sta