IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 WP(C).No. 1113 of 2009(G) ------------------------------------- PETITIONER(S): ---------------------- RENJITHLAL.K.P., 'SARES', PANTHALAYINI, KOZHIKODE DISTRICT. BY ADV. SMT.P.V.ASHA RESPONDENT(S): ------------------------ 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-4. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. *ADDL. R3 IMPLEADED ADDL. R3: JANE BURNUS RODRIGUEZ, NA BELLA COTTAGE, EDAPPALLY, COCHIN-24. * IS IMPLEADED AS ADDITIONAL R3 AS PER ORDER DATED 13/08/2009 IN I.A. NO.9824/2009. R2 BY GOVERNMENT PLEADER SMT.SREELATHA. R1 BY ADV. MR.ALEXANDER THOMAS,SC,KPSC. ADDL. R3 BY ADV. MR.THAMPAN THOMAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON 05/11/2009 DELIVERED THE FOLLOWING: WP(C) NO. 1113/2009-G APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RANK LIST FOR THE POST OF HSST SOCIOLOGY. EXT.P2: COPY OF THE APPOINTMENT CHART OF HSST SOCIOLOGY BASED ON ADVICE DATED 26/09/2007, 07/02/2008 AND 21/04/2008. EXT.P3: COPY OF THE ROTATION CHART AS PUBLISHED IN THE WEBSITE OF PSC. EXT.P4: COPY OF THE CIRCULAR DATED 12/04/2005 OF PSC. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.1113 of 2009-G - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of November, 2009. JUDGMENT The filling up of vacancies in the post of Higher Secondary School Teacher (Sociology) from the passed over turn of O.B.C. is the issue raised in this writ petition. The petitioner is rank No.1 in the supplementary list of O.B.C. in the ranked list published as per Ext.P1 dated 30.12.2006. The case of the petitioner is that three candidates have already advised from the ranked list as on 21.4.2008 and the petitioner is the candidate liable to be advised against the next turn of OBC. By relying upon Ext.P2 appointment chart, it is contended that the 38th turn of Nadar N.C.A. has been shown as filled up by an O.B.C. whereas the 60th NCA turn is shown as that of Nadar, but filled up by an Ezhava candidate. The contention raised is that turn 60 is earmarked for OBC and therefore only an OBC candidate alone could have been advised against the said turn. 2. The issue raised herein is an off-shoot of the dispute between Hindu Nadars and SIUC Nadars which was decided by this court in Hindu Nadar corporation v. State of Kerala (2000 (3) KLT 740). Therein, a Division Bench of this Court held that Hindu Nadars would remain as a wpc 1113/2009 2 separate class and Nadars converted to SIUC will also remain as a separate one for the purpose of reservation in appointments. In appeal, the Apex Court passed an interim order dated 24.2.2005 based on which the Public Service Commission issued a U.O. Note on 12.4.2005. The result of the same is that the candidates belonging to Hindu Nadar community would be included in OBC and 1% reservation would be given to them and Nadars converted to SIUC would be clubbed together with Anglo Indian community Accordingly, it was ordered that turn 38 N would be allotted to SIUC/Anglo Indian and turn 60 N would be allotted to OBC. Ext.P4 is the said U.O. Note. 3. It is the contention of the petitioner that in the light of the above U.O. Note, turn 60 should have been filled up by an OBC candidate and therefore the advice of Ezhava against turn 74 and 78 on 24.9.2007 and 7.2.2008 is not correct. The main complaint raised by the petitioner is that 90th turn of OBC is available, but that is going to be filled up by another candidate for compensating 38th turn of Nadar. The additional third respondent is impleaded as the candidate who is thus benefited. She belongs to Anglo Indian community. 4. Mainly, it is contended that in the light of the U.O. Note and the final judgment of the Apex Court, the grouping together of Hindu Nadar wpc 1113/2009 3 and SIUC Nadar in the 38th and 60th turns cannot be justified. 5. In the counter affidavit filed by the Public Service Commission, it is pointed out that the ranked list was brought into force with effect from 30.12.2006. The rotation started from MRI 81 OC and now stands at MRI 83 OC. There are 7 NCA turns pending to be compensated. This includes MRI 38 N (changed to SIUC/AI) NCA/OBC and MRI 60N (changed to OBC) NCA/E. The next OBC turn is 90 OBC. In the light of the amendment to Rules 14 and 15 of KS & SSR and the Note therein, all pending uncompensated turns should be compensated. Turns MRI 38N/NCA/OBC advised on 16.11.2004 is pending to be satisfied. As per the existing rules of rotation and the advised turn of 90 OBC, would be given to SIUC/A1 to compensate the NCA turn of MRI 38/N/NCA/OBC as this ranked list is published after 19.4.2005. Next Ezhava turn is 88 E which cannot be given to OBC to compensate the turn MRI/60 N/NCA/E on 12.7.2005 because before compensating 60th OBC, 48 OX, 50 D and 52 SC turns should be compensated in the coming Ezhava turns, only after satisfying these pending turns, 60N/NCA/E turn will be compensated to OBC. There are 43 vacancies including one Panchayat vacancy pending for advice. Accordingly, it is contended that the plea of the petitioner to compensate the turn 60 N/NCA/OBC in the next arising 90 OBC turn is wpc 1113/2009 4 untenable. 6. Learned counsel for the petitioner submitted that in the light of the decision of the Apex Court based on which Ext.P4 U.O. Note was issued, the Commission is bound to implement the same and the clubbing of Hindu Nadar and Christian Nadar (SIUC) as before, cannot be justified. 7. The above issue has been considered in W.P.(C) No.5777/2008 and in para 21, it has been held that the the U.O. Note, viz. Ext.P4 herein is liable to be implemented in terms of the final judgment of the Apex Court in C.A. No.3361/2002 and the decision of the Commission that it will have application only in respect of the ranked list published after 19.4.2005 cannot be justified. 8. Even if the said dictum is applied here, in the light of the peculiar facts of this case, I am of the view that the petitioner cannot get the 90th turn of OBC. It is undisputed that the 38th N turn should go to SIUC/AI and 60th N turn will go to OBC. Herein, we are concerned only with the 38th N turn. The candidates advised against 74th and 78th turns of Ezhavas are not parties here and hence the legality of the same cannot be adjudicated here. 9. As far as the 38th N turn is concerned, even though the Public Service Commission had treated Hindu Nadar and SIUC Nadar together, in spite of the direction of the Apex Court, definitely it will go to SIUC/AI in wpc 1113/2009 5 terms of Ext.P4. For the previous list the benefit of the passed over turn of 38 N went to an OBC candidate as per advice dated 16.11.2004. Therefore, that pending turn had to be compensated in terms of the Note to Rule 15(a) of KS & SSR. Therefore, the explanation given by the Commission that as per the existing rules of rotation the turn 90 OBC would be given to SIUC/AI to compensate the NCA turn of MRI 38 N/NCA/OBC, has to be accepted. Even if the stand of the Commission that the U.O. Note Ext.P4 is applicable only to a ranked list published after 19.4.2005 is not acceptable, in the light of the fact that turn 38 N will go to SIUC/AI as per Ext.P4 itself which was already allotted to OBC on 16.11.2004, that has to be compensated. It is true that Nadar community both Hindu and SIUC could not be treated as a common class for turn 38 N. But even going by Ext.P4, the turn 38 N will go to SIUC/AI in terms of Ext.P4. Therefore, the turn passed over earlier, can be recompensated in terms of the Note to Rule 15(a) of KS & SSR by allotting it to SIUC/AI. Herein, as the SIUC candidate is not available, th additional third respondent is benefited. It cannot therefore be said that the same is illegal. Therefore, the petitioner will not get the benefit of advice in the 90th turn of OBC. Even if it can be contended by the petitioner that turn 60 N ought to have been filled up from wpc 1113/2009 6 OBC, before compensating the same by 48 OX, 50D and 52 SC turns and to be compensated, as explained in the counter affidavit. 10. Therefore, even though the larger question raised by the petitioner is covered by the judgment in W.P.(C) No.5777/2008, the petitioner will not get the benefit of the same in the light of the facts pointed out above and the contention that the turn 38 N need not be included among NCA turns, cannot be accepted. The petitioner has got a contention that 74th and 78th turns of Ezhava were not properly allotted. But as I pointed out earlier, the candidates advised, are not parties to this writ petition. Further, the Public Service Commission in its counter affidavit in para 9 has explained that candidates advised on 26.9.2007 and 7.2.2008 against 74th and 78th Ezhava turns were the candidates advised on 16.3.2006, 10.10.2006 and 20.11.2006 from previous ranked list dated 6.11.2004, where rotation was revised due to reduction of number of vacancies. 11. What remains is the question how the turn 60 N will have to be allotted as provided in Ext.P4. The question will have to be considered in the light of the contentions raised by the petitioner that other Ezhava candidates have been benefited already and therefore this should go to the OBC. The Commission will further examine this question and in the light of the view taken by me in the judgment in W.P.(C) No.5777/2008, the turn wpc 1113/2009 7 60 N could not have been treated as meant for Hindu Nadar and SIUC together and had to be allotted to OBC. The rank list is still in operation as it was brought into force with effect from 30.12.2006. Therefore, appropriate remedial action can be taken by the Commission in respect of the vacancies which will be reported during the currency of the ranked list and the claim of the petitioner will be considered in respect of any one of those vacancies, so as to grant the benefit of 60 N to an OBC candidate and if the petitioner is the next OBC candidate entitled for advice, that benefit will be granted. The petitioner will be issued appropriate communication by the Commission in this regard, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/