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 23RD MAY 2008 / 2ND JYAISHTA 1930 WA.No. 1697 of 2007(F) --------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.25171/2006 DATED 10/04/2007 .................... APPELLANT/ 3RD RESPONDENT: ------------------------------------------------ KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC. RESPONDENTS/PETITIONERS & RESPONDENTS 1 & 2: ------------------------------------------------------------------------------- 1. DR.T.BEERMASTHAN, THARAMANNIL HOUSE, EDAVANNA P.O., MALAPPURAM. 2. DR.SHAMMLA PADIYATH, SHABNAM, PADIYATH, KAVIL WEST, KODUNGALLUR, THRISSUR. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM. W.A. NO. 1697/2007-F: 4. THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE, THIRUVANANTHAPURAM. *ADDL.R5. DR. P. MUHAMMED, HERITAGE AYURVEDIC HOSPITAL, PARAT, KANNUR DISTRICT - 670 693. *IS IMPLEADED AS ADDITIONAL RESPONDENT NO.5 IN REPRESENTATIVE CAPACITY - VIDE ORDER DTD. 25/09/07 IN I.A. 733/07. **ADDL.R6. DR. ASMABI.K.A, AGED 42, W/O. NAZEER KHAN, MANGALATH HOUSE (NEAR) FIRE STATION, PERUMBAVOOR. **IS IMPLEADED AS ADDITIONAL RESPONDENT NO.6 VIDE ORDER DTD. 31/10/07 IN I.A. 879/2007. # ADDL.R7. NAIR SERVICE SOCIETY, REPRESENTED BY ITS GENERAL SECRETARY, HEAD OFFICE, PERUNNA, CHANGANACHERRY. # IS IMPLEADED AS ADDITIONAL RESPONDENT NO. 7 VIDE ORDER DTD. 11/03/2008 IN I.A. 270/2008. BY ADV. SRI.KALEESWARAM RAJ - R1 & R2, SRI.K.S.MADHUSOODANAN - ADDL.R5, SRI.K.B.SUJAI KUMAR - ADDL.R5, SRI.T.V.JAYAKUMAR NAMBOODIRI - ADDL.R5, SRI.THUSHAR NIRMAL SARATHY - ADDL.R5, SRI.M.M.VINOD KUMAR - ADL.R5, SMT.K.M.RAMYA - ADDL.R5, SRI.KRB.KAIMAL (SR.) - ADDL.R7, SRI.B.UNNIKRISHNA KAIMAL - ADDL.R7. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2008, ALONG WITH W.P.(C).NO. 11482/2004 & CONNECTED CASES, THE COURT ON 23/05/2008 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- W.A. NO.1697 OF 2007 & W.P.(C) Nos.11482/2004, 32766/2006 and 12816 & 37096/2007 ----------------------------------------- Dated 23rd May, 2008. JUDGMENT Balakrishnan Nair, J. W.A.No.1697/2007: The point that arises for decision in this Writ Appeal is whether correct construction has been placed on Rules 14 to 17 of Part II, Kerala State & Subordinate Services Rules, 1958 by the Public Service Commission, while advising candidates to the post of Medical Officer (ISM). 2. The brief facts of the case are the following: The Kerala Public Service Commission invited applications for appointment to the post of Medical Officer (Indian System of Medicine) under the Kerala Government, by the notification published in the Kerala Gazette dated 14.10.2003. The rank list was published on 31.12.2005. The writ petitioners were candidates WA NO.1697/07 ETC. 2 included in the supplementary list of Muslims as rank Nos.17 and 18. Ext.P1 is the rank list published by the P.S.C. According to the writ petitioners, 250 candidates were advised, out of which 198 were from the main list and 52 from the supplementary lists. In that process, only 28 Muslim candidates were advised. Going by Rules 14 to 17 of Part II, K.S. & S.S.R., 30 candidates should have been advised from the Muslim community. If two more Muslim candidates are advised, the writ petitioners would have got appointment. Ext.P2 is the rotation chart published by the P.S.C for appointment by direct recruitment. Ext.P3 is the chart published by the P.S.C., showing the present position of advice to various posts. As per that chart, as on 14.8.2006, 250 candidates have been advised to the post of Medical Officer (ISM). Feeling aggrieved by the omission of the P.S.C to advise them, the Writ Petition was filed by the petitioners, seeking the following reliefs: “(i) to issue a writ of mandamus directing the 3rd respondent to issue advice memos to the petitioners. (ii) to issue a writ of mandamus directing the 3rd respondent to set right the errors and irregularities in following the principles of communal rotation and reservation in advising candidates from Ext.P1 ranked list.” According to the writ petitioners, rank Nos.28, 50, 82 and 111 in the main list were Muslims. Their turn had arisen under the open competition turn. WA NO.1697/07 ETC. 3 But, they were advised for appointment in the reserved vacancies and to that extent Muslim candidates in the supplementary list lost their chances. 3. According to the Public Service Commission, the candidates were advised strictly in accordance with the Rules. Up to 24.11.2006, 268 candidates were advised against the fresh vacancies and the non-joining duty vacancies reported by the appointing authority. Out of them, 252 candidates were from the main list and 107 from the supplementary lists. It was also stated that the last open competition candidate advised was rank No.213 and the last Ezhava candidate advised was rank No.226 in the main list. It was further stated that the last Muslim candidate advised was rank No.12 in the supplementary list for Muslims. According to the P.S.C., the turn of the writ petitioners did not arise for advice, Rank No.8, who belongs to Muslim community, was advised under the open competition turn and other Muslim candidates included in the main list were advised under the Muslim reservation turn. 4. The P.S.C also filed an additional counter affidavit dated 1.3.2007. In the said counter affidavit, the details of the rotation have been given. It is stated that the recruitment to the post of Medical Officer (ISM) ended at Main Rotation VIII 39 open competition. For the present selection, the rotation started at MR VIII 40 OBC and ended at MR XI 7 open WA NO.1697/07 ETC. 4 competition. 267 fresh vacancies were reported, apart from 20 NJD vacancies. As on 13.2.2007, 287 candidates were advised. The details of Muslim candidates advised are also given. Only rank No.8, who is a Muslim candidate, was advised under the open competition turn. The last Muslim candidate advised from the main list was rank No.252. From the supplementary list, 14 Muslim candidates were advised. The P.S.C emphatically refuted the contention of the writ petitioners that rank Nos. 28, 50, 82 and 111 should have been advised under the open competition turn. It is asserted that the advices were made strictly in accordance with Rules 14 to 17 of Part II, K.S. & S.S.R. 5. The learned Single Judge, who heard the Writ Petition, allowed it, holding that the principles stated in Rule 14(b) that the members of Scheduled Castes, Scheduled Tribes and Other Backward Classes are entitled to be considered for appointment under the merit quota and if any candidate belonging to those communities is appointed in the merit quota, the number of seats reserved for the said communities shall not be affected by the same. The learned Judge held that other provisions of Rules 15 to 17 should be read subject to Rule 14(b). Based on that finding, the learned Judge directed the P.S.C to invoke its power under Rule 3(c) of K.S. & S.S.R and modify the advices appropriately, so that the Muslim candidates WA NO.1697/07 ETC. 5 who got appointment under the reservation quota, but who would have got appointment under the open competition quota, are adjusted against the open competition quota and in their place, other Muslim candidates are advised under the reservation quota. Aggrieved by the judgment of the learned Single Judge, the P.S.C has filed this Writ Appeal. 6. According to the P.S.C., the unit of appointment for working out communal rotation is 20, as provided under Rule 14(a). The learned Single Judge failed to comprehend the impact of the said provision. The P.S.C is bound by Rule 14(a), in working out communal rotation. It was also contended that none of the affected candidates was impleaded in the Writ Petition. For that reason alone, the Writ Petition should have been dismissed, it is submitted. 7. During the pendency of the Writ Appeal, notice has been taken out to all affected persons by publishing notice dated 9.10.2007 in all editions of Kerala Kaumudi daily dated 22.10.2007, published from Kerala. In the Writ Appeal, the Nair Service Society has got itself impleaded as additional 7th respondent. It supported the contentions of the P.S.C in the appeal. 8. We heard Mr.Alexander Thomas, learned standing counsel for the P.S.C and Mr.K.R.B.Kaimal, learned senior counsel, who appeared for the additional 7th respondent and supported the challenge made by the P.S.C WA NO.1697/07 ETC. 6 against the judgment of the learned Single Judge. We heard Mr.Kaleeswaram Raj, who appeared for the writ petitioners and also Mr.K.S.Madhusoodanan, who appeared for one of the additional respondents in the Writ Appeal. They supported the judgment of the learned Single Judge. We also had the benefit of hearing Mr.S.A.Razzak and Mr.Anil K. Narendran, learned counsel, who appeared in the connected Writ Petitions. 9. Before going to the merits of the case, we think, it will be beneficial to refer to the relevant rules first. Rule 2(14) of Part I, K.S. & S.S.R defines Scheduled Castes, Scheduled Tribes and Other Backward Classes. As per the definition, Scheduled Castes recognised as such in the State of Kerala, as per the Presidential Order, are those enumerated in List I of the schedule to Part I, K.S. & S.S.R. Scheduled Tribes recognised in the State of Kerala are included in List II of the said schedule. Other Backward Classes in the State recognised by the Kerala Government are enumerated in List III of the schedule. Rule 3(a) of Part II, K.S. & S.S.R says that: “All first appointments to the service shall be made by the appointing authority on the advice of the Commission in respect of posts falling within the purview of the Commission and in all other cases by the appointing authority from a list of approved candidates prepared in the prescribed manner.” The Commission mentioned in the above Rule is the Kerala Public Service WA NO.1697/07 ETC. 7 Commission and service means a group of persons classified by the State Government as a State or a Subordinate Service as the case may be.. See the definitions of Commission and Service contained in Rule 2(4) and Rule 2(15) of Part I, K.S. & S.S.R. 10. When the principle of reservation in appointments is made applicable to any service, the same shall be applied as provided in Rules 14 to 17 of Part II of the K.S. & S.S.R.. Rule 14(a) says that the unit of appointment for this purpose shall be 20. As per the said sub-rule, two posts shall be reserved for SC/ST, 8 for Other Backward Classes and the remaining 10 shall be filled up on the basis of merit. The proviso to Rule 14 (a) says that out of every five posts reserved for SC/ST, one shall go to ST candidate and the remaining four shall go to SC candidates. In the absence of a candidate to fill up the post reserved for ST, it shall go to the SC candidate and vice versa. Rule 14(b) says that members of Scheduled Castes, Scheduled Tribes and Other Backward Classes shall be considered for appointment on the basis of merit and where a candidate belonging to those communities is appointed on the basis of merit, the number of posts reserved for the particular community shall not, in any way, be affected by such appointment made based on merit. Since the interpretation of Rule 14 (a) and Rule 14(b) being the main point to be decided in the case, those sub- WA NO.1697/07 ETC. 8 rules are quoted below for convenient reference: “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 principle of reservation of appointments shall apply to such service, class or category, appointments by direct recruitment 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 candidate 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.” (Emphasis supplied) Rule 14(c) specifies the application of rotation in every cycle of 20 vacancies. The first proviso to Rule 14(c) mentions about further rotation WA NO.1697/07 ETC. 9 between the members of Scheduled Caste and Scheduled Tribe. The said proviso reads as follows: “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 candidates 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.” The third proviso to Rule 14(c) explains how the advice list should be prepared in every cycle of 20 vacancies. The said proviso reads as follows: “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 candidates, 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.” Before referring to Rule 15, having regard to the scheme of the rules, it will be appropriate to refer to Rules 16 and 17. Rule 16 provides that there shall be sub-rotation among the members of Backward Classes. Rule 17(1) WA NO.1697/07 ETC. 10 provides the grouping of Other Backward Classes for the said purpose.. Sub-rule (2) of Rule 17 deals with how the 40% reservation allowed to Other Backward Classes shall be distributed among different groups of Backward Classes. The percentage of reservation for various communities for recruitment to Kerala Last Grade Service and to posts other than those included in the Kerala Last Grade Service is given in this Sub-Rule. The details of rotation of posts reserved for Other Backward Classes in the Kerala Last Grade Service and other posts are also given. The rotation is applied in a roster of 40 points. 11. Rule 15(a) provides that the integrated cycle combining the rotation in Rule 14(c) and the sub-rotation in Rule 17(2) shall be as specified in the Annexure to Part II of K.S. & S.S.R. The said Annexure provides for a 100 point roster. It contains two parts, one for appointment to Kerala Last Grade Service and the other for appointment to posts other than those included in the Kerala Last Grade Service. In both the parts, roster point Nos.1, 3, 5, 7, ............95, 97 and 99 are reserved for open competition candidates. Roster point Nos.2, 4, 6, ........ 96, 98 and 100 are reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes. The proviso to Rule 15(c) provides that reservation to a post in an year shall not exceed 50% of the total number of vacancies for which WA NO.1697/07 ETC. 11 selection is made by direct recruitment. The said Rule has been amended with effect from 2.2.2006 and it has been re-numbered as Rule 15(d). 12. In the light of the above Rules, the appellant P.S.C and the additional 7th respondent Nair Service Society point out that communal rotation has to be applied, taking 20 vacancies as a block. Nobody has challenged the validity of any of the provisions of the above said Rules. So, the P.S.C is bound to make advice of candidates in the light of Rule 14(a), which mandates application of rotation to every block of 20 vacancies. The contesting respondents including the writ petitioners would point out that the provisions of Rule 14(a) have to be read in the light of other relevant provisions. The said Rule cannot be applied, as was done in the present case, violating Rule 14(b), which guarantees that the reserved vacancies will not be affected by appointment of members of the Scheduled Caste, Scheduled Tribe or Other Backward Classes in the merit quota. They point out that Rule 15(a) speaks of an integrated cycle of 100 points for combining the rotation under Rule 14(c) and Rule 17(2). Rule 17(2) speaks of 40% reservation to Other Backward Classes and also further provides a roster of 40 points for distribution of reservation among the members of the Backward Classes. Therefore, it is submitted that the undue reliance made on the 20 point roster under Rule 14(a) to deny the benefits of reservation to WA NO.1697/07 ETC. 12 eligible candidates is unsustainable. 13. From both sides various decisions were cited. The P.S.C., in support of its submissions, relied on the decisions reported in Pulomaja Devi v. Gopinathan Nair [1975 KLT. 111 (FB)], L.I.C of India v. Wilson George [1997(2) KLT 218], Union of India v. Satya Prakash [2006(2) KLT 375 (SC)], Siraj v. High Court of Kerala [2006(2) KLT 923 (SC)] and Nair Service Society v. Distt. Officer, Kerala Public Service Commission [(2003)12 SCC 10]. The learned counsel who supported the judgment of the learned Single Judge relied on the decisions in P.Raghava Kurup v. V.Ananthakumari [(2007)9 SCC 179], Dwaraka Prasad v. Dwaraka Das Saraf [(1976)1 SCC 128] and Regional P.F. Commr., Bombay v. S.K.M.Mfg. Co. [AIR 1962 SC 1536] and contended how the relevant Rules should be interpreted in the light of the principles laid down by the Apex Court in the above decisions. They also relied on the decisions in Indira Sawhney v. Union of India [1992 Supp (3) SCC 217], Union of Indra v. Satya Prakash [2006(2) KLT 375 (SC)] and Rajesh Kumar Daria v. Rajasthan Public Service Commission [(2007)8 SCC 785]. We considered the rival submissions made on behalf of the parties and also the decisions cited above. The decisions in P.Raghava Kurup [(2007)9 SCC WA NO.1697/07 ETC. 13 179], Dwaraka Prasad [(1976)1 SCC 128] and Regional P.F. Commr., Bombay [AIR 1962 SC 1536] deal with principles of interpretation. We notice that none of the other decisions, though dealing with reservation, helps us to resolve the legal conundrum involved in this case. The decision in Pulomaja Devi [1975 KLT 111 (FB)] was concerning the application of Rules 14 to 17 of K.S. & S.S.R. But, the vacancies involved in that case were only 8. So, the issue involved in this case did not arise in that case. In the said case it was observed that if the view taken by the P.S.C regarding the application of the Rules is a plausible view, the Court should not interfere. It was also found by this Court that the Rules were applied correctly in that case. But, in this case, the view taken by the P.S.C is attacked as contrary to law. When the interpretation of the Rules throws up some difficulty, we cannot shirk our responsibility and accept the plea that the view taken by the P.S.C is a plausible view. So, we will examine whether the Rules were correctly applied by the P.S.C. 14. Going by Rules 14 to 17 of K.S. & S.S.R., we notice that 10% of the vacancies are reserved for SC/ST and 40% of the vacancies are reserved for other backward communities. The sub-rotation among the backward communities and the rotation between SC and ST are applied, based on a WA NO.1697/07 ETC. 14 100 point roster. If reservation is applied to a 20 point roster, as was done by the P.S.C., the same will result in denial of reservation to eligible candidates as per the percentage of reservation set apart for them. It will result in candidates coming under the merit quota cornering more vacancies than that are due to them at the expense of the communities eligible for reservation. The application of the rules of reservation and rotation will depend upon the number of vacancies reported to the P.S.C. If vacancies less than 20 are reported, there is nothing wrong in applying the rotation based on a 20 point roster. A member of the Muslim community who may get advice in future in the merit quota cannot be denied appointment now, who is eligible to be included in the reserved quota, when 20 vacancies are reported. When a person in the rank list is advised under the reserved quota, his name will be removed from the list. So, if vacancies are reported in blocks of 20 or below 20, the rotation can be applied only as was done in this case. In contemplation of future vacancies, the advice of a candidate cannot be withheld, when his turn arises under the reserved quota. But, in this case,we notice that as admitted by the P.S.C., large number of vacancies were reported together. As evident from the facts of the case, as on 5.9.2005, 161 vacancies were reported. The rank list came into force on 31.12.2005 and 161 candidates were advised in a block on 1.2.2006. If, WA NO.1697/07 ETC. 15 after satisfying the temporary pass over (TPO) turn, if any, the vacancies 1, 3, 5, 7 .........157, 159 etc., were firstly allotted to open merit candidates and the vacancies 2, 4, 6 .........156, 158 etc., were allotted to the members of the communities eligible for reservation, there would not have been any loss of vacancies to the communities eligible for reservation. If a member of a particular community with lower merit is ranked high under the reserved quota when compared to another member of the same community included in the merit quota, their position can be interchanged for the purpose of seniority, as provided in the third proviso to Rule 14(c). 15. The point to be decided is whether such application of rotation will run counter to any of the provisions of Rules 14 to 17 or whether that will give effect to the intention of the said Rules. We are of the view that none of the above said Rules stand in the way of applying the rotation as above by allotting every alternative vacancy to merit quota and reserved quota. Rule 14(a) contemplates a situation of reporting of vacancies numbering less than 20. There are hundreds of posts where the number of vacancies reported will normally be below 20 at a particular point of time. Vacancies are reported in large numbers only in the case of L.D.Clerks, Police Constables, Medical Officers etc. When vacancies numbering more than 20 are reported and if reservation is applied as stated above by allotting WA NO.1697/07 ETC. 16 every alternative vacancy firstly to open competition candidates and the remaining vacancies to candidates eligible for reservation, the same will effectuate the purpose of the rules of