IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 WA.No. 2189 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.24900/2008 Dated 15/07/2009 .................... APPELLANT(S): RESPONDENT IN WP(C) NO.24900/2008 ----------------------------------------------- KERALA AGRICULTURAL UNIVERSITY, MAIN CAMPUS, KAU POST, THRISSUR-680 656, REP.BY THE REGISTRAR. BY ADV. SRI.K.P.MUJEEB, SENIOR STANDING COUNSEL, KERALA AGRI UNIVER RESPONDENT(S): PETITIONER IN W.P(C)NO.24900/2008 ------------------------------------------------ BEENA.V.I, AGED 35 YEARS, W/O.SREEJITH.K.S, KURUMPELIL, MIYYANNUR P.O, KOLLAM. ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE FOR R1 SRI.MILLU DANDAPANI FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA No.2189 of 2009 ------------------------------------------------------------------ Dated 2nd November 2009 Judgment Balakrishnan Nair, J. The point that arises for decision in this case is whether a vacancy set apart for special recruitment from a backward community can be reckoned for the purpose of deciding whether reservation has exceeded 50% during any selection year, as contemplated under Rule 15(d) of the Kerala State and Subordinate Services Rules. The respondent in the Writ Petition - the Registrar, Kerala Agricultural University, is the appellant and the writ petitioner is the respondent herein. The brief facts of the case are the following : 2. The respondent was a candidate for appointment to the post of Assistant Professor in the discipline of Soil Science and Agricultural Chemistry, under the Kerala Agricultural University. Five vacancies were notified. Ext.P4 is the rank-list published by the University for appointment to the said post. The respondent was Rank No.3 in the said list. As per the relevant statutory provisions, rules of reservation contained in Rules 14 to 17 of Part II of the Kerala State and Subordinate Services Rules (for short, KS & SSR) WA No.2189/09 2 are applicable, while making appointment under the University. As per the 100 point roster, mentioned in Rule 15(a) of Part II, KS & SSR, the communal rotation for the present recruitment, started at 18th point. Going by the roster, the 18th point is reserved for Ezhavas, Thiyyas and Billavas, the 19th for open competition candidates, the 20th for Viswakarmas, the 21st for open competition candidates and the 22nd for Latin Catholics and Anglo Indians. The University appointed the candidate, having Rank No.7, i.e., Mini.V., an Ezhava candidate, in the first vacancy at the 18th roster point. The next vacancy, being reserved for open competition candidate, Sailajakumari.M.S., Rank No.1, was appointed. The third vacancy at the 20th roster point was to be filled up by a Viswakarma candidate. But, there was no candidate, belonging to that community in the rank-list and so, the said vacancy was decided to be kept open. The next vacancy at the 21st roster point was filled up by Thulasi.V., Rank No.2. There was no candidate, belonging to Latin Catholics/Anglo Indians in the ranklist. So, the 5th vacancy (22nd roster point) was also decided to be kept open. 3. The respondent filed the Writ Petition, praying to appoint her in the 5th vacancy. According to her, if the 5th vacancy is set apart for WA No.2189/09 3 Latin Catholics/Anglo Indians, reservation during the life of the rank- list will exceed 50%. To avoid that, the next open competition candidate, who is none other than the writ petitioner, should be appointed. The University resisted the reliefs sought in the Writ Petition, by filing a counter affidavit. After hearing both sides, the learned Single Judge took the view that out of the 5 vacancies, 3 cannot be set apart for reserved candidates. That will go against the mandate of Rule 15(d) of Part II, KS & SSR. Therefore, the last of the above said five vacancies should be filled up by an open competition candidate. The writ petitioner, being the next open competition candidate, the learned Single Judge ordered to appoint her. 4. Attacking this direction of the learned Single Judge, this Writ Appeal is filed. According to the learned Standing Counsel for the University, setting apart the vacancies for filling up after issuing separate notification, cannot be treated as reservation for the purpose of Rule 15(d). If that be so, there is nothing wrong with the action of the University in filling up 3 vacancies and keeping 2 vacancies open for fresh notification. The learned Senior Counsel Shri.K.P.Dandapani, who appeared for the respondent, submitted WA No.2189/09 4 that during a selection year, there cannot be reservation of more than 50% of the vacancies available. 5. A 'selection year' is defined as the period from the date of publication of the rank-list to the date it expires, as evident from the explanation under Rule 15 of Part II, KS & SSR. Rule 15(a) as it stood earlier, reads as follows : “15(a) The integrated cycle combining the rotation in clause (c) of rule 14 and the sub-rotation in sub-rule (2) of rule 17 shall be as specified in the Annexure to this Part. If a suitable candidate is not available for selection for any particular community or group of communities specified in the Annexure, the said community or group shall be passed over and the post shall be filled up by a suitable candidate from the community or group of communities immediately next to the passed over community or group in the said Annexure in the order of rotation. If no suitable candidate is available for selection in any of the above communities or group of communities, selection shall be made from open competition candidates.” (emphasis supplied) Rule 15(a), after the amendment introduced on 8.3.2006, reads as follows : “The integrated cycle combining the rotation in clause (c) of rule 14 and the sub-rotation in sub-rule (2) of Rule 17 shall be as specified in the Annexure to this Part. Notwithstanding anything contained in any other WA No.2189/09 5 provisions of these rules or in the Special Rules, if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities. If, after re- notification, repeatedly for not less than two times, no suitable candidate is available for selection from the respective community or group of communities, the selection shall be made from available Other Backward Classes candidates. In the absence of Other Backward Classes candidates, the selection shall be made from available Scheduled Castes candidates and in their absence, the selection shall be made from available Scheduled Tribes candidates. Explanation :- One 'selection year' for the purpose of this rule shall be the period from the date on which the rank list of candidates comes into force to the date on which it expires. Note :- All pending uncompensated turns of vacancies such as temporarily passed over, no candidate available and non-joining duty as on the 2nd February, 2006, shall be compensated. (b) If a suitable candidate is not available for selection from the group of communities classified as “Scheduled Castes” in the turn allotted from such group in the Annexure, the said group shall be passed over and the post shall be filled up by a suitable candidate from the WA No.2189/09 6 group of communities classified “Scheduled Tribes” and vice-versa. (c) The benefit of the turn forfeited to Scheduled Castes or Scheduled Tribes communities by reason of being passed over under sub-rule(b) shall be restored to it, at the earliest possible opportunity, if a suitable candidate from that particular community or group is available for selection by making adjustment against the claims of the Scheduled Caste or Scheduled Tribe community that derived the extra benefit by reason of such passing over. (d) Reservation to a category of posts shall not exceed 50% of the total number of vacancies for which selection is resorted to in a selection year : Provided that the 50% ceiling to reservation specified above shall not apply to the filling up of any number of reserved vacancies kept unfilled and notified separately as per sub-rule (a) of rule 15 to be filled exclusively by direct recruitment from among a community or group of communities. Provided further that such class of vacancies to be filled up in that year or in any succeeding year or years shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% of the total number of vacancies of that year.” (emphasis supplied) The drastic change that was brought about by the amendment dated 8.3.2006 in Rule 15(a) is that now, if a candidate from a particular community eligible for reservation is not available, that vacancy WA No.2189/09 7 cannot be filled up by a suitable candidate from the next community or group of communities, immediately next to the passed over community or group in the Annexure to the Rules, available in the rank-list. Instead, that vacancy has to be kept open and notified for special recruitment. 6. The point to be considered is whether keeping apart vacancies for special recruitment will amount to reservation and therefore, the same should be subject to the injunction in Rule 15(d), which says that reservation to a category of post shall not exceed 50% of the total number of vacancies, for which selection is resorted to in a selection year. If the interpretation of the respondent/writ petitioner is accepted, the vacancy available for Latin Catholics/Anglo Indians will be lost to that community and it will be cornered by a candidate in the merit list and the new provision introduced in Rule 15(a) will become unworkable. Further, the proviso to Rule 15(d) would also indicate that the special recruitment made to vacancies for which candidates from a community were not available, will not be reckoned for the purpose of considering whether the reservation in a particular selection year exceeds 50%. So, if the special recruitment cannot be reckoned, keeping aside vacancies for such special WA No.2189/09 8 recruitment also cannot be reckoned for the purpose of deciding whether the reservation has exceeded 50%. Any other view taken, will have the effect of defeating the newly introduced amendment to Rule 15(a) of Part II, KS & SSR, which has a non-obstante clause, which provides that the provisions of Rule 15(a) will prevail, notwithstanding anything contained in any other Rule in the KS & SSR and the Special Rules. Therefore, we think, the view taken by the learned Single Judge in the judgment under appeal cannot be supported as the same runs counter to Rule 15(a). In the result, the Writ Appeal is allowed. The judgment under appeal is reversed and the Writ Petition is dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA No.2189/09 9 WA No.2189/09 10