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. 5777 of 2008(K) --------------------------------------- PETITIONER(S): ------------------------ RAMANI.C, "ANURAG", KIZHAKKUMKARA, AJANUR P.O., KANHANGAD, KASARAGODE 671 531. BY ADVS.MR.N.SUGATHAN SMT.VARSHA BHASKAR MR.S.PRASANTH (AYYAPPANKAVU) RESPONDENT(S): ------------------------- 1. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY,PATTOM, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SHANTHI NAGAR, THIRUVANANTHAPURAM. 3. NARAYANAN P.P., UDINUR, SOUTH UDINUR P.O KASARAGODE DISTRICT 671 149. 4. SREEBHA.V.B. VALIYAPARAMBIL HOUSE, KOORKENJERI, THRISSUR. R1 BY ADV. MR.ALEXANDER THOMAS,SC,KPSC R2 BY GOVT. PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2009,THE COURT ON 05/11/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.5777/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RANKED LIST FOR THE PSOT OF H.S.S.T.((SOCIOLOGY) SENIOR PREPARED BY THE K.P.S.C. P2:- COPY OF THE ANNEXURE II FOR DIRECTO RECRUITMENT TO THE POSTS OTHER THAN THOSE INCLUDED IN KERALA LAST GRADE SERVICE. P3:- COPY OF THE JUDGMENT DTD. 5.12.07 IN W.A. NOS.1714, 2194 & 2196 OF 2007. P4:- COPY OF THE INTERIM ORDER DTD. 24.2.05 REPORTED IN 2005 (11) SCC 798. P5:- COPY OF THE NOTE DTD. 12.4.05 ISSUED BY THE KP.S.C. P6:- COPY OF THE CIRCULAR DTD. 24.4.06 ISSUED BY THE K.P.S.C. P7:- COPY OF THE REPRESENTATION DTD. 5.1.08 TO THE IST RESPONDENT. P8:- COPY OF THE REPRESENTATION DT. 4.2.08 TO THE IST RESPONDENT. R1(a):- COPY OF THE U.O. NOTE DTD. 12.4.05. E1(b):- COPY OF THE U.O. NOTE DTD. 26.4.05. R1(c):- COPY OF THE CIRCULAR DTD. 24.4.06. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 5777 of 2008-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of November, 2009. JUDGMENT The petitioner was an applicant to the post of Higher Secondary School Teacher (Senior), pursuant to the notification issued by the Public Service Commission. The petitioner became successful and has been included as rank No.79 O.B.C. in the main list. She belongs to Vaniyan community. Respondents 3 and 4 herein are rank Nos.7 and 8 in the supplementary list for Ezhava. 2. The challenge made by the petitioner is against the advice made by the Public Service Commission in respect of turn 60 N by granting a turn passed over benefit to Ezhava community. It is submitted that the said turn which was originally allotted to Nadar community, has to be allotted to an O.B.C. candidate and the petitioner being the next eligible candidate, ought to have been advised. The present selection is the first one made after the publication of the Special Rules. Initially, 57 vacancies of HSST (Sociology) were reported. After the publication of the rank list, 8 more vacancies were reported. There was an earlier writ petition which was ultimately disposed of by a learned Single Judge of this Court on wpc 5777/2008 2 28.5.2007, whereby six vacancies were directed to be filled up by the candidates included in the rank list. Ext.P3 is the judgment in W.A. No.1714/2007 and connected cases, wherein ultimately the Division Bench held that two more vacancies were available for direct recruitment to be filled up from 12 vacancies reported during the pendency of the original petition. Thus, altogether 73 vacancies and two NJD vacancies were reported for advising and appointing candidates from the list Ext.P1. It is at this stage the petitioner has filed this writ petition on coming to know that rank No.66 in the main list and rank No.8 in the supplementary list are likely to be appointed against the reservation turn. It is the contention that the advice and appointment of the 4th respondent will be in excess of the reservation turns available for Ezhavas. It is pointed out that the turn available for OBC to which the petitioner ought to have been advised, has been illegally filled up by advising an Ezhava candidate. 3. The dispute herein is connected with the claim for reservation between Hindu Nadars and SIUC Nadars. Originally, item 23 in List III of Part I of KS & SSR was “Hindu Nadar”. Item 64 was SIUC. In 1979, the Government made an amendment to bring Hindu Nadars and SIUC into one class for the purpose of reservation. Challenge against this was considered by a Division Bench In Hindu Nadar Corporation v. State of Kerala wpc 5777/2008 3 (2000 (3) KLT 740), this Court declared that Hindu-Nadars should continue to be treated as separate category for the purpose of Article 16(4) of the Constitution of India and accordingly directed that they will continue as item No.49 and Nadars converted to SIUC would come within item 64 in List III in Part I of KS & SSR. 4. In the appeal filed against the judgment of the Division Bench, as per interim order dated 24.2.2005 (Ext.P4), the Apex Court directed that SIUC Nadars, as before, would continue to have reservation of 1% with Anglo-Indians and Hindu Nadars would continue to be part of residuary category, and would be part of Other Backward Classes entitled to 10% reservation along with other castes. Ext.P5 is the proceedings (U.O. Note) issued by the Commission to implement the said interim order. It was specified that turn 38 N will be allotted to SIUC/AI and turn 60 N will be allotted to OBC. 5. It is the case of the petitioner that the final judgment of the Apex Court was pronounced on 28.3.2006 directing the Commission to implement Ext.P5 U.O. Note. In spite of the said judgment, it is pointed out that the petitioner who is the next OBC candidate eligible, has not been advised, but rank No.8 in the supplementary list of Ezhava, the 4th respondent has been provisionally advised, but not appointed, in the light of wpc 5777/2008 4 the fact that turn 60 N which was originally stood was Nadars (Hindu- Nadars and Nadars included in SIUC) and by passing over the turn, as no candidate was available from Nadars, the benefit was given to Ezhava. In the light of Ext.P4 interim order passed by the Supreme Court, the said turn should have been allotted to OBC and therefore the petitioner ought to have been advised. The benefit granted to Ezhava candidate in the passed over N.C.A. turn is thus illegal. Since Exts.P7 and P8 representations submitted by the petitioner did not evoke any reply, this writ petition was filed. 6. The main relief sought for by the petitioner is to cancel the advice of the 4th respondent against the reservation turn and a further direction is sought to advise the petitioner against turn 60 N by treating it as the turn of O.B.C. 7. The Public Service Commission has filed a counter affidavit as well as an additional counter affidavit. Learned Standing Counsel, Shri Alexander Thomas vehemently argued in support of their pleas. The contention is that 38th and 60th turns were reserved for Nadar community as per the amendment made to Rule 17(2) of Part II KS & SSR in the year 1982. In terms of the interim order passed by the Supreme Court, 38th turn was allotted to SIUC/Anglo Indian and 60th turn was allotted to OBC. This was effected only for the ranked lists published after 19.4.2005. The wpc 5777/2008 5 petitioner has filed a reply affidavit disputing the position taken by the Commission and contending that there is no relevance for the date 19.4.2005. Thereafter, an additional counter affidavit was filed by the Commission. In the additional counter affidavit, Exts.R1(a) to R1(c) have been produced to justify the action taken by the Commission. Ext.R1(a) is the U.O. Note dated 12.4.2005 (Ext.P5) wherein it is specified that the turn 38 N will be allotted to SIUC/AI and the turn 60 N and 80 N will be allotted to OBC in respect of the posts included in the last grade service and for posts other than those included in last grade service, the turn 38 N will be allotted to SIUC/AI and the turn 60 N will be allotted to OBC. In Ext.R1(b) U.O. Note, it is specified that the resolution dated 6.4.2005 shall not be made applicable to the short lists and ranked list published on or before 19.4.2005. It is explained in the additional counter affidavit that the Commission has only implemented the directions issued by the Apex Court. It is also stated that the new ranked list for the post came into force with effect from 30.12.2006 and the rotation started from 81 Open Competition. 8. Shri N. Sugathan, learned counsel for the petitioner submitted that the stand taken by the Commission cannot be supported. It is pointed out that Ext.P1 is the first ranked list published for HSST (Sociology) after the issuance of the Special Rules. It is argued that in the light of the interim wpc 5777/2008 6 order passed by the Apex Court and in the light of the directions issued as per the final judgment, the Commission is bound to implement Ext.P5 as such. It is further pointed out that Ext.R1(b) U.O. Note cannot have any legal impact as otherwise it will defeat the rights of the candidates like the petitioner who are otherwise entitled to be appointed in terms of the directions issued by the Apex Court. Reliance is placed on various decisions of this Court and Apex Court in the matter. 9. It is contended that once the Apex Court has directed the Commission to implement the order dated 12.4.2005, Ext.R1(a), the Commission cannot introduce other stipulations which are not governed by the directions issued by the Apex Court. Reliance is placed on the principles stated by the Apex Court in Sarwan Kumar and another v. Madan Lal Aggarwal {(2003) 4 SCC 147}, Commissioner of Customs, Calcutta and others v. Indian Oil Corpn. Ltd. and another {(2004) 3 SCC 488}, George v. State of Kerala (2007 (1) KLT 833 (SC)) and Nair Service Society v. State of Kerala (2007 (2) KLT 77 (SC)). A decision of a Full Bench of this Court in Mohanan v. Director of Homoeopathy (2006 (3) KLT 641 (FB)) is also relied upon to contend that for vacancies reported after the final judgment of the Supreme Court, the stipulations wpc 5777/2008 7 contained in Ext.R1(a) circular alone could have been applied. Relying upon the said decision, it was submitted that the above decision is an authority for the position that once an amendment regarding qualifications and method of appointment, etc. in respect of a particular post comes into force, any vacancy which arises subsequent to the commencement of the amended rules can be filled up only in accordance with the amended rules notwithstanding the currency of any rank list published by the Public Service Commission, selection of which was initiated prior to the amendment of the rules. It is therefore contended that the Commission cannot straight away take a decision on their own that the directions issued by the Supreme Court need be made applicable only to subsequent ranked lists published after 19.4.2005. 10. For considering the said argument, some of the aspects leading to the directions of the Apex Court are relevant to be noticed. The decision of the Apex Court is reported in President, SIUC v. State of Kerala & Others {(2006) 9 SCC 354}. The judgment of the Division Bench of this Court in Hindu Nadar Corporation's case (2000 (3) KLT 740) was taken up in appeal before the Apex Court which was finally disposed of by the above judgment. As already noticed, the Division Bench of this Court held that “Hindu Nadars should continue to be treated as a separate class for the wpc 5777/2008 8 purpose of Article 16(4) of the Constitution. So also, Nadars converted to SIUC should form another category. Under such circumstances, Hindu Nadars would remain as a separate class by themselves in item No.49 and Nadars converted to SIUC would come within item No.64 of the KS & SSR, 1958.” It was also directed that all appointments hitherto made on the basis of the impugned orders would not be disturbed and for the purpose of future appointments, Hindu Nadars will have to be treated as a separate class. The details of various interim orders passed by the Apex Court are referred to in the final judgment. In the interim order dated 24.2.2005 it was directed that SIUC Nadars, as before, would continue to have reservation of 1% with Anglo-Indians and Hindu Nadars would continue to be part of residuary category, and would be part of Other Backward Classes entitled to 10% reservation along with other castes. The Commission thereafter issued the U.O. Note dated 12.4.2005. In the said U.O. Note, it was specified as follows: “The turn of reservation to both communities will be as follows: (a) For posts included in the LGS 1. The turn 38 N will be allotted to SIUC/AI 2. The turn 60 N and 80 N will be allotted to OBC (b) For posts other than those included in LGS 1. The turn 38 N will be allotted to SIUC/AI wpc 5777/2008 9 2. The turn 60 N will be allotted to OBC” It was also specified in the said U.O. Note that the procedure laid down will be subject to the final orders of the Supreme Court and the date of effect of the decision of the Commission is 6.4.2005. In W.P.(C) No.28027/2005, the above U.O. Note was sought to be implemented and an interim order to that effect was issued by this Court on 13.10.2005. Against the interim order passed by this Court, S.L.P.(Civil) No. 639/2006 was filed before the Apex Court and the order passed by this Court was stayed. W.P.(C) No.28027/2005 was subsequently dismissed as withdrawn. At the stage of pronouncing the final judgment, the Backward Class Commission had made its recommendations to the Government. It was recommended that Hindu Nadars and Christian Nadars ought to be treated as separate and distinct classes. The Apex Court was of the view that it was for the State to accept the recommendation or not. Ultimately, the following directions were issued: “The Public Service Commission, therefore, may now implement its order dated 12.4.2005 albeit provisionally till a decision is taken by the State Government on the recommendations made by the Backward Class Commission. Appointments made in respect of both 'Hindu Nadars' and 'SIUC Nadars' pursuant to the order of the Public Service Commission dated 12.4.2005 may now be given wpc 5777/2008 10 effect to.” 11. Therefore, the crucial question is whether the proceedings Ext.R1 (b) issued by the Commission is valid or not in the light of the final judgment rendered by the Apex Court. The justification sought by the Commission is evident from para 10 of the counter affidavit. It is pointed out that the ranked list prepared before the interim order of the Apex Court, is not governed by the circulars, as till the interim order issued by the Apex Court, the judgment of the Division Bench of this Court will govern the field. 12. Therefore, the essential question depends upon the various factors considered by the Apex Court in the final judgment. A reading of the judgment shows that it was directed by the Apex Court in the interim order dated 24.2.2005 that till the Kerala State Commission for Backward Classes files its report, the SIUC Nadars, as before, would continue to have reservation of one per cent with Anglo Indians and Hindu Nadars would continue to be part of residuary category and would be part of Other Backward Classes. It is at that stage Ext.R1(a) was passed by the Commission on 12.4.2005 in implementation of the same. It was made clear therein also that the procedure laid down will be subject to the final orders of the Supreme Court and the decision of the Commission shall take wpc 5777/2008 11 effect with effect from 6.4.2005. The interim order passed by this court in the subsequent writ petition is dated 13.10.2005 (W.P.(C) No.28027/2005). While rendering the final judgment, the Apex Court has noticed that the State has already implemented the judgment of the Division Bench of this Court, meaning thereby that the Nadars of both the religions have been directed to be treated differently. The recommendation of the Commission to that effect was also noticed. Therefore, after noticing these facts, the Apex Court finally directed the Commission to implement its order dated 12.4.2005 albeit provisionally till a decision is taken by the State Government on the recommendation made by the Backward Classes Commission. It was made clear that the appointment made in respect of both Hindu Nadars and SIUC Nadars pursuant to the order of the Public Service Commission dated 12.4.2005 may now be given effect to. With regard to the judgment rendered by the Division Bench it was held thus: “It will bear repetition to state that even the Commission, in terms of its recommendations, now accepts that Hindu Nadars and Christian Nadars ought to be treated as different classes. In this view of the matter, we are of the opinion that there does not exist any dispute amongst the parties as regards the correctness or otherwise of the impugned judgment of the Kerala High Court.” 13. Hence, the legal position that emerges is that after the decision wpc 5777/2008 12 of the Division Bench in Hindu Nadar Corporation's case (2000 (3) KLT 740), the Hindu Nadars and SIUC Nadars will have to be treated as separate classes for the purpose of reservation. This position was accepted by the Government when the Government issued two orders and the Apex Court also, in the interim orders and in the final judgment, reiterated the position and the report of the Backward Classes Commission is also to that effect. 14. The question therefore is whether the Commission can, by a U.O. Note like Ext.R1(b), take the position that Ext.R1(a) will not be implemented in respect of the ranked list existing as on the date of the final judgment of the Apex Court also. Learned counsel for the petitioner Shri N. Sugathan submitted that in the light of the fact that the law laid down by the Supreme Court is binding in all courts and authorities, the Commission is undisputably bound by the same and if that be so, the U.O. Note, Ext.R1(a) has to be implemented in full and as the persons like the petitioner who are included in the ranked list are entitled for the benefit of the judgment of the Apex Court and that right cannot be taken away by an administrative order like Ext.R1(b). The decision of the Full Bench of this Court in Mohanan's case (2006 (3) KLT 641 (FB)) was pressed into service in wpc 5777/2008 13 support of the argument. 15. Therein, the main question considered was whether in the light of the coming into force of an amendment to the Special Rules during the currency of the ranked list, the vacancies which arose subsequent to the coming into force of the amendment, can be filled up from the ranked list prepared by the Commission. It was held that “once a amendment regarding qualifications and method of appointment, etc. in respect of a particular post comes into force any vacancy which arises subsequent to the commencement of the amended rules can be filled up only in accordance with the amended rules notwithstanding the currency of any rank list published by the P.S.C., selection of which was initiated prior to the amendment of the rules.” The question whether the Commission is empowered to postpone the applicability of the amended rules, was also considered in para 24 of the judgment and the legal position was answered in the negative by the Full Bench in the following words: “We do not think that either R.14 of the Kerala Public Service Commission Rules of Procedure or the stipulation in the notification can make any difference to the law laid down by us as above. If such a contention is accepted, we would have to necessarily concede a power on the PSC to postpone the coming into force of the amended rules promulgated by the Government. In so far as the rule making wpc 5777/2008 14 authority is the government, the power to fix the date of commencement of the Rules also shall be exclusively with the Government unless the statute otherwise prescribes. When the Government issues notification amending the Rules either with retrospective effect or with effect from the date of commencement of the Rules (which would be the date of commencement of the notification unless the notification itself expressly or by necessary implication stipulates otherwise), the operation of the Rules should commence on that day only and not other date. If the PSC is given the liberty to make advice from the list in force prepared in accordance with the unamended rules in respect of vacancies which arose subsequent to the commencement of the amended rules, necessarily, that would amount to the PSC changing the date of commencement of the amended rules, which cannot be permitted by any stretch of imagination. R.14 of the Kerala Public Service Commission Rules of Procedure also cannot change the date of commencement of the amended Rules promulgated by the Government. Therefore, R.14 can only be subservient to the powers of the government to frame or amend Special Rules with or without retrospective effect and cannot be relied upon to enable the PSC to make advise from current rank list for appointment to vacancies which arose subsequent to the framing or amendment of the Special Rules.” Therefore, once the ranked list published is in operation, the change in law or in the procedure will have an impact and if the method of recruitment and wpc 5777/2008 15 qualifications, etc. are amended, going by the decision of the Full Bench, in respect of the vacancies which arose after the coming into force of the amendment persons who are eligible in terms of the amended qualifications, etc. alone can be appointed. If we draw an analogy here, the position that emerges will be as follows:- The ranked list was published prior to the final judgment of the Apex Court; in terms of the directions of the Division Bench some candidates were advised from the ranked list and the process was going on. An interim order was passed as per Ext.P4 by the Apex Court. The Supreme Court in the final judgment, allowed the Public Service Commission to issue advice memos pending final decision on the report submitted by the Backward Classes Commission as directed by the Apex Court. The appointments were directed to be made provisionally till orders are passed by the Government in relation to the matter. Permission given by the Apex Court in the final judgment is to implement the proceedings Ext.R1(a) (Ext.P5). There is no restriction that it should be implemented only in respect of a ranked list which comes into force on a later day. That means, what is intended by the directions of the Apex Court is to implement the same in respect of a ranked list which was currently in operation also, as otherwise it would have been indicated in the final judgment itself. When the Commission is directed to implement wpc 5777/2008 16 Ext.R1(a), there is no enabling provision which empower them to postpone the same especially in the light of the decision of the Full Bench in Mohanan's case (2006 (3) KLT 641 FB) interpreting Rule 14 of the Rules of Procedure. 16. If the stand of the Commission is accepted, then it will be evident that they have followed the system which was in vogue prior to the judgment in Hindu Nadar Corporation's case (2000 (3) KLT 740). It is in 1979 that the Government introduced amendments to List III to Rule 17