IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 WP(C).No. 16131 of 2011(N) -------------------------- PETITIONER(S): --------------- DIJIL RAJ.M, ALATHUMTHOTTATHIL HOUSE, P.O.VATTOLI, KOZHIKODE DISTRICT, PIN-673 510. BY ADV. SRI.P.J.MATHEW SRI.THOMAS JOHN AMBOOKEN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM-695 001. 3. THE DISTRICT MEDICAL OFFICER (H), KOZHIKODE-673 001. 4. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KPSC OFFICE, PATTOM, THIRUVANANTHAPURAM-695 001. 5. DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION DISTRICT OFFICE, KOZHIKODE-673 001. ADV. SRI.P.C.SASIDHARAN, SC, KPSC FOR R4-R5 GOVERNMENT PLEADER SMT.SMITHA SUKUMAR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.16131/2011 APPENDIX P1:A TRUE COPY OF THE P.S.C RANKED LIST NO.194/2007/DOD DATED 31.10.2007. P2:A TRUE COPY OF THE GOVERNMENT ORDER NO.344/2008/H & WD DATED 8.7.2008. P3:A TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT DATED 3.6.2011 DIRECTING THE D.M.O KOZHIKODE TO REPORT VACANCIES TO THE P.S.C. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A.TO JUDGE C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 16131 OF 2011 -------------------------------------------- Dated this the 5th day of July, 2011 JUDGMENT The petitioner is holding rank No.46 in Ext.P1 ranked list published by the Kerala Public Service Commission (for short 'the Commission') for appointment to the post of Junior Health Inspector Grade II in Kottayam District. He belongs to Thiyya community. The ranked list was brought in force with effect from 31.10.2007 and its validity would expire on 31.8.2011. The prayer of the petitioner is for issuance of a writ of mandamus commanding the Commission to fill up the existing and future vacancies of Junior Health Inspector Grade II in Kozhikode District without altering the turn of Thiyya community in Ext.P1 ranked list. 2. A counter affidavit has been filed on behalf of respondents 4 and 5. For the purpose of deciding the issue involved in the Writ Petition, paragraphs 7 and 8 in the counter affidavit are relevant and they read as hereunder:- “7.The present ranked list come into force with effect from 31.10.2007. For operation the ranked list the following compensation turns are pending with the Commission: Nadar NCA Ezhava 3 OX NCA Ezhava 1 W.P.(C) NO.16131/2011 2 S.C NCA Ezhava 6 Muslim NCA Ezhava 1 Viswakarma NCA Ezhava 1 L.C NCA Ezhava 2 === 14 === 8. It is submitted that since candidates belonging to various reservation communities were not available in terms of the then existing rules the candidates belonging to Ezhava community were advised and the Ezhava/Thiyya community derived an extra benefit of 14 turns during the previous selection. The previous ranked list ended with MR IV 23 OC and the present ranked list started with MR IV 24 SC. It is submitted that the Commission have advised 76 candidates to the vacancies reported to it and the turn presently stands at MR IV 93 OC. While advising candidates upto MR IV 24 SC, 10 turns of Ezhava/Thiyya community arose and the turns are: 28E 34E 42E 54E 58E 62E 74E 78E 82E 88E 3. It is thus evident from the above extracted portion from the counter affidavit that the Thiyya community has already derived extra benefits in previous selection. Admittedly, the petitioner has been included in Ext.P1 ranked list for appointment to the post of Junior Health Inspector Grade-II in Kozhikode District at rank No.46 with the community benefit of Ezhava. In the circumstances, the provisions under unamended Rule 15(c) of the Kerala State & Subordinate Services Rules (for short 'the Rules') assumes relevance and it reads thus:- W.P.(C) NO.16131/2011 3 “The benefits forfeited of the turn forfeited to a particular community or to a group of community by reason of it being passed over under sub- rules (a) and (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 particular community or group that derived the extra benefit by reason of such passing over.” Note to Rule 15(a) of the Rules also assumes relevance in the context of the case and it runs as follows:- “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.” 4. The contention of the respondents is that on 14 occasions, the Thiyya community had obtained out of turn benefits. Out of this, only ten vacancies were compensated and therefore, four vacancies under compensated turn of vacancies are remaining to be compensated. The petitioner did not dispute the said position. In fact, no materials are available before this Court which would contradict the said fact. If that be the position, in view of the relevant provisions of law, as extracted above, the petitioner cannot be heard to canvass and claim for a direction to the respondents to fill up the existing and future vacancies of Junior Health Inspector Gr.II in Kottayam district,without altering the turn of Thiyya W.P.(C) NO.16131/2011 4 community in Ext.P1 ranked list. In fact, in view of note under Rule 15A, the respondents are bound to compensate the all pending uncompensated turns of vacancies such as temporarily passed over, no candidate available and non-joining duty as on 2.2.2006. In that view of the matter, this Writ Petition with the aforesaid prayers is liable to be dismissed. There is no merit in the Writ Petition. Accordingly, it is dismissed. Sd/- (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.16131/2011 5 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.16131/2011 6