IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 24737 of 2008(R) -------------------------------------- PETITIONER: ------------------- C.R.RANJITH, SOUPARNIKA, ERAVIMANGALAM P.O. PERITALMANNA, MALAPPURAM DISTRICT. BY ADV. SMT.S.KARTHIKA. RESPONDENTS: ------------------------ 1. HIGH COURT OF KERALA REP. BY ITS REGISTRAR, HIGH COURT OF KERALA ERNAKULAM 2. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT HOME DEPARTMENT, GOVT, SECRETARIAT TRIVANDRUM 3. MR.BINU P.S ADVOCATE, GOKULAM T.C. 6/1972, VALIYAVILA, VATTIYOORKAVAU P.O. THIRUVANANTHAPURAM 4. MS. KAVITHA GANGHADHARAN, KARTHIKA ORIPURAM, CHENNITHALA P.O,MAVELIKKARA, ALAPPUZHA- 690 105 5. MS. REENADAS T.R., PLAVOTTU THOPE, R.C. STREET, BALARAMAPURAM P.O., THIRUVANANTHAPURAM. 6. MS. JAYAMOL.K., KARIPPUMANVILA PUTHEN VEEDU, NEYYATTINKARA P.O.,THIRUVANANTHAPURAM. W.P.(C). NO.24737/2008-R: 7. MR. SAMEER.A., SAMEE COTTAGE, KOIHOORKONAM P.O.,POTHENCODE, THIRUVANANTHAPURAM -695 584. 8. MS.MINIMOL.F., NEW FATHIMA MANZIL, VENKULAM, EDAVA P.O. 9. MS.PRIYA.K., ANJALI, NEAR RELIANCE PETROL PUMP, KUTHUPARAMBA P.O.,KANNUR DISTRICT 670 643. 10. MR. SANJU.T., C-14 SARANYA APARATMENTS, CHAKKALAPPADAM ROAD, KALOOR, KOCHI -682 017 11. MS. RESMI.S KOCHUVETTIL, CHINGOLI P.O., ALAPPUZHA- 690 532. 12. MS. SUBITHA CHIRAKKAL, SWATHI, T.C. 36/1325, VALLAKKADAVU.P.O., THIRUVANANTHAPURAM – 8. 13. MS. LISHA.S., W/O. REJI JACOB, ARACKDAYIL HOUSE, ALLAPRA.P.O., PERUMBAVOOR – 683 553. 14. MS. FATHIMA BEEVI.A, ALLESHAS P.A. HOUSE, PARAYATHUMUKKU, THATTAMALA.P.O., KOLLAM – 691 020. 15. MR. RAVICHANDAR C.R., THACHAKKARA HOUSE, LANE NO. 38, JANATHA ROAD, VYTTILA.P.O., ERNAKULAM – 682 019. 16. MS. JUBIYA.A., NAFEEZA MANZIL, KAKKAKUNNU.P.O., KASARGOD DISTRICT – 690 552. 17. MS. SUHAIB.M., ADVOCATE, MANDUR, MANDUR.P.O., KANNUR DISTRICT. W.P.(C). NO.24737/2008-R: 18. MR. SUNILKUMAR.K.R., SIVAKRIPA, P.O. PAZHUVIL, THRISSUR DISTRICT – 680 564. 19. MR. ASHRAF.A.M., ADVOCATE, AMMANATH, MANALITHRA.P.O., THRISSUR DISTRICT – 680 564. R1 BY MR. K.R.B.KAIMAL, SENIOR ADVOCATE, ADV. MR. B. UNNIKRISHNA KAIMAL, R2 BY GOVT. PLEADER MR. P. NANDAKUMAR, R3, R5 TO R6, R8 TO R16, R18 & R19 BY ADV. MR. S. RADHAKRISHNAN, R4 BY ADV. MR. GEORGE VARGHESE PERUMPALLIKUTTIYIL, R7 & R17 BY MR. K. RAMAKUMAR, SENIOR ADVOCATE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2009, ALONG WITH W.P.(C). NO. 34668/2008, THE COURT ON 21/05/2009, DELIVERED THE FOLLOWING: W.P.(C). NO.24737/2008-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTIFICATION DTD. 13/06/2008 PUBLISHING LIST OF QUALIFIED CANDIDATES FOR APPOINTMENT TO THE POST OF MUNSIFF/ MAGISTRATE ALONG WITH LIST OF DIRECT RECRUITMENT CANDIDATES. EXT.P.2: COPY OF THE G.O.(MS).NO.120/2008/HOME DTD. 25/07/2008. EXT.P.3: COPY OF THE MAIN LIST OF 88 CANDIDATES FOUND SUITABLE FOR APPOINTMENT IN THE DIRECT RECRUITMENT QUOTA DURING THE YEAR 2002. EXT.P.4: COPY OF THE LIST OF CANDIDATES FOUND SUITABLE FOR APPOINTMENT AS MUNSIFF/MAGISTRATE IN THE KERALA STATE JUDICIAL SERVICE IN THE DIRECT RECRUITMENT QUOTA ARRANGED APPLYING RULES 14 TO 17 OF THE KERALA STATE SUBORDINATE SERVICES RULES, 1958. RESPONDENTS' EXHIBITS: EXT.R1.A: STATEMENT SHOWING THE DETAILS OF EZHAVA CANDIDATES. EXT.R1.B: COPY OF THE ROTATION CHART. EXT.R1.C: COPY OF THE G.O.(MS).NO.34/2002/HOME DTD. 23/03/2002. EXT.R1.D: COPY OF THE G.O.(MS).NO.176/2003/HOME DTD. 12/08/2003. EXT.R1.E: COPY OF THE G.O.(MS).NO.378/2004/HOME DTD. 29/12/2004. EXT.R2.A: COPY OF THE ROTATION CHART. EXT.R3.A: COPY OF THE DETAILS OF 23 CANDIDATES (EZHAVA) ARE FURNISHED IN A STATEMENT. EXT.R3.B: COPY OF THE ROTATION CHART FOR THE 70 VACANCIES FOLLOWED BY OPERATING EXT.P3 RANK LSIT. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.24737/2008-R &34668/200 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of May, 2009. JUDGMENT These two writ petitions concern the challenge against the selection and appointment to the post of Munsiff-Magistrates in the Kerala State Judicial Service. Since common questions arise for consideration, they are disposed of by a common judgment. The relevant facts necessary for the disposal of the writ petitions are the following: 2. The petitioners in both the writ petitions belong to Ezhava community. The petitioner in Writ Petition No.24737/2008 is serial No.92 in the list of qualified candidates, viz. Ext.P1 and the petitioner in Writ Petition No.34668/2008 is serial No.54 in the same list. Ext.P1 has been published in the gazette, after it was prepared by the High Court and approved by the Government. Ext.P2 is the order issued by the Government appointing 45 persons listed in the notification accompanying it as Munsiff-Magistrates. The said list is one prepared under Rules 14 to 17 of the KS & SSR. 3. The previous selection was in the year 2002 and at that point of time wpc 24737 & 34668/08 2 70 posts of Munsiff-Magistrates were filled up from the rank list prepared by the High Court. Ext.P3 is the main list of 88 candidates found suitable for appointment in that selection and Ext.P4 is the list of 70 Munsiff- Magistrates who were appointed after applying reservation principles. 4. Mainly it is contended that in the year 2002, seven Ezhava candidates were posted against the passed over turn vacancies of other communities which were compensated in the present selection to those communities which is clearly wrong and illegal. On the basis of the detailed averments in the respective writ petitions and the chart produced therein showing the working out of rotation, it is contended that in the year 2002 six Ezahva candidates who were eligible for appointment in the merit quota were wrongly treated as Ezhava reserved candidates and only two Ezhavas were allotted to Ezhava reservation turn points. Those six persons were wrongly appointed in the Turn Pass Over vacancies. It is pointed out that in the present selection, in the notification the probable number of vacancies is shown as 85out of which 14 are transfer candidates and hence the remaining to be filled up by direct recruitment is 71. It is thus pointed out that if the reservation rules are correctly applied, six Ezhava candidates ranked in Ext.P1 list, ought to have been appointed to Munsiff-Magistrate posts in the Ezhava reservation points 54, 58, 62, 74, 78 and 82. It is further wpc 24737 & 34668/08 3 pointed out in Writ Petition NO.34668/2008 that going by the Bench Decision in K.P.S.C. v. Dr. T. Beermasthan (2008 (2) KLT 979), 100 point roster contemplated in Rule 14(a) has to be applied when more than 20 vacancies are reported. In the year 2002 as well as in 2007, as more than 20 vacancies were reported, only 100 cycles have to be followed and accordingly 11 Ezhava candidates have to be appointed in open merit quota and 8 Ezhavas are entitled to be appointed in the reservation point. 5. The main grounds of attack are that the method adopted by granting the benefit of passed over turns to other communities and denying appointment to 7 Ezhava candidates based on the Note to the amended Rule 15(a) of KS & SSR is unconstitutional. It is pointed out that going by the principles of interpretation and the well accepted legal principles settled by various decisions of the Apex Court and this court, a Note to a rule cannot go against the main part of the Rule and hence the Note to Rule 15(a) providing for the method of filling up of vacancies by accommodating candidates for uncompensated turns of vacancies is illegal. It is pointed out that the notification in the present selection was issued only in the year 2007, after the amendment of Rule 15(a), i.e. on 15.2.2007 and therefore going by the main part of Rule 15(a) , the High Court was bound to publish a separate notification to provide candidates belonging to particular wpc 24737 & 34668/08 4 communities who were not available for appointment in specified vacancies, when selection was made on previous occasions prior to the bringing into force of the amendment. It is next contended that the passed over turns of earlier selections could not have been compensated without adopting a time factor and the settled principle laid down by the Apex Court that the carried forward vacancies should be filled up at least within a period of three years ought to have been applied. Accordingly, it is contended that unlimited compensation cannot be supported and is not warranted by the rules. It is further contended, relying upon the Full Bench decision in Mohanan v. Director of Homeopathy (2006 (3) KLT 641 FB)), that the vacancies which arose subsequent to the amendment of Rule 15(a) should have been filled up only based on the provision contained in the main part of the rule itself. 6. It is explained in the counter affidavit filed by the Government and the High Court that in the 2002 selection appointments started at turn 83 of first rotation and ended at turn 52 of the second rotation. There were 23 Ezhava candidates in the list. Seventy vacancies arose during the period of validity of the list. Out of 23 Ezhava candidates, 9 were appointed against open competition turns, 7 against Ezhava reservation turns and the remaining 7 against No Candidates Available turns of other communities wpc 24737 & 34668/08 5 passed over to Ezhava candidates and an open competition candidate was appointed due to non availability of Ezhava candidate in the list. It is pointed out that in the present selection appointment started at turn 53 open competition and in the list of 45 candidates, 11 are to be appointed by transfer and 34 by direct recruitment. The number of Ezhava reservation is six, i.e. turns 54, 58, 62, 74, 78 & 82, between 53 to 86. In the 2002 selection 7 reservation turns of other communities were passed over to Ezhava community due to non availability of candidates belonging to these communities in the select list as per the then existing Rule 15(a). In the 1999 selection one reservation turn, i.e. turn 60 of Nadars (Hindu Nadars and SIUC Nadars) was passed over to Ezhava community. This passed over turn could not be restored to Nadars in the 2002 selection since no Nadar candidate was available. In the present selection all the 8 No Candidates Available vacancies, i.e. one of 1999 selection and seven of 2002 selection passed over to Ezhava communities from other communities had to be compensated and restored to the respective communities in the present selection and accordingly they were restored. This was done especially since Ezhava community derived extra benefit during the previous selections of the years 1999 and 2002. It is contended that the Note to Rule 15(a) does not conflict with the main part of the rule. wpc 24737 & 34668/08 6 7. Heard Smt. V.P. Seemanthini, learned Senior Counsel for the petitioners, Shir K.R.B. Kaimal, learned Senior counsel appearing for the High Court, Shri K. Ramakumar, learned Senior Counsel, Shri George Varghese Perumpallikuttiyil and Shri S. Radhakrishnan for the contesting respondents and Shri P. Nandakumar, learned Govt. Pleader for the Government. 8. Learned Senior Counsel appearing for the petitioners contended that the notification itself was published after the amendment of Rule 15(a) of KS & SSR and going by the rule itself, if a suitable candidate is not available for selection from any particular community or group of communities, such vacancies have to be notified separately for filling up by direct recruitment exclusively from those communities. This was not done when the notification was issued. Since the said intend and purpose of the rule had to be given effect to, especially in the light of the non obstante clause, the method presently adopted to compensate the turns of the said communities from Ezhava reservation turns cannot be supported. It is contended that a Note to a Rule cannot go against the main part of the rule, going by the dictum laid down in various decisions of this court and the Apex Court. 9. Therefore, the main issue to be decided is whether the Note to wpc 24737 & 34668/08 7 Rule 15(a) of KS & SSR (as amended) will survive. 10. A reference to the unamended Rule 15(a) is profitable here. Going by the unamended Rule 15(a), “if a suitable candidate is not available for selection from 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.” Going by sub-rule © of Rule 15, “the benefit 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.” Going by the first proviso to sub-rule (c), in no year reservations including carrying forward vacancies to a category of post shall exceed 50% of the total number of vacancies for which selection by direct recruitment to that category is wpc 24737 & 34668/08 8 resorted to in that year. 11. There was one provision among the unamended rules in the form of the second proviso to sub-rule (c) by which a particular period of life was prescribed as far as the right of restoration of the turn was concerned. The second proviso read thus: “Provided further that the right of restoration of the turn shall lapse with the expiry of three years from the date of the passing over.” This was omitted by G.O.(P) 220/76/PD dated 12/7/1976. Hence the right of restoration was in tact without any such limit, going by the unamended Rules 15(a) to (c) and the passed over turns shall be restored at the earliest possible opportunity. 12. The impact of the amended Rule 15(a) is two fold: Fresh notification has to be issued to fill up the vacancy earmarked for a particular community or group of communities in a selection year by way of direct recruitment exclusively from among that community or group of communities, if a suitable candidate is not available for selection from those communities. Such re- notification has to be issued repeatedly for not less than two times and even after it, if no suitable candidates are available, the selection shall be made from available other Backward Classes candidates and in their absence, from available Scheduled Castes candidates and in their absence, from Scheduled Tribe candidates. wpc 24737 & 34668/08 9 13. The Explanation to Rule 15(a) gives an idea of a a selection year as follows:- “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.” The Note to the rule reads 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.” 14. Learned Senior Counsel appearing for the petitioners relied upon the principles stated by this Court and Apex Court in M.P. Chndukutty v. Administrative Officer, Government Medical College, Calicut (1967 KLT 146), Radha v. District Educational Officer, Badagara & others (1975 KLT 617), Tara Singh and others v. State of Rajasthan and others {(1975) 4 SCC 86}, Kunhikrishnan v. State of Kerala (1982 KLT 13(FB)), 20th Centuary Finance Corpn. Ltd. and another v. State of Maharashtra {(2000) 6 SCC 12} and Rai Sudhir Prasad v. State of Bihar and others {2005) 13 SCC 25) to contend for the position that the Note to a rule cannot go against the main part of the rule. 15. In M.P. Chandukutty's case (1967 KLT 146), the dictum laid down is the following: “Even if the Note has not the force of the Rule and even if wpc 24737 & 34668/08 10 infringement of the Note as such is not justiciable, embodying as it does a fundamental rule of the principles of natural justice when the violation of what is stated in the Note involves the violation of the principles of natural justice as well this court can interfere.” The question arising here is entirely different. In Radha's case (1975 KLT 617), the meaning of the word “prescribed” under Note (i) to Rule 43 of Chapter XIV-A K.E.R. arose for consideration. The Bench was of the view that the word “prescribed in Note (i) to Rule 43 in Chapter XIV-A cannot be given as meaning that only prescribed by rules under the Act and that the prescription in the general sense of the word by an executive order would be sufficient. Therein also, the question decided is slightly different. In Tara Singh's case (1975 (4) SCC 86), the function of the Notes to a rule was elaborated thus: “The notes are promulgated with the rules in exercise of legislative power. The notes are made contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion. The real purpose of the notes is that when rules are silent the notes will fill up gaps. Notes which are appended to rules are of aid not only in applying the rules but also in interpreting the true import of the rules.” Thus, it is clear that when rules are silent, the Notes will fill up the gaps and it has to be found out whether the Notes are inconsistent with the rules. The wpc 24737 & 34668/08 11 above dictum was quoted by the Full Bench in Kunhikrishnan's case (1982 KLT 13 (FB). In para 5, while considering a Note to Rule 28 in Chapter XIV-A K.E.R., it was held that “ the Note to Rule 28 in Chapter XIV-A of the rules is part of Rule 28 itself and a Government Order cannot override the statutory rules in the K.E.R.” In 20th Century Finance Corpn. Ltd.'s case {(2000) 6 SCC 12}, on the facts of the case, the Apex Court held that Note 4 of Section 2(1)(iv) of Haryana General Sales Tax Act, 1973 had to be read down. In Rai Sudhir Prasad's case {(2004) 13 SCC 25}, their Lordships held that “a note to rule cannot derogate the explicit words of the substantive provision and must be read as explanatory and in harmony with it.” 16. The Note herein to Rule 15(a) has, therefore, to be analysed in the light of the unamended Rules 15(a) to 15(c) and the main part of Rule 15(a) as amended. Going by the facts of this case, as on the date of coming into force of the amended rule 15(a) (published as per gazette dated 8.3.2006 with effect from 2.2.2006), no rank list was in force. The notification itself was published in the year 2007. The unamended Rules 15(a) to 15(c), as noticed already, provided for restoration of uncompensated turns of vacancies and that too by making adjustment wpc 24737 & 34668/08 12 against the claims of the particular community or group that derived the extra benefit. The method of passing over of a vacancy in the absence of candidates from a particular community or group of communities and the filling up of the same by candidates from a particular community immediately next to the passed over community or group is a wellknown one covered by the rules. The integrated cycle combining the rotation in clause (c) of Rule 14 and sub rotation in sub-rule (2) to Rule 17 had to be operated in that manner. Thus, the passed over turns available to a particular community had to be restored “at the earliest possible opportunity.” In its real sense, the Note to the amended rule 15 (a) saves the right of those communities for restoration of all uncompensated turns as on 2.2.2006. It is not a right newly created. But it only reiterates the position under the unamended rule. 17. The question therefore is whether after the amendment of rule 15(a) the High Court was bound to publish a notification to fill up vacancies due to the passed over turns and to restore uncompensated turns, etc. from candidates of particular communities to meet the requirements of the unamended rules 15(a) to 15(c), as contended by the learned Senior Counsel for the petitioners, as a first step itself. The relevant provision in Rule 15(a) as amended comprehends a different situation. It does not wpc 24737 & 34668/08 13 envisage issuance of a notification straightaway as an initial step before resorting to the selection process and publication of a list of candidates to fill up the vacancies. The process envisaged therein contemplates that it is for the “selection year” which is prescribed in the Explanation to the rule. Going by the amended rule only if a candidate is not available to fill up the turn from a particular community in the rank list thus published, after the process of selection then alone a fresh notification is envisaged for that selection year to fill up vacancies exclusively from such community/communities. Herein, the rank list is published admittedly only by Ext.P1 dated 13.6.2008. Only when the rank list is operated as per the procedure prescribed in Rules 14 to 17 then alone it can be found out whether a suitable candidate is available or not from a particular community. If such candidates are not available, then the rule envisages publication of a fresh notification for that selection year to fill up such vacancies. Therefore, the contention of the learned Senior Counsel for the petitioners that the High Court ought to have published a notification initially to fill up the uncompensated turns of candidates in the previous selections, viz. 2002 and 1999, etc. cannot be accepted. That is not the procedure envisaged under the amended rule 15(a). In that view of the matter, it cannot be said that the Note to Rule 15(a) is inconsistent with the wpc 24737 & 34668/08 14 main part of the rule itself. As rightly contended by the learned Senior Counsel appearing for the High Court, the object and purport of the Note actually is to restore the benefit of the turn that was lost to a particular community and it operates really as a saving clause itself. In that view of the matter, I do not find any conflict with the main part of Rule 15(a) and the Note. Even going by the dictum laid down in the above mentioned cases, the Note also forms part of the rule and the note herein is only self explanatory and works in harmony with the main part of the rule. The real purpose of the Note being to fill up the gaps where the rules are silent, the Note to rule 15(a) only fill up the gaps as far as the question of providing restoration of benefit to a particular community is concerned of the uncompensated turns as on 2nd February, 2006. The main part of Rule 15(a) as amended does not provide a specific procedure of selection for restoring the uncompensated turn as on the date of coming into force of the rule. The note only saves the rights of those communities. The benefit of reservation provided under the relevant rules of KS & SSR is on the basis of the salutary provisions of the Constitution. It has to be given full effect. Therefore, the Note only caters to the said provisions of the rules and it never acts to defeat the rights of any of the candidates belonging to particular communities. If the true effect of the main part of Rule 15(a) is wpc 24737 & 34668/08 15 understood thus, the note only works in harmony with it and it never acts against the real purport of the rule. There is no inconsistency as alleged. 18. I am fortified in this view, by the decisions of this Court