IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WA.No. 2483 of 2008() --------------------- (AGAINST JUDGMENT IN W.P(C)NO.18760/2008 OF THIS HON'BLE COURT) APPELLANTS/PETITIONERS: -------------- 1. PRASEENA K.P., PRASI AYURVEDIC, KALIKAVU JUNCTION KALIKAVU P.O., MALAPPURAM DIST. 2. SINDALA K.V., PUTHIYEDATH HOUSE, NALUKETTU P.O., KORATTY, THRISSUR DISTRICT. 3. SINI V.S., VAIMELI HOUSE, NADUTHURUTH, MELOOR P.O., CHALAKUDY, THRISSUR DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS/RESPONDENTS: --------------- 1. KERALA PUBLIC SERVICE COMMISSION, REP. BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF HIGHER SECONDARY, EDUCATION, THIRUVANANTHAPURAM. BY SRI.ALEXANDER THOMAS. SC FOR KPSC GOVERNMENT PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “C.R.” KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. ------------------------------------------------- W.A.No.2483 of 2008 -------------------------------------------------- Dated this the 28th day of January, 2009 JUDGMENT Kurian Joseph,J. An interesting question has come up for consideration in this appeal regarding the operation of Rule 15(a) of Part II KS & SSR. After the amendment introduced in the year 2006, in case a candidate belonging to a particular community or group of communities is not available, such vacancy has to be kept unfilled and notified separately for selection by direct recruitment exclusively from that community. The question is whether by the time such selection is conducted exclusively for the community, in case candidates belonging to that particular community are available in the ranked list for a subsequent selection year, whether there need be a selection exclusively for that community. 2. The appellants are the petitioners in the writ petition. The appellants were included in the supplementary list W.A.No.2483 of 2008 -:2:- for selection to the post of HSST-Senior and HSST-Junior, in Sociology. Ext.P3 is the list published on 6-11-2004 for HSST- Senior and Ext.P4 is the list published on 15-10-2004 for HSST- Junior. Turns 32, 52 and 64 were to be filled up by SC/ST candidates and since they were not available, those turns were passed over for Ezhava, Ezhava and Muslim. By the time the turn 72 arose for that selection year, the Rule was amended. The amended Rule 15(a) to the extent relevant, 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. Notwithstanding anything contained in any other 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 Class candidates. ....” In terms of the amendment the Commission took steps for selection of Scheduled Caste candidates as per Ext.P9. By that time Exts.P1 and P2 ranked lists were published for HSST-Senior W.A.No.2483 of 2008 -:3:- and HSST-Junior in Sociology on 30-12-2006 and 30-12-2007 respectively. The writ petitioners are included in the supplementary list in Exts.P1 and P2. 3. The main contention of Sri.Kaleeswaram Raj, learned counsel appearing for the appellants, is that since Scheduled Caste candidates are available for selection and appointment in Exts.P1 and P2 lists, a separate selection exclusively for Scheduled Caste candidates in respect of the selection year which commenced from Ext.P3 ranked list of 2004 is unnecessary. In other words, the availability of candidate has to be understood and applied for selection in respect of subsequent years also. 4. We are afraid the contention cannot be appreciated. After the amendment of Rule 15(a) the position is unambiguously clear. If a suitable candidate is not available for selection from any particular community or group of communities in the ranked list for the selection year, such turns have to be kept unfilled, such vacancies will have to be notified separately, such vacancies will have to be filled up by direct recruitment W.A.No.2483 of 2008 -:4:- exclusively from that particular community or group of communities and atleast two such attempts of re-notification should be made. Even after such attempts a candidate from the unfilled slot is not available, then such turn will go to other available Backward Communities. It has also to be noted that such process is for the selection year as prescribed in the Explanation which reads as follows:- “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.” Therefore, we do not find any basis for the contention that the vacancies kept unfilled in a selection year can be filled up by candidates in the ranked list for another selection year. 5. In view of the position as above, we make it clear that the direction issued by the learned single Judge that the vacancies at turn Nos.52, 64 and 84 shall be filled up depending upon the availability of the candidates from the list has to be understood as the turns which have already been passed over prior to the amendment as far as turns 52 and 64 are concerned W.A.No.2483 of 2008 -:5:- and as far as turn 84 is concerned, that situation does not arise since the list had expired even before reaching that turn. Therefore, as far as turns 52 and 64 are concerned, those turns already given to Ezhava and Muslim will be compensated from the subsequent select list and if candidates belonging to Scheduled Caste community are not available, then alone such vacancies will be treated as NCA vacancies. The writ appeal is disposed of as above. (KURIAN JOSEPH, JUDGE) (P.R.RAMACHANDRA MENON JUDGE) ahg. “C.R. KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. --------------------------- W.A.No.2483 of 2008 ---------------------------- JUDGMENT 28th January, 2009