IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 WA.No. 1763 of 2011() --------------------- (WP (C) NO. 29676/2010 OF THIS HONOURABLE COURT) --------- APPELLANT/PETITIONER: ------------------------------ SANTHOSH KUMAR, S/O.KRISHNAN NAIR, AGED 35 YEARS, PLAVILA PUTHEN VEEDU, MARAYAMUTTOM P.O, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP RESPONDENT(S): --------------- ---- 1. SREE CHITRA THIRUNAL COLLEGE OF ENGINEERING THIRUVANANTHAPURAM SOCIETY, REPRESENTED BY ITS CHAIRMAN SREE CHITRA THIRUNAL COLLEGE OF ENGINEERING, PAPPANAMCODE, THIRUVANANTHAPURAM 695001. 2. PRINCIPAL, SREE CHITRA THIRUNAL COLLEGE OF ENGINEERING, PAPPANAMCODE, THRUVANANTHAPURAM 695001. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.11.2011, THE COURT ON 9.12.2011 DELIVERED THE FOLLOWING: VK C.N. RAMACHANDRAN NAIR & K. VINOD CHANDRAN,JJ ========================= WRIT APPEAL NO. 1763 OF 2011 ========================= Dated this the 9th day of December, 2011 JUDGMENT Vinod Chandran,J. The appellant, the petitioner in the writ petition, is aggrieved by the denial of appointment as “Tradesman in the Trade of Turner” to which post he had applied for as per Ext.P3 and was ranked 3 in the list prepared and produced in the writ petition as Ext.P4. 2. The brief facts required for consideration of the writ appeal is that the appellant, who was appointed as Tradesman in the Trade of Turner on contract basis with effect from 1/ 2/2007, had been continuing in the said post with an artificial break of service effective till 22/10/2009. The three vacancies of Tradesman in the particular Trade of Turner that existed in the first respondent college were all filled up by contract WA 1763/2011 2 employees. The first respondent college by Ext.P3 invited applications for regularly filling up the said three posts of Tradesman in the Trade of Turner. The appellant along with others applied for the same and a rank list was prepared in which he figured as Rank No.3 in the order of merit. It is not disputed that the appointments are to be made as per the Kerala State & Subordinate Service Rules(K.S.&S.S.R) more particularly Rules 14 to 17 which prescribe the mode of reservation for appointment. The first vacancy was filled up by a candidate from the open category, the second vacancy by a reservation candidate and the third vacancy again by a general category candidate as per the Rules of rotation applicable to reservations. It is submitted by counsel for the first respondent that the list was published on 1/10/2009 and the same is in force for two years. The candidate in the general category, the 1st rank holder, advised first for appointment to one of the three posts, joined duty on 7/10/2009, but subsequently on 13/3/2010 resigned from service. The appellant, who was ranked No.3 in the merit list and belonging to the general category, WA 1763/2011 3 raised a claim to the vacancy which arose on the resignation of the first rank holder, by Ext.P5. The appellant also approached this Court by a writ petition in which this Court directed the disposal of the representation filed by the appellant. Pursuant to the directions issued by this Court, the second respondent considered the representation of the appellant and rejected the same on the ground that the fourth vacancy, which had arisen due to the resignation of the first rank holder, is a vacancy reserved for the scheduled caste community, in the selection year. The appellant challenged the said order of rejection, Ext.P6, before the learned Single Judge. The learned Single Judge found that only three vacancies were notified and the appellant's claim to the vacancy which arose on the resignation of the first rank holder relating his claim to violation of the 50% rule, on a reference to the number of posts, cannot be countenanced. Ext.P7 order of rejection as also the subsequent notification, Ext.P8 for recruiting a scheduled caste candidate was upheld holding that the vacancy that arose on the resignation of the first rank holder was the 4th vacancy entitled WA 1763/2011 4 to a scheduled caste candidate as per the rules of rotation for reservation. 3. The appellant before us has impugned the judgment of the learned single Judge on the specific ground of non- consideration of the rule prohibiting reservation in excess of 50% in a given year. There is, of course, no quarrel that if the first rank holder had, though advised, not joined in the said post necessarily the same ought to have been offered to the appellant herein, he being the next candidate in the merit list. The learned counsel for the appellant would contend that the first rank holder though joined for duty, resigned from service within a period of a little about five months, before being confirmed in the post. The three posts to which recruitment was made would violate 50% rule for reservations, if a scheduled caste candidate is advised for appointment, is the contention of the appellant. The appellant's counsel would also take us to the observation of a Division Bench in Sabeena Bbeegum v. District Co- Op.Bank[2007(4)K.L.T. 95. “As per Rules, NJD vacancies could be filled up only by candidate belonging to the same WA 1763/2011 5 community. A candidate from a reserved community cannot be advised to a NJD vacancy which goes to open competition turn. There is no provision to fill up open competition turn by reservation turn. If it is so filled up, open competition turn candidate will loose his chance forever and as such it cannot be compensated.” (sic) 4. The contention of the counsel is that though the first rank holder had joined duty, the fact that he resigned within a short period and that the first rank holder was not confirmed to the said post would entitle the next candidate in the merit list to be appointed. Denial of appointment to a general category candidate would result in the general category loosing its chance forever, unlike a candidate from the reservation category, contends the petitioner. 5. We have given anxious consideration to the contention advanced by both sides; keeping in perspective the principle “that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre service or the unit as the case may be”(sic) as laid down in WA 1763/2011 6 Indra Sawhney v. Union of India[A.I.R.1993 S.C.477] and further reaffirmed by the decision of the Hon'ble Supreme Court in R.K.Sabharwal v. State of Punjab[ (1995)2 S.C.C.745]. The learned Single Judge, in fact, has considered the decision in R.K.Sabharwal(supra) and held that the same is not applicable to the facts of the case since the issue considered therein was in the light of the Punjab Service of Engineers Class I PWD (IB)Rules, 1964 wherein a particular percentage was fixed for reservation to scheduled castes and scheduled backward classes. The finding of the learned single Judge that the decision of R.K.Sabharwal(supra) dealt with a particular rule reserving certain posts in a cadre though correct, the observation regarding 'posts' and 'vacancies' in the said decision, we think, is apposite to be applied to the facts of the present case, as the same has general application. The Supreme Court held: “The expression 'posts' and 'vacancies', often used in the executive instructions providing for reservations, are rather problematical. the word 'post' means an appointment, job, office or WA 1763/2011 7 employment. A position to which a person is appointed. 'Vacancy' means an unoccupied post or office. the plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation.” If that be so since rule of reservations prohibit reservation in excess of 50% in a year, it is abundantly clear that if the scheduled caste candidate is appointed to the post vacated by the first rank holder then there will be two candidates appointed in the reservation category as against the three available posts, which will violate 50% rule of reservation. This is particularly so, in the context of the vacancy being filled up by a candidate from the general category; if the vacancy had occurred due to the non-joining duty of the first rank holder. We have also WA 1763/2011 8 enquired from the counsel for the first respondent as to the result of Ext.P8 employment notice issued by the first respondent and we are told that no appointments have been made thereon and hence we are of the opinion that no third party rights are involved in granting the prayer of the appellant herein, on the facts and circumstances of the case. We are unable to agree with the findings of the learned Single Judge and we reverse the same consequently directing the first respondent to appoint the appellant to the vacancy which occurred in the three posts filling up of which was contemplated under Ext.P3 notification; if the appellant is found to be eligible otherwise. We allow the writ appeal . There is no order as to costs. C.N. RAMACHANDRAN NAIR, JUDGE K.VINOD CHANDRAN,JUDGE ks