IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE AG.CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 WA.No. 817 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.34581/2010 Dated 09/12/2010 .................... APPELLANT(S): -------------- SHEEJA P.R,W/O.V.MANOJ KUMAR, CHEMBAKASSERI, CHANGANKULANGARA, OCHIRA P.O.,KOLLAM DISTRICT BY ADV. SRI.P.K.MUHAMMED SRI.S.VIJI RESPONDENT(S): --------------- 1. SECRETARY, KERALA PUBLIC SERVICE COMMISSIONER PATTOM, THIRUVANANTHAPURAM-PIN-695001 2. SMITHA P.,PADINJARE CHARUVILA VEEDU, EZHUKONE(P.O) KOLLAM,PIN-691505. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.Ramachandran Nair, Ag.C.J. & B.P. Ray, J. ====================================== W.A.No.817 of 2011 ====================================== Dated this the 8th day of November, 2011. “CR” JUDGMENT Ray, J. Petitioner has filed the writ petition for the following reliefs: i) issue a writ of mandamus or other appropriate writ, order or direction, compelling the 1st respondent to issue advice memo in favour of the petitioner for the post of Higher Secondary School Teacher English junior in the light of Ext.P1 rank list; ii) award the cost of the writ petition to the petitioner from the 1st respondent; and iii) pass such other order or direction as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the case.” 2. Petitioner secured 3rd rank in Ezhava supplementary list for the post of Higher Secondary School Teacher as evidenced by Ext.P1 rank list. The period of rank list was three years. The rank list was prepared on 27.4.2009 and will expire on 26.4.2012. The case of the petitioner is that in order to complete the reservation quota of Ezhava community, apart from the candidates in the main list, the names of W.A.No.817 of 2011 -:2:- two more candidates from the supplementary list were included. Therefore, the Public Service Commission issued advice memo to all the candidates from the main list and two more candidates from Ezhava supplementary list in order to fulfil reservation quota. Accordingly, the second respondent who was having 2nd rank in Ezhava supplementary list was issued an advice memo. The second respondent did not join because she was already employed as a Higher Secondary School Teacher in English. The petitioner, being the next candidate, is entitled and eligible to receive advice memo from the PSC on the ground that the rank list is in force and the reservation quota for Ezhava community is not completed due to non-joining of the second respondent. Therefore, petitioner's case is that she is entitled to get advice memo from the first respondent. Since the same was not received from the first respondent, she filed the writ petition for the aforementioned reliefs. The writ petition was dismissed by this Court by order dated 9.12.2010. The review petition was also dismissed. Hence, this writ appeal. 3. Learned counsel for the petitioner submitted that in the W.A.No.817 of 2011 -:3:- present case there is no violation of 50:50 ratio as laid down in Indra Sawhney v. Union of India (1992 Supp. (3) S.C.C. 217) and the learned single Judge without appreciating the same, dismissed the review petition as well as the writ petition. He further submitted that since the supplementary list is still valid and the second respondent has not joined the post, the petitioner has a vested right to join in the said post. It appears the learned single Judge dismissed both the writ petition and review petition relying on the judgment in Nair Service Society v. District Officer, Kerala Public Service Commission [(2003 (3) K.L.T. 1126 (SC)]. We have gone through the aforementioned judgment. In the said judgment, the Hon'ble Apex Court has held that by advising candidates from the supplementary list, without any opportunity of balancing the advise with an open competition candidate the consequence would have been a violation of 50:50 rule with a tilt in favour of the reserved candidates raising their quota above 50%. The net result is that there will be excess reservation over 50% in the year. The Apex Court, in paragraph 23 of the judgment, has discussed the principle on which Kerala Public W.A.No.817 of 2011 -:4:- Service Commission has to prepare the select list of the candidates. The said paragraph of the judgment is quoted herein for ready reference: “With a view to secure adequate representation of reserved communities in the selection and thereby to effectuate the policy of reservation, the KPSC prepares what it calls supplementary list of candidates for the different reserved communities who will be entitled to appointment, comprising of a number equal to half the number of turns as per the quota to each reservation group. Thus, if Muslims were entitled to ten turns in the list, the supplementary list of Muslims will comprise of at least five Muslims. The advantage of this procedure was that no reservation turn will be passed over to open competition and reservation groups will get the representation due to them, at the same time maintaining the balance of 50:50 between open competition and reservation candidates.” We find that, following the aforesaid principle, in the instant case, there is no violation of 50:50 ratio and as per Ext.P1 rank list the petitioner secured 3rd position. Since the second respondent did not join, the petitioner should have been given advice memo by the first respondent. Accordingly, we allow the writ appeal by setting W.A.No.817 of 2011 -:5:- aside the order in R.P.89/2011 and judgment in W.P.(C)34581/2010 and direct the first respondent to issue advice memo in favour of the petitioner within one month from the date of receipt of a copy of this judgment. C.N.Ramachandran Nair, Ag.C.J. B.P. Ray, Judge. sl.