IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 OP.No. 25092 of 2002(K) ----------------------- PETITIONER(S): --------------- T.M.BABURAJ, THALIKKULAM HOUSE, MAIDAKONAM P.O., IRINJALAKUDA. BY ADV. DR.K.P.KYLASANATHA PILLAY RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, COLLEGIATE EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 4. SARASWATHI, C/O. M.N.MOORTHY, BHAGHYA, M.G.ROAD, THIRUVANANTHAPURAM. ADDITIONAL RESPONDENT: 5. SMT.PARVATHY AMMAL, LECTURER IN VIOLIN, RLV COLLEGE OF MUSIC & FINE ARTS, TRIPUNITHURA, RESIDING AT H.NO.412/24 UNION CLUB WARD, KOTTAYAM-1. (ADDL.R5 IMPLEADED AS PER ORDER IN I.A.NO.7158/05 DTD.23.2.2006) ADV. SRI.ALEXANDER THOMAS,SC,KPSC DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.VPK.PANICKER FOR R5 GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON 30/01/2009 DELIVERED THE FOLLOWING: O.P.No. 25092/2002. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE DETAILS OF PERSONS INCLUDED IN RANK LIST DTD.16.4.99. P2. COPY OF THE JUDGMENT DTD.3.7.2002 IN O.P.NO.30479/2000. P2(A). COPY OF THE MEMORANDUM OF O.P. IN O.P.No. 30479/2000. P3. COPY OF THE JUDGMENT IN O.P.NO.2103/1982. P4. COPY OF THE REPRESENTATION DTD.1.6.2000 TO R3. P5. NOT IN THE FILE. P6. COPY OF THE JUDGMENT IN O.P.NO.2103/82 OF THIS COURT. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 25092 of 2002 ================== Dated this the 30th day of January, 2009 J U D G M E N T Pursuant to notification dated 2.9.1997 issued by the Kerala Public Service Commission inviting applications for selection to the post of of Tutor Grade II (Violin) [subsequently re-designated as Lecturer (Violin)], the petitioner applied. Rank list was published on 16.4.1999. The petitioner's rank number was 21. The petitioner belonged to the Muslim community. In the first selection year four vacancies arose. First vacancy was filled up by a open category candidate, second by a OBC-Ganika candidate, the third by an open candidate and the fourth vacancy by a SC candidate. During the next selection year only one vacancy arose. That was filled up by an open category candidate giving TPO to Ezhava candidate. During the third selection year one more vacancy arose. That was also filled up by an open category candidate giving TPO to Muslim candidate. The said advice of the open candidate during the third selection year is under challenge before me. 2. According to the petitioner, when during the first selection year the last candidate advised was a SC candidate and during the next year an open category candidate was appointed, then during the third year, a reservation candidate ought to have been appointed. 3. A counter affidavit has been filed by the PSC, wherein they o.p.25092/02 2 have explained the rotation adopted by them in paragraphs 4 to 6 thus: “4. It is submitted that the selection to the post of Tutor Grade (re-designated as Lecturer) in Violin is not a fresh one. At the time of publication of the present Ranked List dtd. 16.4.1999 only one vacancy was available with the Commission for advice of candidates. One TPO turn viz., MRI 10 OBC and one NCA turn viz; MRI 8 LC/AI-NCA-OX was pending to be satisfied from the ranked list. The rotation was started from MRI 13 OC. keeping MRI 12 SC TPO to observe 50% rule. Candidate with Rank No.1 was advised for appointment on 18.5.1999 against this MRI 13 OC turn. Later, the Director of Collegiate Education reported 2 vacancies for the post during the I selection year of the Ranked List and 2 candidates were advised on 4.6.99 by including one OC and one BC candidate against the turns MRI 10 BC and MRI 15 OC. The pending TPO turn viz: MRI 10 OBC was thus satisfied. The Director of Collegiate Education again reported one vacancy in the same selection year, and that vacancy was filled up by advising a SC candidate on 25.3.2000. MRI 12 SC turn which has kept TPO on 18.5.1999 was thus satisfied. 5. During the second selection year of the Ranked List i.e. From 16.4.2000 to 15.4.2001 the Director of Collegiate Education reported only one vacancy. The said vacancy was filled up by advising a candidate belonging to O.C. category. Advice was made against the turn MRI 17 OC keeping MRI 16 Muslim TPO, in order to keep 50% rule. 6. In the third selection year of the Ranked List i.e. from 16.4.2001 to 15.4.2002, the Director of Collegiate Education has again reported one vacancy for the post in compliance with an interim direction issued by the Honourable Court in O.P.8148/02 filed by Smt.K.Saraswathy. While filling up the vacancy reported in the 3rd selection year, MRI 18 Ezhava turn was kept TPO to keep 50% rule, and a candidate was advised against turn MRI 19 OC. The advice against MRI 19 OC has been challenged by the petitioner. But it may be seen from the details given above, that all the advices made so far were strictlly in accordance with the rules of reservation and rotation now in vogue.” 4. According to the PSC, since during the third selection year although normally the advice should have gone to the next reserved candidate in accordance with the communal rotation, advice could not be given because of the 50 per cent rule which stipulates that in any selection year reservation shall not exceed 50 per cent. According to o.p.25092/02 3 them, since during the third selection year there was only one vacancy, if a reserved candidate was to be appointed, then that would violate the 50 per cent rule. 5. I have considered the rival contentions in detail. 6. Although the counsel for the petitioner would try hard to convince me that the procedure adopted by the PSC is wrong, I am unconvinced by those arguments. Admittedly during the second and third selection years there were only one vacancy each. It is not disputed before me that as per the 50 per cent rule, in any selection year, reservation shall not exceed 50 per cent. In both second and third selection years there was only one vacancy each. If a reserved candidate was to be appointed to one of those vacancies for that selection year, reservation would exceed 50 per cent, which would violate the rule in that regard. As such, I am not satisfied that the rotation adopted by the PSC is in any way wrong. Therefore, I do not find any merit in the original petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================ O.P.No. 25092 of 2002-K ================ J U D G M E N T 30th January, 2009