IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 WA.No. 3012 of 2007() --------------------- (AGAINST THE JUDGMENT DATED 01.12.2005 IN W.P. (C) NO. 17078 OF 2005) APPELLANT: PETITIONER: ------------------------------------ A.SUMA, W/O.DR.SURA SREE JATHAN, KOCHU VEEDU, THAMARAKULAM, KOLLAM. BY ADV. MS. V.P.SEEMANDINI, SENIOR ADVOCATE RESPONDENTS: RESPONDENTS: ---------------------------------------------- 1. THE KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, P.S.C OFFICE, PATTOM, TRIVANDRUM. 2. THE CHIEF CHEMICAL EXAMINER, CHEMICAL EXAMINERS LOBORATORY, TRIVANDRUM 3. STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, HOME DEPARTMENT, SECRETARIAT, TRIVANDRUM. 4. INDU CHANDRAN.R., SREEKANTAVILASAM, DHANAUVACHAPURAM .P.O., THIRUVANANTHAPURAM-695 503 5. BIJU.V., CHIEF CHEMICAL EXAMINER TO GOVERNMENT, OFFICE OF THE CHEMICAL EXAMINERS LABORATORY, THIRUVANANTHAPURAM. 6. BIJU.D., REGIONAL CHEMICAL EXAMINER'S LABORATORY, CALICUT. R1 BY MR. P.C. SASIDHARAN, STANDING COUNSEL R2 AND R3 SENIOR GOVERNMENT PLEADER MS. K. MEERA R4 ADV. MR. S.P.ARAVINDAKSHAN PILLAY R5 AND R6 ADV. N. SUGATHAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON 23.09.2011, DELIVERED THE FOLLOWING: J. CHELAMESWAR, CJ & P.R. RAMACHANDRA MENON, J. .............................................................................. W.A. NO.3012 of 2007 ......................................................................... Dated this the 23rd September, 2011 P.R. Ramachandra Menon, J: Competence of the P.S.C. to determine 'equivalence' of the qualification mentioned in the Special Rules, changing the norms of selection midstream and violation of the 'quota-rota' rule are the major issues involved. 2. The appellant was an aspirant for appointment to the post of Junior Scientific Officer in the Kerala Chemical Examiners Laboratory Service, notified by the P.S.C as per Ext. P5 dated 27.02.1999. As per the Special Rules and the notification, the qualification was M.Sc. in Chemistry/Forensic Science/ Bio- Chemistry with 50% marks; which did not provide for recognition of any other qualification as equivalent to the prescribed W.A. NO.3012 of 2007 2 qualification. On completing the process of selection, Ext.P1 Rank List was published by the P.S.C. on 14.02.2003, wherein the appellant was ranked at Sl.No.10 and also as the first in the 'Ezhava' List earmarked for Other Backward Communities. 3. Much after coming into force of Ext. P1 Rank List on 14.02.2003, the P.S.C. decided to accept M.Sc. 'Applied Chemistry, Organic Chemistry and Inorganic Chemistry' also as the 'equivalent qualification' for the post and accordingly, Ext.P2 Addendum Rank List was published on 01.01.2004, whereby some new candidates were placed above the petitioner at the slots shown as 2A, 3A and 6A respectively, besides including some others as well, virtually coming to a total of 13. 4. Ext.P1 Rank List expired on 15.02.2006, before which 37 persons were advised from Ext.P1. According to the appellant/petitioner, when 37 persons were advised, the turns at slots 2, 14, 18, 28 and 34 in the Rotation Chart were to be filled W.A. NO.3012 of 2007 3 up by 'Ezhava' candidates as per the Roster. Initially '6' candidates were advised for appointment from Ext. P1 Rank List during the period from 14.02.2003 to 13.02.2004 (1st Selection Year) and they were appointed on 20.03.2003 against the different slots earmarked for different categories. After Ext.P2 Addendum Rank List, three more fresh vacancies were reported to the P.S.C., giving appointments to the persons shown at 2A and 3A of Ext. P2 Rank List (5th and 6th respondents), both under 'open' category turns and the third one was filled up by appointing one Mohamed Aslam.N (Sl.No.1 of Muslim Supplementary List) allegedly to compensate the 'Passed Over Turn'. In the second selection year, i.e., during 14.02.2004 to 13.02.2005, three persons were appointed, among whom, two were against 'open category', while the remaining one was in respect of the 'backward category'. In the third and last selection year, i.e., during the period from 14.02.2005 to 13.02.2006, only W.A. NO.3012 of 2007 4 one person(4th respondent)was advised and that was in respect of the 'open category', while nobody was advised from the 'backward category'. Thus, among the total '13' persons appointed during the currency of the Rank List , '8' persons were accommodated against 'open category' and the remaining '5' were under the 'backward community'. According to the petitioner, as per the mandate of the Rules '14' to '17' of Part II K.S. & S.S.R, when '13' candidates were advised from the Rank List, only '7' posts were to be filled up from 'open category' and the remaining '6' had to be filled up from 'backward class' and that the petitioner being ranked as the first 'Ezhava' candidate, she ought to have been appointed against one such vacancy, which made her to approach this Court by filing the writ petition, raising different grounds. 5. During pendency of the above proceedings, I.A.No.150 of 2006 was filed by the appellant/petitioner seeking for a direction W.A. NO.3012 of 2007 5 to the P.S.C. to advise her to one of the existing two vacancies and when the matter was adjourned for getting instructions, the 4th respondent was advised by the P.S.C. on 16.01.2006, against 'Open category'. This made the appellant/petitioner to file I.A.No.2102 of 2005 for staying the 4th respondent's appointment, wherein interim stay was granted on 08.02.2006, which, however was modified subsequently on 28.02.2006, permitting the 4th respondent to be appointed without prejudice to the rights of the writ petitioner, making it clear that, if the petitioner was found entitled to that post, she should be appointed in place of the 4th respondent. 6. The case was sought to be resisted by the P.S.C. asserting that the P.S.C. was entitled to determine and prescribe 'equivalence' of the qualification by virtue of Rule13(b)(i) of Part II K.S. & S.S.R.; that the above exercise pursued leading to Ext.P2 Addendum Rank List was not assailable under any W.A. NO.3012 of 2007 6 circumstance; more so in view of the law declared by a Division Bench of this Court in Viswam vs. Kerala Public Service Commission (2001 (3) KLT 170) and further that there was no violation of any 'quota-rota' rules. It was also stated that the concerned candidates were appointed in respect of the vacancies earmarked for the respective category, as a natural consequence to the passed over turns, ensuring that the reservation did not exceed 50% in the concerned selection year as stipulated in the relevant rules. It was further contended that the alleged change of prescribed qualifications, pursuant to declaration of equivalence by the P.S.C., cannot promote the case of the writ petitioner in so far as she was placed only at Sl.No.10 in Ext. P1 Rank List and she could have aspired for appointment only if '8' more vacancies were there. 7. After considering the rival claims, the learned Single Judge observed that the rules of the game could not have been W.A. NO.3012 of 2007 7 altered during the middle of the game in view of the settled position of law, however adding that this would not have tilted the balance in the case of the petitioner, as she was placed only at Sl.No.10 in Ext. P1 Rank List and was never to obtain a chance in view of the limited number of vacancies reported and advised. With regard to violation of the 'quota-rota' rules, the learned Single Judge observed that the averment of the writ petitioner was sought to be rebutted by the P.S.C. and that there was no reason to dis-believe the P.S.C. in this regard. It was accordingly that interference was declined and the writ petition was dismissed. Hence the Appeal. 8. When the matter came up for consideration before us earlier, we found it difficult to agree with the logic adopted by the learned Single Judge, particularly with regard to the observation in paragraph'8' of the verdict. In the said circumstance, we proceeded to consider the question of illegality of the exercise in W.A. NO.3012 of 2007 8 including the names of respondents 5 and 6 in the select list, rather than the probable factual consequence of conclusion of law regarding such inclusion. It was accordingly that the scope of power of the P.S.C. to determine 'equivalence' of qualification under Rule 13 of the Part II K.S. & S.S.R and the scope of the verdict passed by the Division Bench in 2001 (3) KLT 170 (cited supra) were considered. Rule 10 (a) (ii) of Part II K.S. & S.S.R clearly stipulates that the power of the P.S.C. to determine equivalence in cases where appointment is to be effected in consultation with the P.S.C. as per Rule 13(b)(i) is only in respect of cases where acceptance of equivalent qualification is provided in the Rules. Since the scope of Rule 10 (a)(ii) was never considered by the Division Bench in Viswam vs. Kerala Public Service (2001(3) KLT 170), we thought it fit to get correctness of the decision in 2001(3) KLT 170 re-examined by a Bench of appropriate strength and the matter was referred W.A. NO.3012 of 2007 9 accordingly, as per order dated 13.10.2010. 9. Pursuant to the Reference made as aforesaid, the issue was considered by a Full Bench (to which both of us were Members) and as per the verdict dated 15.12.2010 (in Suma vs. K.P.S.C. reported in 2011(1) KLT 1) it was observed that the expressions “special tests” and “special qualifications” occurring in Rule 13 should be understood to mean special qualifications and special tests prescribed under the Special Rules of Service as required to be acquired or passed by the candidates seeking appointment or promotion in service; whereas Rule 10, only dealt with the educational or other qualifications which provide the basic eligibility for competing for the posts. It was held by the Full Bench that the Division Bench, while passing the judgment in Viswam's case (cited supra), omitted to note the distinction between the language of Rules 10 and 13 and the relevance of such difference; and hence that the decision in W.A. NO.3012 of 2007 10 Viswam's case did not lay down the correct position of law. It was accordingly declared that, as per the scheme of K.S.& S.S.R, the P.S.C was incompetent to deal with the question of 'equivalence' of educational or other qualifications prescribed by the Special Rules, unless the Special Rules provide for the recognition of qualifications other than the prescribed qualifications as equivalent to the qualifications prescribed. 10. The matter is now before us to deal with the residual aspects. Having declared the law by the Full Bench as above, the questions remain to be considered are : (i) whether the respondents 5 and 6, appointed based on the inclusion in Ext.P2 Addendum Rank List as at 2A and 3A respectively, pursuant to an illegal exercise made by the P.S.C. should be ousted at this distance of time and W.A. NO.3012 of 2007 11 (ii) whether the petitioner's claim is liable to be considered strictly on the basis of position in Ext. P1 Rank List as notified originally and applying the 'quota-rota' rules accordingly. 11. Smt. V.P. Seemanthini, the learned Counsel appearing for the appellant submits that, continuance in the post by the respondents 5 and 6, based on a wrong inclusion, cannot confer any vested right on them and since the law has been declared by the Full Bench, they are bound to suffer the consequence flowing therefrom. Reliance is also sought to be placed on the decision rendered by the Supreme Court in M.S.Patil (DR.) vs. Gulbarga University (2010 (10) SCC 63), whereby the appeal preferred by the appellant who was holding the post for nearly 17 ½ years and was thrown out subsequently, was dismissed with cost, directing the respondent University to fill up the post notified in the year 1993 after issuance of a fresh notification and W.A. NO.3012 of 2007 12 to have the process completed within the specified time. 12. The factual position in the above case was that the appellant, who actually belonged to 'General Merit category' had obtained appointment to a post reserved for Group 'B' category. It was also observed that the appellant's selection was found tainted by participation of the Head of the Department concerned, who was related to him, in the selection process. It was further observed that the appellant continued to hold the post on the basis of various interim orders passed by the Court and also on the basis of the undue advantage extended by the concerned University. It was observed further, that the appellant actually stood discharged from service vide Notification dated 13.08.2004 and was continuing only on 'adhoc' basis until a regular incumbent was appointed to the post in question. The Supreme Court observed that the appellant had been occupying the post for all the said years, which lawfully belonged to W.A. NO.3012 of 2007 13 somebody else and hence he was not entitled to have any relief on the principle of equity as well. 13. However, coming to the instant case, there is no fault or foul play with regard to the selection and inclusion of respondents 5 and 6 in Ext. P2 Addendum Rank List. Though the Special Rules and the Notification prescribed M.Sc in Chemistry, Forensic Science or Bio-Chemistry with 50% marks. the P.S.C., after conclusion of the selection as per Ext. P1 Rank List, chose to certify 'equivalence' in qualification with regard to M.Sc. in Applied Chemisty, Organic Chemistry or Inorganic Chemistry as well, thus leading to inclusion of the concerned persons as per Ext. P2 Addendum Rank List. It was accordingly, that respondents 5 and 6, who were placed at the slots 2A and 3A respectively got advised and appointed. That apart, the law as declared by the Division Bench of this Court at that time enabled the P.S.C. to pursue such exercise, in view of the dictum in W.A. NO.3012 of 2007 14 2001(3) KLT 170 (cited supra) which has been declared as 'no more good law' only by virtue of the ruling rendered by the Full Bench of this Court on 15.12.2010 ( reported in 2011(1) KLT 1 [Suma vs. K.P.S.C.]). That apart, though Ext. P2 Addendum Rank List was brought into force on 01. 01.2004, the writ petitioner chose to approach this Court by filing the writ petition challenging their appointment only on 05.06.2005, i.e. nearly 1 ½ years later. This being the position, this Court does not find it fit and proper to unsettle the settled position with regard to the advice and appointment effected by the P.S.C when the law declared by the Division Bench (in Viswam's case) governed the field. 14. Coming to the next question, with regard to violation of 'quota-rota' rules, the petitioner has got a substantial contention, particularly with reference to Ext. P7 Government Order dated 20.06.1979 amending the existing list W.A. NO.3012 of 2007 15 of backward classes and the decision taken by the P.S..C on 23.06.1979 to give effect to the aforesaid Government Order by starting the Communal rotation in the case of all selections afresh w.e.f.23.06.1979 (starting from MRI 1 OC), simultaneously deciding to waive all pending NCA (No Candidate Available) and TPO (Turn Passed Over) as on that date, by Ext. P7. 15. The learned Sr. Counsel for the appellant submits that, based on Ext. P7 decision, a revised rotation is to be applied while effecting appointment from the list brought into force after 23.06.1979, as prescribed in Ext. P7. Referring to the facts and figures brought on record, the learned Sr. Counsel points out that the first direct recruitment Rank List to post of Junior Scientific Officer was brought into force on 14.02.1976, the second one in 1978, the third one in 1983 and the 4th one on 21.12.1989. Based on Ext.P7, it is contended that the revised rotation has to W.A. NO.3012 of 2007 16 be applied while effecting the appointment from the third rank List ie., 1983 Rank List onwards and if so, the second roster point in 1983 has necessarily to be given to an 'Ezhava' candidate. It is also asserted that the statement in the counter affidavit of the P.S.C. that the MRI 4 SC turn was given to an 'Ezhava' candidate, is not at all correct, both on factual and legal grounds. As per the rules of rotation, if a particular candidate is not available , the turn has to be passed over and the vacancy has to be filled up by advising the next category candidate in the rotation chart and this being the position, when the 4th SC turn was passed over, it could have been filled up only by the next in the category, i.e. either by a 'Muslim' or by a 'Latin Catholic' and not by an Ezhava candidate, submits the learned Sr. Counsel. It is further asserted that the 4th SC turn passed over as above, was actually advised to be filled up by a 'Latin Catholic' by the P.S.C. and not by an Ezhava candidate. This W.A. NO.3012 of 2007 17 Court finds that the particulars of the 'Ezhava' candidate stated as accommodated against MRI 4 SC Passed Over Turn, are not furnished by the P.S.C. in the present proceedings, which has necessarily to be ascertained with reference to the actual facts/ records. 16. Referring to the statement filed by the P.S.C., the learned Sr. Counsel for the appellant submits that, according to the P.S.C., MRI 28E and 34E turns were 'Passed Over' during the first and second selection years respectively, to adhere to the 50% reservation rule. Even if it is accepted that the MRI 4 SC Passed Over Turn from 1983 list is to be compensated by advising an 'SC' candidate in MRI 28E turn, such compensation exercise is over on appointing 'Biju .S', the candidate ranked as Sl.No.2 from the SC Supplementary List during the second selection year itself and as such, there is absolutely no rhyme or reason for any passing over exercise again at MRI 34 E turn, W.A. NO.3012 of 2007 18 allegedly to adhere to the 50% reservation rule. If the 'quota- rota' rule is re-worked in the above factual scenario, it is none other the appellant/petitioner who is to be appointed against the existing vacancy, which was advised to be filled up by the 4th respondent, whose advice and appointment have been made subject to the result of the writ petition, as per the interim orders dated 08.02.2006 and 28.02.2006 passed by the learned Single Judge in the writ petition. We find that this is a matter which requires to be considered and decided afresh by the P.S.C., in the light of the observations as aforesaid. 17. In the above circumstance, the verdict passed by the learned Single Judge is set aside and the first respondent is directed to re-consider the claim of the petitioner as to her eligibility to be appointed, being the first 'Ezhava' candidate in Ext.P1 list, after ascertaining the particulars of the candidate stated as appointed against 'MRI SC 4' turn and following the W.A. NO.3012 of 2007 19 rules of rotation, in tune with the decision taken by the P.S.C. to give effect to Ext.P7 Government Order, strictly following the 'quota-rota' rules from the commencement of the 'third direct recruitment Rank List' of the year 1983 onwards, to the post of Junior Scientific Officer. If the turn of 'Ezhava' candidate has been overlooked and if any undue advantage has been extended to the 'open category', the same shall be set right by giving appointment to the appellant , who has been placed as the first 'Ezhava' candidate in Ext.P1 Rank List, by ousting the 4th respondent who belongs to the 'Open category' and was advised during the pendency of the writ petition on 16.01.2006, more particularly in view of the interim order dated 28.02.2006 passed by the learned Single Judge in I.A. No.2102/2005, making the same strictly provisional. The proceedings as above shall be finalised as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. . W.A. NO.3012 of 2007 20 The Writ Appeal is allowed to the said extent. No cost. J. CHELAMESWAR, CHIEF JUSTICE. P.R. RAMACHANDRA MENON, JUDGE. lk