IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 33760 of 2008(R) --------------------------------------- PETITIONER: ------------------- ANVAR KOYAMBURAVAN, LECTURER IN ARABIC, UNIVERSITY COLLEGE, THIRUVANANTHAPURAM. BY ADV. MR.KALEESWARAM RAJ. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 4. ABDUL RASHED.K.S, KATTISERY, GARDEN HAVELI, MANNAM.P.O, NORTH PARAVUR, ERNAKULAM - 683 520. 5. YAHYAKHAN.U.P, ULLATTUPARA HOUSE, KOOTTIL.P.O, MALAPPURAM - 679 324. R1 & R2 BY GOVT. PLEADER SMT. T.B. REMANI, R3 BY MR.ALEXANDER THOMAS,SC,KPSC, R4 & R5 BY ADV.DR.GEORGE ABRAHAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON 20/10/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.33760/2008-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER RELATING TO PETITIONER. EXT.P.2: COPY OF THE JUDGMENT DT. 12/07/06 IN W.P.(C).NO.7181/2006. EXT.P.3: COPY OF THE JUDGMENT DT. 21/03/2007 IN W.P.(C).NO.2160/2006. EXT.P.4: COPY OF THE ORDER DT. 16/05/08 OF THE HON'BLE SUPREME COURT OF INDIA IN SLP.NO.8067/2007. EXT.P.5: COPY OF THE RANKED LIST FOR THE POST OF LECTURER IN ARABIC PREPARED BY PSC (RELEVANT PORTION). EXT.P.6: COPY OF THE G.O.(P).NO.7/2006/P&ARD DTD. 08/03/2006. EXT.P.7: COPY OF THE LETTER DT. 04/11/2008 SUBMITTED TO THE R.3. EXT.P.8: COPY OF THE NON CREAMY LAYER CERTIFICATE DT. 04/11/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 33760 of 2008-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October, 2009. JUDGMENT The petitioner herein is a candidate included in the rank list for appointment to the post of Lecturer in Arabic in Government Colleges. Ext.P5 is the copy of the said rank list which came into force with effect from 31.12.2005. He is ranked as No.25 in the said list. 2. The rank list only contains Muslim candidates. By Ext.P2 interim order in W.P.(C) No.7181/2006, this court directed to issue appropriate orders to appoint eligible candidates from the rank list to the available vacancies in the post of Lecturer in Arabic provisionally and subject to further orders to be passed in the writ petition. Ext.P3 is the judgment in Writ Appeal No. 2160/2006, wherein the said interim order was confirmed. The Special Leave Petition filed by the State against the same, also was dismissed as per Ext.P4. 3. The petitioner is seeking for regularisation on various grounds. It is mainly contended that according to the unamended Rule 15 of KS & SSR, the petitioner being ranked as No.25, would have been normally been advised for appointment due to non availability of candidates from other wpc 33760/2008 2 communities eligible for reservation. It is therefore submitted that at that point of time, he did not produce the non creamy layer certificate. After the rules were amended, the petitioner produced the same before the Public Service Commission along with an application, which are produced as Exts.P7 and P8. It is also submitted that the Commission has advised candidates who are ranked as No.41 and 42 in the rank list and therefore, the petitioner who is included as general category candidate and being rank No.25, cannot be denied regularisation in service. 4. The respondents have opposed the prayer of the petitioner. The 4th respondent who is an appointee, has also filed a counter affidavit in the matter. 5. The Public Service Commission in their counter affidavit, submits that the petitioner who was an open category candidate, was assigned rank No.25. All the candidates in the ranked list belonged to Muslim community. Going by the amended Rules 14 and 15 of Part II of KS & SSR, if candidates belonging to particular community are not available to fill up a reservation turn, that turn is to be set apart for fresh notification for selection exclusively from that community. Forty vacancies have been reported for the post. Twenty four candidates were advised and 16 vacancies which were reserved for BC candidates, were set apart for wpc 33760/2008 3 selection from Ezhava, SC, LC, OBC and Viswakarma communities. These NCA vacancies were notified twice as per Gazette notification dated 30.4.2007 and 13.8.2008, but all who responded, were from Muslim community and hence their applications were rejected. It is also submitted that Rule 15(a) of KS & SSR lays down that if suitable candidates are not available even after two repeated notifications, the selection shall be made from available OBC candidates. Accordingly, the Commission has decided to advise the available BC candidates against the reservation turns and 16 Muslim candidates were advised on 31.10.2008. It is also submitted that the petitioner's plea for conversion of the provisional appointment into regular appointment, is not a matter to be examined by the Commission. Lastly, it is contended that as the petitioner has relinquished his claim regarding communal reservation, as evident from Ext.R3(a), the certificate which is presently submitted as per Exts.P7 and P8 cannot be accepted. It is not within time. 6. The petitioner has also made a prayer to declare that the appointment of respondents 4 and 5 as Lecturer is illegal and unjust. 7. The principal question to be decided is whether the request made by the petitioner as per Ext.P7 could be directed to be accepted by the Public Service Commission. The certificate Ext.P8 is to the effect that the wpc 33760/2008 4 petitioner does not belong to the category of creamy layer among the Other Backward Classes in the State of Kerala. Learned counsel for the petitioner submitted that the facts are clear and therefore the petitioner is entitled to be treated as having the benefit of reservation. There are no candidates from other communities as only Muslim candidates are having the required qualification to apply for the post. The petitioner, at that point of time, did not produce the certificate since he was sure to get the appointment by application of the provisions of unamended Rule 15. This is due to the fact that there were no candidates from other reserved communities to fill up the reservation turns. At that point of time, going by the unamended provisions, those vacancies will have to be filled up by open competition candidates. It is therefore submitted that once the amendment was introduced and was given effect to, the Commission ought to have given an opportunity to all the candidates in the ranked list to produce non creamy layer certificate. It is therefore submitted that non furnishing of an opportunity itself is illegal. Learned counsel further submitted that while issuing the interim order Ext.P2, this court considered the aspect that there are no sufficient candidates from other communities to fill up the reservation turns. It is accordingly this court permitted provisional appointment to be made. 8. Learned counsel for the Commission submitted that the candidates wpc 33760/2008 5 should have produced the non creamy layer certificate at the right point of time. Merely because of the amendment of the rules, it cannot be contended that the Commission was obliged to issue notice to the candidates to produce non creamy layer certificate, if any. As the petitioner has relinquished the right to be considered as a candidate eligible for reservation turn, as evident from Ext.R3(a), there is no question of reconsidering the matter after there is change of mind by the petitioner as evidenced by Ext.P7. 9. The question is whether in the light of the amendment of the rules, the Commission was obliged to give a fresh opportunity to candidates like the petitioner, to produce non creamy layer certificate. It is evident from the averments in the counter affidavit that the Commission had given adequate opportunity to the candidates to produce the non creamy layer certificate. The rank list for the post was finalised on 31.10.2005 and the last advice was made on 31.10.2008. It is only on 10.11.2008 that the petitioner turned up with a request to consider him as a Muslim candidate. It is therefore clear that the argument of the petitioner that in view of the amendment, an opportunity could have been given, cannot be accepted. He had intimated the Commission as per Ext.R3(a) to treat him as an open competition candidate. Therefore, the said argument cannot hold good. In that view of wpc 33760/2008 6 the matter, the challenge against the appointment of respondents 4 and 5 also fails. 10. Lastly, it is contended by the learned counsel for the petitioner that as there are no other candidates from other communities in the rank list and in view of the fact that repeated notifications did not yield any result, a direction may be issued to the Government to consider the case of the petitioner for regularisation in service in exercise of the provisions of Rule 39 of the General Rules of KS & SSR. The learned Standing Counsel for the Commission opposed the prayer by submitting that a provisional appointee like the petitioner is not entitled for regularisation. Learned counsel for the Commission relied upon the judgment in Writ Appeal No.60/2008 in which it was held that provisional appointment under Rule 9 (a)(i) can be done only from among the candidates waiting in the Employment Exchange. Learned counsel for the petitioner submitted that herein, Ext.P2 interim order allowed the appointment of persons like the petitioner provisionally, which was confirmed in Writ Appeal and the Special Leave Petition also stands dismissed and accordingly, they were appointed. It is therefore submitted that the decision of the Division Bench relied upon by the learned Standing Counsel for the Commission will not go against the request made by the petitioner to get regularisation. wpc 33760/2008 7 11. In this case, the petitioner was appointed as per Ext.P1 in the light of the interim order passed by this court as per Ext.P2. The circumstances under which the interim order was passed, have been discussed in para 5 of Ext.P2. It was observed that no candidate from any other community or caste has been included in Ext.P3 ranked list and that the fact remains that candidates including the petitioners were selected and included in the ranked list after a due process of selection. It was also observed that even if the appointing authority wants to search for eligible candidates from other communities or castes,necessarily a fresh round of selection process has to be conducted, which will inevitably lead to inordinate delay. While considering the matter, the Division Bench also observed as follows: “Rule 9 provides for temporary appointments which are necessitated in the public interest, owing to an emergency situation requiring filling up of vacancies on an immediate basis. In view of the situation that is now prevailing, even if the State is to require the Employment Exchanges to sponsor candidates, fresh selection process that will ensue is going to ultimately result in delay in filling up of vacancies and that is not a desirable situation. We have also considerable doubt about the final outcome of any such selection process. This is for the reason that the respondents 1 to 4, along with IA 56/07 have produced three documents as Ext.R1(a), (b) and © evidencing that candidates other than from Muslim wpc 33760/2008 8 community satisfying the eligibility norms laid down in Ext.P1 notification are not available even on the rolls of the Employment Exchanges in the State. Such is the effect of the communications produced by the petitioners and obtained from Regional Employment Deputy Director of Kozhikode, Regional Professional and Executive Employment Exchange, Kochi and Professional Executive Employment Office, Trivandrum. In the light of the said situation, we cannot find any fault with the interim order that is passed by the learned Single Judge.” In W.A. No.60/2008, the rank list that was considered is in respect of the post of Lecturer in Sanskrit (Jyothisham) in the Department of Collegiate Education. Herein, it is clear that the petitioner was appointed as per Ext.P1, in terms of the directions issued in Exts.P2 and P3 which was followed by the appointing authority. Therefore, I am of the view that the contention raised by the learned counsel for the Commission cannot hold good. 12. It is entirely for a matter for the Government to consider, in the peculiar circumstances pointed out by the petitioner. The petitioner was appointed provisionally as eligible candidates from other communities, are not available for appointment to the post of Lecturer in Arabic. 13. If the petitioner files an appropriate representation before the Government seeking for regularisation in service by invoking Rule 39 of the wpc 33760/2008 9 General Rules of KS & SSR within one month from the date of receipt of a copy of this judgment, the same shall be considered by the Government and appropriate orders shall be passed after hearing the petitioner, within a further period of three months. The petitioner will not be terminated from service in the meanwhile. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/