IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 WP(C).No. 30722 of 2008(G) -------------------------- PETITIONER(S): --------------- SYAM MARINAL V.V., VAYALIL HOUSE, THIRUVANAKULAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): --------------- 1. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, ERNAKULAM, AT KAKKANAD. 3. THE DIRECTOR, SOCIAL WELFARE DEPARTMENT, DIRECTORATE OF SOCIEAL WELFARE, THIRUVANANTHAPURAM 4. THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD, ERNAKULAM. R1 & R2 BY S.C. SHRI ALEXANDER THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.1.09 THE COURT ON 27.1.2009 DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 30722 of 2008-G - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of January, 2009. JUDGMENT The short question that is raised in this writ petition is whether the petitioner who was included in the supplementary list, as belonging to a Scheduled Caste community, can be advised for appointment in any of the four Non Joining Duty vacancies (NJD vacancies) which arose on the non- joining of candidates belonging to Scheduled Caste community, as the main list has exhausted in the meanwhile. 2. The bare facts necessary for the disposal of the writ petition are the following: The notification in question was issued by the first respondent, Public Service Commission inviting applications for appointment to the post of Lower Division Clerk in various districts including Ernakulam District. The petitioner was an applicant to the post in Ernakulam District. A rank list was brought into force with effect from 1.1.2006. He is included in the supplementary list of Scheduled Castes as rank No.71. Ext.P1 is the relevant extract of the said rank list published by the Public Service Commission. 3. As on 4.7.2008, 992 candidates were advised in Ernakulam WPC 30722/2008 2 District and according to the petitioner, the last candidate advised from the supplementary list of Scheduled Caste candidates was rank No.64. Subsequently, a total number of 55 candidates were also advised during the last week of September, 2008 and thus, the last candidate advised from the supplementary list of SC candidates is rank No.67, one Nandakumar K.M. If four more vacancies are reported, the petitioner is entitled to be advised. According to the petitioner, four candidates belonging to Scheduled Caste community advised by the Commission and issued with appointment orders, did not join duty and all the four NJD vacancies have been reported to the Commission which are pending for advice. The details of the four candidates who did not join duty pursuant to the appointment order issued by the Commission, are stated in para 4 of the writ petition. It is also pointed out that in the main list six more candidates remain to be advised and therefore, there is no impediment in advising candidates from the supplementary list to the NJD vacancies. Accordingly, the petitioner sought for a direction to respondents 1 and 2 to advice candidates to the four NJD vacancies of Scheduled Caste community. 4. Respondents 1 and 2 have filed a detailed counter affidavit. The details regarding advices made from the main list and supplementary list are the following: In the rank list for the post of L.D. Clerks in various WPC 30722/2008 3 departments in Ernakulam District, 798 candidates were included in the main list and 252 candidates were included in the supplementary list which was brought into force on 1.1.2006. The main list exhausted on 29.10.2008 since all the candidates included in the main list got advice while honouring the vacancies received upto 19.8.2008. The community-wise break-up of the rank numbers show that from Scheduled Caste category, upto serial No.69 have been advised from the supplementary list. The petitioner being rank No.71, could not therefore be advised. Regarding the four NJD vacancies, the Commission has made it clear in the counter affidavit that details were received in the Ernakulam District Office on 3.9.2008, 24.9.2008, 26.9.2008 and 30.9.2008. But they are pending to be advised for want of a live rank list for the post. Actually, the main rank list exhausted on 29.10.2008 while honouring the vacancies received upto 19.8.2008 in the office. Therefore, the subsequent vacancies reported have to be honoured from a fresh rank list. 5. In the counter affidavit, the respondents have also explained the time lag between 19.8.2008 to 29.10.2008, i.e. the date of receipt of the requisitions by which the main list was exhausted on advising candidates and the date on which the advice process was completed. It is averred that for the vacancies reported from Municipal Common Service, trial rotation WPC 30722/2008 4 had to be worked out for identifying candidates whose turns of advice arisea gainst the vacancies in the Municipal Common Service. It is stated that as per the practice in vogue, willingness has to be called from those candidates who figure in the trial rotation and such additional number of candidates to the tune of 5 times the number of vacancies reported in order to ensure that willingness from sufficient number of candidates is received and notwithstanding the unwillingness, if any, of the candidates figures in the trial rotation. In the rotation so approved on 29.10.2008, the first four of the 17 vacancies honoured were those from the Municipal Common Services and the candidates with rank Nos.787, 788, 789, 781, 792 & 794 were not willing to be appointed in Municipal Common Services and so they were passed over. The candidates with rank Nos.794 A and 795 who were willing for Municipal Common Services were advised in the Municipal Common Services on 29.10.2008. All the aforementioned passed over candidates were thereafter advised on 29.10.2008 against subsequent vacancies reported from other departments. Candidates with rank numbers 790 and 793 belonging to Muslim community, were advised for appointment earlier on 2.6.2007 and 27.7.2007 respectively against Muslim reserved turns. The last ranking candidate in the main list is the candidate with rank No.795. Thus, all the candidates in the main list stood advised, WPC 30722/2008 5 while honouring vacancies received upto 19.8.2008. Time was taken upto 29.10.2008 for completing the advice process, as stated above, as time had to be taken in the approval of the rotation, the details of which have been stated earlier. Various procedural formalities had to be completed, like calling for willingness from candidates, etc. Besides, the orders of the Commission had to be obtained before advising blind candidates, who figured in the rotation as earlier directed by the Commission since the matter was subjudice at that time and orders were received only on 21.10.2008. In view of these aspects, time had to be taken upto 29.10.2008 for completing the advice process in respect of vacancy requisitions received upto 19.8.2008. By advising candidates for requisitions received upto 19.8.2008, all the candidates in the main list got advised and the list thus got exhausted. 6. Learned Standing Counsel for the Public Service Commission relied upon a decision of the Apex Court in Nair Service Society v. District Officer, Kerala Public Service Commission {2003 (3) KLT 1126 (SC)} and that of a Division Bench of this court in Janardhanan v. State of Kerala (2006 (2) KLT 607) to contend that after the main list is exhausted or expired, the NJD vacancies cannot be filled up by the WPC 30722/2008 6 candidates included in the supplementary list. It is therefore pointed out that there is no illegality in the stand taken by the Public Service Commission. 7. In the reply affidavit filed by the petitioner, it is contended that the dictum laid down in Nair Service Society's case {2003 (3) KLT 1126(SC)} will not apply to the facts of this case. It is pointed out that the NJD vacancy of a particular community can be filled up only by the candidates belonging to the same community. Reliance is placed on the meaning of “selection year” which is the period from the date on which the rank list of candidates comes into force to the date on which it expires and not exhausted. It is further contended that 50% ceiling to reservation specified in the rules shall not apply to the filling up of any number of reserved vacancies kept unfilled and notified separately to be filled exclusively by direct recruitment from among a community or group of communities. 8. Going by the facts stated above, it is clear that as on 1.1.2006 there were 798 candidates in the main list and 252 candidates in the supplementary list. Rank numbers up to 69 in the supplementary list of SC were advised. The NJD vacancies were received in the District Office of the Commission at Ernakulam on 3.9.2008, 24.9.2008, 26.9.2008 and 30.9.2008. While advising candidates against the vacancies received up to WPC 30722/2008 7 19.8.2008, the ranked list for the post exhausted on 29.10.2008. Even though it is contended by the learned counsel for the petitioner that the crucial date that is to be considered is 19.8.2008 and not 29.10.2008 and that the explanation offered by the Commission cannot be accepted, I am of the view that the averments in the counter affidavit satisfactorily explains the actions that had to be taken by them in regard to advising of candidates when vacancies are reported. They have explained that time was taken up to 29.10.2008 for completing the advice process, since it depends upon the rotation that had to be followed. In that view of he matter, the argument that 19.8.2008 cannot be the crucial date and the explanation offered by the Commission cannot be accepted, does not appear to be correct. Learned counsel for the petitioner relied upon the amended rule 15 of KS & SSR to contend for the position that the dictum laid down in Nair Service Society's case ( 2003 (3) KLT 1126 (SC) cannot apply to the facts of this case. 9. In the above case, the legal position was considered with reference to Rules 14 to 17 of KS & SSR. After considering the various aspects including the definition of “ranked list” in Rule 2(g) of the Kerala Public Service Commission Rules of Procedure, their Lordships held in para 19 thus: WPC 30722/2008 8 “The above definition shows that there is only one ranked list. Therefore, the supplementary list prepared by the KPSC to satisfy the rules of reservation has, in fact, no statutory backing. For that reason when the main list is exhausted or expired, supplementary list cannot be allowed to operate. If the supplementary list alone is allowed to operate it would amount to giving greater sanctity to it and long life than the main list prepared in accordance with the Rules. Secondly, after the expiry of exhaustion of the main list if the supplementary list is operated it would violate the first proviso to Rule 15(c) of the General Rules. The reason is that the NJD vacancies in respect of OBC candidates cannot be filled up after the expiry or exhaustion of the main list and only reserved candidates can be advised from the supplementary list which would violate 50% rule as no OC category candidates could be advised.” In the concurring judgment rendered by S.B. Sinha, J., it was held that “preparation of only one supplementary list for filling up the vacancies by some candidates not joining their posts, only from the reserved category of candidates, therefore, would be illegal, as thereby the relevant provision relating to the percentage of reservation contained in Rule 15 of the statutory rule would stand infringed.” 10. Therefore, the question is whether the supplementary list survives after the exhaustion of the main list. Even though learned counsel for the petitioner contended that in view of the amendment of the rules brought out, WPC 30722/2008 9 the said principle will not apply to the facts of this case, I am of the view that the said argument cannot be accepted. The substantial question is whether once the main list is exhausted, what will be the fate of the supplementary list. As held by the Apex Court in the above decision, the supplementary list will not have any life after the main list is exhausted. In the light of the above legal position, the argument that the amended rules will result in a different situation, cannot be accepted. In the decision of the Division Bench of this court in Janardhanan's case (2006 (2) KLT 607), their Lordships have categorically held that “the reservation is in addition to the rights of candidates belonging to the respective community for claiming selection on the basis of merits. The number of posts reserved are not to be affected by selection of persons belonging to said categories in merit quota.............When there were no candidates in the merit list, naturally PSC has to resort to fresh recruitment. When there is no candidate in the merit list, it is not possible to put them to the pegion holes which were there because of the non-joining of advised candidates.” Thus, there cannot be any ambiguity in that regard. In that view of the matter, the stand of the Public Service Commission that the four NJD vacancies in question pertaining to SC turn received by them could be considered only along with other vacancies from a fresh rank list to be finalised in respect of the post of WPC 30722/2008 10 L.D. Clerk, cannot be said to be unsustainable. In the above view of the matter, the relief sought for by the petitioner cannot be granted. The writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/