IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 WP(C).No. 29676 of 2010(H) --------------------------------------- PETITIONER(S): ------------------------ SANTHOSH KUMAR K., PLAVILA PUTHEN VEEDU, MARAYAMUTTAM PO NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP, SRI.V.VIJULAL. RESPONDENT(S): --------------------------- 1. SREE CHITRA THIRUNAL COLLEGE OF ENGINEERING (THIRUVANANTHAPURAM) SOCIETY REPRESENTED BY ITS CHAIRMAN, SREE CHITRA THIRUNAL COLLEGE OF ENGINEERING, PAPPANAMCODE, THIRUVANANTHAPURAM-695 001. 2. PRINCIPAL , SREE CHITRA THIRUNAL COLLEGE OF ENGINEERING, PAPPANAMCODE, THIRUVANANTHAPURAM-695 001. R1 & R2 BY ADV. SRI.ELVIN PETER P.J., SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/04/2011,THE COURT ON 23/05/2011 DELIVERED THE FOLLOWING: rs WP(C).No. 29676 of 2010(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF APPOINTMENT DATED 01/02/2007. EXT.P2: COPY OF THE ORDER OF EXTENSION DATED 22/04/2009. EXT.P3: COPY OF THE EMPLOYMENT NOTICE DATED 11/11/2008. EXT.P4: COPY OF THE RANK LIST OF TRADESMAN IN TURNER PUBLISHED ON 01/10/2009. EXT.P5: COPY OF THE REPRESENTATION DATED 22/02/2009. EXT.P6: COPY OF THE JUDGMENT IN WP(C) NO. 28368/2009 DATED 18/03/2010. EXT.P7: COPY OF THE ORDER DATED 15/05/2010 OF 2ND RESPONDENT. EXT.P8: COPY OF THE EMPLOYMENT NOTICE DATED 16/08/2010. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 29676 of 2010-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of May, 2011. JUDGMENT The grievance is one concerning the refusal by the respondents to appoint the petitioner in the vacant post of Turner in the college owned by the first respondent Society. 2. The Society is one registered under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act and it is running an Engineering college under the name and title as Sree Chitra Thirunal Engineering College at Pappanamcode in Thiruvananthapuram. The petitioner was appointed as Tradesman in Turner on contract basis on 1.2.2007 initially as per Ext.P1 order which was extended as per Ext.P2 order. 3. When the College initiated steps for regular recruitment, the petitioner submitted an application and Ext.P4 is the rank list published after the selection process was completed. The same is dated 1.10.2009. The petitioner is ranked No.3, therein. 4. In terms of the rules of reservation, three candidates were appointed. The first and third vacancies were filled up by general category wpc 29676/2010 2 candidates and the second vacancy by a reservation candidate. Accordingly, rank No.1 was appointed in the open quota, rank No.11 in the Ezhava reservation turn and rank No.2 in open quota. 5. The present controversy arose when rank No.1, after joining the post, left the employment to take up another one. The contention raised by the petitioner is that the petitioner being the next candidate in the open quota, the vacancy will have to be filled up by a general candidate and therefore he should be appointed. His request to make appointment has been rejected by Ext.P7 reply, pointing out that being a fourth vacancy, it will have to be filled up by a Scheduled Caste candidate. Ext.P8 is the notification issued by the College inviting applications from Scheduled Caste candidates to fill up the fourth vacancy, by special recruitment. 6. Heard Shri R.T. Pradeep, learned counsel for the petitioner and Shri Elvin Peter, learned Standing Counsel for the respondents. 7. Learned counsel for the petitioner raised the following contentions: As the vacancy arose due to the resignation of open category candidate, it will have to be filled up by a candidate from the same category as the turn available, has not been satisfied. It is pointed out that the attempt to appoint a Scheduled Caste candidate will violate the 50% rule wpc 29676/2010 3 also. Reliance is placed on the following decisions of this Court and that of the Apex Court: Mariyakutty v. Convener, Municipal Common Service and Director of Municipalities and others (1975 (1) SLR 188), Narayanan v. State of Kerala (1981 KLT 321), Sabeena Beegum v. District Co-operative Bank (2007 (4) KLT 95) and R.K. Sabharwal and others v. State of Punjab and others (AIR 1995 SC 1371). 8. Per contra, learned counsel for the respondents submitted that herein the vacancy arose due to the resignation of the open quota candidate. Pursuant to the memo issued, he joined duty and therefore as the vacancy arose due to his resignation, it should be treated as a fresh vacancy as far as the selection year is concerned. Since the rules of reservation contained in KS & SSR have been made applicable for the selection, the fourth vacancy will have to be filled up by a Scheduled Caste candidate. It is mainly pointed out that since the turn of the open category candidate was satisfied, the principles stated by this Court in the decisions relied upon by the learned counsel for the petitioner will not apply. It is not a case where the candidate had not joined, but herein after joining the post the candidate had left the service. Therefore, it is a fresh vacancy being the fourth one. 9. A reading of the judgment in Mariyakutty's case (1975 (1) SLR wpc 29676/2010 4 188) shows that therein pursuant to the advice memo issued, the general quota candidate did not report for duty and declined it. Steps were taken to appoint a candidate from the reservation quota which was challenged before this Court. After referring to Rule 14(c) of KS & SSR, this Court held as follows: “Issuing an order of appointment which is not accepted is not tantamount to 'appointment' as such as mentioned in Section 14(c). What is contemplated there is effective appointment. Therefore, that vacancy to which Saraswathi Amma had been appointed and which she did not accept, has to be filled up by appointing the person, on the basis of open competition, Saraswathi Amma having been offered the appointment on the basis of her coming in the open competition group.” Evidently, the said dictum will not apply here, since the facts are quite different. Herein, rank No.1 had accepted the appointment, but left the service later. Therefore, it is not a case where the turn of the first open competition candidate was not satisfied. 10. A Division Bench of this Court in Narayanan's case (1981 KLT 321) also considered a similar issue, but on different set of facts. Therein also, the advised candidate to fill up the quota for Scheduled Tribe did not accept the appointment, as she obtained a job elsewhere. The petitioner wpc 29676/2010 5 contended that he being the next in the rank list of Scheduled Tribes, should get the appointment. The Public Service Commission took the stand that it should be filled up by a candidate from among Scheduled Castes. The Division Bench held as follows in paragraphs 5 and 6: “The rule of reservation would be effective only if, to a post reserved for a community, a person is actually appointed. The mere fact that the candidate advised is not available for appointment should not result in the class to which the person advised belongs losing such right when eligible candidates are available for appointment to such posts. Otherwise it would be a reservation in form only and not in substance. When once a person advised is appointed whether subsequently he continues or not in that post is another matter. But in the matter of appointment to the posts the principle of reservation would have to be adhered to in such a case. To treat the reservation as applicable at the stage of advice and not at the stage of appointment may not, in circumstances where many of the people advised may not be able to join because they are already appointed, satisfy the rule of reservation in its true form and spirit as envisaged. The rule envisages filling up vacancies reserved for Scheduled Tribe by Scheduled Castes in the event “no qualified candidates are available for recruitment.” If there is a ready list of eligible Scheduled Tribe candidates and the second rank holder is available when the first declines it cannot be said that no qualified candidate is available. Such candidate is in truth and in law wpc 29676/2010 6 available for recruitment. It will be contrary to the rule to say, merely because the candidate of the first rank advised for appointment does not accept the offer in view of the fact that he is already employed elsewhere that no qualified candidate from that class is available for recruitment.” Therein also, the principle adopted by the Bench is to the effect that a mere advice will not result in an appointment and in such circumstances it cannot be said that the turn has been satisfied. The advice should result in an appointment. The said legal position will not apply here, as the candidate had joined the service. 11. In Sabeena Beegum's case (2007 (4) KLT 95), the interpretation of Rule 15(c) of KS & SSR and its first proviso arose for consideration. Therein, this Court held as follows: “In the third selection year one fresh vacancy was reported and hence that fresh vacancy could be filled up only by open competition candidate because in no selection year reservation could exceed 5o%.” This is relied upon by the learned counsel for the petitioner to show that 50% rule would be violated if a Scheduled Caste candidate is appointed. Evidently, the said contention cannot be accepted, as it is only the fourth vacancy and the 50% rule will not be violated, as only one reservation wpc 29676/2010 7 candidate has been appointed among 3 appointees. Therefore, the above decision also will not help the petitioner. 12. Learned counsel for the petitioner vehemently relied upon the observations of the Apex Court in R.K. Sabharwal's case (AIR 1995 SC 1371). In para 7 of the judgment, the Apex Court held thus: “When all the roster-points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the Scheduled Castes/Tribes and backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong.” It is pointed out that herein, three vacancies were notified and three appointments were made and therefore the vacancy which has arisen now, will have to be filled up from open category candidates. 13. Evidently, the facts of the case are not helpful to the petitioner. Therein, the issue was considered in the light of the relevant rules, viz. Punjab Service of Engineers Class I P.W.D. (I.B.) Rules, 1964. Therein, a particular percentage was fixed for reservation in favour of Scheduled Castes and Backward classes. The first question considered was whether the percentage can be varied, as some of the backward class candidates have wpc 29676/2010 8 got appointed in general seats and the said plea was rejected. Regarding the second point, it was held that once the percentage prescribed is achieved, the roster does not survive thereafter. It is in that context the observation relied upon by the learned counsel for the petitioner, in para 7 of the judgment was made. 14. Herein, Rule 14(c) applies as far as the selection and appointment are concerned. Only three vacancies were notified. The rotation under Rule 14(c) starts with a cycle of 20 vacancies. The first will go to open competition, second one will go to Other Backward Classes, the third one to open competition and the fourth one, to Scheduled Castes and Scheduled Tribes and it goes on upto 20. Even if the post is only a single one, vacancies may occur from time to time either due to resignation, death or retirement, etc.. The attempt of the petitioner is to identify his claim with the number of posts, viz. three. But the filling up of the vacancies will be by way of a rotation in every cycle of 20 vacancies, as evident from Rule 14 (c) which states that “appointment under this rule shall be made in the order of rotation specified below in every cycle of 20 vacancies.” The selection year, going by the Explanation to Rule 15(a), shall the period from the date on which the rank list is published to the date on which it expires. The wpc 29676/2010 9 rank list was published only on 1.10.2009. Evidently, therefore, the vacancy occurred due to the resignation of rank No.1 is a fourth vacancy which goes to a Scheduled Caste candidate and rightly the notification was issued as per Ext.P8, after rejecting the contentions raised by the petitioner. It has arisen in the selection year itself. Therefore, the petitioner is not entitled for any reliefs in the writ petition and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/