IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 WP(C).No. 14781 of 2008(I) ------------------------------------- PETITIONER: ------------------- BETTY P.S., W/O. M.K.SUBRAMANIAN, BHADRALAYAM, NEAR AATHIRA CLINIC, THIRUVAMKULAM P.O ERNAKULAM DISTRICT. BY ADV. SRI.B.GOPAKUMAR, ADV. SMT.CHINCY GOPAKUMAR. RESPONDENT: --------------------- KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2008, ALONG WITH W.P.(C). NO. 28499/2008,THE COURT ON 01/01/2009, DELIVERED THE FOLLOWING: W.P.(C). NO.14781/2008-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: EXTRACT COPY OF THE RECRUITMENT NOTIFICATION IN KERALA GAZETTE DTD. 29/06/2004. EXT.P.1.A: COPY OF THE APPLICATION OF THE PETITIONER DTD. 29/07/2004 IN RESPONSE TO EXT.P.1. EXT.P.2: COPY OF THE DEGREE OF MASTER OF ARTS ISSUED BY FACULTY OF ORIENTAL STUDIES DTD. 13/08/92 IN FAVOUR OF THE PETITIONER. EXT.P.2.A: COPY OF THE DEGREE OF MASTER OF PHILOSOPHY ISSUED BY FACULTY OF ORIENTAL STUDIES AWARDED AT THE EXAMINATION HELD IN DECEMBER 1993. EXT.P.3: COPY OF THE JUDGMENT IN W.P.(C).6110/06 (B) DTD. 15/03/06 OF THE HONOURABLE HIGH COURT OF KERALA. EXT.P.4: COPY OF THE LETTER DTD. 26/04/2006 ISSUED BY RESPONDENT IN RESPONSE TO EXT.P.1.A. EXT.P.5: COPY OF THE JUDGMENT IN W.P.(C).NO.12416/06 (C) DT. 22/06/06 OF THE HONOURABLE HIGH COURT OF KERALA QUASHING EXT.P.4. EXT.P.6: COPY OF THE RANKED LIST N. 282/06/SSVI-CATEGORY NO. 103/04 PUBLISHED BY RESPONDENT PURSUANT TO EXT.P.1. EXT.P.7: COPY OF THE APPOINTMENT CHART IN RESPECT OF EXT.P.6 RANK LIST. EXT.P.8: COPY OF THE INTERIM ORDER IN W.P.(C). NO. 36706/07 (T) DT. 18/0108 OF THE HONOURABLE HIGH COURT OF KERALA REQUIRING IMMEDIATE APPOINTMENT TO ONE MORE VACANCY. EXT.P.9: COPY OF THE COMPLAINT/REPRESENTATION DTD. 12/02/2008 SUBMITTED BY PETITIONER TO THE CHAIRMAN OF THE RESPONDENT. EXT.P.10: COPY OF THE COMMUNICATION NO. R1 C(3)974/07/GOVT. DEPT. DTD. 08/05/2008 ISSUED TO THE PETITIONER BY THE RESPONDENT IN RESPONSE TO EXT.P.9. EXT.P.11: COPY OF THE COMMUNICATION NO. IDS.1 (3) 20195/07/GOVT. DEPT. DTD. 02/06/2007 IN RESPECT OF ADVICES ON EXT.P.6 RANK LIST. W.P.(C). NO.14781/2008-T: EXT.P.12: COPY OF THE COMMUNICATION NO. IDS 1 (3) 15053/08/GOVT. DEPT. DTD. 06/05/2008 IN RESPECT OF ADVICES ON EXT.P.6 RANK LIST. EXT.P.13: COPY OF THE COMMUNICATION NO. IDS 1 (3) 22872/07/GOVT. DEPT. DTD. 07/06/2007 IN RESPECT OF ADVICES ON EXT.P6 RANK LIST. //TRUE COPY// P.S. TO JUDGE. prv. ANTONY DOMINIC, J. ============== W.P.(C) NOS. 14781 & 28499 OF 2008 ========================= Dated this the 1st day of January, 2009 J U D G M E N T In these writ petitions, the challenge raised is regarding the correctness of the application of the rules of reservation as provided in the KS & SSR. The post of Lecturer in Sanskrit (General) in the Collegiate Education Service is filled up in terms of the Special Rules for Kerala Collegiate Education Service, 1994. According to the petitioners, 9 vacancies were reported to the PSC and the PSC issued notification inviting applications for filling up the vacancies on 29/6/2004. Rank list was published on 26/12/2006. 2. Petitioner in WP(C) No.14781/08 was included at Rank No.19 of the ranked list and the petitioners in WP(C) No.28499/08 were included at rank Nos.20 and 21. All these petitioners are candidates belonging to Ezhava community. According to the petitioners, there were 27 vacancies reported by the 2nd respondent and although candidates were advised, despite the fact that they had secured rank Nos. 19, 20 and 21, they were not advised for appointment. Petitioners state that the reason for not advising them is that the 3rd respondent was not working out the rotation correctly. WPC 14781 & 28499/08 :2 : 3. It is stated that the main rotation started at MRI 31 and out of the 27 vacancies reported, 9 vacancies are set apart for issuing fresh notifications. It is contended that there is only one post reserved for Dheevara out of every 100 post, Dheevara has already been accommodated at MRI 22(LC) on 16/1/2003 and therefore MRI 50, the Dheevara turn, cannot be reserved any more and that MRI 50 must be given to Ezhava in the absence of LC candidate. They also state that against MRI 12(SC), an Ezhava candidate was erroneously accommodated on 29/1/82. It is stated that although MRI 14 (Ezhava) has been given to Viswakarma, according to the 3rd respondent, MRI 54 (Ezhava) cannot be given to Ezhava as MRI 12 has been given to Ezhava. It is stated that if at all such adjustment is necessary, it is the Viswakarma turn which should be given to SC and not that of Ezhava. The petitioners also contended that MRI 28 was given to open competition candidate on 16/1/2003, but the said adjustment has not been remedied so far although there are atleast 3 candidates now presently available in the ranked list. On this basis, it is contended that petitioners were not advised on account of the fact that the 3rd respondent was not applying the rules of rotation in the WPC 14781 & 28499/08 :3 : proper manner. 4. PSC has filed a counter affidavit. According to the PSC, at the time of finalisation of the ranked list on 26/12/2006, NCA turns were pending to be compensated. According to the PSC, the turn which was pending to be compensated by Ezhava Community was for MRI 12 (SC) advised on 29/1/82. PSC submits that the rotation for the post started at MRI 31(OC), while working out the rotation of 23 vacancies, there arose two Ezhava turns at MRI 34 and 42 and that as there was no SC candidate in the ranked list pending to be advised against MRI 12, without compensating the same, two Ezhava candidates at Rank Nos.16 and 17 were advised for appointment against MRI 34 and 42. PSC says that in view of the amendment to the rules of reservation by notification dated 8/3/2006, if suitable candidates are not available from any particular community or group of communities, such vacancy shall be kept unfilled and notified separately for selection. Therefore, when MRI 54 (Ezhava) arose for appointment, that turn had to be compensated to MRI 12(SC) advised on 29/1/82. Therefore, PSC states that the vacancy set apart for separate notification is to be filled up from SC candidates. WPC 14781 & 28499/08 :4 : 5. In so far as the advise made against MRI 12 is concerned, it is stated that on account of the absence of SC candidate, a candidate belonging to Ezhava community was advised on 29/1/82 and extra benefit was derived to the Ezhava Community. According to the PSC, since there was no SC candidate in the ranked list, SC vacancy was not compensated and hence the NCA vacancy arose. It is also stated that against MRI 14 (Ezhava), on account of the absence of Ezhava candidate in the ranked list, a Viswakarma candidate was advised on 29/1/82 and thus MRI 14 (Ezhava) occurred as a NCA vacancy. However, PSC proceeds to state that MRI 20(Viswakarma) was compensated to Ezhava Community on 12/8/92. 6. Answering the allegation of the petitioners that even if adjustments were made in 1982, when ranked lists were finalised in 1985 and 2003, compensation ought to have been made, PSC contends that after 1982, SC candidates were not available in the subsequent ranked lists to compensate the extra benefit derived by Ezhava community, which is now to be compensated against MRI 54 (Ezhava). In so far as the contention of the petitioners that MRI 28(Ezhava) filled up by an open WPC 14781 & 28499/08 :5 : competition candidate has to be compensated, PSC submits that the right of restoration or compensation shall not extend to a case where selection has gone to open competition candidate. 7. Admittedly, the rules of reservation have undergone amendment and if candidate belonging to the specified category is not available, unlike in the past, there is no temporary pass over and the vacancies are set apart, re notified and filled up in the manner as provided in the rules. If against MRI 12, the Ezhava community has derived extra benefit, necessarily that will have to be compensated, and if so, PSC cannot be faulted for setting apart MRI 54 (Ezhava) to be compensated by a SC candidate. Similarly, the rules of reservation also do not permit the compensation, when reserved vacancies are filled up by open competition candidate. However, the petitioners contention that a Dheevara candidate has already been appointed and therefore, there cannot be any further reservation in their favour, is not answered by PSC in the affidavit filed. This necessarily is a matter that the PSC shall examine and if necessary, the PSC shall take such correction steps, as is permissible in law. 8. Therefore, on the facts, it can be seen that the PSC has WPC 14781 & 28499/08 :6 : satisfactorily answered the plea raised by the petitioners that the PSC has not followed the rules of rotation in the proper manner except in the case of the Dheevara candidate. Therefore, the writ petitions are disposed of directing the PSC to examine the case of the petitioners regarding the reservation provided for Dheevara candidate and take corrective steps in that regard. ANTONY DOMINIC, JUDGE Rp