IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 WP(C).No. 25817 of 2007(W) -------------------------------------- PETITIONERS: ------------------- 1. SUDHEER K.B., S/O.K.A.BHASKARAN, KALLUKKADU HOUSE, NETTOOR P.O., ERNAKULAM - 682 304. 2. MANJULA.O., D/O.RAGHAVAN, GEETHA BHAVAN, KOLLAD P.O. KOTTAYAM - 686 029. BY ADV. SRI.NAGARAJ NARAYANAN SRI.RAJAN VELLOTH SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS AND IRRIGATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, PATTAM, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY. BY GOVERNMENT PLEADER SRI. P.NANDAKUMAR R2 BY ADV. SRI. ALEXDANDER THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON 28/03/2008 DELIVERED THE FOLLOWING: WP(C) NO: 25817/2007 W APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE LIST SHOWING THE NUMBER OF ADVICES MADE BY THE PSC ON 07/05/2007. EXT.P2. COPY OF THE BULLETIN DT. 1/4/07 OF THE R2. RESPONDENT'S EXHIBITS NIL. True copy tga V.GIRI, J. ----------------------------------- W.P.(C).No.25817 of 2007 ----------------------------------- Dated this the 28th day of March, 2008. JUDGMENT Authority of the Government to resort to Special Recruitment in terms of Rule 17A the Kerala State and Subordinate Services Rules {for short “the Rules”} during the currency of rank list published by the Public Service Commission {for short “the Commission”} as part of the recruitment for the same post; the scope and ambit of the same is the principal question that arises for consideration in this case. 2. The petitioners are included in the rank list published by the Commission for the post of Assistant Engineer (Civil) in the Public Works Department/Irrigation Department on 7.5.2006. The first petitioner is Rank No.75 and second petitioner is Rank No.121 in the Supplementary List. The petitioners belong to Scheduled Caste. According to them, there are 125 candidates in total in the Supplementary List. As on 7.5.2007, Scheduled Caste candidates upto Rank No.92 have been advised from the Supplementary List. The petitioners refer to the fact that during the period from 1981 to 1986 about 10 vacancies earmarked for Scheduled Caste candidates were not filled up. Similarly, about 60 vacancies earmarked for Scheduled W.P.(C).NO.25817/07 :: 2 :: Caste/Scheduled Tribe candidates during the period 1998-1999 also could not be filled up, in spite of the rank list published during the said period. According to them, 70 vacancies earmarked for Scheduled Caste/Scheduled Tribe candidates were, therefore, carried forward and these vacancies will have to be filled up by Scheduled Caste candidates. That apart, from the same, 60 vacancies were reported by the Government to the Commission on 24.4.2006 and these vacancies, along with the vacancies earmarked for Scheduled Caste candidates, will have to be filled up by Scheduled Caste candidates. This could be done by operation of the Supplementary List. Further, as it is, the Supplementary List has been operated only upto Rank No.92. There are 33 more candidates in the Supplementary List, who could be advised against the vacancies already reported to the the Commission. If at all the Government wants to call for fresh applications from Scheduled Caste/Scheduled Tribe candidates, it could be done only after exhausting the Supplementary List. But, by Ext.P2, applications have been called for from members of Scheduled Caste community for the post of Assistant Engineer (Civil) in the Public Works Department by way of special recruitment. The number of vacancies noted in Ext.P2 is '10'. W.P.(C).NO.25817/07 :: 3 :: According to the petitioners, special recruitment should be resorted to only after exhausting the Supplementary List to the rank list dated 7.5.2006. It is contended that it is illegal on the part of the Government to resort to special recruitment for Scheduled Caste community when a Supplementary List containing persons belonging to the same community is pending enforcement. That, the Commission ought to have filled up the existing vacancies from the Supplementary List. Hence the writ petition praying for a direction to the 2nd respondent not to proceed with the special recruitment of Scheduled Caste candidates for the post of Assistant Engineer (Civil) in the Public Works Department/Irrigation Department, till the Supplementary List for the said post is exhausted. The further relief sought is for a direction to the 2nd respondent to advice candidates from the Supplementary List for Scheduled Caste community for the post of Assistant Engineer (Civil) against the reported vacancies within a time frame. 3. Learned Government Pleader, on instructions, submitted that special recruitment is resorted to by the Government in exercise of its powers under Rule 17A of the Rules and such special recruitment is in respect of vacancies which are W.P.(C).NO.25817/07 :: 4 :: set apart for the said purpose. Rule 17A enables the Government to reserve a specified number of posts to be filled up by direct recruitment exclusively from among the members of the Scheduled Castes/Scheduled Tribes. Since Government had set apart 10 vacancies for special recruitment from Scheduled Caste candidates, such special recruitment has been resorted to. This, the Government is entitled to under Rule 17A of Part II of the Rules. The power thereof is independent from the power under Rules 14 to 17 of the Rules. 4. Learned standing counsel for the Commission, on instructions, submitted that when the Government decides to exercise the power under Rule 17A, the Government exercises the power independent of Rules 14 to 17 of the Rules. The operation of the Supplementary List has nothing to do with the special recruitment resorted to under rule 17A. Ext.P2 does not become illegal merely by reason of the currency of the Supplementary List. Vacancies, which are reported to the Commission and which could be taken up by operation of the rank list will be filled up. The Supplementary List could be operated only till such time as the main list is not exhausted. Once the main list is exhausted, the Supplementary List cannot W.P.(C).NO.25817/07 :: 5 :: be operated. Candidates upto Rank No.92 from the Supplementary List have been advised. 5. I heard learned counsel for the petitioners Sri.Nagaraj Narayanan, and learned Senior Government Pleader Sri.Nandakumar and learned standing counsel for the Public Service Commission Sri.Alexander Thomas. 6. Learned counsel for the petitioners submits that there are 33 more candidates in the Scheduled Caste community available in the Supplementary List. There is no bar against the operation of the Supplementary List and consequently, there does not seem to be any justification for the Government to resort to Ext.P2 special recruitment. After all, special recruitment is resorted to, to fill up the vacancies with Scheduled Caste candidates and if there are Scheduled Caste candidates in the Supplementary List available to be advised against those vacancies, then there is no justification on the part of the Government or the Commission in keeping in abeyance further enforcement of Supplementary List and then resort to special recruitment for the same purpose. 7. The short question for consideration is whether Ext.P2 notification is, in any manner, illegal merely for the reason W.P.(C).NO.25817/07 :: 6 :: that the Supplementary List, containing the names of Scheduled Caste candidates, available to fill up the vacancies of Assistant Engineer (Civil), is yet to be exhausted and further the rank list in question is still in force. 8. Sri.Nagaraj Narayanan, learned counsel for the petitioners submits that even if the power under Rule 17A of the Rules is taken as independent of the other general rules, the power to effect special recruitment should not be exercised, in such a manner, as to render nugatory the recruitment, which has already been resorted to, adhering to the provisions of Rules 14 to 17 of the Rules. After all, the power under Rule 17A of the Rules has been construed as supplementary to the power available to the Government under Rules 14 to 17 and consequently, the special recruitment cannot be resorted to, in such a manner, as to derogate from the rights of those persons, who are already included in the Supplementary List for the same post and the rank list continues to be in force. Learned counsel for the petitioners makes specific reference to a judgment of the Division Bench of this court reported in Babu v. Poulose {2003 (2)KLT 428} to contend for the position that the purpose of Rules 14 to 17 is to ensure that members of Scheduled W.P.(C).NO.25817/07 :: 7 :: Castes/Scheduled Tribes are adequately represented in the services of the State. This being the purpose of reservation, the question as to whether there is adequate representation, for members of the Scheduled Caste in any particular service, will have to be decided with reference to the date of making appointment and not at the time of advertising the posts. The contention seems to be that the Government could have resorted to special recruitment under Rules 14 to 17 and set apart 10 vacancies in the same post only after exhaustion of the Supplementary List. If there are still vacancies in the post in question, that will have to be filled up from members of the Scheduled Caste to make up the percentage that has been determined by the Government, then it would be still open to the Government to resort to special recruitment at that point of time to make up the deficit. 9. The power available to the Government under Rule 17A has been considered by a Bench of this court in Achamma v. State of Kerala {1974 KLT 35} and thereafter in State of Kerala v. Sivadas {1979 KLT 678}. The decision in Achamma {1974 KLT 35} specifically dealt with the proviso to Rule 14(a) and its inter-relation to the provisions of Rule 17A of the Rules. W.P.(C).NO.25817/07 :: 8 :: The proviso to Rule 14(a) provides that one out of five posts reserved for Scheduled Caste/Scheduled Tribe shall, in the first instance, go to a Scheduled Tribe candidate and it is only in the absence of a Scheduled Tribe candidate, that it shall go to a Scheduled Caste candidate. The question posed was whether the proviso to Rule 14(a) would govern the special recruitment resorted to under Rule 17A. The Bench answered the question in the negative, finding that the rider or limitation flowing out of Rule 14(a) of the Rules does not apply to special recruitment under Rule 17A. The Bench noted that the non-obstante clause in Rule 17A gets rid of Rule 14, its sub-clause and provisos thereto. In other words, the non-obstante clause has an overriding effect over the provisions of Rules 14 to 17 of the Rules. 10. The dictum in Sivadas {1979 KLT 678}, apparently, affirms this principle, though in a different context. Noting that Rule 17A confers on the Government a separate and independent power of reservation de hors Rule 14 of the Rules, the Bench affirmed that the non-obstante clause of Rule 17A permits special recruitment for Scheduled Castes/Scheduled Tribes, despite anything contained in Rule 14 or elsewhere in the W.P.(C).NO.25817/07 :: 9 :: Rules. It was noted that under Rule 14, reservation upto a total of 10% of the vacancies is permissible in favour of Scheduled Castes/Scheduled Tribes. The Bench also upheld the notification for special recruitment issued in that case specifically taking note of the fact that the impugned notification for special recruitment, if enforced, would still have adhered to the percentage of reservation that was, otherwise, permissible under Rule 14. In other words, the special recruitment, in the said case, would not have resulted in excessive reservation. 11. At first blush, certain observations made by the Division Bench in Babu's case {2003(2) KLT 428} seems to suggest a slightly different view from what was expressed by the Bench in Sivadas' {1979 KLT 678}. But, significantly, the Bench in Babu had specifically referred to the ratio in Sivadas' {1979 KLT 678} and then affirmed the principle laid down in Sivadas' that Rule 17A is supplemental to the scheme of reservation outlined in Rule 14 and the said view would advance the object of the Rule as such. It is in this context that the Division Bench in Babu (cited supra) held that the power of special recruitment under Rule 17A will have to be treated as supplemental to the reservation provided in Rule 14 of the Rules. W.P.(C).NO.25817/07 :: 10 :: The Division Bench held in Babu that: “In other words, the process of special recruitment can be resorted to when the members of the Scheduled Castes/Scheduled Tribes were not adequately represented in the service. The provisions of Rule 17A can be invoked to make up the deficit. It could not be invoked to violate the provisions under Rule 14.” 12. As noted above, the Division Bench in Sivadas had upheld the notification for special recruitment impugned in the said case and in the process of the same, specifically noted that the special recruitment, which was resorted to in the said case, would still not have violated the maximum percentage of reservation contemplated by Rule 14(a). This seems to have been affirmed in Babu also. In substance, there is no difference between the view taken in Sivadas that the power under Rule 17A is independent of the power of reservation under rule 14 and the view expressed in Babu that Rule 17A is not in displacement of Rule 14, but it is supplementary to the other Rules. The power under Rule 17A is independent of the power under Rule 14 and this is ensured by the non- W.P.(C).NO.25817/07 :: 11 :: obstante clause in Rule 17A. It is supplementary to Rule 14 in the sense that the Government can resort to special recruitment under Rule 17A, notwithstanding the currency of a recruitment, which has already been resorted to by adhering to the principles of reservation under Rules 14 to 17. 13. Sri.Nagaraj Narayanan, nevertheless contended that paragraph 27 in Babu makes it clear that since the purpose of Rules 14 to 17 is to ensure that members of Scheduled Castes/Scheduled Tribes are adequately represented, the question as to whether there is a deficit or whether the percentage of reservation has been fulfilled or not will have to be decided by the authority at the time of making appointments and not at the time of advertisement of the posts. He, therefore, contends that the Government could have, if at all, resorted to special recruitment under Rule 17A only after exhaustion of the Supplementary List. 14. I am afraid, I am unable to accept this submission. The general recruitment resorted to by the W.P.(C).NO.25817/07 :: 12 :: Commission for any particular post will, no doubt, have to adhere to the provisions in Rules 14 to 17 of the Rules. Rule 14(a) provides that for the purpose of the general recruitment, there shall be 20 vacancies and 2 out of the same shall be reserved for Scheduled Caste/Scheduled Tribe; 8 shall be reserved for other backward classes and the remaining 10 shall be filled up on the basis of merit. Rules 14(b) makes it clear that members of Scheduled Castes/Scheduled Tribes and other backward classes shall also be considered for appointment against vacancies which are to be filled up on the basis of merit and where a candidate belonging to Scheduled Caste/Scheduled Tribe or other backward classes is selected on the basis of merit, the number of posts for such reserved categories shall not suffer a dilution thereby. Is there anything in the Rules which suggests that special recruitment can be resorted to only after exhaustion of a rank list, which is otherwise published by the Commission, of course, adhering to the principles of Rules 14 to 17 of the Rules? Is it necessary that the Government should wait till a rank list either W.P.(C).NO.25817/07 :: 13 :: becomes time expired or otherwise incapable of being enforced further or is exhausted, to determine the number of vacancies deficit in relation to Scheduled Castes/Scheduled Tribes and then notify the same for special recruitment under Rule 17A? 15. I do not think that there is anything in these rules or the decisions mentioned above, to suggest such an interpretation. Babu suggests that even while resorting to special recruitment, the Government cannot violate the provisions contained in Rule 14(a) i.e. where the Rule making authority prescribes a percentage of vacancies that will have to be set apart for the reserved categories viz., Scheduled Castes/Scheduled Tribes, it is not open to the Government to resort to special recruitment and thereby exceed the maximum permissible reservation. It is only in that context that Babu made the observation that the deficit could be ascertained only at the time of appointment and not at the time of notification. Obviously, the time factor referred to in paragraph 30 in Babu is the time of making appointments by enforcement of the regular rank W.P.(C).NO.25817/07 :: 14 :: list. A perusal of the facts in the said case would show that apparently the Electricity Board had proceeded to create an artificial deficit in the number of vacancies that could be filled up by special recruitment in the said case. It is in that context that the court remarked that the question of deficit will have to be considered with reference to the time of making appointments by enforcement of the regular rank list and not at the time of advertising the posts in the course of special recruitment. The observations in Babu do not, in any manner, suggest that special recruitment can never be resorted to during the currency of a rank list published in the course of general recruitment. The dictum in Sivadas {1979 KLT 678} states that the power under Rule 17A is independent of the power of reservation under Rule 14 and is governed by the non-obstante clause in Rule 17A itself. The question, as to whether the permissible reservation is actually exceeded in any particular case by the Government resorting to special recruitment under Rule 17A, does not really arise for consideration in the context of determining the power under Rule 17A. The scope of the W.P.(C).NO.25817/07 :: 15 :: power has been delineated whether there is excess of authority or an irregular exercise of authority and violation of the principles of reservation would arise only in particular cases. Obviously, such questions should be looked into where there is a frontal challenge to the exercise of authority by the Government and there are materials to prove that the percentage of permissible reservation has been exceeded in such cases. But as is trite, the possibility of an abuse of power does not derogate from the existence of a power or authority. It does not make, either the Rule or the conferment of authority under the Rule, bad. 16. It is not the grievance of the petitioners in the instant case that in resorting to special recruitment as per Ext.P2, the Government has exceeded the permissible reservation in relation to the post of Assistant Engineer (Civil). Obviously, it would be incongruous on the part of the petitioners to take up any such contention as well. After all, the petitioners are also members of the Scheduled Caste and they only affirm the principles of reservation. There is no suggestion whatsoever, in the present case, W.P.(C).NO.25817/07 :: 16 :: that the 10 vacancies, which are set apart for special recruitment under Rule 17A, if filled up by members of Scheduled Caste would result in more than 10% of the vacancies in question being filled up by members of the Scheduled Caste. 17. In the ultimate analysis, whether it is held that the power under Rule 17A is independent of the power under Rule 14 or supplemental to the power under Rule 14, it cannot be gainsaid that the Government has the requisite power under Rule 17A to resort to special recruitment, whenever it is deemed appropriate and necessary and the exercise of such power is not conditioned by the currency of a rank list published by the Commission, at the culmination of a general recruitment for the same post. For all these reasons, I do not find any illegality in Ext.P2. I also do not find any merit in the writ petition. Consequently, the writ petition is dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy//