IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 WP(C).No. 1118 of 2008(Y) ------------------------------------ PETITIONER(S): ------------------------- K.B.ALI, SECTION OFFICER (HIGHER GRADE), SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, PIN-683 574. BY ADV. SMT.P.V.ASHA RESPONDENT(S): ----------------------- 1. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REPRESENTED BY ITS REGISTRAR, KALADY. 2. P.A.THAHA, SECTION OFFICER, P.S.TO FINANCE OFFICER, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY-683 574. 3. K.M.MEERAN, SECTION OFFICER (HIGHER GRADE), SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY-683 574. ADDL. 4TO 10 ARE IMPLEADED. 4. ANTONY P.A., ASSISTANT REGISTRAR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, 683 574. 5. SURENDRAN A.K., P.S. TO VICE CHANCELLOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY 683 574. 6. SOUDAMINI K.G., ASSISTANT REGISTRAR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT , KALADY 683 574. W.P.(C) NO.1118/2008 7. VALSALA P.N. , SECTION OFFICER (HIGHER GRADE), SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, 683 574. 8. GEORGE M.J., SECTION OFFICER (HIGHER GRADE), SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, 683 574. 9. SHAJI V.N., SECTION OFFICER (HIGHER GRADE), SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, 683 574. 10. PRADEEP BABU P.D. SECTION OFFICER (HIGHER GRADE), SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY 683 574. ADDL. R4 TO R10 ARE IMPLEADED AS PER ORDER DT. 23/07/2009 IN IA. NO. 7723/2008. BY ADVS.MR.P.K.VIJAYAMOHANAN,SC,SANKARACHA.UTY FOR R1 MR.GILBERT GEORGE CORREYA,SC,SANKAR.UT FOR R1 MR.P.S.NISHIL,SC,SREE SANKARACHARYA UT FOR R1 MR.ASOK M.CHERIAN FOR R2 & 3 MR.PIRAPPANCODE V.S.SUDHIR FOR ADDL.R4 MR.V.VARGHESE FOR ADDL.R4 MR.S.P.ARAVINDAKSHAN PILLAY FOR ADDL.R7 SMT.N.SANTHA FOR ADDL.R7 MR.S.A.ANAND FOR ADDL.R7 MR.PETER JOSE CHRISTO FOR ADDL.R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2009, ALONG WITH WPC NO. 16289 OF 2008 THE COURT ON 23/07/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.1118/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTIFICATION DT. 4.12.99 OF THE IST RESPONDENT. P2:- COPY OF THE RANKED LIST DT. 1.4.00 ISSUED BY IST RESPONDENT. P3:- COPY OF THE MEMO DT. 5.4.00 OF THE IST RESPONDENT TO PETITIONER. P4:- COPY OF THE NON-CREAMY LAYER CERTIFICATE DT. 24.4.00 ISSUED TO PETITIONER BY TAHSILDAR. P5:- COPY OF THE ORDER DT. 27.4.2000 OF IST RESPONDENT. P6:- COPY OF THE ORDER DT. 11.12.01 OF IST RESPONDENT ALONG WITH PROVISIONAL GRADATION LIST TO SECTION OFFICERS. P7- COPY OF THE OBJECTION DT. 21.12.01 OF PETITIONER TO IST RESPONDENT. P8:- COPY OF THE ORDER DT. 17.4.02 OF IST RESPONDENT ALONG WITH FINAL GRADATION LIST OF SECTION OFFICERS. P9:- COPY OF THE CIRCULAR DT. 25.11.00 OF THE PSC. P10:- COPY OF THE COUNTER AFFIDAVIT FILED BY UNIVERSITY IN OP. 16945/02. P11:- COPY OF THE JUDGMENT DT. 14.6.06 IN OP. 16945/02. P12:- COPY OF THE ORDER DT. 23.3.07 IN SLP CIVIL NO.5811/07. P13:- COPY OF THE ORDER DT. 26.3.07 OF IST RESPONDENT. P14:- COPY OF THE ORDER DT. 4.6.07 OF IST RESPONDENT. P15:- COPY OF THE ORDER DT. 17.11.04 OF IST RESPONDENT. P16:- COPY OF THE ORDER DT. 18.5.07 OF IST RESPONDENT. P17:- COPY OF THE ORDER DT. 17.11.07 OF IST RESPONDENT. P18:- COPY OF THE SUBMISSION DT. 2.11.07 OF PETITIONER TO IST RESPONDENT P19:- COPY OF THE LETTER DT. 22.4.08 OF IST RESPONDENT. W.P.(C) NO.1118/2008 RESPONDENT'S EXHIBITS R3(a):- COPY OF THE CERTIFICATE ISSUED BY TAHSILDAR, KOTHAMANGALAM, DT. 26.6.03 SHOWING THAT I DO NOT BELONG TO CREAMY LAYER. R3(b):- COPY OF THE CERTIFICATE ISSUED BY TAHSILDAR , ALUVA DT. 30.6.2000 SHOWING THAT 2ND RESPONDENT DOES NOT BELONG TO CREAMY LAYER. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.1118/2008-G & 16289/2008-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of July, 2009. JUDGMENT In both these writ petitions the petitioners are challenging the gradation list of Section Officers (Ext.P6 in W.P.(C) No.1118/2008 and Ext.P5 in W.P.(C) No.16289/2008) published by the University . Since common questions arise in the writ petitions, they are disposed of by a common judgment. 2. The contentions raised in both the writ petitions are identical. The petitioner in Writ Petition No.1118/2008 is presently working in the cadre of Section Officer Higher Grade in the first respondent University. The petitioner in Writ Petition No.16289/2008 is also working as Section Officer Higher Grade in the same University. The notification inviting applications was published by the University on 4.12.1999. Ext.P2 in Writ Petition No.1118/2008 is the rank list published by the University after completion of the selection process. In the rank list there were five candidates belonging to Muslim community. Respondents 2 and 3 were serial Nos.6 and 10. Petitioners were serial Nos.23 and 28 and Mr. wpc 1118/08 & 16289/08 2 Noorudeenkutty was serial No.29. The petitioners were appointed as per order dated 5.4.2000. Prior to the appointment, the candidates eligible for community reservation were directed to produce non creamy layer certificates and accordingly the petitioners submitted the same and obtained the benefit of reservation. Altogether 20 candidates including petitioners and party respondents were appointed. The party respondents did not produce non creamy layer certificates and they were selected against open competition turn. 3. In the provisional gradation list published as per Ext.P6 by the University, seniority was assigned to respondents 2 and 3 above the petitioners. Respondent No.2 was assigned serial No.6, the third respondent was assigned serial No.11 and the petitioners were assigned serial Nos. 16 and 19. 4. The petitioners contended that they have been appointed from among the Muslim candidates by allotting 6th and 16th turn respectively. The respondents did not produce non creamy layer certificates. Therefore, at the time of finalization of the gradation list they cannot be granted the benefit of reservation and cannot be allowed positions above that of the petitioners. If any non creamy layer certificates have been produced beyond the time wpc 1118/08 & 16289/08 3 prescribed by the call letter, they cannot be accepted at all. Even though the petitioners filed objections in the matter, the same was rejected and the final gradation list was published as per order dated 17.4.2002, produced as Ext.P8 in Writ Petition No.1118. 5. Heard Smt. P.V. Asha and Shri Philip T. Varghese, learned counsel for the petitioners, Shri P.K. Vijayamohanan learned Standing Counsel for the University, Shri Ashok M. Cherian, learned counsel for respondents 2 and 3 and Shri Pirappancode V.S. Sudheer and Shri V. Varghese, learned counsel appearing for the additional 4th respondent. 6. Learned counsel for the petitioner in W.P.(C) No.1118/2008, Smt.P.V. Asha submitted that the method adopted by the University cannot be accepted for various reasons. It is pointed out that even though the last proviso to Rule 14(c) of KS & SSR provides for the benefit of inter- change of ranking, such inter-change can be made only between candidates of the same community who are eligible for reservation. The same cannot be allowed to persons who are appointed against open competition turns, though they may be candidates belonging to the same community. Reliance is placed on Ext.P9 circular issued by the Public Service Commission also. 7. In fact, the very selection of the petitioners and respondents were wpc 1118/08 & 16289/08 4 under challenge in O.P.No.8571/2002 and connected cases, wherein the selection and appointments were quashed. The Writ Appeals were also dismissed by the Division Bench. Thereafter, S.L.P.(C) No.5811/2007 has been filed against the common judgment in Writ Appeal No.1760/2005 and by Ext.P12, the Apex Court has granted interim order of stay also. In the light of the said order of stay, the University finalized the gradation list and has granted various benefits including higher grade. 8. The crux of the arguments raised by Smt.P.V. Asha is that persons among the backward classes who come within the category of creamy layer are not entitled for the benefit of reservation which is evident from various decisions of the Apex Court in Indra Sawhney v. Union of India {1992 Suppl (3) SCC 217} and others. By granting the benefit of inter-change to persons who are appointed by open competition turns, unequals are treated equally. It is submitted, by relying upon various decisions of the Apex Court and of this court, that the persons who are appointed by the applicability of rules of reservation alone can be grouped together and only among them an interchange can be made as provided in the last proviso to Rule 14(c). It is further pointed out that a purposive interpretation of the rule has to be adopted by this court by adding such words which require a wpc 1118/08 & 16289/08 5 proper construction of the rule in favour of candidates who are appointed in reservation turns. 9. The following decisions were relied upon by the learned counsel for the petitioners: Indra Sawhney v. Union of India {(2000) 1 SCC 168}, Nair Service Society v. State of Kerala (2007 (2) KLT 77 (SC), Kannadasan v. Ajoy Khose {2009 (2) KLT SN 65 (Case No.70)}(SC), Girnar Traders v. State of Maharashtra and others {(2007) 7 SCC 555} and Ashoka Kumar Thakur v. Union of India and others {(2008) 6 SCC 1}. 10. To resolve the dispute raised in these writ petitions, it requires a proper interpretation of the last proviso to Rule 14(c) of KS & SSR which is extracted below: “Provided also that in preparing the list of eligible candidates to be appointed under this rule applying the rotations specified above in every cycle of 20 vacancies, the candidates eligible to be selected on open competition basis, that is, turns, 1, 3, 5, 7, 9, 11, 13, 15, 17 and 19 shall be selected first and then the candidates for the reservation turns, out of those available in the ranked list in the particular groups having regard to their ranks. In finalising the select list any candidate of the same community selected on open competition turns, if found to be below in the order of the candidates selected from the wpc 1118/08 & 16289/08 6 same community on the basis of reservation, for the fixation of ranks as per rule 27 of these rules, candidates of the same community obtaining higher marks shall be interchanged with the candidates of the same community in the reservation turn for the purpose of ranking.” The second limb of the proviso is relied upon by the respondents to justify the interchange of candidates of the same community on the basis of higher marks while preparing the gradation list. A reading of the second limb shows that it contemplates the finalization of the select list. The situation envisaged is one wherein candidates selected by open competition turns find a place below the candidates selected from the same community on the basis of reservation. It is provided that for fixing the ranks as per Rule 27 of KS & SSR, the candidates of the same community who obtain higher marks shall be interchanged from the same community in the reservation turn “for the purpose of ranking”. Evidently, two groups of appointees are referred to: one being the candidates selected on open competition turns and two; the candidates who are appointed on the basis of reservation. Rule 27 relates to seniority. Therefore, the interchange of candidates is envisaged in a case where “a select list is prepared for the purpose of fixation of ranks as per Rule 27.” The method is to interchange the candidates who are wpc 1118/08 & 16289/08 7 having higher marks with the candidates of the same community who have been appointed on reservation turns. 11. It is clear from the main part of the rule and the last proviso to rule 14(c) that the appointments are made in the order of rotation provided in every cycle of 20 vacancies. The open competition turns are 1, 3, 5, 7, 9, 11, 13, 15, 17 and 19. The reservation turns are 2, 4, 6, 8, 10, 12, 14, 16, 18 and 20. The candidates of the open competition turns are selected first. It is clear from the scheme of the proviso that the first limb concerns the method by which candidates have to be advised for appointment whereas the second limb concerns a stage after the appointment, for finalizing the select list and for fixation of the ranks as per Rule 27. The second limb comes into play in a stage after the appointment. The application of the rules of reservation is at the first stage, viz. at the stage of appointment. The benefit of reservation is available to candidates who produce non creamy layer certificate and accordingly they are given the benefit of reservation turns as provided in the relevant rules. 12. To appreciate the argument of the learned counsel for the petitioners, the second limb will have to be re-written. The learned counsel submitted that an inter change can be only between candidates who have wpc 1118/08 & 16289/08 8 been appointed in the reservation turns and there cannot be any interchange between candidates who are selected on open competition turns and candidates who have been selected on reservation turns. True that in Ext.P9 the Commission has issued a circular to the effect that rearrangement of name in the order of rank need only be made between the names of candidates belonging to the same group of community, all of whom are eligible for reservation benefit by the production of Non-Creamy Layer certificate. But the learned counsel for the University submitted that they have acted only in terms of the last proviso to Rule 14(c). The counter affidavit filed in an earlier writ petition filed by the petitioners, is produced herein as Ext.P10. Therein, it is averred that the interchange was made in terms of the last proviso to Rule 14(c) after getting legal opinion in the matter. 13. The principles regarding interpretation of statutory rules are well known. When the meaning of the provisions are plain and clear and when it leads only to one interpretation, the court cannot resort to other modes. Only if the natural meaning leads to any absurdity alone, other methods could be resorted to. In fact, the scheme of Rules 14 to 17 of KS & SSR was considered by the Apex Court in a recent decision in Nair Service wpc 1118/08 & 16289/08 9 Society v. Dr. T. Beermasthan (2009 (2) KHC 198 (SC) = 2009 (2) KLT 123). While considering the principles for interpretation of the rules, it was held in para 23 that “where the language of the Act or the Rules is clear and explicit, the words of the statute alone represents the intention of the legislature.” In New India Assurance Company Ltd. v. Nusli Neville Wadia and another {(2008) 3 SCC 279}, the Apex Court considered the situations where purposive construction has to be resorted to. It was held in para 51 that “so as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled, which in turn would lead the beneficiary under the statutory scheme to fulfil its constitutional obligations as held by the Court inter alia in Ashoka Marketing Ltd. v. Punjab National Bank {(1990) 4 SCC 406}.” It was explained that this method can be resorted to when the literal construction will lead to an anomalous situation. Learned counsel for the petitioners further relied upon the principles stated by the Apex Court in Girnar Traders' case {2007) 7 SCC 555}, especially para 38. It is in the following wpc 1118/08 & 16289/08 10 terms: “Giving a plain meaning to the words used in the statute would not be resorted to when there is a sense of possible injustice. In such a case, the simple application of the words in their primary and unqualified sense is not always sufficient and will sometimes fail to carry out the manifest intention of lawgiver as collected from the statute itself and the nature of subject-matter and the mischiefs to be remedied. If the plain words lead apparently to do some injustice or absurdity and at variance with, or not required by, the scope and object of the legislation, it would be necessary to examine further and to test, by certain settled rules of interpretation, what was the real and true intention of the legislature and thereafter apply the words if they are capable of being so applied so as to give effect to that intention. Where the plain literal interpretation of statutory provision were to manifestly result in injustice never intended by the legislature, the court is entitled to modify the language used by the legislature so as to achieve the intention of the legislature and to produce a rational construction.” 14. The argument developed is that going by the principles settled by the Apex Court in various decisions, the creamy layer among the backward classes is not entitled for any benefit by way of reservation. They will not come within the definition of backward classes in Rule 2(14) of KS & SSR. It is therefore submitted that persons coming under the open wpc 1118/08 & 16289/08 11 competition turns cannot be granted any benefits envisaged under Rules 14 to 17 of KS & SSR. Learned counsel for the petitioners further relied upon paragraphs 172 and 176 of the decision of the Apex Court in Ashoka Kumar Thakur's case {(2008) 6 SCC 1} to contend that the reservation community means it is exclusive of creamy layer only. In para 172, the Apex Court extracted para 520 of Indra Sawhney's case (1992 Supp (3) SCC 217) wherein the concept of creamy layer has been explained. Learned counsel for the petitioners also referred to G.O.(P) No.15/2000/SC/STDD dated 16.2.2000, wherein the Government prescribed various conditions for identification of creamy layer. In para 6 of Annexure I to the above Govt. Order, it is stated that candidates belonging to the other backward classes recruited on the basis of merit in open competition on the same standards prescribed for general candidates shall not be adjusted against the reservation quota of 40%. It is therefore submitted that Rules 14 to 17 of KS & SSR embodies the constitutional scheme under Article 16 of the Constitution and an interpretation should be adopted which should support the principles of reservation. Therefore, if the rights of candidates who obtain appointment by reservation are sought to be interfered with, then a purposive interpretation of the proviso is required. wpc 1118/08 & 16289/08 12 15. In Indra Sawhney's case {(2000) 1 SCC 168}, it has been held thus: “As the “creamy layer” in the backward class is to be treated “on a par” with the forward classes and is not entitled to benefits of reservation, it is obvious that if the “creamy layer” is ot excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equals (forwards and creamy layer of backward classes) cannot be treated unequally. Again, non-exclusion of creamy layer will also be violative of Articles 14, 16(1) and 16(4) of the Constitution of India since unequals (the creamy layer) cannot be treated as equals, that is to say, equal to the rest of the backward class. These twin aspects of discrimination are specifically elucidated in the judgment of Sawant, J. where the learned Judge stated as follows: (SCC p.553, para 520) “To continue to confer upon such advanced sections....special benefits, would amount to treating equals unequally... Secondly, to rank them with the rest of the backward classes would....amount to treating the unequals equally.” Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16(1) and also of Article 16(4).” This legal proposition is relied upon by the petitioners' counsel, to contend that there will be violation of Article 16. wpc 1118/08 & 16289/08 13 16. In fact, in Kannadasan's case (2009 (2) KLT SN 65 (page No.70)(SC) while considering the interpretation of statutes, it was held by the Apex Court thus: “Construction of a statute would not necessarily depend upon application of any known formalism. It must be done having regard to the text and context thereof. For the aforementioned purpose, it is necessary to take into consideration the statutory scheme and the purpose and object it seeks to achieve. A construction of a statute, as is well known, must subserve the tests of justice and reason. It is a well-settled principle of law that in a given case, with a view to give complete and effective meaning to a statutory provision, some words can be read into; some words can be subtracted. Provisions of a statute can be read down (although sparingly and rarely). 17. It is clear from the last limb of the third proviso that it envisages the question of finalisation of the select list. The candidates who have been appointed from the same community on open competition turns and reservation turns come within the purview of the said provision. The interchange is sought for while fixing ranks as per Rule 27 of KS & SSR. The principle adopted is that the candidates of the same community who have obtained higher marks, should be interchanged with the candidates of the same community in the reservation turn for the purpose of ranking. wpc 1118/08 & 16289/08 14 Obviously, it is not a case where unequals are treated equally. The candidates from the same community who obtain appointment in the open competition turns and reservation turns are considered for the purpose of ranking under Rule 27. It is not a case where the candidates who are appointed on open competition turn are given any benefit of reservation either by accepting non creamy layer certificates or by other means. It is not a question of granting the benefits by way of reservation while fixing the seniority. No such benefits are obviously granted to them. It is only a method for preparing the select list. Obviously, therefore, the argument that the second limb of the proviso is attracted only in the case of candidates appointed in reservation turns cannot be accepted. 18. The question is whether a literal meaning, if adopted, will lead to any absurdity or other consequences which will violate the language of the rule itself. Plainly, it can be said that a literal interpretation of the rule will not lead to any absurdity at all. True that in the matter of appointment, Rules 14 to 17 of KS & SSR prescribes various methods to grant benefit to communities eligible for reservation. Herein, it is clear that the community, viz. Muslim is one of the communities entitled for reservation. It is not a case where other general category candidates are given a particular benefit wpc 1118/08 & 16289/08 15 by the operation of the second limb of the proviso. An inter-change is only between the candidates from the same community. The proviso was added way back in 1976, long before the concept of creamy layer was evolved. It was being applied for a long period also. Merely because the concept of creamy layer has been brought into force, it cannot be said that the second limb itself will have to be re-written based on the same by adding words. In that view of the matter, the argument put forth by the petitioners cannot be accepted at all. 19. The petitioners are not denied any benefit of reservation by the operation of the second limb of the proviso. Their appointments are not affected. They are getting the benefit of reservation turns for the purpose of appointment. The said right of the petitioners are not defeated by the candidates of the same community who have been appointed on open competition turns and who come within the category of creamy layer. Therefore, the argument that