IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 WA.No. 635 of 2009 -------------------- AGAINST THE JUDGEMENT IN OP.25092/2002 DATED 30.1.2009 .................... APPELLANT/PETITIONER: -------------- T.M.BABURAJ, THALIKKULAM HOUSE, MAIDAKONAM P.O., IRINJALAKUDA. BY ADV. SRI.T.P.DEYANANTHAN SRI.A.V.RAMAKRISHNA PANICKER SMT.SEEMA R. RESPONDENT(S)/RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, COLLEGIATE EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 4. SRASWATHI, C/O.M.N.MOORTHY, BHAGHYA, M.G. ROAD, THIRUVANANTHAPURAM. 5. PARVATHY AMMAL, LECTURER IN VIOLIN, RLV COLLEGE OF MUSIC AND FINE ARTS, TRIPUNITHURA, RESIDING AT H.NO.412/24, MEENAVIHAR,LUNION CLUM WARD, KOTTAYAM-1. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R3 DR.K.P.SATHEESAN FOR R4 SRI.K.K.GOPINATHAN NAIR FOR R4 SRI.VPK.PANICKER FOR R5 SR. GOVERNMENT PLEADER SRI.BENNY GERVASIS FOR R1 & R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.No.635/2009 ------------------------------ Dated this, the 22nd day of January, 2010 JUDGMENT Balakrishnan Nair, J. The petitioner is the appellant. He was a candidate included in Ext.P1 rank-list, published by the Public Service Commission (for short “PSC”) on 16.4.1999 for appointment to the post of Tutor Grade II (re-designated as Lecturer) in Violin, which is a post borne on the Kerala Collegiate Education Service. The appellant was the first Muslim candidate in the rank-list with Rank No.21. According to him, if the communal rotation was properly applied, he would have got advice and consequential appointment. The rank-list expired on 15.4.2002, which appears to have been extended up to 31.12.2002. The Original Petition was filed, seeking proper application of the communal rotation and to advice the appellant for appointment. The PSC filed a counter affidavit, pointing out that the communal rotation was applied correctly as per the 100 point WA No.635/2009 - 2 - roster given as Annexure II to Part II of the Kerala State & Subordinate Services Rules. The learned Single Judge accepting the said contention, dismissed the Original Petition. Hence this appeal. 2. From the affidavit of the PSC, it is seen that in the 100 point roster, the last advice made from the previous rank-list was MR 1, 11 OC (Main Rotation 1 - 11 Open Competition). At that time 8 LC - NCA (No Candidates Available) and 10 OBC - TPO (Temporary Pass Over) were remaining to be satisfied. At the opening of the first selection year between 16.4.1999 and 15.4.2000 only one vacancy was reported. If it is given to a reserved candidate, it will amount to reservation exceeding 50% in a selection year. So, the turn 12 SC was temporarily passed over and 13 OC, the first person in the rank-list was advised. Subsequently, during that year two more vacancies were reported. Among the two vacancies the first vacancy was used for satisfying 10 OBC TPO. 14 Ezhava turn was passed over temporarily and 15 OC candidate was appointed. This was done because if an Ezhava candidate is appointed, the reservation will WA No.635/2009 - 3 - exceed 50%. Again, during that year one more vacancy was reported. That was utilised for satisfying 12 SC TPO. In the second selection year, only one vacancy was reported. So, 16 Muslim turn was temporarily passed over and 17 OC turn was satisfied. During the third year also, only one vacancy was reported. In the light of the rules then in force, 18 Ezhava turn was temporarily passed over and it went to 19 OC turn. 3. The learned counsel for the appellant pointed out that the application of rotation is not proper. We notice that the 100 point roster combines rotation between OC candidates and reserved candidates and also the sub-rotation among the reserved candidates. As long as that roster is not challenged, we are of the view that the PSC has strictly gone by the roster, subject to the general principle that the reservation should not be allowed to exceed 50% in a selection year, which is given statutory recognition in Rule 15(d) of the Kerala State and Subordinate Services Rules. We find no reason to disbelieve the affidavit filed by a constitutional body like the PSC. Going by the rules, the temporary pass over of the 16 Muslim turn was WA No.635/2009 - 4 - validly done. Any other course of action would have violated Rule 15(d) of Part II of the Kerala State and Subordinate Services Rules. Further, even assuming, one vacancy should go to the reserved group, it would have gone to 14 Ezhava turn, which is temporarily passed over. In the result, the Writ Appeal fails and it is dismissed. K.Balakrishnan Nair, Judge. C.T.Ravikumar, Judge. nm.