IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 WA.No. 2055 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.1118/2008 Dated 23/07/2009 .................... APPELLANT(S): ---------------------- K.B. ALI, SECTION OFFICER (HIGHER GRADE) SREESANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, PIN 683 574. BY ADV. SRI.KALEESWARAM RAJ 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, PIN 683 574. 3. K.M, MEERAN, SECTION OFFICER (HIGHER GRADE) SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, PIN 683 574. 4. ANTONY P.A. ASSISTANT REGISTRAR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY , PIN 683 574. 5. SURENDRAN A.K, P.S. TO VICE CHANCELLOR SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY PIN 683 574. 6. SOUDAMINI K.G., ASSISTANT REGISTRAR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, PIN 683 574. W.A.No.2055/2009 : 2 : 7. VALSALA P.N., SECTION OFFICER (HIGHER GRADE), SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, PIN 683 574. 8. GEORGE M.J., SECTION OFFICER (HIGHER GRADE), SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, PIN 683 574. 9. SHAJI V.N., SECTION OFFICER, (HIGHER GRADE), SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, PIN 683 574. 10. PRADEEP BABU P.D, SECTION OFFICER, (HIGHER GRADE), SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, PIN 683 574. BY ADV. SRI.ASOK M.CHERIAN FOR R2,3 BY ADV.SRI.V.VARGHESE FOR R4 BY ADV. SRI.P.K.VIJAYAMOHANAN,SC,SANKARACHARYA UNIVERSITY FOR R1 BY ADV. SRI.GILBERT GEORGE CORREYA,SC,SANKAR.UT FOR R1 BY ADV. SRI.P.S.NISHIL,SC,SREE SANKARACHARYA UNIVERSITY FOR R1 BY ADV.SRI.S.KANNAN FOR R2 BY ADV. SRI.A.G.BASIL FOR R10 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: (C.R) P.R.RAMAN & P.N.RAVINDRAN, JJ. ------------------------------- W.A.No. 2055 of 2009 ------------------------------- Dated this the 30th day of March, 2010 J U D G M E N T Raman, J. The appellant is working as Section Officer in the Sree Sankaracharya University of Sanskrit, Kalady, the first respondent herein. He is a candidate belonging to the Muslim community. The university issued Ext.P1 notification, dated 4.12.1999, inviting applications from qualified Assistants/Sections Officers working in the Universities of Kerala State to the post of Section Officer in the scale of pay of Rs.6500-10550. The number of posts advertised was 15 (approximate). The appellant and respondents 2 to 10 were also candidates who applied for the said post. The rank list consisting of 50 candidates was published on 1.4.2000, as evidenced by Ext.P2. The appellant and respondents 2 to 10 were included in the rank list and they were appointed to the post of Section Officers on 5.4.2000, applying the rules of W.A.No.2055/2009 2 rotation contained in Rules 14 to 17 of the Kerala State & Subordinate Services Rules, 1958, for short 'the K.S & S.S.R'. In the rank list, there were five candidates belonging to the Muslim Community including the appellant and respondents 2 and 3. Respondents 2 and 3 were Serial Nos.6 and 10, whereas the appellant was Serial No.23. However the appellant got appointment, as per order dated 5.4.2000, earlier to respondents 2 and 3, since he was appointed against 6th turn as a reserved candidate. Prior to the appointment, candidates eligible for community reservation were directed to produce non creamy layer certificates and the appellant produced the same and obtained the benefit of reservation. The party respondents belonging to Muslim Community however did not produce any such certificate and they were selected against open competition turns. In the provisional gradation list, Ext.P6, the University assigned seniority to respondents 2 and 3 above the appellant. Respondents 2 and 3 were assigned serial Nos.6 and 11 respectively and the appellant was serial No.16. The other W.A.No.2055/2009 3 Muslim candidate who was also appointed in the reservation turn was assigned Serial No.19. Though the appellant filed objections, the same was rejected and the final gradation list was published, as evidenced by Ext.P8 produced in W.P.(C) No.1118 of 2008, confirming the provisional gradation list. 2. The contention of the appellant in the writ petition was that the seniority position of the appellant could not have been disturbed at the time of preparation of the gradation list, extending the benefit of third proviso to Rule 14 (c) of the K.S. & S.S.R, in so far as the other two Muslim candidates, respondents 2 and 3, were not eligible to claim any reservation, as they did not produce the non creamy layer certificate. According to him, after the decision of the Apex Court in Indra Sawhney v. Union of India (1992 Suppl (3) SCC 217), the inequity, if any, to be remedied by virtue of the third proviso to Rule 14(c) of K.S. & S.S.R. should be confined among the candidates eligible for reservation from the same community. According to him, in so far as the other two persons were not eligible to be considered against the W.A.No.2055/2009 4 reservation turns, the Rule has no application in fixing the seniority. 3. Per contra, it is contended by the learned counsel appearing for the University as also the learned counsel for the contesting respondents that the inequity sought to be remedied by the third proviso to Rule 14(c) of the K.S. & S.S.R is between the candidate appointed on merit, vis- a-vis, the candidate appointed against the reservation turn from the same community and in a situation where a candidate who is selected on merit in the open competition turn is pushed down to accommodate a candidate of the same community selected in the reservation turn, the resultant inequity is sought to be remedied by the third proviso to Rule 14(c) of K.S. & S.S.R. We will consider the said contention in detail later. 4. A few more facts are necessary to be stated for the disposal of this writ appeal. The selection of the appellant and the party respondents was the subject matter of W.A.No.2055/2009 5 challenge in O.P.No.8571 of 2002 and connected cases and this Court by a common judgment rendered in those cases quashed the selection and appointment. Writ Appeals preferred therefrom were also dismissed by a Division Bench of this Court. Thereafter, a Special Leave Petition was filed against the common judgment in W.A.No.1760 of 2005 and an interim order was passed by the Apex Court, a copy of which is produced as Ext.P12, by which the Apex Court stayed the judgment of this Court. Based on the interim order of stay passed by the Apex Court, the University subsequently effected promotions and the selected candidates were promoted to higher posts up to the level of Joint Registrar. Therefore, as far as the selection and appointment is concerned, the same having been quashed by a co-ordinate bench of this Court, except for the order of stay granted by the Apex Court and because of the pendency of the SLP, the question regarding the interpretation to be placed on the third proviso to Rule 14(c) of the K.S. & S.S.R. would have become academic. It is to be noticed that the appellant had W.A.No.2055/2009 6 filed an earlier writ petition before this Court as O.P.No.16945 of 2002 challenging Ext.P8 seniority list. This Court by Ext.P11 judgment rendered in the said case and another connected case left the contention of the petitioners to be considered in appropriate proceedings, subject to the outcome of the appeal, if any, filed against the judgment in O.P.No.26486 of 2003. The said Original Petition, O.P.No.26486 of 2003, was one among the group of cases disposed of by this Court by a common judgment quashing the entire selection to the post of Section Officer in the first respondent University and has become final, by virtue of the subsequent Division Bench decision, stated supra. Ext.P11 judgment is binding as far as the appellant is concerned and has become final in so far as no appeal has been preferred therefrom. Now that the common judgment rendered by this Court quashing the selection having been confirmed in appeal by a Division Bench, the effect of Ext.P11 judgment is that the appellant could opt to challenge the gradation list only after final judgment is rendered by the Apex Court in the SLP now W.A.No.2055/2009 7 pending, since, as far as this Court is concerned, the matter has become final in the light of the Division Bench decision of this Court. But this was not seen brought to the notice of the learned single Judge while deciding the preset writ petition. In view of Ext.P11, the appellant could not have filed any writ petition, until the validity of the selection is upheld by the Apex Court. 5. Be that it may, since the issue regarding the validity of the gradation list was challenged and rejected by the learned single Judge, after interpreting the third proviso to Rule 14(c) of the K.S. & S.S.R and since the appellant did not chose either to withdraw the appeal and the writ petition reserving his right, as per the judgment in Ext.P11, we proceeded to hear the respective counsel on the issue regarding the interpretation to be placed on the third proviso to Rule 14(c) of K.S. & S.S.R. and the correctness of the judgment under appeal. 6. The crux of the argument raised by W.A.No.2055/2009 8 Sri.Kaleeswaram Raj, appearing on behalf of the appellant, is that persons from the backward classes who come within the category of creamy layer are not entitled for reservation. He placed reliance on Indra Sawhney v. Union of India (1992 Suppl (3) SCC 217) and second decision in Indra Sawhney v. Union of India (AIR 2000 SC 498). It is his contention that by granting the benefit of inter change to persons who are appointed in the open competition turns, unequals are treated equally. According to him, only persons who are entitled for reservation can be grouped together and only among them, an interchange can be made, as provided in the third proviso to Rule 14(c) of the K.S. & S.S.R. Before we consider the above contention, it will be useful to refer to the provisions contained in Rule 14(c) to the extent they are relevant for our purpose. Rule 14 of the K.S.& S.S.R. is extracted below:- “14. Reservation of appointments:- Where the Special Rules lay down that the principle of reservation of appointments shall apply to any service , class or category, or where in the case of any service, class or category for which no Special Rules have been issued, the Government have by notification in the Gazette declared that the principle W.A.No.2055/2009 9 of reservation of appointments shall apply to such service, class or category shall be made on the following basis:- (a) The unit of appointment for the purpose of this rule shall be 20, of which 2 shall be reserved for Scheduled Castes and Scheduled Tribes and 8 shall be reserved for the Other Backward Classes and the remaining 10 shall be filled on the basis of merit: [Provided that out of every five posts reserved for Scheduled Castes and Scheduled Tribes, one shall go to Scheduled Tribe candidate and the remaining four shall go to Scheduled Caste candidates and in the absence of a candidate to fill up the post reserved for Scheduled Tribe candidates, it shall go to a Scheduled Caste candidates and vice versa.] (b) The claims of members of Scheduled Castes and the Scheduled Tribes and Other Backward Classes shall also be considered for the appointments which shall be filled on the basis of merit and where a candidate belonging to a Scheduled Caste, Scheduled Tribe or Other Backward Class is selected on the basis of merit, the number of posts reserved for Scheduled Castes, Scheduled Tribes or for Other Backward Classes as the case may be, shall not in any way be affected. (c) Appointments under this rule shall be made in the order of rotation specified below in every cycle of 20 vacancies. 1. Open competition 2. Other Backward Classes W.A.No.2055/2009 10 3. Open competition 4. Scheduled Castes and Scheduled Tribes 5. Open competition 6. Other Backward Classes 7. Open competition 8. Other Backward Classes 9. Open competition 10. Other Backward Classes 11. Open competition 12. Scheduled Castes and Scheduled Tribes 13. Open competition 14. Other Backward Classes 15. Open competition 16. Other Backward Classes 17. Open competition 18. Other Backward Classes 19. Open competition 20. Other Backward Classes [Provided that the fourth turn in the third rotation and the twelfth turn in the fifth rotation shall go to Scheduled Tribe candidates and the fourth and twelfth turns in the first, second and fourth rotations, the twelfth turn in the third rotation and the fourth turn in the fifth rotation shall go to Scheduled Caste candidate and in the absence of a candidate for appointment against the turn allotted for Scheduled Tribe candidates, it shall go to a Scheduled Caste candidate and vice versa.] [Provided that the rule shall not apply in the following cases:- (i) appointment of near relatives of military personnel killed, permanently disabled or reported to be missing in action, and near relatives of Government servants dying in harness, if they are W.A.No.2055/2009 11 or have been wholly dependent on such military personnel or Government servants, as the case may be, subject to the condition that priority in the matter of appointment shall be given only to one relation in the case of each such personnel or Government servant. (ii) appointment of disabled jawans who are to be rehabilitated on completion of their medical treatment. Persons referred to in items (i) and (ii) above shall be given priority in the matter of appointment to Government service provided they possess the prescribed qualifications. [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 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.] ” (emphasis supplied) W.A.No.2055/2009 12 7. As per Rule 27(a) of the K.S. & S.S.R., seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade. Rule 27(c) states that notwithstanding anything contained in clauses (a) and (b) thereof, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. 8. Therefore, on a combined reading of Rule 27(c) read with the third proviso to Rule 14(c), before finalising the select list, if a candidate of the same community selected in the open competition turn is found to be below the order of W.A.No.2055/2009 13 candidates selected from the same community on the basis of reservation, then the candidate 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. 9. Admittedly, the appellant, respondents 2 and 3, and two others belonging to the Muslim community were included in the rank list. The appellant and another were selected against reservation turns. It is also not disputed that in the rank list published, they are lower in the rank. The appellant and the other candidate selected against reservation turns were Rank Nos.23 and 28, whereas respondents 2 and 3 were Rank Nos.6 and 10 in Ext.P2 rank list. It was against the 6th turn that the appellant was selected. Though respondents 2 and 3 had obtained higher marks and were assigned higher ranks in the select list, they were selected only against the open competition turns, viz., turns 11 and 19. W.A.No.2055/2009 14 10. On a plain reading of the third proviso to Rule 14(c) of the K.S.& S.S.R., extracted above, there cannot be any doubt that the inequity sought to be remedied is between a candidate selected in the open competition turn having higher marks and a candidate of the same community having lesser marks and a lower rank in the rank list, on the latter superceding the former, by virtue of the reservation to which he is entitled. The contention of the appellant is that the expression “candidate of the same community” should be understood as a person belonging to the same community who is eligible for reservation but was selected in the open competition turn. In other words, the appellant wants us to restrict the benefit of the third proviso only to remedy the inequity, if at all, arising between two candidates selected against reservation turns. We find no force in the said contention. 11. On a plain reading of the Rule, the inequity sought to be remedied is between a candidate selected in the open competition turn who is pushed down by another W.A.No.2055/2009 15 candidate of the same community, the latter being appointed in the reservation turn. In other words, it is not to remedy the situation among the equals as contended by the appellant, but it is to remedy a situation of inequality arising on account of a reserved candidate superceding another candidate of the same community, but who has got higher marks and had been assigned higher rank in the select list. The Honourable Apex Court in Indra Sawhney's case only held that in order to claim reservation, a candidate should not only belong to the particular community entitled for reservation, but should also be a candidate in the non creamy layer category. Even after Indra Sawhney's case, the Rule making authority did not choose to amend the Rule. The Rule as such is not under challenge. We do not find, in such circumstances, any reason to accept the interpretation confining the benefit of the third proviso only among the candidates eligible for reservation. In the case of a Scheduled Caste or Scheduled Tribe candidate, there is no creamy layer concept for claiming reservation. Therefore, if this Rule has to be interpreted in case of a W.A.No.2055/2009 16 Scheduled Caste/Scheduled Tribe candidate, the word “Community” has necessarily to be understood as the community to which the candidate belongs, irrespective of whether they belongs to the non creamy layer or not. But in the case of Other Backward Classes communities, to say that very same expression should be understood in a different way, virtually interpreting the Rule in two different ways in two different contingencies is not permissible under law. 12. Even though learned counsel for the appellant placed reliance on Ext.P9 circular issued by the Kerala Public Service Commission, we do not find it fit or proper to comment on the same, since they are not in the party array. Further, a guideline issued by the Kerala Publis Service Commission is not a guideline to be followed by us while interpreting a statutory rule. In case we accept the interpretation placed on the third proviso to Rule 14(c) of the K.S.& S.S.R. by the appellant, we will be virtually re-writing the rule which is the function of the Rule making authority and is in the field of subordinate legislation. Nair Service W.A.No.2055/2009 17 Society v. Beermasthan (2009 (2) KLT 123 (SC) was a case where the interpretation placed by this Court on Rules 14 to 17 of the K.S.& S.S.R. was not accepted by the Apex Court. In that context, in paragraphs 41 and 42, it was held as follows:- “ 41. It may be mentioned that there is no challenge to the validity of these Rules. Hence we have to read the Rules as they are. In our opinion, the so- called purposive interpretation sought to be placed on the Rules by the High Court was misconceived and is, therefore, not acceptable. 42. The High Court in its observation quoted above has sought to find out the intention of Rr.14 to 17. In our opinion the question of finding the intention arises only when a statute is not clear. If the statute is clear as it is in this case, it has to be read as it is, and the literal rule of interpretation is to be applied. In our opinion intention seeking is ordinarily to be done only when the statute is not clear.” Further, in paragraph 46, the Apex Court has stated as follows:- W.A.No.2055/2009 18 “46. In our opinion the High Court was in error in directing the Commission to ignore the express mandate of R.14(a). The High Court was wrong in holding that the said Rule only applies when the vacancies are less than 20. In fact the direction of the High Court in the impugned judgment really amounts to treating the entire number of vacancies which in the present case is 250 as one unit, which is against the express mandate of R.14(a). Thus the High Court has really amended R.14(a) and (c) of the Rules, which was not in its jurisdiction. It is only the legislature which can amend the law, and not the Court.” 13. As we have already held, the object of the third proviso to Rule 14(c) of K.S. & S.S.R. is to remedy the inequity flowing from the supercession of a candidate selected in the open competition turn by a candidate of the same community selected in the reservation turn, the former admittedly being ranked higher to the latter. The Rule envisages that though the turn for appointment against a reserved vacancy may arise first, that shall not affect the seniority of the meritorious candidate having obtained higher rank, and it is with a view to protect such seniority that third W.A.No.2055/2009 19 proviso was inserted in Rule 14(c) of the K.S.&S.S.R. The learned Single Judge has elaborately considered the various aspects of the matter and after referring to various authorities, held that the interpretation sought to be placed on the third proviso to Rule 14(c) of the K.S. & S.S.R., as contended by the appellant, cannot be accepted. We are in complete agreement with the view taken by the learned single Judge. We find no merit in this writ appeal. Accordingly, this writ appeal fails and is dismissed. P.R.RAMAN, JUDGE. P.N.RAVINDRAN, JUDGE. nj.