IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 473 of 2008(F) ----------------------------------- PETITIONER(S): ------------------------ MARYDAS.Y., S/O.YESUDAS, PLAVILA HOUSE, KANNANALOOR P.O., KOLLAM. BY ADV. MR.S.MUHAMMED HANEEFF RESPONDENT(S): ------------------------- 1. PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP. BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. MR.ALEXANDER THOMAS,SC,KPSC R2 & R3 BY GOVT. PLEADER MR.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2009, THE COURT ON 10/11/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.473/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RANK LIST NO.72/06/SSIV PUBLISHED BY THE IST RESPONDENT IN RESPECT TO THE POST OF LECTURER IN POLITICAL SCIENCE. P2:- COPY OF THE COMMUNICATION ISSUED BY THE IST RESPONDENT UNDER THE RI ACT TO THE PETITIONER DTD. 20.11.07. P3:- COPY OF THE COMMUNICATION NI.A2/52379/07/C.EDN. DTD. 14.12.07. P4:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN OF PSC DTD. 24.12.07. R1(a):- COPY OF THE APPOINTMENT CHART OF THE SELECTION. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.473 of 2008-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2009. JUDGMENT The petitioner is an applicant to the post of Lecturer in Political Science in the Collegiate Education Department. Ext.P1 is the copy of the ranked list published by the Public Service Commission. The petitioner’s name is included in the supplementary list of Latin Catholic as rank No.1. It is also his contention that he is included in the main ranked list as rank No.32. 2. The main contention raised by the petitioner is that the petitioner being the only candidate from the Latin Catholic Community, he should have been appointed in terms of the rotation as provided under Rule 17 of KS & SSR. It is the further contention that going by Ext.P3, it can be seen that 103 persons were appointed from 24.9.1964 to 17.10.2007 out of which, five persons alone belong to Latin Catholic Community and on that basis also, the petitioner ought to have been appointed. 3. The Public Service Commission has filed a counter affidavit and an additional counter affidavit. It is pointed out in the counter affidavit that the petitioner has not been included in the main list as rank No.32. The wpc 473/2008 2 rotation started from MRI 48 OX. The total number of vacancies reported are 29 and the total number of candidates advised are 27 and there are two NCA turns which includes one OX and one SIUC/AI. It is the contention that the rotation now stands at 72 SC. Though the turn of 68LC arose while working out the rotation, this turn was passed over on 27.6.2007, to keep 50% rule and this is in order as per the rules of reservation and rotation. 4. The additional counter affidavit contains more details regarding the working of the rotation. The ranked list was brought into force with effect from 27.4.2006 and therefore the selection year is 27.4.2006 to 26.4.2009. The rotation is worked out from where it ended previously. To make sure that reservation do not exceed 50%, the number of OC turns and reservation turns filled up each time and the progressive total are also calculated on every occasion. There were 7 pending turns to be satisfied. The affidavit contains details with regard to the way in which the rotation is worked out for the vacancies which were being reported from time to time. Initially 9 fresh vacancies were reported on 24.3.2003 and the details regarding working out the rotation are given. The substantial contention raised is that the total number of vacancies reported were 33. But only 31 candidates were actually advised against 27 fresh vacancies and 4 NJD vacancies. Two vacancies were kept unfilled for N.C.A. notification. But wpc 473/2008 3 these two vacancies were also considered for calculating OC, BC turns for advice to keep 50% rule. 5. Relying upon the Note to Rule 15(a) of KS & SSR, learned Standing Counsel for the Commission submitted that all the uncompensated turns as on the date of coming into force of the amendment have to be filled up. In answer to the said contention, learned counsel for the petitioner submitted that Rule 15 does not provide or permit pass over to comply with 50% rule and here great injustice was done to a Latin Catholic candidate since for a number of years, exactly 20 years, no L.C. candidate has been appointed. Therefore, it is contended that the denial of appointment to turn 68 in the rotation will amount to denial of reservation benefit provided to the L.C. Community. 6. Since it is vehemently contended that the temporary pass over of 68th turn of Latin Catholic is illegal, it will be appropriate to consider the manner in which the exercise was done by the Commission. The details as stated in the additional counter affidavit shows that there were seven pending turns to be satisfied. During the previous selection the rotation ended in the turn MR1 47 OC and the rotation has to be continued from MR1 48 OX. Nine fresh vacancies were received on 24.3.2003, out of wpc 473/2008 4 which 5 OC turns and 4 BC turns were advised. Out of the 4 BC the satisfied turns are 34E, 36M, 38E and 40 OBC. These nine vacancies were to be filled up as follows: “1. MRI 34E TPO satisfied Dimpi V. Divakaran Rank 5 Thiyya BC MR 35 OC already filled up 2. MR I 36 M TPO satisfied Sameer B R I-S/L-M Muslim BC MR 1 37 OC Already filled up 3. MR I 38 SIUC/AI TPO satisfied - NCA BC to be notified MR I 39 OC - already filled 4. MR I 40 OBC TPO satisfied Jose R., Rank - 13 OBC BC MR I 48 OX TPO to keep 50% rule 5. MRI 49 OC Girishkumar R., Rank - 1 OC turn MR I 50 D TPO to keep 50% rule 6. MR I 51 OC Biji B.L. Rank - 2 OC turn MRI 52 SC TPO to keep 50% rule 7. MR I 53 OC Josekutty C.A. Rank - 3 OC turn MR I 54 E TPO to keep 50% rule 8. MR I 55 OC wpc 473/2008 5 Sreelekha R.G. Rank - 4 OC turn MR I 56 M TPO to keep 50% rule 9. MR I 57 OC Biju P.R. Rank - 6 Ezhava OC turn” Five fresh vacancies were advised on 3.8.2006. There were 8 pending TPO turns to be satisfied. The details are given in pages 4 and 5 of the additional counter affidavit. The process continued when two fresh vacancies were advised on 24.11.2006, one fresh vacancy was advised on 27.6.2007, five fresh vacancies were advised on 27.6.2007 and thereafter two fresh vacancies were advised on 17.10.2007. As on the said date, there were seven pending TPO turns which are given as follows: “1. MR I 56M OC BC 2. MR I 58 E previous 11 11 3. MR I 60 OBC to be filled 4. MR I 62 E at present 1 1 5. MR I 64 SC 6. MR I 66 M 7. MR I 68 LC” 7. Later, two fresh vacancies were advised on 28.12.2007 and at that time also 7 TPO turns had to be satisfied including MR I 68 LC. One fresh vacancy was advised on 5.4.2008 and 7 pending TPO turns had to be satisfied as on that date. One fresh vacancy was advised on 6.5.2008 and wpc 473/2008 6 there were 8 pending TPO turns including MR I 68 LC. It is the explanation of the Commission that the MR I 68 turn of LC had to be passed over to maintain the 50% rule. This was passed over when five fresh vacancies were advised on 27.6.2007. It was advised as MR I 69 OC. 8. Herein, the contention raised by the learned counsel for the petitioner is that going by Rule 14(c) and Rule 17 of KS & SSR, in the every cycle of 20 vacancies, serial Nos.2 and 6 are OBC candidates and hence the Latin Catholic and Anglo Indian being item 3 in the list of Other Backward Classes, at least when the 8th vacancy is filled up, a Latin Catholic candidate is liable to be appointed. It is further submitted that 50% rule need not be implemented at every stage of filling up of fresh vacancies and only at the end of the selection year alone the Commission need consider this aspect. It is submitted that when the petitioner was available, MR I 68 turn of LC could not have been passed over, under Rule 14. 9. The said arguments cannot be accepted since it will go against the scheme provided under Rules 14 to 17 of KS & SSR. Going by Rule 15(a), “the integrated cycle combining the rotation in clause © of rule 14 and the sub-rotation in sub-rule (2) of rule 17 shall be as specified in the Annexure to this Part.” It is evident from the counter affidavit filed by the wpc 473/2008 7 Commission that at the time of publication of the ranked list, there were seven pending turns. During the previous selection, the rotation ended in MR I 47 OC with the above pending turns. It is not a case where the selection was conducted for the first time and therefore the rotation will have to be worked out after considering the pending turns. 10. As far as the contention that 50% rule need not be followed whenever fresh vacancies are reported also, the contention raised by the learned counsel for the petitioner cannot be sustained. As explained in para 13 of the additional counter affidavit, it can be seen that the total number of vacancies reported were 33. Only 31 candidates were actually advised against 27 fresh vacancies and 4 NJD vacancies. Two vacancies were kept unfilled due to non availability of candidates belonging to SIUC and OX category. These two vacancies were also considered for calculating OC, BC turns for advice to keep 50% rule. That the 50% rule has to be followed, is mandatory going by Rules 14 to 17 of the Rules. If it is not uniformly followed, the same will result in prejudice to other candidates. In that view of the matter also, there is no illegality in the rotation chart followed by the Commission, the details of which are given in the additional counter affidavit. 11. The further argument raised by the learned counsel for the wpc 473/2008 8 petitioner is that the Note to Rule 15(a) runs contrary to the main part of the rule itself. It is pointed out that in the light of the amended Rule 15(a), if a suitable candidate is not available for selection from any particular community or group of communities, such vacancies have to be notified separately for filling up by direct recruitment exclusively from those communities. It starts with a non-obstante clause also. It is therefore submitted that the Note provided to the rule that all the uncompensated turns of vacancies such as temporarily passed over, no candidate available and non-joining duty as on the 2nd February, 2006 shall be compensated, goes against the main part of the rule itself. 12. In fact, the said aspect was considered by me in detail in W.P.(C) No.24737/2008 and connected case. While considering a similar contention whether the Note provided to Rule 15(a) goes against the main part of the rule, it was held thus in para 16 as follows: “The Note herein to Rule 15(a) has, therefore, to be analysed in the light of the unamended Rules 15(a) to 15(c) and the main part of Rule 15(a) as amended. Going by the facts of this case, as on the date of coming into force of the amended rule 15(a) (published as per gazette dated 8.3.2006 with effect from 2.2.2006), no rank list was in force. The notification itself was published in the year 2007. The unamended Rules 15(a) to 15(c), as noticed already, provided wpc 473/2008 9 for restoration of uncompensated turns of vacancies and that too by making adjustment against the claims of the particular community or group that derived the extra benefit. The method of passing over of a vacancy in the absence of candidates from a particular community or group of communities and the filling up of the same by candidates from a particular community immediately next to the passed over community or group is a wellknown one covered by the rules. The integrated cycle combining the rotation in clause (c) of Rule 14 and sub rotation in sub-rule (2) to Rule 17 had to be operated in that manner. Thus, the passed over turns available to a particular community had to be restored “at the earliest possible opportunity.” In its real sense, the Note to the amended rule 15 (a) saves the right of those communities for restoration of all uncompensated turns as on 2.2.2006. It is not a right newly created. But it only reiterates the position under the unamended rule.” In that view of the matter, the Commission is bound to implement the provisions of the Note so as to compensate the NCA, TPO and NJD turns as on 2.2.2006. 13. Learned counsel for the petitioner submitted that great injustice had been caused to the petitioner and it is evident that the working out of the rotation as now done by the Commission deprived the candidates like the petitioner any chance for getting an appointment. But the question is whether the method adopted by the Commission is in tune with Rules 14 wpc 473/2008 10 and 17 of the Rules or not. As no violation of the rules have been established by the petitioner and as the Commission is acting in tune with the procedure prescribed in the rules, individual hardship cannot be a matter for the court to grant relief. For all these reasons, the writ petition fails and the same is dismissed. (T.R. Ramachandran Nair, Judge.) kav/