IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 7801 of 2008(D) ----------------------------------- PETITIONER(S): ------------------------ 1. REKHA. C., AGE 30 YEARS, D/O.V.CHELLAN KALLAMKADU HOUSE, CHERAMANGALAM P.O. (VIA) NENMARA, PALAKKAD DISTRICT. * 2. SREEJA.C., AGE 27 YEARS W/O.RAMAKRISHNAN. C., CHERANATHUKALAM HOUSE KODUVAYOOR, PALAKKAD DISTRICT. (DELETED) *DELETED FROM PARTY ARRAY AS PER ORDER IN IA. 10483/08 DTD. 18/6/08 3. P.C.KANAKAM, AGE 33 YEARS, W/O.HARIDAS VALIYACHELLA HOUSE, GOVINDAPURAM P.O. PALAKKAD DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): ------------------------ 1. KERALA PUBLIC SERVICE COMMISSION REP. BY ITS SECRETARY, PATTOM THIRUVANANTHAPURAM. 2. THE SECRETARY KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM. * 3. C.PRABHAKARAN, NARIKOTTUKALAM HOUSE PALLANCHATHANNUR P.O., MATHUR PALAKKAD DISTRICT. (CORRECTED) R3. C.PRAKASHAN, NARIKOTTUKALAM HOUSE, PALLANCHATHANNUR P.O., MATHUR, PALAKKAD DISTRICT. * R3 IS CORRECTED AS PER ORDER IN 10484/08 DT. 18.8.08. R1, R2 BY ADV. MR.ALEXANDER THOMAS,SC,KPSC R3 BY ADV.MR.K.ANAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2009, THE COURT ON 18/11/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.7801/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RANKED LIST OF U.P.SCHOOL ASSISTANT IN PALAKKAD DISTRICT. P2:- COPY OF THE RANKED LIST OF L.P.SCHOOL ASSISTANT IN PALAKKAD DISTRICT. P3:- COPY OF THE COMMUNICATION DTD. 27.7.07 ISSUED BY THE PUBLIC SERVICE COMMISSION UNDER THE RIGHT TO INFORMATION ACT. P4:- COPY OF THE ROTATION CHART FOR THE POST OF LPSA'S PUBLISHED IN THE WEBSITE. P5:- COPY OF THE APPOINTMENTS ISSUED BY THE DEPARTMENT DTD. 11.1.07 FOR THE POST OF UPSA. P6:- COPY OF THE APPOINTMENTS ISSUED BY THE DEPARTMENT DTD. 18.6.07 FOR THE POST OF UPSA. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.7801 of 2008-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of November, 2009. JUDGMENT The petitioners are included in the ranked list prepared by the Public Service Commission for appointment to the post of Upper Primary School Assistant in Palakkad District. They are aggrieved by the action taken by the Public Service Commission in allotting the uncompensated turns in the category of Scheduled Castes which were available as on 2.2.2006 from the ranked list of LPSAs. only. 2. The necessary facts for the disposal of the writ petition are the following: The rank list for UPSAs. came into force with effect from 5.12.2006. The first petitioner is included as supplementary serial No.12, the second petitioner as supplementary serial No.8 and the third petitioner is included as supplementary serial No.13. All of them belong to Scheduled Caste community. Ext.P1 is the said ranked list. Ext.P2 is the ranked list published by the Commission for appointment to the post of LPSAs. The practice which was followed earlier, was to publish a common ranked list for appointment of UPSA and LPSA and it is for the first time that two separate lists have been published as per Exts.P1 and P2. The publication wpc 7801/2008 2 of separate ranked lists for these two categories was necessitated consequent on the pronouncement of a judgment by the Apex Court. 3. There were a number of passed over turns, viz. 89 scheduled castes, going by Ext.P3 communication issued by the Commission. Therefore, it is the case of the petitioners that these uncompensated turns should be divided equally in respect of the two ranked lists, as otherwise it will result in prejudice to one group of candidates included in the ranked list of UPSAs. It is also pointed out that the Commission has given the benefit of the passed over turns exclusively to LPSAs. included in Ext.P2 ranked list which cannot be justified. It is argued that if all uncompensated turns are given to the category of LPSAs. it will be in violation of Articles 14 and 16 of the Constitution of India. 4. The Pubic Service Commission, in their counter affidavit has explained the position in the following manner. It is averred that the qualifications for appointment to the post of UPSA and LPSA as shown in the notification are different. Previously, the name of the post was known as LP School/UP School Assistant (Malayalam) and single ranked lists were published and candidates were advised accordingly. Before bifurcation, going by the community-wise NCA turns, there were 80 SC turns and 30 ST turns. The Commission decided that these NCA turns have to be wpc 7801/2008 3 satisfied from the ranked list in force for LPSA. Accordingly, all the 11 candidates included in the main list of the ranked list and 39 candidates from supplementary list of SC (total 50) have been advised for appointment fro the ranked list of LPSA. 5. It is pointed out that the Special Rules were brought to maximise the opportunity to TTC holders in selection to the post of LPSA and UPSA. The persons who possess TTC can apply for LP Assistant as well as UP Assistant and hence they get equal opportunity in both the selections. As the qualification is strictly prescribed with TTC, the opportunity of TTC holders are absolutely confined to the selection as LP Assistant. 6. It is further explained that the Commission is not in a position to bifurcate the pending NCA turns in the common ranked list as it has to maintain equity in the reservation and rotation. Since rotation starts from a fresh selection as MR I OC and continues to subsequent similar single ranked lists, it is not technically possible to divide the pending NCA compensations equitably to two different ranked lists. 7. In the additional counter affidavit, the position has been further explained. It is stated that the Commission has taken a policy decision in the matter and there is no illegality in the above decision. It cannot be said that the decision is arbitrary also. wpc 7801/2008 4 8. Learned counsel for the petitioners submitted that even after allotting 50 NCA turns to be filled up from the LPSA rank list, there remains 39 uncompensated turns due to the Scheduled Caste candidates. Therefore, those can be directed to be advised from the existing UPSA rank list. It is submitted that being a community entitled for the benefit of reservation, the appointments have to be made at the earliest point of time and if it is allotted only for the LPSA rank list, then the uncompensated turns as now remaining (39 in number) can be filled up only from the future ranked lists. It will only delay the filling up of vacancies by candidates from scheduled caste community. It is therefore submitted that the delay itself will go against the Constitutional mandate for enforcing the principles of reservation in respect of a section of the society which needs proper care and attention. Reliance is placed on the decisions of the Apex Court in R.K. Sabharwal and others v. State of Punjab and others {(1995) 2 SCC 745} and Ajit Singh and others v. State of Punjab and others {(1997) 7 SCC 209). 9. The question turns upon the issue whether the Commission has got a free hand in deciding whether the NCA turns from a common ranked list of LPSAs and UPSAs. should be allotted only to a ranked list of LPSAs. It is wpc 7801/2008 5 well settled that the Commission is having wide powers in terms of the Constitutional schemes framed under Articles 315 and 320. It is a case where prior to the present system, there was a common ranked list for appointment to the post of UPSA and LPSA. The Commission had to start afresh from the main rotation in respect of both the ranked lists Exts.P1 and P2. If they had decided not to compensate the NCA turns in favour SC candidates, then none of the candidates would have been eligible for advice. The other option for the Commission was to allot the NCA turns to be filled up from one of the ranked lists. Herein, they have decided to prefer LPSA ranked list in the matter of allotment of NCA turns for SC candidates. Going by Rules 14 and 17 of KS and SSR, an integrated cycle has to be operated so as to satisfy the claims of all the communities. There is no scientific formula available as on the date of publication of Exts.P1 and P2, evidently as to how the NCA turns of the previous ranked list should be allotted. It was left to the decision of the Commission to decide as to how it should be worked out. Therefore, the matter is really on the realm of the policy decision of the Commission. A decision in that regard taken by the Commission can be attacked only on well settled grounds, viz. violation of the Constitution or of any statutory provision or at any rate, that the decision is bad being unfair, unreasonable or irrational. None of these grounds are wpc 7801/2008 6 available in this case. 10. The suggestion by the learned counsel for the petitioner that the remaining uncompensated turns should be allotted from UPSA ranked list, so that many of the candidates would get appointment, is also opposed by the learned Standing Counsel for the Commission pointing out that it will cause practical difficulties for the Commission to follow the rotation provided under the relevant rules. Already, on the benefit of the NCA turns, many candidates have been advised. Since turns will have to be earmarked on the basis of the common rotation chart prepared by the Commission, any interference with the same to provide the NCA turns to different ranked lists will only upset the entire thing. It is therefore pointed out that such a method is unscientific. Learned Standing Counsel for the Commission, by relying upon the decision of a Full Bench of this Court in Pulomaja Devi v. Gopinathan Nair and others (1975 KLT 111 FB)) submitted that this Court cannot substitute its own reasons as to that of the Commission. In their separate judgments, V.P. Gopalan Nambiar, C.J. and Chandrasekhara Menon, J. held as follows: Nambiar, J. “Where two modes of interpretation of the Rule or its practical working are plausible, the learned Judge was wrong in having wpc 7801/2008 7 interfered under Art.226 and quashed the advice made by the Commission and the appointments made pursuant thereto, on the ground that the one and the only mode of working out the rule was what was suggested by the learned Judge.” Chandrasekhara Menon, J. “When two views are possible on the interpretation of the relevant provision concerned, certainly the court may not be right in interfering with the advice of the Public Service Commission in exercise of its extraordinary jurisdiction under Art.226. Though it is the constitutional duty of the High Court to keep all authorities and Tribunals (under the court's jurisdiction) while discharging their statutory, judicial or quasi-judicial functions, within the bounds of their jurisdiction and to compel them, wherever necessary, to perform the duties enjoined on them by law, strictly in accordance with the relevant statutory provisions, in the exercise of this jurisdiction, the High Court has to impose upon itself a wise self- restraint, so as to avoid unduly interfering in the general administration of the country or working of other high authorities like the Public Service Commission. The wide powers conferred on the High Court naturally carry with it the responsibility to use them with circumspection. It is not the case of the petitioner that the Rules concerned is unconstitutional. Then as long as the authorities do not misapply the law or otherwise misconstrue the limits or their own powers, it is not for the judges to correct.” 11. In that view of the matter, this Court will not be justified in wpc 7801/2008 8 interfering with the decision taken by the Commission to allot the NCA turns from LPSA rank list alone. In R.K. Sabharwal's case {(1995) 2 SCC 745}, the main question considered was about the operation of the roster in respect of SC/ST and BC. It was held that “when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts.” Even though learned counsel for the petitioner sought assistance from the said decision to bolster up his contentions, I am of the view that in the light of the fact that herein the operation of the rank list is governed by Rules 14 to 17 of KS & SSR, the principles stated therein may not apply. The decision of the Apex Court in Ajit Singh's case {(1999) 7 SCC 209} is also not helpful for the plea raised by the petitioner, as the same also is concerned with the roster point in respect of various communities. 12. Therefore, the question turns upon the issue whether the decision by the Commission can be doubted for want of a proper formula. Herein, as rightly pointed out by the learned Standing Counsel for the Commission, wpc 7801/2008 9 the Commission could have refused to allot the NCA turns to be filled up from anyone of the rank list. That would have deprived the chance for appointment to a lot of candidates. There is no scientific formula available for dividing the NCA turns also. Therefore, they have decided to fill up the same exclusively from LPSA ranked list. The same cannot be said to be arbitrary or unreasonable. Since it is a matter of policy, this Court, going by the Full Bench decision in Pulomaja Devi's case (1975 KLT 111 - FB), will not be justified in interfering with the same also. Since the rotation continues to be operated based on the turns also, it cannot be effectively segregated and allotted to the two ranked lists. That will only cause further difficulties for operating the ranked list when a fresh selection is conducted at a later point of time. The writ petition therefore fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/