Nair Service Society vs T.Beermasthan & Ors

2. These appeals have been filed against the judgment dated 23.5.2008 passed by the Division Bench of the Kerala High Court in WP No. 1697 of 2007. The appellant society in the first of the appeals is an incorporated body rendering social service. It purports to espouse the cause of merit in appointments in government service and public sector undertakings. The appellant in the second of the appeals (not a party before the High Court) is a general category candidate whose chance of selection and appointment as a medical officer was adversely affected by the decision of the High Court. The appellant in the third of the appeals is the Kerala Public Service Commission, which is entrusted the task of executing the recruitment and selection process. The appellants in the fourth of the appeals (not parties before the High Court) are candidates included in the rank list prepared and published by PSC for different posts in various departments. According to them they would have been advised and appointed but for the interpretation placed by the High Court in its decision in WA No. 1697 of 2008.

5. The brief facts of the case are that the Kerala Public Commission invited applications for appointment to the post of Medical Officer (Indian System of Medicine) under the Kerala Government, by the notification published in the Kerala Gazette dated 14.10.2003. The rank list was published on 31.12.2005. The writ petitioners were candidates and included in the supplementary list of Muslims at rank Nos.17 and 18. According to the writ petitioners, 250 candidates were advised, out of which 198 were from the main list and 52 from the supplementary lists. In that process, only 28 Muslim candidates were advised. It is alleged that going by Rules 14 to 17 in Part II of the Rules, 30 candidates should have been advised from the Muslim community. If two more Muslim candidates had been advised, the writ petitioners would have got appointment. Feeling aggrieved by the omission of the P.S.C to advise them, the Writ Petition was filed by the two writ petitioners, seeking the following reliefs: 4

6. According to the writ petitioners, rank Nos.28, 50, 82 and 111 in the main list were Muslims and their turn had arisen under the open competition turn. However, they were advised for appointment in the reserved vacancies and to that extent Muslim candidates in the supplementary list lost their chances.

7. According to the Public Service Commission, the candidates were advised strictly in accordance with the Rules. The rank list was published by the P.S.C. on 31.12.2005 by including 252 candidates from the main list and 107 from the supplementary lists of various reservation candidates. Upto 24.11.2006, 268 candidates were advised from the ranked list against the fresh vacancies and the non-joining duty vacancies reported by the appointing authority. It was also stated that the last open competition candidate advised was rank No. 213 and the last Ezhava candidate advised was rank No.226 in the main list. It was further stated that the last Muslim 5 candidate advised was rank No.12 in the supplementary list for Muslims. According to the P.S.C., the turn of the writ petitioners did not arise for advice, Rank No.8, who belongs to the Muslim community was advised under the open competition turn, and other Muslim candidates included in the main list were advised under the Muslim reservation turn.

8. The P.S.C filed an additional counter affidavit dated 1.3.2007 before the High Court. In the said counter affidavit, the details of the rotation were given. It was stated therein that the recruitment to the post of Medical Officer (ISM) ended at Main Rotation VIII 39 OC. For the present selection, the rotation started at MR VIII 40 OBC and ended at MR XI 7 OC while working in the rotation for the 267 fresh vacancies reported. As on 13.2.2007, 287 candidates were advised including 20 NJD vacancies. The details of Muslim candidates advised are also given. Rank No.8, who was a Muslim candidate, was advised under the open competition turn. The last Muslim candidate advised from the main list was rank No.252. From the supplementary list, 14 Muslim candidates were advised. The P.S.C emphatically refuted the contention of the writ petitioners that rank Nos. 28, 50, 82 and 111 should have been advised under the open competition turn. It is asserted that the advices were made strictly in accordance with Rules 14 to 17 of the Rules.

notification, repeatedly for not less than two times, no suitable candidate is available for selection from the respective community or group of communities, the selection shall be made from available other Backward Classes candidates. In the absence of Other Backward Classes candidates, the selection shall be made from available Scheduled Castes candidates and in their absence, the selection shall be made from available Scheduled Tribes candidates.

30. In our opinion, Rule 14(b) merely says that the members of OBC and SC/ST shall be considered for appointment in the Open Competition category, if found meritorious, and such appointment shall not affect the number of seats reserved for the OBCs and SC/ST. In our opinion, Rule 14

40. With respect we are unable to agree with interpretation of Rules 14 to 17 given by the High Court in the impugned judgment.

49. For the reasons given above the appeal is allowed, the impugned judgment of the Division Bench of the Kerala High Court as well as of the learned Single Judge, are set aside and the Writ Petitions are dismissed. There shall be no order as to costs.

CA No..........of 2009 [@ SLP(Civil) No. 21139 of 2008]

51. Leave granted. These appeals are filed by P.S.C., being aggrieved by the common order dated 11.11.2008 of a learned Single Judge disposing of WP(C) No. 25077, 26089, 24158, 28435 and 16599/2008 (filed by some candidates after the rank lists were published and advices were made) with a direction to the P.S.C. to apply the principles laid down in the judgment dated 23.5.2008 of the Division Bench in WA No. 1697/2007 to all advices made by P.S.C. on or after 23.5.2008 in respect of bulk vacancies exceeding 20 in number reported to it in a given requisition (or where the requisition received from the appointing authority on a given day exceeds 20 33 vacancies). Following our decision in the Civil Appeals arising from WA No. 1697/2007, these appeals are allowed and the writ petitions are dismissed. No costs.

..............................J (R.V. Raveendran) ..............................J (Markandey Katju) New Delhi;

30th March, 2009