Kerala High Court
Kerala Public Service Commission vs Soumya.C.A on 26 November, 2019
Author: K. Vinod Chandran
Bench: K.Vinod Chandran, V.G.Arun
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA,
1941
OP(KAT).No.218 OF 2019
AGAINST THE ORDER/JUDGMENT IN OA 2023/2017 DATED 30-01-
2019 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONER:
KERALA PUBLIC SERVICE COMMISSION,
PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS
SECRETARY, KERALA- 695004.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENT/S:
1 SOUMYA.C.A,
W/O.VIPIN MATHEW, VADAKKELIL, SEETHA MOUNT,
PADICHIRA, WAYANAD, KERALA- 673579.
2 AMRITHA E.V.,
AMRITHAKIRANAM, MUYYAM P.O., KUNUMATHOOR,
KANNUR, KERALA- 670142.
3 DHANYA E.P.,
W/O.SAIPRASAD, THATHUPARA HOUSE, ILLI MUKKU,
CHETTIYAMPARAMBA P.O., KELAKAM, KANNUR,
KERALA- 670674.
4 SHIJINA T.C.,
W/O.MANOJ, KUTTIYATTUCHATHOTH HOUSE,
KANJILERI, CHERIKKODU P.O., SREEKANDAPURAM,
KANNUR, KERALA- 670631.
OP(KAT) No.218/2019
:2:
5 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, HEALTH AND FAMILY WELFARE
DEPARTMENT, THIRUVANANTHAPURAM- 695001,
KERALA.
6 THE DIRECTOR OF HOMEOPATHY,
DIRECTORATE OF HOMOEOPATHY,
THIRUVANANTHAPURAM, KERALA- 695001.
7 DISTRICT MEDICAL OFFICER (HOMOEO),
F-BLOCK, 2ND FLOOR, CIVIL STATION, KANNUR-
670002, KERALA.
R1-4 BY ADV. SRI.E.G.GORDEN
R1-4 BY ADV. SRI.S.K.KRISHNAKUMAR
R1-4 BY ADV. SRI.P.NANDAKUMAR (CLT)
OTHER PRESENT:
SRI.ANTONY MUKKATH, SR.GP
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 26.11.2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT) No.218/2019
:3:
CR
JUDGMENT
Dated this 26th day of November, 2019 K. Vinod Chandran, J.
The Kerala Public Service Commission (for brevity 'PSC') is aggrieved with the order of the Tribunal directing the 3rd applicant to be advised in the No Candidate Available (for brevity 'NCA') vacancy of 'OX' turn. The 3rd applicant is an Ezhava candidate belonging to the category of Other Backward Classes (for brevity 'OBC'). The Tribunal directed such advise to the eligible OBC candidate from Annexure A1 rank list on the ground that the NCA vacancy was re-notified four times by the PSC without any candidate being available for appointment. Rule 15(a) of Part II KS &SSR was noticed to find that it only stipulated re-notification of not less than two times when no suitable candidate is available for selection from a community or group of communities.
2. The learned Standing Counsel OP(KAT) No.218/2019 :4: Sri.P.C.Sasidharan would point out that the term 'available' used in Rule 15(a) refers to the very list in which there was no candidate available to a particular community or group. If after re- notification for more than two times, the PSC is unable to appoint a person to a turn specified under the KS&SSR for a particular community or group, then it has to be conceded to an OBC,SC or ST in that order of availability; only from that particular rank list and not from a subsequent rank list.
We extract Rule 15(a) hereunder:-
"Rule 15(a): The integrated cycle combining the rotation in clause (c) of rule 14 and the sub-rotation in sub-rule (2) of rule 17 shall be as specified in the Annexure to this Part. Notwithstanding anything contained in any other provisions of these rules or in the Special Rules if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct OP(KAT) No.218/2019 :5: recruitment exclusively from among that community or group of communities. If after re-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."
3. The post to which the applicants applied is Pharmacist Grade II (Homoeo). Annexure A2 is the rank list in the order of merit, for the District of Kannur. Admittedly NCA vacancies to which the 3rd applicant seeks advise is not one which arose in the rank list Ann:A2 published; wherein the 3rd applicant is also included on merit.
4. We agree with the learned Standing Counsel that Rule 15(a) indicates that even after re-notification carried out to fill up NCA vacancies occurring for reason of non- OP(KAT) No.218/2019 :6: availability of candidates from a community or group, there are still no candidates available, then, the said vacancy could be filled up from the available OBC candidates and in their absence from Scheduled Caste candidates and in their absence from Scheduled Tribe candidates. But this filling up from the alternative groups or communities have to be from that list in which the NCA vacancies occurred. This is the only interpretation possible on a combined reading; of the re-notifications being made possible for filling up those posts for that selection year remaining vacant as NCA and if none even then are available from that community or group, the selection being permitted from the available OBC, SC or ST in that order. Rule 15(a) permits the NCA vacancies of a particular selection year to be filled up from the available candidates from the other reserved communities; which availability has to be sourced from the rank list from which these vacancies arose. OP(KAT) No.218/2019 :7:
5. We are also of the opinion that there is no mandate on the PSC that such re-notification should be made only twice especially since the requirement is of there being at least two re-notifications. This is in consonance with the policy of reservation which otherwise would be frustrated for reason of a particular community being passed over for reason of there being no candidate available in a particular selection. As was pointed out by the learned Standing Counsel, if there is no candidate from a particular community for selection to a post which needs a Graduation or B.Ed, it may not always be possible to get candidates with that qualification if re-notifications are made only twice and within a short period of the earlier rank list. There can be no restriction as to the number of re-notifications, which is the discretion of the PSC since otherwise a particular community may stand to loose a turn for appointment which loss would not also be OP(KAT) No.218/2019 :8: compensated. The decision as to the number of re- notifications would be dependent on various factors like the population strength of the community, the exposure of its members to particular fields or subjects and so on and so forth; which the recruitment agency is best equipped to decide upon.
6. We agree with the learned Standing Counsel that the NCA list prepared in a selection process is for filling up of NCA vacancies arising in the rank list prepared for that particular selection. It cannot lead to NCA vacancies, which arose in an earlier rank list, being filled up from a subsequent rank list. An NCA vacancy occurring has to be necessarily conceded to re-notifications and if no candidate is available after such re-notifications; to the candidates in the category of OBC, SC and ST available in that original list and not in a subsequent rank list. An alternate appointment made from another OP(KAT) No.218/2019 :9: community or group could always be compensated by appointing a member of the community who lost their turn earlier, in the turn of the community who was alternatively chosen at the earlier point; from a subsequent rank list. This accords perfectly with the dynamics and mechanics of reservation which ensures due weight-age to the under privileged, without too much sacrificing of merit. On the reasoning above, we set aside the order of the Tribunal.
O.P(KAT) is allowed, leaving the parties to suffer their respective costs.
Sd/-
K. VINOD CHANDRAN, JUDGE.
Sd/-
V.G. ARUN, JUDGE.
Jma OP(KAT) No.218/2019 : 10 : APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE O.A.NO.2023 OF 2017 WITH ITS ANNEXURES.
EXHIBIT P1(A1): TRUE COPY OF THE NOTIFICATION DATED 30.10.2015 EXHIBIT P1(A2): TRUE COPY OF THE RANK LIST PUBLISHED BY THE 4TH RESPONDENT IN CATEGORY NO.371/15 EXHIBIT P1(A3): TRUE COPY OF THE RANK LIST PUBLISHED BY 4TH RESPONDENT IN CATEGORY NO 456/15 EXHIBIT P2 REPLY STATEMENT FILED ON BEHALF OF THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE M.A. FOR AMENDMENT ALONG WITH THE ANNEXURES.
EXHIBIT P3 (MA3) TRUE COPY OF THE 4TH NCA NOTIFICATION DT 30.12.2016 IN CATEGORY 528/16 TO 531/16 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 30.01.2019 IN O.A.NO.2023 OF 2017.