Kerala High Court
P.K.Varghese vs The Managing Director on 18 November, 2009
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21028 of 2006(C)
1. P.K.VARGHESE, PALATTY HOUSE,
... Petitioner
2. C.D.AUGUSTHY, CHUTHIYIL HOUSE,
3. ANTONY.O.L., OLATTUPURAM HOUSE,
Vs
1. THE MANAGING DIRECTOR,
... Respondent
2. SECRETARY, PUBLIC SERVICE COMMISSION,
3. THE PUBLIC SERVICE COMMISSION
For Petitioner :SRI.O.D.SIVADAS
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :18/11/2009
O R D E R
P.N.RAVINDRAN, J.
---------------------------------------- W.P.(C) No. 21028 of 2006 - C
---------------------------------------- Dated 18th November, 2009 Judgment The petitioners applied for appointment as Assistant Manager/Assistant Superintendent in the Plantation Corporation of Kerala Limited pursuant to a notification issued by the Kerala Public Service Commission, hereinafter referred to as 'the Commission' for short. They were selected and included in Ext.P1 ranked list published on 23.3.2000 as rank Nos.10, 12 and 14. When notwithstanding the publication of the ranked list, the Plantation Corporation of Kerala Limited did not report vacancies to the Commission, the petitioners along with another filed O.P.No.15551 of 2003 in this Court. By Ext.P2 interim order passed on 30.5.2003 in the said original petition, this Court directed the Managing Director of the Plantation Corporation of Kerala Limited to report 22 vacancies of Assistant Manager/Assistant Superintendent to the Commission. This Court however directed that advice need be made only after getting further orders of this Court. The Managing Director accordingly reported 22 vacancies, but, in W.P.(C) No.21028/2006 2 view of the interim order passed by this Court, the Commission did not advice candidates.
2. O.P.No.15551 of 2003 was finally heard and disposed of by Ext.P3 judgment delivered on 24.8.2005. When the original petition came up for hearing, the Plantation Corporation of Kerala Limited contended that there are no vacancies to accommodate the candidates included in the ranked list. They also contended that 13 posts of Assistant Manager/Assistant Superintendent were abolished. The petitioners in the said case contended that without orders of the Government, the posts cannot be abolished. In that view of the matter, this Court directed the Secretary to Government, Agriculture Department to consider the issue with notice to the petitioners and the Managing Director of the Plantation Corporation of Kerala Limited. This Court also directed that if posts have not been abolished and the decision to change the qualifications has also not taken effect, the Government will ensure that the Corporation fills up the vacancies that existed on the date of expiry of the ranked list. This Court also directed the Commission to advise candidates against the vacancies W.P.(C) No.21028/2006 3 reported to it pursuant to the interim order passed by this Court, depending on the decision of the Government. This Court also directed the Government to do the needful in the matter within two months from the date of production of a copy of the judgment by the petitioners therein before the Secretary to Government, Agriculture Department. The Government thereafter filed an application for enlargement of time and the said application was allowed.
3. Pursuant to Ext.P3 judgment, the Plantation Corporation of Kerala Limited informed the Government that the sanctioned strength of Assistant Managers is 18 and that only three persons are in place. The Government thereafter sent Ext.P4 letter dated 18.1.2006 to the petitioners and others informing them that directions have been issued to the Managing Director of the Plantation Corporation of Kerala Limited to fill up vacancies of Assistant Managers that existed on the date of expiry of the ranked list. The ranked list ceased to be in force on 4.2.2004. The Managing Director of the Plantation Corporation of Kerala Limited thereafter sent Ext.P5 letter dated 21.2.2006 to the Commission stating that as on the W.P.(C) No.21028/2006 4 date of expiry of the ranked list, 13 vacancies were in existence, that three candidates have already been appointed, that one among the said three candidates has retired, that only 11 candidates remain to be be advised from the ranked list and that the Corporation has decided to comply with Ext.P3 judgment by appointing all the remaining 11 candidates. The Managing Director accordingly requested the Commission to take further action for appointing the candidates.
4. In the meanwhile, rule 15(a) of the Kerala State and Subordinate Services Rules, 1958 was amended with retrospective effect from 2.2.2006 whereby it was stipulated that if a suitable candidate is not available for selection from any particular community or group of communities, 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 recruitment exclusively from among that community or group of communities. This writ petition was thereupon filed contending that the amendment to rule 15
(a) which came into force with effect from 2.2.2006 cannot apply to the ranked list in question which ceased to be in force W.P.(C) No.21028/2006 5 on 4.2.2004. In this writ petition, the petitioners seek a direction to the Commission to advice them for appointment as Assistant Manager/Assistant Superintendent in the Plantation Corporation of Kerala Limited.
5. A counter affidavit has been filed on behalf of the Commission. Paragraphs 3, 4 and 5 thereof read as follows:
"3. The ranked list for selection to the post of Assistant Manager in Plantation Corporation of Kerala Limited was finalised and brought into force with effect from 23.3.2000. Two (2) candidates were advised on recruitment to the post from the ranked list on 26.7.2000. As per letter No.PD/PA/3726 dated 18.8.2003, the Managing Director has reported 22 (twenty two) vacancies for the post in the prescribed proforma in compliance with the order of this Honourable Court dated 30.5.2003 in C.M.P.No.2573 in O.P.No.15551 of 2003. But the candidates were not advised against the aforesaid vacancies, as the order did not permit the Commission to do so. Later, vide letter dated 21.2.2006, the Managing Director has requested to advise candidates against 11 (eleven) vacancies for the post in compliance with the directions issued by this Honourable Court in judgment dated 24.8.2005 in O.P.No.15551 of 2003 and accordingly the rotation was worked out for the 11 (eleven) vacancies as per Circular No.27/2006 dated 26.6.2006 and 7 candidates were advised on 5.7.2006 leaving four turns kept unfilled as candidates belonging to the particular communities (LC, OBC, SC, E) were not available in the ranked list while working out the rotation.
4. The details of community-wise break up of the candidates advised from the ranked list are as follows:W.P.(C) No.21028/2006 6
OC Upto and including rank No.8
E "
SC "
ST "
M " Rank No.11
OBC " Rank No.8.
5. It is submitted that the Commission is advising the candidates strictly following the relevant rules as to rotation and reservation. It is submitted that during the currency of the ranked list, the Government of Kerala has introduced an amendment to Rule 14 and 15 of the KS & SSR vide G.O.(P) No.7/2006/P & ARD dated 8.3.2006 giving a retrospective operation with effect from 2.2.2006. The Kerala Public Service Commission being a Constitutional Instrumentality, is duty bound to implement the same in the selection process and as such the Commission decided to implement the same in toto vide its Circular No.27/2006 dated 26.6.2006 with effect from the date 2.2.2006 and as per the amended rule of 15 of KS & SSR if a suitable candidate is not available for selection from any particular community or group of communities, such vacancy shall be kept unfilled and notified separately for that community or group of communities and shall be filled by direct recruitment exclusively from among that community or group of communities."
6. The counter affidavit filed on behalf of the Commission discloses that two candidates were advised on 26.7.2000 shortly after the ranked list was published. It is also stated that though pursuant to Ext.P2 interim order, 22 vacancies were reported by the Managing Director of the Corporation, W.P.(C) No.21028/2006 7 advice was not made in view of the directions issued by this Court in Ext.P2 interim order. The Commission has also stated that pursuant to Ext.P5 letter sent by the Managing Director of the Corporation, the rotation was worked out for 11 vacancies, that seven candidates were advised on 5.7.2006 leaving four turns unfilled as candidates belonging to the LC, OBC, SC and E were not available in the ranked list while working out the rotation. The Commission has also stated that in view of the amendment to rule 15 (a), they are bound to fill the vacancies arising as a result of non-availability of candidates belonging to the said categories by direct recruitment exclusively from that group of communities and that the said four vacancies can be filled up only after the vacancies are re-notified. The Commission has further stated that the petitioners could not be advised against the four unfilled vacancies as their turn did not arise when the rotation was worked out.
7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is now well W.P.(C) No.21028/2006 8 settled by the Division Bench decisions of this Court in W.A.Nos. 2420 of 2007 and 843 of 2008 that even in respect of ranked lists published prior to 2.2.2006, rule 15 (a) as amended will have to be applied. It has been held that the law prevailing at the time of filling up of the vacancies has to be applied for advising candidates and not the law prevailing at the time when the ranked list was published. Therefore, though, in the instant case, the ranked list was published and had ceased to be in force before 2.2.2006, rule 15 (a) of the Rules as amended will necessarily have to be applied while advising candidates against the 11 vacancies that remained unfilled as on the date of expiry of the ranked list. It cannot therefore be said that when the Commission decided to re- notify the four vacancies that remained unfilled for want of candidates from communities eligible for reservation, the said action is in any way illegal or arbitrary. It was stated at the Bar that a notification in terms of rule 15 (a) of the Rules as amended notifying the four unfilled vacancies was published in the Kerala Gazette dated 14.2.2008 and that the selection W.P.(C) No.21028/2006 9 process is under way.
8. Under rule 15 (a) of the Kerala State and Subordinate Services Rules, 1958, as amended, the vacancies that remained unfilled for want of candidates belonging to communities eligible for reservation have to be notified at least twice. The stipulation in rule 15 (a) is that the vacancies shall be kept unfilled and notified separately for that community or group of communities for that selection year and thereafter be filled up by direct recruitment exclusively from among that community or group of communities. It is also stipulated that 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 class candidates and in their absence from available scheduled caste candidates and in their absence from available scheduled tribe candidates. Sub-rule (b) of rule 15 stipulates that if a suitable candidate is not available for selection from the group of communities classified as "scheduled castes" in the turn allotted from such W.P.(C) No.21028/2006 10 group, the said group shall be passed over and the post filled up by a suitable candidate from the group of communities classified as "scheduled tribes" and vice versa. Sub- rule ( c) of rule 15 provides that the benefit of the turn forfeited to scheduled castes or scheduled tribes communities by reason of being passed over under sub-rule (b) shall be restored to it at the earliest possible opportunity if a suitable candidate from that particular community or group of communities is available for selection by making adjustment against the claims of scheduled caste or scheduled tribe community that derived the extra benefit by reason of such passing over. The Explanatory Note to Ext.P6 government order by which rule 15 (a) was amended stipulates that the amendment was brought about to ensure adequate representation of backward classes and to avoid loss of representation of communities entitled for reservation. Therefore, in the light of the statutory provisions and the interpretation placed by this Court on the applicability of rule 15 (a), it has to be necessarily held that the four vacancies that remained unfilled for want of candidates W.P.(C) No.21028/2006 11 belonging to communities eligible for reservation cannot be filled up otherwise than in the manner prescribed in rule 15
(a). I am therefore of the opinion that the reliefs prayed for by the petitioners cannot be granted.
I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed.
P.N.RAVINDRAN Judge vaa