Kerala High Court
Muslim Employees Cultural Association ... vs State Of Kerala on 27 November, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942
WP(C)No.26235 OF 2020(S)
PETITIONER:
MUSLIM EMPLOYEES CULTURAL ASSOCIATION (MECA),
REGISTRATION NO.P362/1989, REPRESENTED BY ITS
GENERAL SECRETARY, N.K.ALI, MECA HEAD QUARTERS,
PEEDIAKKAL ROAD, ERNAKULAM NORTH P.O-682018.
BY ADVS.
SHRI.SHERRY J. THOMAS
SMT.THAMANA BAI
SRI.JOEMON ANTONY
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
P AND ARD (PERSONAL AND ADMINISTRATIVE REFORMS
DEPARTMENT), GOVERNMENT SECRETARIAT,
TRIVANDRUM-695001.
2 KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY, KPSC HEAD QUARTERS,
NEAR PATTOM, THULASI HILLS, KERALA,
THIRUVANANTHAPURAM-695004.
SRI. SURIN GEORGE IPE, SC FOR R1,
SRI.P.C.SASIDHARAN, SC FOR R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.26235 OF 2020
:: 2 ::
JUDGMENT
Dated this the 27th day of November 2020 S.MANIKUMAR, C.J.
Petitioner/Muslim Employees Cultural Association (MECA) has filed instant public interest litigation with the following prayers:
"i) call for records pertaining to Ext.P4 and P5 and issue a writ of mandamus directing the 1st respondent to take action on Ext.P6 within a time frame.
ii) issue a writ of mandamus or any other direction, directing the 1 st respondent to complete the proceedings in connection with Ext.P4 and P5 in connection the recommendations for suitable amendments in Rule 15(a) and 15(c) Kerala State and Subordinate Service Rules within a time frame so as to prevent further loss to OBC.
iii) issue a writ of mandamus or any other writ or order, declaring that Rule 15(a) Kerala State and Subordinate Service Rules in Ext.P2 amendment the term "not less than two times" cannot be interpreted in a manner to continue the re-notification unendingly despite of the non-availability of candidates in a particular category.
iv) issue a writ of mandamus or any other writ or order, directing the 2 nd respondent that, if no suitable candidate are available for selection in a particular category from the respective community or group of communites, after two notifications, the selection shall be made from available other backward classes candidates from the mother list."
2. When the matter came up for consideration, Sri.P.C.Sasidharan, learned Standing Counsel appearing for the Kerala Public Service Commission submitted that the issues raised in the instant Public Interest Litigation is squarely covered by a judgment in Kerala Public Service Commission v. Soumya.C.A. and others reported in 2019 (5) KHC 896. Relevant portion of the aforesaid judgment reads thus:
WP(C).No.26235 OF 2020 :: 3 ::
"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 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.
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 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 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. WP(C).No.26235 OF 2020 :: 4 ::
O.P.(KAT) is allowed, leaving the parties to suffer their respective costs."
3. Ext.P4 and P5 referred to by the writ petitioner is extracted hereunder:
Translated version of Ext.P4 reads as under:
"The Kerala State Legislative Assembly Secretariat No.4149/B.C.C.1/2015/Leg.Assly.Secrtrt Trivandrum 19.8.2017Secretary, Mr.M.Aliyarkutty, MECA State President, Peediyakkal Road, Ernakulam North P O Kochi - 682 018 Sriman, Sub: Kerala Legislative Assembly - Petition relating to filling the vacancy of K.S. & S.S.R - N.C.A. of Backward Community Welfare Committee (2016-19) Ref: 1. Your Petition dated 27.7.2015.
2. Letter dated 7.8.2015 send to you from this secretariat.
Inviting your attention to the above reference. It is informed that the Backward community Welfare Committee in their meeting held on 31.5.2017 has considered and accepted the report of the government on your petition.
The important portion of the reply from the government is quoted below for your information.
"The government has decided to make favourable amendment in the K.S.& S.S.R. after examining the instructions submitted by the Public Service Commission to rectify the narrowness and delay in the N.C.A. appointments. A rough notification after examination by the legal authority was given to the Public Service Commission for advice. In this matter, the P.S.C. has made some changes in the instructions given to the government before and has added some new instructions now for amendment. The government can take diplomatic decision on this matter only after elaborate examination of the same. The Government is examining the amending instructions submitted by the P.S.C. and has not arrived on any final decision."
Yours faithfully, R.Venugopal Under Secretary For Secretary"
WP(C).No.26235 OF 2020 :: 5 ::
Translated versions of Ext.P5 reads as under:
"AV(3)4354/15/GW/DY Report on the complaint submitted by Muslim Employees Cultural Association before the Kerala State Minority Commission Public Service Commission completes the selection process by complying the terms under Part II Rule 14-17 of Kerala State & Subordinate Services Rules 1958. The Hon'ble Commission had issued an order (05.04.2006) Agenda 8) directing to put in force the terms of amendment from the date of government order (GO(P)No.7/6/P&ARD dated 8/3/2006) amending the reservation Rule (KS & SSR Rule 14,15) on the basis of Justice Narendran Commission report. A circular No.27/2006 dated 26.6.2006 has been issued in this regard. The appointment of reserved community is done complying the said order.
The KS & SSR Rule 15(a) states that - if after re-notification, repeatedly for not less than two times, no suitable candidate is available 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. Though it is stated that if the respective community is not available next opportunity for selection is eligible candidates from BC, SC,ST, no procedure is mentioned in the rule in case of non-availability of candidates for selection. Though several letters have been sent to the government for amending the rule, no order has been received in this regard till date.
Though 5 times candidates of the reservation quota are included in Supplementary list, sometimes there is lack of OBC, SC, ST candidates in the Executive Super Specialty vacancies. On such occasions NCA publishes notification twice. When there is non-availability of a particular community and there is non- availability of OBC, SC and ST in the mother list 3-4 notifications are published by NCA to fill in the vacancy. It is informed that since no reply has been received from the Government in amending Rule 15(a) inspite of several approaches, more than 2 notification are to be published for filling the vacancy.
Bindu V.J. Joint Secretary Kerala Public Service Commission For the Secretary"
4. Sri.P.C.Sasidharan, learned Standing Counsel appearing for the Kerala Public Service Commission submitted that the second prayer sought for by the writ petitioner is to legislate, in the manner as suggested by the petitioner and WP(C).No.26235 OF 2020 :: 6 ::
the same is not maintainable. Extension of time and due notification for appointment is with a laudable object to provide appointments to the Scheduled Caste/Scheduled Tribe/Other Backward Classes in the society.
Having regard to the judgment of the Division Bench of this court in Kerala Public Service Commission's case (supra), Mr.Sherry J. Thomas, learned counsel for the petitioner seeks permission to withdraw the writ petition. Permission sought for is granted and the writ petition is dismissed as withdrawn.
SD/-
S.MANIKUMAR CHIEF JUSTICE SD/-
SHAJI P. CHALY JUDGE jes WP(C).No.26235 OF 2020 :: 7 ::
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER.
EXHIBIT P1(A) THE TRUE COPY OF THE TRANSLATION OF EXT.P1.
EXHIBIT P2 THE TRUE COPY OF THE NOTIFICATION ISSUED BY THE GOVT. DATED 08.03.2006.
EXHIBIT P3 THE TRUE COPY OF THE CIRCULAR ISSUED BY THE 2ND RESPONDENT KERALA PUBLIC SERVICE COMMISSION DATED 26.06.2006. EXHIBIT P4 THE TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO PETITIONER DATED 19.08.2017.
EXHIBIT P4(A) THE TRUE COPY OF THE TRANSLATION OF EXT.P4. EXHIBIT P5 THE TRUE COPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT DATED 06.12.2017.
EXHIBIT P5(A) THE TRUE COPY OF THE TRANSLATION OF EXT.P5. EXHIBIT P6 THE TRUE COPY OF THE LETTER FILED BY THE PETITIONER BEFORE THE CHIEF SECRETARY OF KERALA DATED 21.09.2020. EXHIBIT P6(A) THE TRUE COPY OF THE TRANSLATION OF EXT.P6. EXHIBIT P6(B) THE TRUE COPY OF POSTAL RECEIPT DATED 24.09.2020. EXHIBIT P6(C) THE TRUE COPY OF ACKNOWLEDGMENT CARD DATED 24.09.2020. EXHIBIT P7 THE TRUE COPY OF THE NINTH NCA NOTIFICATION BY 2ND RESPONDENT TILL 30.09.2020 FOR THE POST OF ASSISTANT PROFESSOR IN ARABIC.
EXHIBIT P8 THE TRUE COPY OF THE THIRD NCA NOTIFICATION ISSUED BY 2ND RESPONDENT DATED 25.08.2020 FOR THE POST OF VETERINARY SURGEON GRADE II.
EXHIBIT P9 THE TRUE COPY OF THE FOURTH NCA NOTIFICATION ISSUED BY THE 2ND RESPONDENT DATED 25.08.2020. FOR THE POST OF CARETAKER (FEMALE).
// TRUE COPY // P.S. TO JUDGE