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1974 DIGILAW 257 (KER)

PULOMAJA DEVI v. GOPINATHAN NAIR

1974-12-05

CHANDRASEKHARA MENON, K.BASKARAN, V.P.GOPALAN NAMBIYAR

body1974
Judgment :- Bhaskaran J. 1. These Writ Appeals are directed against the judgment of a learned judge of this Court. The Kerala Public Service Commission invited applications for selection to the post of Sub Magistrates in the Kerala Subordinate Magisterial Service. Eight candidates had to be selected by direct recruitment from the Bar, and eight by transfer. We are not concerned in these appeals with the latter mode of recruitment, but only with the former, viz. those recruited directly from the Bar. After the interview conducted by the Commission, a rank-list (copy Ex. P2) was prepared by the Commission. Smt. Pulomaja Devi, the third Respondent in the writ petition out of which these appeals arise, and the appellant in Writ Appeal No. 373 of 1974, was No. 8 in the said list. She belongs to the Ezhava Community, one of the 'Other Backward Classes', recognised as such for purposes of Art.15(4) and 16(4) of the Constitution. The 3rd respondent in these appeals Sri. Gopinathan Nair, a member of one of the Forward Communities or'Classes' and the petitioner in the aforesaid writ petition, was ranked No. 5. No.1 in Ext. P2 was an Ezhava; No. 2 was a member of a Forward Community; No. 3 was an Ezhava; No. 4 was a member of an'Other Backward Class'; and No. 24 was a member of the Scheduled Caste. It is really unnecessary to notice the names of these; and the others may be left out of the picture for the purpose of these appeals. Ext. P3 is a copy of the advice-list of the Commission. No.1 in Ext. 2 retained his rank as No.1 in Ext. P3; No. 3 in Ext. 2 (Jnana Sudarsanan) became No. 2 in Ext. P3; No. 2 in Ext. P2 (L. Ramachandran Nair) became No. 3 in Ext. P3. No. 24 in Ex. P2, the Scheduled Caste candidate (E. D. Thangachan), came in as No. 4 in Ext. P3. No. 8 in Ext. P2 (Smt. Pulomaja Devi) came in as No. 5 in Ext. P3. We are not really concerned with the transmutation, if any, of the ranks of the other candidates. The 3rd respondent herein, who was No. 5 in Ext. P2 was aggrieved by the selection of No. 8 in that list, and filed O.P. 2491 of 1974. The same was allowed by a learned judge of this Court to the extent of quashing Ext. The 3rd respondent herein, who was No. 5 in Ext. P2 was aggrieved by the selection of No. 8 in that list, and filed O.P. 2491 of 1974. The same was allowed by a learned judge of this Court to the extent of quashing Ext. P3 in so far as it related to the inclusion of the 3rd respondent, in that list. The learned judge also quashed the consequential appointment of the said respondent by Ext. P4 order, and directed the Public Service Commission to draw up a fresh list in the manner indicated by the learned judge and forward the same to the 1st respondent (the Government) within three months from the date of the order. The 1st respondent was directed to make appointments from the list thus forwarded. Writ Appeal No. 373 of 1974 is by the 3rd respondent in the O.P., and Writ Appeal No. 431 of 1974 is by the Public Service Commission. 2. The question raised is in regard to the modus operandi of making the selection on the basis of R.14 and 17 of the Kerala State and Subordinate Service Rules, and in conformity with Art.14 and 16 of the Constitution. These rules enjoin, what is commonly referred to as the principle of communal reservation or rotation and sub-rotation. The material portion of R.14 of the Kerala State and Subordinate Service Rules reads thus: "14. Reservation of appointments. Where the special rules lay down that the principle of reservation of appointments shall apply to any service, class or category; or where in the case of any service, class or category for which no special rules have been issued, the Government have by notification in the Gazette declared that the principle of reservation of appointments shall apply to such service, class or category, appointments by direct recruitment to such service, class or category shall be made on the following basis: (a) The unit of appointment for the purpose of this rule shall be 20, of which two shall be reserved for scheduled castes and scheduled tribes and 8 shall be reserved for the other Backward Classes and the remaining 10 shall be filled on the basis of merit. (b) The claims of members of scheduled castes and scheduled tribes and Other Backward Classes shall also be considered for the appointments which shall be filled on the basis of merit and where a candidate belonging to a Scheduled Caste, Scheduled Tribe or Other Backward Class is selected on the basis of merit, the number of posts reserved for scheduled castes, scheduled tribes or for Other Backward Classes as the cases may be, shall not in any way be affected. (c) Appointments under this rule shall be made in the order of rotation specified below in every cycle of 20 vacancies. 1. Open competition 2. Other Backward Classes 8. Open competition 4. Scheduled Castes and Scheduled Tribes 5. Open competition 6. Other Backward Classes 7. Open competition 8. Other Backward Classes 9. Open competition 10. Other Backward Classes 11. Open competition 12. Scheduled Castes and Scheduled Tribes 13. Open competition 14. Other Backward Classes 15. Open competition 16. Other Backward Classes 17. Open competition 18. Other Backward Classes 19. Open competition 20. Other Backward Classes." Rule 17 provides for sub-rotation among the 'Other Backward Classes', regulating the turn of the sub classes for the quota reserved for the 'Other Backward Classes'. It is unnecessary to extract the rule. 3. On first impression, it strikes us that two different modes of working out or implementing the principle sanctioned by the Rules are reasonable and permissible, where the selections have to alternate between the merit pool and the reserved quota. One way would be to shuffle or screen the candidates belonging to both the categories, merit pool and reserved quota, select the best on the basis of merit by open competition and award him rank No. 1; next, repeat the process with only the candidates belonging to the 'reserved quota' and put down the best among them, as eligible for place No. 2, which has to be filled in on the basis of reservation; next, in a similar fashion; repeat the process, alternating between the merit pool and the reserved quota each time a selection has to be made by open competition or by reservation. The other method is to fill up the odd number of vacancies beginning from Vacancy No.1 on the basis of merit and open competition, and the even numbers beginning with No. 2, on the basis of reservation. The other method is to fill up the odd number of vacancies beginning from Vacancy No.1 on the basis of merit and open competition, and the even numbers beginning with No. 2, on the basis of reservation. This latter method seems to us to be sanctioned by R.14 (a) of the Kerala State and Subordinate Service Rules. It seems also to have the sanction of an order No. 52-15238/50/CB. dated 26 2 1953 promulgated by the Travancore-Cochin Government prior to the passing of the State and Subordinate Service Rules, which the Public Service Commission seems or claims to have followed even after the promulgation of the Rules. Whichever be the method followed, the mandate of R.14 (b) is clear and specific to the effect that whatever be the number of seats that a 'backward class' is able to obtain on the basis of merit or open competition, shall not prejudice its claim to the legitimate quota on the basis of reservation. The learned judge has summed up in Para.3 and 4 as follows: "3. To me it appears that there is no difficulty to apply R.14 to the rank list. According to the rotation specified in clause (c) of R.14, the first appointment must go on "Open competition". Rank No.1 is an Ezhava; and it goes to him. The second place must go to "Other Backward Classes". There is an apportionment of the quota allotted to these classes in R.17. According to that apportionment, that place must go to an Ezhava. There can be no dispute that the candidate for that place must be chosen on the basis of merit from that community. Then that place goes to No. 3 in the rank list, who is an Ezhava having the highest rank after No. 1. Then I come to the third place which is open competition. No.1 in the rank list has got the first appointment in this quota. So the next appointment in that quota must go to No. 2 in the rank list. Then I come to the fourth place, belonging to a Scheduled Caste or Scheduled Tribe. No. 24 in the rank list is the only Scheduled Caste candidate; and he must get it. Then there is the fifth place, which is Open Competition. Nos.1, 2 and 3 have already got places. So No.4 in the rank list must have it. Then I come to the fourth place, belonging to a Scheduled Caste or Scheduled Tribe. No. 24 in the rank list is the only Scheduled Caste candidate; and he must get it. Then there is the fifth place, which is Open Competition. Nos.1, 2 and 3 have already got places. So No.4 in the rank list must have it. Then I come to the sixth place, which is an Other Backward Class allotted to the Muslims. The candidate having the highest rank in that community is No. 9 in the rank list; and he must get it. Then I come to the seventh place, which is an Open Competition. Nos. 1,2, 3 and 4 have been already provided for. So it must go to No. 5 in the rank list, who is the petitioner in this case. The next is the eighth place, which is the last place. That is an Other Backward Class allotted to the Latin Catholics S.I.U.C. and Anglo-Indians. The person having the highest rank in this group is No. 6 in the rank list; and it must go to him. Summing up the position, the eight places must go according to the order of rotation provided in R.14 to Nos. 1, 3, 2, 24, 4, 9, 5 and 6 in the rank list. 4. However, the Commission has included No. 8 in the rank list instead of No. 5, and has allotted a fairly high rank to that candidate in the advice list. This result is said to have been achieved by filling up the whole quota of open competition candidates first, and then filling up the remaining quota according to the rotation provided in R.14. There is no warranty for applying such a process. As I read it, R.14 does not admit any doubt or difficulty for application. The appointments must go in the order of rotation given in that rule. The only way and the right way of implementing it is the manner which I have indicated above. The rules have made certain amount of reservation for Backward Communities and Scheduled Castes and Tribes and has also prescribed the rotation in which appointments to existing vacancies have to be made. It is not then permissible to resort to any subterfuge, and enlarge the quota allotted to any particular community by such methods. 4. The rules have made certain amount of reservation for Backward Communities and Scheduled Castes and Tribes and has also prescribed the rotation in which appointments to existing vacancies have to be made. It is not then permissible to resort to any subterfuge, and enlarge the quota allotted to any particular community by such methods. 4. We think, with respect, that the learned judge's view discloses certain serious infirmities. In the first place, we are by no means sure that the way in which the learned judge suggested the practical working out of R.14 is the one and only way in which it can be worked out in practice. It appears to us that the mode of implementation of the Rule followed by the Public Service Commission and advocated on its behalf by its Counsel at the hearing, and endorsed by the learned Advocate-General whom we had the advantage of hearing in these appeals, and the Counsel for the appellant in W. A. No. 373 of 1974, is certainly a reasonable and plausible view. And where two modes of interpretation of the Rule or its practical working are plausible, we think, the learned judge was wrong in having 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. On this short ground, we think the learned judge was wrong in having interfered under Art.226 of the Constitution and in having allowed the writ petition. 5. On the merits too, we venture to think that the mode of construction of the Rule sponsored by the Public Service Commission and by the learned Advocate-General, and the Counsel for the appellant in Writ Appeal No. 373 of 1974 is the more reasonable and proper one. R.14 and 17 are meant to ensure fair representation in service to the Backward Classes and to the Scheduled Castes and Scheduled Tribes. The principle is well-accepted, and has been statutorily embodied in R.14(b) of the Kerala State, and Subordinate Service Rules, that the number of seats secured by a backward class on the basis of open competition will not in any way prejudicially affect its claim to its legitimate quota on the basis of reservation. The principle is well-accepted, and has been statutorily embodied in R.14(b) of the Kerala State, and Subordinate Service Rules, that the number of seats secured by a backward class on the basis of open competition will not in any way prejudicially affect its claim to its legitimate quota on the basis of reservation. The arrangement and disposition of candidates inter se among the 'backward classes' by the combined operation of meritwise selection and communal reservation, is a matter, if at all for the 'backward classes' and members of those classes, and not a matter for complaint by the 3rd respondent before us, a member of one of the 'forward' classes. There appears therefore to be neither merit nor logic in the complaint of the 3rd respondent that the mode of selection envisaged by the Commission would place No. 5 in Ext. P2 (Ezhava) above No. 3 in the said list (another Ezhava) who has earned that place by open competition. And were such complaint to be made by one of the backward classes perhaps one effective answer might be although we express no final opinion that the anomaly, if such it be, is a necessary result of the mandate by the statutory Rule to make selections alternatively on the basis of merit and reservation. 6. We think too, that consistent with the purpose and object of R.14 (b), the 'backward class' and its members are entitled to claim the best of both the worlds on the basis of merit and of reservation. To oblige a candidate of a 'backward class' who is entitled to selection on basis of merit, although to a lower rank, to take a higher rank on basis of reservation, may promote the chances of the individual, but might, in conceivable cases, deprive the "class" of its legitimate due. In this case, for instance, on the view of the learned Judge, No. 3 in Ext. P2 who is anyway entitled to be selected on the basis of merit, is asked to take the place No. 2 on the basis of reservation; with the result, that the chance of another member of the backward classes to take place No. 2 on basis of reservation and leave No. 3 to come in on his merit, is lost. We do not think therefore that this mode of selection would advance the claim of the 'Backward Classes'. We do not think therefore that this mode of selection would advance the claim of the 'Backward Classes'. In this view, again, we are of the opinion that adequate justice to the Backward Class is better secured by adopting the process of selection put forward on behalf of the Kerala Public Service Commission which was endorsed by the learned Advocate-General. 7. There is however one aspect of the matter which caused us some concern. Having drawn up the advice-list, after applying R.14 and 17 of the Kerala State and Subordinate Service Rules, in the way indicated, we are unable to see what power the Public Service Commission has to direct that candidate No. 3 on the basis of merit and open competition in Ext. P2 shall be pushed up. to rank No. 2 meant for a reserved quota candidate; and candidate No. 8 (in Ext. P2) who should take place No. 2, on the basis of reservation, be put down as No. 3, in the advice-list Ext. P3. R.27 of the Kerala State and Subordinate Service Rules, relied on for the Commission, is inapplicable; and cannot give the Commission this power; and the order of the Travancore-Cochin Government, which seems to have envisaged or sanctioned such a power, cannot certainly be relied on in support of action taken after the formation of the Kerala State and the promulgation of the Kerala State and Subordinate Service Rules, 1958, and the Rules regulating the powers and procedure of the Public Service Commission. This is a matter which, we trust, will receive due attention from the Public Service Commission and the authorities concerned. Whatever it be, once places two and three are to be filled up by Ezhavas, one on basis of merit, and the other on basis of reservation, the inter se seniority as between them might well be a matter of internecine wrangle between them; but cannot be a matter of complaint at the instance of the writ petitioner (3rd respondent in these appeals). 8. We allow these appeals, set aside the judgment of the learned judge and direct that O. P. No. 2491 of 1974 will stand dismissed. We make no order as to costs. Chandrasekhara Menon, J.: I agree that the appeal should be allowed. 8. We allow these appeals, set aside the judgment of the learned judge and direct that O. P. No. 2491 of 1974 will stand dismissed. We make no order as to costs. Chandrasekhara Menon, J.: I agree that the appeal should be allowed. And this conclusion is on the sole ground that it is not possible to say that the mode of implementation of R.14 followed by the Public Service Commission is an unreasonable one. It is a plausible method of working out the Rule on its wording. 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 of the Constitution of India. 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 carries with it the responsibility to use them with circumspection. It is not the case of the petitioner in the original petition that the Rule concerned in unconstitutional. Then as long as the authorities do not misapply the law or otherwise misconstrue the limits of their own powers, it is not for the judges to correct see De Smith Judicial Review of Administrative Action, 2nd Edn., p. 28. At the same time I would like to make it clear that I do not subscribe to the view that the mode of construction of the rule put forth by the Public Service Commission and by the learned Advocate-General as well as by the counsel for the appellant in Writ Appeal No. 373 of 1974 is the more reasonable and proper one. On the other hand, I think the ;working put of the rule as suggested by the learned judge in his judgment, under appeal, is more rational and equitable one. On the other hand, I think the ;working put of the rule as suggested by the learned judge in his judgment, under appeal, is more rational and equitable one. It is also consistent with R.14. The right which the Scheduled Castes and Scheduled Tribes and other Backward classes have as per the Rule is that whatever be the number of seats that a backward class is able to obtain on the basis of merit or open competition, shall not prejudice their claim to the legitimate quota on the basis of reservation. This right is not in any way affected if the mode of working out of the Rule as pointed out in the judgment, under appeal is followed. The guarantee under Art.16 (1) of the Constitution of India is for ensuring equality of opportunity for all its citizens relating to employment and to appointment to any office under the State. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. Clause.4 or Art.16 which enables reservation for backward communities is by way of proviso or an exception to clause (1). The exception cannot nullify or destroy the main provision' The over-riding effect of clause (4) on clauses (1) and (2) of Art.16 could only extend to the making of a reasonable number of reservation of appointments and posts in certain circumstances (see Devadasan v. Union of India (AIR. 1964 S. C. 179). Therefore, I cannot agree with the criticism laid against the view of the learned judge that to oblige a candidate of 'backward' class who is entitled to selection on the basis of merit although to a lower rank to take a higher rank on the basis of reservation might in conceivable cases deprive the class of its legitimate due. What is the legitimate due of such class has to be understood from Art.16. However, for the reasons given earlier in my judgment, the appeals have to be allowed and the O. P. dismissed.