Benoy v. Public Service Commission — 1997 DIGILAW 291 (KER)

Judgment :- K.G. Balakrishnan, J. The Kerala Public Service Commission (for short 'the P. S. C.') invited applications for appointment to the post of Sub Engineer (Civil) in the Kerala State Electricity Board. After the process of selection, a ranked list was published on 4.7.1994. The ranked list consisted of a main list and in order to make available suitable candidates for the purpose of reservation, as envisaged in Rr.14 to 17 of the Kerala State and Subordinate Service Rules, supplementary lists of Muslim, Ezhava, OBC, Scheduled Caste/Scheduled ibe and other communities who are eligible to get reservation were prepared. The main list contained 177 candidates. Initially, the K.S.E. Board reported 150 vacancies and they were advised by the PSC on 20.8.1994 for appointment. The Board reported another 100 vacancies on 21.12.1994. The PSC could issue advice memos of only 89 candidates for appointment as the main list had exhausted by that time. Out of 89 candidates, there were 20 persons who did not join duty and they were treated as non joining duty (NJ.D.) vacancies. Out of 20 N.J.D. vacancies, 11 belongs to open competition category, 3 Scheduled Castes, 3 Ezhava and 3 Muslims. The petitioners in O.P. Nos. 11701/96 (W.A.No. 582/97),12305/95 (W.A. No. 583/97),18154& 18176/95 and 357/ 97 claimed that they were entitled to be appointed against the N.J.D. vacancies that fell vacant consequent on the non joining of Muslim and Ezhava candidates. These petitioners' names are included in the supplementary list. 2. In O.P. No. 18409/95 the petitioner was selected by the P.S.C. for appointment as L.P.S. A. and her name was included in the Muslim supplementary list as rank No. 199. She also claimed appointment against the N.J.D. vacancies. All the candidates-in the main list were given advice memo and the main list expired on 25.8.1994. Therefore, the P.S.C. contended that the petitioners herein are not entitled to get appointment against the N.J.D. vacancies. 3. The sole question that arises for consideration is whether the persons who are included in the supplementary lists are entitled to get appointment when once the main list is exhausted. It is conceded by both sides that the supplementary lists are only to supplement the candidates to the main list and both main list and supplementary lists have to be implemented simultaneously depending upon the vacancies that arise. It is conceded by both sides that the supplementary lists are only to supplement the candidates to the main list and both main list and supplementary lists have to be implemented simultaneously depending upon the vacancies that arise. Generally speaking, once the main list is exhausted or expired, supplementary lists have no legs to stand and they should also cease to have any operation. But in the present case, the dispute is whether the persons who are included in the supplementary list are entitled to get appointment to the N. J.D. vacancies that fell vacant consequent on the failure of some candidates to join duty. The stand taken by the P.S.C. is that once the main list is exhausted or expired even for the N.J.D. vacancies the persons included in the supplementary list have no right to claim as it will tilt the balance of reservation to the disadvantage of general candidates, whereas the learned counsel for the petitioners contended that the NJ.D. vacancies have to be treated as the vacancies that arose along with the main list and any appointment to these vacancies is to be treated as filling up of gaps that occurred in the main list. 4. Rr.14 to 17 of K.S.& S.S.R. are the provisions governing the principles of reservation followed in the matter of appointment to Government service. For the purpose of these Rules, generally a unit of 20 is taken and out 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. It is also made clear that 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 these classes shall not in any way be affected. Under R.14(c), how the order of rotation shall be worked out is mentioned. Under R.14(c), how the order of rotation shall be worked out is mentioned. Under R.15 it is stated that if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, the said community or group shall be passed over and the post shall be filled up by a suitable candidate from the community or group of communities immediately next to the passed over community or group in the said Annexure in the order of rotation. In the Annexure to R.15 for direct recruitment to posts other than those included in the Kerala Last Grade Service a 100 point roster is given. It is further stated under R.15 that the benefit of the turn forfeited to a particular community or to a group of community by reason of it being passed over the same shall be restored to it, at the earliest possible opportunity. If a suitable candidate from the particular community or group is available for selection by making adjustment against the claims of the particular community or group that derived the extra benefit by reason of such passing over. A proviso is also added that in no year reservations including carrying forward vacancies to a category of post shall exceed 50% of the total number of vacancies for which selection by direct recruitment to that category is resorted to in that year. In a note appended to R.15 it is further stated that for purposes of application of the proviso to R.15 limiting the number of vacancies to be reserved in a year as 50% in respect of recruitment to a category of post, the period of one year shall commence on and from the day on which the ranked list of candidates prepared by the Commission in respect of that post comes insto force. For the effective implementation of the principles of reservation the P.S.C. prepares a supplementary list also. 5. In an earlier decision, a question arose as to whether a candidate, for whom an advice memo is issued, fails to join duty, the turn" must go to the candidate of the same community or such vacancy to be filled up by persons entitled to get the next turn in the roster. 5. In an earlier decision, a question arose as to whether a candidate, for whom an advice memo is issued, fails to join duty, the turn" must go to the candidate of the same community or such vacancy to be filled up by persons entitled to get the next turn in the roster. It was held by the Division Bench of this Court that once the candidate is advised against a reservation quota and if only he joins duty the mandate of rules of reservation is followed. It was held that if he does not join duty such vacancy is to be filled up by a candidate belonging to some category. It was so held in Narayanan v. State of Kerala & Ors. (1981 KLN 128). Here the second post in the roster was due to a member of the Scheduled Tribe. A candidate was advised, but she did not join. The petitioner therein contended that he being the next candidate in the Scheduled Tribe list was entitled to get that appointment. But the P.S.C. took the view that it must have been then treated as a vacancy available to be filled up afresh. But the stand taken by the P.S.C. was held to be not proper and this Court held as follows: "The mere fact that the candidate advised is not available for appointment should not result in the class to which the person advised belongs losing such rights when eligible candidates are available for appointment to such posts. Otherwise it would be a reservation in form only and not in substance. When once a person advised is appointed whether subsequently he continues or not in that post is another matter. But in the matter of appointment to the posts the principle of reservation would have to be adhered to in such a case. Otherwise it would be a reservation in form only and not in substance. When once a person advised is appointed whether subsequently he continues or not in that post is another matter. But in the matter of appointment to the posts the principle of reservation would have to be adhered to in such a case. To treat the reservation as applicable at the stage of ad vice and not at the stage of appointment may not in circumstances where many of the people advised may not be able to join because they are already appointed, satisfy the rule of reservation in its true form and spirit as envisaged." Now, the consistent practice of the P.S.C. is that whenever there is a candidate belonging to a particular category was advised and later failed to join duty, that vacancy is treated as N.J.D. vacancy and is filled up by the candidate belonging to the same category. If any backlog in N.J.D. vacancies, they are filled up first and then only the further rotation is started. The above practice is in accordance with the observations made by the Supreme Court in R.K. Sabharwal v. State of Punjab (AIR 1995 SC 1371). That was a matter relating to the promotion of the Engineers in the Irrigation Department of the State of Punjab. Even though it is a question of promotion, the Supreme Court pointed out how the principle of reservation should be worked out while operating a roster. It was held that: "The roster is implemented in the form of running account from year to year. The purpose of running account' is to make sure that the Scheduled Caste/Scheduled Tribes and Backward Classes get their percentage of reserved posts. The concept of 'running account' in the impugned instructions has to be so interpreted that it does not result in excessive reservation ... Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/ promotees occupy the posts meant for them in the roster. The operation of the roster and the 'running account'must come to an end thereafter." Eventhough the above observation is made in the case of promotion and posting, it gives a clear indication as to how the appointment is to be made on the basis of roster. 6. The operation of the roster and the 'running account'must come to an end thereafter." Eventhough the above observation is made in the case of promotion and posting, it gives a clear indication as to how the appointment is to be made on the basis of roster. 6. In a decision repotted in Surendran v. Kerala Water Authority (1992 (2) KLT 771) a similar question arose and Sreedharan, J. (as he then was) held that for advising candidates from the supplementary list, existence of main list is not at all relevant. That was a case where the Public Service Commission prepared a ranked list for appointment of Operator in Kerala Water Authority. The main list contained 21 persons. 37 vacancies were reported. As sufficient number of candidates were not available to be advised against these 37 vacancies, advice memos were issued to 24 candidates. Candidates upto rank No. 5 in the supplementary list of Ezhava were also advised. Candidates for 13 vacancies could not be advised as mere was no candidate left in the main list for filing up the next open competition turn. The third vacancy was to be filled up by Ezhava candidate. That resultant vacancy could be filed up by advising candidates only from the supplementary list. The Public Service Commission refused to issue advice memo from the supplementary list as by the time the main list had exhausted. In paragraphs 4 and 5 of the judgment was stated that the non joining duty vacancies resulting from the failure of candidates belonging to reserved community in joining duty must be filled up by advising candidates from the supplementary lists. Otherwise the principles contained in Rr.14 to 17 of the Kerala State and Subordinate Services Rules will be defeated. To make that principle effective, for filling up non joining duty vacancies, candidates ranked in that supplementary list should have been advised. In Para 4 it was stated thus: "for complying with the principles contained in Rr.14 to 17 of the Kerala State and Subordinate Service Rules. So, the expiry of the main list was of no consequence for advising candidates belonging to that community from the supplementary list to fill up the non joining duty vacancies". 7. In Para 4 it was stated thus: "for complying with the principles contained in Rr.14 to 17 of the Kerala State and Subordinate Service Rules. So, the expiry of the main list was of no consequence for advising candidates belonging to that community from the supplementary list to fill up the non joining duty vacancies". 7. The Public Service Commission filed Writ Appeal against the judgment of the learned single judge and in the Writ Appeal, the Division Bench made the following observations: "The principle laid down by the learned single judge in paragraphs 4 & 5, which we have now vacated, is left open". 8. The petitioners in these Original Petitions contended that they are all entitled to get appointment against the N. J.D. vacancies as their names are included in supplementary lists. The stand taken by the P.S.C. is that once the main list is exhausted or expired it is not possible to advise any candidate who is included in the supplementary list. It is true that once the main list is exhausted or expired further advice cannot be made from the supplementary list for the vacancy that may arise subsequently. That is also the view taken by one of us (Balakrishnan, J.) in O.P. No. 3902/93. But as regards NJ.D. vacancies, we do not think that the supplementary list can be totally ignored under all circumstances. If a few candidates belonging to reserved communities failed to join duty and there arose some NJ.D. vacancies, if there are candidates available in the supplementary list, such candidates can very well be advised for appointment. The vacancies to be filled are the actual vacancies which ought to have been filled up along with the candidates in the main list. Learned counsel for the P.S.C. pointed out that the NJ.D. vacancies may include the open competition vacancies as well as vacancies in the reserved category and if reserved posts alone are allowed to be filled up, that will exceed the quota earmarked for reservation and it would be a violation of the proviso to R.15 of the K.S.& S.S.R. that in no year reservations including carrying forward vacancies to a category of post shall exceed 50% of the total number of vacancies for which selection by direct recruitment to that category is resorted to in that year. Such situation may occur under certain circumstances, but that does not amount to denial of opportunity of a particular class of persons as the general NJ.D. vacancies are filled up in the next batch of selection. Even in the instant case, 150 candidates were advised on 26.8.1994. Out of 150 candidates, 125 candidates were against fresh vacancies and 25 were NJ.D. vacancies and the counsel for the P.S.C. admitted that 25 NJ.D. vacancies were filled up and thereafter the roster point was fixed in respect of 125 candidates. Therefore, it cannot be said that there is any violation of the proviso to R.15 of the K.S. S.S.R. in the sense that there was denial of opportunity to any of the candidates, either open competition candidates or the reserved candidates. 9. Learned counsel for the P.S.C. pointed out that in Babu V.. P.S.C. (1996) (1) KLT 349) Division Bench of this Court held that: "Once the advise is issued, vacancy stands extinguished. After the extinguishment of the vacancy, on account of the advice of the candidates alone could the appointing authority ascertain the non-joining duty. Such vacancies which came to the notice of the appointing authority on a subsequent day can only be treated as a vacancy that was reported on that day. If that day happens to be a day after the expiry of the ranked list, for filling up that vacancy the expired list cannot be operated on." On the basis of the above decision, it was argued that once the advice is made, the vacancy is extinguished and further reporting of the vacancy is to be treated as separate vacancy. It is true that vacancies should be reported before the expiry of the list (See Vimala Kumari v. State -1994 (2) KLT 47). A distinction is to be drawn from the vacancy and the post. It is true that once the vacancy is reported and a person is advised, the vacancy gets extinguished. That does not mean that the post is filled up. The post is still lying vacant and that could be treated as a separate vacancy and the further advise could be made provided the same is done within the expiry of the rank list. The distinction between the post and vacancy have been explained by the Supreme Court in R.K. Sabharwal's case (cited supra). The post is still lying vacant and that could be treated as a separate vacancy and the further advise could be made provided the same is done within the expiry of the rank list. The distinction between the post and vacancy have been explained by the Supreme Court in R.K. Sabharwal's case (cited supra). It was held in Paragraph 6 of the judgment that: "The expressions "posts' and" vacancies' often used in the executive instructions provided for reservations, are rather problematical. The word" post' means an appointment, job. Office or employment. A position to which a person is appointed. "Vacancy* means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a "post' in existence to enable the" vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of "vacancy' has no relevance in operating the percentage of reservation." 10. On an analysis of various provisions of law on this point, we are of the view that N. J.D. vacancies can be filled up by candidates included in the supplementary lists, even if the main list is exhausted or expired. But once the main list is exhausted or expired the candidates included in the supplementary list have no right to claim appointment as regards the fresh vacancies that arise subsequently. The appointment of candidates included in the supplementary list could be done only to fill up the vacancies that ought to have been filled up along with the candidates who are appointed from the main list. If any N. J.D. vacancy arises in the open competition category, the same could be filled up in the next batch of appointment thereby the rights of the open competition candidates can very well be protected without any violation of the proviso to R.15 of the K.S.& SSR as stated by the Supreme Court in R.K. Sabharwal's case as the roster is to be worked on the basis of the running account. Therefore, W.A. Nos. 582 and 583/97 filed by the P.S.C. are dismissed and O.P. Nos. 18154,18176 and 18409/95,357 and 3655/97 are allowed. Therefore, W.A. Nos. 582 and 583/97 filed by the P.S.C. are dismissed and O.P. Nos. 18154,18176 and 18409/95,357 and 3655/97 are allowed. The P.S.C. shall issue advice memo for the appointment of these petitioners. O.P s. are disposed of accordingly.