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2001 DIGILAW 304 (KER)

Ajeesh Kumar v. University of Kerala

2001-06-18

KURIAN JOSEPH

body2001
Judgment :- Kurian Joseph, J. The issue raised in these Original Petitions relates to the appointment to the post of Computer in the Population Research Centre under the first respondent. Petitioner is same in both the Original Petitions. As per the notification dated 15.6.1998 the first respondent invited applications to the post of Field Investigator and Computer. It is seen from the notification that the appointment is for a period of three years and the Scheme is sponsored by the Government of India and the posts are purely temporary and liable to be terminated at any time by the Government of India. Pursuant to a written test followed by an interview, a short list consisting of 15 candidates was published (Ext.P5 in O.P. No. 4277 of 1999). Petitioner is rank No. 10. It can be seen from Ext. P3 list that the first rank holder belongs to a forward community, second to O.B.C. and 10th also to O.B.C. and others in between belong to forward communities. It is the contention of the petitioner that since the vacancies notified are three and since 50% of the appointments should go to candidates on merit, rank Nos.1 and 2 have to be treated as appointees under open competition and therefore the third vacancy should go to the petitioner who is the next candidate eligible for reservation. Petitioner bases his contention on clause 7 of Chapter III of the Kerala Public Service Commission Recruitment Manual which reads as follows: "In working out the rotation for every such unit of 20 or fraction thereof the open competition turns should be filled up first in the order of rank of candidates in the ranked list irrespective of their community and the reservation turns should be filled up thereafter, one by one". 2. According to the petitioner the proviso to R.14(c) of the Kerala State and Subordinate Service Rules also fortifies his contention. During the pendency of O.P. No. 4277 of 1999 the third respondent in O.P. No. 9238 of 2000 was appointed subject to the result of the Original Petition and the challenge against that appointment is made in O.P. No. 9238 of 2000. 3. During the pendency of O.P. No. 4277 of 1999 the third respondent in O.P. No. 9238 of 2000 was appointed subject to the result of the Original Petition and the challenge against that appointment is made in O.P. No. 9238 of 2000. 3. The proviso to R.14(c) of Part III of the K.S.& S.S.R. reads as follows: "Provided also that in preparing the list of eligible candidates to be appointed under this rule applying the rotations specified above in every cycle of 20 vacancies, the candidates eligible to be selected on open competition basis, that is, turns 1,3,5,7,9,11,13,15,17 and 19 shall be selected first and then the candidates for the reservation turns, out of those available in the ranked list in the particular groups having regard to their ranks. In finalising the select list any candidate of the same community selected on open competition turns, if found to be below in the order of the candidates selected from the same community on the basis of reservation, for the fixation of ranks as per R.27 of these rules, candidates of the same community obtaining higher marks shall be interchanged with the candidates of the same community in the reservation turn for the purpose of ranking." Going by the said rule, in case all the three vacancies are filled up at a stretch, the open competition turns in the cycle will have to be first selected and after selecting those open competition turns only the reservation turns have to be selected. It is not in dispute that from Ext. P3 only two appointments were made in the year 1998-99. If so, the first should go to the open competition turn and the second to the reservation category. So the appointments made in 1998-99 cannot be faulted. 4. At paragraph 3 of the counter affidavit of respondents 1 and 2 in O.P. No. 4277 of 1999 it is stated as follows: "Even though initially it was specified in Ext. P1 notification that there were 3 posts of Computer, for administrative and financial reasons, it was decided that only two posts need be filled up during the current financial year." As can be seen from Ext. R1 (b) letter dated 8.2.1999 of the Director of the Population Research Centre, the request was only to fill up at least two posts in that financial year. R1 (b) letter dated 8.2.1999 of the Director of the Population Research Centre, the request was only to fill up at least two posts in that financial year. As held by the Supreme Court in Government of Orissa v. Haraprasad Das (1998) 1 SCC 487, if the appointing authority decides not to make further appointments for a valid reason, it cannot be said that it was acted arbitrarily by not appointing the persons whose names are included in the select list. Whether to fill up a post or not is a policy decision and unless it is shown to be arbitrary, this Court will not be justified in interfering with such decision and directing to make further appointments. On the reasons stated for not filling up the three vacancies initially, it cannot be said that the decision was arbitrary. It is not possible to hold that the University filled up only two posts in 1999 so as to exclude the petitioner. After all, these are only temporary posts related to a project work. At paragraph 4 of the said counter affidavit the turn position is clarified as under: "4. It is submitted that the petitioner's contention would be applicable only when three posts of Computers are to be filled up. As the University has taken an administrative decision to fill up only two posts of Computers during this financial year, the appointment will have to be made as follows: 7th turn- Open merit 8th turn - Reservation L.C./A.I. Since there was no candidate belonging to L.C./A.I., the next reservation is for O.B.C. (10th turn). Accordingly Smt. Anithakumari, K.R., Rank No. 2 in the select list was appointed. The petitioner's claim arises only when three posts are to be filled up". 5. Though three vacancies are notified initially it is for the appointing authority to decide as to how many vacancies should be filled up. One cannot compel the appointing authority to fill up all the notified vacancies. 6. While matters stood so, as can be seen from the counter affidavit filed by the University in O.P. No. 9238 of 2000, on 25.2.2000 the Director of Population Research Centre, Karyavattam (who is not impleaded in the Original Petition) requested to fill up one post of Computer along with other posts and accordingly from the rank list, the third respondent was appointed on 21.3.2000. The contention of the learned counsel for the petitioner Sri. G.S. Raghunath is that since from out of the select list three vacancies are filled up, the first two are to be filled up from open competition turns and the third should go to the reservation and the fact that from among the open competition turns one happened to be an O.B.C. cannot obliterate the chances of the petitioner. But it has to be seen that the turns that are to be applied are against the available vacancies. As a matter of fact such an interpretation is in the interest of the reserved communities. For example, if as a matter of fact, all the three posts had been filled up in the year 1998-99 at a stretch, of the three two would have gone to the reserved communities since rank No. 2 in the select list also happened to be from among the said community. To take another example if out of a select list five posts are filled up simultaneously and the first five of a select list containing 20 happened to be from among the reserved communities, going by the proviso to R.14(c), all the first three would have got the advantage of being adjusted against the open competition turns and then alone there would have been selection against the reservation turns. 7. On the factual situation, from Ext. P3 select list only two posts were filled up in the year 1998-99 and that was in accordance with the turns of open competition and reservation, i.e., 7th and 8th. If any person is appointed to the said post from the select list in another year, that can only be going by the next turn, i.e., 9th from among the open competition candidates. Hence the appointment of the third respondent made in the year 1999-2000 is fully in order. The averment contained in the counter affidavit of the University to the effect that if three vacancies were filled up from Ext. P3 list the petitioner would have been appointed has to be understood only as stated above. In other words if only all the three vacancies were filled up at a stretch, the first two should have gone to the open merit irrespective of the community to which they belong and the third to the reservation category. P3 list the petitioner would have been appointed has to be understood only as stated above. In other words if only all the three vacancies were filled up at a stretch, the first two should have gone to the open merit irrespective of the community to which they belong and the third to the reservation category. In the instant case what has been done is that initially only two posts were filled up; the first open competition and second reservation and naturally the appointment made thereafter and that too in another year can only be against the next turn, that is open competition basis. There is no merit in the Original Petitions and accordingly they are dismissed.