Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 699 (KER)

Raveendranathan v. State of Kerala

2001-11-28

M.R.HARIHARAN NAIR

body2001
Judgment :- M.R. Hariharan Nair, J. The petitioner was advised by the Kerala Public Service Commission for appointment as Excise Inspector along with one Salim Raj and respondents 4 to 6. The petitioner and Salim Raj were both Ezhava candidates. They were fitted into the positions 18 and 14 respectively. Respondents 4 to 6 took the intervening vacancies viz., positions 15 to 17. Ultimately Salim Raj did not join duty. Going by the advice list and the appointment order the petitioner's name appeared below that of respondents 4 to 6. His contention is that when Salim Raj did not join duty, a re-adjustment was necessary so that the right of Ezhava candidate was protected and this was not done. Petitioner has to be pushed up 16 position No. 14 intended for Salim Raj. If that was done, his name in the advice list would be above that of respondents 4 to 6. The petitioner is aggrieved that notwithstanding the representation made in the matter, it was turned down as per Ext. P6 order. The prayer, therefore, is to set aside Exts. P5 and P5(a) fixing seniority of the petitioner above respondents 4 to 6 and to direct the second respondent to modify Ext. P2 order of appointment by showing petitioner's name as SI. No. 14 in the place of Salim Raj with consequent revision of seniority list in such a way that the petitioner will become senior to respondents 4 to 6. 2. According to the Kerala Public Service Commission the prayer is inadmissible and what is applicable in the matter of fixation of seniority is Rule 27(c) of the K.S.& S.S.R. It is only the position in the advice list that is material. 3. During hearing learned counsel for the petitioner placed reliance on the Bench decision in Narayanan v. State of Kerala (1981 KLT 321), where the contention was that when a candidate of Scheduled Tribe did not join duty, that position should be allotted to a candidate belonging to Scheduled Tribe itself and not to Scheduled Caste. 3. During hearing learned counsel for the petitioner placed reliance on the Bench decision in Narayanan v. State of Kerala (1981 KLT 321), where the contention was that when a candidate of Scheduled Tribe did not join duty, that position should be allotted to a candidate belonging to Scheduled Tribe itself and not to Scheduled Caste. The Public Service Commission contended therein that under the existing rules vacancies caused on account of non joining duty might be treated as fresh vacancy and appointment offered to the candidate of the community next in rotation i.e., for the Scheduled Caste and if that is done the petitioner will not be entitled to claim the vacancy earmarked for Scheduled Tribe candidate. The Court considered the question whether in a case where, in the list of eligible candidates, there are candidates of the Scheduled Tribe the right to a particular turn in the matter of appointment to a post earmarked for that category would be lost when the candidate advised against that vacancy was unable to take up that post eventhough the next in the rank in the same category was available and was willing to take up the post. The Court found that the Rule of reservation would be effective only if to a post reserved for a community, a person is actually appointed. 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 right, when eligible candidates are available for appointment to such posts. Otherwise it would be a reservation in form only and not in substance. 4. According to the learned counsel for the Kerala Public Service Commission, the protection therefore is available only to the community and not to the candidate. As far as interse seniority is concerned, it is only R.27(c) of the K.S.& S.S.R. that should be applied lest there would be innumerable claims for upsetting settled seniority position leading to chaos. It is also stated that all along, the principle followed is that protection would be available only to the community and not to the candidate belonging to the community, who does not even remain in the select list from which advice is to be made when the non-rejoining duty is reported to the Public Service Commission. 5. It is also stated that all along, the principle followed is that protection would be available only to the community and not to the candidate belonging to the community, who does not even remain in the select list from which advice is to be made when the non-rejoining duty is reported to the Public Service Commission. 5. I find considerable force in the submission of the learned Standing Counsel, R.27(c) is clear in that the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. If R.27(c) is applied strictly to the facts of the present case, there cannot be any doubt that the petitioner will be junior to respondents 4 to 6. 6. It is true that when the candidate advised against position No. 14 does not join duty, that fact will be reported back to the Public Service Commission and the Public Service Commission would consider the question of advising another person from the same community against that vacancy. But then it makes a lot of difference as to whether the person already advised against another vacancy should be upgraded to the vacancy established when the name of such candidate did not continue in the advice list as on the date when the question of appointing another person in a non joining duty vacancy is taken up for consideration. I am impressed by the argument that grant of request as raised in the present case would upset the seniority position in the various departments and lead to serious complications. In the circumstances, I accept the contention of the Kerala Public Service Commission that the protection is only for the community and not to individual candidates. The Original Petition is without merit and it is accordingly dismissed.