Research › Search › Judgment

Kerala High Court · body

2007 DIGILAW 529 (KER)

Sabeena Beegum v. District Co-operative Bank

2007-08-18

ANTONY DOMINIC, K.S.RADHAKRISHNAN

body2007
Judgment :- Radhakrishnan, J. Doubting the correctness of a Bench decision of this court in Krishna Kumar v. P.S.C. 2006 (2) K.L.T. 50, learned Judge of this court, Justice K. Padmanabhan Nair, has referred this matter for an authoritative pronouncement on the scope and ambit of the first proviso to Rule 15 (c) of Part II of Kerala State and Subordinate Service Rules. In Krishna Kumar's case to which one of us (Radhakrishnan, J.) is a party took the view that the proviso to Rule 15 shall not override the substantial provision of Rule 14 (c) holding that the non joining duty vacancy reported during the second selection year should be treated as belonging to that year. The Bench held that Rule 14 (c) could be given effect to holding that solitary vacancy should go to Scheduled Caste candidate. The Bench felt that an NJD vacancy reported during second selection year be treated as belonging to that year then there is no question of passing over of Scheduled Caste turn so as to keep 50% rule or else it was felt that proviso to Rule 15 would override substantial provision of Rule 14 (c). The Bench therefore doubted the correctness of the decision of the Single Judge in Mohanan v. Secretary, P.S.C. I.L.R 1998 (2) Kerala 268 and felt that it was not correctly decided. 2. Counsel for the petitioner Sri V. Philip Mathews submitted that the dictum laid down in Krishna Kumar's case, supra would squarely apply to the facts of this case in the event of which P.S.C. was not justified in not advising the petitioner to the turn MRI 6 M. Counsel submitted that P.S.C. was not justified in temporarily passing over (TPO) that turn by advising additional fourth respondent under the guise of maintaining the first proviso to Rule 14 (c) Part II to which vacancy the petitioner, a Muslim candidate, should have been appointed. Counsel submitted that six candidates were advised in the third selection including the five NJD vacancies and if all the six vacancies were treated to be vacancies of that year sixth vacancy would have been gone to candidate belonging to Other Backward Community (O.B.C.). Counsel submitted that Krishna Kumar's case has declared the law; hence it would operate retrospectively and this court cannot give a declaration that the judgment would act only prospectively. Counsel submitted that Krishna Kumar's case has declared the law; hence it would operate retrospectively and this court cannot give a declaration that the judgment would act only prospectively. Only Supreme Court has the power to invoke doctrine of prospective overruling under Articles 141 and 142 of the Constitution of India which was made clear in C. Golak Nath v. State of Punjab A.I.R. 1967 S.C. 1643. Reference was also made to the decision of the apex court in M. Nagaraj and others v. Union of India (2006) 8 S.C.C. 212. 3. Shri P.C. Sasidharan, learned counsel appearing for the P.S.C. tried to distinguish the decision in Krishna Kumar's case on facts. Counsel submitted that in Krishna Kumar's case the Division Bench has relied on the decision of another Division Bench of this court in Babu v. Public Service Commission 1996 (1) K.L.T. 349 and it was pointed out that in Babu's case the court was not called upon to consider any of the provisions contained in Rule 15 of the K.S. & S.S.R. but was considering only the effect of Rule 13 of the Kerala Public Service Commission Rules of Procedure. Further it was submitted that in Krishna Kumar's case the court did not consider whether the principle laid down in Mohanan's case could be applied. Counsel for the P.S.C. also pointed out that when two O.B.C. vacancies are reported the application of the dictum laid down in Krishna Kumar's case would not upset the principles of reservation but when two candidates in open merit are reported in a particular selection year and if the principle laid down in Krishna Kumar's case is applied that will upset the entire reservation rules laid down by the K.S. & S.S.R. but that was not an issue raised for consideration in Krishna Kumar's case. Counsel for the P.S.C. also submitted that the P.S.C. had filed a petition I.A. 2355 of 2007 for clarification in Krishna Kumar's case and got it clarified. 4. Counsel for the P.S.C. also submitted that the P.S.C. had filed a petition I.A. 2355 of 2007 for clarification in Krishna Kumar's case and got it clarified. 4. Counsel appearing for the fourth respondent Sri Kylasanatha Pillai supported the contentions urged by the P.S.C. Learned counsel submitted that the apex court in a large number o f cases held that for reservation in service the rule of 50% limit is to be applied by taking each year as the unit and therefore there is no question of the proviso to Rule 15 (c) overriding Rule 14 (c) of the K.S. & S.S.R. Counsel also submitted that petitioner is not entitled to sixth vacancy as only one vacancy was reported in that particular selection year, i.e. 2004-2005 which has been correctly given to open candidate or else Rule 15 (c) would be violated. Counsel appearing for the first respondent Sri T.R. Harikumar referred to the counter-affidavit filed by the Bank explaining the factual details. Appointments of officers in the service of State Co-operative Banks are effected by the P.S.C. P.S.C after conducting due selection published a rank list of candidates for Co-operative Bank in Pathanamthitta. Rank list was published on 15-5-2002 and the list expired on 14-5-2005. When the rank list was published there were five fresh vacancies reported to the P.S.C. to which candidates were to be advised. In the first selection year that is from 15-5-2002 to 14-5-2003 P.S.C. had advised five candidates for vacancies reported upto 10-7-2000, details of which are as follows: 1. MRI 1 OC Sreekumar V.G. Rank No.1 2. MRI 2 E Sheeja Gopi Rank No.10 E 3. MRI 3 OC Shiny Mathew Rank No.2 4. MRI 4 SC Bindhu, S. Rank No.15 SC 5. MRI 5 OC Bindumol, K. Rank No. 3 For the second selection year, that is, from 15-5-2003 to 14-5-2004 no vacancy was reported. Third selection year was from 15-5-2004 to 14-5-2005, the appointing authority by letter dated 13-1-2005 reported two NJD vacancies. Those vacancies were that of Sreekumar, V.G. who was advised against MRI 1 OC, and that of Shiny Mathew, who was advised against MRI 3 OC. Both the NJD vacancies were that of open competition turns consequently P.S.C. advised one Chandrasekhara Kurup Rank No.4 to satisfy the turn of MRI 1 OC and Sreeja, B. Rank No.5 to satisfy MRI 3 OC on 18-1-2005. 5. Both the NJD vacancies were that of open competition turns consequently P.S.C. advised one Chandrasekhara Kurup Rank No.4 to satisfy the turn of MRI 1 OC and Sreeja, B. Rank No.5 to satisfy MRI 3 OC on 18-1-2005. 5. The appointing authority on 21-3-2005 reported yet another NJD vacancy of Bindumol (Rank No.3) who was advised against the turn of MRI 5 OC and the Commission advised the next open competition candidate Mini, S. Chandran who was Rank No.6 against that vacancy on 29-3-2005. Appointing authority again on 13-5-2005 reported three vacancies out of which two were NJD vacancies. Chandrasekhara Kurup was advised against the turn of MRI 1 OC and he did not join duty and hence Suresh Kochumon, T. Rank No.7 was advised. Similarly Sreeja, B., who was advised against the turn of MRI 3 OC has also not joined duty and to that vacancy the Commission advised fourth respondent Sindhu, R. Rank No. 9 on 18-1-2005. Rotation ended at MRI 5 OC and to advise the fresh vacancy, rotation was to start from TA RI 6 M and to keep up 50% rule the turn MRI 6 M was kept TPO and MRI 7 OC was filled up by advising the fourth respondent. Petitioner a Muslim candidate holding Rank No. 20 in the rank list could not be advised as her advice would violate 50% rule. 6. Scope of Rule 15(a), (b) and (c) and the two provisos thereto of the Kerala State and Subordinate Services Rules was elaborately considered by this court in W.A. Nos. I635 and 1642 of 2006 vide judgment dated 7th June 2007. The Bench held as follows: "Rule 15(c) deals with two situations; one is where a turn is forfeited to a particular community or to a group of communities by reason of it being passed over due to non-availability of candidates of that community and selection is made from open candidates and other temporary passing over the turn to keep 50% rule and in which case the benefit has to be restored to them. Merely because of the reason that a community turn is passed over to keep 50% rule that turn will not be forfeited. First proviso specifically states in no year reservation including carry forward vacancies to a category of post shall exceed 50%. Merely because of the reason that a community turn is passed over to keep 50% rule that turn will not be forfeited. First proviso specifically states in no year reservation including carry forward vacancies to a category of post shall exceed 50%. In such a situation the reserved communities would not forfeit their chance and have to be compensated unlike the case when vacancies could not be filled up due to non-availability of candidates and hence were filled up by open candidates. This is the purport of the Rule 15(a), (b) and (c) and the provisos." Applying the above-mentioned principle one fresh vacancy which was reported in the third selection year could not have been filed up by the petitioner a Muslim candidate lest it would violate the first proviso to Rule 15(c) of the K.S. & S.S.R. Facts would evidently show that during the third selection year 2005, five NJD vacancies and one fresh vacancy were reported. As per the Rules, NJD vacancies could be filled up only by candidate belonging to the same community. A candidate from a reserved community cannot be advised to a NJD vacancy which goes to open competition turn. There is no provision to fill up open competition turn by reservation turn. If it is so filled up, open competition turn candidate will loose his chance forever and as such it cannot be compensated. In the third selection year one fresh vacancy was reported and hence that fresh vacancy could he filled up only by open competition candidate because in no selection year reservation could exceed 50%. Consequently the turn MRI 6 M was kept TPO and MRI 7 OC was filled Ito by open competition candidate so as to comply with the first proviso to Rule 15 (c) of the K.S. S.S.R. True in Krishna Kumar's case, the Bench felt that while applying Rule 15, substantial right of reservation granted to scheduled caste community cannot be defeated and holding so the Bench took the view that in case NJD vacancy reported during the second selection year is treated as belonging to that year then there is no question of passing over of SC turn so as to keep the 50% rule. The Bench therefore held that proviso to Rule 15 shall not override the substantial provision of Rule 14(c) NJD vacancy reported during the second selection year. The Bench therefore held that proviso to Rule 15 shall not override the substantial provision of Rule 14(c) NJD vacancy reported during the second selection year. We may point out that the Bench in that case did not pointedly consider the impact of the Constitution Bench decision of the apex court in Indra Sawhney v. Union of India and others A.I.R. 1993 S.C. 477 as well as the decision in R.K. Sabharwal and others v. State of Punjab and others 1995 (2) S.C.C. 745. Apex court in Indra Sawhney's case, has held that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit as the case may be. In T. Devadasan v. Union of India A.I.R. 1964 S.C. 179 also the apex court held that year should be taken as one unit for the purpose of applying the rule of 50%. Consequently applying the principle laid down by the apex court in the above-mentioned decisions and also applying the principle laid down in Articles 14 and 16 of the Constitution of India, we are inclined to take the view that the first proviso to Rule 15 (c) has to exist independently failing which it will go against the principle laid down by the apex court in the above-mentioned decisions, that is to keep up 50% ceiling on reservation. Krishna Kumar's case to that extent has not been correctly decided. But the Bench which heard Krishna Kumar's case later clarified that position in I.A. No. 2355 of 2007 in O.P. No. 10814 of 2000. We therefore answer the reference accordingly and dismiss the writ petitions.