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2011 DIGILAW 1003 (KER)

Sajitha v. State of Kerala

2011-09-23

J.CHELAMESWAR, P.R.RAMACHANDRA MENON

body2011
JUDGMENT : P.R. Ramachandra Menon, J. Whether the amendment to Rr.14 and 15 of Part II K.S. & S.S.R., substantially changing the concept of 'selection year' and the manner in which the rules of reservation /rotation are to be applied (as per Ext. P-5 notification dated 8.3.2006, to be effective from 2.2.2006) has any adverse effect on the rank lists already published or whether the scope of amendment has to be restricted only to the rank lists which are published on or after 2.2.2006, forms the basic issue for consideration in this appeal. 2. The appellant is the unsuccessful writ petitioner. The third respondent, Kerala Public Service Commission, invited application for the post of Lecturer in Islamic History in the Collegiate Education Department, as per the Gazette notification dated 18.12.2011. The appellant, having the requisite qualification, applied for the post and on finalisation of the selection process, she was included at rank No. 5 in Ext. P-4 rank list published on 28.11.2003. 3. The case put forth by the appellant is that, the first rank holder in Ext. P-4 was advised for appointment on 3.2.2004 against an 'open' vacancy, which arose during the first selection year i.e., 28.11.03 to 27.11.2004. The second rank holder (Ezhava community) and the third rank holder (open category) were also advised for appointment in the same selection year (on 13.3.2004). However, in the second selection year i.e,. from 28.11.2004 to 27.11.2005, only one vacancy arose and as such, the 4th rank holder was advised on 14.11.2005 against 'open' quota, lest the extent of reservation did exceed 50%. The dispute is with regard to the next vacancy that arose in the 3rd selection year i.e., 28.11.2005 to 27.11.2006, which was a retirement vacancy in the University College, Thiruvananthapuram occurred on 1.6.2006. Since there was only one vacancy in that year, the appellant contends that she was liable to be advised in respect of the said vacancy as an 'open candidate', to be in conformity with the rule providing a maximum of 50 % reservation as contemplated under the 'proviso' to 15 (c) of K.S. & S.S.R. 4. The appellant was let known that she could not be advised in view of Ext. P-5 amendment to the Rule w.e.f. 2.2.2006. The appellant was let known that she could not be advised in view of Ext. P-5 amendment to the Rule w.e.f. 2.2.2006. As per the said amendment, the concept of different selection years, consisting of the first, second and third respectively was dispensed with and the 'selection year' was defined to mean the whole currency of the rank list from the date of publication, till its expiry. The provision to have the 'Turn Passed Over' (T.P.O.), 'No Candidate Available' (M.C.A.) and 'Non Joining Duty' (N.J.D.), enabling the said vacancies to be filled up by 'open' candidates was dispensed with, providing for re-notification of the vacancy for the concerned category, in the manner specified therein. It was also stipulated that, all pending uncompensated Turns Passed Over, No Candidate Available, Non Joining Duty Vacancies had to be compensated. 5. Pursuant to Ext. P-5 amendment to the Rules, the PSC issued Ext. P6 Circular prescribing the modalities to be applied forgiving effect to the same. Subsequently, the P.S.C. issued Ext. P-13 Circular (produced in the due course getting the Writ Petition amended, accordingly challenging the same as well), stipulating that paragraph 2 of Ext. P-6 Circular will stand substituted to the effect that the selection year in respect of the rank list published prior to 2.2.2006 will continue from the stage at which the Rank List stood as on the date of last advice, disregarding the previous selection years, if any and that the OC - BC position in the last rotation would be reckoned only as on 2.2.2006. The appellant sought to challenge Ext. P-5 amendment and also the power and competence of the P.S.C. to have issued the concerned Circulars, contending that, the amendment could not have any adverse effect on the vested rights of the appellant to get advised to the vacancy, being serial No. 5 in Ext. P-4 Rank List published, pursuant to the selection finalised prior to 2.2.2006, the effective date of amendment. 6. During the pendency of the above Writ Petition, some other Writ Petitions were also filed by the parties concerned, connected with the subject matter herein, particularly with regard to the filling up of the 5th vacancy which arose on 1.6.2006 and all these petitions were tagged together and considered accordingly. The claim was resisted by the P.S.C., by filing a counter affidavit dated 12.7.2007, followed by the additional counter affidavit dated 14.12.2007. The claim was resisted by the P.S.C., by filing a counter affidavit dated 12.7.2007, followed by the additional counter affidavit dated 14.12.2007. The first respondent/Government has filed counter affidavit in support of the stand taken by the P.S.C., justifying the amendment and as to the lack of merit in the Writ Petition. A counter affidavit has been filed by the additional 7th respondent, who is a 'Viswakarma candidate", as well. 7. In the course of hearing before the learned Single Judge, various decisions were cited from the part of the writ petitioner, such as N.T. Devin Katti & Ors. v. Karnataka Public Service Commission & Ors. ( (1990) 3 SCC 157 ), P. Mahendran & Ors. v. State of Karnataka ( AIR 1990 SC 405 ), Gopal Krushna Rath v. M.A.A. Baig (Dead) by Lrs. & Ors. ( (1999) 1 SCC 544 ), State of Uttaranchal & Others v. Sidharth Srivastava & Ors. ( (2003) 9 SCC 336 ); Secretary, A.P. Public Service Commission v. V.B. Swapna & Ors. ( (2005) 4 SCC 154 ); Railway Board & Ors. v. T. Vittal Rao & Ors. (2006 (3) KLT SN 5 (C.No. 7) SC = (2006) 2 SCC 467 ); Marripati Nagaraja & Ors. v. Government of Andhra Pradesh & Ors. ( (2007) 11 SCC 522 ) and Hemani Malhotra v. High Court of Delhi (2008 (2) KLT SN 56 (C.No. 69) SC = (2008) 7 SCC 11 ). The State as well as the P.S.C. contended that the above decisions did not have any application to the case in hand and that the issue was actually covered by the Full Bench decision of this Court reported in Mohananv Director of Homeopathy(2006(3)KLT641(F.B.)). Some other unreported decisions were also sought to be pressed into service, including that of a Division Bench*. After referring to the relevant provisions of law and the judicial precedents, the learned Single Judge observed that, the issue was squarely covered by the Full Bench decision rendered by this Court in Mohanan's case (cited supra), holding that, all the vacancies which arose after the amendment of the Recruitment Rules had to be filled up only on the basis of the amended rules, notwithstanding the placement given to anybody in the rank list, published before such amendment. Accordingly, interference was declined and W.P.(C) No. 19525 of 2006 was dismissed, simultaneously disposing of all the connected cases, based on the findings as aforesaid. The petitioner in W.P.(C) No. 19525 of 2006 seeks to assail the judgment passed by the learned Single Judge in this appeal. 8. Heard Sri. O.V. Radhakrishnan, the learned senior counsel appearing for the appellant; Sri. Benny Gervasis, the learned Senior Government Pleader appearing for the State; Sri. P.C. Sasidharan, the learned standing counsel appearing for the Kerala Public Service Commission; Sri. K. R.B. Kaimal, the learned senior counsel appearing for the 6th respondent and the learned counsel for the others concerned. 9. The arguments by the appellant are mainly three fold. Firstly, Ext. P-5 amendment does not have any retrospective operation and is only prospective from the effective date shown as 2.2.2006, which cannot affect the accrued rights of the appellant by virtue of inclusion in Ext. P-4 rank list published on 28.11.2003 i.e., much prior to the date of commencement of the amendment. The second point raised is that the amendment is only in relation to the vacancies under the 'reserved quota' and that the same cannot have any effect with regard to 50 % vacancies earmarked to the 'open' category (under which head, the appellant seeks to establish the claim, in respect of the sole vacancy which arose in the 3rd selection year, pursuant to the retirement of an employed on 1.6.2006). The third and last contention is with regard to the absence of power, jurisdiction and competence for the P.S.C. to have issued Ext. P-13 Circular, which is stated as contrary to the relevant rules. Reliance was also sought to be placed on the decision rendered by a Division Bench of this Court in W.A. 137 of 2007 (paragraphs 4 and 5). 10. The learned senior counsel for the appellant drew our attention to various decisions including (1990) 3 SCC 157 (cited supra) and other verdicts as cited before the learned Single Judge, in support of the contentions raised in the appeal. The factual and legal position as asserted before the learned Single Judge by the concerned respondents were sought to be reiterated by the concerned counsel in this appeal as well. The factual and legal position as asserted before the learned Single Judge by the concerned respondents were sought to be reiterated by the concerned counsel in this appeal as well. The scope of the various decisions cited at the Barhas been dealt with by the learned Single Judge, referring to each case separately, as discernible from paragraphs No. 8 to 19 and we do not propose to reproduce the same. Referring to the specific observation made by the Full Bench of this Court in Mohanan's case (cited supra), that once an amendment regarding the qualifications and method of appointment etc., in respect of a particular post comes into force, any vacancy which arises subsequent to the commencement of the amended rules, can be filled up only in accordance with the amended rules notwithstanding the currency of any rank list published by the P.S.C. (selection of which was initiated prior to the amendment of the Rules), the learned Single Judge has observed that, the dictum laid down by the Full Bench is a complete answer to the issue raised before the Court and as such, going by the dictum laid down therein, in view of Ext. P-5 amendment, any vacancy which arose after 02.02.2006 could have been filled up only in accordance with the amended rules, notwithstanding the fact that the selection was initiated prior to the amendment of the Rules. The attempt made from the part of the concerned writ petitioner, trying to distinguish the Full Bench decision, stating that, the amendment considered therein was with regard to the qualification, it has been observed in paragraph 21 of the verdict, that the Full Bench had considered the whole issue with reference to the date of occurrence of the vacancy as well. 11. Going further, the learned Single Judge in paragraph 24, has referred to the observation of a Division Bench of this Court in W.A. No. 843 of 2008. Paragraph 2 of the said verdict was extracted therein, which reads as follows : 24. A Division Bench of this Court in the judgment in W.A. No. 843 of 2008 held in para 2 as follows: "But now it is well settled that the law applicable at the time of filling up the vacancies has to be taken into account and not the law prevailing when the rank list was published. A Division Bench of this Court in the judgment in W.A. No. 843 of 2008 held in para 2 as follows: "But now it is well settled that the law applicable at the time of filling up the vacancies has to be taken into account and not the law prevailing when the rank list was published. In view of this well settled position, the claim of the appellant to ignore the amendment introduced to R.15 of Part II K,S, & S.S.R. cannot be allowed". The verdict passed by the Division Bench as aforesaid was followed in W.P.(C) No. 21028 of 2006 (as referred to in the very same paragraph) and it was accordingly, that a finding was rendered, that the Writ Petition was devoid of any merit; thus declining interference. The scope of amendment has been considered and answered in favour of the PSC/State by another Division Bench of this Court as per the verdict passed in W.A. 867 of 2009 as well. We find that the verdict passed by the Full Bench in Mohanan's case (cited supra) and that of the Division Bench in W.A.No. 843 of 2008 have been rightly followed by the learned Single Judge and we concur with the finding and reasoning given in this regard. 12. No doubt, there cannot be any dispute with regard to the settled position of law that the Rules of the game cannot be changed, once the game is started, as held in various decisions cited from the part of the appellant, as referred to before the learned Single Bench and before us, including that of the Apex Court in K. Manjusree v. State of Andhra Pradesh ( (2008) 3 SCC 512 ) and that of a Division Bench of this Court in W.P.(C) 2282 of 2009 and connected cases (Asha P. v. State of Kerala (2010 (2) KLT SN 35 (C.No.44) =1LR 2009 (4) Ker.543)). This is mainly with intend to arrange a common platform, where different persons are put to contest among themselves and that the change in qualification/norms for selection shall not affect the rights and interest of the parties concerned in proving their credentials to the extent it is required and notified. The scope and applicability of Ext. P-5, amendment of Rr. This is mainly with intend to arrange a common platform, where different persons are put to contest among themselves and that the change in qualification/norms for selection shall not affect the rights and interest of the parties concerned in proving their credentials to the extent it is required and notified. The scope and applicability of Ext. P-5, amendment of Rr. 14 and 15 of Part II K.S. & S.S.R, stands entirely on a different footing, which rather stipulates the turn in which allocation is to be made from the rank list, following the rules of reservation/rotation. As given in the 'explanatory note' of Ext.P5, the change was necessitated in view of the steps taken by the Government to give effect to Justice Narendran Commission Report, with a view to ensure adequate representation of backward class and also to avoid loss of representation of the communities, who have reservation in appointments made through Kerala Public Service Commission/Selection Authority. It was with this intent, that the concept of 'selection year' was changed to be effective for the period from the date on which the rank list comes into force, to the date on which it expires. The undue benefit, which otherwise was being enjoyed by the 'open' category candidates, has thus been done away with, stipulating that the vacancies had to be kept unfilled and notified separately, in the manner as specified therein. As per the 'Note' added under R. 15(a), all pending uncompensated turns of vacancies, such as 'Temporarily Passed Over', 'No Candidate Available' and 'Non-Joining Duty', as on 2nd February 2006 have been stipulated to be compensated, which by itself is a pointer, as to the object sought to be achieved. The provisions have to be read, not in isolation, but as a whole, when it becomes conspicuous that the amendment seeks to remedy the situation, which otherwise was defective so far, by providing appropriate measures with regard to the advice and placement given for the respective categories. As it stands so, the arguments advanced from the part of the appellant that the amendment relates to the reserved categories alone and is not intended to affect the 'open category turn' is not of much pith or substance. 13. With regard to the submission made referring to the lack of power or competence of the P.S.C. to have issued Ext. 13. With regard to the submission made referring to the lack of power or competence of the P.S.C. to have issued Ext. P-13 Circular, it is to be noted that nothing new has been stated by the P.S.C., nor has anything been added or varied or modified, contrary to Ext. P-5 amended Rules. As mentioned herein before, the amendment virtually changes the concept of 'selection year', making the same to be for the period from the date of publication of the rank list, till the date of expiry. The stipulation that the amendment has come into force w.e.f. 2.2.2006, in the light of the other provisions contained therein, only suggests that the advice made prior to the said date need not be unsettled, however making it clear that the Temporarily Passed Over, No Candidate Available and Non Joining Duty vacancies, already resulted as on that date, have to be compensated. The P.S.C., as per Ext. P-13 Circular, does not change the commencement of the selection year, but for mentioning that in the case of the rank lists finalised prior to 2.2.2006, the selection year shall from the stage at which the Ranked List stands as on date of last advice disregarding the previous selection year, if any. This Court finds it difficult to accept the proposition mooted by the appellant as to the challenge raised against Ext. P-13 Circular or in respect of the virus of Ext. P5 amendment; which has not been effectively or successfully brought out. 14. There is also a contention for the appellant that the scope of Ext. P-5 amendment was considered and held as not applicable, where the selection process had already been started, in an unreported judgment in W.P.(C) 16862 of 2006 passed by a learned Single Judge on 20.12.2006. It is stated that the said verdict has been affirmed by a Division Bench, as per the verdict dated 6.2.2007 in W.A.No.137 of 2007. The case involved therein was that the respondent University issued a notification on 19.12.2005 for appointment to the post of 'Reader' in Microbiology, specifying that, the vacancy was reserved for an Ezhava candidate and that, only in the absence of such candidates, that others will be considered. During the process of selection and before finalization, R. 15 (a) of K.S. & S.S.R. was amended (as per-Ext. P5 herein). During the process of selection and before finalization, R. 15 (a) of K.S. & S.S.R. was amended (as per-Ext. P5 herein). The writ petitioner therein contended that the 3rd respondent did not belong to Ezhava community, who hence should not have been considered in the wake of amendment and that the writ petitioner, being an Ezhava candidate having applied to the post ought to have been considered. The Bench observed that, if the petitioner/appellant had applied to the post being an Ezhava candidate, there was no question of application of the amendment, because if the appellant was qualified he was to be appointed. It was also simultaneously observed that the appellant was relying on the amendment, obviously because he was not qualified, as he did not posses a Doctoral Degree or any equivalent publication work of international standards and hence it had necessarily to be taken, as if, there were no qualified candidates belonging to 'Ezhava' community. It was in the above background, that reference was made to the scope of amendment as an incidental aspect, which however does not lay down any law in support of the case projected by the appellant herein. The said verdict has to be read, understood and appreciated with reference to the 'ratio decidendi' and this Court finds that the same is not applicable to the case in hand. In the above facts and circumstances, the judgment under appeal does not call for any interference. The appeal fails and it is dismissed accordingly.