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2019 DIGILAW 503 (KER)

Archana. M v. Aswathy R. S.

2019-06-28

ASHOK MENON, V.CHITAMBARESH

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JUDGMENT : Chitambaresh, J. 1. The Kerala State and Subordinate Services Rules, 1958 ('KS&SSR' for short) interalia provides for compensation of turn of vacancy for a particular community if a suitable candidate is not available for selection. Rule 15(a) of KS&SSR germane for the case is as follows : “15.(a) The integrated cycle combining the rotation in clause (c) of rule 14 and the sub-rotation in sub-rule (2) of rule 17 shall be as specified in the Annexure to this Part. Notwithstanding anything contained in any other provisions of these rules or in the Special Rules if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities. If after re-notification, repeatedly for not less than two times, no suitable candidate is available for selection from the respective community or group of communities, the selection shall be made from available other Backward Classes candidates. In the absence of Other Backward Classes candidates, the selection shall be made from available Scheduled Castes candidates and in their absence, the selection shall be made from available Scheduled Tribes candidates. Explanation:-One 'selection year' for the purpose of this rule shall be the period from the date on which the rank list of candidates comes into force to the date on which it expires. Note:-All pending uncompensated turns of vacancies such as temporarily passed over, no candidate available and non-joining duty as on the 2nd February, 2006, shall be compensated.” (emphasis supplied) Rule 15(a) of KS&SSR has been amended as above with effect from 8.3.2006 and the Note thereto prescribes the cut off date for compensating turn of vacancies such as 'no candidate available' as 2.2.2006. 2. The 38th turn would go to 'Nadars included in SIUC' and the 60th turn to 'Hindu Nadars' as per the amendment made to KS&SSR with effect from 21.11.2009 while providing reservation in public appointments. The same was however not adhered to while operating the ranked list dated 27.7.2009 for selection to the post of Medical Officer in the Homoeopathy Department. The 38th turn would go to 'Nadars included in SIUC' and the 60th turn to 'Hindu Nadars' as per the amendment made to KS&SSR with effect from 21.11.2009 while providing reservation in public appointments. The same was however not adhered to while operating the ranked list dated 27.7.2009 for selection to the post of Medical Officer in the Homoeopathy Department. The ranked list expired on 3.10.2013 and the succeeding ranked list published on 3.8.2015 by the Kerala Public Service Commission ('PSC' for short) has also expired. The Kerala Administrative Tribunal ('KAT' for short) has by the original order dated 15.11.2017 directed the PSC to make up the shortfall in reservation in advices from the succeeding ranked list. The application for review put in by the petitioners who figure in the succeeding list was rejected by order dated 15.10.2018 of the KAT and both the orders are under challenge. The PSC has in the meanwhile advised three candidates from Hindu Nadar Community 'on out of turn basis' from the succeeding ranked list in compliance with the impugned orders. 3. We heard Mr R.T.Pradeep, Advocate for the petitioners, Mr Vishnu S. Chempazhanthiyil, Advocate for respondents 1 to 3, Mr P.C.Sasidharan, Standing Counsel for the PSC, Mr V.Suresh, Advocate for additional respondent No.8 as well as Mr Antony Mukkath, Government Pleader. 4. The PSC could have kept the vacancy unfilled if a suitable candidate from the community of 'Hindu Nadar' is not available for selection and notified the same separately for that community that selection year. The selection year for the purpose of Rule 15(a) of KS&SSR shall be the period from the date on which the ranked list comes into force to the date on which it expires. Such an exercise was not resorted to by the PSC and all pending turns of vacancies such as 'no candidate available' cannot be compensated after 2.2.2006 as per the Note to Rule 15(a) of KS&SSR. 5. The turns of vacancies of 'Hindu Nadar' omitted to be filled up from the ranked list dated 27.7.2009 cannot be compensated by carving out the same from the ranked list dated 3.8.2015 (after 2.2.2006). Such a direction by the KAT is unsustainable in law whatever be the reason for not following the reservation as per the integrated cycle mentioned in Rule 15(a) of KS&SSR. Such a direction by the KAT is unsustainable in law whatever be the reason for not following the reservation as per the integrated cycle mentioned in Rule 15(a) of KS&SSR. The PSC points out that it is difficult to change the roster point in the midst while a ranked list is being operated and there was delay on the part of the Government in fixing the roster point. 6.The KAT has observed that a recruitment has to be as per the amended Rules though the ranked list was prepared as per the unamended Rules relying on Mohanan v. Director of Homoeopathy [ 2006(3) KLT 641 (FB)]. But it cannot be forgotten that there is a statutory embargo under the Note to Rule 15(a) of KS&SSR to entertain uncompensated turns of vacancies after 2.2.2006. The orders of the KAT as well as the consequential order of the PSC advising three candidates of Hindu Nadar Community out of turn from the ranked list dated 3.8.2015 are hereby annulled. 7. It goes without saying that the vacancies reported before the expiry of the ranked list dated 3.8.2015 shall be duly filled up adhering to the reservation as per roster in the light of the amended provisions of KS&SSR. The original application filed by respondents 1 to 4 who figure in the supplementary list of Hindu Nadar Community in the ranked list dated 27.7.2009 deserves a dismissal. The original petition is allowed. No costs.