Nair
Service Society Vs. Dist. Officer, Kerala Public Service Commission & Ors
[2003] Insc 565 (17
November 2003)
Cji.
& Dr. Ar. Lakshmanan. Dr. Ar. Lakshmanan, J.
The
appellant before us is a Society called Nair Service Society ('NSS' in short)
filed the above appeals through its Secretary against the common judgment and
order dated 05.08.1997 passed by the Kerala High Court in Writ Appeal No. 582
of 1997 etc. batch and also to stay the operation of the common judgment and
also by restraining the respondent authorities from giving effect to the above
judgment in any manner and not to appoint any person from the supplementary
list. The appellant-Society was not a party before the High Court. The
appellant-Society sought leave to file the above appeals. The reason given by
NSS for filing the appeals by a non-party is that the Kerala Public Service
Commission (in short 'the KPSC') which had lost in the High Court was not
filing any appeal after the impugned judgment which was against the interests
of the public and, therefore, the NSS was filing the appeal bona fide in public
interest to protect the weaker sections who would not be able to come to this
Court after the impugned order. This Court on 09.01.1998 directed issue of
show-cause notice to the respondents and granted leave thereafter on
17.08.1998.
The
original petitions were filed by the candidates before the High Court seeking
to direct the KPSC to advise candidates against the non-joining duty ('NJD' for
short) and also for other consequential and incidental reliefs.
The
KPSC makes the selection of candidates for appointment in Government as well as
in governmental bodies like the Kerala State Electricity Board (hereinafter
referred to as 'KSEB'). Appointments in Government service have to be made
following the Rules of Reservation laid down in Rules 15 to 17 of the Kerala
State and Sub- ordinate Service Rules, 1958 (hereinafter referred to as 'the
KSSR') framed under Article 309 of the Constitution. The Rules, inter alia,
provide for a 50% reservation in the aggregate for Scheduled Castes (SC),
Scheduled Tribes (ST) and Other Backward Classes (OBC). They also provide as to
how the reservation vacancies are to be filled in by the various categories and
castes included in the SC, ST and OBC groups. It is only necessary to note here
that every alternate appointment is for Open Competition (merit) and every
succeeding alternate appointment is for reserved candidates. Suffice it to say
that the first proviso to Rule 15 (C) lays down categorically that in no year
reservation, including carrying forward vacancies to a category of post shall
exceed 50% of the total number of vacancies for which selection by direct
recruitment to that category is resorted to in that year. The Note to the rule lays
down that the period of one year for purposes of this proviso shall commence on
and from the day on which the rank list of candidates prepared by the
Commission in respect of that post comes into force.
The dispute
in these appeals arise out of what are called NJD vacancies. This is
illustrated with reference to the facts of one of these cases.
The
KSEB had sought preparation of a select list for appointment of Sub Engineers.
The KPSC prepared a rank list of 177. Along with that it also prepared separate
supplementary lists. Copies of these lists are annexed at pages 125 to 128.
The
list came into force on 04.07.1994. There was a requisition from the KSEB for
150 names on 20.08.1994. These names were advised. There was a second
requisition on 21.12.1994 for 100 more names. The KPSC could furnish only 89
names, as with that advise the list of the candidates in the merit list stood
advised for appointment. Thus, the KPSC advised in all 239 names, drawing 177
names from the main rank list and 62 names from the supplementary list, which
became necessary to fill up the alternate reservation vacancies in the cycle of
rotation of appointment. Be it stated, that in this total advice of 239
candidates, the KPSC which had resorted to the supplementary list for getting
reservation candidates had advised nos. 1 to 18 among the supplementary list
for Muslims. No. 19 onwards to that list could not be advised as the main rank
list got exhausted in the meanwhile.
Out of
the second advice of 89 candidates, 20 candidates did not join duty which comprised
of eleven open competition candidates, three SC's, three Ezhavas (OBC's) and
three Muslims. Those NJD vacancies were therefore, reported to the KPSC for
advice on 20.06.1995. No advice was, however, made by the KPSC whereupon No.19
in the Muslim supplementary list who claimed appointment to one of these NJD
vacancies of Muslims, he being the next unadvised candidate in the Muslim
supplementary list filed O.P.No. 12305 of 1995 in the Kerala High Court for a
direction to the KPSC to advise candidates to the NJD vacancies of Muslims.
This was followed by similar other writ petitions.
The
stand taken up by the KPSC was that once the main rank list stood exhausted by
advising the last of the candidates included thereon the supplementary list of
reservation candidates also ceased to be in force as otherwise the rule of
50:50 will stand violated as pointed out thereon. The KPSC's stand will be
clear from the counter affidavit at pages 79 to 81 as also in the Writ Appeal
pages 102-106 and counter affidavit pages 163-168 in this Court.
A
learned Single Judge of the High Court on 13.02.1997 allowed the petition filed
by the respondents herein holding that there was no justification to reject the
case of the petitioner therein on the ground that the main list got exhausted
on 21.12.1994 and directed the KPSC to advise respondent No.5 therein to
appoint them on the NJD vacancy. In holding so the learned Judge ignored the
mandate of the proviso to Rule 15(c) of the KSSR that the reservation cannot in
any case exceed 50% in any year. In terms of the said order, other original
petitions filed by other candidates were also disposed of.
Aggrieved
by the said order, the KPSC filed writ appeals in the High Court and contended
that the supplementary list is an appendage to the main list and when the main
list ceased to operate, no candidate could be advised from the supplementary
list.
It was
also pointed out that the supplementary lists are prepared to make good the
deficiency of reserved communities in the main list and when the main list
ceased to operate the supplementary list cannot be allowed to operate
independently. A Division Bench of the High Court, by its common judgment,
dated 05.08.1997 dismissed the appeal filed by the KPSC and allowed the writ
petitions filed by the respondents and directed the respondents to issue advise
memo for appointments to those without going into the question whether the
limit of reservation would exceed 50% and also whether they were entitled to be
appointed at all and also the primary question as to what is to be done to the
11 NJD vacancies existed in case of open category candidates and that there was
no supplementary list in their case.
The
High Court in para 8 of its judgment has observed as follows:- "The
petitioners in these Original Petitions contended that they are all entitled to
get appointment against the N.J.D. vacancies as their names are included in
supplementary lists. The stand taken by the P.S.C. is that once the main list
is exhausted or expired it is not possible to advice any candidate who is
included in the supplementary list. It is true that once the main list is
exhausted or expired further advice cannot be made from the supplementary list
for the vacancy that may arise subsequently. That is also the view taken by one
of us (Balakrishnan,J.) in O.P. No. 3902/93. But as regards N.J.D. vacancies,
we do not think that the supplementary list can be totally ignored under all
circumstances. If a few candidates belonging to reserved communities failed to
join duty and there arose some N.J.D. vacancies, if there are candidates
available in the supplementary list, such candidates can very well be advised
for appointment.
The
vacancies to be filled are the actual vacancies which ought to have been filled
up along with the candidates in the main list. Learned counsel for the P.S.C.
pointed out that the N.J.D. vacancies may include the open competition
vacancies as well as vacancies in the reserved category and if reserved posts
alone are allowed to be filled up, that will exceed the quota earmarked for
reservation and it would be a violation of the proviso to Rule 15 of the K.S.
& S.S.R. that in no year reservations including carrying forward vacancies
to a category of post shall exceed 50% of the total number of vacancies for which
selection by direct recruitment to that category is resorted to in that year.
Such situation may occur under certain circumstances, but that does not amount
to denial of opportunity of a particular class of persons as the general N.J.D.
vacancies are filled up in the next batch of selection. Even in the instant
case, 150 candidates were advised on 26-8-1994. Out of 150 candidates, 125
candidates were against fresh vacancies and 25 were N.J.D. vacancies and the
counsel for the P.S.C. admitted that 25 N.J.D. vacancies were filled up and
thereafter the roster point was fixed in respect of 125 candidates.
Therefore,
it cannot be said that there is any violation of the proviso to Rule 15 of the
K.S. & S.S.R. in the sense that there was denial of opportunity to any of
the candidates, either open competition candidates or the reserved
candidates." Aggrieved against the above judgment, the appellant-Society,
after obtaining leave from this Court filed the special leave petitions against
the common judgment impugning the judgment as erroneous and is against the
provisions of the statute, namely, Kerala State and Subordinate Service Rules,
1958 and is, therefore, liable to be set aside.
On the
above facts and circumstances, the following two primal questions of law arise
for consideration by this Court:-
1)
Whether the High Court, after holding that once the main list got extinguished
the supplementary list also automatically gets extinguished, is correct in its
conclusion that the petitioners in the original petition would be entitled to
appointment based on the supplementary list when they did not have any legal
rights or fundamental rights over the selection.
2)
Whether it is open to the High Court to exceed the percentage of reservation
beyond 50% against the statutory provisions.
We
heard Mr. K.K. Venugopal, learned senior counsel for the appellant, and Mr.P.A.
Mohammed and Mr. T.L.V. Iyer, learned senior counsel for the contesting
respondents. Learned senior counsel invited our attention to the relevant
Rules, namely, Rules 14-17 of the Kerala State and Subordinate Service Rules, 1959
which lays down the principle of reservation under Article 16(4). The Rules lay
down the principle and procedure to be followed in giving effect to the
reservation for Scheduled Castes/Scheduled Tribes and Backward Classes in the
State of Kerala. Our attention was drawn to the
relevant Rules of the Kerala Public Service Commission Rules of Procedure
(Annexure-P7) and the Circular No. 17/87 dated 04.07.1987 of the Kerala Public
Service Commission and other relevant records. Mr. Venugopal, learned senior
counsel for the appellant, further submitted that the impugned judgment is
against the statutory principle and that by the judgment the backward turns
alone are to be fl%A 7 p ? tbjbjU U )( 7| 7| X l 2 2 2 2 2 2 2 ^ \ \ \
8 " ( D ^ Q R x x ( P R R R R R R $ # C- x v 2 v T 2 2 T T T 2 2 P T P T
` T 4 2 2 4 l l"C ^ ~ \ 8 d 4 4 ! 0 Q 4 ; 8 ;4 T F 8 ~ ` 2 2 2 2 Y
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NOS. 4075-4081 OF 1998 Nair Service Society .. Appellant (s) Versus
Dist. Officer, Kerala Public Service .. Respondent (s) Commission & Ors.
Dr.
AR. Lakshmanan, J.
The
appellant before us is a Society called Nair Service Society ('NSS' in short)
filed the above appeals through its Secretary against the common judgment and
order dated 05.08.1997 passed by the Kerala High Court in Writ Appeal No. 582
of 1997 etc.
batch
and also to stay the operation of the common judgment and also by restraining the
respondent authorities from giving effect to the above judgment in any manner
and not to appoe when according to the KPSC the respondents were not even
entitled to appointment. It was submitted for the aforesaid reasons the
supplementary list cannot be acted upon and the respondents would not be
entitled to any reliefs.
Mr.
T.L.V. Iyer, learned senior counsel, submitted that though the KPSC contended
before the High Court that the supplementary list has no independent existence
after the exhaustion of the main list, the KPSC has not preferred any special
leave petition before this Court and has decided to implement the order passed
by the Division Bench of the High Court. It was also contended by learned
counsel for the KPSC that the appellant is not a party in the High Court
proceedings commenced from 1995 and had no right or locus standi to rush to
this Court and that the appeal at the instance of the third party society is
not maintainable in law.
We do
not propose to deal with the question of maintainability at this stage since
the special leave petitions were filed after obtaining leave from this Court
and later this Court also had granted leave to the appellant. This apart, it
was stated in the counter affidavit filed in this Court that the appointment to
the services was done in complete regard and compliance of the High Court and,
therefore, the petitioner-Society ought not to have any grievance. Moreover, as
per the said directions of the High Court, the KPSC advised for appointments of
some respondents and the vacancies were filled up by the candidates included in
the supplementary list and all the appointed candidates are working in various
departments of the Government of Kerala. We, therefore, do not propose to
disturb the said appointments at this distance of time, that too at the
instance of the appellant Nair Service Society, a third party to the
proceedings in question. We are also not inclined to disturb the appointments
since the really aggrieved persons have not questioned the correctness of the
appointment of some of the candidates who were included in the supplementary
list. We make it clear that this judgment of ours shall not affect the
appointments already made pursuant to the judgment of the Division Bench of the
High Court.
These
appeals have been filed by the appellant-Society by way of public interest
litigation. In the judgment in R.K. Jain vs. Union of India & Ors. reported
in AIR 1993 SC 1769, in paragraph 74 at page 1803 of the judgment, it has been
held that, "In service jurisprudence, it is settled law that it is for the
aggrieved person i.e. non-appointee to assail the legality of the offending
action. Third party has no locus standi to canvass the legality or correctness
of the action. Only public law declaration would be made at the behest of the
petitioner, a public spirited person." Since the question of law raised by
learned senior counsel is of great public importance, we are inclined to
consider and decide the two questions formulated by us for our decision in this
appeal.
We
have given our thoughtful consideration to the legal submissions made by the
counsel appearing for the respective parties. The impugned judgment, in our
opinion, did not appreciate the well-settled principles of law that the Court
should not substitute the provision of a statute by its own decision. In this
case, the impugned judgment ignored the provisions of statutory rules to
substitute the decision in the place.
The
K.S. and S.S. Rules, 1959 lays down the principle of reservation under Article
16(4). The Rules laid down the principle and the procedure if followed in
giving effect to the reservtion for Scheduled Castes and Scheduled Tribes and
Backward Classes in the State. Rule 15 refers to the integrated cycle of
rotation and it deals with the procedure to be adopted in selections where any
candidate may become available for recruitment from the reserved group. This
Rule lays down the principle of limitation of percentage of reservation
including the carry forward. The reservation of vacancies including carry
forward vacancies shall not exceed 50% of the total number of vacancies for
which selection by direct recruitment to that category is resorted to in that
year. Rule 16 provides that there is sub-rotation among OBCs. Rule 17
enumerates the sub groups among OBCs mentioned in Rule 14(a) and Rule 16.
Through out these rules, there are clear indications that the scheme of
reservation followed in the State of Kerala under direct recruitment is with respect to vacancies. Rule 14(c) lays
down the manner of making appointments. Rule 15 also makes it clear that
appointment referred to is with reference to vacancies as made out in the
proviso under rule 15(c) and the note thereunder. The judgment of the High
Court proceed on the wrong premise that the principle of reservation is with
reference to the post. In our view, Rules 14-17 do not contemplate making a
supplementary list and the statutory rules envisage making a ranked list which
is defined in Rule 2(g) of the KPSC Rules of procedure. Rule 2(g) of the KPSC
Rules of procedure reads thus:- ""ranked list" means list of
candidates arranged in the order of merit either on the basis of interview or
examination or by both".
The
above definition shows that there is only one ranked list. Therefore, the
supplementary list prepared by the KPSC to satisfy the rules of reservation
has, in fact, no statutory backing. For that reason when the main list is
exhausted or expired, supplementary list cannot be allowed to operate. If the
supplementary list alone is allowed to operate it would amount to giving
greater sanctity to it and long life than the main list prepared in accordance
with the Rules. Secondly, after the expiry or exhaustion of the main list if
the supplementary list is operated it would violate the first proviso to Rule
15(c) of the General Rules. The reason is that the NJD vacancies in respect of
OBC candidates cannot be filled up after the expiry or exhaustion of the main
list and only reserved candidates can be advised from the supplementary list
which would violate 50% rule as no OC Category candidates could be advised. As
rightly contended by Mr. Venugopal, it would adversely affect the OC Category
candidates and violate the statutory Rule. The reason given by the Division
Bench that if any NJD vacancy arise in the OC category, the same could be
filled up in the next batch of appointment thereby, the rights of OC candidates
can very well be protected without any violation of the proviso to Rule 15 of
K.S and S.S.R. is not legally acceptable. The above reasoning, in our opinion,
is equally acceptable to NJD vacancies which arise in the reserved categories
as well. By advising candidates from the supplementary list, without any
opportunity of balancing the advise with an open competition candidate the
consequence would have been a violation of 50:50 rule with a tilt in favour of
the reserved candidates lasting their quota above 50%. The net result is that
there will be excess reservation over 50% in the year.
In our
opinion, the KPSC has failed to protect the interest of the open competition
candidates while implementing the decision of the High Court. It is an admitted
position in the present case that the open competition quota of NJD vacancies
have not been filled up and the only plea that the list got exhausted. If the
list was not expired, the NJD vacancies of the OC category also would be filled
up. The open competition candidates who belong to the forward communities alone
do not get the appointment by the process evolved by the KPSC.
For
regulating, inter alia, procedure in relation to the preparation of the rank
lists the KPSC has made rules entitled the KPSC Rules of Procedure, Rule 3
enumerates the various types of lists/examination which the Commission may
conduct to assess the merits of candidates considered for appointment to a
post. Needless to say it includes written examination and oral test
[interview]. Rule 4 insofar as it is relevant provides that where a written
examination is conducted, the Commission shall prepare a list in the order of merit
of such number of candidates as it may determine from time to time.
The
provisos to the Rule enable the Commission to prepare separate rank lists in
the order of merit of candidates coming under separate groups in accordance
with the qualifications or other conditions as stipulated in the notification;
and also further that for the purpose of satisfying the rules of reservation of
appointment of SC's, ST's and OBC's, also, the Commission may prepare such
supplementary lists as found necessary from time to time in the order of merit
of the candidates belonging to such classes. The relevant part of the Rules
reads as under:
"4.
Where a written examination and/or a practical test is conducted by the
Commission for recruitment to a service or post, the Commission shall:
i) announce:
(a)
The qualifications required of the candidates for the examination.
(b)
The conditions of admission to the examination including the fees
(c)
The subjects, scheme or syllabus of the examination, and
(d)
The number of vacancies to be filled from among the candidates for the
examination Provided that where the exact number of vacancies to be filled is
not ascertainable, the commission may either announce the approximate number of
vacancies to be filled or state that the number of vacancies has not been
estimated.
(ii)
Invite applications and consider all the applications so received.
(iii)
Make all arrangements for the conduct of the examination for the candidates,
whose applications are found to be in order, and
(iv)
Prepare a list in the order of merit of such number of candidates as the
Commission may determine from time to time.
Provided
that the Commission may also prepare separate ranked lists in the order of
merit of candidates coming under separate groups in accordance with the
qualifications or other conditions as stipulated in the notification.
Provided
further that for the purpose of satisfying the rules of reservation of
appointment to scheduled Castes, Scheduled Tribes and other Backward classes
also the commission may prepare such supplementary lists as found necessary
from time to time in the order of merit of the candidates belonging to such
classes. "It is only necessary to refer to one more Rule, namely, Rule 13
which provides the period for which a list as above prepared shall remain in
force. The normal period for which the list is to remain in force is one year
from the date on which it is brought into force, but it will continue to be in
force till the publication of a new list after the expiry of the minimum period
of one year or till the expiry of three years whichever is earlier. Based on
the procedure so prescribed, the KPSC prescribes the ranked merit list in the
order of merit. The candidates are arranged strictly according to merit and are
not arranged according to community or caste or group or according to the cycle
of rotation, in reservation. The number of candidates to be included in this
rank list is filled with reference to some principles followed by them, which
are explained in para 4 of the KPSC's Writ Appeal before the High Court (pages
102-103). The candidates are advised for appointment as and when vacancies are
reported, but following the rules of Reservation and rotation prescribed in
Rules 14 to 17 of the KSSR.
With a
view to secure adequate representation of reserved communities in the selection
and thereby to effectuate the policy of reservation, the KPSC prepares what it
calls supplementary list of candidates for the different reserved communities
who will be entitled to appointment, comprising of a number equal to half the
number of turns as per the quota to each reservation group. Thus if Muslims
were entitled to ten turns in the list, the supplementary list of Muslims will
comprise of at least five Muslims. The advantage of this procedure was that no
reservation turn will be passed over to open competition and reservation groups
will get the representation due to them, at the same time maintaining the
balance of 50:50 between open competition and reservation candidates.
The
supplementary list was only in respect of reservation categories. There was no
supplementary list prepared in relation to open competition merit candidates
for the reason that where the last of the candidates has been advised from the
rank list in the open competition, there was no further scope for drawing on
the supplementary list or advising from that list, as all the advice hitherto
was on the basis of one open competition followed by reservation, thereby
keeping the balance of 50:50. If any more candidates are advised from the
supplementary list, the number of reservation candidates will go up and the
50:50 rule will be violated.
The
KPSC was therefore always of the view that once main rank list got exhausted by
advising the last of the candidates therein, the supplementary list also ceased
to be in force as there was no scope for advising any more candidates therefrom
without violating the 50:50 rule.
All
this is explained in the Writ Appeal filed by the KPSC as also the counter
affidavit filed in this Court.
In the
case on hand, the appellant-Society is seeking to enforce the rule of
reservation to limit the same upto 50% in order to maintain the balance. The
KPSC even stated that under Rule 15, the 50% rule of reservation should be
observed in a selection year of the ranked list. The Rules clearly safeguards
the interest of the backward communities by providing that if no candidate was
available to a particular community in a particular year, it should be restored
at the earliest after having passed over by adjusting the post of another
community, which derived extra benefit. But in a case of open competition
candidate there is no right for restoration as set out by the KPSC in its
counter.
A
rejoinder affidavit was filed on behalf of the appellant-Society. Para 7 of the
rejoinder affidavit is reproduced hereunder:
"In
Para 3 of its counter, the commission itself admits that the vacancy created as
a result of 'non joining duty' of a candidate must be made by advising the
candidates belonging to the same group such as O.C. or B.C.
But
for this the ranked list should be valid. This is evident from the following:
As the
turns in the rotation are continuous, the 'non joining duty' (NJD) of a
candidate, results in the break of the chain in the cycle of rotation. The
break in the chain is mended by advising a candidate, belonging to the group
concerned. This being the position, the turns becoming available due to 'Not
Joining Duty' of candidates is filled up first and only after filling up the
'not joining duty' turn the remaining vacancies are filled up following the
turns in the rotation from where it ended last time.
Candidates
can be advised against the vacancies caused due to the 'Not Joining Duty' only
from a valid ranked list. So Not Joining Duty vacancy resulting from the
failure of candidates must be filled up by advising candidates. Otherwise, the
principles contained in Rule 14 to 17 KS & SSR will be defeated.
Further
in annexure R1, at page 176, it is stated as follows:
According
to the above judgment, vacancies arising by reason of failure of candidates to
join duty must be filled up by advising candidates belonging to the same group
O.C. or reserved. As per the procedure now followed by the Commission, if a
candidate fails to join duty in a particular post, that advice is cancelled and
another candidate is advised to fill up the above vacancy continuing the
rotation from where it previously ended. As this procedure is against the
spirit of the above judgment, the Commission order that hereafter the vacancies
arising due to not joining duty of the candidates already advised, have to be
filled up by the candidates belonging to the same group. This will apply to all
requisitions (both for special and general recruitment) received on and after
6.11.1981.
The
Commission supported the case of the petitioner Society, in its affidavit in paras
4 and 5 also. The Annexures R1 and R2 also support the case of the Petitioner
including that once the ranked list expired the supplementary list also gets
exhausted and that it should not be acted upon." However, in spite of the
averments made as above, the KPSC decided to implement the Order of the High
Court thereby failed to protect the interests of the Open Category candidates
by announcing the General Circular No. 25/97 dated 22.12.1997. The said
circular is stated to be retrospective in nature and to be acted upon w.e.f.
13.02.1997.
As
already noticed, the Government of Kerala issued a Circular on 22.12.1997 only
because the KPSC had to comply with the judgment of the High Court. Now that we
have clarified the correct position of law as canvassed by the counsel
appearing for parties, the Circular dated 22.12.1997 will have no effect.
Article
16 of the Constitution of India deals with equality of opportunity in matters
of public employment. The said Article reads thus:
"Article
16.
(1)
There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
(2) No
citizen shall, on grounds only of religion, race, caste, sex, descent, place of
birth, residence or any of them, be ineligible for, or discriminated against in
respect of, any employment or office under the State.
(3)
Nothing in this article shall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment or appointment to an
office under the Government of, or any local or other authority within a State
or Union territory, any requirement as to residence within that State or Union
territory, prior to such employment or appointment.
(4)
Nothing in this article shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately represented in
the services under the State.
(4A)
Nothing in this article shall prevent the State from making any provision for
reservation in matters of promotion, with consequential seniority, to any class
or classes of posts in the services under the State in favour of the Scheduled Castes
and the Scheduled Tribes which, in the opinion of the State, are not adequately
represented in the services under the State.
(4B)
Nothing in this article shall prevent the State from considering any unfilled
vacancies of a year which are reserved for being filled up in that year in
accordance with any provision for reservation made under clause (4) or (4A) as
a separate class of vacancies to be filled up in any succeeding year or years
and such class of vacancies shall not be considered together with the vacancies
of the year in which they are being filled up for determining the ceiling of
fifty per cent reservation on total number of vacancies of that year.
(5)
Nothing in this article shall affect the operation of any law which provides
that the incumbent of an office in connection with the affairs of any religious
or denominational institution or any member of the governing body thereof shall
be a person professing a particular religion or belonging to a particular
denomination." Clause (4) only permits reservation for `backward classes
of citizens' who are not, in the opinion of the State, adequately represented
in the services of the State. It does not permit reservation for any person who
does not belong to the category of `backward classes', nor does it enable the
State to reserve posts on communal lines.
This
Court in the case of Indra Sawhney etc. etc. vs. Union of India and Others etc.
etc. reported in AIR 1993 SC 477, held that the reservation of more than 50% of
the vacancies as they arise in any year or a carry forward Rule will be outside
the protection of Art.16(4). A normal Rule is that the reservation under Art.
16(4) should not exceed 50% of the appointments or posts to be made in a
particular year.
This
Court has also observed that the Rule of 50% a year will be taken as the unit
and not the entire strength of the cadre or service as the case may be(paragraph
96). If suitable candidates are not available in the year to fill the reserved
seats, the reserved quota should not be carried forward to the next year, so as
to exceed the 50% limit for reservation (paragraphs 98-99).
The
reserved vacancies should not be carried forward beyond the period of three
years at the end of which they lapse and cannot be revived and filled
retrospectively by applying the relaxed norms. State Bank of India Scheduled
Caste/Tribe Employees' Welfare Association and Another vs. State Bank of India
and Others [(1996) 4 SCC 119].
It is
also observed in the said judgment that Article 16(4) speaks of class
protection and not the protection of individuals.
We
are, therefore, of the opinion that the High Court is not correct in its
conclusion that the respondents would be entitled to appointment based on the
supplementary list. Question No.1 is answered in the negative. Likewise, it is
not open to the High Court to exceed percentage of reservation beyond 50%
against the statutory protection. This question is also answered in the
negative. We, therefore, held that once the main list is exhausted, the
supplementary list has no survival of its own.
With
these observations, the appeals stand disposed of. No costs.
Back
