Nair Service Society
Vs. T. Beermasthan & Ors.  INSC 649 (30 March 2009)
REPORTABLE IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1991 OF
2009 [Arising out of SLP(Civil) No. 20419 of 2008] Nair Service Society
.......Appellants Versus Dr. T. Beermasthan & Ors ......Respondents And CA
No. 1993 of 2009 [@ SLP(C) No. 29345 of 2008] CA No. 1994 of 2009 [@ SLP(C) No.
30967 of 2008] CA No. 2000 of 2009 [@ SLP(C) No. 2674 of 2008] With CA No. 1992
of 2009 [@ SLP(C) No. 21139 of 2008] CA No. 1995-1999 of 2009 [@ SLP(C) Nos.
439-443 of 2008]
MARKANDEY KATJU, J.
Nos..........of 2009 [@ SLP(C) Nos. 20419, 29345, 30967 & 2674 of 2008] 1.
2. These appeals have
been filed against the judgment dated 23.5.2008 passed by the Division Bench of
the Kerala High Court in WP No. 1697 of 2007. The appellant society in the
first of the appeals is an incorporated body rendering social service. It
purports to espouse the cause of merit in appointments in government service
and public sector undertakings. The appellant in the second of the appeals (not
a party before the High Court) is a general category candidate whose chance of
selection and appointment as a medical officer was adversely affected by the
decision of the High Court.
The appellant in the
third of the appeals is the Kerala Public Service Commission, which is
entrusted the task of executing the recruitment and selection process. The
appellants in the fourth of the appeals (not parties before the High Court) are
candidates included in the rank list prepared and published by PSC for
different posts in various departments. According to them they would have been
advised and appointed but for the interpretation placed by the High Court in
its decision in WA No. 1697 of 2008.
3. Heard learned
counsel for the parties and perused the record. The writ appeal was filed
before a division bench of the High Court against the judgment of a learned
Single Judge of the High Court in W.P. (C). No. 25171 of 2006-V dated
4. The point that
arises for decision in this appeal is whether a correct construction has been
placed on Rules 14 to 17 of the Kerala State & Subordinate Services Rules,
1958 (in short `the Rules') by the Kerala Public Service Commission (in short
the P.S.C.), while selecting candidates for the post of Medical Officer (ISM).
5. The brief facts of
the case are that the Kerala Public Commission invited applications for
appointment to the post of Medical Officer (Indian System of Medicine) under
the Kerala Government, by the notification published in the Kerala Gazette
dated 14.10.2003. The rank list was published on 31.12.2005. The writ
petitioners were candidates and included in the supplementary list of Muslims
at rank Nos.17 and 18.
According to the writ
petitioners, 250 candidates were advised, out of which 198 were from the main
list and 52 from the supplementary lists. In that process, only 28 Muslim
candidates were advised. It is alleged that going by Rules 14 to 17 in Part II
of the Rules, 30 candidates should have been advised from the Muslim community.
If two more Muslim candidates had been advised, the writ petitioners would have
got appointment. Feeling aggrieved by the omission of the P.S.C to advise them,
the Writ Petition was filed by the two writ petitioners, seeking the following
4 "(i) to issue
a writ of mandamus directing the 3rd respondent to issue advice memos to the
(ii) to issue a writ
of mandamus directing the 3rd respondent to set right the errors and
irregularities in following the principles of communal rotation and reservation
in advising candidates from Ext.P1 ranked list."
6. According to the
writ petitioners, rank Nos.28, 50, 82 and 111 in the main list were Muslims and
their turn had arisen under the open competition turn. However, they were
advised for appointment in the reserved vacancies and to that extent Muslim
candidates in the supplementary list lost their chances.
7. According to the
Public Service Commission, the candidates were advised strictly in accordance
with the Rules. The rank list was published by the P.S.C. on 31.12.2005 by
including 252 candidates from the main list and 107 from the supplementary
lists of various reservation candidates.
Upto 24.11.2006, 268
candidates were advised from the ranked list against the fresh vacancies and
the non-joining duty vacancies reported by the appointing authority. It was
also stated that the last open competition candidate advised was rank No. 213
and the last Ezhava candidate advised was rank No.226 in the main list. It was
further stated that the last Muslim 5 candidate advised was rank No.12 in the
supplementary list for Muslims.
According to the
P.S.C., the turn of the writ petitioners did not arise for advice, Rank No.8,
who belongs to the Muslim community was advised under the open competition
turn, and other Muslim candidates included in the main list were advised under
the Muslim reservation turn.
8. The P.S.C filed an
additional counter affidavit dated 1.3.2007 before the High Court. In the said
counter affidavit, the details of the rotation were given. It was stated
therein that the recruitment to the post of Medical Officer (ISM) ended at Main
Rotation VIII 39 OC. For the present selection, the rotation started at MR VIII
40 OBC and ended at MR XI 7 OC while working in the rotation for the 267 fresh
vacancies reported. As on 13.2.2007, 287 candidates were advised including 20
The details of Muslim
candidates advised are also given. Rank No.8, who was a Muslim candidate, was
advised under the open competition turn. The last Muslim candidate advised from
the main list was rank No.252. From the supplementary list, 14 Muslim
candidates were advised. The P.S.C emphatically refuted the contention of the
writ petitioners that rank Nos. 28, 50, 82 and 111 should have been advised
under the open competition turn.
It is asserted that
the advices were made strictly in accordance with Rules 14 to 17 of the Rules.
9. The learned Single
Judge, who heard the Writ Petition, allowed it, holding that the method adopted
by the P.S.C. was not in accordance with the Rules. He held that in view of
Rule 14(b) of the Rules, the members of Scheduled Castes, Scheduled Tribes and
Other Backward Classes are entitled to be considered for appointment under the
open merit quota and if any candidate belonging to those communities is
appointed in the open merit quota, the number of seats reserved for the said
communities shall not be affected by the same. The learned Judge held that
other provisions of Rules 15 to 17 should be read subject to Rule 14(b). Based
on that finding, the learned Judge directed the P.S.C to invoke its power under
Rule 3(c) of the Rules and modify the advices appropriately, so that the Muslim
candidates who got appointment under the reservation quota, but who would have
got appointment under the open competition quota, are adjusted against the open
competition quota and in their place, other Muslim candidates are advised under
the reservation quota. Aggrieved by the judgment of the learned Single Judge,
the P.S.C filed the Writ Appeal No. 1697 of 2007.
10. According to the
P.S.C., the unit of appointment for working out rotation is 20, as provided
under Rule 14(a). It was alleged that the learned 7 Single Judge failed to
comprehend the impact of the said provision. The P.S.C is bound by Rule 14(a)
in working out the communal rotation. It was also contended that none of the
affected candidates was impleaded in the Writ Petition and for that reason
alone, the Writ Petition should have been dismissed.
11. During the
pendency of the Writ Appeal, notice was taken out to all affected persons by
publishing notice dated 9.10.2007 in all editions of Kerala Kaumudi daily dated
22.10.2007, published from Kerala. In the Writ Appeal, the Nair Service Society
got itself impleaded as additional 7th respondent. It supported the contentions
of the P.S.C in the appeal.
However, the Division
Bench of the High Court disposed off the writ appeal broadly upholding the
judgment of the learned Single Judge. The High Court held that where the number
of vacancies reported is more than 20, the unit of appointment shall be the
number of vacancies reported and not 20. It held that if reservation is applied
to a 20 point roster, as done by P.S.C., it will result in denial of
reservation to eligible candidates as per the percentage of reservation set
apart for them and result in candidates under merit quota cornering more
vacancies than what was due to them at the expense of communities eligible for
reservation. The division bench held 8 that Rule 14(a) would apply only where
vacancies reported are less than 20.
The division bench
issued the following directions :
advices made on 1.2.2006, 17.4.2006 and 17.7.2006 of 161, 30 and 40 vacancies
respectively shall be reopened notionally. The turns of the candidates shall be
re-arranged, taking the vacancies as three blocks of 161, 30 and 40
respectively and the three advice lists shall be notionally re- arranged, as
provided in the third proviso to Rule 14(c). Every alternative vacancy in the
three blocks of vacancies shall be firstly allotted to open competition
candidates and the remaining vacancies to the communities eligible for reservation,
subject to the rule that reservation in a particular year shall not exceed 50%.
As a result, if it is found that any of the candidates, eligible for
reservation, were though entitled to be advised but not actually advised, they
shall be advised for appointment by the P.S.C to the appointing authority. For
the purpose of seniority, the advice of the candidates so made will take effect
only from 10.4.2007, the date on which the learned Single Judge rendered the
decision. It is clarified that the advices and the appointments of candidates
already made by the P.S.C as per the above mentioned three advices shall not be
affected by this judgment. In other words, relief is granted in this Writ
Appeal without disturbing the candidates already advised before 10.4.2007. The
candidates additionally advised as per this judgment shall be accommodated by
the appointing authority in the vacancies to which candidates were advised
after 10.4.2007 or were reported after 10.4.2007, but before the main list
exhausted. The advice of candidates, if any, made pursuant to the interim order
of the Division Bench staying the judgment of the learned Single Judge, being
definitely subject to the final orders in the Writ Appeal, can be re-opened by
the P.S.C., to implement this judgment. The P.S.C shall undertake and complete
the exercise and advise the candidates as directed above within one month from
the date of production of a copy of this judgment. The appointing authority
shall make consequential appointments without further delay. The Writ Appeal is
disposed of as above".
12. Before dealing
with the contentions of the learned counsel for the parties we may refer to the
relevant rules which are rules 14 to 17 of the rules. The relevant part of
these rules are quoted below:- "14. Reservation of appointments :- Where
the Special Rules lay down that the principle of reservation of appointments
shall apply to any service, class or category, or where in the case of any
service, class or category for which no Special Rules have been issued, the
Government have by notification in the Gazette declared that the principle of
reservation of appointments shall apply to such service, class or category,
appointments by direct recruitment to such service, class or category shall be
made on the following basis:
(a) The unit of
appointment for the purpose of this rule shall be 20, of which 2 shall be
reserved for Scheduled Castes and Scheduled Tribes and 8 shall be reserved for
the Other Backward Classes and the remaining 10 shall be filled on the basis of
Provided that out of
every five posts reserved for Scheduled Castes and Scheduled Tribes, one shall
go to Scheduled Tribe candidate and the remaining four shall go to Scheduled
Caste candidates and in the absence of a candidate to fill up the post reserved
for Scheduled Tribe candidates, it shall go to a Scheduled Caste Candidate and
(a) The claims of
members of Scheduled Castes and the Scheduled Tribes and Other Backward Classes
shall also be considered for the appointments which shall be filled on the
basis of merit and where a candidate belonging to a Scheduled Caste, Scheduled
Tribe or Other Backward Class is selected on the basis of merit, the number of
10 posts reserved for Scheduled Castes, Scheduled Tribes or for Other Backward
Classes as the case may be, shall not in any way be affected.
under this rule shall be made in the order of rotation specified below in every
cycle of 20 vacancies.
1. Open competition
2. Other Backward
3. Open competition
4. Scheduled Castes
and Scheduled Tribes
5. Open competition
6. Other Backward
7. Open competition
8. Other Backward
9. Open competition
10. Other Backward
11. Open competition
12. Scheduled Castes
and Scheduled Tribes
13. Open competition
14. Other Backward
15. Open competition
16. Other Backward
17. Open competition
18. Other Backward
19. Open competition
20. Other Backward
Classes Provided that the fourth turn in the third rotation and the twelfth
turn in the fifth rotation shall go to Scheduled Tribe candidates and the
fourth and twelfth turns in the first, second and fourth rotations, the twelfth
turn in the third rotation and the fourth turn in the fifth rotation shall go
to Scheduled Caste candidates and in the absence of a candidate for appointment
against the turn allotted for Scheduled Tribe candidates, it shall go to a
Scheduled Caste candidate and vice versa:
11 Provided also
that in preparing the list of eligible candidates to be appointed under this
rule applying the rotations specified above in every cycle of 20 vacancies, the
candidates eligible to be selected on open competition basis, that is,
1,3,5,7,9,11,13,15,17 and 19 shall be selected first and, then the candidates
for the reservation turns, out of those available in the ranked list in the
particular groups having regard to their ranks. In finalizing the select list
any candidate of the same community selected on open competition turns if found
to be below in the order of the candidates selected from the same community on
the basis of reservation, for the fixation of ranks as per rule 27 of these
rules, candidates of the same community obtaining higher marks shall be
interchanged with the candidates of the same community in the reservation turn
for the purpose of ranking.
anything contained in this rule, posts to which appointments are made by direct
recruitment from a common ranked list prepared on the basis of a common test or
interview or both, shall be grouped together for the purposes of observance of
the rules relating to reservation of appointments.
(e) A supplementary
list of sufficient number of suitable candidates, not less than five times the
reservation quota, if available, from each community or group of communities
for the purpose of satisfying the reservation quota, shall be prepared and
xx xx xx xx xx xx xx
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, 12 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.
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
(b) If a suitable
candidate is not available for selection from the group of communities
classified as "Scheduled Castes" in the turn allotted from such group
in the Annexure, the said group shall be passed over and the post shall be
filled up by a suitable candidate from the group of communities classified as
and vice versa.
I The benefit of the
turn forfeited to Scheduled Castes or Scheduled Tribes communities by reason of
it being passed over under sub-rule (b) shall be restored to it, at the
earliest possible opportunity, if a suitable candidate from that particular
community or group is available for selection by making adjustment against the
claims of the Scheduled Caste or Scheduled Tribe community that derived the
extra benefit by reason of such passing over.
17.Reservation to a
category of posts shall not exceed 50% of the total number of vacancies for
which selection is resorted to in a selection year:
13 Provided that the
50% ceiling to reservation specified above shall not apply to the filling up of
any number of reserved vacancies kept unfilled and notified separately as per
sub-rule (a) of rule 15 to be filled exclusively by direct recruitment from
among a community or group of communities:
Provided further that
such class of vacancies to be filled up in that year or in any succeeding year
or years shall not be considered together with the vacancies of the year in
which they are being filled up for determining the ceiling of 50% of the total
number of vacancies of that year.
16. There shall be
sub-rotation among major groups of Other Backward Classes.
17. (1) The grouping
of Other Backward Classes for the above purpose shall be as indicated below :
1. Ezhavas, Thiyyas
3. Latin Catholics
and Anglo Indians
4. Nadars (Hindu
Nadars and Nadars included in S.I.U.C)
5. Scheduled Caste
Converts to Christianity
7. Dheevaras 8. Other
Backward Classes put together i.e. communities other than those mentioned in
items 1 to 7 above included in the list of "Other Backward Classes".
(2) (a) The 40%
reservation allowed to Other Backward Classes shall be distributed among the
different groups of Backward Classes in the following proportion:- 14 (i) For
direct recruitment to posts included in the Kerala Last Grade Service.
Out of every 40
appointments, 11 shall be given to Ezhavas, Thiyyas and Billavas, 10 to
Muslims, 4 to Latin Catholics and Anglo Indians, 3 to Nadars (Hindu Nadars and
Nadars included in S.I.U.C), 2 to Scheduled Caste Converts to Christianity, 2
to Viswakarmas, 2 to Dheevaras and 6 to Other Backward Classes put
xx xx xx xx xx xx xx
13. The question in
this case is about the interpretation of rules 14 to 17 of the Rules.
14. A bare perusal of
Rule 14 (a) of the Rules shows that a unit for appointment for the purpose of
Rule 14 shall be 20, of which 2 are reserved for SC/ST candidates and 8 for OBC
candidates, while the remaining 10 shall be on the basis of open merit. The
proviso to Rule 14 (a) states that out of 5 posts reserved for SC/ST candidates
one post shall go to ST candidates and the remaining to SC candidates, and in
the absence of ST candidates it shall go to a SC candidate and vice versa.
15. Rule 14 (b)
however, states that if a SC/ST/OBC candidate is so meritorious that even if he
is not treated as SC/ST/OBC he would still 15 qualify in the open merit then
he would not be treated as a SC/ST/OBC candidate and he will be adjusted
against the 10 seats meant for open merit candidates. In other words, he will
not take away the seats reserved for SC/ST/OBC candidates.
16. Some of the
learned counsel appearing for the respondents have submitted that Rule 14 (b)
will prevail over rule 14 (a). We do not agree. In our opinion a harmonious
interpretation has to be given to Rules 14 (a) and Rule 14 (b), and neither
prevails over the other.
17. It may be noted
that rule 14 (a) states that the unit of appointment for the purpose of the
Rule shall be 20. A specific number 20 has been stated in Rule 14 (a). Rule 14
(a) does not state that 50% seats are for open merit candidates, 40% for OBC
candidates and 10% for SC/ST candidates. In other words, Rule 14 (a) does not
mention the percentage of seats at all, but instead it mentions a specific
number, viz., 20.
18. In our opinion
reading Rules 14 (a) and (b) along with Rule 14 (d) of the Rules, the correct
interpretation of the Rules is that a common rank list as per merit for all the
successful candidates in respect of selection to the vacancies notified by the
Public Service Commission should be prepared, 16 and reservation should be
applied with reference to units of 20. That is, the first 20 most meritorious
candidates, that is, from Serial No. 1 to 20 in that common rank list should
first be considered for the purpose of reservation.
At that stage,
candidates from Serial No. 21 and below are not to be considered.
19. Out of these 20
most meritorious candidates, the appointments have then to be made in
accordance with Rule 14 (c), which has been quoted above.
20. It is only after
the selections have been made against these first 20 most meritorious selected
candidates, that the P.S.C. should move to the next batch of 20 in the rank
list i.e., from Serial No. 21 to 40, and the same process is to be repeated
again. Thereafter the third batch of 20 candidates i.e., from Serial No. 41 to
60 should be considered and selections and appointments made as per Rule 14
21. Rule 14 (b) of
the Rules only means that in these batches of 20 selected candidates the SC/ST
or OBC candidate who is so meritorious that 17 he qualified even in the open
merit then he will be given an open merit seat and he will not take away any of
the reserved seats.
22. Some of the
learned counsel for the respondents submitted that this will cause hardship to
some SC/ST/OBC candidates. In our opinion hardship is not a relevant
consideration when the meaning of the Rule is plain and clear. The literal rule
of interpretation applies in this case.
23. In our opinion
the effect of the High Court's decision is to read a proviso into rule 14(a) of
the Rules as follows: "provided that where the number of vacancies
reported to the Commission for advice exceeds 20, the unit of appointment shall
be the number of vacancies reported to the Commission". This is not a
legitimate method of interpretation. The High Court could not have re-written
Rule 14(a) in this manner based on its conjectures and surmises as to what the
legislature intended. It is now well settled by this Court in Dr. Ganga Prasad
Verma vs. State of Bihar (1995) Supp 1 SCC 192 (para 5) and Trading Engineers
vs. Sales Tax Officer (1978) 1 SCC 636 (para 7) that where the language of the
Act or the Rules is clear and explicit, the words of the statute alone
represents the intention of the legislature. In fact, the effect of the High
Court's reading 18 these words into Rule 14(a) is to increase the total
reservation in favour of the reserved categories beyond 50% and to dilute the
merit of those chosen to ever lower levels in violation of Rule 15 of the Rules
which only embodies the well settled constitutional principle laid down by this
Court in Indra Sawhney vs. Union of India (1992) Supp 3 SCC 215 (para 809).
24. Rule 16 provides
that there shall be sub-rotation among major groups of OBCs. Rule 17(1) lists 8
major groups of OBCs for purposes of Rule 16, i.e. for sub-rotation among major
groups of OBCs. Rule 17(2) provides the proportion in which the 40% reservation
in favour of OBC is to be distributed among the major OBC groups, which goes up
to serial No. 40.
Rule 15(a) provides
an integrated cycle combining the rotation in Rule 14(c) (i.e. the rotation of
candidates from the Open Competition, OBC and SC/ST in a unit of appointment of
20) and the sub-rotation in Rule 17(2) among the OBCs.
25. It is relevant to
note that the Commission has been advising appointments based on a unit of 20
as provided in Rule 14(a) for the last more than 30 years. In fact, this Court
in Nair Service Society vs. District Officer, Kerala Public Service Commission
(2003) 12 SCC 10 (para 22) had referred to the procedure followed by the
Commission in advising 19 appointments based on the rank list for the open
merit category and the supplementary list for the reserved category. In our
opinion an accepted practice which has been followed by the P.S.C. for so long a
period should not be lightly disturbed, unless there are compelling reasons. If
two interpretations of the Rules are possible, the interpretation which favours
the practice which was being followed for a long period should ordinarily be
preferred unless it is clearly in violation of the Rules.
26. In our opinion,
the High Court also erred in placing undue reliance on the fact that the
annexure to Rule 15 containing the integrated cycle is based on a roster of 100
points. The terms "integrated cycle" and "unit of
appointment" are entirely different concepts. The rationale for the
integrated cycle based on a 100-point roster is merely to give effect to the
principle of rotation and sub-rotation among the reserved category candidates
in respect of vacancies that arise at different points of time over a period of
one year to a maximum of three years that the list is in force.
sub-rotation among OBCs in Rule 17(2) with reference to 40% reservation in
favour of OBC and the requirement in the proviso to Rule 14 (a) that one out of
every five posts reserved for SC/ST shall go to ST and the remaining to SC,
require an integrated cycle of Open Competition candidates (constituting 50%),
OBC candidates (constituting 40%) and 20 SC/ST candidates (constituting the
remaining 10% reservation) which can only be reflected in a 100-point roster.
27. In our opinion,
the concept of an "integrated cycle" could never be the basis for
rendering the "unit of appointment" of 20 in Rule 14(a) otiose in
cases where the number of vacancies reported to the Kerala Public Service
Commission exceeds 20. By drawing a distinction between cases where reported
vacancies are 20 or less and cases where reported vacancies exceed 20, the High
Court has attempted to fill a perceived "casus omissus"
on the part of the
legislature in Rule 14(a) and, in effect, has written a proviso into the rule
that the unit of appointment would change where the total number of vacancies
reported exceed 20. It is a settled principle of interpretation that Courts
should not add or delete words in a statute or rule.
vacancies are reported to the Commission on various dates and in different
numbers. Even in the present case, the Commission had received requisitions on
various dates between February 2003 and January 2007 ranging from 3 vacancies
to 44 vacancies. This Court in The University of Cochin vs. Dr. N. Raman Nair
(1975) 3 SCC 628 (para 6), has observed that Rule 14(c) lays down a scheme of
rotation for every block 21 of 20 vacancies and this rule must be applied in
the order in which the vacancies occur. Therefore, the Commission cannot wait
until the total number of vacancies is reported to the Commission so as to
determine whether the vacancies have exceeded 20 or not.
29. In fact, the High
Court has, by a process of interpretation, rendered Rule 14(a) redundant and
otiose, even though the validity of the rule was not the subject matter of
challenge in any of the writ petitions.
30. In our opinion,
Rule 14(b) merely says that the members of OBC and SC/ST shall be considered
for appointment in the Open Competition category, if found meritorious, and
such appointment shall not affect the number of seats reserved for the OBCs and
SC/ST. In our opinion, Rule 14 (b) ought to be read consistently with Rule
14(a) to the extent that where an OBC or SC/ST candidate is so placed in the
merit list that he would be advised against the Open Competition category, i.e.
between 1,3,5, 7,9,11,13,15,17,19 the seats in the reserved category, i.e. between
2,4,6, 8,10,12,14,16,18,20 shall not reduce to that extent. The members of OBC
and SC/ST would still be entitled to 40% and 10% reservations respectively.
On the other hand, if
Rule 14(b) is interpreted to increase the unit of 22 appointment from 20 to
the number of vacancies where the vacancies exceed 20, Rule 14(a) would be
rendered redundant and otiose.
31. In our opinion,
the High Court erred in placing undue reliance on the fact that the annexure to
Rule 15 containing the integrated cycle is based on a roster of 100 points. As
already stated above, the terms integrated cycle and unit of appointment are
entirely different concepts. The rationale for the integrated cycle of
100-point roster is merely to give effect to the principle of rotation and sub-rotation
among the reserved category candidates to vacancies that arise at different
points of time during the period of 1 year to 3 years that the list is in
32. In our opinion
the High Court erred in proceeding on the basis that a large number of
vacancies totaling to 267 were reported to the Commission together. As per the
affidavits filed by the Commission before the High Court, the requisitions were
received during the relevant period at various stages. The details of the
vacancies reported during the present selection and the turn in which rotation
started and ended at each stage of working out the rotation were as under:
23 Letter No. &
Date No. of Rotation started/ended Date of vacancies advice D3-7204 02 dt.
27/2/03 3 ...............dt. 44 10/10/03 D3-18859 03 dt.25/3/04 45
.................dt.15/9/04 15 MR VIII 40 OBC ................dt.30/12/04 15 Do
...............dt. 14/2/05 3 MR X 1 OC 01/02/06 ...............dt.21/6/05 16
..............dt.05/9/05 20 D3 2885 06 dt. 08/3/05 30 MR X 2E to MR X 31
17/4/06 OC D3 2885 06 dt. 18/6/06 40 MR X 72 32 SC to MR 17/7/06 & 71 OC D3
18859 03 dt. 28/6/06 17 (10 MR X 72 SC to MR X 17/7/06 NJD & 7 77 OC fresh)
D3 2884 06 03 dt. 1 NJD 14/8/06 07/7/06 D3 12473 06 dt. 08/9/06 7 MR X 78E to
MR X 85 28/9/06 OC D3 12473 06 dt. 7 MR Y 78E to MR X 85 28/9/06 12/10/06 OC D3
2884 06 dt. 07/11/06 5 NJD 24/11/06 D3 12473 05 dt. 1 NJD 19/12/06 16/11/06 D3
12473 06 dt. 15 MR X 92 ST to MR XI 7 11/01/07 04/12/06 & 21/12/06 OC D3
2884 06 & 12473 06 3 NJD 13/02/07 dt. 23/01/07 The details of candidates
belong to Muslim community advised from the ranked list are as follows:
24 Rank Name Turn in
which advised Date of No. advice 1 Suni Babu P.P. MR VIII 36 M 01/02/06 8
Muhseena H MR VIII 53 OC 01/02/06 28 Shahid M MR VIII 46 M 01/02/06 50 Assainar
M MR VIII 56 M 01/02/06 82 Simi Devan MR VIII 66 M 01/02/06 111 Shamsad P MR
VIII 76 M 01/02/06 132 Abdul Rafeeq O.P. MR VIII 80M 01/02/06 149 Jaseena
Beegom T MR VIII 86 M 01/02/06 161 Sumayya V.K. MR VIII 96 M 01/02/06 170
Vaheeda Rehman A MR IX 6 M 01/02/06 183 Benazir K.I. MR IX 16 M 01/02/06 185
Nazeema P.K. MR IX 26 M 01/02/06 192 Shabna Beegum MR IX 30 M 01/02/06 220 Fakrudeen
A MR IX 36 M 01/02/06 221 Nadarsha P.K. MR IX 46M 01/02/06 235 Shaik Anwar KS
MR IX 56M 01/02/06 246 Abdul RV Pottammal MR IX 66 M 01/02/06 247 Shamsudeen K
MR IX 76M 01/02/06 252 Bensha P Bashir MR IX 80 M 01/02/06 Supplementary List -
Muslim 1 Abdul Razak P MR IX 80M 01/02/06 2 Bindu N Lal MR IX 96 M 17/04/06 3
Shahina P.K. MR X 6 M 17/04/06 4 Rehana P MR X 16 M 17/04/06 5 Muhas K Kareem
MR X 26 M 17/07/06 6 Anitha A Khader MR X 30 M 17/07/06 7 Murunnisa N K MR X 36
M 17/07/06 8 Arifa V P MR X 46 M 17/07/06 9 Sareena N MR X 56 M 17/07/06 10
Sahida T MR X 66 M 17/07/06 11 Raseena Beevi M MR X 76 M 28/09/06 12 Rahina V K
MR X 80 M 06/11//06 13 Shemi K Mohammed N MR X 86 M 11/01/07 14 Beena S MR X 96
M 11/01/07 25
33. This Court in
University of Cochin vs. Dr. N. Raman Nair (1975) 3 SCC 628 has observed that
Rule 14(c) lays down a scheme of rotation for every block of 20 vacancies and
this rule must be applied in the order in which the vacancies occur.
34. This Court in
Nair Service Society vs. District Officer, Kerala Public Service Commission
(2003) 12 SCC 10 (para 22) had the occasion to examine the Rules, the ranked
merit list and the supplementary reserved list prepared by the Commission, and
the principles followed by the Commission in making the appointments. This
Court observed as follows:
the procedure so prescribed, KPSC prescribes the ranked merit list in the order
of merit. The candidates are arranged strictly according to the 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 filed with reference
to some principles followed by them, which are explained in para 4 of KPSC's
writ appeal before the High Court (pp. 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".
26 The Commission
has advised appointments based on a unit of 20 for the last more than 30 years.
The principle of reservation, rotation and sub-rotation are all applied based
on this unit of 20.
35. Several decisions
have been cited before us by the respondents, but it is well established that
judgments in service jurisprudence should be understood with reference to the
particular service rules in the State governing that field. Reservation
provisions are enabling provisions, and different State Governments can have
different methods of reservation.
There is no challenge
to the Rules, and what is challenged is in the matter of application alone. In
our opinion the communal rotation has to be applied taking 20 vacancies as a
36. The High Court
ought to have considered that the vacancies were reported to the Commission in
various spells and filling up the turn of a community is a continuous process,
and the Commission cannot wait to advise a reservation candidate till his turn
arises for advice and keep the community turn unfilled or advise a candidate
lower in rank retaining a candidate who is above him in the list by
anticipating reporting of vacancies.
37. In our opinion
the Commission has correctly advised candidates in the order in which the
requisitions were received, and that too by correctly applying the principle
contained in the rules.
38. Rule 14
prescribes the procedure for implementation of reservation of appointments.
Clause (a) of this Rule prescribes that unit of appointment for the purposes of
this Rule shall be 20 whereas clause (c) specifies the order of rotation in
every cycle of 20 vacancies. Though the proviso to the sub-rule provides that
candidates selected on open competition turns can be interchanged with the
candidates selected on the basis of reservation, the same is permissible within
the unit of 20 only.
39. The High Court in
paragraph 15 of the impugned judgment has observed :
"15. The point
to be decided is whether such application of rotation will run counter to any
of the provisions of Rules 14 to 17 or whether that will give effect to the
intention of the said Rules. We are of the view that none of the above said
Rules stand in the way of applying the rotation as above by allotting every
alternative vacancy to merit quota and reserved quota. Rule 14(a) contemplates
a situation of reporting of vacancies numbering less than 20. There are
hundreds of posts where the number of vacancies reported will normally be below
20 at a particular point of time. Vacancies are 28 reported in large numbers
only in the case of L.D.Clerks, Police Constables, Medical Officers etc. When
vacancies numbering more than 20 are reported and if reservation is applied as
stated above by allotting every alternative vacancy firstly to open competition
candidates and the remaining vacancies to candidates eligible for reservation,
the same will effectuate the purpose of the rules of reservation. The members
of Other Backward Classes will get 40% of the vacancies meant for them.
We are of the view
that for canvassing for the above position, the writ petitioners need not
challenge any of the Rules. A proper construction of the Rules which will
advance the object of them will mandate the P.S.C to make the advices as stated
above. Any other application of the Rules will amount to ultra vires and
40. With respect we
are unable to agree with interpretation of Rules 14 to 17 given by the High
Court in the impugned judgment.
41. It may be
mentioned that there is no challenge to the validity of these Rules. Hence we
have to read the Rules as they are. In our opinion, the so- called purposive
interpretation sought to be placed on the Rules by the High Court was
misconceived and is, therefore, not acceptable.
42. The High Court in
its observation quoted above has sought to find out the intention of Rules 14
to 17. In our opinion the question of finding the intention arises only when a
statute is not clear. If the statute is clear as it is 29 in this case, it has
to be read as it is, and the literal rule of interpretation is to be applied.
In our opinion intention seeking is ordinarily to be done only when the statute
is not clear.
43. It may be
mentioned that reservation provisions are enabling provisions. In other words,
the State is not bound to make a reservation, but it is empowered to do so in
its own discretion vide M. Nagraj and Others vs. Union of India and others
(2006) 8 SCC 212. In paragraph 102 of the said judgment, the Constitution Bench
of this Court observed:
constitution amendments are enabling in nature. They leave it to the States to
provide for reservation."
44. The same view has
been taken in paragraphs 107 and 123 of the aforesaid decision.
45. Different State
Governments in the country may have different methods for providing
reservations, and these will be valid as long as the method adopted by a particular
State Government does not violate any constitutional provision or statute. It
is not for this Court to decide on the wisdom or otherwise of the said method
of reservation. This Court should exercise judicial restraint and not interfere
with the same unless there is 30 some clear illegality. In our opinion the
method prescribed by the Rules made by the State Government suffers from no
infirmity or illegality, and hence the High Court acted wrongly in allowing the
Writ Petition. We are clearly of the opinion that the High Court has placed a
wrong interpretation on the relevant Rules.
46. In our opinion
the High Court was in error in directing the Commission to ignore the express
mandate of Rule 14 (a). The High Court was wrong in holding that the said Rule
only applies when the vacancies are less than 20. In fact the direction of the
High Court in the impugned judgment really amounts to treating the entire
number of vacancies which in the present case is 250 as one unit, which is
against the express mandate of Rule 14(a). Thus the High Court has really
amended Rule 14(a) and (c) of the Rules, which was not in its jurisdiction. It
is only the legislature which can amend the law, and not the Court.
47. In our opinion
the correct interpretation of Rule 14 to 17 is that the Public Service
Commission should adopt each batch of 20 candidates as a separate unit for the
purpose of reservation and not take the entire select list as one unit.
48. It is true that
reserved category candidates can compete for the non- reserved post as provided
for in Rule 14 (b), which only provides what has already been laid down by the
Constitution Bench of this Court in R.K. Sabharwal and others vs. State of
Punjab and others (1995) 2 SCC 745.
Rule 14(b), however,
will apply only to units of 20 candidates, and not for the total vacancies.
49. For the reasons
given above the appeal is allowed, the impugned judgment of the Division Bench
of the Kerala High Court as well as of the learned Single Judge, are set aside
and the Writ Petitions are dismissed.
There shall be no
order as to costs. CA No..........of 2009 [@ SLP(Civil) No. 21139 of 2008]
50. Leave granted.
The appellant was one of the candidates in the Rank list published by the
P.S.C. for appointment to the post of High School Assistant (Natural Science -
Malayalam Medium). She is a convert from a Scheduled Caste to Christianity and
claimed benefit of reservation available 32 to Other Christians. She
approached the High Court in WP No. 12816/2007 alleging that P.S.C. had advised
an open competition category candidate for the post reserved for `OX' category
for which she was an eligible candidate.
Her grievance is that
while disposing of her petition along with WA No. 1697/2007, the High Court by
enunciating the legal principle incorrectly, had wrongly denied her relief on
the erroneous impression that her turn did not arise before the expiry of rank
list. As we are holding that the interpretation of Rules 14 to 17 by the High
Court was erroneous, the dismissal of her writ petition has to be upheld,
though on a different ground.
2009 [@ SLP(Civil) Nos. 439-443 of 2008]
51. Leave granted.
These appeals are filed by P.S.C., being aggrieved by the common order dated
11.11.2008 of a learned Single Judge disposing of WP(C) No. 25077, 26089,
24158, 28435 and 16599/2008 (filed by some candidates after the rank lists were
published and advices were made) with a direction to the P.S.C. to apply the
principles laid down in the judgment dated 23.5.2008 of the Division Bench in
WA No. 1697/2007 to all advices made by P.S.C. on or after 23.5.2008 in respect
of bulk vacancies exceeding 20 in number reported to it in a given requisition
(or where the requisition received from the appointing authority on a given day
exceeds 20 33 vacancies). Following our decision in the Civil Appeals arising
from WA No. 1697/2007, these appeals are allowed and the writ petitions are
dismissed. No costs.