DR. ASWATHY R. S. KARTHIKA & ORS. versus DR. ARCHANA M. & ORS. on 29 July 2020

[2020] 6 S.C.R. 955

DR. ASWATHY R. S. KARTHIKA & ORS.

v.

DR. ARCHANA M. & ORS.

(Civil Appeal No. 2796 of 2020)

JULY 29, 2020

[L. NAGESWARA RAO, HEMANT GUPTA ANDS. RAVINDRA BHAT, JJ.]

Service Law:

Reservation – Shortfall in – Adjustment of – ‘Hindu NadarCommunity’ included in ‘Other Backward Classes’ in the State ofKerala by Circular dated 21.11.2009 – The decision wasincorporated in State Subordinate Service Rules by Notificationdated 3.8.2010 with retrospective effect from 21.11.2009 providing1% reservation to Hindu Nadar Community – Public ServiceCommission by a Circular dated 31.8.2010 provided that the shortfallin reservation in the advices made during the period from21.11.2009 to 31.8.2010 shall be adjusted in the future vacancieswithout disturbing the advices already made – In Annexure attachedto Part II of Kerala State and Subordinate Service Rules, 1958,Explanation II was inserted whereby it was provided that shortfallin reservation occurred in the lists published by the Commission onor after 21.11.2009 during the period from 21.11.2009 till the dateof publication of amendment to the Rules, to be adjusted in futurevacancies – Applications invited for appointment to the post ofMedical Officer (Homeo) by Notification dated 15.12.2012 –Pursuant to the Notification dated 15.12.2012, rank list publishedon 3.8.2012 – Appellants-candidates appearing at S. Nos. 3, 4, 5and 6 of the list of Hindu Nadar Community – Application byappellants before State Administrative Tribunal taking the plea thatshortfall in reservation of Hindu Nadar Community in the advicesmade by Service Commission on or after 21.11.2009 was requiredto be made good in future vacancies without disturbing the advicesalready made – Application was allowed by the Tribunal – HighCourt set aside the order of Tribunal – Appeal to Supreme Court –Held: The posts available for Hindu Nadar Community after21.11.2009 are required to be provided to them – The ServiceCommission has rightly admitted that r.15(a) of Service Rules isinapplicable as it is neither a case of temporary passing over of

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Avacancies nor the case of non-availability of candidates – The ranklist which was operative till 03.10.2013 did not reflect the policy ofreservation – Order of the Tribunal is restored.

Allowing the appeals, the Court

HELD: 1. The Circular of the Commission and theBExplanation II inserted by amending the Rules, provide that theshortfall in reservation in the advices made during the periodfrom 21.11.2009 to the date of issue of the Circular were to beadjusted in future vacancies without disturbing the advices alreadymade. It did not mean that the vacancies arising after theCamendment were not required to be filled up as per the merit inthe rank list. The posts available for the Hindu Nadar communityafter 21.11.2009 are required to be provided to them. TheCommission has rightly admitted in the written submissions thatRule 15(a) of the Kerala State and Subordinate Service Rules,1958 is inapplicable in the present case, as it is not a case ofDtemporary passing over of vacancies nor the case of non-availability of candidates. Furthermore, the rank list was operativetill 3.10.2013 and had to reflect the policy of reservation, but didnot do so. [Para 22][965-E-G]

2. The entire submission on behalf of the privateErespondents are misconceived and untenable. The appellants arenot claiming any right whatsoever on the basis of the rank listpublished on 27.7.2009. The claim of their appointment is inrespect of the vacancies which arose after 21.11.2009 when theRules were amended and reservations for the Hindu NadarFcommunity was provided. The Commission has not taken intoconsideration, posts which have fallen vacant from the date ofthe amendment of the Rules till the date of the appointmentsadvised from the rank list dated 3.8.2015. The Commission hasadvised only one candidate from the Hindu Nadar Community tobe appointed following Roster Point No. 60 out of the 133Gcandidates who were advised for appointment. It did not takeinto consideration the vacancies which had arisen after theamendment of the Rules. Such vacancies could have been filledup only on the basis of rank list published in the year 2015. [Para23][965-G-H; 966-A-B]H

3. Therefore, the argument of delay or waiver has no basiseither factually or legally, as the cause to invoke jurisdiction ofthe Tribunal arose when candidates were not appointed on thebasis of rank list issued in 2015. Similarly, the argument that thereis no challenge to the Circular dated 31.8.2010 is againmisconceived. Explanation II is applicable only in respect of theadvice given by the Commission from the rank list published onor after 21.11.2009 till the Rules were statutorily amended andnotified. It is an admitted fact that no advice was issued by theCommission for appointing any candidate nor was any rank listpublished during the period specified by Explanation II. TheCircular dated 31.8.2010, issued by the Commission is on thelines of Explanation II but neither such explanation nor theCircular of the Commission, deals with the shortfall of vacanciesarising after the amendment of the Rules till the publication ofthe rank list on 03.08.2015. [Para 24][966-C-E]

P.S. Gopinathan v. State of Kerala and Others (2008) 7SCC 70 : [2008] 8 SCR 65; Dr. G. Sarana v. Universityof Lucknow and Others (1976) 3 SCC 585 : [1977] 1SCR 64; Inderpreet Singh Kahlon and Others v. Stateof Punjab and Others (2006) 11 SCC 356 : [2006] 1Suppl. SCR 772 – held inapplicable.

Case Law Reference

[2008] 8 SCR 65

held inapplicablePara 14held inapplicablePara 14

[1977] 1 SCR 64held inapplicable[2006] 1 Suppl. SCR 772held inapplicable Para 14

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2796of 2020.

From the Judgment and Order dated 28.06.2019 of the High Courtof Kerala at Ernakulam in O.P. (KAT) No. 384 of 2018.

With

C.A. No. 2797/2020

Dr. K.P. Kylasanatha Pillay, Nidhesh Gupta, Sr. Advs., A.Venayagam Balan, Ms. V. S. Lakshmi, Ram Lal Roy, Karthik S.D., A

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AJohn Mathew, Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar andMs. Nidhi, Advs. for the appearing parties.

The Judgment of the Court was delivered by HEMANT GUPTA, J.B1. The four appellants in these two appeals before us, were theoriginal applicants before the Kerala Administrative Tribunal[1] whoinvoked its jurisdiction under Section 19 of the Administrative TribunalAct, 1985. The Tribunal allowed the Original Application[2] filed by theappellants on 15[th] November, 2017 directing the Kerala Public ServiceCommission[3] to make the shortfall in reservations from the succeedingCrank list. It is the said order and the order passed in review by the Tribunalon 15[th] October, 2018 which were challenged before the High Court bythe private respondents herein. The High Court set aside the order ofthe Tribunal and dismissed the OA filed by the appellants.

2. The appellants belonged to the Hindu Nadar community, aDcategory included in the Other Backward Classes[4] in the State of Keralavide Circular dated 21.11.2009. This decision was later incorporated inthe Kerala State and Subordinate Service Rules, 1958[5] vide GazetteNotification dated 3.8.2010 but with retrospective effect from 21.11.2009and 1% reservation was provided to the Hindu Nadar Community.EThereafter, a Notification was published by the Commission on 15.12.2012,inviting applications for the post of Medical Officer (Homeo) in theHomeopathy Department of the Government of Kerala. Pursuant tosuch Notification, a rank list was published on 3.8.2015 wherein, thename of the appellants appeared at Sl. Nos. 3, 4, 5 and 6 in the list ofHindu Nadar community.F

3. Before we advert to the respective contentions of the learnedcounsel for the parties, relevant extracts from the Rules need to bereproduced. The Rules are in two parts. Rule 15 and the Annexureattached to Part II of the Rules are relevant for the purpose of thepresent appeals. Rule 15, reads thus:G

1 for short, ‘Tribunal’

2 for short, ‘OA’

3 for short, ‘Commission’

4 for short, ‘OBC’H5 for short, ‘Rules’

“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 asspecified in the Annexure to this Part. Notwithstanding anythingcontained in any other provisions of these rules or in the SpecialRules if a suitable candidate is not available for selection fromany particular community or group of communities specified inthe Annexure, such vacancy shall be kept unfilled, notifiedseparately for that community or group of communities for thatselection year and shall be filled by direct recruitment exclusivelyfrom among that community or group of communities. If after re-notification, repeatedly for not less than two times, no suitablecandidate is available for selection from the respective communityor group of communities, the selection shall be made from availableOther Backward Classes candidates. In the absence of OtherBackward Classes candidates, the selection shall be made fromavailable Scheduled Castes candidates and in their absence, theselection shall be made from available Scheduled Tribes candidates.

Explanation. – One ‘selection year’ for the purpose of this ruleshall be the period from the date on which the rank list of candidatescomes into force to the date on which it expires.

Note. – All pending uncompensated turns of vacancies such astemporarily passed over, no candidate available and non-joiningduty as on the 2[nd] February, 2006, shall be compensated.”

4. In the Annexure attached to Part II of the Rules, an ExplanationII was inserted in addition to the existing Explanation I, for two categoriesof posts – i.e. for direct recruitment in posts included in the Kerala LastGrade Service as well as for direct recruitment in posts other than thoseincluded in the Kerala Last Grade Service. Explanation II which in respectof both the categories is same, reads as under:

“Explanation II – The short fall in reservation for ‘Nadars includedin SIUC’, and ‘Hindu Nadars’ occurred in the advice by theCommission from the ranked lists published by the Commissionon or after the 21[st] day of November, 2009 during the periodcommencing on and from the 21[st] day of November, 2009 to thedate of publication of the Kerala State and Subordinate Services(Amendment) Rules, 2010 in the Gazette, i.e. till the date ofcommencement of this Explanation, shall be adjusted in the futurevacancies without disturbing the advices already made.”

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A5. The Commission issued a Circular on 31.8.2010 in respect ofreservation for the communities of SIUC Nadars and Hindu Nadars.The Circular communicated as under:

“The above will be applicable to all Ranked Lists published on orafter 21.11.2009. The short fall in reservation in the advices madeBduring the period from 21.11.2009 to the date of issue of thiscircular shall be adjusted in the future vacancies without disturbingthe advices already made.”

6. The grievance of the appellants before the Tribunal was thatthere was no Hindu Nadar candidate in the main rank list containing 197Ccandidates for the post of Medical Officer (Homeo). It was submittedthat the shortfall in reservation for Hindu Nadar community in the advicesmade by the Commission on or after 21.11.2009 i.e. the date of thecommencement of the 1% reservation for the Hindu Nadar Community,was required to be made good in future vacancies without disturbing theadvices already made. However, the Commission in its Circular datedD31.8.2010, restricted the implementation of the Rules to the rank listpublished on or after 21.11.2009. It was the stand of the appellants thatthe vacancies arising after 21.11.2009 were required to be filled up fromamongst the candidates belonging to Hindu Nadar community on thebasis of rank list published on 3.8.2015. It was submitted that previousErank list published on 27.7.2009, was valid up to 3.10.2013 but that wasprior to the provision of the reservation. Therefore, said the Appellantsthat the rank list published on 3.8.2015 would form the basis of appointmentin respect of vacancies which had arisen after 21.11.2009. It wascontended that 249 candidates had been appointed by way of directrecruitment to the post of Medical Officer (Homeo) but none had beenFappointed from the Hindu Nadar community. Therefore, the shortfall inthe quota of the Hindu Nadar community was required to be made goodfrom amongst the candidates in the subsequent rank list dated 3.8.2015,as was directed by the Tribunal.

7. On the other hand, the stand of the Commission before theGTribunal was that in its Circular dated 31/10/2010, it was clearly statedthat the Hindu Nadar community would be provided reservation fromthe rank list published on or after 21.11.2009. Thereafter, the rank listhad only been published on 3.8.2015 after the amendment in the Rules.The Commission had thus issued advice by giving 1% reservation to theHHindu Nadar community on the basis of such succeeding rank list.

8. The Tribunal held that the above Circular of the Commissioncould not adversely affect the claim of the appellants. The Commissionwas bound to fill up the shortfall in the vacancies reserved for the HinduNadar Community. It was therefore directed to advice candidates fromthe supplementary list after assessing the shortfall by advising equalnumber candidates from the reported vacancies. The Tribunal, thus,issued the following directions:

“Therefore the Original Application is allowed and accordingly itis declared that Annexure A6 circular providing that the said orderwill be applicable to all the Ranked Lists published on or after21.11.2009 cannot adversely affect the claim of the applicants.In view of the above declaration the respondents are bound to fillup the shortfall in reservation in advices made in respect of theprevious ranked list from Annexure A2 Ranked List. There willbe a further direction to the Commission to advice the candidatesfrom supplementary list whole belong to Hindu Nadar Communityafter assessing the shortfall by advising equal number candidatesfrom the reported vacancies.”

9. The private respondents, who are candidates belonging to theOpen Category, Anglo Indian and Vishwakarma community, challengedthe said order of the Tribunal before the High Court, inter alia, on theground that the shortfall in reservation for the Hindu Nadar communityon the advice of the Commission from the rank list published on or after21.11.2009 till the date of publication of the Rules alone were required tobe adjusted in future vacancies without disturbing the advice alreadymade. Since no rank list had been published after 21.11.2009 except therank list published on 3.8.2015, the shortfall in vacancies could not befilled up on the basis of the succeeding rank list. Appointments had alreadybeen made on the basis of such rank list.

10. In the counter affidavit filed by the Commission before theHigh Court, it averred that the Commission on its own assessed theshortfall of the Hindu Nadar Community and arrived at the figure ofthree posts. Thereafter the Commission decided to fill up the shortfall byadvising candidates from the rank list that came into force on 3.8.2015from among the vacancies reported prior to the expiry of the above ranklist on 3.8.2018 i.e. after a validity period of three years. The relevantextract reads as under:

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A“2…………The direction in Exhibit P3 was to the Public ServiceCommission (PSC for short) to assess the shortfall in respect ofHindu Nadar Community candidates that arose from 21.11.2009onwards. The PSC on their own assessed the shortfall and arrivedat the figure of 3 and decided to fill up the shortfall by advisingcandidates from the rank list that came into force on 3.8.2015Bfrom among the vacancies reported prior to the expiry of the aboverank list on 3.8.2018………….”

11. The High Court held that Commission could have kept thevacancies unfilled if suitable candidates from the Hindu Nadar communitywere not available for selection and could notify the same separately forCthe community in that particular selection year. Such exercise was notresorted to by the Commission and all pending vacancies cannot becompensated after 2.2.2006 as per the Note to Rule 15(a) of the Rules.

12. Mr. Pillay, learned senior counsel appearing for the appellantscontended that reservation for the Hindu Nadar community was providedDafter persistent effort by the community. Therefore, the benefit ofreservation to the members of such community could not be denied,particularly in view of Explanation II inserted in the Rules, videamendment dated 3.8.2010. Reliance was placed upon the stand of theCommission that there was shortfall of three posts after the amendmentEin the Rules, therefore, the appellants were rightly appointed on16.10.2018 and 28.11.2018 in pursuance of the directions of the Tribunal.

13. On the other hand, Mr. Nidhesh Gupta, learned senior counselappearing for the private respondents, argued that 133 candidates hadbeen appointed from the rank list published on 3.8.2015. The post for theFHindu Nadar Community was at roster point 60 in a 100-point roster.One Hindu Nadar community candidate was advised for appointmenton 8.3.2017. Therefore, the next available post would come at SerialNo. 160 only. It was contended that the shortfall in vacancies as claimedby the appellants could not be permitted to be filled up on the basis of thesucceeding rank list. For any shortfall, in terms of Rule 15(a), vacanciesGhad to be notified vide a separate notification, for that community. Sincethere was no recruitment process initiated for the shortfall vacancies,the appellants could not claim the right of appointment merely becausetheir names appear in the succeeding rank list. The appellants could notdo so unless there was a post available for the Hindu Nadar communityHafter the publication of such rank list.

14. Further, it was submitted before this court, that the appellantshad not challenged the denial of reserved vacancies in the rank list dated27.07.2009, therefore, challenge by way of an application before theTribunal suffered from a delay of six years after the publication of theRank list and after three years of its validity period. Thus, the appellantshad waived their right if any. It was also submitted that the right to seekan appointment under the 2009 rank list could be claimed only by thosebelonging to the Hindu Nadar community in such rank list. But the namesof the appellants did not feature therein. In support of such plea, reliancewas placed upon judgments reported as P.S. Gopinathan v. State ofKerala and Others.,[6]Dr.G. Sarana v. University of Lucknow andOthers[7]and Inderpreet Singh Kahlon and Others v. State of Punjaband Others,[8].

15. It was also submitted that the Rules as amended and theCircular of the Commission dated 31.08.2010 were to the same effectwith regard to the application of reservation for Hindu Nadar community.There was no violation of the Rules nor had the Commission postponedthe date of applicability of the reservation as asserted by the appellants.It was also submitted that there was no challenge to the Circular issuedby the Commission in the Original Application filed by the Appellants.

16. Further, it was submitted that Article 16(4-B) of the Constitutionis merely an enabling provision and thus, the appellants cannot claim anyright based upon such provision of the Constitution.

17. On the other hand, the Commission in the written submissionsfiled before this Court averred that Rule 15(a) is inapplicable to the factsof the present case, as it is not a case of temporary passing over ofvacancies or the case of non-availability of candidates. It was alsosubmitted that the amended rules were made applicable to all ranked listpublished on or after 21.11.2009. The relevant extract from the writtensubmission is as under:

“17. The primary contention of the KPSC is that the High Courtjudgment is erroneous on the fundamental premise that Rule 15(a)of the Rules is inapplicable to the facts of the present case, as it isnot a case of temporary passing over of vacancies or the case ofnon-availability of candidates. It is also contended that the 6 (2008) 7 SCC 70

7 (1976) 3 SCC 585

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Aamended rules were made applicable to all ranked list publishedon or after 21.11.2009 by Circular No. 20/2010 dated 31.08.2010.

Under these circumstances, it is submitted that the advice by theKPSC qua the present petitioners, in compliance of the TribunalJudgment was legal and justified. The SLP on these grounds bedisposed of in accordance with law.”

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18. The Note to Rule 15(a) of the Rules was inserted when theRules were amended vide notification dated 8.3.2006 with retrospectiveeffect from 2.2.2006. This note had a one-time application and was notapplicable to all future rank lists to be prepared by the Commission. ItCwas applicable in respect of pending vacancies such as those that weretemporarily passed over or where no candidate was available or non-joining duty as on 2.2.2006. Such vacancies were required to becompensated in future selection processes in view of the amendmentcarried out on 8.3.2006.

D19. The first part of Rule 15(a) of the Rules provides for rotationin terms of clause (c) of Rule 14 and sub-rotation in sub-rule (2) of Rule17 as specified in the Annexure. The second part of the Rule is that if asuitable candidate is not available for selection from any particularcommunity, such vacancy shall be kept unfilled which will be notifiedseparately for group of communities for that selection year. The selectionEyear has been explained to mean the period from the date on which ranklist of candidates comes into force to the date on which it expires. Thepresent is not a case, where no candidate was available or there wastemporary passing of the vacancies. Thus, we find the stand of theCommission in the written submission filed is correct in law.

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20. Explanation II is applicable to the rank list published by theCommission on or after 21.11.2009 till 3.8.2010 when the Rules wereamended. No such rank list was published during this period. Thisexplanation was to save the appointments already made before the Ruleswere statutorily amended leaving an option open for adjustment ofGreservation in future vacancies. Since no rank list was published duringthe period of the decision of the Government and publication of theamended Rules, Explanation II will not be applicable in the present case,though it recognizes the rights of the Community in respect of the shortfall of vacancies between the date of the decision of the Governmentand the subsequent amendment. The posts falling vacant after the H

amendment of the Rules are required to be filled up in accordance withthe amended Rules. The Rules as amended provided reservation to HinduNadar Community from 21.11.2009. The rank list is a merit list whichhas a validity period of three years. Such rank list is the source formaking appointments as and when, any vacancy arises. The vacancieshave to be determined in terms of the applicable rules. The present is acase of non–consideration of the vacancies accruing after 21.11.2009while filling up the posts from the rank list published. The appellantswere thus rightly appointed against the shortfall of vacancies which aroseon or after 21.11.2009.

21. The Commission has admitted that there were three postsfalling to the Hindu Nadar Community after amendment of the Rules.Such vacant posts had to be filled up. Since the only source of shortlistedcandidates was the rank list issued in 2015, appointments had to be madefrom that List. The entire argument of the respondents is based upon therank list published on 27.7.2009. Such rank list was published prior to theamendment in the Rules and has no application to the facts of the presentcase. In fact, the appellants are not even claiming any right on the basisof such rank list.

22. We thus find that the Circular of the Commission and theExplanation II inserted by amending the Rules, provide that the shortfallin reservation in the advices made during the period from 21.11.2009 tothe date of issue of the Circular were to be adjusted in future vacancieswithout disturbing the advices already made. It did not mean that thevacancies arising after the amendment were not required to be filled upas per the merit in the rank list. We find that the posts available for theHindu Nadar community after 21.11.2009 are required to be provided tothe them. The Commission has rightly admitted in the written submissionsfiled that, Rule 15(a) of the Rules is inapplicable in the present case, asit is not a case of temporary passing over of vacancies nor the case ofnon-availability of candidates. Furthermore, the rank list was operativetill 3.10.2013 and had to reflect the policy of reservation, but did not doso.

23. The entire submission on behalf of the private respondentsare misconceived and untenable. The appellants are not claiming anyright whatsoever on the basis of the rank list published on 27.7 2009.The claim of their appointment is in respect of the vacancies whicharose after 21.11.2009 when the Rules were amended and reservations AB

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Afor the Hindu Nadar community was provided. The Commission has nottaken into consideration, posts which have fallen vacant from the dateof the amendment of the Rules till the date of the appointments advisedfrom the rank list dated 3.8.2015. The Commission has advised only onecandidate from the Hindu Nadar Community to be appointed followingRoster Point No. 60 out of the 133 candidates who were advised forBappointment. It did not take into consideration the vacancies which hadarisen after the amendment of the Rules. Such vacancies could havefilled up only on the basis of rank list published in the year 2015.

24. Therefore, the argument of delay or waiver as submitted onbehalf of Mr. Gupta has no basis either factually or legally. The judgmentsCreferred to by Mr. Gupta in the written submissions have no applicabilityto the facts of the present case as the cause to invoke jurisdiction of theTribunal arose when candidates were not appointed on the basis of ranklist issued in 2015. Similarly, the argument that there is no challenge tothe Circular dated 31.8.2010 is again misconceived. Explanation II is Dapplicable only in respect of the advice given by the Commission fromthe rank list published on or after 21.11.2009 till the Rules were statutorilyamended and notified. It is an admitted fact that no advice was issuedby the Commission for appointing any candidate nor was any rank listpublished during the period specified by Explanation II. The Circulardated 31.8.2010, issued by the Commission is on the lines of ExplanationEII but neither such explanation nor the Circular of the commission, dealswith the shortfall of vacancies arising after the amendment of the Rulestill the publication of the rank list on 3.8.2015.

25. Further, no reliance is being placed by the appellants, on theargument based on Article 16(4-B) of the Constitution, before this court.FThus, we find that the submissions made on behalf of Mr. Gupta do notwarrant any acceptance.

26. Consequently, the appeals are allowed, and the order andjudgment of the High Court is set aside and that of the Tribunal is restored.

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Kalpana K. Tripathy

Appeals allowed.

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