ALI Vs. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT

JUDGEMENT

(1.) Writ Appeal form the judgment reported in , 2009 (3) KLT 735. The appellant is working as Section Officer in the Sree Sankaracharya University of Sanskrit, Kalady, the first respondent herein. He is a candidate belonging to the Muslim community. The university issued Ext.P1 notification, dated 4.12.1999, inviting applications from qualified Assistants/Sections Officers working in the Universities of Kerala State to the post of Section Officer in the scale of pay of Rs. 6500-10550. The number of posts advertised was 15 (approximate). The appellant and respondents 2 to 10 were also candidates who applied for the said post. The rank list consisting of 50 candidates was published on 1.4.2000, as evidenced by Ext.P2. The appellant and respondents 2 to 10 were included in the rank list and they were appointed to the post of Section Officers on 5.4.2000, applying the rules of rotation contained in Rules 14 to 17 of the Kerala State & Subordinate Services Rules, 1958, for short 'the K.S & S.S.R.'. In the rank list, there were five candidates belonging to the Muslim Community including the appellant and respondents 2 and 3. Respondents 2 and 3 were Serial Nos. 6 and 10, whereas the appellant was Serial No. 23. However the appellant got appointment, as per order dated 5.4.2000, earlier to respondents 2 and 3, since he was appointed against 6th turn as a reserved candidate. Prior to the appointment, candidates eligible for community reservation were directed to produce non creamy layer certificates and the appellant produced the same and obtained the benefit of reservation. The party respondents belonging to Muslim Community however did not produce any such certificate and they were selected against open competition turns. In the provisional gradation list, Ext.P6, the University assigned seniority to respondents 2 and 3 above the appellant. Respondents 2 and 3 were assigned serial Nos. 6 and 11 respectively and the appellant was serial No. 16. The other Muslim candidate who was also appointed in the reservation turn was assigned Serial No. 19. Though the appellant filed objections, the same was rejected and the final gradation list was published, as evidenced by Ext.P8 produced in W.P.(C) No. 1118 of 2008, confirming the provisional gradation list.

(2.) The contention of the appellant in the Writ Petition was that the seniority position of the appellant could not have been disturbed at the time of preparation of the gradation list, extending the benefit of third proviso to Rule 14(c) of the K.S. & S.S.R, in so far as the other two Muslim candidates, respondents 2 and 3, were not eligible to claim any reservation, as they did not produce the non creamy layer certificate. According to him, after the decision of the Apex Court in Indra Sawhney v. Union of India,1992 3 SCC 217, the inequity, if any, to be remedied by virtue of the third proviso to Rule 14(c) of K.S. & S.S.R. should be confined among the candidates eligible for reservation from the same community. According to him, in so far as the other two persons were not eligible to be considered against the reservation turns, the Rule has no application in fixing the seniority.

(3.) Per contra, it is contended by the learned Counsel appearing for the University as also the learned Counsel for the contesting respondents that the inequity sought to be remedied by the third proviso to Rule 14(c) of the K.S. & S.S.R is between the candidate appointed on merit, vis-a-vis, the candidate appointed against the reservation turn from the same community and in a situation where a candidate who is selected on merit in the open competition turn is pushed down to accommodate a candidate of the same community selected in the reservation turn, the resultant inequity is sought to be remedied by the third proviso to Rule 14(c) of K.S. & S.S.R. We will consider the said contention in detail later.