RAVEENDRANATHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was advised by the Kerala Public Service Commission for appointment as Excise Inspector along with one Salim Raj and respondents 4 to 6. The petitioner and Salim Raj were both Ezhava candidates. They were fitted into the positions 18 and 14 respectively. Respondents 4 to 6 took the intervening vacancies viz., positions 15 to 17. Ultimately Salim Raj did not join duty. Going by the advice list and the appointment order the petitioners name appeared below that of respondents 4 to 6. His contention is that when Salim Raj did not join duty, a re - adjustment was necessary so that the right of Ezhava candidate was protected and this was not done. Petitioner has to be pushed up to position No. 14 intended for Salim Raj. If that was done, his name in the advice list would be above that of respondents 4 to 6. The petitioner is aggrieved that notwithstanding the representation made in the matter, it was turned down as per Ext. P6 order. The prayer, therefore, is to set aside Exts. P5 and P5(a) fixing seniority of the petitioner above respondents 4 to 6 and to direct the second respondent to modify Ext. P2 order of appointment by showing petitioners name as Sl. No. 14 in the place of Salim Raj with consequent revision of seniority list in such a way that the petitioner will become senior to respondents 4 to 6.

(2.) According to the Kerala Public Service Commission the prayer is inadmissible and what is applicable in the matter of fixation of seniority is R.27(c) of the K.S. & S.S.R. It is only the position in the advice list that is material.

(3.) During hearing learned counsel for the petitioner placed reliance on the Bench decision in Narayanan v. State of Kerala ( 1981 KLT 321 ), where the contention was that when a candidate of Scheduled Tribe did not join duty, that position should be allotted to a candidate belonging to Scheduled Tribe itself and not to Scheduled Caste. The Public Service Commission contended therein that under the existing rules vacancies caused on account of non joining duty might be treated as fresh vacancy and appointment offered to the candidate of the community next in rotation ie., for the Scheduled Caste and if that is done the petitioner will not be entitled to claim the vacancy earmarked for Scheduled Tribe candidate. The Court considered the question whether in a case where, in the list of eligible candidates, there are candidates of the Scheduled Tribe the right to a particular turn in the matter of appointment to a post earmarked for that category would be lost when the candidate advised against that vacancy was unable to take up that post eventhough the next in the rank in the same category was available and was willing to take up the post. The Court found that the Rule of reservation would be effective only if to a post reserved for a community, a person is actually appointed. The mere fact that the candidate advised is not available for appointment should not result in the class to which the person advised belongs, losing such right, when eligible candidates are available for appointment to such posts. Otherwise it would be a reservation in form only and not in substance.