JOSEPH ZACHARIAS Vs. KERALA PUBLIC SERVICE COMMISSION

JUDGEMENT

(1.) DOES the procedure presently followed by the Kerala public Service Commission in the matter of application of R. 15 (c), with particular reference to forfeited turns, under the Kerala State and Subordinate services Rules (hereinafter referred to as 'the K. S. & S. S. R) fit in with the logical intendment of such statutory provision is the question that is raised in the Original Petition.

(2.) FOR a proper understanding of the legal provision it is necessary to extract R. 15 of the K. S. & S. S. R. as such. "15 (a ). the integrated cycle combining the rotation in clause (c) of R. 14 and the sub rotation in sub-r. (2) of R. 17 shall be as specified in the Annexure to this Part. If a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, the said community or group shall be passed over and the post shall be filled up by a suitable candidate from the community or group of communities immediately next to the passed over community or group in the said Annexure in the order of rotation. If no suitable candidate is available for selection in any of the above communities or group of communities, selection shall be made from open competition candidates. (b) If a suitable candidate is not available for selection from the group of communities classified as 'scheduled Castes' in the turn allotted for such a 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 "scheduled Tribes" and vice-versa. If no suitable candidate is available for selection in any of the two groups classified as "scheduled Castes or Scheduled Tribes" selection shall be made from among the communities immediately next to the group of communities entitled to be appointed according to the turn allotted in the Annexure in the order of rotation. If no suitable candidate is available for selection in any of the communities or group of communities selection shall be made from open competition candidates. (c) The benefit of the turn forfeited to a particular community or to a group of community by reason of it being passed over under sub-rr. (a) and (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 particular community or group that derived the extra benefit by reason of such passing over: Provided 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. Provided also that the said right of restoration shall not extend to a case where the selection has gone to an open competition candidate. Note:- FOR purposes of application of the proviso limiting the number of vacancies to be reserved in a year as 50 per cent in respect of recruitment to a category of post, the period of one year shall commence on and from the day on which the ranked list of candidates prepared by the Commission in respect of that post comes into force; Provided that in regard to ranked lists brought into force prior to 13. 6. 1975 and remaining valid the year of reservation shall continue to be one year from the 15th June, 1974. " On a close reading of the said rule one has to reach at the following conclusions: (i) if a candidate is not available in the ranked list for selection from any particular community or group of communities in the integrated cycle, the community or group should be passed over and the post should be filled up by another candidate immediately following the passed over community in the order of rotation. (ii) If no suitable candidate is available in such an exercise, then the selection shall be made from open competition candidates, (iii) In the case of Scheduled Castes/scheduled Tribes an attempt should be made first to find out the alternate from those communities and then alone the benefit of pass over should be extended to other reserved communities. (iv) The benefit lost to a particular community consequent on the pass over should be resorted to it at the earliest possible opportunity. (v) As and when a suitable candidate from a community, i. e. , passed over, is available selection should be made from that community by making adjustment against the claims of a particular community or group that derived the extra benefit by reason of such pass over.

(3.) IT is the contention of the petitioner that the loss actually meted out in the hundred point cycle is to the OX community and that benefit having accrued on the Dheevara community in the same hundred point cycle, the benefit of pass over now given to Dheevara community at turn 50 is unjustifiable. The learned counsel would submit that the principle is no more res Integra since the question is decided in the Bench decision of this Court in Cochin University of Science & Technology v. Mohammed Aslam, 1996 (1)KLT 214. The facts of that case is available at paragraph 2 of the said judgment. IT was a case regarding filling up one vacancy of Lecturer in Commerce in cochin University, where the turn was that of Latin Catholic/anglo Indian. "but the compensation register shows that the Latin Catholic/anglo Indian community got extra benefits from Ezhavas, Thiyyas and Billavas; so the place has to go to that group. IT so happened that Ezhavas, Thiyyas and Billavas had on earlier occasions derived extra benefits from Muslim community for want of qualified candidates belonging to Muslim community. Under such circumstances, petitioner candidate belonging to Muslim community approached this Court for getting the post filled up by a qualified candidate from among Muslims. " in the said decision it was held after elaborately considering the statutory provisions contained in Rr. 14 to 17 of the K. S. & S. S. R. thus: "at a particular point of time, if a suitable candidate is not available from a community as per the turn fixed by rules, that community should not lose that vacancy forever. At the earliest opportunity that community must get back the benefit from those communities which secured the extra benefit. In other words, the extra benefit that has been obtained by one community has to be surrendered to the community which lost the same at the earliest opportunity. " Hence on the facts of the case the relief was moulded as follows: "it is seen that on previous occasions, the Muslim community forfeited their turn in favour of Latin Catholic/anglo Indian and ezhavas. That loss must be made good at the earliest possible opportunity. In the instant case, when it is admitted that candidates belonging to Ezhava community got additional benefit on account of the absence of qualified candidates belonging to Muslim community, the benefit that falls to Ezhava community on account of the absence of candidates in the Latin Catholic/anglo indian community must be passed on to the candidates belonging to the Muslim community. " Learned counsel for the petitioner submits that the very same principle squarely applies in the instant case also.