JOSE Vs. COCHIN UNIVERSITY

JUDGEMENT

(1.) COMMON issues are raised in these two original petitions. The petitioner in O. P. 8382/92 is a Research Associate in the Department of Electronics and the petitioner in O. P. 8531/92 is a C. S. I. R. Research Associate in the Department of Physics under the Cochin University of Science and Technology. They challenge the notification dated 12-9-1991 issued by the respondent University inviting applications for appointment to the post of Professors, Readers and Lecturers.

(2.) ' The challenge in O. P. 8382/92 against Ext. P1 notification is to the extent it reserves the post of Lecturer in Microwave and Radar Electronics for candidates belonging to Scheduled Caste/scheduled Tribe Community is illegal. In O. P. 8531/92 Ext. P1 notification is challenged on the ground that reservation of the post of Reader in Theoretical Physics in favour of other Backward Communities is untenable in law. In both the original petitions sub-s. (11) of S. 31 of the Cochin University of Science and Technology Act, 1986 (31 of 1986) is also under attack. Section 7 (2) of the Cochin University of Science and Technology Act provides: " In making appointments for all posts as determined by the syndicate in any service, class or category under the University, the University shall mutatis mutandis observe the provisions of Clauses. (a), (b) and (c) of R. 14 and the provisions of R. 15, 16, 17 and 17a of the Kerala State and Subordinate Service Rules, 1958, as amended from time to time. " The relevant portion of sub-r. (a), (b) and (c) of R. 14 of the Kerala State and Subordinate Services Rules read as follows: " (a) The unit of appointment for the purpose of this rule shall be 20, of which two 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 merit. 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 vice-versa. (b) The claims of members of Scheduled Castes and Scheduled Tribes and other Backward Classes shall also be considered for the appointments which shall be filed 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 posts reserved for Scheduled Castes, Scheduled Tribes or for other Backward Classes as the case may be, shall not in any way be affected. (c) Appointments 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 Classes 3. Open Competition 4. Scheduled Castes and Scheduled Tribes 5. Open Competition 6. Other Backward classes 7. Open Competition. 8. Other Backward Classes Open Competition 10 Other Backward Classes. 11. Open Competition 12. Scheduled Castes and Scheduled Tribes 13. Open Competition 14. Other Backward Classes 15. Open Competition 16. Other Backward Classes 17. Open Competition 18. Other Backward Classes 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 Castes 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:". . . . . . . . . Rule 15 lays down the procedure to be followed in cases where suitable candidates are not available in the particular community or group. It also provides that in no year of reservation 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. R. 16 provides that, there shall be sub rotation among major groups of other backward classes. In R. 17, the grouping of other Backward Classes for the above purpose is indicated. Provisions are also made therein to distribute the 40% reservation allowed to other Backward Classes among the different groups of other Backward Classes in the case of direct recruitment to the post included in the Kerala Last Grade Service and to the posts other than those included in the Kerala Last Grade Service. S. 31 of the Cochin University of Science and Technology, provides for the constitution of the selection committee and the manner in which selection has to be made for appointment to the different posts both teaching and non-teaching staff under the University. Sub-s. (11) and (12) of S. 31 reads as follows: " (11) Communal rotation shall be followed category wise treating all the departments as one unit. (12) The Registrar shall maintain a register containing the list of appointments made indicating the vacancies filled up by open competition and by reservation to Scheduled Castes, Scheduled Tribes and Other Backward Classes. Vacancies remaining to be filled up for want of qualified hands from Scheduled Castes, Scheduled Tribes and other Backward Classes and vacancies carried forward for want of qualified hands under reservation quota for being filled up in future vacancies and such other details as may be specified in the Statutes. "

(3.) THE petitioner in O. P. 8382/92, it is alleged, is fully qualified for being appointed as Lecturer in Microwave and Radar Electronics in the Department of Electronics under the University. It is stated that Microwave and Radar Electronics is one of the two specialisations offered by the Department of Electronics for M. Tech in Electronics. A plan post, the post of Lecturer in Electronics was reserved for special recruitment for members of Scheduled Caste/scheduled Tribe. Though it was advertised as such thrice, no suitable candidate was available and the Syndicate at its meeting held on 6-4-1991 resolved to de-reserve the post and notified it for general recruitment. Ext. P4 is the photostat copy of the decision of the Syndicate, the complaint of the petitioner is that inspite of the above decision, the post was advertised under Ext. P1 as reserved for members of Scheduled Caste/scheduled Tribes.