K H SHIRAJ Vs. HIGH COURT OF KERALA

JUDGEMENT

(1.) QUESTIONS involve in both the original petitions are identical and hence, they have been heard together and are being disposed of by this common judgment.

(2.) BY Ext. P1 notification dated 26-3-2001 applications were invited for appointment to the post of Munsiff-Magistrate in the Kerala Judicial Service in the pay scale of Rs. 2,500-4,000 (pre-revised ). Probable number of vacancies is 70. The petitioners submitted their applications for the above post. They belong to reserved categories namely, Muslim (Backward Community) and Hindu -Kurava (Scheduled Caste) respectively. Qualifications and method of recruitment are also prescribed in Ext. P1. Clause (6) of Ext. P1 deals with reservation of appointment, which reads as follows:- "6. Reservation of appointment:-- The Rules relating to reservation of appointment for Backward Classes, Scheduled Castes and schedules Tribes contained in Part II of the Kerala State and Subordinate Services rules, 1958 (Rules 14 to 17) shall apply to appointment by direct recruitment. " Clause 10 of Ext. P1 deals with scheme of written and oral examinations, which reads as follows:- "10. Scheme of written and oral examinations- (1)Written examination- The written examination shall consist of the following four papers carrying a maximum of 100 marks each. The time for each paper shall be two and a half hours. (2) Oral Examination- There shall be an oral examination carrying a maximum of 50 marks for deciding the candidate's general knowledge, grasp of general principles of law, analytical ability and suitability for appointment as Munsiff-Magistrate. (3) Only candidates who secure not less than 35 per cent marks in each of the papers of the written examination with an overall minimum of 45% of the total marks of written examination and 30 per cent of the marks for the oral examination shall be eligible for appointment provided that the minimum marks required for pass in each paper of the written examination shall be 30 per cent of the total marks for candidates belonging to Scheduled castes/scheduled Tribes. Fraction of half of or more than half shall be regarded as full mark and less than half shall be ignored. (4) No candidate who has not secured the minimum marks prescribed above in the written examination shall be called for oral examination. (5) The marks secured by the candidates at the oral examination shall be added to the total marks secured by them at the written examination and the names of all those candidates shall be arranged in the respective lists on the basis of the total marks secured by them. " (emphasis supplied)

(3.) FIRST respondent-High Court filed a counter affidavit through the Government Pleader in both the Original Petitions. In the counter affidavit, it is stated that as the petitioners had failed in the oral examination, they were not eligible for the benefit of communal reservation and consequent selection for the appointment. It is also stated in paragraph 8 of the counter affidavit that "only such of those candidates who come out successful in the written and oral examination can be considered for the benefit of communal reservation". Further it is stated in paragraphs 10 & 11 of the counter affidavit as follows:- 10) Accordingly a merit list of 88 candidates prepared in accordance with para 10 (5) of Ext. P1 Notification was forwarded to the government and from the said list, 70 candidates were selected for appointment, strictly following the rules of communal reservation as contained in rules 14 to 17 of the Kerala State and Subordinate Services Rules. The list of 70 candidates so selected was approved by the Government as per Notification no. 8402/c3/2002/home dt. 23. 3. 2002. 11 ). The standard of pass for the written and oral examinations are pre-set and pre-stated and the same cannot be deviated from or liberalized for any purpose, let alone to accommodate the members of any caste or community as it would then be open to challenge on many other grounds. The benefit of communal reservation under Rules 14 to 17 of Kerala State and subordinate Services Rules is available only to those candidates who succeed in the entire selection process. No counter affidavit is seen filed by the 2nd respondent-State. In the counter affidavit filed on behalf of the third respondent it is stated that the selection of the candidates was made strictly in compliance with Rule 14 and Rule 17 of part II of the K. S. & S. S. R. In paragraph 3 of the counter affidavit it is further stated as follows: "it is submitted that Rule 15 (b) of the Kerala subordinate Service provides the following "if no suitable candidate is available for selection in any of the communities group of candidates, selection shall be made from open competition candidates". The selection committee did not adjudge the petitioner as selected to be included in the reservation quota and he was found unsuitable".