PULOMAJA DEVI Vs. GOPINATHAN NAIR

JUDGEMENT

(1.) These Writ Appeals are directed against the judgment of a learned Judge of this Court. The Kerala Public Service Commission invited applications for selection to the post of Sub Magistrates in the Kerala Subordinate Magisterial Service. Eight candidates had to be selected by direct recruitment from the Bar, and eight by transfer. We are not concerned in these appeals with the latter mode of recruitment, but only with the former, viz. those recruited directly from the Bar. After the interview conducted by the Commission, a rank list (copy Ex. P2) was prepared by the Commission. Smt. Pulomaja Devi, the third Respondent in the writ petition out of which these appeals arise, and the appellant in Writ Appeal No. 373 of 1974, was No. 8 in the said list. She belongs to the Ezhava Community, one of the 'Other Backward Classes', recognised as such for purposes of Art.15(4) and 16(4) of the Constitution. The 3rd respondent in these appeals Sri. Gopinathan Nair, a member of one of the Forward Communities or 'Classes' and the petitioner in the aforesaid writ petition, was ranked No. 5. No. 1 in Ext. P2 was an Ezhava; No. 2 was a member of a Forward Community; No. 3 was an Ezhava; No. 4 was a member of an 'Other Backward Class'; and No. 24 was a member of the Scheduled Caste. It is really unnecessary to notice the names of these; and the others may be left out of the picture for the purpose of these appeals. Ext. P3 is a copy of the advice list of the Commission. No. 1 in Ext. 2 retained his rank as No. 1 in Ext. P3; No. 3 in Ext. 2 (Jnana Sudarsanan) became No. 2 in Ext. P3; No. 2 in Ext. P2 (L. Ramachandran Nair) became No. 3 in Ext . P3. No. 24 in Ex. P2, the Scheduled Caste candidate (E. D. Thangachan), came in as No. 4 in Ext. P3. No. 8 in Ext. P2 (Smt. Pulomaja Devi) came in as No. 5 in Ext. P3. We are not really concerned with the transmutation, if any, of the ranks of the other candidates. The 3rd respondent herein, who was No. 5 in Ext. P2 was aggrieved by the selection of No. 8 in that list, and filed O.P. 2491 of 1974. The same was allowed by a learned Judge of this Court to the extent of quashing Ext. P3 in so far as it related to the inclusion of the 3rd respondent, in that list. The learned Judge also quashed the consequential appointment of the said respondent by Ext. P4 order, and directed the Public Service Commission to draw up a fresh list in the manner indicated by the learned Judge and forward the same to the 1st respondent (the Government) within three months from the date of the order. The 1st respondent was directed to make appointments from the list thus forwarded. Writ Appeal No. 373 of 1974 is by the 3rd respondent in the O.P., and Writ Appeal No. 431 of 1974 is by the Public Service Commission.

(2.) The question raised is in regard to the modus operandi of making the selection on the basis of R.14 and 17 of the Kerala State and Subordinate Service Rules, and in conformity with Art.14 and 16 of the Constitution. These rules enjoin, what is commonly referred to as the principle of communal reservation or rotation and sub rotation. The material portion of R.14 of the Kerala State and Subordinate Service Rules reads thus:

(3.) On first impression, it strikes us that two different modes of working out or implementing the principle sanctioned by the Rules are reasonable and permissible, where the selections have to alternate between the merit pool and the reserved quota. One way would be to shuffle or screen the candidates belonging to both the categories, merit pool and reserved quota , select the best on the basis of merit by open competition and award him rank No. 1; next, repeat the process with only the candidates belonging to the 'reserved quota' and put down the best among them, as eligible for place No. 2, which has to be filled in on the basis of reservation; next, in a similar fashion; repeat the process, alternating between the merit pool and the reserved quota each time a selection has to be made by open competition or by reservation. The other method is to fill up the odd number of vacancies beginning from Vacancy No. 1 on the basis of merit and open competition, and the even numbers beginning with No. 2, on the basis of reservation. This latter method seems to us to be sanctioned by R.14(a) of the Kerala State and Subordinate Service Rules. It seems also to have the sanction of an order No. 52-15238/50/CB. dated 26 2 1953 promulgated by the Travancore - Cochin Government prior to the passing of the State and Subordinate Service Rules, which the Public Service Commission seems or claims to have followed even after the promulgation of the Rules. Whichever be the method followed, the mandate of R.14(b) is clear and specific to the effect that whatever be the number of seats that a 'backward class' is able to obtain on the basis of merit or open competition, shall not prejudice its claim to the legitimate quota on the basis of reservation. The learned Judge has summed up in Para.3 and 4 as follows: