SABEENA BEEGUM Vs. DISTRICT COOPERATIVE BANK PATHANAMTHITTA

JUDGEMENT

(1.) Doubting the correctness of a Bench decision of this Court in Krishna Kumar v. P.S.C., 2006 2 KerLT 50 , learned Judge of this Court, Justice K. Padmanabhan Nair, has referred this matter for an authoritative pronouncement on the scope and ambit of the first proviso to Rule 15(c) of Part II of Kerala State and Subordinate Service Rules. In Krishna Kumar's case to which one of us (Radhakrishnan, J.) is a party took the view that the proviso to Rule 15 shall not override the substantial provision of Rule 14(c) holding that the non-joining duty vacancy reported during the second selection year should be treated as belonging to that year. The Bench held that Rule 14(c) could be given effect to holding that solitary vacancy should go to Scheduled Caste candidate. The Bench felt that an NJD vacancy reported during second selection year be treated as belonging to that year then there is no question of passing over of Scheduled Caste turn so as to keep 50% rule or else it was felt that proviso to Rule 15 would override substantial provision of Rule 14(c). The Bench therefore doubted the correctness of the decision of the Single Judge in Mohanan v. Secretary, P.S.C.,1998 2 ILR(Ker) 268 and felt that it was not correctly decided.

(2.) Counsel for the Petitioner Sri V. Philip Mathews submitted that the dictum laid down in Krishna Kumar's case,would squarely apply to the facts of this case in the event of which P.S.C. was not justified in not advising the Petitioner to the turn MRI 6 M. Counsel submitted that P.S.C. was not justified in temporarily passing over (TPO) that turn by advising additional fourth Respondent under the guise of maintaining the first proviso to Rule 14(c) Part II to which vacancy the Petitioner, a Muslim candidate, should have been appointed. Counsel submitted that six candidates were advised in the third selection including the five NJD vacancies and if all the six vacancies were treated to be vacancies of that year sixth vacancy would have been gone to candidate belonging to Other Backward Community (O.B.C.). Counsel submitted that Krishna Kumar's case has declared the law; hence it would operate retrospectively and this Court cannot give a declaration that the judgment would act only prospectively. Only Supreme Court has the power to invoke doctrine of prospective overruling under Articles 141 and 142 of the Constitution of India which was made clear in C. Golak Nath v. State of Punjab, 1967 AIR(SC) 1643. Reference was also made to the decision of the apex Court in M. Nagaraj and Ors. v. Union of India, 2006 8 SCC 212.

(3.) Shri P.C. Sasidharan, learned Counsel appearing for the P.S.C. tried to distinguish the decision in Krishna Kumar's case on facts. Counsel submitted that in Krishna Kumar's case the Division Bench has relied on the decision of another Division Bench of this Court in Babu v. Public Service Commission, 1996 1 KerLT 349 and it was pointed out that in Babu's case the Court was not called upon to consider any of the provisions contained in Rule 15 of the K.S. and S.S.R. but was considering only the effect of Rule 13 of the Kerala Public Service Commission Rules of Procedure. Further it was submitted that in Krishna Kumar's case the Court did not consider whether the principle laid down in Mohanan's case could be applied. Counsel for the P.S.C. also pointed out that when two O.B.C. vacancies are reported the application of the dictum laid down in Krishna Kumar's case would not upset the principles of reservation but when two candidates in open merit are reported in a particular selection year and if the principle laid down in Krishna Kumar's case is applied that will upset the entire reservation rules laid down by the K.S. and S.S.R. but that was not an issue raised for consideration in Krishna Kumar's case. Counsel for the P.S.C. also submitted that the P.S.C. had filed a petition I.A. 2355 of 2007 for clarification in Krishna Kumar's case and got it clarified.