BENOY Vs. PUBLIC SERVICE COMMISSION

JUDGEMENT

(1.) THE Kerala Public Service Commission (for short 'the P. S. C. ') invited applications for appointment to the post of Sub Engineer (Civil) in the Kerala State Electricity Board. After the process of selection, a ranked list was published on 4. 7. 1994. THE ranked list consisted of a main list and in order to make available suitable candidates for the purpose of reservation, as envisaged in Rr. 14 to 17 of the Kerala State and Subordinate Service rules, supplementary lists of Muslim, Ezhava, OBC, Scheduled Caste/scheduled ibe and other communities who are eligible to get reservation were prepared. THE main list contained 177 candidates. Initially, the K. S. E. Board reported 150 vacancies and they were advised by the PSC on 20. 8. 1994 for appointment. THE Board reported another 100 vacancies on 21. 12. 1994. THE PSC could issue advice memos of only 89 candidates for appointment as the main list had exhausted by that time. Out of 89 candidates, there were 20 persons who did not join duty and they were treated as non joining duty (NJ. D.) vacancies. Out of 20 N. J. D. vacancies, 11 belongs to open competition category, 3 Scheduled castes, 3 Ezhava and 3 Muslims. THE petitioners in O. P. Nos. 11701/96 (W. A. No. 582/97),12305/95 (W. A. No. 583/97),18154& 18176/95 and 357/ 97 claimed that they were entitled to be appointed against the N. J. D. vacancies that fell vacant consequent on the non joining of Muslim and Ezhava candidates. THEse petitioners' names are included in the supplementary list.

(2.) IN O. P. No. 18409/95 the petitioner was selected by the P. S. C. for appointment as L. P. S. A. and her name was included in the Muslim supplementary list as rank No. 199. She also claimed appointment against the n. J. D. vacancies. All the candidates-in the main list were given advice memo and the main list expired on 25. 8. 1994. Therefore, the P. S. C. contended that the petitioners herein are not entitled to get appointment against the N. J. D. vacancies.

(3.) IN an earlier decision, a question arose as to whether a candidate, for whom an advice memo is issued, fails to join duty, the turn" must go to the candidate of the same community or such vacancy to be filled up by persons entitled to get the next turn in the roster. It was held by the Division Bench of this Court that once the candidate is advised against a reservation quota and if only he joins duty the mandate of rules of reservation is followed. It was held that if he does not join duty such vacancy is to be filled up by a candidate belonging to some category. It was so held in narayanan v. State of Kerala & Ors. (1981 KLN 128 ). Here the second post in the roster was due to a member of the Scheduled Tribe. A candidate was advised, but she did not join. The petitioner therein contended that he being the next candidate in the Scheduled Tribe list was entitled to get that appointment. But the P. S. C. took the view that it must have been then treated as a vacancy available to be filled up afresh. But the stand taken by the P. S. C. was held to be not proper and this Court held as follows: "the mere fact that the candidate advised is not available for appointment should not result in the class to which the person advised belongs losing such rights when eligible candidates are available for appointment to such posts. Otherwise it would be a reservation in form only and not in substance. When once a person advised is appointed whether subsequently he continues or not in that post is another matter. But in the matter of appointment to the posts the principle of reservation would have to be adhered to in such a case. To treat the reservation as applicable at the stage of ad vice and not at the stage of appointment may not in circumstances where many of the people advised may not be able to join because they are already appointed, satisfy the rule of reservation in its true form and spirit as envisaged. " Now, the consistent practice of the P. S. C. is that whenever there is a candidate belonging to a particular category was advised and later failed to join duty, that vacancy is treated as N. J. D. vacancy and is filled up by the candidate belonging to the same category. If any backlog in n. J. D. vacancies, they are filled up first and then only the further rotation is started. The above practice is in accordance with the observations made by the Supreme Court in R. K. Sabharwal v. State of Punjab (AIR 1995 SC 1371 ). That was a matter relating to the promotion of the Engineers in the Irrigation department of the State of Punjab. Even though it is a question of promotion, the Supreme Court pointed out how the principle of reservation should be worked out while operating a roster. It was held that: "the roster is implemented in the form of running account from year to year. The purpose of running account' is to make sure that the Scheduled Caste/scheduled Tribes and Backward Classes get their percentage of reserved posts. The concept of 'running account' in the impugned instructions has to be so interpreted that it does not result in excessive reservation. . . Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/ promotees occupy the posts meant for them in the roster. The operation of the roster and the 'running account'must come to an end thereafter. " Eventhough the above observation is made in the case of promotion and posting, it gives a clear indication as to how the appointment is to be made on the basis of roster.