STATE OF KERALA Vs. SIVADAS

JUDGEMENT

(1.) Giving the matter our careful attention, we think the learned Judge should not have interfered with Ext. P1 notification issued by the Public Service Commission and quashed the same. Ext. P1 notification stated that the Government proposed to make a special recruitment for Scheduled Castes and Scheduled Tribes candidates. The number of posts for which recruitment was effected was shown as 43. The other particulars we need not concern ourselves with. Ext. P1 notification dated 11th October, 1976 was issued in pursuance of the power of the Government under Ex. P2 G.O., G.O. Ms.263/70/PD dated 6th August 1970. The said G. O. states that according to R.14(a) of the Kerala State and Subordinate Services Rules, 8% reservation has been allowed to Scheduled Castes and 2% to Scheduled Tribes in public service. R.17-A empowers the State Government to reserve a specific number of posts in any service, class, category or grade to Be filled by direct recruitment exclusively from among Scheduled Castes and Scheduled Tribes. The Rule itself may be quoted:

(2.) The learned Judge noticed the statement in the counter affidavit that the total number of non gazetted posts in the Water Transport Department as on 1-4-1976 is 779; and 10% of this was taken to be 78. There were ten persons belonging to Scheduled Castes/Scheduled Tribes in the Department in the non gazetted cadre. The learned Judge was of the view that the Government was under an erroneous impression that since R.14 provides for reservation of 10% by the direct recruitment, the same is a percentage for appointment by special recruitment. The learned Judge took the view that it was only 5% of the non gazetted posts in each Department that was to be filled , up by direct recruitment as envisaged in Ex. P2 and not the total of all posts in the Department. In calculating the posts as 78 the posts that had been taken into account were not only the posts to which direct recruitment had to be made, but also other posts. Instead of 5%, as required by the proviso, 10% was taken into account, according to the learned Judge. It was in these circumstances that the learned Judge quashed Ext. P1.

(3.) We are afraid we cannot accept the reasoning of the learned Judge. As we see the position, the power of making special recruitment under R.17A is separate from, and independent of, the power of reservation conceded under R.14 of the Kerala State and Subordinate Services Rules. Under R.14 reservation upto a total of 10% (8%-1-2%) for Scheduled Castes and Scheduled Tribes is permitted. The non obstante clause of R.17A permits a special recruitment for Scheduled Castes and Scheduled Tribes despite anything contained in R.14 or elsewhere in the Rules. It is in pursuance of the power under this Rule that Ext. P2 order was issued. Sub-paragraph 2 of Clause (2) thereof is the relevant provision. It directed a special recruitment to 5% of the non gazetted posts in each Department. The proviso took care to state that as a result of such special recruitment to 5% of the non gazetted posts, the total number of scheduled castes and scheduled tribes was not to, exceed the upper limit of 10% fixed under the Rule viz., R.14. This, we understand to be the meaning and the purport of the above paragraph of Ext. P2. In that view, we do not think that it, in any way conflicts with the provisions of the Rules or violates the limit set by R.14 or R.17A. The learned Judge, in our view, was wrong in holding that Ext. P1 notification travels beyond the Rules. We allow this writ appeal and set aside the judgment of the learned Judge and direct that O. P. No. 5249 of 1976 will stand dismissed. There will be no order as to costs.