2003 Supreme(SC) 1153

2004(1) Supreme 154
SUPREME COURT OF INDIA
(From Kerala High Court)
V.N. Khare, CJI., S.B. Sinha & AR. Lakshmanan, JJ.
Nair Service Society -Appellant
versus
Dist. Officer, Kerala Public Service Commission & Ors. -Respondents
Civil Appeal Nos. 4075-4081 of 1998
Decided on 17-12-2003
Counsel for the Parties :
For the Appellant : K.K. Venugopal, Sr. Advocate, K.V. Mohan, V. Balachandran, Advocates.
For the Respondents : P.A. Mohammed, T.L.V. Iyer, Sr. Advocates, Fazlin Anam, E.M.S. Anam, Vipin Nair, P.B. Suresh, Romy Chacko, Ms. V. Mohana and Ramesh Babu M.P., Advocates.

IMPORTANT POINT
Reservation of more than 50 of the vacancies as they arise in any year or a carry forward Rule will be outside the protection of Article 16(4) of the Constitution.

Headnote:SERVICE LAW-Kerala State and Subordinate Service Rules, 1958-Rule 15 to 17-Constitution of India-Article 16(4)-Appointments of Sub Engineers in Electricity Board-Selection of candidates for appointment in Government as well as in governmental bodies-Rules providing for 50 reservation in aggregate for Scheduled Castes, Scheduled Tribes and other Backward Classes-Kerala State Electricity Board had sought preparation of a select list for appointment of Sub-Engineers-KPSC prepared a rank list of 177-Along with that it also prepared separate supplementary lists-There was a requisition from Electricity Board for 150 names-Second requisition for 100 more names-KPSC advised in all 239 names, drawing 177 names from main rank list and 62 names from supplementary list for getting reservation candidates-Out of second advise of 89 candidates, 20 candidates did not join duty which comprised of eleven open competition candidates, three SC s, three OBCs and three Muslims-Those NJD vacancies were reported to Service Commission for advice-Candidate being the next unadvised candidate in Muslim supplementary list filed petition for direction to KPSC to advise candidates to NJD vacancies of Muslims-KPSC held that once main rank list stood exhausted thereon the supplementary list of reservation candidates also ceased to be in force-Whether High Court was justified in holding that petitioner would be entitled to appointment-(No).

       Per Dr. AR. Lakshmanan, J. (for V.N. Khare, CJI and himself)

       Held : The impugned judgment, in our opinion, did not appreciate the well-settled principles of law that the Court should not substitute the provision of a statute by its own decision. In this case, the impugned judgment ignored the provisions of statutory rules to substitute the decision in the place. The K.S. and S.S. Rules, 1959 lays down the principle of reservation under Article 16(4). The Rules laid down the principle and the procedure if followed in giving effect to the reservation for Scheduled Castes and Scheduled Tribes and Backward Classes in the State. Rule 15 refers to the integrated cycle of rotation and it deals with the procedure to be adopted in selections where any candidate may become available for recruitment from the reserved group. This Rule lays down the principle of limitation of percentage of reservation including the carry forward. The reservation of vacancies including carry forward vacancies shall not exceed 50 of the total number of vacancies for which selection by direct recruitment to that category is resorted to in that year. Rule 16 provides that there is sub-rotation among OBCs. Rule 17 enumerates the sub groups among OBCs mentioned in Rule 14(a) and Rule 16. Through out these rules, there are clear indications that the scheme of reservation followed in the State of Kerala under direct recruitment is with respect to vacancies. Rule 14(c) lays down the manner of making appointments. Rule 15 also makes it clear that appointment referred to is with reference to vacancies as made out in the proviso under rule 15(c) and the note thereunder. The judgment of the High Court proceed on the wrong premise that the principle of reservation is with reference to the post. In our view, Rules 14-17 do not contemplate making a supplementary list and the statutory rules envisage making a ranked list which is defined in Rule 2(g) of the KPSC Rules of procedure. (Para 18)

       In our opinion, the KPSC has failed to protect the interest of the open competition candidates while implementing the decision of the High Court. It is an admitted position in the present case that the open competition quota of NJD vacancies have not been filled up and the only plea that the list got exhausted. If the list was not expired, the NJD vacancies of the OC category also would be filled up. The open competition candidates who belong to the forward communities alone do not get the appointment by the process evolved by the KPSC. (Para 20)

       The supplementary list was only in respect of reservation categories. There was no supplementary list prepared in relation to open competition merit candidates for the reason that where the last of the candidates has been advised from the rank list in the open competition, there was no further scope for drawing on the supplementary list or advising from that list, as all the advice hitherto was on the basis of one open competition followed by reservation, thereby keeping the balance of 50:50. If any more candidates are advised from the supplementary list, the number of reservation candidates will go up and the 50:50 rule will be violated. The KPSC was therefore always of the view that once main rank list got exhausted by advising the last of the candidates therein, the supplementary list also ceased to be in force as there was no scope for advising any more candidates therefrom without violating the 50:50 rule. (Paras 24 and 25)

       Clause (4) only permits reservation for backward classes of citizens who are not, in the opinion of the State, adequately represented in the services of the State. It does not permit reservation for any person who does not belong to the category of backward classes , nor does it enable the State to reserve posts on communal lines. (Para 32)

       The High Court is not correct in its conclusion that the respondents would be entitled to appointment based on the supplementary list. Question No. 1 is answered in the negative. Likewise, it is not open to the High Court to exceed percentage of reservation beyond 50 against the statutory protection. This question is also answered in the negative. We, therefore, held that once the main list is exhausted, the supplementary list has no survival of its own. (Para 36)

       Per S.B. Sinha, J. [Concurring Judgment]

       Held : The Kerala Public Service Commission under a misconception prepared a supplementary list only in relation to the reserved category of candidates and did not prepare such list in terms of the open category candidates. A bare perusal of the two provisos appended to both Rules 4 and 12 clearly show that two separate ranked lists were required to be prepared, one for the open category candidates and another for the reserved category candidates. The purport and object of preparing such separate ranked lists is absolutely clear and unambiguous. Such list should be in the nature of waiting list so that the vacancies arising during the period when such list is prepared till the publication of a new list as envisaged in Rule 13 can be filled up. In other words, in terms of the aforementioned rules what was required to prepare was a main list - a separate ranked list for open category candidates as also a supplementary list for the purpose of satisfying the rules of reservation of appointment of reserved category candidates. Non-Statutory Rules framed by the Commission must be read in such a manner which would fulfill the reservation criteria contained in the Statutory Rules. Preparation of only one supplementary list for filling up the vacancies by the some candidates not joining their posts, only from the reserved category of candidates, therefore, would be illegal, as thereby the relevant provision relating to the percentage of reservation contained in Rule 15 of the statutory rule would stand infringed. Both the lists viz for the open category of candidates as also the reserved category of candidates were necessary, thus, required to be prepared in terms of the said Rules for maintaining the ratio of 50-50. (Paras 43 to 45)

       The High Court by reason of the impugned judgment granted the said prayer inter alia holding that the rule of reservation is not affected as the vacancies created by reason of non-joining of the posts belonging to open category candidates may be filled up in the later year. The hardship created to one category of candidates in terms of Rule 13 had not been considered by the High Court inasmuch as such vacancies may not be filled up for a period of three years. Furthermore, by reason thereof, the reservation policy of the State as contained in the Kerala State and Subordinate Service Rules, 1958 has been violated. This Court in a large number of decisions has clearly held that for the purpose of making the reservation policy a reasonable one the extent thereof should not exceed 50 save in exceptional situation. The statutory rules also contain such a prohibition. Article 16(4B) of the Constitution of India is also a pointer to the said fact in terms whereof an enabling provision has been created whereby and whereunder the State may consider to fill up the unfilled vacancies of a year which are reserved for being filled up in that year in accordance with the provisions made under Clause (4) or (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50 reservation on total number of that year. (Para 47)

       The High Court, therefore, committed an illegality in passing the impugned judgment insofar as it failed to take into consideration that in the event the same is given effect to, more than 50 of the vacancies in a particular year will be filled up from amongst the reserved category candidates. We, however, having regard to the facts and circumstances of the case do not intend to set aside the appointments made in favour of the private respondents herein only on the ground that the judgment of the High Court has been acted upon. (Para 49)