IMPORTANT POINT
Supplementary list has no life of its own.

Judgment :-

K.S. Radhakrishnan, J.

1. Leave granted.

2. The Kerala Public Service Commission (in short “the Commission”) has approached this Court aggrieved by the directions given by the Division Bench of the Kerala High Court, to operate the supplementary list after the main list got exhausted.

3. The 1st Respondent herein, who figured as rank no. 3 in the Supplementary list, filed Writ Petition No. 34851 of 2010 seeking a Writ of Mandamus, directing the Commission to issue an advise memo for his appointment for the post of Higher Secondary School Teacher-English (Junior) in a vacancy occurred due to non-joining of 2nd respondent herein. Learned Single Judge of the High Court dismissed the writ petition on 9.12.2010 holding that once the main list got exhausted, the supplementary list could not be kept alive. Review Petition No. 89 of 2011 filed against the judgment was also dismissed.

4. Aggrieved by the said judgment, 1st respondent herein filed Writ Appeal No. 871 of 2011 before the Division Bench of the Kerala High Court. It was contended that 1st respondent had secured 3rd rank in the supplementary list and he was entitled to get appointment in the reservation quota of Ezhava community. Further, it was also pointed out that 2nd respondent belonging to the same community, though advised, did not join duty since she had got another employment. The claim of 1st respondent was that, since he was the next candidate, was eligible to get advise memo from the Commission so that he could joint in that non-joining vacancy. The Division Bench of the High Court took the view that since 2nd respondent did not join, the 1st respondent should have been issued the advise memo by the Commission. Holding so, the writ appeal was allowed and the order passed in Review Petition No. 89 of 2011 and the judgment passed in Writ Petition No. 34581 of 2010, were set aside. Aggrieved by the said judgment, the Commission has come up with this appeal.

5. Shri V. Giri, learned senior counsel appearing for the Commission, submitted that the issue raised in this case is squarely covered by the judgment of this Court in Nair Service Society v. District Officer, Kerala Public Service Commission (2003) 12 SCC 10 (N.S.S. case). Referring to paragraphs 25 and 36 of that judgment, learned senior counsel submitted that once the main list is exhausted, the supplementary list has no life and that the Division Bench has not properly appreciated paragraph 23 of N.S.S. case. Learned senior counsel also submitted that the Division Bench has not properly appreciated the scope, meaning and significance of the supplementary list which has been prepared after complying with the Rules of Reservation. Learned senior counsel pointed out that if sufficient number of candidates belonging to the reserved groups, including scheduled castes and scheduled tribes, are not there in the rank list, it is possible that the communities would not be adequately represented in the services as envisaged in the rules. The Commission has, therefore, evolved a procedure of preparing supplementary lists for the reserved groups by lowering the marks at the elimination stage of selection, which has been incorporated in Part I of the Rules of Procedure of the Commission, published with the concurrence of the Government.

6. Shri Jogy Scaria, learned counsel appearing for the 1st respondent, on the other hand, contended that the Division Bench has correctly granted the relief and directed the Commission to appoint 1st respondent in a non- joining vacancy. Learned counsel pointed out that the vacancy arose while the main list was in force due to non-joining of the 2nd respondent and hence the 1st respondent has a claim over that vacancy. Learned counsel also pointed out that the Division Bench has correctly applied the principle laid down by this Court in N.S.S. case (supra).

7. We are of the view that the Division Bench has completely overlooked the ratio laid down by this Court in N.S.S. case (supra). P