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SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, S. RAVINDRA BHAT, JJ.
Dr. Aswathy R.S. Karthika & Ors. – Appellant
Versus
Dr. Archana M. & Ors. – Respondent
Civil Appeal No. 2796 of 2020 (Arising out of SLP (Civil) No. 17734 of 2019) Civil Appeal No. 2797 of 2020 (Arising out of SLP (Civil) No. 8652 of 2020)
Decided on : 29-07-2020
Service Law – Reservation – Shortfall in vacancies reserved for Hindu Nadar Community – Circular of Commission and Explanation II inserted by amending Rules, provide that shortfall in reservation in advices made during period from 21.11.2009 to the date of issue of Circular were to be adjusted in future vacancies without disturbing advices already made – It did not mean that vacancies arising after amendment were not required to be filled up as per merit in rank list – Posts available for Hindu Nadar community after 21.11.2009 are required to be provided to them – Commission has rightly admitted that Rule 15(a) of Rules is inapplicable in present case, as it is not a case of temporary passing over of vacancies nor case of non-availability of candidates – Rank list was operative till 3.10.2013 and had to reflect policy of reservation but did not do so – Commission has not taken into consideration posts which have fallen vacant from date of amendment of Rules till date of appointments advised from rank list – No advice was issued by Commission for appointing any candidate nor was any rank list published during period specified by Explanation II – Circular dated 31.8.2010, issued by Commission is on lines of Explanation II but neither such explanation nor Circular of Commission, deals with shortfall of vacancies arising after amendment of Rules till publication of rank list on 3.8.2015 – Order and judgment of High Court set aside and that of Tribunal restored. [Administrative Tribunals Act, 1985 – Section 19] (Paras 22, 23, 24 and 26)
Facts of the case:
Appellants in these two appeals before us, were original applicants before the Kerala Administrative Tribunal who invoked its jurisdiction under Section 19 of the Administrative Tribunal Act, 1985. The Tribunal allowed the Original Application filed by the appellants on 15th November, 2017 directing the Kerala Public Service Commission3 to make the shortfall in reservations from the succeeding rank list. It is the said order and the order passed in review by the Tribunal on 15th October, 2018 which were challenged before the High Court by the private respondents herein. The High Court set aside the order of the Tribunal and dismissed the OA filed by the appellants.
Findings of Court:
Commission has not taken into consideration, posts which have fallen vacant from the date of the amendment of the Rules till the date of the appointments advised from the rank list dated 3.8.2015. The Commission has advised only one candidate from Hindu Nadar Community to be appointed following Roster Point No. 60 out of the 133 candidates who were advised for appointment. It did not take into consideration the vacancies which had arisen after the amendment of the Rules. Such vacancies could have filled up only on the basis of rank list published in the year 2015.
Result : Appeals allowed.
JUDGMENT :
HEMANT GUPTA, J.
1. The four appellants in these two appeals before us, were the original applicants before the Kerala Administrative Tribunal1 [for short, Tribunal'] who invoked its jurisdiction under Section 19 of the Administrative Tribunal Act, 1985. The Tribunal allowed the Original Application2 [for short, 'OA'] filed by the appellants on 15th November, 2017 directing the Kerala Public Service Commission3 [for short, 'Commission'] to make the shortfall in reservations from the succeeding rank list. It is the said order and the order passed in review by the Tribunal on 15th October, 2018 which were challenged before the High Court by the private respondents herein. The High Court set aside the order of the Tribunal and dismissed the OA filed by the appellants.
2. The appellants belonged to the Hindu Nadar community, a category included in the Other Backward Classes4 [for short, OBC] in the State of Kerala vide Circular dated 21.11.2009. This decision was later incorporated in the Kerala State and Subordinate Service Rules, 19585 [for short, 'Rules'] vide Gazette Notification dated 3.8.2010 but with retrospective effect from 21.11.2009 and 1% reservation was provided to the Hindu Nadar Community. Thereafter, a Notification was published by the Commission on 15.12.2012, inviting applications for the post of Medical Officer (Homeo) in the Homeopathy Department of the Government of Kerala. Pursuant to such Notification, a rank list was published on 3.8.2015 wherein, the name of the appellants appeared at Sl. Nos. 3, 4, 5 and 6 in the list of Hindu Nadar community.
3. Before we advert to the respective contentions of the learned counsel for the parties, relevant extracts from the Rules need to be reproduced. The Rules are in two parts. Rule 15 and the Annexure attached to Part II of the Rules are relevant for the purpose of the present appeals. Rule 15, reads thus:
"15 (a) The integrated cycle combining the rotation in clause (c) of rule 14 and the sub-rotation in sub-rule (2) of rule 17 shall be as specified in the Annexure to this Part. Notwithstanding anything contained in any other provisions of these rules or in the Special Rules if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities. If after re-notification, repeatedly for not less than two times, no suitable candidate is available for selection from the respective community or group of communities, the selection shall be made from available Other Backward Classes candidates. In the absence of Other Backward Classes candidates, the selection shall be made from available Scheduled Castes candidates and in their absence, the selection shall be made from available Scheduled Tribes candidates.
Explanation. - One 'selection year' for the purpose of this rule shall be the period from the date on which the rank list of candidates comes into force to the date on which it expires.
Note. - All pending uncompensated turns of vacancies such as temporarily passed over, no candidate available and non-joining duty as on the 2nd February, 2006, shall be compensated."
4. In the Annexure attached to Part II of the Rules, an Explanation II was inserted in addition to the existing Explanation I, for two categories of posts- i.e. for direct recruitment in posts included in the Kerala Last Grade Service as well as for direct recruitment in posts other than those included in the Kerala Last Grade Service. Explanation II which in respect of both the categories is same, reads as under:
"Explanation II - The short fall in reservation for 'Nadars included in SIUC, and 'Hindu Nadars' occurred in the advice by the Commission from the ranked lists published by the Commission on or after the
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