The main legal point established in the judgment is that the rule of reservation would be effective only if a person is actually appointed to a post reserved for a community, and that the mere advice for appointment should not result in the community losing its right when eligible candidates are available for appointment.

1. Our learned brother Kochu Thommen J. referred this Original Petition for hearing by a Division Bench in view of conflicting decisions on the point agitated in the Original Petition. The decisions referred to are those in OP. 2979 of 1976 and Mariakutty v. Municipal Commissioner, 1975 (1) SLR. 188.

2. The controversy in the Original Petition concerns appointment to the post of Section Officer in the Legislature Secretariat in accordance with the Special Recruitment scheme under R 17A of the Kerala State and Subordinate Services Rules. It is said that two vacancies to be filled up by way of special recruitment of Section Officers from among Scheduled Castes and Scheduled Tribes were reported to the Public Service Commission. The petitioner is a member of the Scheduled Tribe, being a Mala Araya. He is a graduate. He applied for the post. In the rank list prepared by the Public Service Commission the petitioner ranked as No 2 in the list of Scheduled Tribes No. 1 was one K. M. Mary. The appointment of candidates from among Scheduled Castes and Scheduled Tribes is governed by Ext. P2, G. O. (P) 397/76/PD dated 18-11-1976. Clause.3(l)(b) of that order envisages the reservation in a cycle of the second, 7th, 12th, 17th turn posts for Scheduled Tribes if 2 or more posts are earmarked for special recruitment. That means that the second appointment, 7th appointment, 12th appointment, the 17th appointment and so on will be that due to Scheduled Tribe while the other places will go to Scheduled Castes. R.3(b) of Ext. P2 further provided thus:

"If no qualified candidates from Scheduled Tribes are available for recruitment, the vacancies reserved for them will be filled up by Scheduled Castes"

In accordance with Ext. P2 the first available post went to a Scheduled Caste on an earlier occasion. The second post was due to a member of the Scheduled Tribe. K. M. Mary being the first in rank among those in the Scheduled Tribe list she was advised for appointment by the Public Service Commission. But she did not accept the appointment evidently because she obtained a job elsewhere. It is the petitioner's case that thereupon that post should have gone to him he being the next in rank in the Scheduled Tribe list. But instead of offering that post when K. M. Mary declined to accept it to the petitioner the Public Service Commission seems to have taken the view that it must then be treated as a vacancy available to be filled up afresh to which a member of the scheduled caste must be advised. Two vacancies having been reported to the Commission and the rotation at that time calling for a start from the Scheduled Tribe K. M. Mary was advised as against "2 Scheduled Tribe". The next place went to one K. P. Karuppan "3 Scheduled Castes" When K M. Mary declined to accept the appointment the consequent vacancy was considered as the 4th place and in that one Sri. Prabhakaran, Scheduled Caste was advised. He too did not accept the appointment. He requested for cancellation of his advice since he had taken up appointment as Tahsildar in the Revenue Department. The next rank holder in the Scheduled Caste list Sri. Rajan had asked for removal of his name from the rank list since he was working as Special Tahsildar in the Revenue Department. His name was removed from the rank list. So the next rank holder in Scheduled Caste Sri L. Promod Raj was advised in the vacancy and during the pendency of this Original Petition Sri. Promod Raj was appointed to that post. According to the petitioner when once Mary declined the offer of appointment that vacancy should have gone to the next Scheduled Tribe candidate. But according to the Public Service Commission the turn of the next Scheduled Tribe candidate will come only as 7th when once the second turn was satisfied by advice though not by actual appointment.

3. The prayer in this petition is that the petitioner should be declared to be entitled to the post of Section Officer in the Legislature Secretariat unde