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2017 Supreme(Ker) 350
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. ASHA, J.
NIDHIN M.C., S/O. M. CHANIAPPA – PETITIONERS
Versus
THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, SCHEDULED CASTE AND SCHEDULED TRIBES DEPARTMENT AND ORS. - RESPONDENTS
W.P(C) No.1642 of 2015-E
Decided On : 22-02-2017
FOR THE PETITIONER: T.R. RAVI, JAWAHAR JOSE, V. VINAY MENON, CISSY MATHEWS, ARUN AJAY SHANKAR
FOR THE RESPONDENTS: B. UNNIKRISHNA KAIMAL, P.C. SASIDHARAN
The main legal point established in the judgment is that the benefit of reservation as a Scheduled Tribe member is conferred by the Presidential Order and cannot be denied by the State Government or Public Service Commission.
Headnote:
Marati - Scheduled Tribe Reservation - Constitution (Scheduled Tribes) Order, 1950, Kerala State and Subordinate Service Rules, 1958 - The court declared the petitioner eligible for reservation as a member of Scheduled Tribe Community with effect from 19.9.2013, the date of Ext.P5 Presidential Order and directed the 2nd respondent to include him in the ranked list and advise him against the reservation turn of Scheduled Tribe accordingly.
Fact of the Case:
The petitioner, belonging to the Marati community, sought reservation as a member of the Scheduled Tribe community for the post of Assistant Engineer. The Kerala Public Service Commission (PSC) denied the reservation benefit, citing the absence of the community in the list of Scheduled Tribes in the Kerala State and Subordinate Service Rules (KS&SSR) at the time of application.
Finding of the Court:
The court held that the petitioner is entitled to the benefit of reservation as a member of the Scheduled Tribe community from the date of the Presidential Order, and directed the PSC to consider the petitioner for reservation in the ranked list and appointment.
Issues: The main issue was whether the petitioner, belonging to the Marati community, was eligible for reservation as a member of the Scheduled Tribe community at the time of application for the Assistant Engineer post.
Ratio Decidendi: The court relied on the constitutional provisions under Articles 341 and 342, and emphasized that the benefit of reservation is conferred by the Presidential Order and cannot be denied by the State Government or PSC. The court also highlighted that the reservation should be applied at the time of appointment and cannot be denied based on the absence of the community in the KS&SSR at the time of application.
Final Decision: The court declared the petitioner eligible for reservation as a member of Scheduled Tribe Community with effect from 19.9.2013, the date of Ext.P5 Presidential Order, and directed the 2nd respondent to include him in the ranked list and advise him against the reservation turn of Scheduled Tribe accordingly.
The petitioner belongs to Marati community which has been included in the list of Scheduled Tribes by the presidential order dated 19.09.2013 as per Ext.P5 gazette notification. The Kerala Public Service Commission ('PSC' for short) invited applications for appointment to the post of Assistant Engineer (Electrical) in the Kerala State Electricity Board and Travancore Titanium Products Ltd. pursuant to which the petitioner submitted on-line applications Exts.P3 and P4 respectively.
2. ‘Marati’ (of Hosdurg and Kasargod Taluk of Kasargod district) community was included in the list of Scheduled Tribes in Kerala as entry no.28 in part VII of the Schedule to the Constitution (Scheduled Tribes) Order, 1950, as per the Constitution ((Scheduled Tribes) Order Amendment Act, 2013, which received Presidential assent on 18.9.2013 and published by Ext.P5 notification in gazette of India dated 19.9.2013. Consequential amendment in the list of Scheduled Tribes in the Schedule to the Part I of Kerala State and Subordinate Service Rules, 1958 (KS&SSR) was issued only as per Ext.P6 notification in Kerala gazette extraordinary dated 29.4.2014 including ‘Marati’ (of Hosdurg and Kasargod Taluk of Kasargod district) as item no. 23A, as per KSSR (2nd Amendment) Rules 2014, issued in G.O.(P) No. 11/2014/P&ARD dated 28.4.2014.
3. In the application there was a column to furnish the 'caste and reservation', against which, petitioner stated ‘Marati’ (of Hosdurg and Kasargod Taluk of Kasargod district) - General. It is pointed out that when the community was stated as Marati, the software of the PSC was not permitting to show it as Scheduled Tribe, apparently because it was not included in the list of communities coming under the Scheduled Tribe and provision to show it as ST was not available in the pre-loaded software of the PSC. Immediately after submitting the applications the petitioner filed this writ petition praying for the following reliefs:
"(i) Issue a writ in the nature of mandamus directing the 2nd respondent to grant reservation to the petitioner as a member of scheduled tribe community from the date of Exhibit-P5 Gazette notification.
(ii) Declare that the petitioner is eligible for reservation, as a member of scheduled tribe community from the date of Exhibit-P5 Gazette notification.
(iii) Issue a writ in the nature of certiorari quashing Exhibit-P7.
(iv) Grant such other order or direction as this Hon'ble Court may deem fit and necessary, in the facts and circumstance of the case."
4. By order dated 7.7.2015 this court directed the 2nd respondent to consider the petitioner provisionally as a member of the Marati community in Hosdurg and in Kasargod Taluks in Kasargod district, while processing his applications Ext.P3 and P4. Thereafter, Ext.P10 rank list was published on 30.12.2016, during the pendency of the writ petition. The name of the petitioner was not included in the ranked list. However, it was stated under note 2 as follows:
"NOTE 2:- Result of the candidate with interview Serial No. 2555 is withheld subject to the final judgment in WP(C) 1642/15(E)."
5. The 2nd respondent filed a counter affidavit stating that the benefit of the inclusion of Marati community among the Schedule Tribe community can be granted only for notifications issued subsequent to 29.4.2014 i.e. subsequent to the amendment of the list of Scheduled Tribes in KS&SSR. In para.7 of the counter affidavit, it was stated as follows:
"7. As per decision No.9 dated 21.07.2014, the Commission ordered that the reservation benefit for Marati Community can be effected only for notifications from 29.04.2014, the date on which the KSSR was amended and included the community in the list of ST and reservation benefits shall not be effected for the notifications issued prior to 28.04.2014. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx"
It is therefore the case of the P.S.C that the Commission cannot redo what it had already done. The eligibility of the candidate is to be determined
