Dr. Aswathy R.S.Karthika vs Dr. Archana M.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2796 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 17734 OF 2019)

DR. ASWATHY R.S. KARTHIKA & ORS. .....APPELLANT(S)

VERSUS

DR. ARCHANA M. & ORS. .....RESPONDENT(S)

WITH

CIVIL APPEAL NO. 2797 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 8652 OF 2020)

JUDGMENT

HEMANT GUPTA, J.

1. The four appellants in these two appeals before us, were the

original applicants before the Kerala Administrative Tribunal 1 who

invoked its jurisdiction under Section 19 of the Administrative

Tribunal Act, 1985. The Tribunal allowed the Original Application 2

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 Signature Not Verified Digitally signed by dismissed the OA filed by the appellants. GEETA AHUJA Date: 2020.07.29 16:30:57 IST Reason:

1 for short, ‘Tribunal’ 2 for short, ‘OA’ 3 for short, ‘Commission’

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2. The appellants belonged to the Hindu Nadar community, a

category included in the Other Backward Classes 4 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 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

4 for short, ‘OBC’ 5 for short, ‘Rules’

2 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 21st day of November, 2009 during the period commencing on and from the 21st day of November, 2009 to the date of publication of the Kerala State and Subordinate Services (Amendment) Rules, 2010 in the Gazette, i.e. till the date of commencement of this Explanation, shall be adjusted in the future vacancies without disturbing the advices already made.”

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5. The Commission issued a Circular on 31.8.2010 in respect of

reservation for the communities of SIUC Nadars and Hindu Nadars.

The Circular communicated as under:

“The above will be applicable to all Ranked Lists published on or after 21.11.2009. The short fall in reservation in the advices made during the period from 21.11.2009 to the date of issue of this circular shall be adjusted in the future vacancies without disturbing the advices already made.”

6. The grievance of the appellants before the Tribunal was that there

was no Hindu Nadar candidate in the main rank list containing 197

candidates for the post of Medical Officer (Homeo). It was

submitted that the shortfall in reservation for Hindu Nadar

community in the advices made by the Commission on or after

21.11.2009 i.e. the date of the commencement of the 1%

reservation for the Hindu Nadar Community, was required to be

made good in future vacancies without disturbing the advices

already made. However, the Commission in its Circular dated

31.8.2010, restricted the implementation of the Rules to the rank

list published on or after 21.11.2009. It was the stand of the

appellants that the vacancies arising after 21.11.2009 were

required to be filled up from amongst the candidates belonging to

Hindu Nadar community on the basis of rank list published on

3.8.2015. It was submitted that previous rank list published on

27.7.2009, was valid up to 3.10.2013 but that was prior to the

provision of the reservation. Therefore, said the Appellants that the

rank list published on 3.8.2015 would form the basis of

4 appointment in respect of vacancies which had arisen after

21.11.2009. It was contended that 249 candidates had been

appointed by way of direct recruitment to the post of Medical

Officer (Homeo) but none had been appointed from the Hindu

Nadar community. Therefore, the shortfall in the quota of the

Hindu Nadar community was required to be made good from

amongst the candidates in the subsequent rank list dated

3.8.2015, as was directed by the Tribunal.

7. On the other hand, the stand of the Commission before the Tribunal

was that in its Circular dated 31/10/2010, it was clearly stated that

the Hindu Nadar community would be provided reservation from

the rank list published on or after 21.11.2009. Thereafter, the rank

list had only been published on 3.8.2015 after the amendment in

the Rules. The Commission had thus issued advice by giving 1%

reservation to the Hindu Nadar community on the basis of such

succeeding rank list.

8. The Tribunal held that the above Circular of the Commission could

not adversely affect the claim of the appellants. The Commission

was bound to fill up the shortfall in the vacancies reserved for the

Hindu Nadar Community. It was therefore directed to advice

candidates from the supplementary list after assessing the shortfall

by advising equal number candidates from the reported vacancies.

The Tribunal, thus, issued the following directions:

“Therefore the Original Application is allowed and accordingly it is declared that Annexure A6 circular

5 providing that the said order will be applicable to all the Ranked Lists published on or after 21.11.2009 cannot adversely affect the claim of the applicants. In view of the above declaration the respondents are bound to fill up the shortfall in reservation in advices made in respect of the previous ranked list from Annexure A2 Ranked List. There will be a further direction to the Commission to advice the candidates from supplementary list whole belong to Hindu Nadar Community after assessing the shortfall by advising equal number candidates from the reported vacancies.”

9. The private respondents, who are candidates belonging to the

Open Category, Anglo Indian and Vishwakarma community,

challenged the said order of the Tribunal before the High Court,

inter alia, on the ground that the shortfall in reservation for the

Hindu Nadar community on the advice of the Commission from the

rank list published on or after 21.11.2009 till the date of publication

of the Rules alone were required to be adjusted in future vacancies

without disturbing the advice already made. Since no rank list had

been published after 21.11.2009 except the rank list published on

3.8.2015, the shortfall in vacancies could not be filled up on the

basis of the succeeding rank list. Appointments had already been

made on the basis of such rank list.

10. In the counter affidavit filed by the Commission before the High

Court, it averred that the Commission on its own assessed the

shortfall of the Hindu Nadar Community and arrived at the figure of

three posts. Thereafter the Commission decided to fill up the

shortfall by advising candidates from the rank list that came into

force on 3.8.2015 from among the vacancies reported prior to the

6 expiry of the above rank list on 3.8.2018 i.e. after a validity period

of three years. The relevant extract reads as under:

“2…………The direction in Exhibit P3 was to the Public Service Commission (PSC for short) to assess the shortfall in respect of Hindu Nadar Community candidates that arose from 21.11.2009 onwards. The PSC on their own assessed the shortfall and arrived at the figure of 3 and decided to fill up the shortfall by advising candidates from the rank list that came into force on 3.8.2015 from among the vacancies reported prior to the expiry of the above rank list on 3.8.2018………….”

11. The High Court held that Commission could have kept the

vacancies unfilled if suitable candidates from the Hindu Nadar

community were not available for selection and could notify the

same separately for the community in that particular selection

year. Such exercise was not resorted to by the Commission and all

pending vacancies cannot be compensated after 2.2.2006 as per

the Note to Rule 15(a) of the Rules.

12. Mr. Pillay, learned senior counsel appearing for the appellants

contended that reservation for the Hindu Nadar community was

provided after persistent effort by the community. Therefore, the

benefit of reservation to the members of such community could not

be denied, particularly in view of Explanation II inserted in the

Rules, vide amendment dated 3.8.2010. Reliance was placed upon

the stand of the Commission that there was shortfall of three posts

after the amendment in the Rules, therefore, the appellants were

rightly appointed on 16.10.2018 and 28.11.2018 in pursuance of

the directions of the Tribunal.

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13. On the other hand, Mr. Nidhesh Gupta, learned senior counsel

appearing for the private respondents, argued that 133 candidates

had been appointed from the rank list published on 3.8.2015. The

post for the Hindu Nadar Community was at roster point 60 in a

100-point roster. One Hindu Nadar community candidate was

advised for appointment on 8.3.2017. Therefore, the next available

post would come at Serial No. 160 only. It was contended that the

shortfall in vacancies as claimed by the appellants could not be

permitted to be filled up on the basis of the succeeding rank list.

For any shortfall, in terms of Rule 15(a), vacancies had to be

notified vide a separate notification, for that community. Since

there was no recruitment process initiated for the shortfall

vacancies, the appellants could not claim the right of appointment

merely because their names appear in the succeeding rank list.

The appellants could not do so unless there was a post available for

the Hindu Nadar community after the publication of such rank list.

14. Further, it was submitted before this court, that the appellants had

not challenged the denial of reserved vacancies in the rank list

dated 27.07.2009, therefore, challenge by way of an application

before the Tribunal suffered from a delay of six years after the

publication of the Rank list and after three years of its validity

period. Thus, the appellants had waived their right if any. It was

also submitted that the right to seek an appointment under the

2009 rank list could be claimed only by those belonging to the

Hindu Nadar community in such rank list. But the names of the

8 appellants did not feature therein. In support of such plea, reliance

was placed upon judgments reported as P.S. Gopinathan v.

State of Kerala and Others.,6 Dr. G. Sarana v. University of

Lucknow and Others7 and Inderpreet Singh Kahlon and

Others v. State of Punjab and Others,8.

15. It was also submitted that the Rules as amended and the Circular

of the Commission dated 31.08.2010 were to the same effect with

regard to the application of reservation for Hindu Nadar

community. There was no violation of the Rules nor had the

Commission postponed the date of applicability of the reservation

as asserted by the appellants. It was also submitted that there

was no challenge to the Circular issued by the Commission in the

Original Application filed by the Appellants.

16. Further, it was submitted that Article 16(4-B) of the Constitution is

merely an enabling provision and thus, the appellants cannot claim

any right based upon such provision of the Constitution.

17. On the other hand, the Commission in the written submissions filed

before this Court averred that Rule 15(a) is inapplicable to the facts

of the present case, as it is not a case of temporary passing over of

vacancies or the case of non-availability of candidates. It was also

submitted that the amended rules were made applicable to all

ranked list published on or after 21.11.2009. The relevant extract

from the written submission is as under:

6 (2008) 7 SCC 70 7 (1976) 3 SCC 585 8 (2006) 11 SCC 356

9 “17. The primary contention of the KPSC is that the High Court judgment is erroneous on the fundamental premise that Rule 15(a) of the Rules is inapplicable to the facts of the present case, as it is not a case of temporary passing over of vacancies or the case of non-

availability of candidates. It is also contended that the amended rules were made applicable to all ranked list published on or after 21.11.2009 by Circular No. 20/2010 dated 31.08.2010.

Under these circumstances, it is submitted that the advice by the KPSC qua the present petitioners, in compliance of the Tribunal Judgment was legal and justified. The SLP on these grounds be disposed of in accordance with law.”

18. The Note to Rule 15(a) of the Rules was inserted when the Rules

were amended vide notification dated 8.3.2006 with retrospective

effect from 2.2.2006. This note had a one-time application and was

not applicable to all future rank lists to be prepared by the

Commission. It was applicable in respect of pending vacancies such

as those that were temporarily passed over or where no candidate

was available or non-joining duty as on 2.2.2006. Such vacancies

were required to be compensated in future selection processes in

view of the amendment carried out on 8.3.2006.

19. The first part of Rule 15(a) of the Rules provides for rotation in

terms of clause (c) of Rule 14 and sub-rotation in sub-rule (2) of

Rule 17 as specified in the Annexure. The second part of the Rule

is that if a suitable candidate is not available for selection from any

particular community, such vacancy shall be kept unfilled which

will be notified separately for group of communities for that

selection year. The selection year has been explained to mean the

10 period from the date on which rank list of candidates comes into

force to the date on which it expires. The present is not a case,

where no candidate was available or there was temporary passing

of the vacancies. Thus, we find the stand of the Commission in the

written submission filed is correct in law.

20. Explanation II is applicable to the rank list published by the

Commission on or after 21.11.2009 till 3.8.2010 when the Rules

were amended. No such rank list was published during this period.

This explanation was to save the appointments already made

before the Rules were statutorily amended leaving an option open

for adjustment of reservation in future vacancies. Since no rank

list was published during the period of the decision of the

Government and publication of the amended Rules, Explanation II

will not be applicable in the present case, though it recognizes the

rights of the Community in respect of the short fall of vacancies

between the date of the decision of the Government and the

subsequent amendment. The posts falling vacant after the

amendment of the Rules are required to be filled up in accordance

with the amended Rules. The Rules as amended provided

reservation to Hindu Nadar Community from 21.11.2009. The rank

list is a merit list which has a validity period of three years. Such

rank list is the source for making appointments as and when, any

vacancy arises. The vacancies have to be determined in terms of

the applicable rules. The present is a case of non–consideration of

the vacancies accruing after 21.11.2009 while filling up the posts

11 from the rank list published. The appellants were thus rightly

appointed against the shortfall of vacancies which arose on or after

21.11.2009.

21. The Commission has admitted that there were three posts falling to

the Hindu Nadar Community after amendment of the Rules. Such

vacant posts had to be filled up. Since the only source of shortlisted

candidates was the rank list issued in 2015, appointments had to

be made from that List. The entire argument of the respondents is

based upon the rank list published on 27.7.2009. Such rank list was

published prior to the amendment in the Rules and has no

application to the facts of the present case. In fact, the appellants

are not even claiming any right on the basis of such rank list.

22. We thus find that the Circular of the Commission and the

Explanation II inserted by amending the Rules, provide that the

shortfall in reservation in the advices made during the period from

21.11.2009 to the date of issue of the Circular were to be adjusted

in future vacancies without disturbing the advices already made. It

did not mean that the vacancies arising after the amendment were

not required to be filled up as per the merit in the rank list. We find

that the posts available for the Hindu Nadar community after

21.11.2009 are required to be provided to the them. The

Commission has rightly admitted in the written submissions filed

that, Rule 15(a) of the Rules is inapplicable in the present case, as

it is not a case of temporary passing over of vacancies nor the case

of non-availability of candidates. Furthermore, the rank list was

12 operative till 3.10.2013 and had to reflect the policy of reservation,

but did not do so.

23. The entire submission on behalf of the private respondents are

misconceived and untenable. The appellants are not claiming any

right whatsoever on the basis of the rank list published on 27.7

2009. The claim of their appointment is in respect of the vacancies

which arose after 21.11.2009 when the Rules were amended and

reservations for the Hindu Nadar community was provided. The

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

the 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.

24. Therefore, the argument of delay or waiver as submitted on behalf

of Mr. Gupta has no basis either factually or legally. The judgments

referred to by Mr. Gupta in the written submissions have no

applicability to the facts of the present case as the cause to invoke

jurisdiction of the Tribunal arose when candidates were not

appointed on the basis of rank list issued in 2015. Similarly, the

argument that there is no challenge to the Circular dated 31.8.2010

13 is again misconceived. Explanation II is applicable only in respect of

the advice given by the Commission from the rank list published on

or after 21.11.2009 till the Rules were statutorily amended and

notified. It is an admitted fact that no advice was issued by the

Commission for appointing any candidate nor was any rank list

published during the period specified by Explanation II. The Circular

dated 31.8.2010, issued by the Commission is on the lines of

Explanation II but neither such explanation nor the Circular of the

commission, deals with the shortfall of vacancies arising after the

amendment of the Rules till the publication of the rank list on

3.8.2015.

25. Further, no reliance is being placed by the appellants, on the

argument based on Article 16(4-B) of the Constitution, before this

court. Thus, we find that the submissions made on behalf of Mr.

Gupta do not warrant any acceptance.

26. Consequently, the appeals are allowed, and the order and

judgment of the High Court is set aside and that of the Tribunal is

restored.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

.............................................J. (S. RAVINDRA BHAT)

NEW DELHI;

JULY 29, 2020.

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