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Supreme Court of India
Dr. Aswathy R.S.Karthika vs Dr. Archana M. on 29 July, 2020Author: Hemant Gupta
Bench: S R Bhat, H Gupta, L N Rao
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’
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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
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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
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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
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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
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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
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“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
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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
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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
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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
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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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