HIGH COURT OF KERALA
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Balakrishna Eradi, J. -
(1.) On 28th January 1977 the Kerala Public Service Commission issued the notification Ext. P1 inviting applications from qualified persons for selection to undergo training in the Diploma Course in Forestry 197779 at the State Forest Service College Research Centre, Burnihat (Assam Meghalaya Border). It was stated in the notification that while the number of candidates to be selected was two, one alone was to be selected from the open market and the other post was reserved for candidates from among the Scheduled Castes and Scheduled Tribes under the Special Recruitment Programme. The writ petitioner who is a person belonging to a Scheduled Caste, namely Sambava Community, applied in response to Ext. P1 for recruitment to the reserved post. After conducting a written test, interview, etc., the Public Service Commission published a ranked list Ext. P2 containing names of candidates selected under the Special Recruitment Programme. The petitioner was assigned the first rank in that list. The 3rd respondent who is a candidate belonging to a Scheduled Tribe was ranked as the fourth in the list. The Public Service Commission by its memo Ext. P3 dated 1st March 1977 informed the 3rd respondent that he had been advised for deputation to the Diploma Course in question and for eventual appointment as Assistant Conservator of Forests in the Forest Department. The petitioner contends that since there was only one vacancy and he had obtained first rank in the select list the Public Service Commission acted illegally in advising the 3rd respondent who had secured only a lower rank by relying on certain directions contained in the Government orders evidenced by Exts. P4 and P5 purporting to lay down a principle of rotation between the candidates belonging to Scheduled Castes and those belonging to Scheduled Tribes. The petitioner has sought a declaration that Exts. P4 and P5 are inconsistent with the provisions of R.17A of the Kerala State and Subordinate Services Rules and also violative of Art.16 of the Constitution and hence are illegal and void. Another prayer in the writ petition is that the memo Ext. P3 issued by the Public Service Commission to the 3rd respondent should be quashed and that a declaration should be granted by this court that the petitioner is entitled to be selected and deputed for undergoing the training in the Diploma Course in Forestry on the basis of his ranking in the select list Ext. P2.
(2.) R.17A of the Kerala State and Subordinate Services Rules reads:
"Notwithstanding anything contained in these rules or in the special rules, the State Government may reserve a specified number of posts in any service, class, category or grade to be filled by direct recruitment exclusively from among the members of Scheduled Castes and Scheduled Tribes".
In exercise of the power conferred by the above rule, which is obviously an enabling provision the State Government by G.O.(P) 263/70/PD., dated 6th August 1970 ordered that a special recruitment of candidates belonging to Scheduled Castes/Scheduled Tribes should be made to 1 per cent of the gazetted posts and 5 per cent of the non gazetted posts which are to be filled up by direct recruitment in each department of the Government. Subsequently by another Government Order, dated 13th April 1972 it was further directed that if two or more posts in the gazetted category are so earmarked in a department for such special recruitment one post should be reserved for Scheduled Tribes and it is only if no qualified hands from Scheduled Tribes are available that the said post should be filled up from Scheduled Castes. It is also stated in that G.O. that the rest of the gazetted posts earmarked for special recruitment will be open to both Scheduled Castes and Scheduled Tribes. Some similar directions were issued in respect of non gazetted posts earmarked for special recruitment in a Government Order, dated 29th November 1973, but since we are not concerned in this case with a non gazetted post it is unnecessary to advert to the terms of that G.O.
(3.) It would appear that certain difficulties were experienced by the Public Service Commission in implementing the above orders of the Government in the matter of reserving vacancies to Scheduled Tribes and as a result of such difficulties the making of special recruitment was being held up. Hence the Public Service Commission had requested the Government for clarification of those aspects. The whole matter was, therefore, reexamined by the Government and a comprehensive order for regulating the special recruitment to both gazetted and non gazetted posts was issued by the Government as per Ext. P4, dated 17th January 1976 in supersession of the earlier orders, dated 13th April 1972, 26th June 1972 and 29th November 1973. The operative provisions of the G.O. are contained in clauses (i) to (vi) thereof. Clause (i) states that if two or more posts are earmarked for special recruitment to gazetted posts in any department, the second turn and thereafter the 7th, 12th, 17th and so on shall be reserved for Scheduled Tribes and if no qualified candidates from Scheduled Tribes are available for recruitment the vacancies reserved for them will be filled by Scheduled Castes. It was further stated in clause (i) that the Scheduled Tribes are eligible for appointment against the non reserved vacancies on condition that if a Scheduled Tribe candidate secures appointment against a non reserved vacancy the next turn of the Scheduled Tribe candidates shall be dereserved. We are not concerned with the provisions of clause (ii) since it deals with only the procedure for special recruitment to non gazetted posts. In clause (iii) the Government approved the proposal of the Public Service Commission that the turns reserved for Scheduled Tribes and filled up by Scheduled Castes can be compensated in the next selection to be made within three years. Clause (iv) deals with the fixation of turns to be reserved for Scheduled Tribes in respect of non gazetted posts. In clause (v) Government have issued a direction to all Heads of Departments and other appointing authorities that vacancies for special recruitment are not to be divided by them between Scheduled Castes and Scheduled Tribes and that it is for the Public Service Commission to select Scheduled Caste or Scheduled Tribe candidates as the case may be in accordance with the orders issued by the Government concerning the matter. In clause (vi) of Ext. P4 the Government have clarified that the orders regarding the reservation of posts for Scheduled Tribes in special recruitment are to be effective only from 13th April 1972 in the case of gazetted posts and 26th June 1972 in the case of non gazetted posts. Pursuant to some suggestions received from the Public Service Commission the Government by the order Ext. P5 -- GO (P) 397/76/PD., dated 18th November 1976 -- substituted the following in the place of clause (i) of Ext. P4:
"(1)(a) In cases where only one vacancy has been earmarked for special recruitment, the candidate who secures the top rank in the ranked list will be appointed to the post whether he belongs to Scheduled Castes or Scheduled Tribes. If the candidate so appointed leaves service after joining duty, the resultant vacancy will be filled up by the next candidate in the ranked list irrespective of the fact whether he belongs to Scheduled Caste or Scheduled Tribe.
(b) If two or more posts are earmarked for Special Recruitment to gazetted posts in any department the 2nd and thereafter the 7th, 12th, 17th and so on shall be reserved for Scheduled Tribes. If no qualified candidates from Scheduled Tribe are available for recruitment, the vacancies reserved for them will be filled up by Scheduled Castes. The Scheduled Tribes are eligible for appointment against the non reserved vacancies on condition that if the Scheduled Tribe candidate secures appointment against a non reserved vacancy on merit, the next turn of the Scheduled Tribe candidate shall be dereserved in favour of a Scheduled Caste candidate.
Note. -- In case special recruitment is made to 6 gazetted posts and one of the candidates vacates the post after joining duty, the resultant vacancy will be treated as the 7th vacancy and will be filled up by a Scheduled Tribe candidate, provided no dereservation is necessitated consequent on the filling up of non reserved turns by Scheduled Tribe candidates, even though there are Scheduled Caste candidates with higher ranks in the select list."
The contention of the petitioner is that since under the notification Ext. P1 only one vacancy had been earmarked for special recruitment it is clause (1)(a) of Ext. P4 as amended by Ext. P5 that applied to the present case and the petitioner who had secured the top rank in the ranked list was entitled to be advised for deputation to the training course irrespective of whether he belonged to the Scheduled Caste or Scheduled Tribe. We do not find it possible to accept this contention.;
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