M.H.BEG - (1.) THE University of Cochin was granted special leave to appeal to this Court against the Judgment and order of the Kerala High Court allowing a Writ Petition of the respondent Dr. N. Raman Nair who had applied unsuccessfully on 15-10-1972 for the post of Reader in the Department of Hindi after coming into force of the Cochin University Act 30 of 1971 (hereinafter referred to as the Act') THE High Court had quashed a resolution passed by the Syndicate on 6-1-1973 for appointing Dr. A. Ramchandra Dev to the post. THE High Court had also quashed the resolution of the Syndicate of the University passed on 7-7-1972, the relevant part of which runs as follows : "Resolved that 1. the rules mentioned under Section 6 (2) of the Cochin University Act, 1971 be implemented in the case of teaching staff as a class except in the case of post of Professor which shall be filled up exclusively in consideration of merit; but the reservation quota against this category should be provided additionally in the category should be provided additionally in the category of Readers. Lecturers, Teaching Assistant,etc., taken colectively." It had directed the University to make appointments in confirmity with Section 6 (2) of the Act. Section 6 lays down : "6, University open to All Classes and Creeds :- (1) No person shall on grounds only of religion race, caste, sex, descent place of birth residence, language political opinion or any of them, be ineligible for or dis-criminated against in respect of any employment or office under the University or membership of any of the authorities or bodies of the University or admission to any degree or course of study in the University. (2) In making appointments to posts in any service, class or category under the University, the University shall mutatis mutandis, observed the provisions of Clauses (a), (b) and (c) of rule 14 and the provisions of Rules 15, 16 and 17 of the Kerala State and Subordinate Service Rules as demanded from time to time.
(2.) SECTION 6 of the Act, read as a whole, indicates that it was meant to eliminate unjustifiable discrimination. The provisions of SECTION 6 (1) are directed against discrimination against particular individuals on any of the grounds given there. SECTION 6 (2) is meant to ensure equality of treatment between citizens as members of groups, and in particular, to enable "backward" classes to secure appointments so as to remove the gap between the "advanced" and the "backward". In doing so it may appear that the principle of equality of opportunity on the basis of individual merit is being modified. Even if that be the result, the wider object is to promote equality between groups of citizens. Rule 14 mentioned in Section 6 (2) lays down a rule of rotation in making appointments. Rule 15 indicates that the principles of minimum qualifications to determine whether candidates are suitable for selection is not abandoned. Rule 16 provides for a "sub-rotation" among sub-groups of major backward classes. This concept is further explained and elaborated in rule 17. These rules are set out below in toto. "14. Reservation of appointments. - Where the Special Rules lay down that the principle of reservation of appointments shall apply to any service, class or category or where in the case of any service, class or category for which no Special Rules have been issued, the Government have by notification in the Gazette declared that the principle of reservation of appointments shall apply to such service, class or category, appointments by direct recruitment to such service, class or category shall be made on the following basis :- (a) The unit of appointment for the purpose of this rule shall be 20, of which two shall be reserved for scheduled castes and scheduled tribes and 8 shall be reserved for the other backward classes and the remaining 10 shall be filled on the basis of merit: Provided that one out of every five posts reserved for Scheduled Castes and Scheduled Tribes shall go to a Scheduled Tribe candidate and only in the absence of a Scheduled Tribe candidate, it shall go to a Scheduled caste candidate. (b) The claims of members of Scheduled Castes and Scheduled Tribes and Other Backward Classes shall also be considered for the appointments which shall be filled on the basis of merit and where a candidate belonging to a Scheduled Caste, Scheduled Tribe or Other Backward Class is selected on the basis of merit, the number of posts reserved for scheduled castes, scheduled tribes or other backward classes as the case may be, shall not be in any way be affected. (c) Appointments under this rule shall be made in the order of rotation specified below in every 20 vacancies. Provided that the fourth turn in the third rotation and the twelfth turn in the fifth rotation shall go to scheduled Tribe candidates and in the absence of scheduled Tribe candidates they shall go to Scheduled castes candidates: Provided that the rule shall not apply in the case of appointments of near relatives of military personnel killed, permanently disabled or reported to be missing in action if they are or have been wholly dependent on such personnel and they shall be given preference in the matter of appointment to Government Service provided they posses the prescribed qualifications and subject to the condition that preference in the matter of appointment shall be given only to one relation in the case of each such personnel. Explanation :- The term "Near Relatives" means the windows/wives, sons, daughters, sisters, brothers, father, mother; nieces and nephews of the military personnel. 15. If there is no suitable candidate for selection from a particular community classified as "Other Backward Classes" or from the group of communities classified as "Scheduled Castes and Scheduled Tribes" in the turn allotted for them in the integrated cycle combining the rotation in clause (c) of Rule 14 and the sub-rotation in sub-rule (2) of R. 17, the said community or group shall be passed over and the post shall be filled up in the following manner :- If a suitable candidate is available for selection in the community or group immediately next to the passed over community or group in the said cycle he shall be selected. If no such candidate is available in that community or group selection shall be made from the community or group in the said cycle, he shall be selected. If no such candidate is available in that community or group, selection shall be made from the community or group next following strictly in the order of rotation. If no suitable candidate is available for selection in any of the said communities or groups selection shall be made from among the open competition candidates. The benefit of the turn thus forfeited to a community, or group by reason of its being passed over shall be resorted to it at the earliest possible opportunity, if a suitable candidate from that community or group is available for selection by making adjustment against the claims of the community or group that derived the extra benefit by reason of such passing over : Provided that in no year reservations including carrying forward vacancies to a category of post shall exceed 50% of the total number of vacancies for which selection by direct recruitment to that category is resortd to in that year : Provided further that the right of restoration of the turn shall lapse with the expiry of three years from the date of the passing over : Provided also that the said right of restoration shall not extend to a case where the selection has gone, to an open competition candidate. Note :- The year of reservation referred to above shall be from the 15th June of a calendar year to 14th June of the succeeding calender year. The rotation referred to above shall commence from 15-6-1967 and the outstanding compensation due to communities in the cycle of rotation up to 15-6-1967 will be treated as lapsed. 16. There shall be sub-rotation among minor groups of Other Backward Classes. 17. (1). The grouping of Other Backward Classes for the above purpose shall be as indicated below :- 1.Ezhavas and Thiyyas. 2.Muslims. 3.Latin Catholics, S.I.U.C. and Anglo- Indians. 4.Scheduled Caste converts to Christianity. 5.Other Backward Classes put together i.e. Communities other than those mentioned in Items 1 to 4 above included in the list of "Other Backward Classes". (2) The 40 per cent reservation allowed to Other Backward Classes shall be distributed among the different groups of Backward Classes in the following proportion :- Out of every 40 appointments 14 shall be given to Ezhavas and Thiyyas 10 to Muslims 5 to Latin Catholics, S. I. U. C. and Anglo-Indians 1 to Scheduled caste converts to Christianity and 10 to Other Backward Classes put together. The following shall be the rotation by which posts reserved for Other backward Classes will be distributed among the various groups coming under the class :- Explanation :- the expression "other Backward classes' referred to in Item 4, 8, 12, 16, 20, 24, 28, 32, 36 and 40 shall mean Backward Classes referred to in Item 5 under sub-rule (1) of this rule". It is not disputed that the petitioner-respondent No. 1 Dr. Nair stood 1st in the order of merit as determined by the Board of Appointments for the post of a Reader in the department of Hindi in the University. The petitioner respondent's case was that the post of Reader' in Hindi is in itself a particular category. He also said". If the principle for reservation of appointments provided in Rules 14 to 17 of the General Rules is applied to the post of Reader in Hindi the petitioner alone is entitled to get it since he secured the 1st rank in the selection and since the first post is reserved for open competition (on. Merits as provided in sub-rule (c) of Rule 14)." The petitioner submitted that the principle of reservation had been wrongly interpreted by the University in its resolution of 17-7-1972 (Ex. P-2) when it laid down that principles of reservation for appointment should be applied to posts in a service or class or category collectively and not separately. The whole case, therefore, hinged round an interpretation of Rules 14 to 17 and their impact on the principle of rotation as applied to "service class or category under the University."
(3.) SECTIONS 6 (2) lays down the mandatory duty upon the University to observe clauses (a), (b) and (c) of Rule 14 as well as Rules 15, 16 and 17 of the Rules set out above. But it does not indicate the manner in which the classification of members of a service under the University has to be made for the purposes of applying these rules. Inasmuch as every statutory power to be exercised reasonably we can say that the classification has to be reasonable. Thus, the University may treat all the teaching of posts as belonging to one class for the application of the rules. On the other hand it may treat only posts of Readers in all subjects or in a particular subject as a category by itself for the application of these rules. It cannot exempt any class or category such as Professors from the operation of the rules altogether. Only if it so classifies all posts in a service under the University as to make its classification prima facie unreasonable, could the validity of the classification made by it be assailed. The power is presumed to be exercised reasonably on the strength of facts and circumstances relevant for purposes intended to be achieved by the classification. These purposes have also to pass the test of legality and constitutionality. Clause (c) of Rule 14 lays down a Scheme of rotation for every block of 20 vacancies. But it does not specifically say that the rule of rotation will be applied in the order in which vacancies occur. We however think that by necessary implication the rule is intended to be applied to vacancies in the order in which they occur. It could not be meant to be applied with reference to the date on which a vacancy is announced or advertised because these are fortuitous matters over which those in power in the University may, if so inclined be able to exercise control. The whole object of such rules is to introduce fixity of principle and of the method of its application so as to remove, so far as possible, uncertainty and opportunities for abuse of power. That being the object of such a rule it seems obvious to us that the rule must have been intended to operate with reference to the dates on which the vacancies occur and not with reference to some other events such as the dates of declaration or advertisement of the vacancies.;