V. P. Gopalan Nambiyar, J. (On behalf of himself and Bhaskaran J.) -
(1.) These Writ Appeals are directed against the judgment of a learned Judge of this Court. The Kerala Public Service Commission invited applications for selection to the post of Sub Magistrates in the Kerala Subordinate Magisterial Service. Eight candidates had to be selected by direct recruitment from the Bar, and eight by transfer. We are not concerned in these appeals with the latter mode of recruitment, but only with the former, viz. those recruited directly from the Bar. After the interview conducted by the Commission, a rank list (copy Ex. P2) was prepared by the Commission. Smt. Pulomaja Devi, the third Respondent in the writ petition out of which these appeals arise, and the appellant in Writ Appeal No. 373 of 1974, was No. 8 in the said list. She belongs to the Ezhava Community, one of the 'Other Backward Classes', recognised as such for purposes of Art.15(4) and 16(4) of the Constitution. The 3rd respondent in these appeals Sri. Gopinathan Nair, a member of one of the Forward Communities or 'Classes' and the petitioner in the aforesaid writ petition, was ranked No. 5. No. 1 in Ext. P2 was an Ezhava; No. 2 was a member of a Forward Community; No. 3 was an Ezhava; No. 4 was a member of an 'Other Backward Class'; and No. 24 was a member of the Scheduled Caste. It is really unnecessary to notice the names of these; and the others may be left out of the picture for the purpose of these appeals. Ext. P3 is a copy of the advice list of the Commission. No. 1 in Ext. 2 retained his rank as No. 1 in Ext. P3; No. 3 in Ext. 2 (Jnana Sudarsanan) became No. 2 in Ext. P3; No. 2 in Ext. P2 (L. Ramachandran Nair) became No. 3 in Ext . P3. No. 24 in Ex. P2, the Scheduled Caste candidate (E. D. Thangachan), came in as No. 4 in Ext. P3. No. 8 in Ext. P2 (Smt. Pulomaja Devi) came in as No. 5 in Ext. P3. We are not really concerned with the transmutation, if any, of the ranks of the other candidates. The 3rd respondent herein, who was No. 5 in Ext. P2 was aggrieved by the selection of No. 8 in that list, and filed O.P. 2491 of 1974. The same was allowed by a learned Judge of this Court to the extent of quashing Ext. P3 in so far as it related to the inclusion of the 3rd respondent, in that list. The learned Judge also quashed the consequential appointment of the said respondent by Ext. P4 order, and directed the Public Service Commission to draw up a fresh list in the manner indicated by the learned Judge and forward the same to the 1st respondent (the Government) within three months from the date of the order. The 1st respondent was directed to make appointments from the list thus forwarded. Writ Appeal No. 373 of 1974 is by the 3rd respondent in the O.P., and Writ Appeal No. 431 of 1974 is by the Public Service Commission.
(2.) The question raised is in regard to the modus operandi of making the selection on the basis of R.14 and 17 of the Kerala State and Subordinate Service Rules, and in conformity with Art.14 and 16 of the Constitution. These rules enjoin, what is commonly referred to as the principle of communal reservation or rotation and sub rotation. The material portion of R.14 of the Kerala State and Subordinate Service Rules reads thus:
"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.
x x x
(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 for Other Backward Classes as the cases may be, shall not in any way be affected.
(c) Appointments under this rule shall be made in the order of rotation specified below in every cycle of 20 vacancies.
1. Open competition
2. Other Backward Classes
8. Open competition
4. Scheduled Castes and Scheduled Tribes
5. Open competition
6. Other Backward Classes
7. Open competition
8. Other Backward Classes
9. Open competition
10. Other Backward Classes
11. Open competition
12. Scheduled Castes and Scheduled Tribes
13. Open competition
14. Other Backward Classes
15. Open competition
16. Other Backward Classes
17. Open competition
18. Other Backward Classes
19. Open competition
20. Other Backward Classes."
Rule 17 provides for sub rotation among the 'Other Backward Classes', regulating the turn of the sub classes for the quota reserved for the 'Other Backward Classes'. It is unnecessary to extract the rule.
(3.) On first impression, it strikes us that two different modes of working out or implementing the principle sanctioned by the Rules are reasonable and permissible, where the selections have to alternate between the merit pool and the reserved quota. One way would be to shuffle or screen the candidates belonging to both the categories, merit pool and reserved quota , select the best on the basis of merit by open competition and award him rank No. 1; next, repeat the process with only the candidates belonging to the 'reserved quota' and put down the best among them, as eligible for place No. 2, which has to be filled in on the basis of reservation; next, in a similar fashion; repeat the process, alternating between the merit pool and the reserved quota each time a selection has to be made by open competition or by reservation. The other method is to fill up the odd number of vacancies beginning from Vacancy No. 1 on the basis of merit and open competition, and the even numbers beginning with No. 2, on the basis of reservation. This latter method seems to us to be sanctioned by R.14(a) of the Kerala State and Subordinate Service Rules. It seems also to have the sanction of an order No. 52-15238/50/CB. dated 26 2 1953 promulgated by the Travancore - Cochin Government prior to the passing of the State and Subordinate Service Rules, which the Public Service Commission seems or claims to have followed even after the promulgation of the Rules. Whichever be the method followed, the mandate of R.14(b) is clear and specific to the effect that whatever be the number of seats that a 'backward class' is able to obtain on the basis of merit or open competition, shall not prejudice its claim to the legitimate quota on the basis of reservation. The learned Judge has summed up in Para.3 and 4 as follows:
"3. To me it appears that there is no difficulty to apply R.14 to the rank list. According to the rotation specified in clause.(c) of R.14, the first appointment must go on "Open competition". Rank No. 1 is an Ezhava; and it goes to him. The second place must go to "Other Backward Classes". There is an apportionment of the quota allotted to these classes in R.17. According to that apportionment, that place must go to an Ezhava. There can be no dispute that the candidate for that place must be chosen on the basis of merit from that community. Then that place goes to No. 3 in the rank list, who is an Ezhava having the highest rank after No. 1. Then I come to the third place which is open competition. No. 1 in the rank list has got the first appointment in this quota. So the next appointment in that quota must go to No. 2 in the rank list. Then I come to the fourth place, belonging to a Scheduled Caste or Scheduled Tribe. No. 24 in the rank list is the only Scheduled Caste candidate; and he must get it. Then there is the fifth place, which is Open Competition. Nos.1, 2 and 3 have already got places. So No.4 in the rank list must have it. Then I come to the sixth place, which is an Other Backward Class allotted to the Muslims. The candidate having the highest rank in that community is No. 9 in the rank list; and he must get it. Then I come to the seventh place, which is an Open Competition. Nos. 1,2, 3 and 4 have been already provided for. So it must go to No. 5 in the rank list, who is the petitioner in this case. The next is the eighth place, which is the last place. That is an Other Backward Class allotted to the Latin Catholics S.I.U.C. and Anglo - Indians. The person having the highest rank in this group is No. 6 in the rank list; and it must go to him. Summing up the position, the eight places must go according to the order of rotation provided in R.14 to Nos. 1, 3, 2, 24, 4, 9, 5 and 6 in the rank list.
4. However, the Commission has included No. 8 in the rank list instead of No. 5, and has allotted a fairly high rank to that candidate in the advice list. This result is said to have been achieved by filling up the whole quota of open competition candidates first, and then filling up the remaining quota according to the rotation provided in R.14. There is no warranty for applying such a process. As I read it, R.14 does not admit any doubt or difficulty for application. The appointments must go in the order of rotation given in that rule. The only way and the right way of implementing it is the manner which I have indicated above. The rules have made certain amount of reservation for Backward Communities and Scheduled Castes and Tribes and has also prescribed the rotation in which appointments to existing vacancies have to be made. It is not then permissible to resort to any subterfuge, and enlarge the quota allotted to any particular community by such methods.;