The mode and manner of selection and method of appointment to the post of Sub-Engineer (Civil) in the Kerala State Electricity Board as also the terms and conditions thereof indisputably are governed by Kerala State and Subordinate Service Rules, 1958 (’the Rules’). The Rules also provide for reservation being governed by Rules 14 to 17 thereof. Rule 14(c) provides for the manner in which the order of rotation shall be worked out. In terms of Rule 15, it is provided that if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, the said community or group shall be passed over and the post shall be filled up by a suitable candidate from the community or group of communities immediately next to the passed over community or group in the said Annexure, as the case may be, in the order of rotation. In the Annexure appended to Rule 15 for direct recruitment to the posts other than those included in the Kerala Last Grade Service, a 100 point roster is given. Once, however, the benefit of the turn in terms of Rule 15 is forfeited to a particular community or a group of community having been passed over, the same shall be restored to it at the earliest possible opportunity, if a suitable candidate from the particular community or group is available for selection upon making adjustment therefor against the claims of that community or group, as the case may be. The proviso appended to the said Rule in no uncertain terms restricts reservation including carrying forward vacancy to a category of posts in the year of recruitment in question not exceeding 50% of the total number of vacancies.
By reason of a note appended to Rule 15, it is provided that for purposes of application of the proviso to Rule 15 limiting the number of vacancies to be reserved in a year as 50 per cent in respect of a category of post, the period of one year shall commence on and from the day on which the ranked list of candidates prepared by the Commission in respect of that post comes into force. The matter relating to reservation is governed thereunder and the Public Service Commission was under a statutory duty to follow the principles laid down in the said rules.
The Public Service Commission of the State of Kerala framed the Kerala Public Service Commission Rules of Procedure which is nonstatutory in nature. Rule 2(g) of the said Rules defined "Ranked List" as:
"Ranked List" means list of candidates arranged in the order of merit, either on the basis of the interview or examination or by both;
Rule 4 of the said Rules which is material for the purpose of determining the issues raised in this matter reads thus:
"Where a written examination and/ or a practical test is conducted by the Commission for recruitment to a service or post, the Commission shall -
(i) announce: (a) the qualifications required of the candidates for the examination, (b) the conditions of admission to the examination including the fees, (c) the subjects, scheme or syllabus of the examination, and (d) the number of vacancies to be filled from among the candidates for the examination;
Provided that where the exact number of vacancies to be filled is not ascertainable, the Commission may either announce the approximate number of vacancies to be filled or state that the number of vacancies has not been estimated.
(ii) invite applications and consider all the applications so received, (iii) make all arrangements for the conduct of the examination for the candidates whose applications are found to be in order, and (iv) prepare a list in the order of merit of such number of candidates as the Commission may determine from time to time;
Provided that the Commission may also prepare separate ranked lists in the order of merit of candidates coming under separate groups in accordance with the qualifications or other conditions as stipulated in the notification;
Provided further that for the purpose of satisfying the rules of reservation of appointment to Scheduled Castes, Scheduled Tribes and other Backward Classes also the Commission may prepare such supplementary lists as found necessary from time to time in the order of merit of the candidates belonging to such classes."
Relevant part of Rules 12 and 13 of the said Rules read as under:
"12. All the candidates interviewed and who obtained not less than the minimum marks fixed by the commission shall be included in the ranked list prepared in the order of merit;
Provided where the candidates have been called for interview for the purpose of satisfying the rules of reservation alone such candidates who have got not less than the prescribed minimum marks in the interview shall be included in the supplementary list or lists arranged in the order of merit among the candidates belonging to each class;
Provided further that the Commission may also prepare list or lists of such categories of candidates who have got not less than the prescribed minimum marks in the interview and who are entitled to priority according to the terms of the notification inviting applications;
Provided further that the Commission may also prepare lists of overaged candidates who have secured not less than the prescribed minimum marks in the interview and who are eligible to be considered for appointment in the absence of candidates who conform to the rules regarding age limits...
13. The ranked lists published by the Commission shall remain in force for a period one year from the date on which it was brought into force provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years whichever is earlier...;"
The Kerala Public Service Commission under a misconception prepared a supplementary list only in relation to the reserved category of candidates and did not prepare such list in terms of the open category candidates. A bare perusal of the two provisos appended to both Rules 4 and 12 clearly show that two separate ranked lists were required to be prepared, one for the open category candidates and another for the reserved category candidates. The purport and object of preparing such separate ranked lists is absolutely clear and unambiguous. Such lists should be in the nature of waiting list so that the vacancies arising during the period when such list is prepared till the publication of a new list as envisaged in Rule 13 can be filled up. In other words, in terms of the aforementioned rules what was required to prepare was a main list - a separate ranked list for open category candidates as also a supplementary list for the purpose of satisfying the rules of reservation of appointment of reserved category candidates. NonStatutory Rules framed by the Commission must be read in such a manner which would fulfill the reservation criteria contained in the Statutory Rules.
Preparation of only one supplementary list for filling up the vacancies by the some candidates not joining their posts, only from the reserved category of candidates, therefore, would be illegal, as thereby the relevant provision relating to the percentage of reservation contained in Rule 15 of the statutory rule would stand infringed.
Both the lists viz for the open category of candidates as also the reserved category of candidates were necessary,
thus, required to be prepared in terms of the said Rules for maintaining the ratio of 50-50.
The respondents herein filed a writ petition before the High Court for giving effect to the said purported supplementary list wherein the following prayers were made:
"(i) to issue a writ of mandamus or any other appropriate writ order or direction commanding the 1st respondent to advice candidates against the non-joining duty vacancies of Muslim candidates advised on 20.8.1994 from Ext. P1 list and also to such vacancies of candidates, advised on 21.12.1994.
(ii) to direct the 2nd respondent to report nonjoining duty among 89 candidates advised from Ext. P1 list on 21.12.1994."
The High Court by reason of the impugned judgment granted the said prayer inter alia holding that the rule of reservation is not affected as the vacancies created by reason of non-joining of the posts belonging to open category candidates may be filled up in the later year. The hardship created to one category of candidates in terms of Rule 13 had not been considered by the High Court inasmuch as such vacancies may not be filled up for a period of three years. Furthermore, by reason thereof, the reservation policy of the State as contained in the Kerala State and Subordinate Service Rules, 1958 has been violated. This Court in a large number of decisions has clearly held that for the purpose of making the reservation policy a reasonable one the extent thereof should not exceed 50% save in exceptional situation. The statutory rules also contain such a prohibition. Article 16(4B)of the Constitution of India is also a pointer to the said fact in terms whereof an enabling provision has been created whereby and whereunder the State may consider to fill up the unfilled vacancies of a year which are reserved for being filled up in that year in accordance with the provisions made under Clause (4) or (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of that year.
The judgment of the High Court, if implemented, would thus be violative of Article 16(4B) of the Constitution as also the statutory rules.
The High Court, therefore, committed an illegality in passing the impugned judgment insofar as it failed to take into consideration that in the event the same is given effect to, more than 50% of the vacancies in a particular year will be filled up from amongst the reserved category candidates. We, however, having regard to the facts and circumstances of the case do not intend to set aside the appointments made in favour of the private respondents herein only on the ground that the judgment of the High Court has been acted upon.
For the reasons aforementioned, I agree that the appeal shall be allowed to the extent as directed by my learned Brother Dr. Lakshmanan, J. in his judgment.