AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2009 (3) TMI 981
X X X X Extracts X X X X
X X X X Extracts X X X X
....e High Court) are candidates included in the rank list prepared and published by PSC for different posts in various departments. According to them they would have been advised and appointed but for the interpretation placed by the High Court in its decision in WA No. 1697 of 2008. 3. Heard learned counsel for the parties and perused the record. The writ appeal was filed before a division bench of the High Court against the judgment of a learned Single Judge of the High Court in W.P. (C). No. 25171 of 2006-V dated 10.4.2007. 4. The point that arises for decision in this appeal is whether a correct construction has been placed on Rules 14 to 17 of the Kerala State & Subordinate Services Rules, 1958 (in short `the Rules') by the Kerala Public Service Commission (in short the P.S.C.), while selecting candidates for the post of Medical Officer (ISM). 5. The brief facts of the case are that the Kerala Public Commission invited applications for appointment to the post of Medical Officer (Indian System of Medicine) under the Kerala Government, by the notification published in the Kerala Gazette dated 14.10.2003. The rank list was published on 31.12.2005. The writ petitioners were ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1.3.2007 before the High Court. In the said counter affidavit, the details of the rotation were given. It was stated therein that the recruitment to the post of Medical Officer (ISM) ended at Main Rotation VIII 39 OC. For the present selection, the rotation started at MR VIII 40 OBC and ended at MR XI 7 OC while working in the rotation for the 267 fresh vacancies reported. As on 13.2.2007, 287 candidates were advised including 20 NJD vacancies. The details of Muslim candidates advised are also given. Rank No.8, who was a Muslim candidate, was advised under the open competition turn. The last Muslim candidate advised from the main list was rank No.252. From the supplementary list, 14 Muslim candidates were advised. The P.S.C emphatically refuted the contention of the writ petitioners that rank Nos. 28, 50, 82 and 111 should have been advised under the open competition turn. It is asserted that the advices were made strictly in accordance with Rules 14 to 17 of the Rules. 9. The learned Single Judge, who heard the Writ Petition, allowed it, holding that the method adopted by the P.S.C. was not in accordance with the Rules. He held that in view of Rule 14(b) of the Rules, the member....
X X X X Extracts X X X X
X X X X Extracts X X X X
....servation. The division bench held that Rule 14(a) would apply only where vacancies reported are less than 20. The division bench issued the following directions : "The three advices made on 1.2.2006, 17.4.2006 and 17.7.2006 of 161, 30 and 40 vacancies respectively shall be reopened notionally. The turns of the candidates shall be re-arranged, taking the vacancies as three blocks of 161, 30 and 40 respectively and the three advice lists shall be notionally re- arranged, as provided in the third proviso to Rule 14(c). Every alternative vacancy in the three blocks of vacancies shall be firstly allotted to open competition candidates and the remaining vacancies to the communities eligible for reservation, subject to the rule that reservation in a particular year shall not exceed 50%. As a result, if it is found that any of the candidates, eligible for reservation, were though entitled to be advised but not actually advised, they shall be advised for appointment by the P.S.C to the appointing authority. For the purpose of seniority, the advice of the candidates so made will take effect only from 10.4.2007, the date on which the learned Single Judge rendered the dec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....up the post reserved for Scheduled Tribe candidates, it shall go to a Scheduled Caste Candidate and vice versa. (a) The claims of members of Scheduled Castes and the 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 case 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 3. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unity 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 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. (b) If a suitable candidate is not available for selection from the group of communities classified as "Scheduled Castes" in the turn allotted from such group in the Annexure, the said group shall be passed over and the post shall be filled up by a suitab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ans, 3 to Nadars (Hindu Nadars and Nadars included in S.I.U.C), 2 to Scheduled Caste Converts to Christianity, 2 to Viswakarmas, 2 to Dheevaras and 6 to Other Backward Classes put together". xx xx xx xx xx xx xx 13. The question in this case is about the interpretation of rules 14 to 17 of the Rules. 14. A bare perusal of Rule 14 (a) of the Rules shows that a unit for appointment for the purpose of Rule 14 shall be 20, of which 2 are reserved for SC/ST candidates and 8 for OBC candidates, while the remaining 10 shall be on the basis of open merit. The proviso to Rule 14 (a) states that out of 5 posts reserved for SC/ST candidates one post shall go to ST candidates and the remaining to SC candidates, and in the absence of ST candidates it shall go to a SC candidate and vice versa. 15. Rule 14 (b) however, states that if a SC/ST/OBC candidate is so meritorious that even if he is not treated as SC/ST/OBC he would still qualify in the open merit then he would not be treated as a SC/ST/OBC candidate and he will be adjusted against the 10 seats meant for open merit candidates. In other words, he will not take away the seats reserved for SC/ST/OBC candidates. 16. S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion applies in this case. 23. In our opinion the effect of the High Court's decision is to read a proviso into rule 14(a) of the Rules as follows: "provided that where the number of vacancies reported to the Commission for advice exceeds 20, the unit of appointment shall be the number of vacancies reported to the Commission". This is not a legitimate method of interpretation. The High Court could not have re-written Rule 14(a) in this manner based on its conjectures and surmises as to what the legislature intended. It is now well settled by this Court in Dr. Ganga Prasad Verma vs. State of Bihar (1995) Supp 1 SCC 192 (para 5) and Trading Engineers vs. Sales Tax Officer (1978) 1 SCC 636 (para 7) that where the language of the Act or the Rules is clear and explicit, the words of the statute alone represents the intention of the legislature. In fact, the effect of the High Court's reading these words into Rule 14(a) is to increase the total reservation in favour of the reserved categories beyond 50% and to dilute the merit of those chosen to ever lower levels in violation of Rule 15 of the Rules which only embodies the well settled constitutional principle laid down by this ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pen Competition candidates (constituting 50%), OBC candidates (constituting 40%) and SC/ST candidates (constituting the remaining 10% reservation) which can only be reflected in a 100-point roster. 27. In our opinion, the concept of an "integrated cycle" could never be the basis for rendering the "unit of appointment" of 20 in Rule 14(a) otiose in cases where the number of vacancies reported to the Kerala Public Service Commission exceeds 20. By drawing a distinction between cases where reported vacancies are 20 or less and cases where reported vacancies exceed 20, the High Court has attempted to fill a perceived "casus omissus" on the part of the legislature in Rule 14(a) and, in effect, has written a proviso into the rule that the unit of appointment would change where the total number of vacancies reported exceed 20. It is a settled principle of interpretation that Courts should not add or delete words in a statute or rule. 28. Normally vacancies are reported to the Commission on various dates and in different numbers. Even in the present case, the Commission had received requisitions on various dates between February 2003 and January 2007 ranging from 3 vacancies to 44 vacanc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ceived during the relevant period at various stages. The details of the vacancies reported during the present selection and the turn in which rotation started and ended at each stage of working out the rotation were as under: Letter No. & Date No. of vacancies Rotation started/ended Date of advice dt.15/9/04 15 MR VIII 40 OBC dt.30/12/04 15 Do dt. 14/2/05 3 MR X 1 OC 01/02/06 dt.21/6/05 16 dt.05/9/05 20 D3 2885 06 dt. 08/3/05 30 MR X 2E to MR X 31 OC 17/4/06 D3 2885 06 dt. 18/6/06 40 MR X 72 32 SC to MR & 71 OC 17/7/06 D3 18859 03 dt. 28/6/06 17 (10 NJD & 7 fresh) MR X 72 SC to MR X 77 OC 17/7/06 D3 2884 06 03 dt. 07/7/06 1 NJD 14/8/06 D3 12473 06 dt. 08/9/06 7 MR X 78E to MR X 85 OC 28/9/06 D3 12473 06 dt. 12/10/06 7 MR Y 78E to MR X 85 OC 28/9/06 D3 2884 06 dt. 07/11/06 5 NJD 24/11/06 D3 12473 05 dt 16/11/06. 1 NJD 19/12/06 D3 12473 06 dt. 04/12/06 & 21/12/06 15 MR X 92 ST to MR XI 7 OC 11/01/07 D3 2884 06 & 12473 06 dt. 23/01/07 3 NJD 13/02/07  ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rescribes the ranked merit list in the order of merit. The candidates are arranged strictly according to the community or caste or group or according to the cycle of rotation, in reservation. The number of candidates to be included in this rank list is filed with reference to some principles followed by them, which are explained in para 4 of KPSC's writ appeal before the High Court (pp. 102- 103). The candidates are advised for appointment as and when vacancies are reported, but following the rules of reservation and rotation prescribed in Rules 14 to 17". The Commission has advised appointments based on a unit of 20 for the last more than 30 years. The principle of reservation, rotation and sub-rotation are all applied based on this unit of 20. 35. Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field. Reservation provisions are enabling provisions, and different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt for them. We are of the view that for canvassing for the above position, the writ petitioners need not challenge any of the Rules. A proper construction of the Rules which will advance the object of them will mandate the P.S.C to make the advices as stated above. Any other application of the Rules will amount to ultra vires and unauthorized action." 40. With respect we are unable to agree with interpretation of Rules 14 to 17 given by the High Court in the impugned judgment. 41. It may be mentioned that there is no challenge to the validity of these Rules. Hence we have to read the Rules as they are. In our opinion, the so- called purposive interpretation sought to be placed on the Rules by the High Court was misconceived and is, therefore, not acceptable. 42. The High Court in its observation quoted above has sought to find out the intention of Rules 14 to 17. In our opinion the question of finding the intention arises only when a statute is not clear. If the statute is clear as it is in this case, it has to be read as it is, and the literal rule of interpretation is to be applied. In our opinion intention seeking is ordinarily to be done only when the statute is not clear. ....