TaxTMI 
TaxTMI 
2009 (3) TMI 981
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....rth of the appeals (not parties before the 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 publis....
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....n turn. 8. The P.S.C filed an additional counter affidavit dated 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 t....
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....s than what was due to them at the expense of communities eligible for reservation. 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 ....
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....g four shall go to Scheduled Caste candidates and in the absence of a candidate to fill 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. Othe....
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....in any other provisions of these rules or in the special rules if a suitable candidate is not available for selection from any particular community 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 "Sch....
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.... Kerala Last Grade Service. Out of every 40 appointments, 11 shall be given to Ezhavas, Thiyyas and Billavas, 10 to Muslims, 4 to Latin Catholics and Anglo Indians, 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....
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....ubmitted that this will cause hardship to some SC/ST/OBC candidates. In our opinion hardship is not a relevant consideration when the meaning of the Rule is plain and clear. The literal rule of interpretation 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 res....
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....% reservation in favour of OBC and the requirement in the proviso to Rule 14 (a) that one out of every five posts reserved for SC/ST shall go to ST and the remaining to SC, require an integrated cycle of Open 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 ....
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....High Court erred in proceeding on the basis that a large number of vacancies totaling to 267 were reported to the Commission together. As per the affidavits filed by the Commission before the High Court, the requisitions were received 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 ....
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....bsp; 33. This Court in University of Cochin vs. Dr. N. Raman Nair (1975) 3 SCC 628 has observed that Rule 14(c) lays down a scheme of rotation for every block of 20 vacancies and this rule must be applied in the order in which the vacancies occur. 34. This Court in Nair Service Society vs. District Officer, Kerala Public Service Commission (2003) 12 SCC 10 (para 22) had the occasion to examine the Rules, the ranked merit list and the supplementary reserved list prepared by the Commission, and the principles followed by the Commission in making the appointments. This Court observed as follows: "....Based on the procedure so prescribed, KPSC prescribes 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 ....
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....ntemplates a situation of reporting of vacancies numbering less than 20. There are hundreds of posts where the number of vacancies reported will normally be below 20 at a particular point of time. Vacancies are reported in large numbers only in the case of L.D.Clerks, Police Constables, Medical Officers etc. When vacancies numbering more than 20 are reported and if reservation is applied as stated above by allotting every alternative vacancy firstly to open competition candidates and the remaining vacancies to candidates eligible for reservation, the same will effectuate the purpose of the rules of reservation. The members of Other Backward Classes will get 40% of the vacancies meant 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 mention....
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....50 as one unit, which is against the express mandate of Rule 14(a). Thus the High Court has really amended Rule 14(a) and (c) of the Rules, which was not in its jurisdiction. It is only the legislature which can amend the law, and not the Court. 47. In our opinion the correct interpretation of Rule 14 to 17 is that the Public Service Commission should adopt each batch of 20 candidates as a separate unit for the purpose of reservation and not take the entire select list as one unit. 48. It is true that reserved category candidates can compete for the non- reserved post as provided for in Rule 14 (b), which only provides what has already been laid down by the Constitution Bench of this Court in R.K. Sabharwal and others vs. State of Punjab and others (1995) 2 SCC 745. Rule 14(b), however, will apply only to units of 20 candidates, and not for the total vacancies. 49. For the reasons given above the appeal is allowed, the impugned judgment of the Division Bench of the Kerala High Court as well as of the learned Single Judge, are set aside and the Writ Petitions are dismissed. There shall be no order as to costs. 50. Leave granted. The appellant was one of the candidates in....