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Thursday, January 10, 2013

service matter -The 1st Respondent herein, who figured as rank no. 3 in the Supplementary list, filed Writ Petition No. 34851 of 2010 seeking a Writ of Mandamus, directing the Commission to issue an advise memo for his appointment for the post of Higher Secondary School Teacher-English (Junior) in a vacancy occurred due to non-joining of 2nd respondent herein.= We are of the view that the Division Bench has completely overlooked the ratio laid down by this Court in N.S.S. case (supra). Paragraph 19 of the judgment has clearly interpreted Rule 2(g) of the Kerala Public Commission Rules and Procedures, which is extracted below for easy reference: 19. The above definition shows that there is only one ranked list. Therefore, the supplementary list prepared by KPSC to satisfy the rules of reservation has, in fact, no statutory backing. For that reason when the main list is exhausted or expired, supplementary list cannot be allowed to operate. If the supplementary list alone is allowed to operate it would amount to giving greater sanctity to it and long life than the main list prepared in accordance with the Rules. Secondly, after the expiry or exhaustion of the main list if the supplementary list is operated it would violate the first proviso to Rule 15(c) of the General Rules. The reason is that the NJD vacancies in respect of OBC candidates cannot be filled up after the expiry or exhaustion of the main list and only reserved candidates can be advised from the supplementary list which would violate 50% rule as no OC category candidates could be advised. We are, therefore, of the view that the contention of the learned senior counsel appearing for the appellant that the Division Bench of the High Court has committed an error in directing the Commission to operate the supplementary list is sustainable. Appeal is, therefore, allowed and the judgment of the Division Bench of the High Court is set aside.


                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO. 129   OF 2013
                [Arising out of SLP (Civil) No. 1107 of 2012]
The Secretary, Kerala Public Service Commission  .. Appellant
                                   Versus
Sheeja P.R. and Another                                 .. Respondents

                               J U D G M E N T
K. S. Radhakrishnan, J.

1.    Leave granted.

2.    The Kerala Public Service Commission (in short “the  Commission”)  has
approached this Court aggrieved by the  directions  given  by  the  Division
Bench of the Kerala High Court, to operate the supplementary list after  the
main list got exhausted.

3.    The  1st  Respondent  herein,  who  figured  as  rank  no.  3  in  the
Supplementary list, filed Writ Petition No. 34851 of 2010 seeking a Writ  of
Mandamus,  directing  the  Commission  to  issue  an  advise  memo  for  his
appointment  for  the  post  of  Higher  Secondary  School   Teacher-English
(Junior) in a vacancy occurred due to non-joining of 2nd respondent  herein.
 Learned Single Judge of the High  Court  dismissed  the  writ  petition  on
9.12.2010 holding that once the main list got exhausted,  the  supplementary
list could not be kept alive.  Review Petition No. 89 of 2011 filed  against
the judgment was also dismissed.

4.    Aggrieved by the said  judgment,  1st  respondent  herein  filed  Writ
Appeal No. 871 of 2011 before the Division Bench of the Kerala  High  Court.
It  was  contended  that  1st  respondent  had  secured  3rd  rank  in   the
supplementary  list  and  he  was  entitled  to  get  appointment   in   the
reservation quota of Ezhava community.
Further, it  was  also  pointed  out
that 2nd respondent belonging to the same  community,  though  advised,  did
not join duty since she had got  another  employment.    The  claim  of  1st
respondent was that, since he was the next candidate, was  eligible  to  get
advise memo from the Commission so that he could joint in  that  non-joining
vacancy.  The Division Bench of the High Court took the view that since  2nd
respondent did not join, the 1st respondent  should  have  been  issued  the
advise memo by the Commission.  Holding so, the writ appeal was allowed  and
the order passed in Review Petition No. 89 of 2011 and the  judgment  passed
in Writ Petition No. 34581 of 2010, were set aside.      
Aggrieved  by  the
said judgment, the Commission has come up with this appeal.

5.    Shri V. Giri, learned senior counsel  appearing  for  the  Commission,
submitted that the issue raised in this case  is  squarely  covered  by  the
judgment of this Court in Nair Service Society v. District  Officer,  Kerala
Public Service Commission (2003) 12 SCC 10  (N.S.S.  case).  
Referring  to
paragraphs 25 and 36 of that  judgment,  learned  senior  counsel  submitted
that
once the main list is exhausted, the supplementary  list  has  no  life
and that the Division Bench has not properly  appreciated  paragraph  23  of
N.S.S. case. Learned senior counsel also submitted that the  Division  Bench
has not properly appreciated the scope,  meaning  and  significance  of  the
supplementary list which has been prepared after complying  with  the  Rules
of Reservation.  
Learned senior counsel  pointed  out  that  if  sufficient
number of candidates belonging to the reserved groups,  including  scheduled
castes and scheduled tribes, are not there in the rank list, it is  possible
that the communities would not be adequately represented in the services  as
envisaged in the rules.  
The Commission has, therefore, evolved a  procedure
of preparing supplementary lists for the reserved  groups  by  lowering  the
marks at the elimination stage of selection, which has been incorporated  in
Part I of the Rules of Procedure  of  the  Commission,  published  with  the
concurrence of the Government.

6.    Shri Jogy Scaria, learned counsel appearing for  the  1st  respondent,
on the other hand, contended that the Division Bench has  correctly  granted
the relief and directed the Commission to appoint 1st respondent in  a  non-
joining vacancy.
 Learned counsel pointed out that the vacancy  arose  while
the main list was in force due to non-joining  of  the  2nd  respondent  and
hence the 1st respondent has a claim over  that  vacancy.   Learned  counsel
also  pointed  out  that  the  Division  Bench  has  correctly  applied  the
principle laid down by this Court in N.S.S. case (supra).

7.    We are of the view that the Division Bench has  completely  overlooked
the ratio laid down by this Court in N.S.S. case (supra).      Paragraph  19
of the judgment has clearly interpreted  Rule  2(g)  of  the  Kerala  Public
Commission  Rules  and  Procedures,  which  is  extracted  below  for   easy
reference:
           19. The above definition shows that there  is  only  one  ranked list. 
Therefore, the supplementary list prepared by  KPSC  to  satisfy the rules of reservation has, in fact, no statutory backing. For  that  reason when the main list is exhausted or expired, supplementary  list  cannot be allowed to operate.  
If  the  supplementary  list  alone  is  allowed to operate it would amount to giving greater  sanctity  to  it  and long life than the main  list  prepared  in  accordance  with  the Rules. 
Secondly, after the expiry or exhaustion of the  main  list  if the supplementary list is operated it would violate the first  proviso to Rule 15(c) of the  General  Rules.
The  reason  is  that  the  NJD
      vacancies in respect of OBC candidates cannot be filled up  after  the
      expiry or exhaustion of the main list and only reserved candidates can
      be advised from the supplementary list which would violate 50% rule as
      no OC category candidates could be advised. 
As rightly contended by Mr
      Venugopal, it would adversely affect the OC  category  candidates  and
      violate the statutory rule. The reason given  by  the  Division  Bench
      that if any NJD vacancy arises in the OC category, the same  could  be
      filled up in the next batch of appointment thereby, the rights  of  OC
      candidates can very well be protected without  any  violation  of  the
      proviso to Rule 15 of KS&SSR is  not  legally  acceptable.
The  above
      reasoning, in our opinion, is  equally  applicable  to  NJD  vacancies
      which arise in the reserved categories as well. By advising candidates
      from the supplementary list, without any opportunity of balancing  the
      advice with an open competition candidate the consequence  would  have
      been a violation of 50:50 rule with a tilt in favour of  the  reserved
      candidates lasting their quota above 50%. The net result is that there
      will be excess reservation over 50% in the year.



8.    The reason for preparation of supplementary list was  also  considered
by this Court in the above mentioned judgment in paragraphs 23 and 24.   The
same are also extracted below for easy reference:

           23. With a view to secure adequate  representation  of  reserved
      communities in the selection and thereby to effectuate the  policy  of
      reservation,  KPSC  prepares  what  it  calls  supplementary  list  of
      candidates for the different reserved communities who will be entitled
      to appointment, comprising of a number equal to  half  the  number  of
      turns as per the quota to each reservation group. Thus if Muslims were
      entitled to ten turns in the list, the supplementary list  of  Muslims
      will comprise  of  at  least  five  Muslims.  The  advantage  of  this
      procedure was that no reservation turn will be  passed  over  to  open
      competition and reservation groups will get the representation due  to
      them, at the same time maintaining the balance of 50:50  between  open
      competition and reservation candidates.


           24. The supplementary list was only in  respect  of  reservation
      categories. There was no supplementary list prepared  in  relation  to
      open competition merit candidates for the reason that where  the  last
      of the candidates has been advised from the  rank  list  in  the  open
      competition,  there  was  no  further  scope  for   drawing   on   the
      supplementary list or advising from  that  list,  as  all  the  advice
      hitherto was  on  the  basis  of  one  open  competition  followed  by
      reservation, thereby  keeping  the  balance  of  50:50.  If  any  more
      candidates are advised from the  supplementary  list,  the  number  of
      reservation candidates will go up and the 50:50 rule will be violated.



9.     This  Court  has  specifically  held  that  once  the  main  list  is
exhausted, the supplementary list has no survival of its own.  In the  light
of the principles laid down by this Court in N.S.S. case  (supra),  we  have
to  examine  the  various  issues  raised  before  us.   The  Commission  on
27.4.2009 finalized the rank list for the post of  Higher  Secondary  School
Teachers-English (Junior), Kerala  Higher  Secondary  Education.   The  main
list consisted of 145 candidates, including persons from open  merit,  OBCs,
Muslims, Sports  and  other  reservation  categories.   1st  respondent  was
placed in the supplementary list as rank no. 3 under the category of  Ezhava
falling under Other Backward  Classes  (OBC).   2nd  respondent  was  placed
above 1st respondent as rank no.2 in the supplementary list.  The rank  list
prepared on 27.4.2009 had expired on 28.9.2010, on the advice  of  the  last
candidate  from  the  main  list.   The  intimation  from   the   Appointing
Authority/the Director, Kerala Higher  Secondary  Education  regarding  non-
joining of the vacancy was received by the  Commission  only  on  12.9.2011,
i.e. one year after the main list got exhausted.  Once  the  main  list  got
exhausted, going by the judgment in N.S.S. case (supra),  the  supplementary
list has no life of its own.  The writ petition was  preferred  by  the  1st
respondent only on 16.11.2010 after the expiry of one year from the date  on
which the main rank list got exhausted.

10.   We are of the view that the situation would have been  different,  had
the NJD vacancies were reported before the main list got exhausted  i.e.  on
28.9.2010.   The  Commission  could  advise  candidates  only  on  receiving
intimation with regard to the non-joining duty  vacancies  before  the  main
list got exhausted.  So far as this  case  is  concerned,  NJD  vacancy  was
reported and received by the Commission only on  12.9.2011,  by  that  time,
the main list got exhausted.   In the absence of the main list, there is  no
independent existence of the supplementary list.

11.   Rule 13 of the K.P.S.C. Rules of procedure says that the ranked  lists
published by the Commission shall remain in force for a period of  one  year
from the date on which it was brought into force.  The list can also  remain
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.
Rule 13 has five other provisos.   It  is  unnecessary  to  refer  to  those
provisos as far as the present case is  concerned.   We  are  in  this  case
mainly concerned with the question whether the main list  got  exhausted  or
not.  Once the main list becomes empty or drains out on the  advice  of  all
the candidates, it loses its  life;  consequently  supplementary  list  also
automatically vanishes.  It was pointed out that the Commission has got  the
power to extend the life of the main list upto three years  but  that  power
has not been exercised in the present case.  Further, we  may  also  clarify
that there  is  no  provision  in  the  Rules  of  procedure  to  prepare  a
supplementary list for the general category candidates.  Supplementary  list
is prepared only in relation to the reserved category candidates  so  as  to
see that the reservation principle is properly and effectively  implemented.
We, therefore, do not agree with the view expressed by  Justice  S.B.  Sinha
in the concurring judgment in N.S.S. case, that a supplementary list has  to
be prepared for the open category candidates also  as  per  the  proviso  to
Rules 4 and 12.

12.   The point of distinction between the  candidates  of  the  reservation
group  included  in  the  main  list  and   their   counter-parts   of   the
supplementary list, is that former are eligible to  be  considered  both  on
merit and against reservation turns depending upon the number  of  vacancies
and their placement in the main list, while the latter are intended to  fill
in the groups in the reserved turns caused  by  the  paucity  of  candidates
entitled to reservation in  the  main  list.    The  supplementary  list  is
always subject  to  the  main  list.   Therefore,  once  the  main  list  is
exhausted, the supplementary list automatically loses its  significance.   A
supplementary list has no separate existence, dehors the main list.

13.   We are, therefore, of the view that  the  contention  of  the  learned
senior counsel appearing for the appellant that the Division  Bench  of  the
High Court has committed an error in directing  the  Commission  to  operate
the supplementary list is sustainable.  Appeal is,  therefore,  allowed  and
the judgment of the Division Bench of the High Court is set aside.




                                            .................................
                                            ..J.
                                            (K. S. Radhakrishnan)






                                            .................................
                                            ..J.
                                            (Dipak Misra)
New Delhi,
January 8, 2013



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