Full Judgment Text
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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
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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.
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3. The 1 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
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an advise memo for his appointment for the post of Higher
Secondary School Teacher-English (Junior) in a vacancy
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occurred due to non-joining of 2 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.
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4. Aggrieved by the said judgment, 1 respondent herein
filed Writ Appeal No. 871 of 2011 before the Division Bench of
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the Kerala High Court. It was contended that 1 respondent
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had secured 3 rank in the supplementary list and he was
entitled to get appointment in the reservation quota of Ezhava
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community. Further, it was also pointed out that 2
respondent belonging to the same community, though advised,
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did not join duty since she had got another employment. The
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claim of 1 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
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2 respondent did not join, the 1 respondent should have
been issued the advise memo by the Commission. Holding so,
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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
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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
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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.
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6. Shri Jogy Scaria, learned counsel appearing for the 1
respondent, on the other hand, contended that the Division
Bench has correctly granted the relief and directed the
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Commission to appoint 1 respondent in a non-joining vacancy.
Learned counsel pointed out that the vacancy arose while the
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main list was in force due to non-joining of the 2 respondent
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and hence the 1 respondent has a claim over that vacancy.
Learned counsel also pointed out that the Division Bench has
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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
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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.
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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.
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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.
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1 respondent was placed in the supplementary list as rank no.
3 under the category of Ezhava falling under Other Backward
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Classes (OBC). 2 respondent was placed above 1 respondent
as rank no.2 in the supplementary list. The rank list prepared
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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
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has no life of its own. The writ petition was preferred by the 1
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.
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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
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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
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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
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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.
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...................................J.
(K. S. Radhakrishnan)
...................................J.
(Dipak Misra)
New Delhi,
January 8, 2013
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