High Court of KeralaDivision BenchOriginal Petition Allowed, with orders set asid...

Dr. Archana M., Manju Metilda, and Asha V. v. State of Kerala, Kerala Public Service Commission, Director of Homoeopathy, and Others

Case / Petition Number:OP(KAT) No.384 of 2018

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • V. Chitambaresh, J.
  • Ashok Menon, J.
Judgment Date
2019-06-28
Court Decision / Holding
The Petitioners’ case succeeds. The Kerala Administrative Tribunal’s orders directing compensation of shortfalls from later ranked lists are annulled. The court holds that under amended KS&SSR Rule 15(a) and its Note, uncompensated turns cannot be compensated after 2.2.2006. The court directs that vacancies reported before expiry of the current ranked list must be filled strictly adhering to the roster-based reservation, in light of the amended provisions. The order to advise three candidates from Hindu Nadar community out of turn—based on the 3.8.2015 list—has been set aside. The original petition is allowed; no costs. The decision effectively requires recruitment to conform to the amended rules and roster while cancelling the KAT and PSC’s out-of-turn advisories within the challenged orders.
Final Disposition
Original Petition Allowed, with orders set aside to the extent they conflict with amended KS&SSR rules; KAT/PSC directions annulled; vacancies to be filled per amended rules and roster.

Parties to the Case

Appellants / Petitioners

  • Dr. Archana M
  • Dr. Manju Metilda
  • Dr. Asha V

Respondents

  • Dr. Aswathy R.S Karthika
  • Dr. Shyna S.S
  • Dr. Sree Kala L
  • Dr. Arun R, Usha
  • State of Kerala
  • Kerala Public Service Commission
  • Director of Homoeopathy
  • Addl. R8. Anu V.C.

Legal Representation & Advocates

Counsels for Petitioners

  • • R. T. Pradeep
  • • K. C. Harish
  • • M. Bindudas

Counsels for Respondents

  • • S. Vishnu (for R1–R3)
  • • Antony Mukkath (for R5 & R7)
  • • P. C. Sasidharan (SC, KPSC)
  • • G. Sudheer (for R8)
  • • V. Suresh (for R8)

Case Synopsis & Summary

This matter concerns a challenge to orders of the Kerala Administrative Tribunal (KAT) and actions by the Kerala Public Service Commission (KPSC) in the context of reservation and compensation for unfilled vacancies under the Kerala State and Subordinate Services Rules, 1958 (KS&SSR). The petitioners (three doctors)-turned-review petitioners argue that Rule 15(a) of KS&SSR, as amended with effect from 8 March 2006 and its Note (cut-off date 2 February 2006 for compensating uncompensated turns), governs the process of filling vacancies when suitable candidates are not available within a community. They contend that earlier directives which directed compensation of shortfalls from later ranked lists (e.g., 27 July 2009 and 3 August 2015) contravene the amended rule and its embargo, and that misapplication by KAT and PSC cannot be countenanced. The respondents, including the State, KPSC, and the Director of Homoeopathy (with other educational and administrative bodies), maintain that vacancies must be filled per the roster and amended provisions; they justify out-of-turn advisories as permissible or necessary in the context of roster changes and delays in fixing roster points. The judgment ultimately acknowledges the Mohanan principle but distinguishes it due to statutory amendments, holding that compensation after 2.2.2006 is impermissible and annulling the KAT/PSC directives. The court directs adherence to amended KS&SSR provisions for filling vacancies and dismisses or disallows the challenged orders accordingly.

Provisions of Law Cited

Kerala State and Subordinate Services Rules, 1958 (KS&SSR), Rule 15(a)KS&SSR Rule 14(c)KS&SSR Rule 17(2)Note to Rule 15(a) (cut-off for compensating vacancies 2.2.2006)Amendment to KS&SSR with effect from 8.3.2006Amendment to KS&SSR with effect from 21.11.2009

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that Rule 15(a) of KS&SSR, as amended on 8.3.2006, with the Note prescribing a 2.2.2006 cutoff for compensating ‘uncompensated turns’ and the integrated cycle described by Rules 14 and 17, requires vacancies to be filled within the community and, if needed, carried over via direct recruitment from eligible candidates of that community before considering other backward classes. They argue that compensation of shortfalls after the expiry of the roster (including 27.7.2009 and 3.8.2015 lists) contravenes the amended rules, and that KAT’s directions to compensate from later lists were unsustainable. They seek dismissal of orders mandating out-of-turn appointments, arguing that roster-based reservations and the amended rule should govern recruitment to ensure compliance with statutory embargoes and rosters.

Contentions of Respondents

The respondents argue that vacancies should be filled in accordance with the roster and that the Government and PSC acted within the scope of the law when filling shortfalls. They contend that compensation from later lists may be necessary due to delays in fixing roster points and the administrative need to maintain a viable roster. They maintain that the directorate’s actions, including the advisories against out-of-turn appointments, were consistent with the amended KS&SSR and the evolving roster system, and that KAT’s judgments should be read in light of those amendments and roster constraints.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Mohanan v. Director of Homoeopathy2006(3) KLT 641(FB)DistinguishedThe judgment acknowledges the Mohanan decision but distinguishes it due to the amended KS&SSR provisions (Rule 15(a) and its Note) that impose a cutoff for compensating vacancies after 2.2.2006, rendering Mohanan inapplicable to the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR.JUSTICE ASHOK MENON** **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** **OP(KAT).No.384 of 2018** **AGAINST THE ORDER DATED 15-10-2018 IN R.A.(EKM)NO. 7/2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **AGAINST THE ORDER DATED 15-11-2017 IN O.A.(EKM)NO.82/2016 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/REVIEW PETITIONERS:** **1 DR.ARCHANA.M AGED 34 YEARS D/O.GEETHAMANI, KAILAS KARUVELIL HOUSE, EROOR SOUTH P.O., THRIPUNITHURA, ERNAKULAM, PIN 682 306, MOBILE NO.9446611685.** **2 DR.MANJU METILDA AGED 33 YEARS D/O. MARYKUTTY, KUDAKUTHUMKARA, AROOR P.O, ALAPPUZHA -688534, MOBILE NO.9497367712.** **3 DR.ASHA V, AGED 38 YEARS D/O. VIJAYAMMAL, VAISAKH, DISTRICT COURT WARD, THATHAMPALLY P.O, ALAPPUZHA-688013, MOBILE NO.9496230779.** **BY ADVS. SRI.R.T.PRADEEP SRI.K.C.HARISH SMT.M.BINDUDAS** ## **RESPONDENTS/RESPONDENTS:** **1 DR.ASWATHY R.S KARTHIKA, MARKET ROAD, KANJIRAMKULAM P.O., THIRUVANANTHAPURAM, KERALA-695 524.** OP(KAT) No.384 of 2018 2 - **2 DR.SHYNA S.S, NADI, 64/601,EDAGRAMOM, KARUMOM POST, KARAMANA, THIRUVANANTHAPURAM,KERALA-695 002.** - **3 DR.SREEKALA L, V.N.R.A-B4-224,NALLIYOORKONAM LANE, VALIYAVILA, VATTIYOORKAVU P.O, THIRUVANANTHAPURAM, KERALA-695013.** - **4 DR.ARUN R, USHUS, CHAMPAYIL, NEYYATTINKARA P.O, THIRUVANANTHAPURAM,KERALA-695121.** - **5 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001.** - **6 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM,THIRUVANANTHAPURAM,KERALA-695004.** - **7 THE DIRECTOR OF HOMOEOPATHY, THE DIRECTORATE OF HOMOEOPATHY, EAST FORT, THIRUVANANTHAPURAM-695023.** - **8 ADDL.R8.ANU V.C., V.C.A. BHAVAN, THETTIVILA KALLIYOOR, THIRUVANANTHAPURAM-695 042.** - **(ADDL. 8TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 27.6.2019 IN I.A.NO.1/2018)** **R1 TO R3 BY ADV.SRI.S.VISHNU R5 & R7 BY SRI.ANTONY MUKKATH, GOVERNMENT PLEADER R6 BY SRI.P.C.SASIDHARAN, SC, KPSC R8 BY ADV.SRI.G.SUDHEER ADV.SRI.V.SURESH** **THIS OP(KAT) HAVING BEEN FINALLY HEARD ON 27.06.2019, THE COURT ON 28.06.2019 DELIVERED THE FOLLOWING:** OP(KAT) No.384 of 2018 3 ## “CR” ## Judgment ## Chitambaresh, J. - 1.The Kerala State and Subordinate Services Rules, 1958 ('KS&SSR' for short) inter alia provides for compensation of turn of vacancy for a particular community if a suitable candidate is not available for selection. Rule 15(a) of KS&SSR germane for the case is as follows: “ 15. (a) The integrated cycle combining the rotation in clause (c) of rule 14 and the sub-rotation in sub-rule (2) of rule 17 shall be as specified in the Annexure to this Part. Notwithstanding anything contained 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 OP(KAT) No.384 of 2018 4 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. Note:- All pending uncompensated turns of vacancies such as temporarily passed over, no candidate - nd available and non joining duty as on the 2 February, 2006, shall be compensated.” (emphasis supplied) Rule 15(a) of KS&SSR has been amended as above with effect from 8.3.2006 and the Note thereto prescribes the cut off date for compensating turn of vacancies such as 'no candidate available' as 2.2.2006. 2.The 38[th] turn would go to 'Nadars included in SIUC' and the 60[th] OP(KAT) No.384 of 2018 5 turn to 'Hindu Nadars' as per the amendment made to KS&SSR with effect from 21.11.2009 while providing reservation in public appointments. The same was however not adhered to while operating the ranked list dated 27.7.2009 for selection to the post of Medical Officer in the Homoeopathy Department. The ranked list expired on 3.10.2013 and the succeeding ranked list published on 3.8.2015 by the Kerala Public Service Commission ('PSC' for short) has also expired. The Kerala Administrative Tribunal ('KAT' for short) has by the original order dated 15.11.2017 directed the PSC to make up the shortfall in reservation in advices from the succeeding ranked list. The application for review put in by the petitioners who figure in the succeeding list was rejected by order dated 15.10.2018 of the KAT and both the orders are under challenge. The PSC has in the meanwhile advised three candidates from Hindu Nadar Community 'on out of turn basis' from the succeeding ranked list in compliance with the impugned orders. - 3.We heard Mr R.T.Pradeep, Advocate for the petitioners, Mr Vishnu S. Chempazhanthiyil, Advocate for respondents 1 to 3, Mr OP(KAT) No.384 of 2018 **==> picture [7 x 9] intentionally omitted <==** P.C.Sasidharan, Standing Counsel for the PSC, Mr V.Suresh, Advocate for additional respondent No.8 as well as Mr Antony Mukkath, Government Pleader. - 4.The PSC could have kept the vacancy unfilled if a suitable candidate from the community of 'Hindu Nadar' is not available for selection and notified the same separately for that community that selection year. The selection year for the purpose of Rule 15(a) of KS&SSR shall be the period from the date on which the ranked list comes into force to the date on which it expires. Such an exercise was not resorted to by the PSC and all pending turns of vacancies such as 'no candidate available' cannot be compensated after 2.2.2006 as per the Note to Rule 15(a) of KS&SSR. - 5.The turns of vacancies of 'Hindu Nadar' omitted to be filled up from the ranked list dated 27.7.2009 cannot be compensated by carving out the same from the ranked list dated 3.8.2015 (after 2.2.2006). Such a direction by the KAT is unsustainable in law whatever be the reason for not following the reservation as per OP(KAT) No.384 of 2018 7 the integrated cycle mentioned in Rule 15(a) of KS&SSR. The PSC points out that it is difficult to change the roster point in the midst while a ranked list is being operated and there was delay on the part of the Government in fixing the roster point. - 6.The KAT has observed that a recruitment has to be as per the amended Rules though the ranked list was prepared as per the unamended Rules relying on Mohanan v. Director of Homoeopathy [2006(3) KLT 641(FB)]. But it cannot be forgotten that there is a statutory embargo under the Note to Rule 15(a) of KS&SSR to entertain uncompensated turns of vacancies after 2.2.2006. The orders of the KAT as well as the consequential order of the PSC advising three candidates of Hindu Nadar Community out of turn from the ranked list dated 3.8.2015 are hereby annulled. - 7.It goes without saying that the vacancies reported before the expiry of the ranked list dated 3.8.2015 shall be duly filled up adhering to the reservation as per roster in the light of the amended provisions of KS&SSR. The original application filed by OP(KAT) No.384 of 2018 8 respondents 1 to 4 who figure in the supplementary list of Hindu Nadar Community in the ranked list dated 27.7.2009 deserves a dismissal. The original petition is allowed. No costs. Sd/- ## V. CHITAMBARESH, JUDGE Sd/ASHOK MENON, JUDGE ## **Sha/270619** As per order dated 05.07.2019 in I.A.No.2/2019 the date mentioned in the penultimate sentence of page 8 of the Judgment is corrected as 03.08.2015 instead of 27.07.2009. Sd/Joint Registrar Sha/090719 OP(KAT) No.384 of 2018 9 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE OA.(EKM) NO.82/2016 DATED 6.12.2018 BEFORE KERALA ADMINISTRATIVE TRIBUNAL.** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 16.8.2017 BY 6TH RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF ORDER DATED 15.11.217 IN O.A. (EKM)NO.82/2016.** - **EXHIBIT P4 TRUE COPY OF R.A(EKM) NO.7/2018 IN O.A(EKM)NO.82/2016 DATED 14.8.2018 ON THE FILE OF KERALA ADMINISTRATIVE TRIBUNAL.** - **ANNEXURE-RA1 TRUE COPY OF THE ORDER DATED 15.11.2017 IN O.A.(EKM)NO.82/2016 OF THE KERALA ADMINISTRATIVE TRIBUNAL.** - **EXHIBIT P5 TRUE COPY OF ORDER DATED 15.10.2018 IN R.A(EKM)NO.7/2018 IN O.A.(EKM)NO.82/2016 BY THE KERALA ADMINISTRATIVE TRIBUNAL.** ## **RESPONDENTS' EXHIBITS** - **EXHIBIT R1(A) TRUE COPY OF ORDER NO.8310/EA1/2018/DH DATED 16.10.2018 ISSUED BY THE DIRECTOR, HOMEOPATHY DEPARTMENT** - **EXHIBIT R1(B) TRUE COPY OF ORDER NO.8310/EA1/2018/DH DATED 28.11.2018 ISSUED BY THE DIRECTOR, HOMEOPATHY DEPARTMENT.** - **EXHIBIT R1(C) TRUE COPY OF COMMUNICATION NO.IDS 1(2)4604/2018/GW DATED 19.7.2018 ISSUED BY THE PSC.** **EXHIBIT R1(D) TRUE COPY OF U.O.NOTE NO.A IV(2)754/15/GW DATED 23.3.2018 ISSUED BY THE PSC. EXHIBIT R1(E) TRUE COPY OF REJOINDER FILED BY THE RESPONDENTS 1 TO 3 BEFORE THE HON'BLE KAT, ERNAKULAM BENCH.** OP(KAT) No.384 of 2018 10 **EXHIBIT R1(F) TRUE COPY OF RELEVANT PORTION OF THE APPOINTMENT CHART NO.R1C(1)9394/15/GW OF THE PSC IN RESPECT OF ADVICE DATED 23.7.2018. EXHIBIT R1(G) TRUE COPY OF RELEVANT PORTION OF THE APPOINTMENT CHART NO.R1C(1)9394/15/GW OF THE PSC IN RESPECT OF ADVICE DATED 30.8.2018. EXHIBIT R1(H) TRUE COPY OF THE RELEVANT PORTION OF THE ADVICE SATISFYING THE TURN AT MR VIII 60. EXHIBIT R1(I) TRUE COPY OF RELEVANT PORTION OF THE ADVICE SATISFYING THE TURN AT MR IX 60. EXHIBIT R1(J) TRUE COPY OF RELEVANT PORTION OF THE ADVICE SATISFYING THE TURN AT MR X 60.**