Hazeena B.K. v. Kerala Books and Publications Society & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **THURSDAY, THE 24TH DAY OF JULY 2014/2ND SRAVANA, 1936** **WA.No. 1166 of 2013 () IN WP(C).14216/2012 --------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 14216/2012 of HIGH COURT OF KERALA DATED 21-05-2013** ## **APPELLANT(S)/PETITIONER:** **------------------------** **HAZEENA.B.K, AGED 38 YEARS BLAYIPARAMBIL HOUSE, THAYIKKATTUKKARA, ALUVA PIN-683106.** **BY ADVS.SRI.S.RAMESH BABU (SR.) SRI.P.RAVINDRA NATH SRI.K.P.KAMALAKARA BABU SRI.N.KRISHNA PRASAD** ## **RESPONDENT(S)/RESPONDENTS:** **---------------------------** **1. THE KERALA BOOKS AND PUBLICATIONS SOCIETY, REPRESENTED BY ITS MANAGING DIRECTOR, KAKKANAD POST KOCHI-682030.** **2. INSTITUTE OF MANAGEMENT IN GOVERNMENT, REPRESENTED BY ITS SECRETARY, VIKAS BHAVAN POST TRIVANDRUM-695033.** **3. SRI.P.ANWAR, S/O.HASSAN.P, PALLAPURAVAN HOUSE, KODATHY PADI MANNARKKAD POST, PALAKKAD-678582 NOW WORKING AS OFFICE ASSISTANT IN THE KERALA BOOKS AND PUBLICATIIONS SOCIETY KAKKANAD POST, KOCHI-682030.** **R2 BY ADV. SMT.M.A.VAHEEDA BABU, SC, INSTITUTE OF MANAGEMENT IN GOVERNMENT** **R4 BY GOVERNMENT PLEADER SRI.P.M.SANEER.** **R3 BY ADVS.M/S. SRI.A.JAYASANKAR & SRI.MANU GOVIND** **R1 BY ADVS.M/S. SRI.K.ANAND (SR.) & SMT.LATHA KRISHNAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Antony Dominic & Dama Seshadri Naidu, JJ.** --------------------------------------------------------------- W.A.No.1166 of 2013 --------------------------------------------------------------Dated this the 24[th] day of July, 2014. ## **JUDGMENT** ## **. Antony Dominic, J** 1.The unsuccessful writ petitioner in W.P.(C)No.14216 of 2012 had filed this writ appeal challenging the judgment of the learned single Judge rendered on 21.5.2013 dismissing the writ petition. There were vacancies of office assistants under the first respondent for filling up of which the Employment Exchange was notified to sponsor suitable candidates. The Employment Exchange sponsored the appellant and the third respondent, both belong to Muslim community. However, the appellant was included in the list of general candidates, whereas the third respondent in the list of reserved candidates eligible to be considered against the post reserved for Muslim community. In the selection that was conducted by the second respondent, the W.A.No.1166 of 2013 2 appellant secured 122 marks and was included at Rank No.12 among the open merit candidates. Insofar as the third respondent is concerned, he secured 118 marks and was included at Rank No.1 in the supplementary list of Muslim candidates. The third respondent was eventually appointed against one post reserved for Muslim community. It was aggrieved by the appointment so given to the third respondent, allegedly overlooking the claim of the appellant, the appellant filed the writ petition. - 2.By the judgment under appeal, the learned single Judge dismissed the writ petition holding that the appellant did not have a claim for reservation while registering at the Employment Exchange and that therefore, there was no reason to extend any reservation to the appellant. It is this judgment which is under challenge in this appeal. - 3.We heard the learned senior counsel Sri.Ramesh Babu for the appellant, learned senior counsel Sri.K.Anand for the first W.A.No.1166 of 2013 3 respondent, learned counsel for the third respondent and learned Government Pleader appearing for the additional fourth respondent. 4.Referring to the statement filed by the additional fourth respondent, the learned counsel for the appellant contended that the learned single Judge was in error in concluding that the appellant did not have a claim for reservation at the time of registration. According to the counsel, sponsorship of the candidates against general vacancies and reserved vacancies is not on the basis of the claim made at the time of registration, but on the basis of seniority in registration. Counsel also contended that, at any rate, a candidate belonging to the reserved community who has proved his superior merit in the selection process and selected against open merit vacancies, will not forfeit his right to be appointed against reserved vacancy. It is stated that this claim of the appellant is recognized under proviso W.A.No.1166 of 2013 4 to Rule 14(c) Part II of Kerala State and Subordinate Services Rules and also upheld by the Apex Court in the judgment in Anurag Patel v. U.P. Public Service Commission and others (AIR 2005 SC 1262). - 5.On the other hand, the learned senior counsel for the management contended that they have proceeded entirely on the basis of the list of candidates sponsored by the Employment Exchange. According to him, the instructions of the Employment Exchange, a copy of which is Ext.R1(d), shows that there is a clear prohibition against considering the candidates sponsored for general vacancies against reservation vacancies or vice versa. - 6.Counsel for the third respondent contended that, in the writ petition, all that was under challenge was the appointment of the third respondent and that when such appointment was made strictly in compliance with the sponsorship of the suitable W.A.No.1166 of 2013 5 candidate made by the Employment Exchange, the learned single Judge was fully justified in concluding that the appellant could not claim the vacancy against reserved quota. 7.We have considered the submissions made. Admittedly, the appellant and the third respondent belong to Muslim community. It is also true that, while the appellant was sponsored against general vacancies, the third respondent was sponsored against vacancies reserved for candidates belonging to Muslim community. In the selection that was held by the second respondent, the appellant secured 122 marks and was ranked at Sl.No.12 in the open merit list, whereas the third respondent who secured 118 marks was included at Rank No.1 in the supplementary list of Muslim candidates. 8.From the above itself, it is obvious that in the selection that was conducted, the appellant had proved herself to a candidate superior in merit as compared to the third respondent. As far as W.A.No.1166 of 2013 6 the procedure adopted by the Employment Exchange for sponsoring candidates against general vacancies and reservation vacancies is concerned, pursuant to the order dated 3.10.2013 passed by this Court, a statement has been filed by the additional fourth respondent and in the additional statement dated 18.1.2014, the factual position has been clarified thus: “It is submitted that all Employment Exchanges are required to sponsor eligible candidates in ratio 1:1 to the vacancies. The District Employment Exchange, Ernakulam collect and compile such lists received from all Employment Exchange and handed over the eligible candidates to the 1[st] respondent/employer. In other words, this respondent handed over categorywise, the list of 143 candidates for 4 vacancies received for open category, 34 candidates for one vacancy of Ezhava, 26 candidates for one vacancy of SC, 23 candidates for one vacancy of Muslim and the 11 for one vacancy of Latin Catholic/Anglo Indian altogether 237 candidates for 8 vacancies, a true copy of letter issued for the same is produced herewith and marked as Annexure R4(d). Again on 29.6.2011 a list of 3 candidates were being received late from the Employment Officer, Shornur, the same has been forwarded to the 1[st] respondent. A true copy of the letter No.C3/11/224 dated 29.6.2011 is produced herewith and marked as W.A.No.1166 of 2013 7 ## Annexure-R4(e). It is submitted that the petitioner was sponsored by the Town Employment Exchange, Aluva under open category as serial number 57 in the above list. Her seniority i.e., the date of registration at all qualification for the post is 30.7.1999 and the seniority of the candidate sponsored under the Muslim category from the same office is 26.6.2004. It is clear that the petitioner registered first in the Employment Exchange Registration and as per Rule 14(c)(ii) of the KSSR, candidates eligible to be selected on open competition basis shall be selected first and then the candidates for reservation category. First respondent being a public sector undertaking of the State of Kerala, selection was only done as per Rule 14(c)(ii) of AKSSR. Therefore, the petitioner with 67 as her seniority was selected first under the open category. The intention between the rule is to provide maximum opportunity to the reservation category. It is submitted that the 3[rd] respondent was a candidate from Town Employment Exchange, Mannarkad. He was sponsored under Muslim category under seniority 19.7.2008 of that office. The seniority of the last candidate under open category of Town Employment Exchange, Mannarkad is 15.3.2006, i.e. the 3[rd] respondent was sponsored under Muslim reservation become he has lesser seniority. It is submitted that an Employment Exchange there is only one registration for a candidate and selection is being made considering the date of qualification, age, community, seniority, W.A.No.1166 of 2013 8 experience etc. Employment Exchanges are only sponsoring agency and for the post of Office Assistant of the 1[st] respondent, a total of 240 candidates were sponsored for final selection. The employer/1[st] respondent after conducting test or interview and other recruitments procedure followed by them find out suitable candidates for final selection of appointments. Employment Registration seniority has no role and moreover the employer/1[st] respondent is free to choose any candidate found suitable from the category of the list sponsored by this respondent. Therefore, the sponsoring of all eligible candidates to the post of Office Assistant notified by the 1[st] respondent was done in accordance with the rules prevailed at that time.” 9.A reading of the above shows that the appellant registered in the Employment Exchange, Aluva on 3.7.1999 and the third respondent in the Employment Exchange, Mannarkad on 26.6.2004 and that the sponsorship of the appellant against general vacancy was only taking into account the seniority in the registration and nothing else. Now on the facts are as above, the question to be considered is whether there was any legal ## W.A.No.1166 of 2013 9 justification to ignore the appellant, who had secured higher rank as compared to the third respondent when the third respondent was offered appointment to a post reserved for Muslim candidates. In our view, there is absolutely no justification. By a catena of judgments of the Apex Court, it has been clarified that a candidate belonging to reserved community included in the open merit list, does not succeed in getting appointment under open merit, will also be eligible to be considered against the quota earmarked to reserved community to which he/she belongs. This principle has been recognized in the KS&SSR Rules where a third proviso has been included to Rule 14(c) ## which reads thus: “Provided also that in preparing the list of eligible candidates to be appointed under this rule applying the rotations specified above in every cycle of 20 vacancies, the candidates eligible to be selected on open competition basis, that is, turns 1, 3, 5, 7, 9, 11, 13, 15, 17 and 19 shall be selected first and then the candidates for the reservation turns, out of those available in the ranked list in the W.A.No.1166 of 2013 10 particular groups having regard to their ranks. In finalising the select list any candidate of the same community selected on open competition turns, if found to be below in the order of the candidates selected from the same community on the basis of reservation, for the fixation of ranks as per Rule 27 of these rules, candidates of the same community obtaining higher marks shall be interchanged with the candidates of the same community in the reservation turn for the purpose of ranking.” 10.Directly on this point is the decision of the Apex Court in **Anurag Patel v. U.P.Public Service Commission and others (AIR 2005 SC 1262)** where, the Apex Court, after making reference to the judgment in Ritesh R.Sah v. Dr.Y.L.Yamu & others (A.I.R 1996 S.C. 1378), has held thus: “5. In the matter of admission to the Medical College, the same difficulty was experienced and this Court held in Ritesh R. Sah v. Dr. Y.L. Yamul and others, (1996) 3 SCC 253, in paragraph 17 of the judgment at page 261 as follows: "... In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be 11 ## W.A.No.1166 of 2013 considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate." The same question was considered by this Court in State of Bihar and others v. M. Neethi Chandra and others, (1996) 6 SCC 36, wherein it was held in paragraph 13 as follows : "............ However, to the extent the meritorious among them are denied the choice of college and subject which they could secure under the rule of reservation, the circular W.A.No.1166 of 2013 12 cannot be sustained. The circular, therefore, can be given effect only if the reserved category candidate qualifying on merit with general candidates consents to being considered as a general candidates on merit-cum-choice basis for allotment of college/institution and subject." In the instant case, as noticed earlier, out of 8 petitioners in Writ Petition No. 22753/93, two of them who had secured ranks 13 and 14 in the merit list, were appointed as Sales Tax Officer-II,whereas the persons who secured rank Nos. 38, 72 and 97, ranks lower to them, got appointment as Deputy Collectors and the Division Bench of the High Court held that it is a clear injustice to the persons re meritorious and directed that a list of all selected Backward Class candidates shall be prepared separately including those candidates selected in the general category and their appointments to the posts shall be made strictly in accordance with merit as per the select list and preference of a person higher in the select list will be seen first and appointment given accordingly, while preference of a person lower in the list will be seen only later. We do not think any error or illegality in the direction issued by the Division Bench of the High Court. 6. Mr. R.N. Trivedi, learned Senior Counsel appearing for the Commission submitted that in case any re-arrangement is made, the same persons who had already been appointed are likely to lose their posts. Going by the counter-statement filed by the State in the Writ Petition No. 22753/93 it W.A.No.1166 of 2013 13 appears that altogether 358 candidates were appointed and 47 candidates belonging to Backward Classes were filled up by posts earmarked for Backward Classes. Amongst the 358 candidates those who secured higher marks than the cut-off mark for the general category also must have got selection in the general category even though they belong to the Backward Classes. If these candidates who got selection in the general category are allowed to exercise preference and then appointed accordingly the candidates who were appointed in the reserved categories had to be pushed down in their posts and the vacancies thus left by the general category candidates belonging to Backward Classes could be filled up by the persons who are really appointed against the quota reserved for Backward Classes. There will not be any change in the total number of posts filled up either by the general category candidates or by the reserved category candidates. 11.It is true that in the writ petition the challenge was only against Ext.P3 appointing the third respondent and there was no express challenge against Ext.R1(d) instructions of the Employment Exchange which prohibits consideration of a candidate sponsored against reservation quota to the post in the general quota and vice versa. It was therefore that the counsel for the W.A.No.1166 of 2013 14 third respondent contended that, in the absence of any challenge against Ext.R1(d), the learned single Judge only could have upheld the appointment made through the Employment Exchange. According to the third respondent, prohibiting consideration of meritorious candidate against reservation or a meritorious reservation candidate against a general vacancy is against the principle laid down by the Apex Court in **Anurag Patel's** case ( _supra_ ). The fact that Ext.R1(d) was not under challenge, does not impress us to deny relief to the appellant. 12.Despite the above legal position, it is a reality that the third respondent is employed under the first respondent since March, 2012. He secured employment not on account of any fraudulent act committed by him. In such circumstances, it will be too harsh to interfere with the appointment of the third respondent at this distance of time. In such circumstances, we set aside the judgment of the learned W.A.No.1166 of 2013 15 single Judge and dispose of the writ appeal with a direction that the appellant will be offered appointment under the first respondent in the next arising vacancy of Office Assistant, either in the general or in a reservation vacancy, if she is eligible, without subjecting her to any further test. ## **Antony Dominic, Judge.** **Dama Seshadri Naidu, Judge.** sl.