NIDHIN M.C. v. State of Kerala & Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938** **WP(C).No. 1642 of 2015 (E) ---------------------------** **PETITIONER(S): -------------** **NIDHIN M.C., S/O.M.CHANIAPPA, ANANDA NIDHI HOUSE, KAILASPURAM, UDAYAGIRI, VIDYANAGAR P.O., KASARAGOD DISTRIC, PIN - 671 123.** **BY ADVS.SRI.T.R.RAVI** **SRI.JAWAHAR JOSE SRI.V.VINAY MENON SMT.CISSY MATHEWS SRI.ARUN AJAY SHANKAR** **RESPONDENT(S):** **--------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, SCHEDULED CASTE AND SCHEDULED TRIBES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004.** **R1 BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 1642 of 2015 (E) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT-P1: TRUE COPY OF THE PETITIONER'S DEGREE CERTIFICATE ISSUED BY THE VISVESVARAYA TECHNOLOGICAL UNIVERSITY. EXHIBIT-P2: TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 12.2.2014 ISSUED BY THE TAHSILDAR, KASARAGOD. EXHIBIT-P3: TRUE COPY OF THE APPLICATION DETAILS UPLOADED BY THE PETITIONER FOR APPLYING TO THE POST OF ASSISTANT ENGINEER (ELECTRICAL) IN THE KERALA STATE ELECTRICITY BOARD.** **EXHIBIT-P4: TRUE COPY OF THE APPLICATION DETAILS UPLOADED BY THE PETITIONER FOR APPLYING TO THE POST OF ASSISTANT ENGINEER (ELECTRICAL) IN THE TRAVANCORE TITANIUM PRODUCTS LIMITED. EXHIBIT-P4(A): TRUE COPY OF THE REGISTRATION DETAILS OF THE PETITIONER IN THE KERALA PUBLIC SERVICE COMMISSION. EXHIBIT-P5: TRUE COPY OF THE GAZETTE NOTIFICATION DATED 19.9.2013. EXHIBIT-P6: TRUE COPY OF THE GAZETTE NOTIFICATION DATED 28.4.2014. EXHIBIT-P7: TRUE COPY OF THE COMMUNICATION DATED 9.12.2014 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P8: TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT TOGETHER WITH THE INFORMATION SO RECEIVED. EXHIBIT-P9: TRUE COPY OF THE COMMUNICATION ISSUED BY THE P.S.C. EXHIBIT-P10:TRUE COPY OF THE RELEVANT PAGES OF THE RANK LIST.** **RESPONDENT(S)' EXHIBITS -----------------------** **NIL** **//TRUE COPY//** **Msv/** **P.S.TO JUDGE** ## **P.V.ASHA, J.** ----------------------------------------------------- ## W.P(C) No.1642 of 2015-E ---------------------------------------------------------------------Dated this the 22[nd] day of February, 2017 ## **JUDGMENT** The petitioner belongs to Marati community which has been included in the list of Scheduled Tribes by the presidential order dated 19.09.2013 as per Ext.P5 gazette notification. The Kerala Public Service Commission ('PSC' for short) invited applications for appointment to the post of Assistant Engineer (Electrical) in the Kerala State Electricity Board and Travancore Titanium Products Ltd. pursuant to which the petitioner submitted on-line applications Exts.P3 and P4 respectively. 2. `Marati' (of Hosdurg and Kasargod Taluk of Kasargod district) community was included in the list of Scheduled Tribes in Kerala as entry no.28 in part VII of the Schedule to the Constitution (Scheduled Tribes) Order, 1950, as per the Constitution ((Scheduled Tribes) Order Amendment Act, 2013, which received Presidential assent on 18.9.2013 and published by Ext.P5 notification in gazette of India dated 19.9.2013. W.P(C) No.1642 of 2015-E 2 Consequential amendment in the list of Scheduled Tribes in the Schedule to the Part I of Kerala State and Subordinate Service Rules, 1958 (KS&SSR) was issued only as per Ext.P6 notification in Kerala gazette extraordinary dated 29.4.2014 including `Marati' (of Hosdurg and Kasargod Taluk of Kasargod district) as item no. 23A , as per KSSR (2[nd] Amendment) Rules 2014, issued in G.O.(P) No. 11/2014/P&ARD dated 28.4.2014. 3. In the application there was a column to furnish the 'caste and reservation', against which, petitioner stated `Marati' (of Hosdurg and Kasargod Taluk of Kasargod district) - General. It is pointed out that when the community was stated as Marati, the software of the PSC was not permitting to show it as Scheduled Tribe, apparently because it was not included in the list of communities coming under the Scheduled Tribe and provision to show it as ST was not available in the pre-loaded software of the PSC. Immediately after submitting the applications the petitioner filed this writ petition praying for the following reliefs: > “i) Issue a writ in the nature of mandamus directing the 2[nd] respondent to grant reservation to the petitioner as a member of scheduled tribe community from the date of Exhibit-P5 Gazette notification. 3 W.P(C) No.1642 of 2015-E ii) Declare that the petitioner is eligible for reservation, as a member of scheduled tribe community from the date of Exhibit-P5 Gazette notification. iii) Issue a writ in the nature of certiorari quashing ExhibitP7. iv) Grant such other order or direction as this Hon'ble Court may deem fit and necessary, in the facts and circumstance of the case.” 4. By order dated 7.7.2015 this court directed the 2[nd] respondent to consider the petitioner provisionally as a member of the Marati community in Hosdurg and in Kasargod Taluks in Kasargod district, while processing his applications Ext.P3 and P4. Thereafter, Ext.P10 rank list was published on 30.12.2016, during the pendency of the writ petition. The name of the petitioner was not included in the ranked list. However, it was stated under note 2 as follows: “NOTE 2:- Result of the candidate with interview Serial No.2555 is withheld subject to the final judgment in WP(C) 1642/15(E).” 5. The 2[nd] respondent filed a counter affidavit stating that the benefit of the inclusion of Marati community among the Schedule Tribe community can be granted only for notifications issued subsequent to 29.4.2014 i.e subsequent to the amendment of the list of Scheduled Tribes in KS&SSR. In para.7 of the counter affidavit, it was stated as follows: 4 W.P(C) No.1642 of 2015-E “7. As per decision No.9 dated 21.07.2014, the Commission ordered that the reservation benefit for Marati Community can be effected only for notifications from 29.04.2014, the date on which the KSSR was amended and included the community in the list of ST and reservation benefits shall not be effected for the notifications issued prior to28.04.2014. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx” It is therefore the case of the P.S.C that the Commission cannot redo what it had already done. The eligibility of the candidate is to be determined as on the last date of the application and as on that day there was no amendment to the provisions contained in the KS&SSR and since the petitioner did not claim reservation benefit in the applications, his subsequent claim cannot be accepted. 6. But the case of the petitioner is that he was unable to claim the benefits because of the peculiar nature of the software in which he could not incorporate that the Marati community is a Schedule Tribe. The learned counsel for the petitioner relied on the judgment of the Apex court in **State of Maharashtra v. Milind and Ors.** [(2001) 1 SCC 4], and argued that the effect of the Presidential order under Article 342 cannot be diluted by the Government and the petitioner is entitled to the benefit of reservation from the date of Ext.P5 notification. 7. Heard learned Counsel for the petitioner and the 5 W.P(C) No.1642 of 2015-E learned Standing Counsel for the PSC and considered the rival contentions. 8. Articles 341 and 342 of the Constitution of India read as under: “341. Scheduled Castes:-(1) The President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 342. Scheduled Tribes:- (1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” 9. The moment Ext.P5 Presidential order is issued under Article 341 including the Marati Community in the list of Scheduled Tribes in the schedule to the Constitution, the 6 W.P(C) No.1642 of 2015-E petitioner is deemed to be a member of Scheduled Tribe. That benefit is not dependent on a notification by Government of Kerala. Neither the State Government nor the PSC can deprive the petitioner of his constitutional right. The benefits which the petitioner claims on the basis of the presidential notification cannot be denied on the ground that the State Government issued notification amending the list of Schedule Castes in the Kerala State and Subordinate Service Rules only in the year 2014. As and when there is a notification under Article 341(1)/ (2), by which the Marati community is included in the list of scheduled Tribes, the respondents cannot deny the benefit of reservation to the petitioner. 'Scheduled caste and scheduled Tribes' are defined in Part I of the KS&SSR in Rule 2(14) to mean those castes and tribes declared by the President of India under Article 341 and 342 of the Constitution of India. 10. The PSC cannot deny the fundamental right of the petitioner on the ground of inconvenience and postpone the implementation of the Presidential order to lists to be notified after Ext.P6 amendment. Even in a case where the qualification and method of appointment are amended, the vacancies are liable to be filled up in accordance with the rules which exist at W.P(C) No.1642 of 2015-E 7 the time of occurrence of vacancy. The reservation under Rules 14 to 17 are to be applied at the time of advice and appointment. In this case the notification itself was issued subsequent to the Presidential Order. The petitioner cannot be denied that benefit of reservation saying that he did not claim it in the on-line application, in which it was practically impossible to mention his community as Scheduled Tribe, because the moment one enters 'Marati', in the application, the uploaded software of the PSC was not allowing the applicant to proceed further to claim it as a Scheduled Tribe. 11. The action of the PSC in denying the benefit of reservation to the petitioner on the ground that the eligibility is to be decided as on the last date fixed for receipt of application and as on that date his community was not included in the list of ST, by way of amendment to the list of ST given in the List II of Schedule to Part I of the Kerala State and Subordinate Service Rules (KS&SSR), 1958, and that the status of a person cannot be changed by subsequent amendment, etc all are unsustainable and it even goes against the dictum laid down by the Full bench of this Court in **Mohanan v. Director of Homoeopathy** : 2006 (3) KLT 641, that any vacancy which arises even during the W.P(C) No.1642 of 2015-E 8 currency of the rank list shall be filled in accordance with rules in force, at the time of occurrence of vacancies. There the Full Bench was considering the effect of amendment of the Rules with respect to qualification/method of appointment. In this case, the right is conferred on the petitioner by virtue of constitutional amendment and the right to reservation is his fundamental right under Article 16(4) which the PSC cannot deprive in order to suit their convenience. Even if the Presidential Order was subsequent to the notification, the PSC was bound to give the benefit of reservation to the petitioner treating him as a Scheduled Tribe as and when his turn arose for advice. Reservation is to be applied at the time of appointment. 12. As held in the Judgment of the Apex Court in **Milind** case (supra), the State Government cannot dilute the Presidential order by delaying or denying the benefit of the same to the eligible member of Scheduled Tribe. Therefore, it is declared that the petitioner is eligible for reservation as a member of Scheduled Tribe Community with effect from 19.9.2013, the date of Ext.P5 Presidential Order and his candidature in Exts.P4 and P5 applications are liable to be considered as one eligible for reservation under the Scheduled W.P(C) No.1642 of 2015-E 9 Tribe quota. There shall be a direction to the 2[nd] respondent to treat the petitioner as a candidate belonging to the Schedule tribe and to include him in the ranked list Ext.P10 at the appropriate place and to advise him against the reservation turn of Scheduled Tribe accordingly, as and when such turn arises/arose in accordance with such rank. The writ petition is accordingly disposed of. Sd/- **(P.V.ASHA, JUDGE)** rtr/