Sreekumar K.N. v. Registrar, University of Kerala, Vice-Chancellor, University of Kerala, and Government of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 20TH DAY OF DECEMBER 2017 / 29TH AGRAHAYANA, 1939** **WP(C).No. 28534 of 2011 ------------------------** **PETITIONER ----------** **SREEKUMAR K.N, KOCHUVELIKAKATHU, KIZHATHIRI PO, RAMAPURAM, KOTTAYAM DISTRICT, PIN 686 576.** **BY ADVS.SRI.T.V.AJAYAKUMAR KUM.P.H.RIMJU** **RESPONDENT(S): --------------** **1. THE REGISTRAR, UNIVERSITY OF KERALA PALAYAM, THIRUVANANTHAPURAM.695006.** **2. THE VICE CHANCELLOR, UNIVERSITY OF KERALA,PALAYAM,THIRUVANANTHAPURAM.695006** **3. GOVERNMENT OF KERALA, REPRESENTED BY THE SECRETARY, HIGHER EDUCATION TO THE GOVERNMENT OF KERALA, SECRETARIAT,THIRUVANANTHAPURAM-695001** **R1 & R2 BY ADVS. SRI.GEORGE POONTHOTTAM,SC SRI.BECHU KURIAN THOMAS, SC, SRI.THOMAS ABRAHAM, SC, SRI.M.RAJAGOPALAN NAIR, SC, R3 BY GOVERNMENT PLEADER SMT PRIYA SHANAVAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.V.** **WPC 28534 OF 2011 -----------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** |**PETITIONER(S) EXHIBITS**|**PETITIONER(S) EXHIBITS**| |---|---| |**----------------------**|| |**EXT.P1**|**TRUE COPY OF NOTIFICATION NO.AD.D.11 3.3118/88 OF JULY 1988**| |**EXT.P2**|**TRUE COPY OF NOTIFICATION NO.AD.H/5091/2011 DT.13.6.2011.**| |**EXT.P3**|**TRUE COPY OF REPRESENTATION DT.23.6.2011 BY PETITIONER**| ||**TO RESPONDENT NO.1**| |**EXT.P4**|**TRUE COPY OF REPRESENTATION DT.24.6.2011 BY PETITIONER**| |**`**|**TO RESPONDENT NO.2**| |**EXT.P5**|**TRUE COPY OF REPRESENTATION DT.23.6.2011 BY SNDP YOGAM**| |**`**|**TO RESPONDENT NO.2 .**| |**EXT.P6**|**TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WPC NO.19211/**| ||**DT.15.7.2011.**| |**EXT.P7**|**TRUE COPY OF ORDER OF REJECTION DT.29.9.2011 BY**| ||**RESPONDENT NO.2.**| |**EXT P8**|**A TRUE COPY OF THE NOTIFICATION NO AD.H/30652/2017/1**| ||**DATED 27/11/2017 ISSUED BY THE 1ST RESPONDENT.**| |**RESPONDENTS' EXHIBITS: NIL**|| |**----------------------**|| **/TRUE COPY/ K.V. P.S.TO JUDGE** ## **A. MUHAMED MUSTAQUE, J.** ------------------------------------ ## W.P. (C) No.28534 of 2011 ------------------------------------ Dated this the 20[th] day of December, 2017 ## **J U D G M E N T** This writ petition is pending before this Court since 2011 onwards. The petitioner belongs to Ezhava community and is having all the eligibility to be appointed as Assistant Professor in the Department of German Language. He challenges in the writ petition Ext.P2 notification issued by the University of Kerala dated 13.06.2011. In Ext.P2 notification, the vacancy in the Department of German was earmarked for Scheduled Caste. According to the petitioner, this is a turn belongs to Ezhava community and not to the Scheduled Caste. 2. The petitioner as well as the University admits that no appointment has been made pursuant to Ext.P2. It is admitted now that the present method of recruitment is by pooling all the vacancies in different departments together. This was in the light of the amendment to the Kerala University Act, 1974. The **W.P.(C) No.28534/2011** **2** amendment came into force in the year 2014. After the amendment, communal reservation has to be followed, if any of the candidate from the specified community is not available, by filling up that vacancy on passing over to next community. That means, prior to the amendment, recruitment was department wise. 3. The question arises in this case has to be considered in the background of the above aspect. There was a vacancy in the Department of German way back in the year 1988. That vacancy has to be filled up by a candidate belonged to Ezhava community. Ext.P1 is the notification issued in July 1988. There was no candidate available from the Ezhava community to fill that post. Therefore, that turn was passed over to next community. It appears that the said community is another category coming under Other Backward Class (OBC). According to the petitioner, when a turn of Ezhava community was filled by another community, that turn ought to have been restored to Ezhava community at the earliest possible opportunity in terms of Rule 15(c) of Part II KS & SSR as it stood prior to the amendment in KS&SSR before 2006. It is appropriate to refer **W.P.(C) No.28534/2011** **3** Rule 15 before the amendment in KS&SSR dated 08.03.2006. “1. Rule 15 substituted by G.O.(P) No.7/2006/P&ARD dated 8-3-2006 published as SRO No.227/06 in K.G.Ext.No.541 dated 8-3-2006. Amendment shall be deemed to have come into force on the 2nd February, 2006. Rule 15 as it stood prior to the present amendment is quoted below. For previous amendments to this rule see previous edition of this book-"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. If a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, the said community or group shall be passed over and the post shall be filled up by a suitable candidate from the community or group of communities immediately next to the passed over community or group in the said Annexure in the order of rotation. If no suitable candidate is available for selection in any of the above communities or group of communities, selection shall be made from open competition candidates. (b) If a suitable candidate is not available for **W.P.(C) No.28534/2011** **4** selection from the group of communities classified as 'Scheduled Castes' in the turn allotted for such a group in the Annexure the said group shall be passed over and the post shall be filled up by a suitable candidate from the group of communities classified as "Scheduled Tribes" and vice-versa. If no suitable candidate is available for selection in any of the two groups classified as "Scheduled Castes or Scheduled Tribes" selection shall be made from among the communities immediately next to the group of communities entitled to be appointed according to the turn allotted in the Annexure in the order of rotation. It no suitable candidate is available for selection in any of the communities or group communities selection shall be made from open competition candidates. (c) The benefit of the turn forfeited to a particular community or to a group of community by reason of it being passed over under sub-rules (a) and (b) shall be restored to it, at the earliest possible opportunity, if a suitable candidate from that particular community or group is available for selection by making adjustment against the claims of the particular community or group that derived the extra benefit by reason of such passing **W.P.(C) No.28534/2011** **5** over:] Provided that in no year reservations including carrying forward vacancies to a category of post shall exceed 50% of the total number of vacancies for which selection by direct recruitment to that category is resorted to in that year: [x x x] Provided also that the said right of restoration shall not extend to a case where the selection has gone to an open competition candidate”. 4. In the light of Rule 15(c), there is no doubt that the turn has to be restored to Ezhava community at the time of issuing Ext.P2 notification. (See the judgment of this Court in _**Praseena**_ _vs._ _**Kerala Public Service Commission**_ (2009 (1) KLT 570) and in _**Ranjith** vs._ _**High Court of Kerala**_ (2009 (4) KLT 759)). 5. However, the stand of the University is that the benefit of turn can be claimed from the community which gained the benefit. 6. The question is whether restoration has to be from the community which gained the benefit or not. Rule 15(c) states that it has to be restored at the earliest possible opportunity. It also states that restoration has to be done if a suitable candidate **W.P.(C) No.28534/2011** **6** from that particular community or group is available for selection by making adjustment against the claims of the particular community or group which derived the extra benefit by reason of such passing over. 7. There were two possible views for looking at it in the light of the alternatives provided under Rule 15(c). It states 'the earliest opportunity'. That means, if a vacancy in the post is available, that must be reckoned for claiming such forfeited benefit or when a turn of the community which derived the extra benefit is available. If a vacancy occurs at the earliest opportunity, the community need not wait till the turn of the community gained the benefit to claim for the vacancy. The only thing that has to be done in such circumstances is that roster has to be worked out in such a manner after considering the claim of the community which had benefited by the same. In the light of the above, this Court is of the view that in Ext.P2 notification, the roster as for German ought to have been earmarked for Ezhava community in view of the fact that the post is not filled. The University is directed to notify the post for Ezhava community if it is proposing to notify the vacancy now **W.P.(C) No.28534/2011** **7** exists. Ext.P2 to that extent is interfered with. That notification has to be a separate notification taking note of the fact that the vacancy arose as in 2011 and it should not be considered as part of the notification in the light of the amended provision in the year 2014. This writ petition is disposed of as above. Sd/- ## **A. MUHAMED MUSTAQUE** ## **JUDGE** smp