Dec 14, 2020

Reservation, be in education or employment, with the object of upliftment of socially backward communities, is a method or ideology to cut the threads of discrimination across the country and providing equal opportunities to every citizen. The Constitution, in its several articles, reiterated the various provisions for reservations and empowered the Union & State to make special provisions. The Mandal Commission in 1980 recommended the 27% reservation of Other Backward Classes (OBC). In the historic judgment in 1992, the Supreme Court (S.C.), considering the right to equality, fixed the cap of a maximum 50% on reservations in India. Public Service Commission is the governing body for the administration of reservation in education and employment in each State and Administrative Tribunals for each state is established in case of any dispute. In the judgment of Dr Aswathy R.S. Karthika & Ors. Vs Dr Archana M. &Ors., dated 29.07.2020, the appointment of Appellants was in dispute before the Supreme Court in Civil Appeal against the judgment of the High Court of Kerala.

Like several other communities, the Hindu Nadar Community in Kerala included in the OBC in Kerala vides circular dated 21.11.2009 and 1% reservation granted to them. This decision was included in the Kerala State and Subordinate Service Rules, 1958 on 03.08.2010, with retrospective effect from 21.11.2009. On 15.12.2012, the Commission published a notification to invite the applications for the post of Medical Officer (Homeo) in the Homeopathy Department of the Government of Kerala. On 03.08.2015 the ranks list was published, wherein, the names of Appellant appeared in Hindu Nadar Community. Rule 15(a) has stated that the vacancy should be kept unfilled until the candidate belonging to a particular community shall fill it. Otherwise, failure of appearing of such candidate after re-notification not less than two times, such vacancy should be given to OBC and in their absence to SC/ST. Further, Explanation II of the Kerala State and Subordinate Service Rules, 1958 and Circular dated 31.08.2010 have provided retrospective effect by adjusting in future vacancies to the SIUC Nadar and Hindu Nadar, when the rank list published during 21.11.2009 to 03.08.2010 and period of 21.11.2009 to 31.08.2010, respectively.

After hearing the Administrative Tribunal, Kerala observed and directed that the circular dated 31.10.2010 could not adversely affect any vacancy should be filled with candidates belonging to Hindu Nadar Community. Further, it directed the advice of candidates from the supplementary list, entirely belonging to Hindu Nadar Community, after assessing the shortfall by an equal number of candidates from the reported vacancies. Aggrieved with the decision of Tribunal, private candidates belonging to open category filed appeal in High Court of Kerala with contentions of advice the shortfall arose from 21.11.2009 to 31.08.2010 alone need to be adjusted against future vacancies and should not be filed against succeeding list dated 03.08.2015. Refuting these contentions, the counter affidavit commission argued that the assessment of shortfall is completed and they have decided to fill the vacancy before three years from the commencement of rank list, i.e. before 03.08.2018. The High Court, setting aside the decision of Tribunal, held that vacant seats should be kept unfilled in case unsuitable candidates from Hindu Nadar Community and should not notify anyone from the same community in the selection year by non-compliance of Rule 15(a).

Before Supreme Court, the Learned Counsel for Appellant contended that reservation could not be denied, as the Explanation II inserted in Rules by amendment dated 03.08.2010, further, putting reliance on the assessment of Commission in respect of three posts, the appointments of Appellants were correct, fair and just. On the other hand, Learned Counsel of Respondents argued that Rule 15(a) laid down any shortfall; the vacancies must be filled by separate notification for a specific community. No such process initiated by the Commission for filling the vacancies, therefore, the mere appearance of names in the succeeding rank list could not be a good claim for an appointment.

The SC satisfied the Commission regarding Rule 15(a) is not applicable in the present case due to absence of temporary nature required for passing over the vacancies or non-availability of candidates. The note to Rule 15 was inserted on 08.03.2006, which laid down the one-time application and not for future rank lists. Therefore, after perusal of Rule 15(a) and considering the facts in the present case, where no candidate was available and temporary passing of vacancy, S.C. found the written statement of Commission correct in law. The Court in its final verdict held that no rank list published during the period of 21.11.2009 to 03.08.2010 and the rank list published on 03.05.2018 was the only source for filling the vacancies. Therefore three appointments made by the Commission from that list was right against the shortfall of vacancies that arose on 21.11.2009. Further, it found that Circular and Explanation II provides for a shortfall during the period of 21.11.2009 to 03.08.2010 needs to be adjusted in future vacancies, including vacancies arising after the amendment of Rules.