New Delhi: A three-judge bench of the Supreme Court, comprising Justice Nageswara Rao, Justice Hemant Gupta and Justice Ravindra Bhat, today held that the posts available for the Hindu Nadar community after November 21, 2009, are required to be provided to them by the Kerala Public Service Commission.
The Court restored the order of the Kerala Administrative Tribunal that had held that the Commission was bound to fill up the shortfall in the vacancies reserved for the Hindu Nadar Community.
The Kerala Administrative Tribunal had directed the Kerala Public Service Commission to make up the shortfall in reservations from the succeeding rank list in response to applications made by the present appellants regarding the same.
The High Court set aside the order of the Tribunal.
The four appellants before the Supreme Court are members of the Hindu Nadar community, which was included in the Other Backward Classes category in the State of Kerala through Circular dated November 21, 2009. This decision was later incorporated in the Kerala State and Subordinate Service Rules, through Gazette Notification dated 3rd August 2010 but with retrospective effect from November 21, 2009, and 1 percent reservation was provided to the Hindu Nadar Community.
Thereafter, a Notification was published by the Commission on 15.12.2012, inviting Applications for the post of Medical Officer (Homeo) in the Homeopathy Department of the Government of Kerala were invited through a notification on 15th December 2012. A rank list was then published on 3rd August 2015 where name of the appellants appeared at Serial Nos. 3, 4, 5 and 6 in the list of Hindu Nadar community.
The appellants approached the Tribunal with the grievance that there was no Hindu Nadar candidate in the main rank list containing 197 candidates for the post of Medical Officer (Homeo). They submitted that the shortfall in reservation for Hindu Nadar community in the advices made by the Commission on or after 21st Nov 2019 i.e. the date of the commencement of the 1% reservation for the Hindu Nadar Community, was required to be made good in future vacancies without disturbing the advices already made.
However, the Commission in its Circular dated 31st August , restricted the implementation of the Rules to the rank list published on or after Nov 2019. According to the appellants, the vacancies arising after 21st November 2019 were required to be filled up from amongst the candidates belonging to Hindu Nadar community on the basis of rank list published on 3rd August 2015.
According to the Commission in its Circular dated 31st October 2010 it was clearly stated that the Hindu Nadar community would be provided reservation from the rank list published on or after 21st November 2009. Thereafter, the rank list had only been published on 3rd August 2015 after the amendment in the Rules. The Commission had thus issued advice by giving 1% reservation to the Hindu Nadar community on the basis of such succeeding rank list.
The Tribunal held that the above Circular of the Commission could not adversely affect the claim of the appellants. The Commission was bound to fill up the shortfall in the vacancies reserved for the Hindu Nadar Community.
The private respondents being candidates belonging to the Open Category, Anglo Indian and Vishwakarma community, challenged this order of the Tribunal before the High Court on the ground that the shortfall in the reservation for the Hindu Nadar community on the advice of the Commission from the rank list published on or after 21st November 2009 till the date of publication of the Rules alone were required to be adjusted in future vacancies without disturbing the advice already made. Since no rank list had been published after that date except the rank list published on 3rd August 2015, the shortfall in vacancies could not be filled up on the basis of the succeeding rank list.
The High Court held that Commission could have kept the vacancies unfilled if suitable candidates from the Hindu Nadar community were not available for selection and could notify the same separately for the community in that particular selection year.
The Supreme Court noted that the Circular of the Commission and the Explanation II inserted by amending the Rules, provide that the shortfall in the reservation made during the period from 21.11.2009 to the date of the issue of the Circular was to be adjusted in future vacancies without disturbing the advices already made. It did not mean that the vacancies arising after the amendment were not required to be filled up as per the merit in the rank list.
The Court, finding the entire submission on behalf of the private respondents as misconceived and untenable held that the posts available for the Hindu Nadar community after 21st November 2009 are required to be provided to them.
-India Legal Bureau
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