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CASE NO.: Appeal (civil)  4075-4081 of 1998

PETITIONER: Nair Service Society                                                   

RESPONDENT: Dist. Officer, Kerala Public Service Commission & Ors.  

DATE OF JUDGMENT: 17/11/2003

BENCH: CJI. & Dr. AR. Lakshmanan.

JUDGMENT: J U D G M E N T

Dr. AR. Lakshmanan, J.

       The appellant before us is a Society called Nair Service Society (’NSS’ in short)  filed the above appeals through its Secretary against the common judgment and order  dated 05.08.1997 passed by the Kerala High Court in Writ Appeal No. 582 of 1997 etc.  batch and also to stay the operation of the common judgment and also by restraining  the respondent authorities from giving effect to the above judgment in any manner and  not to appoint any person from the supplementary list.  The appellant-Society was not a  party before the High Court.  The appellant-Society sought leave to file the above  appeals.  The reason given by NSS for filing the appeals by a non-party is that the  Kerala Public Service Commission (in short ’the KPSC’) which had lost in the High  Court was not filing any appeal after the impugned judgment which was against the  interests of the public and, therefore, the NSS was filing the appeal bona fide in public  interest to protect the weaker sections who would not be able to come to this Court after  the impugned order.  This Court on 09.01.1998 directed issue of show-cause notice to  the respondents and granted leave thereafter on 17.08.1998.   

The original petitions were filed by the candidates before the High Court seeking  to direct the KPSC to advise candidates against the non-joining duty (’NJD’ for short)  and also for other consequential and incidental reliefs.   

The KPSC makes the selection of candidates for appointment in Government as  well as in governmental bodies like the Kerala State Electricity Board (hereinafter  referred to as ’KSEB’).  Appointments in Government service have to be made following  the Rules of Reservation laid down in Rules 15 to 17 of the Kerala State and Sub- ordinate Service Rules, 1958 (hereinafter referred to as ’the KSSR’) framed under  Article 309 of the Constitution.  The Rules,  inter alia,  provide for a 50% reservation in  the aggregate for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward  Classes (OBC).  They also provide as to how the reservation vacancies are to be filled  in by the various categories and castes included in the SC, ST and OBC groups.  It is  only necessary to note here that every alternate appointment is for Open Competition  (merit) and every succeeding alternate appointment is for reserved candidates.  Suffice  it to say that the first proviso to Rule 15 (C) lays down categorically that in no year  reservation, 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.  The Note to the rule lays down that the period of  one year for purposes of this proviso shall commence on and from the day on which the  rank list of candidates prepared by the Commission in respect of that post comes into  force.   

The dispute in these appeals arise out of what are called NJD vacancies.  This is  illustrated with reference to the facts of one of these cases.

The KSEB had sought preparation of a select list for appointment of Sub  Engineers.  The KPSC prepared a rank list of 177.  Along with that it also prepared  separate supplementary lists.  Copies of these lists are annexed at pages 125 to 128.  

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The list came into force on 04.07.1994.  There was a requisition from the KSEB for 150  names on 20.08.1994.  These names were advised.  There was a second requisition on  21.12.1994 for 100 more names.  The KPSC could furnish only 89 names, as with that  advise the list of the candidates in the merit list stood advised for appointment.  Thus,  the KPSC advised in all 239 names, drawing 177 names from the main rank list and 62  names from the supplementary list, which became necessary to fill up the alternate  reservation vacancies in the cycle of rotation of appointment.  Be it stated, that in this  total advice of 239 candidates, the KPSC which had resorted to the supplementary list  for getting reservation candidates had advised nos. 1 to 18 among the supplementary  list for Muslims.  No. 19 onwards to that list could not be advised as the main rank list  got exhausted in the meanwhile.   

Out of the second advice of 89 candidates, 20 candidates did not join duty which  comprised of eleven open competition candidates, three SC’s, three Ezhavas (OBC’s)  and three Muslims.  Those NJD vacancies were therefore, reported to the KPSC for  advice on 20.06.1995.  No advice was, however, made by the KPSC whereupon No.19  in the Muslim supplementary list who claimed appointment to one of these NJD  vacancies of Muslims, he being the next unadvised candidate in the Muslim  supplementary list filed O.P.No. 12305 of 1995 in the Kerala High Court for a direction  to the KPSC to advise candidates to the NJD vacancies of Muslims.  This was followed  by similar other writ petitions.

The stand taken up by the KPSC was that once the main rank list stood  exhausted by advising the last of the candidates included thereon the supplementary  list of reservation candidates also ceased to be in force as otherwise the rule of 50:50  will stand violated as pointed out thereon.  The KPSC’s stand will be clear from the  counter affidavit at pages 79 to 81 as also in the Writ Appeal pages 102-106 and  counter affidavit pages 163-168 in this Court.   

       A learned Single Judge of the High Court on 13.02.1997 allowed the petition  filed by the respondents herein holding that there was no justification to reject the case  of the petitioner therein on the ground that the main list got exhausted on 21.12.1994  and directed the KPSC to advise respondent No.5 therein to appoint them on the NJD  vacancy.  In holding so the learned Judge ignored the mandate of the proviso to Rule  15(c) of the KSSR that the reservation cannot in any case exceed 50% in any year.  In  terms of the said order, other original petitions filed by other candidates were also  disposed of.   

Aggrieved by the said order, the KPSC filed writ appeals in the High Court and  contended that the supplementary list is an appendage to the main list and when the  main list ceased to operate, no candidate could be advised from the supplementary list.   It was also pointed out that the supplementary lists are prepared to make good the  deficiency of reserved communities in the main list and when the main list ceased to  operate the supplementary list cannot be allowed to operate independently.  A Division  Bench of the High Court, by its common judgment, dated 05.08.1997 dismissed the  appeal filed by the KPSC and allowed the writ petitions filed by the respondents and  directed the respondents to issue advise memo for appointments to those without going  into the question whether the limit of reservation would exceed 50% and also whether  they were entitled to be appointed at all and also the primary question as to what is to  be done to the 11 NJD vacancies existed in case of open category candidates and that  there was no supplementary list in their case.         The High Court in para 8 of its judgment has observed as follows:- "The petitioners in these Original Petitions contended that they are all entitled  to get appointment against the N.J.D. vacancies as their names are included  in supplementary lists.  The stand taken by the P.S.C. is that once the main  list is exhausted or expired it is not possible to advice any candidate who is  included in the supplementary list.  It is true that once the main list is  exhausted or expired further advice cannot be made from the supplementary  list for the vacancy that may arise subsequently.  That is also the view taken  by one of us (Balakrishnan,J.) in O.P. No. 3902/93.  But as regards N.J.D.  vacancies, we do not think that the supplementary list can be totally ignored  under all circumstances.  If a few candidates belonging to reserved  communities failed to join duty and there arose some N.J.D. vacancies, if  there are candidates available in the supplementary list, such candidates can  very well be advised for appointment.  The vacancies to be filled are the

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actual vacancies which ought to have been filled up along with the candidates  in the main list.  Learned counsel for the P.S.C. pointed out that the N.J.D.  vacancies may include the open competition vacancies as well as vacancies  in the reserved category and if reserved posts alone are allowed to be filled  up, that will exceed the quota earmarked for reservation and it would be a  violation of the proviso to Rule 15 of the K.S. & S.S.R. 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.  Such situation may  occur under certain circumstances, but that does not amount to denial of  opportunity of a particular class of persons as the general N.J.D. vacancies  are filled up in the next batch of selection.  Even in the instant case, 150  candidates were advised on 26-8-1994.  Out of 150 candidates, 125  candidates were against fresh vacancies and 25 were N.J.D. vacancies and  the counsel for the P.S.C. admitted that 25 N.J.D. vacancies were filled up  and thereafter the roster point was fixed in respect of 125 candidates.   Therefore, it cannot be said that there is any violation of the proviso to Rule  15 of the K.S. & S.S.R. in the sense that there was denial of opportunity to  any of the candidates, either open competition candidates or the reserved  candidates."       

Aggrieved against the above judgment, the appellant-Society, after obtaining  leave from this Court filed the special leave petitions against the common judgment  impugning the judgment as erroneous and is against the provisions of the statute,  namely, Kerala State and Subordinate Service Rules, 1958 and is, therefore, liable to  be set aside.   

On the above facts and circumstances, the following two primal questions of law  arise for consideration by this Court:- 1)      Whether the High Court, after holding that once the main list got  extinguished the supplementary list also automatically gets extinguished,  is correct in its conclusion that the petitioners in the original petition would  be entitled to appointment based on the supplementary list when they did  not have any legal rights or fundamental rights over the selection.                         2)      Whether it is open to the High Court to exceed the percentage of  reservation beyond 50% against the statutory provisions.

We heard Mr. K.K. Venugopal, learned senior counsel for the appellant, and Mr.  P.A. Mohammed and Mr. T.L.V. Iyer, learned senior counsel for the contesting  respondents.  Learned senior counsel invited our attention to the relevant Rules,  namely, Rules 14-17 of the Kerala State and Subordinate Service Rules, 1959 which  lays down the principle of reservation under Article 16(4).  The Rules lay down the  principle and procedure to be followed in giving effect to the reservation for Scheduled  Castes/Scheduled Tribes and Backward Classes in the State of Kerala.  Our attention  was drawn to the relevant Rules of the Kerala Public Service Commission Rules of  Procedure (Annexure-P7) and the Circular No. 17/87 dated 04.07.1987 of the Kerala  Public Service Commission and other relevant records.  Mr. Venugopal, learned senior  counsel for the appellant, further submitted that the impugned judgment is against the  statutory principle and that by the judgment the backward turns alone are to be fl%A 7             p ?               t\016   

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CIVIL   APPELLATE   JURISDICTION

CIVIL APPEAL NOS. 4075-4081 OF 1998   

Nair Service Society                                                   \005..   Appellant  ( s)

                   Versus

Dist. Officer, Kerala Public Service                                           \005..  Respo ndent (s) Commission & Ors.  

J U D G M E N T

Dr. AR. Lakshmanan, J.

       The appellant before us is a Society called Nair Service Society (’NSS’ in short)  filed the above appeals through its Secretary against the common judgment and order  dated 05.08.1997 passed by the Kerala High Court in Writ Appeal No. 582 of 1997 etc.  batch and also to stay the operation of the common judgment and also by restraining  the respondent authorities from giving effect to the above judgment in any manner and  not to appoe when according to the KPSC  the respondents were not even entitled to  appointment.  It was submitted for the aforesaid reasons the supplementary list cannot  be acted upon and the respondents would not be entitled to any reliefs.   

Mr. T.L.V. Iyer, learned senior counsel, submitted that though the KPSC  contended before the High Court that the supplementary list has no independent  existence after the exhaustion of the main list, the KPSC has not preferred any special  leave petition before this Court and has decided to implement the order passed by the  Division Bench of the High Court.  It was also contended by learned counsel for the  KPSC that the appellant is not a party in the High Court proceedings commenced from  1995 and had no right or locus standi to rush to this Court and that the appeal at the  instance of the third party society is not maintainable in law.   We do not propose to deal with the question of maintainability at this stage since  the special leave petitions were filed after obtaining leave from this Court and later this  Court also had granted leave to the appellant.  This apart, it was stated in the counter  affidavit filed in this Court that the appointment to the services was done in complete  regard and compliance of the High Court and, therefore, the petitioner-Society ought  not to have any grievance.  Moreover, as per the said directions of the High Court, the  KPSC advised for appointments of some respondents and the vacancies were filled up  by the candidates included in the supplementary list and all the appointed candidates  are working in various departments of the Government of Kerala.  We, therefore, do not  propose to disturb the said appointments at this distance of time, that too at the  instance of the appellant Nair Service Society, a third party to the proceedings in  question.  We are also not inclined to disturb the appointments since the really  aggrieved persons have not questioned the correctness of the appointment of some of  the candidates who were included in the supplementary list.  We make it clear that this  judgment of ours shall not affect the appointments already made pursuant to the

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judgment of the Division Bench of the High Court.   

       These appeals have been filed by the appellant-Society by way of public interest  litigation.   In the judgment in R.K. Jain vs. Union of India & Ors.  reported in AIR 1993  SC 1769,    in paragraph 74 at page 1803 of the judgment, it has been held that, "\005In service jurisprudence, it is settled law that it is for the  aggrieved person i.e. non-appointee to assail the legality of the  offending action.  Third party has no locus standi to canvass  the legality or correctness of the action.  Only public law  declaration would be made at the behest of the petitioner, a  public spirited person."

Since the question of law raised by learned senior counsel is of great public  importance, we are inclined to consider and decide the two questions formulated by us  for our decision in this appeal.

We have given our thoughtful consideration to the legal submissions made by  the counsel appearing for the respective parties.  The impugned judgment, in our  opinion, did not appreciate the well-settled principles of law that the Court should not  substitute the provision of a statute by its own decision.  In this case, the impugned  judgment ignored the provisions of statutory rules to substitute the decision in the place.    The K.S. and S.S. Rules, 1959 lays down the principle of reservation under Article  16(4).  The Rules laid down the principle and the procedure if followed in giving effect to  the reservtion for Scheduled Castes and Scheduled Tribes and Backward Classes in  the State.  Rule 15 refers to the integrated cycle of rotation and it deals with the  procedure to be adopted in selections where any candidate may become available for  recruitment from the reserved group.  This Rule lays down the principle of limitation of  percentage of reservation including the carry forward.  The reservation of vacancies  including carry forward vacancies shall not exceed 50% of the total number of  vacancies for which selection by direct recruitment to that category is resorted to in that  year.  Rule 16 provides that there is sub-rotation among OBCs.  Rule 17 enumerates  the sub groups among OBCs mentioned in Rule 14(a) and Rule 16.  Through out these  rules, there are clear indications that the scheme of reservation followed in the State of  Kerala under direct recruitment is with respect to vacancies.  Rule 14(c) lays down the  manner of making appointments.  Rule 15 also makes it clear that appointment referred  to is with reference to vacancies as made out in the proviso under rule 15(c) and the  note thereunder.  The judgment of the High Court proceed on the wrong premise that  the principle of reservation is with reference to the post.  In our view, Rules 14-17 do  not contemplate making a supplementary list and the statutory rules envisage making a  ranked list which is defined in Rule 2(g) of the KPSC Rules of procedure.  Rule 2(g) of  the KPSC Rules of procedure reads thus:- ""ranked list" means list of candidates arranged in the order of merit either on  the basis of interview or examination or by both".

The above definition shows that there is only one ranked list.  Therefore, the  supplementary list prepared by the KPSC to satisfy the rules of reservation has, in fact,  no statutory backing.  For that reason when the main list is exhausted or expired,  supplementary list cannot be allowed to operate.  If the supplementary list alone is  allowed to operate it would amount to giving greater sanctity to it and long life than the  main list prepared in accordance with the Rules.  Secondly, after the expiry or  exhaustion of the main list if the supplementary list is operated it would violate the first   proviso to Rule 15(c) of the General Rules.  The reason is that the NJD vacancies in  respect of OBC candidates cannot be filled up after the expiry or exhaustion of the main  list and only reserved candidates can be advised from the supplementary list which  would violate 50% rule as no OC Category candidates could be advised.  As rightly  contended by Mr. Venugopal, it would adversely affect the OC Category candidates and  violate the statutory Rule.  The reason given by the Division Bench that if any NJD  vacancy arise in the OC category, the same could be filled up in the next batch of  appointment thereby, the rights of OC candidates can very well be protected without  any violation of the proviso to Rule 15 of K.S and S.S.R. is not legally acceptable.  The  above reasoning, in our opinion, is equally acceptable to NJD vacancies which arise in  the reserved categories as well.  By advising candidates from the supplementary list,

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without any opportunity of balancing the advise with an open competition candidate the  consequence would have been a violation of 50:50 rule with a tilt in favour of the  reserved candidates lasting their quota above 50%.  The net result is that there will be  excess reservation over 50% in the year.      

In our opinion, the KPSC has failed to protect the interest of the open  competition candidates while implementing the decision of the High Court.  It is an  admitted position in the present case that the open competition quota of NJD vacancies  have not been filled up and the only plea that the list got exhausted.  If the list was not  expired, the NJD vacancies of the OC category also would be filled up.  The open  competition candidates who belong to the forward communities alone do not get the  appointment by the process evolved by the KPSC.

For regulating, inter alia, procedure in relation to the preparation of the rank lists  the KPSC has made rules entitled the KPSC Rules of Procedure, Rule 3 enumerates  the various types of lists/examination which the Commission may conduct to assess the  merits of candidates considered for appointment to a post.  Needless to say it includes  written examination and oral test [interview].  Rule 4 insofar as it is relevant provides  that where a written examination is conducted, the Commission shall prepare a list in  the order of merit of such number of candidates as it may determine from time to time.   The provisos to the Rule enable the Commission to prepare separate rank lists in the  order of merit of candidates coming under separate groups in accordance with the  qualifications or other conditions as stipulated in the notification; and also further that  for  the purpose of satisfying the rules of reservation of appointment of SC’s, ST’s and  OBC’s, also, the Commission may prepare such supplementary lists as found  necessary from time to time in the order of merit of the candidates belonging to such  classes.  The relevant part of the Rules reads as under: "4. Where a written examination and/or a practical test is  conducted by the Commission for recruitment to a service or post, the  Commission shall: i)      announce: (a) The qualifications required of the candidates for the  examination. (b) The conditions of admission to the examination including  the fees (c) The subjects, scheme or syllabus of the examination, and  (d) The number of vacancies to be filled from among the  candidates for the examination

Provided that where the exact number of vacancies to be filled  is not ascertainable, the commission may either announce the  approximate number of vacancies to be filled or state that the number  of vacancies has not been estimated.

(ii)    Invite applications and consider all the applications so  received. (iii)   Make all arrangements for the conduct of the  examination for the candidates, whose applications are found to be in  order, and (iv)    Prepare a list in the order of merit of such number of  candidates as the Commission may determine from time to time.

Provided that the Commission may also prepare separate  ranked lists in the order of merit of candidates coming under separate  groups in accordance with the qualifications or other conditions as  stipulated in the notification.

Provided further that for the purpose of satisfying the rules of  reservation of appointment to scheduled Castes, Scheduled Tribes  and other Backward classes also the commission may prepare such  supplementary lists as found necessary from time to time in the order  of merit of the candidates belonging to such classes. "   It is only necessary to refer to one more Rule, namely, Rule 13 which provides

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the period for which a list as above prepared shall remain in force.  The normal period  for which the list is to remain in force is one year from the date on which it is brought  into force, but it will continue to be in force till the publication of a new list after the   expiry of the minimum period of one year or till the expiry of three years whichever is  earlier.  Based on the procedure so prescribed, the KPSC prescribes the ranked merit  list in the order of merit.  The candidates are arranged strictly according to merit and are   not arranged according to community or caste or group or according to the cycle of  rotation, in reservation.  The number of candidates to be included in this rank list is fill ed  with reference to some principles followed by them, which are explained in para 4 of the  KPSC’s Writ Appeal before the High Court (pages 102-103).  The candidates are  advised for appointment as and when vacancies are reported, but following the rules of  Reservation and rotation prescribed in Rules 14 to 17 of the KSSR.

With a view to secure adequate representation of reserved communities in the  selection and thereby to effectuate the policy of reservation, the KPSC prepares what it  calls supplementary list of candidates for the different reserved communities who will be  entitled to appointment, comprising of a number equal to half the number of turns as per  the quota to each reservation group.  Thus if Muslims were entitled to ten turns in the  list, the supplementary list of Muslims will comprise of at least five Muslims.  The  advantage of this procedure was that no reservation turn will be passed over to open  competition and reservation groups will get the representation due to them, at the same  time maintaining the balance of 50:50 between open competition and reservation  candidates.

The supplementary list was only in respect of reservation categories.  There was  no supplementary list prepared in relation to open competition merit candidates for the  reason that where the last of the candidates has been advised from the rank list in the  open competition, there was no further scope for drawing on the supplementary list or  advising from that list, as all the advice hitherto was on the basis of one open  competition followed by reservation, thereby keeping the balance of 50:50.  If any more  candidates are advised from the supplementary list, the number of reservation  candidates will go up and the 50:50 rule will be violated.

The KPSC was therefore always of the view that once main rank list got  exhausted by advising the last of the candidates therein, the supplementary list also  ceased to be in force as there was no scope for advising any more candidates  therefrom without violating the 50:50 rule.      All this is explained in the Writ Appeal filed by the KPSC as also the counter  affidavit filed in this Court.  

In the case on hand, the appellant-Society is seeking to enforce the rule of  reservation to limit the same upto 50% in order to maintain the balance.  The KPSC  even stated that under Rule 15, the 50% rule of reservation should be observed in a  selection year of the ranked list.  The Rules clearly safeguards the interest of the  backward communities by providing that if no candidate was available to a particular  community in a particular year, it should be restored at the earliest after having passed  over by adjusting the post of another community, which derived extra benefit.  But in a  case of open competition candidate there is no right for restoration as set out by the  KPSC in its counter.   

A rejoinder affidavit was filed on behalf of the appellant-Society.  Para 7 of the  rejoinder affidavit is reproduced hereunder: "In Para 3 of its counter, the commission itself admits that the vacancy  created as a result of ’non joining duty’ of a candidate must be made by  advising the candidates belonging to the same group such as O.C. or B.C.   But for this the ranked list should be valid.  This is evident from the following:

As the turns in the rotation are continuous, the ’non joining duty’  (NJD) of a candidate, results in the break of the chain in the  cycle of rotation.  The break in the chain is mended by advising  a candidate, belonging to the group concerned.  This being the

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position, the turns becoming available due to ’Not Joining Duty’  of candidates is filled up first and only after filling up the ’not  joining duty’ turn the remaining vacancies are filled up following  the turns in the rotation from where it ended last time.   Candidates can be advised against the vacancies caused due to  the ’Not Joining Duty’ only from a valid ranked list.  So Not  Joining Duty vacancy resulting from the failure of candidates  must be filled up by advising candidates.  Otherwise, the  principles contained in Rule 14 to 17 KS & SSR will be defeated.

Further in annexure R1, at page 176, it is stated as follows:

According to the above judgment, vacancies arising by reason of  failure of candidates to join duty must be filled up by advising  candidates belonging to the same group O.C. or reserved.  As per the  procedure now followed by the Commission, if a candidate fails to join  duty in a particular post, that advice is cancelled and another  candidate is advised to fill up the above vacancy continuing the  rotation from where it previously ended.  As this procedure is against  the spirit of the above judgment, the Commission order that hereafter  the vacancies arising due to not joining duty of the candidates already  advised, have to be filled up by the candidates belonging to the same  group.  This will apply to all requisitions (both for special and general  recruitment) received on and after 6.11.1981.

The Commission supported the case of the petitioner Society,  in its affidavit in paras 4 and 5 also.  The Annexures R1 and R2 also  support the case of the Petitioner including that once the ranked list  expired the supplementary list also gets exhausted and that it should  not be acted upon."

However, in spite of the averments made as above, the KPSC decided to  implement the Order of the High Court thereby failed to protect the interests of the  Open Category candidates by announcing the General Circular No. 25/97 dated  22.12.1997.  The said circular is stated to be retrospective in nature and to be acted  upon w.e.f. 13.02.1997.                

As already noticed, the Government of Kerala issued a Circular on 22.12.1997  only because the KPSC had to comply with the judgment of the High Court.  Now that  we have clarified the correct position of law as canvassed by the counsel appearing for  parties, the Circular dated 22.12.1997 will have no effect.

Article 16 of the Constitution of India deals with equality of opportunity      in  matters of public employment.  The said Article reads thus:  "Article 16. (1)  There shall be equality of opportunity for all  citizens in matters relating to employment or appointment to any office  under the State. (2)  No citizen shall, on grounds only of religion, race,  caste, sex,  descent, place of birth, residence or any of them, be ineligible for, or  discriminated against in respect of, any employment or office under the  State. (3)  Nothing in this article shall prevent Parliament from making  any law prescribing, in regard to a class or classes of employment or  appointment to an office under the Government of, or any local or other  authority within a State or Union territory, any requirement as to  residence within that State or Union territory, prior to such employment or  appointment. (4) Nothing in this article shall prevent the State from making  any provision for the reservation of appointments or posts in favour  of any backward class of citizens which, in the opinion of the State,  is not adequately represented in the services under the State. (4A)  Nothing in this article shall prevent the State from  making any provision for reservation in matters of promotion, with  consequential seniority, to any class or classes of posts in the  services under the State in favour of the Scheduled Castes and the

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Scheduled Tribes which, in the opinion of the State, are not  adequately represented in the services under the State. (4B)  Nothing in this article shall prevent the State from  considering any unfilled vacancies of a year which are reserved for  being filled up in that year in accordance with any provision for  reservation made under clause (4) or (4A) as a separate class of  vacancies to be filled up in any succeeding year or years and such  class of vacancies shall not be considered together with the  vacancies of the year in which they are being filled up for  determining the ceiling of fifty per cent reservation on total number  of vacancies of that year. (5)  Nothing in this article shall affect the operation of any law  which provides that the incumbent of an office in connection with the  affairs of  any   religious or denominational institution or any member of  the governing body thereof shall be a person professing a particular  religion or belonging to a particular denomination."

Clause (4) only permits reservation for ‘backward classes of citizens’ who are  not, in the opinion of the State, adequately represented in the services of the State.  It  does not permit reservation for any person who does not belong to the category of  ‘backward classes’, nor does it enable the State to reserve posts on communal lines.

This Court in the case of Indra Sawhney etc. etc. vs. Union of India and  Others etc. etc. reported in AIR 1993 SC 477, held that the reservation of more than  50% of the vacancies as they arise in any year or a carry forward Rule will be outside  the protection of Art.16(4).  A normal Rule is that the reservation under Art. 16(4)  should not exceed 50% of the appointments or posts to be made in a particular year.   This Court has also observed that the Rule of 50% a year will be taken as the unit and  not the entire strength of the cadre or service as the case may be(paragraph 96).   If  suitable candidates are not available in the year to fill the reserved seats, the reserved  quota should not be carried forward to the next year, so as to exceed the 50% limit for  reservation (paragraphs 98-99).   The reserved vacancies should not be carried forward beyond the period of  three years at the end of which they lapse and cannot be revived and filled  retrospectively by applying the relaxed norms. State Bank of India Scheduled  Caste/Tribe Employees’ Welfare Association and Another vs. State Bank of India  and Others [(1996) 4 SCC 119].

It is also observed in the said judgment that Article 16(4) speaks of class  protection and not the protection of individuals.                 We are, therefore, of the opinion that the High Court is not correct in its  conclusion that the respondents would be entitled to appointment based on the  supplementary list.  Question No.1 is answered in the negative.  Likewise, it is not open  to the High Court to exceed percentage of reservation beyond 50% against the  statutory protection.  This question is also answered in the negative.  We, therefore,  held that once the main list is exhausted, the supplementary list has no survival of its  own.

With these observations, the appeals stand disposed of.  No costs.