REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1991 OF 2009 [Arising out of SLP(Civil) No. 20419 of 2008]

Nair Service Society …….Appellants

Versus

Dr. T. Beermasthan & Ors ……Respondents

And

CA  No. 1993 of 2009 [@ SLP(C) No. 29345 of 2008]  CA  No. 1994 of 2009 [@ SLP(C) No. 30967 of 2008]  CA  No. 2000 of 2009 [@ SLP(C) No. 2674 of 2008]                                

With

CA  No. 1992 of 2009 [@ SLP(C) No. 21139 of 2008]  CA  No. 1995-1999 of 2009 [@ SLP(C) Nos. 439-443 of 2008]  

J U D G M E N T

MARKANDEY KATJU, J.  

Civil  Appeal  Nos……….of  2009  [@   SLP(C)  Nos.  20419,  29345,   30967 & 2674 of 2008]  

1. Leave granted.

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2. These appeals have been filed against the judgment dated 23.5.2008

passed by the Division Bench of the Kerala High Court in WP No. 1697 of

2007.  The appellant society in the first  of the appeals is an incorporated

body rendering social service.  It purports to espouse the cause of merit in

appointments in government service and public sector undertakings.  The

appellant in the second of the appeals (not a party before the High Court) is

a general category candidate whose chance of selection and appointment as

a medical officer was adversely affected by the decision of the High Court.

The  appellant  in  the  third  of  the  appeals  is  the  Kerala  Public  Service

Commission, which is entrusted the task of executing the recruitment and

selection process.  The appellants in the fourth of the appeals (not parties

before the High Court) are candidates included in the rank list prepared and

published by PSC for different posts in various departments.  According to

them they would have been advised and appointed but for the interpretation

placed by the High Court in its decision in WA No. 1697 of 2008.

3. Heard learned counsel for the parties and perused the record. The writ

appeal  was  filed  before  a  division  bench  of  the  High  Court  against  the

judgment of  a learned Single  Judge  of  the  High Court  in  W.P.  (C).  No.

25171 of 2006-V dated 10.4.2007.

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4. The point that arises for decision in this appeal is whether a correct

construction  has  been  placed  on  Rules  14  to  17  of  the  Kerala  State  &

Subordinate Services Rules, 1958 (in short ‘the Rules’) by the Kerala Public

Service Commission (in short the P.S.C.), while selecting candidates for the

post of Medical Officer (ISM).  

5. The brief facts of the case are  that the Kerala Public Commission

invited applications for appointment to the post of Medical Officer (Indian

System of  Medicine)  under  the  Kerala  Government,  by  the  notification

published  in  the  Kerala  Gazette  dated  14.10.2003.  The  rank  list  was

published  on  31.12.2005.  The  writ  petitioners  were  candidates  and

included  in  the  supplementary  list  of  Muslims  at  rank  Nos.17  and  18.

According to the writ petitioners, 250 candidates were advised, out of which

198 were from the main list  and 52 from the supplementary lists.  In that

process, only 28 Muslim candidates were advised.  It is alleged that going

by Rules 14 to 17 in Part II of the Rules, 30 candidates should have been

advised from the Muslim community. If two more Muslim candidates had

been  advised,  the  writ  petitioners  would  have  got  appointment.  Feeling

aggrieved by the omission of the P.S.C to advise them, the Writ Petition was

filed by the two writ petitioners, seeking the following reliefs:  

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“(i) to issue a writ of mandamus directing the 3rd respondent to issue advice memos to the petitioners.  

(ii) to issue a writ of mandamus directing the 3rd respondent to  set  right  the  errors  and  irregularities  in  following  the principles of communal rotation and reservation in advising candidates from Ext.P1 ranked list."

6. According to the writ petitioners, rank Nos.28, 50, 82 and 111 in the

main list were Muslims and their turn had arisen under the open competition

turn. However,  they  were  advised  for  appointment  in  the  reserved

vacancies  and to that  extent  Muslim candidates  in  the supplementary list

lost their chances.  

7. According to  the  Public  Service  Commission,  the  candidates  were

advised strictly in accordance with the Rules.  The rank list was published

by the P.S.C. on 31.12.2005 by including 252 candidates from the main list

and  107  from the  supplementary  lists  of  various  reservation  candidates.

Upto 24.11.2006, 268 candidates were advised from the ranked list against

the  fresh  vacancies  and  the  non-joining  duty  vacancies  reported  by  the

appointing  authority.  It  was  also  stated  that  the  last  open  competition

candidate advised was rank No. 213 and the last Ezhava candidate advised

was rank No.226 in the main list. It was further stated that the last Muslim

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candidate advised was rank No.12 in the supplementary list  for Muslims.

According to the P.S.C., the turn of the writ  petitioners  did not  arise for

advice,  Rank No.8,  who belongs  to  the  Muslim community  was  advised

under the open competition turn, and other Muslim candidates included in

the main list were advised under the Muslim reservation turn.  

8.  The P.S.C filed an additional counter affidavit dated 1.3.2007 before

the High Court.  In the said counter affidavit, the details of the rotation were

given.   It  was  stated  therein  that  the  recruitment  to  the  post  of  Medical

Officer  (ISM)  ended  at  Main  Rotation  VIII  39  OC.   For  the  present

selection, the rotation started at MR VIII 40 OBC and ended at MR XI  7

OC while working in the rotation for the 267 fresh vacancies reported.  As

on 13.2.2007,  287 candidates  were advised  including 20 NJD vacancies.

The details of Muslim candidates advised are also given.  Rank No.8, who

was a Muslim candidate, was advised under the open competition turn. The

last Muslim candidate advised from the main list was rank No.252. From

the  supplementary  list,  14  Muslim  candidates  were  advised.  The  P.S.C

emphatically refuted the contention of the writ petitioners that rank Nos. 28,

50, 82 and 111 should have been advised under the open competition turn.

It is asserted that the advices were made strictly in accordance with Rules

14 to 17 of the Rules.  

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9. The learned Single Judge, who heard the Writ  Petition,  allowed it,

holding that the method adopted by the P.S.C. was not in accordance with

the Rules.  He held that in view of Rule 14(b) of the Rules, the members of

Scheduled  Castes,  Scheduled  Tribes  and  Other  Backward  Classes  are

entitled to be considered for appointment under the open merit quota and if

any  candidate  belonging  to  those  communities  is  appointed  in  the  open

merit quota, the number of seats reserved for the said communities shall not

be affected by the same. The learned Judge held that  other provisions of

Rules 15 to 17 should be read subject to Rule 14(b). Based on that finding,

the learned Judge directed the P.S.C to invoke its power under Rule 3(c) of

the  Rules  and  modify  the  advices  appropriately,  so  that  the  Muslim

candidates   who  got  appointment  under  the  reservation  quota,  but  who

would have got appointment under the open competition quota, are adjusted

against  the  open  competition  quota  and  in  their  place,  other  Muslim

candidates  are  advised  under  the  reservation  quota.  Aggrieved  by  the

judgment of the learned Single Judge, the P.S.C  filed the Writ Appeal No.

1697 of 2007.  

10. According  to  the  P.S.C.,  the  unit  of  appointment  for  working  out

rotation is 20, as provided under Rule 14(a). It was alleged that the learned

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Single Judge failed to  comprehend the impact  of the said provision.  The

P.S.C is bound by Rule 14(a) in working out the communal rotation. It was

also contended that none of the affected candidates was impleaded in the

Writ Petition and for that reason alone, the Writ Petition should have been

dismissed.  

11. During the pendency of the Writ Appeal, notice was taken out to all

affected  persons  by  publishing  notice  dated  9.10.2007  in  all  editions  of

Kerala Kaumudi daily dated 22.10.2007, published from Kerala. In the Writ

Appeal,  the  Nair  Service  Society  got  itself  impleaded  as  additional  7th

respondent.  It  supported  the  contentions  of  the  P.S.C  in  the  appeal.

However, the Division Bench of the High Court disposed off the writ appeal

broadly upholding the judgment  of  the  learned  Single  Judge.   The High

Court held that where the number of vacancies reported is more than 20, the

unit of appointment shall be the number of vacancies reported and not 20.  It

held that if reservation is applied to a 20 point roster, as done by P.S.C., it

will  result  in  denial  of  reservation  to  eligible  candidates  as  per  the

percentage of reservation set apart for them and result in candidates under

merit  quota  cornering  more vacancies  than what  was due to  them at  the

expense of communities eligible for reservation.  The division bench held

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that Rule 14(a) would apply only where vacancies reported are less than 20.

The division bench issued the following directions :

“The three advices made on 1.2.2006, 17.4.2006 and 17.7.2006 of  161,  30  and  40  vacancies  respectively  shall  be  reopened notionally.  The  turns  of  the  candidates  shall  be  re-arranged, taking  the  vacancies  as  three  blocks  of  161,  30  and  40 respectively and the three advice lists  shall  be notionally re- arranged, as provided in the third proviso to Rule 14(c). Every alternative vacancy in  the  three blocks  of  vacancies  shall  be firstly  allotted  to  open  competition  candidates  and  the remaining  vacancies  to  the  communities  eligible  for reservation, subject to the rule that reservation in a particular year shall not exceed 50%. As a result, if it is found that any of the candidates, eligible for reservation, were though entitled to be advised but not actually advised, they shall be advised for appointment by the P.S.C to the appointing authority. For the purpose of seniority, the advice of the candidates so made will take effect only from 10.4.2007, the date on which the learned Single  Judge  rendered  the  decision.  It  is  clarified  that  the advices and the appointments  of  candidates  already made by the P.S.C as per the above mentioned three advices shall not be affected by this judgment. In other words, relief is granted in this  Writ  Appeal  without  disturbing  the  candidates  already advised before 10.4.2007. The candidates additionally advised as per this judgment shall be accommodated by the appointing authority  in  the  vacancies  to  which  candidates  were  advised after 10.4.2007 or were reported after 10.4.2007, but before the main  list  exhausted.  The  advice  of  candidates,  if  any,  made pursuant to the interim order of the Division Bench staying the judgment of the learned Single Judge, being definitely subject to the final orders in the Writ Appeal, can be re-opened by the P.S.C., to implement this judgment.  The P.S.C shall undertake and complete the exercise and advise the candidates as directed above within one month from the date of production of a copy of  this  judgment.  The  appointing  authority  shall  make consequential  appointments  without  further  delay.  The  Writ Appeal is disposed of as above”.

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12. Before dealing  with  the  contentions  of  the learned counsel  for  the

parties we may refer to the relevant rules which are rules 14 to 17 of the

rules.  The relevant part of these rules are quoted below:-  

“14. Reservation of appointments :- Where the Special Rules lay down that the principle of reservation of appointments shall apply to any service, class or category, or where in the case of any service, class or category for which no Special Rules have been  issued,  the  Government  have  by  notification  in  the Gazette  declared  that  the  principle  of  reservation  of appointments  shall  apply  to  such  service,  class  or  category, appointments  by  direct  recruitment  to  such  service,  class  or category shall be made on the following basis:

(a) The  unit  of  appointment  for  the  purpose  of  this rule  shall  be  20,  of  which  2  shall  be  reserved  for Scheduled Castes and Scheduled Tribes and 8 shall  be reserved  for  the  Other  Backward  Classes  and  the remaining 10 shall be filled on the basis of merit:

Provided  that  out  of  every  five  posts  reserved  for Scheduled Castes and Scheduled Tribes, one shall go to Scheduled Tribe candidate and the remaining four shall go to Scheduled Caste candidates and in the absence of a candidate to fill up the post reserved for Scheduled Tribe candidates,  it  shall  go to a Scheduled Caste  Candidate and vice versa.

(a) The claims of members of Scheduled Castes and the

Scheduled Tribes and Other Backward Classes shall also be considered for the appointments which shall be filled on the basis of merit and where a candidate belonging to a Scheduled Caste, Scheduled Tribe or Other Backward Class  is  selected  on  the basis  of  merit,  the  number of

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posts reserved for Scheduled Castes, Scheduled Tribes or for Other Backward Classes as the case may be, shall not in any way be affected.  

(c) Appointments under this rule shall be made in the order  of  rotation  specified below in  every cycle  of  20 vacancies.

1. Open competition 2. Other Backward Classes 3. Open competition 4. Scheduled Castes and Scheduled Tribes 5. Open competition 6. Other Backward Classes 7. Open competition  8. Other Backward Classes 9. Open competition 10. Other Backward Classes 11. Open competition 12. Scheduled Castes and Scheduled Tribes 13. Open competition 14. Other Backward Classes 15. Open competition  16. Other Backward Classes 17. Open competition 18. Other Backward Classes 19. Open competition 20. Other Backward Classes  

Provided that the fourth turn in the third rotation and  the  twelfth  turn  in  the  fifth  rotation  shall  go  to Scheduled  Tribe candidates  and the  fourth  and twelfth turns in the first, second and fourth rotations, the twelfth turn in the third rotation and the fourth turn in the fifth rotation shall  go to Scheduled Caste candidates  and in the absence of a candidate for appointment against  the turn allotted for Scheduled Tribe candidates, it shall go to a Scheduled Caste candidate and vice versa:

…………………………………………….

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Provided also that in preparing the list of eligible candidates to be appointed under this rule applying the rotations specified above in every cycle of 20 vacancies, the  candidates  eligible  to  be  selected  on  open competition  basis,  that  is,  1,3,5,7,9,11,13,15,17 and 19 shall  be  selected  first  and,  then  the  candidates  for  the reservation turns, out of those available in the ranked list in the particular groups having regard to their ranks. In finalizing  the  select  list  any  candidate  of  the  same community selected on open competition turns if found to be below in the order of the candidates selected from the same community on the basis of reservation, for the fixation of ranks as per rule 27 of these rules, candidates of the same community obtaining higher marks shall be interchanged with the candidates of the same community in the reservation turn for the purpose of ranking.   

(d)    Notwithstanding  anything  contained  in  this  rule, posts  to  which  appointments  are  made  by  direct recruitment from a common ranked list  prepared on the basis of a common test or interview or both, shall be grouped together for the purposes of observance of the rules relating to reservation of appointments.

(e)    A  supplementary  list  of  sufficient  number  of suitable  candidates,  not  less  than  five  times  the reservation quota, if available, from each community or group of communities for the purpose of satisfying the reservation  quota,  shall  be  prepared  and  published.

   xx   xx   xx   xx   xx    xx   xx     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.   Notwithstanding anything contained in any other provisions  of  these  rules  or  in  the  special  rules  if  a suitable candidate is not available for selection from any particular community or group of communities specified in  the  Annexure,  such  vacancy  shall  be  kept  unfilled,

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notified  separately  for  that  community  or  group  of communities for that selection year and shall be filled by direct  recruitment  exclusively  from  among  that community  or  group  of  communities.   If  after  re- notification,  repeatedly for not  less  than two times, no suitable  candidate  is  available  for  selection  from  the respective  community  or  group  of  communities,  the selection shall  be made from available other Backward Classes candidates.  In the absence of Other Backward Classes  candidates,  the  selection  shall  be  made  from available  Scheduled  Castes  candidates  and  in  their absence,  the  selection  shall  be  made  from  available Scheduled Tribes candidates.  

Explanation:- One selection year for the purpose of this rule shall be the period from the date on which the rank list of candidates comes into force to the date on which it expires.

(b) If a suitable candidate is not available for selection from the group of communities classified as “Scheduled Castes”  in  the  turn  allotted  from  such  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.

I The  benefit  of  the  turn  forfeited  to  Scheduled Castes or Scheduled Tribes communities by reason of it being passed over under sub-rule (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  Scheduled  Caste  or  Scheduled  Tribe community  that  derived  the  extra  benefit  by reason  of such passing over.   

17.Reservation to a category of posts  shall  not  exceed 50% of the total number of vacancies for which selection is resorted to in a selection year:

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Provided  that  the  50% ceiling  to  reservation  specified above shall not apply to the filling up of any number of reserved vacancies kept unfilled and notified separately as per sub-rule (a) of rule 15 to be filled exclusively by direct recruitment from among a community or group of communities:

Provided further that such class of vacancies to be filled up in that year or in any succeeding year or years shall not be considered together with the vacancies of the year in  which  they  are  being  filled  up  for  determining  the ceiling of 50%  of the total number of vacancies of that year.

16. There shall be sub-rotation among major groups of Other Backward Classes.

17. (1) The grouping of Other Backward Classes for the above purpose shall be as indicated below :

1. Ezhavas, Thiyyas and Billavas 2. Muslims 3. Latin Catholics and Anglo Indians 4. Nadars (Hindu Nadars and Nadars included

in S.I.U.C) 5. Scheduled Caste Converts to Christianity 6. Viswakarmas 7. Dheevaras 8. Other  Backward  Classes  put  together  i.e.

communities other than those mentioned in items 1  to  7  above  included  in  the  list  of “Other Backward Classes”.

(2)  (a)  The  40%  reservation  allowed  to  Other Backward  Classes  shall  be  distributed  among  the different  groups  of  Backward  Classes  in  the following proportion:-

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(i) For  direct  recruitment  to  posts  included  in  the Kerala Last Grade Service.

Out  of  every  40  appointments,  11  shall  be  given  to Ezhavas, Thiyyas and Billavas, 10 to Muslims, 4 to Latin Catholics and Anglo Indians, 3 to Nadars (Hindu Nadars and Nadars included in S.I.U.C), 2 to Scheduled Caste Converts  to  Christianity,  2  to  Viswakarmas,  2  to Dheevaras  and  6  to  Other  Backward  Classes  put together”.     

                xx xx xx xx xx xx xx

13. The  question  in  this  case  is  about  the  interpretation  of  rules 14

to 17 of the Rules.

14. A bare  perusal  of  Rule  14  (a)  of  the  Rules  shows  that  a  unit  for

appointment for the purpose of Rule 14 shall be 20, of which 2 are reserved

for SC/ST candidates and 8 for OBC candidates, while the remaining 10

shall be on the basis of open merit.   The proviso to Rule 14 (a) states that

out  of  5  posts  reserved  for  SC/ST  candidates  one  post  shall  go  to  ST

candidates and the remaining to SC candidates, and in the absence of ST

candidates it shall go to a SC candidate and vice versa.   

15. Rule  14  (b)  however,  states  that  if  a  SC/ST/OBC candidate  is  so

meritorious  that  even  if  he  is  not  treated  as  SC/ST/OBC he  would  still

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qualify in the open merit  then he would not  be treated as a SC/ST/OBC

candidate and he will be adjusted against the 10 seats meant for open merit

candidates.   In other words, he will  not  take away the seats reserved for

SC/ST/OBC candidates.  

16. Some  of  the  learned  counsel  appearing  for  the  respondents  have

submitted that Rule 14 (b) will prevail over rule 14 (a).  We do not agree. In

our opinion a harmonious interpretation has to be given to Rules 14 (a) and

Rule 14 (b), and neither prevails over the other.

17. It may be noted that rule 14 (a) states that the unit of appointment for

the purpose of the Rule shall be 20.  A specific number 20 has been stated in

Rule 14 (a).  Rule 14 (a) does not state that 50% seats are for open merit

candidates,  40% for OBC candidates and 10% for SC/ST candidates.   In

other words, Rule 14 (a) does not mention the percentage of seats at all, but

instead it mentions a specific number, viz., 20.

18. In our opinion reading Rules 14 (a) and (b) along with Rule 14 (d) of

the Rules, the correct interpretation of the Rules is that a common rank list

as per merit for all the successful candidates in respect of selection to the

vacancies notified by the Public Service Commission should be prepared,

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and reservation should be applied with reference to units of 20.  That is, the

first 20 most meritorious candidates, that is, from Serial No. 1 to 20 in that

common rank list should first be considered for the purpose of reservation.

At  that  stage,  candidates  from  Serial  No.  21  and  below  are  not  to  be

considered.  

19. Out of these 20 most meritorious candidates, the appointments have

then to be made in accordance with Rule 14 (c),  which has been quoted

above.  

20. It is only after the selections have been made against these first 20

most  meritorious  selected candidates,  that  the P.S.C. should  move to  the

next batch of 20 in the rank list i.e., from Serial No. 21 to 40, and the same

process is to be repeated again.  Thereafter the third batch of 20 candidates

i.e.,  from Serial  No.  41  to  60  should  be  considered  and  selections  and

appointments made as per Rule 14 (a).

21. Rule  14  (b)  of  the  Rules  only  means  that  in  these  batches  of  20

selected candidates the SC/ST or OBC candidate who is so meritorious that

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he qualified even in the open merit then he will be given an open merit seat

and he will not take away any of the reserved seats.   

22. Some of the learned counsel for the respondents submitted that this

will  cause  hardship  to  some  SC/ST/OBC  candidates.  In  our  opinion

hardship is not a relevant consideration when the meaning of the Rule is

plain and clear.  The literal rule of interpretation applies in this case.  

23. In our opinion the effect  of the High Court’s  decision is  to read a

proviso into rule 14(a) of the Rules as follows:  “provided that where the

number of vacancies reported to the Commission for advice exceeds 20, the

unit  of  appointment  shall  be  the  number  of  vacancies  reported  to  the

Commission”.  This is not a legitimate method of interpretation. The High

Court  could  not  have  re-written  Rule  14(a)  in  this  manner  based  on  its

conjectures and surmises as to what the legislature intended.   It is now well

settled  by  this  Court  in  Dr.  Ganga  Prasad  Verma vs.  State  of  Bihar

(1995) Supp 1 SCC 192 (para 5) and  Trading Engineers vs.  Sales Tax

Officer (1978) 1 SCC 636 (para 7) that where the language of the Act or the

Rules  is  clear  and explicit,  the  words  of  the  statute  alone  represents  the

intention of the legislature.  In fact, the effect of the High Court’s reading

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these words into Rule 14(a) is to increase the total reservation in favour of

the reserved categories beyond 50% and to dilute the merit of those chosen

to  ever  lower  levels  in  violation  of  Rule  15  of  the  Rules  which  only

embodies the well settled constitutional principle laid down by this Court in

Indra Sawhney vs. Union of India (1992) Supp 3 SCC 215 (para 809).

24. Rule 16 provides that there shall be sub-rotation among major groups

of OBCs.  Rule 17(1) lists 8 major groups of OBCs for purposes of Rule 16,

i.e. for sub-rotation among major groups of OBCs.  Rule 17(2) provides the

proportion  in  which  the  40%  reservation  in  favour  of  OBC  is  to  be

distributed among the major OBC groups, which goes up to serial No. 40.

Rule 15(a) provides an integrated cycle combining the rotation in Rule 14(c)

(i.e. the rotation of candidates from the Open Competition, OBC and SC/ST

in a unit of appointment of 20) and the sub-rotation in Rule 17(2) among the

OBCs.   

25. It  is  relevant  to  note  that  the  Commission  has  been  advising

appointments based on a unit of 20 as provided in Rule 14(a) for the last

more than 30 years.  In fact, this Court in Nair Service Society vs. District

Officer, Kerala Public Service Commission (2003) 12 SCC 10 (para 22)

had  referred  to  the  procedure  followed  by  the  Commission  in  advising

18

appointments  based  on  the rank list  for  the  open merit  category and the

supplementary list  for the reserved category.  In our opinion an accepted

practice which has been followed by the P.S.C. for so long a period should

not  be  lightly  disturbed,  unless  there  are  compelling  reasons.   If  two

interpretations of the Rules are possible, the interpretation which favours

the practice which was being followed for a long period should ordinarily

be preferred unless it is clearly in violation of the Rules.  

26. In our opinion, the High Court also erred in placing undue reliance on

the fact that the annexure to Rule 15 containing the integrated cycle is based

on  a  roster  of  100  points.   The  terms  “integrated  cycle”  and  “unit  of

appointment”  are  entirely  different  concepts.   The  rationale  for  the

integrated cycle based on a 100-point roster is merely to give effect to the

principle  of  rotation  and  sub-rotation  among  the  reserved  category

candidates in respect of vacancies that arise at different points of time over a

period of one year to a maximum of three years  that  the list  is  in  force.

Further, the sub-rotation among OBCs in Rule 17(2) with reference to 40%

reservation in favour of OBC and the requirement in the proviso to Rule 14

(a) that one out of every five posts reserved for SC/ST shall go to ST and

the  remaining  to  SC,  require  an  integrated  cycle  of  Open  Competition

candidates  (constituting  50%),  OBC  candidates  (constituting  40%)  and

19

SC/ST candidates (constituting the remaining 10% reservation) which can

only be reflected in a 100-point roster.  

27. In our opinion, the concept of an “integrated cycle” could never be

the basis for rendering the “unit of appointment” of 20 in Rule 14(a) otiose

in  cases  where  the  number  of  vacancies  reported  to  the  Kerala  Public

Service Commission exceeds 20.  By drawing a distinction between cases

where reported vacancies are 20 or less and cases where reported vacancies

exceed 20, the High Court has attempted to fill a perceived “casus omissus”

on  the part  of  the  legislature  in  Rule  14(a)  and,  in  effect,  has  written  a

proviso into the rule that the unit of appointment would change where the

total number of vacancies reported exceed 20.   It is a settled principle of

interpretation that Courts should not add or delete words in a statute or rule.  

28. Normally vacancies are reported to the Commission on various dates

and in different numbers.   Even in the present case, the Commission had

received requisitions on various dates between February 2003 and January

2007  ranging  from  3  vacancies  to  44  vacancies.   This   Court  in  The

University of Cochin vs. Dr. N. Raman Nair (1975) 3 SCC 628 (para 6),

has observed that Rule 14(c) lays down a scheme of rotation for every block

20

of  20  vacancies  and this  rule  must  be applied  in  the  order  in  which the

vacancies  occur.   Therefore,  the  Commission  cannot  wait  until  the  total

number  of  vacancies  is  reported  to  the  Commission  so  as  to  determine

whether the vacancies have exceeded 20 or not.    

29. In fact, the High Court has, by a process of interpretation, rendered

Rule 14(a) redundant and otiose, even though the validity of the rule was

not the subject matter of challenge in any of the writ petitions.

30. In our opinion, Rule 14(b) merely says that the members of OBC and

SC/ST  shall  be  considered  for  appointment  in  the  Open  Competition

category, if  found meritorious,  and such appointment  shall  not  affect  the

number of seats reserved for the OBCs and SC/ST.  In our opinion, Rule 14

(b) ought to be read consistently with Rule 14(a) to the extent that where an

OBC or SC/ST candidate is  so placed in the merit  list  that  he would be

advised  against  the  Open  Competition  category,  i.e.  between  1,3,5,

7,9,11,13,15,17,19  the  seats  in  the  reserved  category,  i.e.  between  2,4,6,

8,10,12,14,16,18,20 shall not reduce to that extent.  The members of OBC

and SC/ST would still be entitled to 40% and 10% reservations respectively.

On  the  other  hand,  if  Rule  14(b)  is  interpreted  to  increase  the  unit  of

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appointment  from  20  to  the  number  of  vacancies  where  the  vacancies

exceed 20, Rule 14(a) would be rendered redundant and otiose.  

31. In our opinion, the High Court erred in placing undue reliance on the

fact that the annexure to Rule 15 containing the integrated cycle is based on

a roster of 100 points.  As already stated above, the terms integrated cycle

and unit of appointment are entirely different concepts.  The rationale for

the  integrated  cycle  of  100-point  roster  is  merely  to  give  effect  to  the

principle  of  rotation  and  sub-rotation  among  the  reserved  category

candidates  to  vacancies  that  arise  at  different  points  of  time  during  the

period of 1 year to 3 years that the list is in force.     

32. In our opinion the High Court erred in proceeding on the basis that a

large number of vacancies totaling to 267 were reported to the Commission

together.   As per  the affidavits  filed by the Commission before the High

Court, the requisitions were received during the relevant period at various

stages.  The details of the vacancies reported during the present selection

and the turn in which rotation started and ended at each stage of working

out the rotation were as under:

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Letter No. & Date No. of vacancies

Rotation started/ended Date  of advice

D3-7204 02 dt. 27/2/03 3 ……………dt. 10/10/03

44

D3-18859 03 dt.25/3/04 45 ……………..dt.15/9/04 15 MR VIII 40 OBC ..…………..dt.30/12/04 15 Do ……………dt. 14/2/05 3 MR X 1 OC 01/02/06 ……………dt.21/6/05 16 …………..dt.05/9/05 20 D3 2885 06 dt. 08/3/05 30 MR X 2E  to MR X 31

OC  17/4/06

D3 2885 06 dt. 18/6/06 40 MR X 72 32 SC to MR & 71 OC

17/7/06

D3 18859 03 dt. 28/6/06 17 (10 NJD & 7

fresh)

MR X 72 SC to  MR X 77 OC

17/7/06

D3  2884  06  03  dt. 07/7/06

1 NJD 14/8/06

D3 12473 06 dt. 08/9/06 7 MR X 78E to MR X 85 OC

28/9/06

D3  12473  06  dt. 12/10/06

7 MR Y 78E to MR X 85 OC

28/9/06

D3 2884 06 dt. 07/11/06 5 NJD 24/11/06 D3  12473  05  dt. 16/11/06

1 NJD 19/12/06

D3  12473  06  dt. 04/12/06 & 21/12/06

15 MR X 92 ST to MR XI 7 OC

11/01/07

D3 2884 06 & 12473 06 dt. 23/01/07  

3 NJD 13/02/07

The details of candidates belong to Muslim community advised from the ranked list are as follows:

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Rank No.

Name Turn in which advised Date  of advice

1 Suni Babu P.P. MR VIII 36 M 01/02/06 8 Muhseena H MR VIII 53 OC 01/02/06 28 Shahid M MR VIII 46 M 01/02/06 50 Assainar M MR VIII 56 M 01/02/06 82 Simi Devan MR VIII 66 M 01/02/06 111 Shamsad P MR VIII 76 M 01/02/06 132 Abdul Rafeeq O.P. MR VIII 80M 01/02/06 149 Jaseena Beegom T MR VIII 86 M 01/02/06 161 Sumayya V.K. MR VIII 96 M 01/02/06 170 Vaheeda Rehman A MR IX 6 M 01/02/06 183 Benazir K.I. MR IX 16 M 01/02/06 185 Nazeema P.K. MR IX 26 M 01/02/06 192 Shabna Beegum MR IX 30 M 01/02/06 220 Fakrudeen A MR IX 36 M 01/02/06 221 Nadarsha P.K. MR IX 46M 01/02/06 235 Shaik Anwar KS MR IX 56M 01/02/06 246 Abdul RV Pottammal MR IX 66 M 01/02/06 247 Shamsudeen K MR IX 76M 01/02/06 252 Bensha P Bashir MR IX 80 M 01/02/06

Supplementary List – Muslim

1 Abdul Razak P MR IX 80M 01/02/06 2 Bindu N Lal MR IX 96 M 17/04/06 3 Shahina P.K. MR X 6 M 17/04/06 4 Rehana P MR X 16 M 17/04/06 5 Muhas K Kareem MR X 26 M 17/07/06 6 Anitha A Khader MR X 30 M 17/07/06 7 Murunnisa N K MR X 36 M 17/07/06 8 Arifa V P MR X 46 M 17/07/06 9 Sareena N MR X 56 M 17/07/06 10 Sahida T MR X 66 M 17/07/06 11 Raseena Beevi M MR X 76 M 28/09/06 12 Rahina V K MR X 80 M 06/11//06 13 Shemi K Mohammed N MR X 86 M 11/01/07 14 Beena S MR X 96 M 11/01/07

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33. This Court in University of Cochin vs. Dr. N. Raman Nair (1975) 3

SCC 628 has observed that Rule 14(c) lays down a scheme of rotation for

every block of 20 vacancies and this rule must be applied in the order in

which the vacancies occur.  

34. This  Court  in  Nair  Service  Society vs.  District  Officer,  Kerala

Public Service Commission (2003) 12 SCC 10 (para 22) had the occasion

to examine the Rules, the ranked merit list and the supplementary reserved

list  prepared  by  the  Commission,  and  the  principles  followed  by  the

Commission in making the appointments.   This Court observed as follows:  

“….Based  on  the  procedure  so  prescribed,  KPSC prescribes the ranked merit list in the order of merit.  The candidates  are  arranged  strictly  according  to  the 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 filed with reference to some principles followed by them, which are explained in para 4 of KPSC’s writ appeal before the High Court (pp. 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”.

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The Commission has advised appointments based on a unit of 20 for the last

more than 30 years.   The principle of reservation, rotation and sub-rotation

are all applied based on this unit of 20.  

35. Several decisions have been cited before us by the respondents, but it

is  well  established  that  judgments  in  service  jurisprudence  should  be

understood  with  reference  to  the  particular  service  rules  in  the  State

governing that field.  Reservation provisions are enabling provisions, and

different  State  Governments  can  have  different  methods  of  reservation.

There is no challenge to the Rules, and what is challenged is in the matter of

application alone.  In our opinion the communal rotation has to be applied

taking 20 vacancies as a block.

36. The  High Court  ought  to  have  considered  that  the vacancies  were

reported to the Commission in various spells and filling up the turn of a

community  is  a  continuous  process,  and  the  Commission  cannot  wait  to

advise a reservation candidate till  his turn arises for advice and keep the

community  turn  unfilled  or  advise  a  candidate  lower  in  rank retaining  a

candidate  who  is  above  him  in  the  list  by  anticipating  reporting  of

vacancies.

26

37. In our opinion the Commission has correctly advised candidates in

the order in which the requisitions were received, and that too by correctly

applying the principle contained in the rules.

38. Rule 14 prescribes the procedure for implementation of reservation of

appointments.  Clause (a) of this Rule prescribes that unit of appointment

for the purposes of this Rule shall be 20 whereas clause (c) specifies the

order of rotation in every cycle of 20 vacancies.  Though the proviso to the

sub-rule provides that candidates selected on open competition turns can be

interchanged with the candidates selected on the basis of reservation, the

same is permissible within the unit of 20 only.  

39. The  High  Court  in  paragraph  15  of  the  impugned  judgment  has

observed :  

“15. The point to be decided is whether such application of rotation will run counter to any of the provisions of Rules  14 to  17 or  whether  that  will  give effect  to  the intention of the said Rules. We are of the view that none of the above said Rules stand in the way of applying the rotation as above by allotting every alternative vacancy to  merit  quota  and  reserved  quota.  Rule  14(a) contemplates  a  situation  of  reporting  of  vacancies numbering  less  than  20.  There  are  hundreds  of  posts where the number of vacancies reported will normally be below 20  at  a  particular  point  of  time.  Vacancies  are

27

reported in large numbers only in the case of L.D.Clerks, Police Constables, Medical Officers etc. When vacancies numbering more than 20 are reported and if reservation is applied as stated above by allotting every alternative vacancy firstly to open competition candidates  and the remaining  vacancies  to  candidates  eligible  for reservation, the same will effectuate the purpose of the rules  of  reservation.  The  members  of  Other  Backward Classes will  get 40% of the vacancies meant for them. We are  of  the  view that  for  canvassing  for  the  above position, the writ petitioners need not challenge any of the Rules. A proper construction of the Rules which will advance  the object  of  them will  mandate  the  P.S.C to make the advices as stated above. Any other application of the Rules will amount to ultra vires and unauthorized action."

40. With respect we are unable to agree with interpretation of Rules 14 to

17 given by the High Court in the impugned judgment.   

41. It may be mentioned that there is no challenge to the validity of these

Rules.  Hence we have to read the Rules as they are.   In our opinion, the so-

called purposive  interpretation sought  to  be placed  on  the Rules  by the

High Court was misconceived and is, therefore, not acceptable.  

42. The High Court in its observation quoted above has sought to find out

the intention of Rules 14 to 17.  In our opinion the question of finding the

intention arises only when a statute is not clear.  If the statute is clear as it is

28

in this case, it has to be read as it is, and the literal rule of interpretation is to

be applied.  In our opinion intention seeking is ordinarily to be done only

when the statute is not clear.  

43. It  may  be  mentioned  that  reservation  provisions  are  enabling

provisions.  In other words,  the State is not bound to make a reservation,

but  it  is  empowered to  do so in its  own discretion vide  M. Nagraj and

Others  vs.  Union of India and others (2006) 8 SCC 212.  In paragraph

102 of the said judgment, the Constitution Bench of this Court  observed:

“The impugned constitution amendments are enabling in nature. They leave

it to the States to provide for reservation.”

44. The  same view has  been  taken  in  paragraphs  107  and  123  of  the

aforesaid decision.  

45.  Different  State  Governments  in  the  country  may  have  different

methods for providing reservations, and these will be valid as long as the

method  adopted  by  a  particular  State  Government  does  not  violate  any

constitutional provision or statute.  It is not for this Court to decide on the

wisdom or otherwise of the said method of reservation.  This Court should

exercise judicial  restraint  and not  interfere with  the  same unless  there is

29

some clear illegality.  In our opinion the method prescribed by the Rules

made by the State Government suffers from no infirmity or illegality, and

hence the High Court acted wrongly in allowing the Writ Petition.  We are

clearly of the opinion that the High Court has placed a wrong interpretation

on the relevant Rules.  

46. In  our  opinion  the  High  Court  was  in  error  in  directing  the

Commission to ignore the express mandate of Rule 14 (a).  The High Court

was wrong in holding that the said Rule only applies when the vacancies are

less  than  20.   In  fact  the  direction  of  the  High  Court  in  the  impugned

judgment really amounts to treating the entire number of vacancies which in

the present case is 250 as one unit, which is against the express mandate of

Rule 14(a).  Thus the High Court has really amended Rule 14(a) and (c) of

the Rules, which was not in its jurisdiction.  It is only the legislature which

can amend the law, and not the Court.  

47. In our opinion the correct interpretation of Rule 14 to 17 is that the

Public Service Commission should adopt each batch of 20 candidates as a

separate unit for the purpose of reservation and not take the entire select list

as one unit.  

30

48. It is true that reserved category candidates can compete for the non-

reserved post as provided for in Rule 14 (b), which only provides what has

already been laid down by the Constitution Bench of this Court  in  R.K.

Sabharwal and others vs. State of Punjab and others (1995) 2 SCC 745.

Rule 14(b), however, will apply only to units of 20 candidates, and not for

the total vacancies.     

49. For  the  reasons  given  above  the  appeal  is  allowed,  the  impugned

judgment of the Division Bench of the Kerala High Court as well as of the

learned Single  Judge,  are  set  aside  and the Writ  Petitions  are  dismissed.

There shall be no order as to costs.  

CA  No…..…..of 2009 [@ SLP(Civil) No. 21139 of 2008]  

50. Leave granted.  The appellant was one of the candidates in the Rank

list  published by the  P.S.C.  for  appointment  to  the  post  of  High  School

Assistant (Natural Science – Malayalam Medium).  She is a convert from a

Scheduled Caste to Christianity and claimed benefit of reservation available

31

to Other Christians.  She approached the High Court in WP No. 12816/2007

alleging that P.S.C. had advised an open competition category candidate for

the post reserved for ‘OX’ category for which she was an eligible candidate.

Her grievance is that while disposing of her petition along with WA No.

1697/2007, the High Court by enunciating the legal principle incorrectly,

had wrongly denied  her relief on the erroneous impression that her turn did

not  arise  before  the  expiry  of  rank  list.   As  we  are  holding  that  the

interpretation  of  Rules  14  to  17  by  the  High  Court  was  erroneous,  the

dismissal of her writ petition has to be upheld, though on a different ground.

CA  No…..…..of 2009 [@ SLP(Civil) Nos. 439-443 of 2008]  

51. Leave granted.  These appeals are filed by P.S.C., being aggrieved by

the common order dated 11.11.2008 of a learned Single Judge disposing of

WP(C) No. 25077, 26089, 24158, 28435 and 16599/2008 (filed by some

candidates after the rank lists were published and advices were made) with a

direction to the P.S.C. to apply the principles  laid down in the judgment

dated 23.5.2008 of the Division Bench in WA No. 1697/2007 to all advices

made by P.S.C. on or after 23.5.2008 in respect of bulk vacancies exceeding

20 in number reported to it in a given requisition (or where the requisition

received  from  the  appointing  authority  on  a  given  day  exceeds  20

32

vacancies).  Following our decision in the Civil Appeals arising from WA

No.  1697/2007,  these  appeals  are  allowed  and  the  writ  petitions  are

dismissed.  No costs.

…...……………………J (R.V.

Raveendran)  

…...……………………J (Markandey Katju)

New Delhi;  30th March, 2009

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