AJITHKUMAR P AND ORS Vs. REMIN K R AND ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 8536 of 2015, Judgment Date: Oct 13, 2015

In view of the legal position  enunciated  by  this  Court  in  the
aforesaid cases the  conclusion  is  irresistible  that  a  student  who  is
entitled to be admitted  on  the  basis  of  merit  though  belonging  to  a
reserved  category  cannot  be  considered  to  be  admitted  against  seats
reserved for reserved category.

It is application of the above principle which is the  subject  matter
of dispute in the instant appeal.  As already  noticed,  appellants  secured
good marks in the Rule 3 examinations, therefore  they  should  be  entitled
for appointment against open category posts by operation  of  the  principle
of  law  laid  down  in  the  above-mentioned  judgments.

Non-Reportable

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8536 OF 2015
(Arising out of Special Leave Petition (Civil) No.28428 of 2014)

Ajithkumar P. & Others ... Appellants

Versus

Remin K.R. & Others … Respondents

WITH

CIVIL APPEAL NO. 8537 OF 2015
(Arising out of Special Leave Petition (Civil) No.28743 of 2014)

Girilal D. ... Appellant

Versus

Nidheesh B. & Others … Respondents

J U D G M E N T

Chelameswar, J.

1. Aggrieved by the common judgment dated 08.08.2014 of the High Court
of Kerala in O.P.(KAT) No. 239 of 2014 and O.P.(KAT) No. 112 of 2014, the
unsuccessful petitioners therein preferred these two special leave
petitions.

2. Leave granted.

3. The above-mentioned Original Petitions (writ petitions) were filed
aggrieved by the order dated 20.02.2014 passed by the Kerala Administrative
Tribunal (for short 'the Tribunal') by which the Tribunal disposed of the
three original applications O.A. Nos.2395/13, 2587/13 and 58/14.

4. The background facts of the instant litigation are as follows:

The Kerala Public Service Commission (for short 'the Service
Commission') issued a notification dated 28.09.2007 inviting applications
from the qualified candidates for appointment to the posts of Sub-Inspector
(Trainee). The notification did not specify the number of posts sought to
be filled up but mentioned that the posts are sought to be filled up from
three sources. They are,
“(1) “Category No.315/2007 – Open market
(2) Category No.316/2007 – Graduate Ministerial Staff of Police and
Vigilance Department, Fingerprint Experts, Fingerprint Searchers of the
Finger Print Bureau.
(3) Category No.317/2007 – Graduate Police Constables, Head Constables
and officers of the corresponding rank in the police Department.”

5. It is also specified in the notification that the vacancies will be
apportioned among the three categories mentioned above in accordance with
certain orders issued earlier by the Government of Kerala, the details of
which are not necessary for the purpose of this judgment.

6. There are a set of rules known as 'The Kerala Public Service
Commission Rules of Procedure' (for short “Rules of Procedure”), containing
the procedure to be followed by the Service Commission in making selections
for filling up any posts in the service of the State of Kerala. When the
Service Commission is so called upon, the Service Commission is authorised
to conduct one or more of the examinations indicated under Rule 3 of the
said Rules to assess merit of candidates who seek appointment. The
relevant portion of the Rule reads:
“3. The Commission may conduct all or any one or more of the
following examinations to assess the merits of candidates considered for
recruitment to a service or post;

(i) Written Examination
(ii) Practical Test
(iii) Physical Efficiency Test
(iv) Oral Test (Interview)
(v) Any other test or examination, which the Commission may deem fit to
hold.”

7. Further, under Rule 4 wherever the Service Commission decides
to conduct either a written examination or a practical test or both for
filling up any posts, the Service Commission is required to announce the
following information:
“(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.”

8. In response to the notification, the Service Commission
received about 42,000 (forty two thousand) applications.

9. For the recruitment in question, the Service Commission
admittedly decided to hold a written examination followed by an oral test
(contemplated under Rule 3, hereinafter referred to as ‘Rule 3
examinations’ for the sake of convenience). However, in view of the large
number of applications received, the Service Commission thought it fit to
shortlist candidates who could be permitted to appear for the Rule 3
examinations by conducting a preliminary examination for all the 42,000
applicants.

10. The Commission initially opined that 2000, out of the total 42000,
applicants could be short-listed through such examination process. After
the examination was conducted, on examining the list of 2000 successful
candidates (who stood at the top of the list), the Service Commission
reached a tentative conclusion that subjecting only those 2000 candidates
for the Rule 3 examinations may not yield enough candidates to fill up
vacancies belonging to various reserved categories (SC, ST and OBC).
Therefore, the Service Commission decided to permit some more candidates
belonging to various reserved categories. The last of the abovementioned
2000 candidates secured 49 marks out of a total of 100 marks for which the
examination was conducted. The Service Commission, therefore, decided to
permit various reserved category candidates, who secured marks above the
cut-off marks specified in that behalf by the Service Commission. The cut-
off marks so specified with respect to each of the reserved categories are
as follows:-
“Ezhava 46
S.C. 45
S.T. 32
Muslim 45
IC/AI 45
OBC 47
Viswakarma 46
SIUC Nadar 46
OX 42
Dheevara 46
Hindu Nadar 44”

11. Pursuant to such exercise, another 657 candidates became
eligible to appear in the Rule 3 examinations.

12. The decision of the Service Commission to relax cut-off marks
with respect to reserved category candidates came to be challenged
initially before the Kerala Administrative Tribunal. In view of the
Tribunal’s decision dated 13.09.2012 dismissing the applications, the
matter was further carried by way of writ petition to the Kerala High Court
unsuccessfully. Eventually, the matter reached this Court in SLP....(CC)
No. 14564 of 2013, which stood dismissed by an order dated 26.08.2013.

13. The Service Commission conducted the Rule 3 examinations,
selected 838 candidates and published a “ranked list”[1] on 07.09.2015.

14. Thereafter, candidates were sent for training. Those who
successfully completed the training were appointed and given posting. The
appellants are among candidates so appointed, belonging to various reserved
categories. They were appointed against open category vacancies.
However, they were not among the top 2000 candidates identified in the
preliminary screening test, but appeared for the Rule 3 examinations by
virtue of the relaxation granted in favour of the candidates belonging to
various reserved classes.

15. Meanwhile, various original applications, out of which the
instant appeals arise, came to be filed before the Tribunal. The relief
sought in one of the applications is:
“(a) declare that the inclusion of the candidate, who secured less than 49
marks in the preliminary examination, in the main list of Annexure A6 is
illegal.

(b) direct the 3rd respondent to remove the candidates who secured less
than 49 marks in the preliminary examination from the main list of Annexure
A6.

(c) direct the 3rd respondent not to advise and respondents 1 and 2 not
to appoint any candidate who secured less than 49 marks in the preliminary
examination against the vacancies available for open competition
candidates”.

16. Prayers in the other two original applications are similar.

17. By its order dated 20.02.2014, the Tribunal allowed the said original
applications.

18. The Service Commission challenged the said order in Original Petition
i.e. O.P. (KAT) No. 136 of 2014. The appellants in SLP (C) No.28428/2014
sought a review of the order dated 20.02.2014 of the Tribunal on the ground
that the said order would adversely affect their interest though they were
not parties to the said proceedings. However, by an order dated
04.04.2014, the review petition was rejected by the Tribunal. Therefore,
the unsuccessful review petitioners preferred Original Petition (KAT)
No.239 of 2014 challenging the order of the Tribunal dated 20.02.2014. The
petitioner in SLP (C) No. 28743 of 2014 was the 2nd petitioner in Original
Petition (KAT) No.112/2014 filed challenging the order dated 20.02.2014 of
the Kerala Administrative Tribunal. Both the Original Petitions along with
other similar petitions were heard together and dismissed by a common
judgment and order, impugned in the instant appeals.

19. The selection and appointment of the appellants is challenged
on the ground that they are not among the 2000 candidates who secured 49
marks and above in the preliminary screening test and therefore, they would
not have been eligible to appear for the Rule 3 examinations but for the
relaxation granted subsequent to the preliminary examination. Therefore,
they cannot be appointed to open category posts. According to the
contesting respondents, relaxation was granted only to ensure that there
are sufficient number of candidates to fill up reserved category posts.
By allowing the appellants to compete for the open category posts, the
Service Commission acted in violation of Articles 14 and 16 of the
Constitution of India.

20. The posts in question are governed by the Kerala State and
Subordinate Services Rules 1958 (for short “Kerala S&S Rules”), made in
exercise of the power under Article 309 of the Constitution of India.
Rule 14 enables the State to reserve some of the posts in question in
favour of the Scheduled Caste, Scheduled Tribes and other backward classes.
Indisputably, some of the posts in question are so reserved.

21. This Court in R.K. Sabharwal & Others v. State of Punjab & Others,
(1995) 2 SCC 745, held that where certain number of posts are reserved in
favour of candidates belonging to socially and economically backward
classes, meritorious candidates belonging to those classes should not be
appointed to such reserved posts but shall be appointed to posts falling in
the open category.

22. The said principle is reiterated in Ritesh R. Sah v. Dr. Y.L. Yamul &
Others, (1996) 3 SCC 253, in the context of admissions to the educational
institutions (medical colleges) where seats are reserved in favour of
students belonging to socially and economically backward classes. This
Court on examination of various judgments including R.K. Sabharwal (supra)
held;
“17. …. In view of the legal position enunciated by this Court in the
aforesaid cases the conclusion is irresistible that a student who is
entitled to be admitted on the basis of merit though belonging to a
reserved category cannot be considered to be admitted against seats
reserved for reserved category. ..”

23. It is application of the above principle which is the subject matter
of dispute in the instant appeal. As already noticed, appellants secured
good marks in the Rule 3 examinations, therefore they should be entitled
for appointment against open category posts by operation of the principle
of law laid down in the above-mentioned judgments. The contesting
respondents however disputed application of the above-mentioned principle
of law on the ground that appellants could appear for the Rule 3
examinations only pursuant to a concession granted by the Service
Commission, and cannot therefore be treated as more meritorious candidates
who are entitled to be appointed to open category posts.

24. This submission found favour with the Administrative Tribunal and the
High Court. In substance, both the fora held that but for the concession
the appellants would not have been able to participate in the Rule 3
examinations at all, consequently whatever be the performance of the
appellants in the examination, their chance appearance in the Rule 3
examinations does not confer any right on them to claim open category posts
and they are entitled to compete only for those posts which are reserved in
favour of the respective class to which each of the appellants belongs.
For reaching such a conclusion, the High Court relied upon Rule 14(e)[2] of
the Kerala S&S Rules and Rule 4[3] of the Rules of Procedure. The High
Court held:-
“32. Reading of these judgments would show that in none of these cases,
Supreme Court had occasion to consider a rule similar to Rule 14(e) or the
third proviso to Rule 4 of the Rules of Procedure. On the other hand, the
Apex Court had generally dealt with the legal position that when relaxation
or concession is given at the preliminary stage, which has no impact on the
final ranking, the relaxation so given cannot have any relevance in so far
as the final ranking is concerned. While we respectfully follow these
principles, in our view, having regard to the fact that Rule 14(e) of the
3rd proviso to rule 4 of the Rules of Procedure govern the selection in
question, the general principles laid down by the Apex Court in the
judgments relied on by the learned counsel for the petitioners cannot be
applied to the facts of these cases.”

and distinguished three earlier judgments of this Court Chattar Singh &
Others v. State of Rajasthan & Others, (1996) 11 SCC 742, Andhra Pradesh
Public Service Commission v. Baloji Badhavath & Others, (2009) 5 SCC 1 and
Jitendra Kumar Singh & Another v. State of Uttar Pradesh & Others, (2010)
3 SCC 119.

25. In our opinion, the conclusion reached by the High Court is
erroneous. The preliminary examination for shortlisting candidates who
would be eligible to take the Rule 3 examinations has no statutory basis.
Neither the Kerala S&S Rules nor the Rules of Procedure contemplate such
preliminary examination. However, this Court recognized[4] existence of a
legal authority to conduct a preliminary examination wherever an
unmanageably large number of applications are received for filling up a
limited number of posts. Rule 14(e) of the Kerala S&S Rules and Rule 4 of
the Rules of Procedure relied upon by the High Court refer to ‘ranked list’
- a defined expression under Rule 2(g) of the Rules of Procedure. Such
‘ranked-list’ is prepared only pursuant to the Rule 3 examinations. A
preliminary screening test is outside the purview of the Rule 3
examinations. Therefore, irrespective of the content of Rule 14(e) of the
Kerala S&S Rules or the 3rd proviso to Rule 4 of the Rules of Procedure
relied upon by the High Court, these Rules can have no application in the
context of preparation of a ‘shortlist’ pursuant to a preliminary
examination.

26. Therefore, the basic premise on which the High Court sought to
distinguish the three judgments relied upon by the appellants (referred to
supra) is legally untenable. The impugned judgment rightly understood the
3 judgments relied upon by the appellants herein as laying down a principle
that a relaxation or concession given at the preliminary stage cannot have
any relevance in determining the merit of the candidate.

27. In the circumstances, we are of the opinion that the impugned
judgment is unsustainable and is accordingly set-aside. The appeals are
allowed with no order as to costs.

….………………………….J.
(J. Chelameswar)

….………………………….J.
(Abhay Manohar Sapre)

New Delhi;
October 13, 2015
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[1] A defined expression Rule 2(g) of the Kerala Public Service
Commission Rules of Procedure, which is reproduced below:
“'Ranked List' means the list of candidates arranged in the
order of merit either on the basis of the interview
or examination or by both;
[2] Rule 14 (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 appoints.
(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.

Note. ‘Suitable candidates’ for the purpose of this rule shall mean
candidates with notified minimum qualifications and marks in selection
procedure lowered to the extent necessary.”

[3] Rule 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 –
Announce:
the qualifications required of the candidates for the examination;
the conditions of admission to the examination including the fees;
the subjects, Scheme or syllabus of the examination; and
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.
[
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.

[4] Andhra Pradesh Public Service Commission v. Baloji Badhavath &
Others, (2009) 5 SCC 1; Duddilla Srinivasa Sharma & Others v. V.
Chrysolite, (2013) 16 SCC 702

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