Dismissed

Dr. Radhika T. v. Cochin University of Science and Technology

Kerala HC12 Jul 2023WA/534/2023

Case brief

AI extract

What is this about?

The court held that once a candidate from the reserved category is appointed to a post earmarked for that category, the turn in the roster stands satisfied. The subsequent vacancy arising from that appointee's relieve does not retain the reservation tag, and the 2nd rank holder has no legal right to claim appointment. The writ appeal was dismissed.

What the court decided

AI extract

Dr. Radhika T. Vs Cochin University of Science and… — Service and Employment | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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WEDNESDAY, THE 12TH DAY OF JULY 2023 / 21ST ASHADHA, 1945

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WA NO.534 OF 2023

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AGAINST THE JUDGMENT DTD.0302.2023 IN WP(C).NO.38986 OF
2022 OF HIGH COURT OF KERALA

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APPELLANT/S:

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DR. RADHIKA T., AGED 43 YEARS
W/O. RAMADAS T. K., THOLIL HOUSE, POTTORE P.O.,
TIRUR, THRISSUR DISTRICT - 680 581. NOW WORKING
AS SCIENTIST -D, CENTRE FOR MATERIALS FOR
ELECTRONICS TECHNOLOGY (C-MET), (MEITY), ATHANI,
THRISSUR - 680 581., PIN - 680581
BY ADVS.
K.I.MAYANKUTTY MATHER
T.K.SREEKALA
S.PARVATHI

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RESPONDENT/S:

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1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY UNIVERSITY ROAD, SOUTH KALAMASSERY, KALAMASSERY P.O. REPRESENTED BY ITS REGISTRAR., PIN - 682022

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2THE REGISTRAR
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
UNIVERSITY ROAD, SOUTH KALAMASSERY, KALAMASSERY
P.O.-, PIN - 682022

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3 THE VICE CHANCELLOR COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, UNIVERSITY ROAD, SOUTH KALAMASSERY, KALAMASSERY P.O., PIN - 682022 BY ADV SHRI.S.P.ARAVINDAKSHAN PILLAY, SC, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
05.07.2023, THE COURT ON 12.07.2023 DELIVERED THE
FOLLOWING:

WA.No.534 of 2023

“CR”

JUDGMENT

Anil K. Narendran, J.

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The appellant is the petitioner in W.P(C)No.38986 of 2022, a writ petition filed under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 communication dated 20.04.2022 issued by the 1^st respondent Cochin University of Science and Technology and Ext.P6 order dated 16.09.2022 of the 2^nd respondent Registrar of the said University. The appellant has also sought for a writ of mandamus commanding the 2^nd respondent to appoint her as Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry, in the vacancy earmarked for the Scheduled Caste community; and a declaration that Ext.P6 order dated 16.09.2022 issued by the 2^nd respondent is violative of the rights of the candidates in the Scheduled Caste community. By the impugned judgment dated 03.02.2023, the learned Single Judge dismissed the writ petition holding that the 1^st respondent University was justified in declining the request of the petitioner for appointment to the vacancy notified vide Ext.P1 notification dated 22.10.2019. Feeling aggrieved, the appellant is before this Court in this writ appeal invoking the provisions under Section 5(1) of the Kerala High Court Act, 1958.

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Heard the learned counsel for the appellant-petitioner and

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the learned Standing Counsel for Cochin University of Science and Technology for the respondents-respondents.

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The learned counsel for the appellant-writ petitioner would submit that the learned Single Judge has not properly appreciated the contention of the appellant as to her entitlement for appointment as Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry in the 1^st respondent University, from Ext.P2 rank list, in the vacancy earmarked for the Scheduled Caste community, on account of the 1^st rank holder being relieved from service for accepting appointment as a Professor in the School of Chemical Sciences, Mahatma Gandhi University. Though the notified vacancy of Associate Professor-Inorganic Chemistry in Ext.P1 notification is only one, in view of the provisions under sub-section (10) of Section 31 of the Cochin University of Science and Technology Act, 1986, Ext.P2 rank list shall remain in force for a period of two years from the date of publication and all vacancies arising during that period can be filled up from that list. The recruitment, vide Ext.P1 notification, for the post of Associate Professor-Inorganic Chemistry, after the earlier notifications of the years 1999 and 2005 is a special recruitment for the Scheduled Caste community, governed by the provisions under Rule 17A of the Kerala State and Subordinate Service Rules, 1958. Therefore, the 1^st respondent University has to follow the procedure contemplated under Annexure A Government order dated 15.07.1992 and Annexure B circular dated 23.09.2019.

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Per contra, the learned Standing Counsel for Cochin University of Science and Technology would contend that the

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reasoning of the learned Single Judge in declining interference on Ext.P6 order warrants no interference. By Ext.P5 judgment in W.P.(C)No.15183 of 2022, this Court directed the competent authority in the University to consider the appointment of the appellant, subject to her rank and her eligibility as per the rules of communal rotation, within the time limit stipulated in that judgment. The appellant is not entitled to be appointed as Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry, from Ext.P2 rank list, in the vacancy earmarked for the Scheduled Caste community, on account of the 1^st rank holder being relieved from service for accepting appointment as a Professor in the School of Chemical Sciences, Mahatma Gandhi University, for the reason that the turn of communal rotation after the relieve of the 1^st rank holder is reserved for Latin Catholic/Anglo Indian (LC/AI) category.

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Vide Ext.P1 notification dated 22.10.2019, the 1^st respondent University invited applications from qualified candidates for various posts in the category of Associate Professor. Certain posts notified in Ext.P1 are earmarked for reserved categories. Pursuant to that notification, the appellant, who belongs to the Scheduled Caste community, applied for the post of Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry, which was earmarked for Scheduled Caste candidates. The number of vacancies notified was one.

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Sub-clause (v) of Clause (e) of general instructions, which

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forms part of Ext.P1 notification, provides that the appointment against the vacancies notified therein will be made as per University Grants Commission (UGC)/All India Council for Technical Education (AICTE) Regulations and reservation principles according to Cochin University of Science and Technology Act, 1986 and the Kerala State Government Rules. The posts earmarked for reserved categories are exclusively reserved for them as per the provisions in the Kerala State and Subordinate Service Rules. After the process of selection, the 1^st respondent University published Ext.P2 rank list for the post of Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry, for one vacancy reserved for the Scheduled Caste community, in which one Anitha C. Kumar, who secured 66 marks, is the 1^st rank holder, and the appellant, who secured 59 marks is the 2^nd rank holder. Two other candidates are also included in Ext.P2 rank list from the Scheduled Caste community. In Ext.P2 it is provided that the rank list will have validity for a period of two years from the date of notification of the list.

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From Ext.P2 rank list, the 1^st respondent University appointed Anitha C. Kumar, the 1^st rank holder, as Associate ProfessorInorganic Chemistry in the Department of Applied Chemistry, with effect from 22.02.2021 FN. Though the averments in the writ petition are silent on the above aspect, the date of appointment of the 1^st rank holder in Ext.P2 rank list as Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry is mentioned in Exhibit R2(a)

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proceedings dated 30.03.2022 of the 1^st respondent University. Later, Anitha C. Kumar got selection for appointment as a Professor in the School of Chemical Sciences, Mahatma Gandhi University, Kottayam. She submitted a request dated 28.03.2022 before the 1^st respondent University to relieve her from the post of Associate ProfessorInorganic Chemistry in the Department of Applied Chemistry, with effect from 30.03.2022, to take up employment as Professor in the School of Chemical Sciences, Mahatma Gandhi University. Based on the sanction accorded by the Vice Chancellor, the 1^st respondent University, vide Ext.R2(a) order dated 30.03.2022, relieved Anitha C. Kumar from the post of Associate Professor-Inorganic Chemistry, Department of Applied Chemistry, with effect from 30.03.2022, for taking up employment as Professor in the School of Chemical Sciences, Mahatma Gandhi University, after retaining her lien in the post of Associate Professor-Inorganic Chemistry, as per Rules. It is not in dispute that the 1^st rank holder in Ext.P2 rank list was permitted the marking of lien on the said post because she had already completed her probation.

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As per sub-section (2) of Section 7 of the Cochin University of Science and Technology Act, 1986 (for brevity, ‘the Act’), in making appointments for all posts as determined by the Syndicate in any service, class or category under the University, the University shall mutatis mutandis observe the provisions of clauses (a), (b) and (c) of Rule 14 and the provisions of Rules 15, 16, 17 and 17A of the

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Kerala State and Subordinate Service Rules, 1958 (for brevity, ‘the KS&SSR’), as amended from time to time. As per sub-section (9) of Section 31 of the Act, the rank list prepared by the Selection Committee shall be published on the notice board of the University and also in the Gazette. As per sub-section (10) of Section 31, a rank list published under sub-section (9) shall remain in force for a period of two years from the date of such publication and all vacancies arising during the period shall be filled up from the list so published. As per sub-section (11) of Section 31, communal rotation shall be followed category-wise treating all departments as one unit. As per sub-section (12) of Section 31, the Registrar shall maintain a register containing the list of appointments made indicating the vacancies filled up by open competition and by reservation to Scheduled Castes, Scheduled Tribes and other Backward Classes, the vacancies remaining to be filled up for want of qualified hands from Scheduled Castes, Scheduled Tribes and Other Backward Classes, and the vacancies carried forward for want of qualified hands under reservation quota for being filled up in future vacancies and such other details as may be specified in the Statutes.

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The appellant submitted Ext.P3 request dated 02.04.2022 before the Vice Chancellor of the 1^st respondent University for appointment as Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry, based on her ranking in Ext.P2 rank list, since the validity of the said rank list is two years, as per sub-

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section (10) of Section 31 of the Act. By Ext.P4 communication dated 20.04.2022 of the 2^nd respondent Registrar, the appellant was informed that the Vice Chancellor, while considering her request for appointment as Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry, against the vacancy consequent to the relieve of Anitha C. Kumar with effect from 30.03.2022, has ordered that the said request can be considered after the lien in that post is vacated by Anitha C. Kumar.

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The appellant challenged Ext.P4 communication dated 20.04.2022 of the 2^nd respondent Registrar, by filing W.P.(C)No.15183 of 2022. The said writ petition was allowed by Ext.P5 judgment dated 08.07.2022. In Ext.P5 judgment, the learned Single Judge noticed the submission made by the learned Standing Counsel for the 1^st respondent University that the provisions under the Kerala Service Rules, which has been adopted in the 1^st respondent University, permit the marking of lien on the post in question because the earlier incumbent may have completed her probation. On a query made by the learned Single Judge that, even if the lien is allowed to be marked legally, what stops the University from filling up the post because, in the event of the earlier incumbent returning, she can only be accommodated to a place below the persons in service, the learned Standing Counsel for the University answered that, if the Court so directs, necessary action can be taken by the University and that the writ petitioner will be considered, provided she falls in the category

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entitled to appointment as per the rules of reservation. On a finding that there is no legal impediment to the University for filling up the post in question in spite of the lien over it being marked in favour of the earlier incumbent, the learned Single Judge allowed W.P.(C)No.15183 of 2022 by setting aside Ext.P4 communication dated 20.04.2022 and directed the competent authority in the University to consider the appointment of the writ petitioner, subject to her rank and her eligibility as per the rules of communal rotation, as expeditiously as possible, not later than one month from the date of receipt of a copy of that judgment.

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Pursuant to the direction contained in Ext.P5 judgment, the Vice Chancellor of the 1^st respondent University reconsidered the request made by the appellant. Vide Ext.P6 order dated 16.09.2022 of the 2^nd respondent Registrar, which was under challenge in the writ petition, the appellant was informed that the Vice Chancellor, while considering her request for appointment as Associate ProfessorInorganic Chemistry in the Department of Applied Chemistry, against the vacancy consequent to the relieve of Anitha C. Kumar with effect from 30.03.2022, has ordered that the said request cannot be considered favourably for the reason that the turn of communal rotation after the relieve of Anitha C. Kumar is reserved for Latin Catholic/Anglo Indian (LC/AI) category. The appellant filed Cont. Case (Civil) No.1869 of 2022 alleging that Ext.P6 order dated 16.09.2022 of the 2^nd respondent Registrar is in flagrant violation of the directions

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contained in Ext.P5 judgment. That contempt case was closed by Ext.P7 order dated 25.11.2022, wherein the learned Single Judge noticed that the case of the petitioner (appellant herein) is that Annexure A3 (Ext.P6 order dated 16.09.2022) is in error, not because it is in violation of the judgment dated 08.07.2022 (Ext.P5 judgment), but because the rules of rotation have not been rightly applied, or that it is not applicable at all. Obviously, it is a matter which the petitioner will have to challenge in appropriate proceedings, assailing the said order.

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Along with the writ petition, the appellant has placed on record Ext.P8 roster for the post of Associate Professor, obtained under the provisions of the Right to Information Act, 2005, to show that the vacancy of Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry was reserved for Schedule Caste category, in the year 1999 itself. Going by the averments in the writ petition, though notifications were issued in the years 2005 and 2015 for the recruitment of a candidate from the Schedule Caste category, no candidates were available. Thereafter, Ext.P1 notification was issued in the year 2019. After the selection process, Ext.P2 rank list was published on 15.02.2021, consisting of four candidates, valid for a period of two years from the date of notification of the rank list. In Ext.P2, the appellant is the 2^nd rank holder.

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In view of the provisions under sub-section (2) of Section 7 of the Act, in making appointments for all posts as determined by

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the Syndicate in any service, class or category under the 1^st respondent University, the University shall mutatis mutandis observe the provisions of clauses (a), (b) and (c) of Rule 14 and the provisions of Rules 15, 16, 17 and 17A of the KS&SSR, as amended from time to time. Rule 14 of the KS&SSR deals with the reservation of appointments. As per clause (a) of Rule 14, the unit of appointment for the purpose of this rule shall be twenty, of which two shall be reserved for Scheduled Castes and Scheduled Tribes and eight shall be reserved for the Other Backward Classes and the remaining ten shall be filled on the basis of merit. As per the proviso to clause (a), 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.

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As per clause (b) of Rule 14 of the KS&SSR, the claims of members of Scheduled Castes and 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 posts reserved for Scheduled Castes, Scheduled Tribes or for Other Backward Classes as

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the case may be, shall not in any way be affected. As per clause (c) of Rule 14, appointments under this rule shall be made in the order

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of rotation specified in the said clause in every cycle of 20 vacancies. As per the first proviso to clause (c) of Rule 14, 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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As per clause (a) of Rule 15 of the KS&SSR, the integrated cycle combining the rotation in clause (c) of Rule 14, and the subrotation in sub-rule (2) of Rule 17 shall be as specified in the Annexure to Part II. Notwithstanding anything contained in any other provisions of the 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, 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

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made from available Scheduled Castes candidates and in their absence, the selection shall be made from available Scheduled Tribes candidates.

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As per clause (b) of Rule 15 of the KS&SSR, 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 Scheduled Tribes and vice-versa. As per clause (c) of Rule 15, the benefit of the turn forfeited to Scheduled Castes or Scheduled Tribes communities by reason of 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. As per Rule 16, there shall be sub-rotation among major groups of Other Backward Classes. In view of the provisions under Rule 17, the grouping of Other Backward Classes for the above purpose shall be as indicated in sub-rule (1).

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Rule 17A of the KS&SSR deals with special recruitment from among the Schedule Castes and Scheduled Tribes. As per Rule 17A, notwithstanding anything contained in the Rules or in the Special Rules, the State Government may reserve a specified number of posts in any service, class, category or grade to be filled by direct

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recruitment exclusively from among the members of Scheduled Castes and Scheduled Tribes.

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In R.K. Sabharwal v. State of Punjab [(1995) 2 SCC

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745] , a decision relied on by the learned counsel for the appellant, a Five-Judge Bench of the Apex Court held that when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand, the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. The reservations provided under the impugned Government instructions, instructions dated 04.05.1974 issued by the Punjab Government, which provided reservations for the Scheduled Castes and Backward Classes in promotions to and within Class I and Class II services under the State Government, are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of a ‘running account’ from year to year. The purpose of ‘running account’ is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of ‘running account’ in the impugned instructions has to be

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so interpreted that it does not result in excessive reservation. The ‘running account’ is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. In the said decision, the Apex Court held that the concept of vacancy has no relevance in operating the percentage of reservation, which has to be worked out in relation to the number of posts which form the cadre strength.

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In Dr. Rajesh Komath and others v. Calicut University and others [2020:KER:49020] , another decision relied on by the learned counsel for the appellant, a Division Bench of this Court noticed the decision of the Apex Court in University of Cochin

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v. Dr. Raman Nair [(1975) 3 SCC 628] , wherein it was held that

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the provisions under sub-section (2) of Section 6 of the Cochin University of Science and Technology Act, 1971, which is pari materia to sub-section (2) of Section 7 of the Cochin University of Science and Technology Act, 1986, lays down a mandatory duty upon the University to observe clauses (a), (b) and (c) of Rule 14, as well as Rules 15, 16 and 17 of the KS&SSR. In the said decision, the Division Bench noticed the law laid down by a learned Single Judge in Jose v.

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Cochin University [1992 (3) KLT 347] , wherein it was noticed that the classification of the post as obtained under sub-section (11) of Section 31 of the Cochin University of Science and Technology Act,

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1986 is in accordance with the dictum laid down by the Apex Court in Dr. Raman Nair [(1975) 3 SCC 628] . When the 1986 Statute was enacted, the Legislature had the benefit of the view expressed by the Apex Court in the above decision, where the Apex Court noted the object of the provisions contained under sub-section (2) of Section 6 of the Act of 1971. In the said decision, the learned Single Judge has quoted the provisions under sub-section (12) of Section 31 of the Act, which deals with the maintenance of a register containing the list of appointments made following communal rotation. The Division Bench

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in Dr. Rajesh Komath [2020:KER:49020] reiterated that on account of the amendment made to Section 6 of the Act of 1971, all appointments are to be made observing the provisions of clauses (a), (b) and (c) of Rule 14 and the provisions of Rules, 15, 16 and 17 and 17A of the KS&SSR.

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In Shanavas S.R. v. Kerala Public Service

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Commission and others [2008 (3) KHC 769] , another decision relied on by the learned counsel for the appellant, in the context of Rule 18(ii) of the Kerala Public Service Commission Rules of Procedure, 1976, which deals with the relinquishment of the claim for appointment by a candidate included in the ranked list published by the Public Service Commission, a learned Single Judge held that Rule 18(ii) of the Rules of Procedure enables a person, whose name is included in the ranked list to relinquish his claim for appointment in writing. But, such relinquishment in writing should be effected before

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the date of receipt of requisition for advice by the Commission. In such cases, the relinquishment will be treated as valid and the name of the person, who has relinquished his claim will be deleted from the ranked list. In such circumstances, the Commission gets the authority to issue advice memo to another candidate for appointment. The learned Single Judge noticed that, where there is a valid relinquishment, there are two consequences emanating therefrom. First, the Commission shall accept the relinquishment and delete the name of the person from the ranked list. There is yet another consequence provided by the act of relinquishment on acceptance of a valid relinquishment from the incumbent. There is an obligation on the part of the Commission to advise another candidate in that place. No doubt, to a limited extent, this obligation on the part of the Commission to advise another candidate, according to the Rules, as a consequence of a valid relinquishment, cannot be brushed aside. Rule 14 of the Rules of Procedure makes it clear that vacancies which arise during the currency of the ranked list will have to be reported to the Commission to be filled up by operation of the rank list in question. Once there is a valid relinquishment, then the name of the person who has relinquished his claim should stand deleted from the ranked list and the Commission is obliged to operate the ranked list further, in accordance with the Rules. In cases where the relinquishment is by a candidate who has been included in the list in the reservation quota, the next candidate in the list from the same reservation quota will

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therefore, have, at least, a right to expect the Commission to act under Rule 18(ii) of the Rules of Procedure to advise the candidates in accordance with the Rules.

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In Suresh R. (Dr.) v. Mahatma Gandhi University

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and others [2009 (2) KHC 58] , another decision relied on by the learned counsel for the appellant, a Division Bench of this Court held that if the rules governing selection provide a life for the rank list and also permit appointments from that list to vacancies reported till the expiry of the list, there is nothing wrong with filling up more vacancies than the notified vacancies. A statutory authority, which is authorised to frame subordinate legislation, may issue executive orders on subjects, concerning which it is authorised to frame rules or regulations. If, in relation to a particular selection, it is proposed to have a rank list alive for a particular period and it is proposed to fill up the vacancies that may arise during the currency of the rank list from it, there should be a decision to that effect by the competent body of the University and it should be published along with the notification itself.

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In Kerala Public Service Commission v. Soumya C.A.

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and others [2019 (5) KHC 896] , another decision relied on by the learned counsel for the appellant, a Division Bench of this held that Rule 15(a) of the KS&SSR indicates that even after re-notification carried out to fill up No Candidate Available (NCA) vacancies occurring for the reason of non-availability of candidates from a community or

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group, there are still no candidates available, then the said vacancy could be filled up from the available Other Backward Classes candidates and in their absence from Scheduled Caste candidates and in their absence from Scheduled Tribe candidates. But this filling up from the alternative groups or communities have to be from that list in which the NCA vacancies occurred. This is the only interpretation possible on a combined reading; of the re-notifications being made possible for filling up those posts for that selection year remaining vacant as NCA and if none even then are available from that community or group, the selection being permitted from the available Other Backward Classes, Scheduled Caste or Scheduled Tribe in that order. Rule 15(a) permits the NCA vacancies of a particular selection year to be filled up from the available candidates from the other reserved communities; which availability has to be sourced from the rank list from which these vacancies arose.

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In view of the law laid down by the Apex Court in Dr. Raman Nair [(1975) 3 SCC 628] sub-section (2) of Section 7 of the Cochin University of Science and Technology Act, 1986, which is pari materia to sub-section (2) of Section 6 of the Cochin University of Science and Technology Act, 1971, lays down a mandatory duty upon the University to observe clauses (a), (b) and (c) of Rule 14, as well as Rules 15, 16 and 17 of the KS&SSR while making appointments.

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24. In view of the provisions under sub-section (11) of

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Section 31 of the Act, the University shall follow communal rotation category-wise, treating all departments as one unit. In view of the provisions under sub-section (12) of Section 31 of the Act, the Registrar shall maintain a register containing the list of appointments made indicating the vacancies filled up by open competition and by reservation to Scheduled Castes, Scheduled Tribes and other Backward Classes, the vacancies remaining to be filled up for want of qualified hands from Scheduled Castes, Scheduled Tribes and Other Backward Classes, and the vacancies carried forward for want of qualified hands under reservation quota for being filled up in future vacancies and such other details as may be specified in the Statutes. 25. In view of the provisions under Rule 17A of the KS&SSR, which deals with special recruitment from among Scheduled Castes and Schedule Tribes, notwithstanding anything contained in the KS&SSR or in the Special Rules, the 1^st respondent University may reserve a specified number of posts in any service, class, category or grade to be filled by direct recruitment exclusively from among the members of Scheduled Castes and Scheduled Tribes.

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In Velayudhan V.R. and others v. T.M.Poulose and others [2020 (2) KLT 246] , the Apex Court held that the nonobstante clause in Rule 17A of KS&SSR makes it clear that the said Rule will operate notwithstanding any provision in the KS&SSR or the Special Rules. Hence, notwithstanding the provision of Rule 14 of the KS&SSR making reservation of 10% in favour of Schedule Caste and

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Scheduled Tribe, additional provision can be made under Rule 17A for recruitment to any service, class, category or grade exclusively from amongst the members of the Scheduled Castes and Schedule Tribes. The title of Rule 17A indicates that under this Rule special recruitment can be done from among Scheduled Castes and Schedule Tribes when they are not adequately represented in any service, class, category or grade, in addition to the normal appointments to the reserved quota.

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In the instant case, though the appellant has placed reliance on the provisions under Rule 17A of the KS&SSR, a reading of Ext.P1 notification would make it explicitly clear that the said notification is not in respect of special recruitment from among Scheduled Caste candidates, in addition to the normal appointments to the reserved quota, invoking the provisions under Rule 17A of the KS&SSR. On the other hand, the said notification is in respect of normal appointments to the reserved quota, in addition to the open quota. In view of the provisions under sub-section (11) of Section 31 of the Cochin University of Science and Technology Act and the law laid down by the Apex Court in Dr. Raman Nair [(1975) 3 SCC 628] the 1^st respondent University has a mandatory duty to observe clauses (a), (b) and (c) of Rule 14 as well as Rules 15, 16 and 17 of the KS&SSR, while making appointments. Since Ext.P1 notification issued by the 1^st respondent University is not one for special recruitment under Rule 17A of the KS&SSR, the procedures

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contemplated under Annexure A Government order dated 15.07.1992 and Annexure B Circular dated 23.09.2019 have no application in the recruitment to the post of Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry made pursuant to the said notification.

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In Narayanan v. State of Kerala [1981 KLT 321] the question that came up for consideration before a Division Bench of this Court was whether the rules of the reservation will be adequately met by merely advising a candidate of a particular class to a post reserved for that class and whether the right of that class to that post will be lost where such candidate fails to join that post. The Division Bench noticed that de hors any rules, the rule of reservation would be effective only if to a post reserved for a community a person is actually appointed. There may be quite often cases where a candidate advised

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for appointment may not be available for appointment. In the scramble to get an appointment to one post or other candidates may have applied for appointment to several posts at the same time. There is nothing wrong in making such applications. It may be that they may get advice for appointment to more than one post and they might have accepted appointment pursuant to the earliest advice. Naturally, therefore, when they are advised a second time to another post they would decline. The mere fact that the candidate advised is not available for appointment should not result in the class to which the person advised belongs losing such right, when eligible candidates are

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WA.No.534 of 2023

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available for appointment to such posts. Otherwise, it would be a reservation in form only and not in substance. When once a person advised is appointed whether subsequently, he continues or not in that post is another matter. But in the matter of appointment to the post, the principle of reservation would have to be adhered to in such a case. To treat the reservation as applicable at the stage of advise and not at the stage of appointment may not, in circumstances where many of the people advised may not be able to join because they are already appointed, satisfy the rule of reservation in its true form and spirit as envisaged.

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In the instant case, in Ext.P1 notification one post of Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry in the 1^st respondent University was earmarked for Scheduled Castes, in which post Anitha C. Kumar, the 1^st rank holder in Ext.P2 rank list was appointed with effect from 22.02.2021 FN, who completed her probation. Thereafter, she was relieved from the post of Associate Professor, Inorganic Chemistry in the Department of Applied Chemistry in the 1^st respondent University, based on her request dated 20.03.2022, vide Ext.R2(a) order dated 30.03.2022, with effect from 30.03.2022, to take up employment as Professor in the School of Chemical Sciences, Mahatma Gandhi University. On 22.02.2021, by the appointment of Anitha C. Kumar as Associate Professor-Inorganic Chemistry in the Department of Applied Chemistry in the 1^st respondent University, the turn of Scheduled

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Castes in the roster stands satisfied in its true form and substance.

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After the completion of the probation, Anitha C. Kumar was relieved from that post with effect from 30.03.2022, to take up employment as Professor in the School of Chemical Sciences, Mahatma Gandhi University. Since the turn of Scheduled Castes in the roster stands satisfied on 22.02.2021, by the appointment of Anitha C. Kumar, the appellant, who is the 2^nd rank holder in Ext.P2 rank list, has no legal right to claim appointment in the resultant vacancy, as Associate Professor-Inorganic Chemistry in the 1^st respondent University, since that vacancy cannot be treated as one reserved for Schedule Castes. In that view of the matter, we find no reason to interfere with the judgment of the learned Single Judge.

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The Writ Appeal fails and the same is accordingly, dismissed. No order as to costs.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/- P.G. AJITHKUMAR, JUDGE

bkn/-

(cntd……25)

WA.No.534 of 2023

The words occurring in the 3^rd line of paragraph No.22 of the judgment dated 12.07.2023 in W.A.No.534 of 2023 as “a Division Bench of this held that” is corrected as “a Division Bench of this Court held that” as per order dated 25.07.2023 in W.A.No.534 of 2023.

Sd/Joint Registrar

WA.No.534 of 2023

APPENDIX OF WA 534/2023

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PETITIONER ANNEXURES
Annexure ATRUE COPY OF THE GOVERNMENT ORDER -
G.O.(MS) NO. 268/92/GAD DATED 15.7.1992
Annexure B: TRUE COPY OF THE CIRCULAR NO.
ECA1/4/2019/GA DATED 23.9.2019.

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RESPONDENTS’ EXHIBITS:

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EXHIBIT R2(a): TRUE COPY OF THE UNIVERSITY ORDER
NO.CUSAT/AD(D).D2/1508/2022 DATED
30.03.2022

Dr. Radhika T. v. Cochin University of Science and Technology

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Dr. Radhika T. v. Cochin University of Science and Technology

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