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Posts falling vacant after the amendment of the Rules are to be filled up in accordance with it : SC



DR. ASWATHY R.S. KARTHIKA & ORS V. DR. ARCHANA M. & ORS CIVIL APPEAL NO. 2796 OF 2020(ARISING OUT OF SLP (CIVIL) NO. 17734 OF 2019) WITH CIVIL APPEAL NO. 2797 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 8652 OF 2020) ~JULY 29, 2020.

The bench comprising of Hon’ble Justice HEMANT GUPTA,  pronounced judgement on the appeal against the judgement pronounced by Kerala High Court.

Mr. Pillay, learned senior counsel appearing for the appellants contended that reservation for the Hindu Nadar community was provided after persistent effort by the community. Therefore, the benefit of reservation to the members of such community could not be denied, particularly in view of Explanation II inserted in the Rules, vide amendment dated 3.8.2010. Reliance was placed upon the stand of the Commission that there was shortfall of three posts after the amendment in the Rules, therefore, the appellants were rightly appointed on 16.10.2018 and 28.11.2018 in pursuance of the directions of the Tribunal.

Mr. Nidhesh Gupta, learned senior counsel appearing for the private respondents, argued that 133 candidates had been appointed from the rank list published on 3.8.2015. The post for the Hindu Nadar Community was at roster point 60 in a 100-point roster. One Hindu Nadar community candidate was advised for appointment on 8.3.2017. Therefore, the next available post would come at Serial No. 160 only. It was contended that the shortfall in vacancies as claimed by the appellants could not be permitted to be filled up on the basis of the succeeding rank list. For any shortfall, in terms of Rule 15(a), vacancies had to be notified vide a separate notification, for that community. Since there was no recruitment process initiated for the shortfall vacancies, the appellants could not claim the right of appointment merely because their names appear in the succeeding rank list. The appellants could not do so unless there was a post available for the Hindu Nadar community after the publication of such rank list.

The Commission has admitted that there were three posts falling to the Hindu Nadar Community after amendment of the Rules. Such vacant posts had to be filled up. Since the only source of shortlisted candidates was the rank list issued in 2015, appointments had to be made from that List. The entire argument of the respondents is based upon the rank list published on 27.7.2009. Such rank list was published prior to the amendment in the Rules and has no application to the facts of the present case. In fact, the appellants are not even claiming any right on the basis of such rank list.

The Court thus finds that the Circular of the Commission and the Explanation II inserted by amending the Rules, provide that the shortfall in reservation in the advices made during the period from 21.11.2009 to the date of issue of the Circular were to be adjusted in future vacancies without disturbing the advices already made. It did not mean that the vacancies arising after the amendment were not required to be filled up as per the merit in the rank list. The Hon’ble court finds that the posts available for the Hindu Nadar community after 21.11.2009 are required to be provided to the them. The Commission has rightly admitted in the written submissions filed that, Rule 15(a) of the Rules is inapplicable in the present case, as it is not a case of temporary passing over of vacancies nor the case of non-availability of candidates.

The entire submission on behalf of the private respondents are misconceived and untenable. The appellants are not claiming any right whatsoever on the basis of the rank list published on 27.7 2009. The claim of their appointment is in respect of the vacancies which arose after 21.11.2009 when the Rules were amended and reservations for the Hindu Nadar community was provided. The Commission has not taken into consideration, posts which have fallen vacant from the date of the amendment of the Rules till the date of the appointments advised from the rank list dated 3.8.2015.Therefore, the argument of delay or waiver as submitted on behalf of Mr. Gupta has no basis either factually or legally. The judgments referred to by Mr. Gupta in the written submissions have no applicability to the facts of the present case as the cause to invoke jurisdiction of the Tribunal arose when candidates were not appointed on the basis of rank list issued in 2015. Similarly, the argument that there is no challenge to the Circular dated 31.8.2010  is again misconceived.Further, no reliance is being placed by the appellants, on the argument based on Article 16(4-B) of the Constitution, before this court. Thus, we find that the submissions made on behalf of Mr. Gupta do not warrant any acceptance.

Hence, the appeals are allowed, and the order and judgment of the High Court is set aside and that of the Tribunal is restored.


View/ Download the Judgment DR. ASWATHY R.S. KARTHIKA & ORS V. DR. ARCHANA M. & ORS

CIVIL APPEAL NO. 2796 OF 2020
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 – Karthik K.P (School of Law, SASTRA Deemed to be University)


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