Paragraph numbers below are the court’s original numbering, recovered from the source text.
13. The question in this case is about the interpretation of rules 14 to 17 of the Rules.
14. A bare peru:sal 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 SCi"ST candidates. one post shall go to ST candidates and the remaining to SC candidates, and in the (2009] 5 S.C.R. A 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/ 8 ST/OBC he would still 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 purpos~~ 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, E 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 F 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, and re$ervation should be applied with reference to units of 20. That is,' the first 20 most meritorious candidates, that is, frori Serial G No. 1 to 20 ir 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 H appointments have then to be made in accordance with Rule NAIR SERVICE SOCIETY v. DR. T. BEERMASTHAN & ORS. [MARKANDEY KAT JU, J.] ·• … 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 c batches of 20 selected candidates the SC/ST or OBC candidate who is so meritorious that 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 these words into Rule 14(a) is to increase the total reservation in favour of the reserved categories beyond 50% (2009] 5 S.C.R. A and to dilute the merit of the>se chosen to ever lower levels in ..I' 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 c 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 notie 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, Kera/a Public Service E Commission (2003) 12 SCC 10 (para 22) had referred to the procedure followed by the Commission in advising 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 F 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 ~as 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 1:mdue reliance on the fact that the annexure to Rule 15 c;:ontaining 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 H <!:ycle based on a 100-point roster is merely to give effect to NAIR SERVICE SOCIETY v. DR. T. BEERMASTHAN & … \ ORS. [MARKANDEY KAT JU, J.] 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 SC/ST candidates (constituting the remaining 10% reservation) which can only be c 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 G 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 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 (2009] 5 S.C.R. A 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 8 though the validity of the rule was not the subject matter of challenge in any of the writ petitions.
30. In our opinion, Huie 14(b) merely says that the members of OBC and SC/ST shall be considered for appointment in the Open Competition category, if found C 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 consiistently 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 D 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) E is interpreted to increase the unit of 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 F 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 G 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 H the basis that a large number of vacancies totaling to 267 were .,._. y NAIR SERVICE SOCIETY v. DR. T. BEERMASTHAN & ORS. [M'ARKANDEY KAT JU, J.] 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: Letter No. & Date No. of Rotationstarted/ Date of vacan- ended of advice cies c D3-7204 02 dt. 27/2/03 …………… dt. 10/10/03 D3-18859 03 dt.25/3/04 …………….. dt.15/9/04 MR VIII 40 OBC ……………. dt.30/12/04 Do …………… dt. 14/2/05 MR X 1 OC 01/2/06 …………… dt.21 /6/05 ………….. dt.05/9/05 D3 2885 06 …………. dt. 08/3/05 MR X 2E to MR 17/4/06 x 31 oc D3 2885 06 dt. 18/6/06 MR X 72 32 SC 17/7/06 to MR & 71 OC 03 18859 03 dt. 17(10 MR X 72 SC 17/7/06 28/6/06 NJD & to MR X 77 OC ?fresh) D3 2884 06 03 dt. 1 NJD 14/8/06 0717106 D3 12473 06 dt. MR X 78E to 28/9/06 08/9/06 MR X 85 OC D3 12473 06 dt. MR Y 78E to MR 28/9/06 12/10/06 x 85 oc c 03 2884 06 dt. 5 NJO 24/11/06 07/11/06 03 12473 05 dt. 1NJO 19/12/06 16/11/06 03 12473 06 dt. MRX92ST 11/01/07 04/12/06 & 21/12/06 to MRXI 7 OC 03 2884 06 & 3 NJO 13/02/07 12473 06 dt. 23/01/07 The details of candidates belong to Muslim community advised from the ranked list are as follows: Rank Name Turn in which Date of No. advice advised Suni Babu P.P. MRVlll 36 M 01/02/06 Muhseena H MR VIII 53 OC 01/02/06 Shahid M MRVlll 46 M 01/02/06 Assainar M MRVlll 56 M 01/02/06 Simi Devan MRVlll 66 M 01/02/06 Shamsad P MRVlll 76 M 01/02/06 Abdul Rafeeq O.P. MRVlll 80M 01/02/06 Jaseena Beegom T MRVlll 86 M 01/02/06 Sumayya V.K. MRVlll 96 M 01/02/06 Vaheeda Rehman A MR IX6 M 01/02/06 Benazir K.I. MR IX 16 M 01/02/06 Nazeema P.K. MR IX26 M 01/02/06 Shabna Beegum MR IX 30 M 01/02/06 Fakrudeen A MR IX 36 M 01/02/06 Nadarsha P.K. MR IX46M 01/02/06 f -' ·"' —· y NAIR SERVICE SOCIETY v. DR. T. BEERMASTHAN & ORS. [MARKANDEY KAT JU, J.] Shaik Anwar KS MR IX56M 01/02/06 Abdul RV Pottammal MR IX66 M 01/02/06 Shamsudeen K MR IX 76M 01/02/06 Bensha P Bashir MR IX80 M 01/02/06 Supplementary List – Muslim Abdul Razak P MR IX80M 01/02/06 Bindu N Lal MR IX 96 M 17/04/06 Shahina P.K. MRX6M 17/04/06 Rehana P MR X 16 M 17/04/06 ·, Muhas K Kareem MR X 26 M 17/07/06 Anitha A Khader MRX 30 M 17/07/06 Murunnisa N K MRX 36 M 17/07/06 Arita VP MR X46 M 17/07/06 Sareena N MR X 56 M 17/07/06 Sahida T MR X 66 M 17/07/06 Raseena Beevi M MR X 76 M 28/09/06 Rahina V K MR X 80 M 06/11//06 Shemi K Mohammed N MRX 86 M 11/01/07 Beena S MR X 96 M 11/01/07
33. This Court in University of Cochin vs. Dr. N. Raman Nair(1975) 3 SCC 628 has observed that Rule 14(c) lays down c 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, Kera/a Public Service Commission (2003) 12 SCC 10 (para [2009) 5 S.C.R. A 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: c " …. Based on the proc:edure 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". 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. F 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 ( fl '— NAIR SERVICE SOCIETY v. DR. T. BEERMASTHAN & …. \ ORS. [MARKANDEY KAT JU, J.] turn unfilled or advise a candidate lower in rank retaining a A candidate who is above him in the list by anticipating reporting of vacancies.
37. In our opinion the Commission has correctly advised candidates in the order in which the requisitions were received, -t 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 c 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 o. ~ 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 reported in large numbers only in the case of LO.Clerks, Police Constables, Medical Officers …. etc. When vacancies numbering more than 20 are y reported and if reservation is applied as stated above by allotting every alternative vacancy firstly to open —- …. c (2009] 5 S.C.R. 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 mentioneid 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 in this case, it has to be read as it is, and the literal rule of interpretation is to be F 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 G 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 NAIR SERVICE SOCIETY v. DR. T. BEERMASTHAN & ORS. [MARKANDEY KAT JU, J.] 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 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 ciearly 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.
48. It is true that reserved category candidates can [2009) 5 S.C.R. A 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 B 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 C and the Writ Petitions are dismissed. There shall be no order as to costs. CA No ………. of 2009 [@ SLP(Civil) No. 21139 of 20081
50. Leave granted. The appellant was one of the 0 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 to Other Christians. She approached the E 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 F the legal principle incorrectly, had wrongly denied her relief on the erroneous impression that her tum 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 C@ SLP(Civil) Nos. 439-443 of 20081 lj1. Leave granted. These appeals are filed by P.S.C., being aggrieved by the common order dated 11.11.2008 of a H learned Single Judge disposing of WP(C) No. 25077, 26089, 'f NAIR SERVICE SOCIETY v. DR. T. BEERMASTHAN & ORS. [MARKANDEY KAT JU, J.] 24158, 28435 and 16599/2008 (filed by some candidates after A 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 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. c G.N. Appeals allowed.