THE SECRETARY, KERALA PUBLIC SERVICE COMMISSIONversusSHEEJA P.R AND ANOTHER

                        [2013] 1 S.C.R. 182

A        THE SECRETARY, KERALA PUBLIC SERVICE
                        COMMISSION
                              v.
               SHEEJA P. R. AND ANOTHER
               (Civil Appeal No. 129 of 2013)
B
                        JANUARY 08, 2013
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

     KERALA PUBLIC SERVICE COMMISSION RULES OF
C PROCEDURE:

        r. 13 - Rank list - Life of - 'Supplementary list' of
  reserved category candidates prepared with main list - Expiry
  of - Non-Joining Duty (NJD) vacancy reported after the rank
0 list  had been exhausted - Claim of reserve category
  candidate next below the candidate in the supplementary list
  who did not join - Held: Once the main list becomes empty
  or drains out on the advice of all the candidates, it loses its
  life; consequently supplementary list also automatically
E vanishes - The Commission could advise candidates only
  on receiving intimation with regard to the non-joining duty
  vacancies before the main list got exhausted - In the instant
  case, NJD vacancy was received by Commission one year
  after the main list got exhausted - Consequently, the
  supplementary list has no life any longer - Division Bench
F of High Court erred in directing the Commission to operate
  supplementary list.

      Respondent no. 1, who figured as rank 3 in
  supplementary list (of reserved category candidates), filed
G a writ petition before the High Court seeking a direction
  to the State Public Service Commission to issue an
  advise memo for his appointment to the post of Higher
  Secondary School Teacher - English (Junior) in a
  vacancy due to non-joining of respondent no. 2. The
H                             182
SECY., KERALA PUBLIC SERVICE COMMISSION v. 183
      ~         SHEEJA P. R.
Single Judge of the High Court dismissed the writ petition        A
holding that once the main list got exhausted, the
supplementary list could not be kept alive. However, the
Division Bench of the High Court allowed the appeal of
respondent no. 1.
                                                                  B
   Allowing the appeal filed by the Commission, the
Court
     HELD: 1.1. Rule 13 of the K.P .S.C. Rules of Procedure
says that the rank list published by the Commission shall
remain in force for a period of one year from the date on         C
which it was brought into force. The list can also remain
in force till the publication of a new list after the expiry of
the minimum period of one year or till the expiry of three
years whichever is earlier. [Para 11] [189-G]
                                                                  D
     1.2. Once the main list becomes empty or drains out
on the advice of all the candidates, it loses its life;
consequently, supplementary list also automatically
vanishes. The Commission could advise candidates only
on receiving intimation with regard to the non-joining
duty vacancies before the main list got exhausted.                E
Further, it may also be clarified that there is no provision
in the Rules of procedure to prepare a supplementary list
for the general category candidates. Supplementary list
is prepared only in relation to the reserved category
candidates so as to see that the reservation principle is         F
properly and effectively implemented. [Para 10 and 11]
[189-B; 190-A-C]
     Nair Service Society vs. District Officer, Kera/a Public
Service Commission 2003 (5) Suppl. SCR 551 2003        =          G
(12) sec 10 - relied on
     1.3. The point of distinction between the candidates
of the reservation group included in the main list and their
counter-parts of the supplementary list, is that former are
eligible to be considered both on merit and against               H
    184        SUPREME COURT REPORTS             [2013] 1 S.C.R.


A reservation turns depending upon the number of
  vacancies and their placement in the•main list, while the
  latter are intended to fill in the groups in the reserved
  turns caused by the paucity of candidates entitled to
  reservation in the main list. The supplementary list is
B always subject to the main list. Therefore, once the main
  list is exhausted, the supplementary list automatically
  loses its significance. A supplementary list has no
  separate existence, dehors the main list. [Para 12) [190·
    D-F]
C      1.4. In the instant case, the rank list prepared on
  27.4.2009 had expired on 28.9.2010, on the advice of the
  last candidate from the main list. The intimation from the
  Appointing Authority/Director, Kerala Higher Secondary
  Education regarding non-joining of the vacancy was
D received by the Commission only on 12.9.2011, i.e. one
  year after the main list got exhausted. Once the main list
  got exhausted, the supplementary list has no life of its
  own, as has been held in N.S.S. case. The Division Bench
  of the High Court has committed an error in directing the
E Commission to operate the supplementary list. The
  judgment of the High Court is set aside. [Para 9 and 13)
  [189-B-D; 190-G-H)
                         Case Law Reference:

F      2003 (5) Suppl. SCR 551           relied on       para 5
           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 129
    of 2013.
      From the Judgment & Order dated 8.11.2011 of the High
G Court of Kerala at Eranakulam in W.A. No. 817 of 2011.
         V. Giri, Vipin Nair, U. Banerjee (for Temple Law Firm) for
    the Appellant.
      Jogy Scaria, Sudheesh K.K., Usha Nandini V. for the
H Respondents.
 SECY., KERALA PUBLIC SERVICE COMMISSION v. 185
                 SHEEJA P. R.
    The Judgment of the Court was delivered by                     A
    K. S. RADHAKRISHNAN, J. 1. Leave granted.
     2. The Kerala Public Service Commission (in short "the
Commission") has approached this Court aggrieved by the
directions given by the Division Bench of the Kerala High Court,   B
to operate the supplementary list after the main list got
exhausted.
     3. The 1st Respondent herein, who figured as rank no. 3
in t~e Supplementary list, filed Writ Petition No. 34851 of 2010
seeking a Writ of Mandamus, directing the Commission to            C
issue an advise memo for his appointment for the post of Higher
Secondary School Teacher-English (Junior) in a vacancy
occurred due to non-joining of 2nd respondent herein. Learned
Single Judge of the High Court dismissed the writ petition on
9.12.2010 holding that once the main list got exhausted, the       D
supplementary list could not be kept alive. Review Petition No.
89 of 2011 filed against the judgment was also dismissed.
      4. Aggrieved by the said judgment, 1st respondent herein
filed Writ Appeal No. 871 of 2011 before the Division Bench
of the Kerala High Court. It was contended that 1st respondent     E
had secured 3rd rank in the supplementary list and he was
entitled to get appointment in the reservation quota of Ezhava
community. Further, it was also pointed out that 2nd respondent
belonging to the same community, though advised, did not join
duty since she had got another employment. The claim of 1st        F
respondent was that, since he was the next candidate, was
eligible to get advise memo from the Commission so that he
could joint in that non-joining vacancy. The Division Bench of
the High Court took the view that since 2nd respondent did not
join, the 1st respondent should have been issued the advise        G
memo by the Commission. Holding so, the writ appeal was
allowed and the order passed in Review Petition No. 89 of
2011 and the judgment pass~d in Writ Petition No. 34581 of
2010, were set aside. Aggrieved by the said judgment, the
Commission has come up with this appeal.                           H
    186      SUPREME COURT REPORTS                [2013] 1 S.C.R.


A       5. Shri V. Giri, learned senior counsel appearing for the
  Commission, submitted that the issue raised in this case is
  squarely covered by the judgment.of this Court in Nair Service
  Society v. District Officer, Kera/a Public Service Commission
  (2003) 12 SCC 10 (N.S.S. case). Referring to paragraphs 25
B and 36 of that judgment, learned senior counsel submitted that
  once the main list is exhausted, the supplementary list has no
  life and that the Division Bench has not properly appreciated
  paragraph 23 of N.S.S. case. Learned senior counsel also
  submitted that the Division Bench has not properly appreciated
c the scope, meaning and significance of the supplementary list
  which has been prepared after complying with the Rules of
  Reservation. Learned senior counsel pointed out that if
  sufficient number of candidates belonging to the reserved
  groups, including scheduled castes and scheduled tribes, are
D not there in the rank list, it is possible that the communities
  would not be adequately represented in the services as
  envisaged in the rules. The Commission has, therefore, evolved
  a procedure of preparing supplementary lists for the reserved
  groups by lowering the marks at the elimination stage of
E selection, which has been incorporated in Part I of the Rules
  of Procedure of the Commission, published with the
  concurrence of the Government.
       6. Shri Jogy Scaria, learned counsel appearing for the 1st
  respondent, on the other hand, contended that the Division
F Bench has correctly granted the relief and directed the
  Commission to appoint 1st respondent in a non-joining vacancy.
  Learned counsel pointed out that the vacancy arose while the
  main list was in force due to non-joining of the 2nd respondent
  and hence the 1st respondent has a claim over that vacancy.
G Learned counsel also pointed out that the Division Bench has
  correctly applied the principle laid down by this Court in N. S.S.
  case (supra).
      7. We are of the view that the Division Bench has
  completely overlooked the ratio laid down by this Court in
H N.S.S. case (supra). Paragraph 19 of the judgment has clearly
SECY., KERALA PUBLIC SERVICE COMMISSION v. 187
    SHEEJA P. R. [K.S. RADHAKRISHNAN, J.]
interpreted Rule 2(g) of the Kerala Public Commission Rules         A
and Procedures, which is extracted below for easy reference:
            19. The above definition shows that there is only one
    ranked list. Therefore, the supplementary list prepared by
    KPSC to satisfy the rules of reservation has, in fact, no
    statutory backing. For that reason when the main list is        8
    exhausted or expired, supplementary list cannot be
    allowed to operate. If the supplementary list alone is
    allowed to operate it would amount to giving greater
    sanctity to it and long life than the main list prepared in
    accordance with tl'le Rules. Secondly, after the expiry or      C
    exhaustion of the main list if the supplementary list is
    operated it would violate the first proviso to Rule 15(c) of
    the General Rules. The reason is that the NJD vacancies
    in respect of OBC candidates cannot be filled up after the
    expiry or exhaustion of the main list and only reserved         D
    candidates can be advised from the supplementary list
    which would violate 50% rule as no OC category
    candidates could be advised. As rightly contended by Mr
    Venugopal, it would adversely affect the QC category
    candidates and violate the statutory rule. The reason given     E
    by the Division Bench that if any NJD vacancy arises in
    the QC category, the same could be filled up in the next
    batch of appointment thereby, the rights of OC candidates
    can very well be protected without any violation of the
    proviso to Rule 15 of KS&SSR is not legally acceptable.         F
    The above reasoning, in our opinion, is equally applicable
    to NJD vacancies which arise in the reserved categories
    as well. By advising candidates from the supplementary
    list, without any opportunity of balancing the advice with an
    open competition candidate the consequence would have           G
    been a violation of 50:50 rule with a tilt in favour of the
    reserved candidates lasting their quota above 50%. The
    net result is that there will be excess reservation over 50%
    in the year.
    8. The reason for preparation of supplementary list was         H
    188       SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A also considered by this Court in the above mentioned judgment
  in paragraphs 23 and 24. The same are also extracted below
  for easy reference:
                 23. With a view to secure adequate representation
          of reserved communities in the selection and thereby to
B         effectuate the policy of reservation, KPSC prepares what
          it calls supplementary list of candidates for the different
          reserved communities who will be entitled to appointment,
          comprising of a number equal to half the number of turns
          as per the quota to each reservation group. Thus if Muslims
c         were entitled to ten turns in the list, lhe supplementary list
          of Muslims will comprise of at least five Muslims. The
          advantage of this procedure was that no reservation turn
          will be passed over to open competition and reservation
          groups will get the representation due to them, at the same
D         time maintaining the balance of 50:50 between open
          competition and reservation candidates.
                 24. The supplementary list was only in respect of
          reservation categories. There was no supplementary list
          prepared in relation to open competition merit candidates
E         for the reason that where the last of the candidates has
          been advised from the rank list in the open competition,
          there was no further scope for drawing on the
          supplementary list or advising from that list, as all the
          advice hitherto was on the basis of one open competition
F         followed by reservation, thereby keeping the balance of
          50:50. If any more candidates are advised from the
          supplementary list, the number of reservation candidates
          will go up and the 50:50 rule will be violated.
       9. This Court has specifically held that once the main list
G is exhausted, the supplementary list has no survival of its own.
  In the light of the principles laid down by this Court in N.S.S.
  case (supra), we have to examine the various issues raised
  before us. The Commission on 27.4.2009 finalized the rank list
  for the post of Higher Secondary School Teachers-English
H
 SECY., KERALA PUBLIC SERVICE COMMISSION v. 189
     SHEEJA P. R. [K.S. RADHAKRISHNAN, J.]
(Junior), Kerala Higher Secondary Education. The main list            A
consisted of 145 candidates, including persons from open
merit, OBCs, Muslims, Sports and other reservation
categories. 1st respondent was placed in the supplementary
list as rank no. 3 under the category of Ezhava falling under
Other Backward Classes (OBC). 2nd respondent was placed               B
above 1st respondent as rank no.2 in the supplementary list.
The rank list prepared on 27.4.2009 had expired on 28.9.2010,
on the advice of the last candidate from the main list. The
intimation from the Appointing Authority/the Director, Kerala
Higher Secondary Education regarding non-joining of the               c
vacancy was received by the Commission only on 12.9.2011,
i.e. one year after the main list got exhausted. Once the main
list got exhausted, going by the judgment in N.S.S. case
(supra), the supplementary list has no life of its own. The writ
petition was preferred by the 1st respondent only on
                                                                      0
16.11.2010 after the expiry of one year from the date on which
the main rank list got exhausted.
      10. We are of the view that the situation would have been
different, had the NJD vacancies were reported before the
main list got exhausted i.e. on 28.9.2010. The Commission E
could advise candidates only on receiving intimation with ·
regard to the non-joining duty vacancies before the. main list
got exhausted. So far as this case is concerned, NJD vacancy
was reported and received by the Commission only on
12.9.2011, by that time, the main list got exhausted. In the F
absence of the main list, there is no independent existence of
the supplementary list.
     11. Rule 13 of the K.P.S.C. Rules of procedure says that
the ranked lists published by the Commission shall remain in
force for a period of one year from the date on which it was          G
brought into force. The list can also remain in force till the
publication of a new list after the expiry of the minimum period
of one year or till the expiry of three years whichever is earlier.
Rule 13 has five other provisos. It is unnecessary to refer to
those provisos as far as the present case is concerned. We            H
    190       SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A are in this case mainly concerned with the question whether the
  main list got exhausted or not. Once the main list becomes
  empty or drains out on the advice of all the candidates, it loses
  its life; consequently supplementary list also automatically
  vanishes. It was pointed out that the Commission has got the
B power to extend the life of the main list upto three years but that
  power has not been exercised in the present case. Further, we
  may also clarify that there is no provision in the Rules of
  procedure to prepare a supplementary list for the general
  category candidates. Supplementary list is prepared only in
c relation to the reserved category candidates so as to see that
  the reservation principle is properly and effectively implemented.
  We, therefore, do not agree with the view expressed by Justice
  S.B. Sinha in the concurring judgment in N.S.S. case, that a
  supplementary list has to be prepared for the open category
0 candidates also as per the proviso to Rules 4 and 12.
        12. The point of distinction between the candidates of the
  reservation group included in the main list and their counter-
  parts of the supplementary list, is that former are eligible to be
  considered both on merit and against reservation turns
E depending upon the number of vacancies and their placement
  in the main list, while the latter are intended to fill in the groups
  in the reserved turns caused by the paucity of candidates
  entitled to reservation in the main list. The supplementary list
  is always subject to the main list. Therefore, once the main list
F is exhausted, the supplementary list automatically loses its
  significance. A supplementary list has no separate existence,
  dehors the main list.
       13. We are, therefore, of the view that the contention of the
  learned senior counsel appearing for the appellant that the
G Division Bench of the High Court has committed an error in
  directing the Commission to operate the supplementary list is
  sustainable. Appeal is, therefore, allowed and the judgment of
  the Division Bench of the High Court is set aside.
H R.P.                                              Appeal allowed.