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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 129   OF 2013 [Arising out of SLP (Civil) No. 1107 of 2012]

The Secretary, Kerala Public Service Commission  .. Appellant

Versus

Sheeja P.R. and Another      .. Respondents

J U D G M E N T

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,  

to  operate  the  supplementary  list  after  the  main  list  got  

exhausted.   

3. The 1st Respondent herein, who figured as rank no. 3 in  

the Supplementary list,  filed Writ Petition No. 34851 of 2010  

seeking a Writ of Mandamus, directing the Commission to issue

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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  

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  

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 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 memo by the Commission.  Holding so,

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the writ appeal was allowed and the order passed in Review  

Petition  No.  89  of  2011  and  the  judgment  passed  in  Writ  

Petition No. 34581 of 2010, were set aside.  Aggrieved by the  

said judgment, the Commission has come up with this appeal.

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, Kerala Public Service   

Commission (2003) 12 SCC 10 (N.S.S.  case).    Referring to  

paragraphs 25 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 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 not there in the rank list, it is possible  

that the communities would not be adequately represented in

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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 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  

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.  

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  N.S.S. case  

(supra).      Paragraph  19  of  the  judgment  has  clearly

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interpreted  Rule  2(g)  of  the  Kerala  Public  Commission  Rules  

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  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 the Rules. Secondly, after the expiry  or 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 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 OC category candidates  and violate the statutory rule. The reason given by  the Division Bench that if any NJD vacancy arises in  the OC 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.  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  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.

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8. The reason for preparation of supplementary list was 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  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 were entitled to  ten  turns  in  the  list,  the  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 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  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  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.

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9. This Court has specifically held that once the main list 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  

(Junior),  Kerala  Higher  Secondary  Education.   The  main  list  

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 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 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

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has no life of its own.  The writ petition was preferred by the 1st  

respondent  only  on 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 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 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 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

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provisos as far as the present case is concerned.  We 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  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 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  

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

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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  

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  

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.

...................................J. (K. S. Radhakrishnan)

...................................J. (Dipak Misra)

New Delhi, January 8, 2013

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