Siraj vs High Court of Kerala

K. Thankappan, J.—Questions involve in both the Original Petitions are identical and hence, they have been heard together and are being disposed of by this common judgment.

By Ext.P1 notification dated 28.3.2001 applications were invited for appointment to the post of Munsiff-Magistrate in the Kerala Judicial Service in the pay scale of Rs. 2,500-4,000/- (pre-revised). Probable number of vacancies is 70. The petitioners submitted their applications for the above post. They belong to reserved categories namely, Muslim (Backward Community) and Hindu-Kurava (Scheduled Caste) respectively. Qualifications and method of recruitment are also prescribed in Ext.P1. Clause (6) of Ext.P1 deals with reservation of appointment, which reads as follows:-

"6. Reservation of appointment:-- The Rules relating to reservation of appointment for Backward Classes, Scheduled Castes and Scheduled Tribes contained in Part II of the Kerala State and Subordinate Services Rules, 1958 (Rules 14 to 17) shall apply to appointment by direct recruitment."

Clause 10 of Ext.P1 deals with scheme of written and oral examinations, which reads as follows:-

"10. Scheme of written and oral examinations,-- (1) Written examination -- The written examination shall consist of the following four papers carrying a maximum of 100 marks each. The time for each paper shall be two and a half hours.

Paper I Code of Civil Procedure, Limitation Act, Specific Relief Act, Court Fees and Suits Valuation Act, Kerala Stamp Act, Kerala Civil Courts Act and Kerala Small Cause Courts Act.

Paper II Transfer of Property Act, Contract Act, Kerala Land Reforms Act, Kerala Building (Lease and Rent Control) Act, Panchayat Raj Act, Municipalities Act, Family Courts Act and Revenue Recovery Act.

Paper III Criminal Procedure Code including framing of charges and granting bail - Part A. Indian Evidence Act, General Principles of Criminal Jurisprudence - Part B.

Part IV Indian Penal Code, Kerala Police Act, Abkari Act, Probation of Offenders Act, Prevention of Food Adulteration Act, Forest Act and N.D.P.S. Act. (2) Oral Examination--There shall be an oral examination carrying a maximum of 50 marks for deciding the candidate''s general knowledge, grasp of General Principles of Law, analytical ability and suitability for appointment as Munsiff-Magistrate.

(3) Only candidates who secure not less than 35 per cent marks in each of the papers of the written examination with an overall minimum of 45 per cent of the total marks of written examination and 30 percent of the marks for the oral examination shall be eligible for appointment provided that the minimum marks required for pass in each paper of the written examination shall be 30 percent with an overall minimum of 35 per cent of the total marks for candidates belonging to Scheduled Castes/Scheduled Tribes. Fraction of half or more than half shall be regarded as full mark and less than half shall be ignored.

(4) No candidate who has not secured the minimum marks prescribed above in the written examination shall be called for oral examination.

(5) The marks secured by the candidates at the oral examination shall be added to the total marks secured by them at the written examination and the names of all those candidates shall be arranged in the respective lists on the basis of the total marks secured by them."

The petitioners submit that even though they had come out successful in the written examination their names were not included in Ext.P2 select list on the ground that they failed to obtain the prescribed minimum marks in the oral examination. The petitioners submit that prescribing minimum 30 per cent marks in the oral examination in Ext.P1 is in violation of the provisions of the Kerala Judicial Service Rules, 1991, hereinafter referred to as ''the Rules'' and in violation of the principles of reservation required under Rules 14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958, hereinafter referred to as K.S. & S.S.R. The further case of the petitioners is that Ext.P2 select list prepared by 1st respondent-High Court is in violation of Sub-rule (2) of Rule 7 of the Rules, as the Selection Board had not prepared any separate list for reserved category to fill up the reserved quota. It is also submitted that the filling up of reserved posts i.e., Sl. Nos. 60, 62, 64, 66, 68 and 70, from open merit candidates on the ground of non-availability of reserved candidates in the select list is in violation of the principles of reservation and arbitrary.

This Court admitted the Original Petitions and notices were ordered on the respondents. Since all selected candidates are not made party to the proceedings, this Court by order dated 16.1.2004 in I.A. No. 412/2004 in O.P. No. 5219/2002 allowed a paper publication in the Mathrubhoomi Daily. Respondents 3 to 8 are represented in the representative capacity. Despite the paper publication none else other than 9th respondent and one Shajahan was impleaded.

First respondent-High Court filed a counter affidavit through the Government Pleader in both the Original Petitions. In the counter affidavit, it is stated that as the petitioners had failed in the oral examination, they were not eligible for the benefit of communal reservation and consequent selection for the appointment. It is also stated in paragraph 8 of the counter affidavit that "only such of those candidates who come out successful in the written and oral examinations can be considered for the benefit of communal reservation". Further it is stated in paragraphs 10 & 11 of the counter affidavit as follows:-

10) Accordingly a merit list of 88 candidates prepared in accordance with para 10(5) of Ext.P1 Notification was forwarded to the Government and from the said list, 70 candidates were selected for appointment, strictly following the rules of communal reservation as contained in Rules 14 to 17 of the Kerala State and Subordinate Services Rules. The list of 70 candidates so selected was approved by the Government as per Notification No. 8402/C3/2002/Home dt. 23.3.2002.

11) The standard of pass for the written and oral examinations are pre-set and pre-stated and the same cannot be deviated from or liberalised for any purpose, let alone to accommodate the members of any caste or community as it would then be open to challenge on many other grounds. The benefit of communal reservation under Rules 14 to 17 of Kerala State and Subordinate Services Rules is available only to those candidates who succeed in the entire selection process.

No counter affidavit is seen filed by the 2nd respondent-State. In the counter affidavit filed on behalf of the third respondent it is stated that the selection of the candidates was made strictly in compliance with Rule 14 and Rule 17 of Part II of the K.S. & S.S.R. In paragraph 3 of the counter affidavit it is further stated as follows:

"It is submitted that Rule 15(b) of the Kerala Subordinate Service provides the following "if no suitable candidate is available for selection in any of the communities group of candidates, selection shall be made from open competition candidates". The selection committee did not adjudge the petitioner as selected to be included in the reservation quota and he was found unsuitable".

First point to be decided is with regard to the minimum bench marks prescribed both for the written and oral examinations. There is no provision either in the Rules or in the K.S. & S.S.R. to fix cut off marks in the oral examination. The 1st respondent-High Court has prescribed minimum 30% marks in the oral examination and if any candidate fails to get that 30% marks, they will be disqualified from considering for selection to the post. It is stated in the counter affidavit dated 22.11.2002 that out of 118 candidates called for and interviewed, 30 candidates including the petitioners were not found qualified for selection as they had not secured minimum 30% marks in the oral examination. But, it is not clear that how many candidates from each group became successful in the written examination.

Rule 7 of the K.S. & S.S.R. empowers the High Court to prepare a select list after following such procedures which the High Court deems fit and by following the Rules 14 to 17 of Part II of K.S. & S.S.R. But these rules do not permit the 1st respondent-High Court to prescribe any minimum marks for written or oral examinations. These rules only empower the High Court to conduct examinations either written or oral or both to measure the general knowledge, analytical ability etc. of a candidate and prepare a select list after following such procedure as it deems fit.

The Apex Court in a decision reported in Dr. Krishna Chandra Sahu and Ors. v. State of Orissa and Ors. (1995 (5) SLR 337), held that "the members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Article 309. It is basically the function of the Rule making authority to provide the basis for selection". In P.K. Ramachandra Iyer and Others Vs. Union of India (UOI) and Others, , the Supreme Court held as follows:-

"After the candidate obtains minimum marks or more at the written test and he becomes eligible for being called for viva voce test, he has to appear at the viva voce test. Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva voce test and the final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva voce examination. The additional qualification which ASRB prescribed to itself namely, that the candidate must have a further qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the Rules. By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm. It however does not appear in the facts of the case before us that because of an allocation of 100 marks for viva voce test, the result has been unduly affected. We say so for want of adequate material on the record. In this background we are not inclined to hold that 100 marks for viva voce test was unduly high compared to 600 marks allocated for the written test. But the ASRB in prescribing minimum 40 marks for being qualified for viva voce test contravened Rule 14 inasmuch as there was no such power in the ASRB to prescribe this additional qualification, and this prescription of an impermissible additional qualification has a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidate at written test plus viva voce test. Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high-up in the merit list was likely to be rejected on the ground that he has not obtained minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38 marks at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the ground that he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to Rules and the merit list prepared in contravention of the Rules cannot be sustained."

The same question was considered by the Apex Court in a decision reported in Durgacharan Misra Vs. State of Orissa and Others, . It was a case relating to selection and appointment of Munsiff in the State of Orissa wherein the Supreme Court held that prescribing of minimum marks for viva voce test could not be justified, as the rules do not prescribe minimum qualifying marks for viva voce test. From the above authoritative pronouncements of the Supreme Court it can be seen that the Supreme Court has consistently taken the view that only the rule making authority can fix cut off marks in the matter of oral examination and the person who is qualified in the written test cannot be eliminated from the zone of consideration by fixing cut off marks in the oral examination. In the present case apart from the candidates belonging to Backward Class the candidates belonging to Scheduled Castes and Scheduled Tribes are also disqualified for selection by fixing 30% minimum marks for the oral examination which is arbitrary because unequals are treated alike; the Scheduled Castes are most backward and are eligible for prospective discrimination against the forward classes. Hence, the 1st respondent-High Court has no authority to fix a cut off marks in the examination.

The second point to be considered is that 1st respondent has not prepared Ext.P2 select list as per the provisions contained in the Rules. Sub-rule (2) of Rule 7 of the Rules reads as follows:-

"(2). The list consisting of not more than double the number of probable vacancies notified shall be forwarded for the approval of the Governor. The list approved by the Governor shall come into force from the date of the approval and shall remain in force for a period of two years or until a fresh approved list is prepared, whichever is earlier."

High Court found as per ranked list dated 15.11.2001 that only 118 candidates had qualified in the written examination including 4 Scheduled Castes/Scheduled Tribes communities. It is also to be noted that after holding the written and oral examinations the 1st respondent-High Court has drawn a list of 88 candidates and finally a list dated 7.2.2000 with the names of 70 candidates was proposed as found suitable for appointment in the direct recruitment quota. Rule 7(2) of the Rules provides that ranked list which consists not more than double the number of probable vacancies notified shall be forwarded for the approval of the Governor. No such list was seen prepared or published in this case. Hence it is crystal clear that the procedure adopted by the 1st respondent-High Court for the preparation of Ext.P2 list is absolutely illegal and the list prepared by the 1st respondent-High Court is in flagrant violation of the principles laid down in Rule 7 of the Rules as well as Rules 14 to 17 of the K.S. & S.S.R. and also in violation of the principles laid down in a catena of decisions by the Apex Court.

Further regarding short-listing of candidates, it has come out in evidence that more than 1800 candidates have applied for 70 posts but only 88 names were included in the list and out of which only 70 were considered as suitable for appointment. In this context, a decision of the Apex Court reported in State of Punjab and Others Vs. Manjit Singh and Others, , can be taken as a guidance in which the Apex Court held in paragraphs 6 and 7 as follows:-

"6. Now adverting to the point under consideration, it may be observed that so far the powers and functions of the Commission in shortlisting of candidates is concerned, there can certainly be no doubt about it. Say for example 10,000 candidates apply for recruitment to 100 posts, it would obviously not be possible to take full test/examination and interview, of such large number of applicants, though eligible. In that event shortlisting of the candidates by screening out those, in respect of whom it would serve no purpose to call them for further test, may be excluded by adopting the method of screening test. Generally speaking a ratio of 3:5 candidates for one post is normally accepted depending upon the number of seats. Therefore, for 100 posts the selecting body may in order of merit take out above first 500 candidates for further tests/ interview. The rest of the candidates would be screened out. No candidate excluded by adopting such a method for shortlisting can raise any grievance whatsoever.

But for such shortlisting as indicated above, it is not necessary to fix any minimum qualifying marks. Any candidate on the top of the list at number 1 down up to 500 would obviously constitute the shortlisted zone of consideration for selection. For the purpose of elaboration it may be observed that in case some cut of marks is fixed in the name of shortlisting of the candidates and the number of candidates obtaining such minimum marks, suppose is less than 100 in that event screening test itself will amount to a selection by excluding those who though possess the prescribed qualification and are eligible for consideration but they would be out of the field of consideration by reason of not crossing cut off marks as may be fixed by the recruiting body. This would not be a case of shortlisting. In shortlisting, as observed above, any number of candidates required in certain proportion of the number of vacancies, they may be shortlisted in order of merit from serial No. 1 upto the number of candidates required."

In the case in hand more than 1800 candidates have applied (only 1292 are found as valid) for 70 posts. But under the pretext of shortlisting, many qualified candidates were irregularly and illegally taken out of the field of consideration for the reason that they had not obtained qualifying marks in the oral examination. Hence, Ext.P2 list now published by the 1st respondent-High Court is in clear violation of the provisions of the Rules.

The next contention of the petitioners is that while preparing and publishing the list of candidates (Ext.P2) the 1st respondent-High Court has not followed the principles of reservation contained in Rules 14 to 17 of K.S. & S.S.R. It is the mandate of the Kerala Public Service Commission Rules of Procedure that Public Service Commission shall also prepare a separate list in the order of merit of the candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes. Proviso to Rule 4(iv) of the Kerala Public Service Commission Rules of Procedure reads as follows:-

"Provided that the Commission may also prepare separate ranked lists in the order of merit of candidates coming under separate groups in accordance with the qualifications or other conditions as stipulated in the notification.

Provided further that for the purpose of satisfying the rules of reservation of appointment to Scheduled Castes, Scheduled Tribes and other Backward Classes also the Commission may prepare such supplementary lists as found necessary from time to time in the order of merit of the candidates belonging to such classes."

Rule 12 of the Kerala Public Service Commission Rules of Procedure reads as follows:-

"12. All the candidates interviewed and who obtained not less than the minimum marks fixed by the Commission shall be included in the ranked list prepared in the order of merit:

Provided where the candidates have been called for interview for the purpose of satisfying the rules of reservation alone such candidates who have got not less than the prescribed minimum marks in the interview shall be included in the supplementary list or lists arranged in the order of merit among the candidate, belonging to each class:

Provided further that the Commission may also prepare list or lists of such categories of candidates who have got not less than the prescribed minimum marks in the interview and who are entitled to priority according to the terms of the notification inviting applications."

Proviso to Rule 4 of the Kerala Public Service Commission Rules of Procedure shows that a separate ranked list of candidates coming under reserved categories also shall be prepared. Proviso to Rule 12 would also shows that a supplementary list shall also be prepared in the order of merit of the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes who have got not less than the prescribed minimum marks in the interview. ''Supplementary list'' can be considered as the part of the ranked list drawn for the purpose of filling up of reserved vacancies. Appointments can also be made from the supplementary list. Though these rules are not statutory, these rules are meant for the compliance of the statutory rules of Rules 14 to 17 of the Rules. If this procedure is followed, there will not be any chance for passing over any of the reserved communities to open merit. It is seen from the records that Sl. Nos. 60, 62, 64, 66, 68 and 70 are reserved posts, but these posts are now recommended to be filled up from open merit candidates. Selection can only be done by applying Rule 7 of the Rules and in consonance with Rules 14 to 17 of the K.S. & S.S.R. It is clear from the records that proposal to fill up entire 70 posts is without applying the principles of reservation and the filling up of reserved posts i.e., Nos. 60, 62, 64, 66, 68 and 70 is not justifiable.

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair (see "The period" - A Tale of Two Cities by famous writer Charles Dickens). This quotation is to be remembered when this Court discusses the need of reservation to be continued in the country.

Dr. B.R. Ambedkar, the Chairman of the Drafting Committee clarified the matter in his speech which put an end to all discussion and led to adopting of draft Article 10(3) (Article 16(4) as it stood at that time). It is relevant in this case which reads as follows:-

"... there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all. Of the three points of view, the first is that there shall be equality of opportunity for all citizens. It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this principle of equality or opportunity. Another view mostly shared by a section of the House is that, if this principle is to be operative and it ought to be operative in their judgment to its fullest extent - there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have. Then we have quite a massive opinion which insists that although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a ''proper look-in'' so to say into the administration. If Honourable Members will bear these facts in mind - the three principles we had to reconcile, - they will see that no better formula could be produced than the one that is embodied in Sub-clause (3) of Article 10 of the Constitution. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now - for historical reasons - been controlled, by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public service to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principles, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If Honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word "backward" which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly......

Somebody asked me: "What is a backward community"? Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government."

Sub-clause (4) of Article 15 of the Constitution of India reads as follows:-

"(4) Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially "and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."

Sub-clause (4) of Article 16 reads as follows :-

"(4). Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."

Article 335 deals with the claims of Scheduled Castes and Scheduled Tribes to services and posts, which reads as follows:-

"The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State."

Amendments brought into Articles 15, 16 and 335 of the Constitution by the Constitution (First Amendment) Act, 1951, the Constitution (Eighty-first Amendment) Act, 2000, the Constitution (Eighty-fifth Amendment) Act, 2001, the Constitution (Seventy-nineth Amendment) Act, 1999 and the Constitution (Eighty-second Amendment) Act, 2000 are very relevant in these, cases.

Reservation clause contained in the Constitution of India was questioned in The State of Madras Vs. Srimathi Champakam Dorairajan, , B. Venkataramana Vs. The State of Madras and Another, , The General Manager, Southern Railway Vs. Rangachari, and M.R. Balaji and Others Vs. State of Mysore, This issue was again considered by the Apex Court in a decision reported in State of Kerala and Another Vs. N.M. Thomas and Others, , and held that differential treatment was given to members of Scheduled Castes and Scheduled Tribes for the purpose of giving them equality consistent with efficiency. In paragraph 44 of the above decision reads as follows:-

"44. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of backward classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and Scheduled Tribes, who are said by this Court to be backward classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Articles 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept of equality is equality of opportunity for appointment. Preferential treatment for members of backward classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.

The latest decision in this aspect is the decision of the Apex Court in Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., . It is also relevant to note a decision of the Apex Court reported in Ajit Singh and Others Vs. The State of Punjab and Others, . In paragraphs 38 of the above decision reads as follows:-

"38. It must be noted that whenever a reserved candidate goes for recruitment at the initial level (say Level 1), he is not going through the normal process of selection which is applied to a general candidate but gets appointment to a post reserved for his group. That is what is meant by "reservation". That is the effect of reservation".

From the above legally accepted position of reservation and historical background for inclusion of protective provisions in the Constitution, following conclusions are arrived at: (i) As per the constitutional mandate maximum possible representation shall be provided to socially, economically and educationally backward class or classes of communities especially to the Scheduled Castes and Scheduled Tribes so as to bring them to the main stream, (ii) certain percentage of relaxation may be allowed in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matter of appointments to any class or classes of services or posts in connection with the affairs of the Union or a State and (iii) Reservation in public appointments would minimise the non-representation and inadequate representation of reserved categories.

With regard to filling up of reserved posts, that is, Sl. Nos. 60, 62, 64, 66, 68 and 70, from open merit, this Court has already found in previous paragraphs of this judgment that such a situation arose only because of the non-drawing of separate and supplementary lists of candidates belonging to reserved communities. That apart the 1st respondent-High Court is not competent to decide whether the above posts are to be de-reserved or has to be filled up as per Rules 15(b) of the K.S. & S.S.R. It is the competence of the Government to decide the above question. In this context, a decision of the Apex Court reported in Rajasthan Public Service Commission and Anr. v. Harish Kumar Purohit and Ors. 2003 4 AD (SC) 1. In the above judgment the Apex Court held that it was open to the Government to decide as to whether the posts are to be de-reserved or carry forwarded. It is also not forthcoming from the records that the 2nd respondent-State had taken any such decision. Hence, the filling up of the above posts from open merit is arbitrary and illegal.

While moulding the relief to be granted in these Original Petitions this Court also consider the fact that Ext.P1 application was invited on 26.3.2001 and that educational qualifications and method of appointment and other details are contained in Ext.P1. Having been accepted Ext.P1 the petitioners applied to the post and appeared for the written and oral examinations. Selected candidates had already undergone training and they were posted in service. Hence, at this distance of time, this Court feels that interference in Ext.P2 in its entirety is not justified as it will injure equity and good conscience. Even the plea of estoppel cannot be applied in a decision taken in violation of statute as held in decisions reported in State of Punjab Vs. Hardyal, , Nookala Setharamaiah Vs. Kotaiah Naidu and Others, and Union of India and Others Vs. Rakesh Kumar etc., , this Court is of the view that Ext.P2 can be interfered only to the extent that the decision to fill up Sl.Nos. 60, 62, 64, 66, 68 and 70, which are reserved posts, from the open merit candidates.

Hence, on the basis of discussion of facts and principles of law laid down in this judgment the Original Petitions are disposed of declaring that the decision to fill up Sl.Nos. 60, 62, 64, 66, 68 and 70 in Ext.P2 from open merit candidates is illegal. Consequently, respondents 1 and 2 are restrained from filling up the above posts from Ext.P2 list.