Dr. Abdul Haleem P.P. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943 WP(C) NO. 4613 OF 2021** ## **PETITIONER/S:** DR. ABDUL HALEEM P.P. AGED 50 YEARS S/O. KUNHALIKUTTY P.P, RESIDING AT POTTAMMAL HOUSE, AMMHS ROAD, PULIKKAL P.O, MALAPPURAM DISTRICT-673 637 BY ADVS. GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE SRI.A.L.NAVANEETH KRISHNAN ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION (P.O), KANNUR DISTRICT, 670 002, REPRESENTED BY ITS RESGISTRAR. 3 THE VICE CHANCELLOR, KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O, KANNUR DISTRICT-670 002 4 THE SYNDICATE, KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION (P.O), KANNUR DISTRICT670 002, REPRESENTED BY THE CHAIRMAN. 5 MUHAMMED ISMAIL B, ASSOCIATE PROFESSOR, DEPARTMENT OF INFORMATION TECHNOLOGY, KANNUR UNIVERISITY, THAVAKKARA, KANNUR-670 002 BY ADVS. SRI.M.SASINDRAN P.K.IBRAHIM K.P.AMBIKA ## **OTHER PRESENT:** GP SRI JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON 7.10.2021 DELIVERED THE FOLLOWING: **WP(C) NO. 4613 OF 2021** **2** ## **JUDGMENT** The prayer in the writ petition is for declaring the 5[th] respondent as ineligible for being selected as Associate Professor, pursuant to Ext.P1 notification. 2. Petitioner is a holder of a post graduate in Computer Science and Engineering from National Institution of Technology, Calicut and completed Ph.D in Lightweight and Trusted Data Formatting Schemes for web transactions from the National Institution of Technology, Calicut. He submitted an application pursuant to Ext.P1 notification of the University as being qualified and eligible to be appointed to the post of Associate Professor. As per the general instructions for applicants, Ext.P3 the reservation for applicants from SC, ST, OBC (non-creamy layer), and differently abled categories was to be applicable as per Kerala Government norms. Applicants seeking reservation benefits for SC/ST/OBC/Differently abled categories must upload the necessary documents justifying the claim of respective reservation as per Govt. of Kerala ,issued,from competent Authority. Petitioner was called for the interview and vide Ext.P6 dated 21.10.2020, was shown as Sl.No.2 in the rank list whereas respondent No.5 was **WP(C) NO. 4613 OF 2021** **3** appointed as he had stood first. 3. Learned counsel appearing on behalf of the petitioner submitted that Ext.P7 notification of the M.G university clearly provided that the natives should be either SC/ST or backward class from the Kerala and not from the other states. University proceeded with the selection process and permitted the 5[th] respondent, who is a permanent resident of Karnataka and having non-creamy layer certificate issued by the State of Karnataka. Rule 2(14) of the Part -I KS &SSR specifically provides that other backward classes means 'the classes which are declared as such by the State Government under Article 16(4) of the Constitution of India'. The schedule to Part -I KS & SSR contains the list of communities, which are eligible for reservation under the various categories. List III annexed to the Schedule III of Part-I KS & SSR reads as Other Backward Classes 'in' Kerala State thus, the intention of the rule making authority was that only Keralites were eligible for reservation under this category. As per Chapter III clause (3) of the Kannur University First Statues, the appointment to the teaching post should have been conforming the norms of reservation provided in Rule 14 to 17A of the KS & SSR. The provisions of the KS & SSR are uniformly applicable to all the **WP(C) NO. 4613 OF 2021** **4** universities in the State and there is no exemption or relaxation granted to the Kannur University. The law with regard to reservation of OBC, other backward classes of a particular area is no longer _res integra_ in view of the decision of the Supreme Court in _**M.C.D v. Veena and Others (2001) 6 SCC 571**_ and recent judgment in P _**ankaj Kumar v. State of Jharkhand and Ors.**_ in Civil Appeal No. 4864 of 2021 arising out of SLP (Civil) No. 13473 of 2020 decided on 19.8.2021. Rule 2(14) of KS & SSR, 1958 envisages that the Other Backward Classes mean the classes declared as such by the State Government under Article 16(4) of the Constitution of India and lists of such castes, tribes and classes, so declared are included as Lists I, II and III in the Schedule to this Part. List III, deals with other backward classes in Kerala State at Entry No.48 as Muslim or Mappila. Appointment of respondent No.5 is illegal and against the provisions of the aforementioned Rules. 4. On the other hand, learned counsel appearing on behalf of the respondent No.5 submitted that the petitioner is estopped from taking such a contention after having unsuccessfully participated in the selection process without any demur. In support of the aforementioned contentions relied upon judgment of the **WP(C) NO. 4613 OF 2021** **5** Supreme Court in _**Ramesh Chandra Shah and others v. Anil Joshi and others [2013 (11) SCC 309]**_ . Rule 14 of KS & SSR prescribing reservation in favour of the backward classes had identified Muslims entitled to reservation in the service. Selection to the post mandatorily based on merit through All India Advertisement, any member belonging to the Muslim community and reckoned as backward in any State in the Union of India is entitled to be considered to the post. Respondent No.5 has an outstanding academic carrier to his credit as he has many publications in peer reviewed journals. 5. On the other hand learned counsel for the University submitted that the 2[nd] respondent University issued Ext.P1 notification inviting application from eligible candidates for the post of Associate Professor. As per the UGC regulation 2018, the direct recruitment to the post of Assistant Professor, Associate Professor and Professor in the Universities and Colleges and Senior Professor in the University shall be on the basis of merit through “All India Advertisement” followed by selection by a duly constituted selection committee as per the provisions made under these Regulations. A candidate belonging to Muslim community from any State of India could participate in the selection process if **WP(C) NO. 4613 OF 2021** **6** the community is a Muslim notified as backward class community in the native State of the candidate. 5[th] respondent is a native of the State of Karnataka and belongs to the Muslim community which is notified as backward class in the State of Kerala as well as the State of Karnataka. Muslim or Mappila is included in the list III of Schedule attached to the Part I of the KS & SSR 1958 as other backward classes in the State of Kerala. Muslim is also included in the list of other backward classes in the State of Karnataka also. University, in the matter of reservation, followed the provisions of KS & SSR. The contention of the petitioner that the non Keralite was totally ineligible for participation is wholly misplaced and incorrect much less without any basis. 6. I have heard the learned counsel for the parties and appraised the paper book. It would be apt to reproduce the relevant portion of Ext.P1 notification. ## _**NOTIFICATION OF POSTS OF ASSOCIATE PROFESSOR**_ _Online applications are invited from eligible candidates for the post of Associate Professor, in the Academic Level 13A of 7th Central Pay Commission Pay Matrix, in various departments of the University._ _The last date for receipt of applications is 25.10.2019. For details, visit Kannur University Website www.kannuruniversity.ac.in. ONLY ONLINE APPLICATIONS WILL BE CONSIDERED. Any addendum/corrigendum shall be posted only on the University website._ **WP(C) NO. 4613 OF 2021** **7** ## _**Position of vacancies of Associate Professors in various Deapartments freshly notified as per notification No.Acad B3/10808/2018-3 dated 3.10.2019**_ _xxxx_ _6. Information Technology MUSLIM – 1_ 7. Mahatma Gandhi University caused an advertisement dated 3.11.2020, Ext.P7 for appointment of Professor in various schools by specifying that the natives of States other than Kerala State shall not apply for the post notified exclusively under community reservation quota. Clause 4 of the notification reads as under: 1.4. Natives of States other than Kerala State shall not apply for the post notified exclusively under community reservation quota. 8. The contentions of the learned counsel for the 5[th] respondent and University of non maintainability of the writ petition in not challenging Ext.P1 in my view is required to be rejected on the premise that the advertisement clearly prescribed that the reservation would be applicable as per the Kerala Government norms. 9. Vide Ext.P12, on a specific query under RTI Act, it was answered that as per the Cochin University of Science and Technology Act, 1986 in making appointments for all posts as **WP(C) NO. 4613 OF 2021** **8** determined by the Syndicate in any service, class or category under the University, the University shall Mutatis Mutandis observe provisions of clauses (a), (b) and (c) of Rule 14 and also the provisions of Rules 15,16,17 and 17A of the Kerala State and Subordinate Service Rules, 1958, as amended from time to time. The said information is extracted herein below: _Qn. No.1, 2 and 3: No. As per the Cochin University of Science and Technology Act, 1986 in making appointments for all posts as determined by the Syndicate in any service, class or category under the University, the University shall mutatis mutandis observe the provisions of clauses (a), (b) and (c) of Rule 14 and the provisions of Rules 15,16,17 and 17A of the Kerala State and Subordinate Service Rules, 1958, as amended from time to time. The Cochin University of Science and Technology Act, 1986 is available in the official website to the University (www.cusat.ac.in)._ ## 10. Rule 14 of part I of KS & SSR reads thus: ## _**Scheduled Castes, Scheduled Tribes and Other Backward Classes**_ 1.14. _Scheduled Castes and Scheduled Tribes mean the Castes and Tribes declared as such by the President of India under Article 341(1) and 342(1) of the Constitution of India and Other Backward Classes mean the classes declared as such by the State Government under Article 16(4) of the Constitution of India. Lists of such castes, tribes and classes, so declared are included as Lists I, II and III respectively in the Schedule to this Part._ 11. List III, deals with other backward classes in Kerala State and at Entry No.48 is Muslim or Mappila. It is not in doubt that the respondent No.5 also belongs to Muslim community of **WP(C) NO. 4613 OF 2021** **9** State of Karnataka. Similar controversy came to be pondered by the Supreme Court in _**M.C.D**_ (Supra) wherein in paragraph 6, it was observed as under: _Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belongs thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in other State and a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs._ 12 In the latest judgment in **Pankaj Kumar v. State of** **Jharkhand and Ors in Civil Appeal No.4864 of 2021** , what followed is that a candidate had been brought up and taken education within the territory of Bihar and later had fallen within jurisdiction of Jharkhand after the Bihar Reorganization Act, 2000. He belonged to Scheduled Caste category and a certificate was issued by the competent authority in the State of Jharkhand. **WP(C) NO. 4613 OF 2021** **10** In the year 1999, was appointed to the post of Assistant Teacher in a School in Ranchi, the capital of Jharkhad against the post reserved for SC category and pursuant to the cadre revision on bifurcation of the States, opted the State of Jharkhand. While serving as a teacher, for going forward and fulfilling his ambitions, appeared as a member of SC category in the third Combined Civil Services examination, 2008 pursuant to an advertisement No.11 of 2007 published by the State of Jharkhand. Having sat in the examination both preliminary and main followed with an interview and his name appeared at Sl.No.5 against 17 vacancies reserved for Scheduled Caste category. But appointment was withheld and persons lower in order of merit in the Scheduled caste category were appointed in 2010. The supreme court noticed all the contentions and the judgments cited in support thereof ie., in _**Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and Others (1990 (3) SCC 130), Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. Vs. Union of India and Another (1994 (5) SCC 244) and Bir Singh Vs. Delhi Jal Board and Others (2018 (10) SCC 312)**_ and in paragraphs 38 and 39 of the **WP(C) NO. 4613 OF 2021** **11** ## judgment, observed as under: _38. This Court, while rejecting the contention that the member of the Scheduled Castes/Scheduled Tribes should get the benefit for the purpose of Constitution through out the territory of India, observed that if such contention is to be accepted, the very expression “in relation to State” would lose its significance. Marri Chandra Shekhar Rao(supra) was further followed by another Constitution Bench of this Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr.(supra) which further came to be followed by another Constitution Bench of this Court in Bir Singh(supra) wherein in para 34, it was held as under:-_ _“34. Unhesitatingly, therefore, it can be said that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education. The expressions “in relation to that State or Union Territory” and “for the purpose of this Constitution” used in Articles 341 and 342 of the Constitution of India would mean that the benefits of reservation provided for by the Constitution would stand confined to the geographical territories of a State/Union Territory in respect of which the lists of Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issued from time to time. A person notified as a Scheduled Caste in State ‘A’ cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State ‘A’.”_ _39. So far as involuntary migration from one State to another State is concerned, the Constitution Bench of this Court in Marri Chandra Shekhar Rao(supra) taking note of the fate of those castes/tribes seeking protection of being classed as Scheduled Castes or Scheduled Tribes in the State of their origin when, because of transfer or movement of their father or guardian’s business or service, they move to another State having considered the fate of their migration from one State to another State being involuntary, by force or circumstances either of employment or of profession, left it for the legislature or the Parliament to consider it for appropriate legislation bearing that aspect in mind that their rights and privileges as_ **WP(C) NO. 4613 OF 2021** **12** _members of Scheduled Castes/Scheduled Tribes be well protected by virtue of provisions of Articles 341(1) and 342(1) of the Constitution and observed in para 23 as under:-_ _“23. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribe in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration.”_ 13. In paragraphs 40 and 41 in relation to Backward Classes, the following observation was given. 40. In relation to Backward Classes, this Court in M.C.D. Vs. Veena and Others has specifically held that migrants are not entitled for reservation as Other Backward Classes (OBCs) in the States/Union Territories where they have migrated. The relevant portion of the judgment that may **WP(C) NO. 4613 OF 2021** **13** ## be noticed is as hereunder: _“6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one 2001 (6) SCC 571. State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs.” (emphasis supplied)_ _41. By the judgments of the Constitution Bench of which the reference has been made (supra), it has been settled that the person belonging to Scheduled Castes/Scheduled Tribes/OBC of the State, on migration to another State voluntarily or involuntarily, will not be entitled to claim benefits of reservation including privileges and benefits admissible to the member of the Scheduled Castes/Scheduled Tribes/OBC even though, the caste or tribe of the same nomenclature is notified in the latter State(State where migrated) and if that is being permitted, the very expression as mandated under Articles 341(1) and 342(1) of the Constitution in “relation to the_ **WP(C) NO. 4613 OF 2021** **14** _State” would become otiose and this issue remain no more res integra after the pronouncements made by the Constitution Bench of this Court._ ## 14. The following directions had been issued after noticing the provisions of Reorganization Act, 2000. _56. It is made clear that person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa._ _57. We are of the view that the present appellant Pankaj Kumar in Civil Appeal @ SLP(Civil) No.13473 of 2020, being a serving employee in the State of Jharkhand by virtue of Section 73 of the Act 2000, would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment._ _58. So far as the case of other appellants in Civil Appeals @ SLP (Civil) Nos. 3610-3615 of 2021 is concerned, there is no material placed by either of them on record to justify that how long they were residing in the districts which now form part of the successor State of Jharkhand and the advertisement of the year 2004 required that one has to submit a caste certificate issued by the competent authority of the State of Jharkhand and none of them produced the caste certificate. As noticed by us, the present batch of appellants were appointed in the year 2005 as Constables against the post reserved for Scheduled Caste/Scheduled Tribe/OBC category in the State of Jharkhand, in our considered view, were migrants to the State of Jharkhand which would disentitle them in claiming the benefit of reservation in view of the_ **WP(C) NO. 4613 OF 2021** **15** _judgment of the Constitution Bench of this Court of which a reference has been made(supra)._ The point to be noticed in this case is whether the respondent No.5 a Muslim and belongs to State of Karnataka could have been appointed. Regulation 3.1 of the UGC which mutatis mutandis is also applicable to the University in question. It leaves no manner of doubt that the application was invited on All India Basis. There was no bar for any applicant to submit application. Had there been any exclusion of Non Keralites, like the notification issued by Mahatma Gandhi University as per clause 4 extracted above, there would have been a force in the argument of the learned counsel for the petitioner and since the petitioner had already participated in the selection, is estopped to challenge the selection process. I do not find any justification in quashing the appointment of respondent No.5. Writ petition sans merit and is accordingly dismissed. Sd/- sab ## **AMIT RAWAL** ## **JUDGE** **WP(C) NO. 4613 OF 2021** **16** ## **APPENDIX OF WP(C) 4613/2021** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO. ACAD. B3/10808/2018-3 DATED 03.10.2019 ISSUED BY THE 2ND RESPONDENT UNIVERSITY. - EXHIBIT P2 TRUE COPY OF THE NOTIFICATION NO.ACAD.B3/10808/2018 DATED 22.10.2019 ISSUED BY THE 2ND RESPONDENT UNIVERSITY. - EXHIBIT P3 TRUE COPY OF THE GENERAL INSTRUCTIONS FOR APPLICANTS FOR THE POST OF ASSOCIATE PROFESSORS ISSUED BY THE 2ND RESPONDENT UNIVERSITY. - EXHIBIT P4 TRUE COPY OF THE RELEVANT PORTIONS OF THE APPLICATION OF THE 5TH RESPONDENT. - EXHIBIT P5 TRUE COPY OF THE CERTIFICATE NO.RD 5018181822693 DATED 04.07.2020 ISSUED BY THE REVENUE DEPARTMENT, GOVERNMENT OF KARNATAKA WITH ITS TYPED COPY. - EXHIBIT P6 TRUE COPY OF THE NOTIFICATION NO. ADMIN/AD-B1/7568/2020 DATED 21.10.2020 ISSUED BY THE 2ND RESPONDENT UNIVERSITY. - EXHIBIT P7 TRUE COPY OF THE NOTIFICATION NO. ADAII/1/5038/2017/SUBFILE91)/ADMN/(3) DATED 03.11.2020 ISSUED BY THE MAHATMA GANDHI UNIVERSITY. - EXHIBIT P8 TRUE COPY OF THE NOTIFICATION BEARING FILE NO. GAII-C1/162156/2019/ADMN. DATED 31.12.2019 ISSUED BY THE REGISTRAR, CALICUT UNIVERSITY. - EXHIBIT P9 TRUE COPY OF THE RTI APPLICATION DATED 10.12.2020 SUBMITTED BY THE PETITIONER TO THE UNIVERSITY OF KERALA. **WP(C) NO. 4613 OF 2021** **17** - EXHIBIT P10 TRUE COPY OF THE RTI REPLY NO.AD. AII/3/868/2020/RTI/ADMN DATED 22.12.2020 RECEIVED FROM MAHATMA GANDHI UNIVERSITY. - EXHIBIT P11 TRUE COPY OF THE RTI REPLY NO. 575/RTI.1/2020-21 DATED 05.01.2021 RECEIVED FROM UNIVERSITY OF KERALA. EXHIBIT P12 TRUE COPY OF THE RTI REPLY NO.AD. D2/RTI/2005-IV(PF) (II) (I) DATED 01.01.2021 ISSUED BY THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY. EXHIBIT P13 TRUE COPY OF THE APPOINTMENT ORDER NO.ACAD B3/4836/APPT./2020 DATED 03.11.2020 ISSUED BY THE 2ND RESPONDENT UNIVERSITY. ## RESPONDENT EXHIBITS Ext.R5(a): TRUE COPY OF THE ORDER NO.ACAD/ASO B3/13444/2020 DATED 22.1.2021 APPROVING THE APPOINTMENT OF 5TH RESPONDENT Ext.R5(b): TRUE COPY OF THE APPLICATION SUBMITTED BY THE 5TH RESPONDENT IN RESPONSE TO EXT.P1 NOTIFICATION