Dr. Smitha V.S. v Indian Institute of Science Education and Research, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 19TH DAY OF SEPTEMBER 2018 / 28TH BHADRA, 1940** ## **- WP(C).No. 26224 of 2018 C** ## **PETITIONER/S:** **DR.SMITHA V.S. AGED 35 YEARS THAIPARAMBIL HOUSE, S.N PURAM, ALUVA, ERNAKULAM DISTRICT, PIN-683106.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.K.N.REMYA SMT.L.ANNAPOORNA SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.V.VARGHESE** ## **RESPONDENT/S:** **1 INDIAN INSTITUTE OF SCIENCE EDUCATION AND RESEARCH THIRUVANANTHAPURAM, MARUTHAMALA PO, VITHURA,THIRUVANANTHAPURAM, PIN-695551, REPRESENTED BY ITS DIRECTOR.** **2 THE DIRECTOR INDIAN INSTITUTE OF SCIENCE EDUCATION AND RESEARCH, THIRUVANANTHAPURAM, MARUTHAMALA PO, VITHURA,THIRUVANANTHAPURAM, PIN-695551.** **3 THE REGISTRAR INDIAN INSTITUTE OF SCIENCE EDUCATION AND RESEARCH, THIRUVANANTHAPURAM, MARUTHAMALA PO, VITHURA,THIRUVANANTHAPURAM, PIN-695551.** **BY ADV. SRI.MILLU DANDAPANI, SC, INDIAN INSTITUTE OF SCIENCE EDUCATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.26224 of 2018 2 **P.V.ASHA, J. ---------------------------W.P.(C) No.26224 of 2018 ---------------------------Dated this the 19[th] day of September, 2018** ## **JUDGMENT** **The petitioner, who is an applicant for the post of Technical Assistant in Chemistry in Indian Institute of Science Education and Research-1[st] respondent is aggrieved by Ext.P7 rank list to the extent it has not included her name under the OBC-NCL category. The petitioner also challenges clause 10 of Ext.P1 notification which stipulates that if valid certificates are not submitted candidates claiming reservation would be treated as general candidates and that OBC-NCL certificates should be issued during current financial year.** **2. The petitioner is a Post Graduate with Ph.D in Chemistry working as Research Associate in CSIR. She belongs to OBC, non-creamy layer category. The 1[st] respondent issued Ext.P1 notification inviting applications for appointment to various posts including that of Technical Assistant in Chemistry, of which one vacancy each was notified in general category, OBC and Scheduled Caste category. Ext.P1 notification was issued as per advertisement no.23/31.10.2017. The last date fixed for submitting online application was 24.11.2017. The last date for submitting the print out of completed application form with self attested copies of certificates of educational qualification and experience was fixed as 30.11.2017. Petitioner** W.P.(C) No.26224 of 2018 3 **submitted Ext.P2 application on 09.11.2017 indicating OBC-NCL as the category against Entry no.7. Below entry no.11 in the proforma of application it is stated “for OBC-NCL/SC/ST:(Attach the copy of category certificate issued by competent authority in the prescribed format for employment in Central Government Organization. For OBC(NCL) the certificate should be issued during the current financial year)”.** **3. The petitioner submitted Ext.P3 certificate along with her application. The said certificate was issued on 12.04.2016 by the Tahsildar, Aluva to the effect that the petitioner belongs to Hindu Ezhava community which is recognized as a backward class and that she does not belong to creamy layer section.** **4. The 1[st] respondent published Ext.P5 list of shortlisted candidates on 02.05.2018. The petitioner was included at serial no.6 among the short listed candidates for the post of Technical Assistant-Chemistry in the general category. This list contained names of 14 candidates in which one candidate at serial no.11 was short listed in OBC NCL category. On 04.05.2018 the petitioner submitted Ext.P6 e-mail to the 2[nd] respondent requesting to consider her as an OBC-NCL candidate, stating that the certificate she had already produced was valid only up to April 2017 and that she would produce the certificate for the current financial year at the time of interview/written test.** **5. Thereafter the written test was held on 21.06.2018. Results** W.P.(C) No.26224 of 2018 4 **were published on 25.07.2018. One candidate each was included in the rank list under general category and SC category. No candidate was included against OBC-NCL category. The petitioner was included at Sl.no.2 in the waiting list of unreserved/general category. Immediately thereupon, petitioner submitted Ext.P9 representation dated 27.7.2018 requesting the 2[nd] respondent to consider her against OBC category stating that she was wait listed in general category though she belongs to OBC-NCL category. Immediately thereafter she produced Ext P8 non-creamy layer certificate- OBC-NCL certificate, issued by the Tahsildar, Aluva on 30.7.2018. She stated that she was unable to travel at the time of submission of application, as it was during her pregnancy period and therefore she was unable to produce the OBC-NCL certificate for the current year. She stated that she would not be able to apply for any technical post as she was getting over aged.** **6. This writ petition was filed in the above circumstances challenging Ext.P7 rank list to the extent it does not include her in OBC-NCL category and challenging clause 10 of Ext.P1 pointing out that Central Government Departments are not adopting such rigid standards to produce NCL certificate and that the respondents were taking steps to re-notify the vacancy, without granting time to candidates in accordance with Ext.P10 notification issued by the Staff Selection Commission on 17.08.2017. As per Ext.P10, it was ordered that the Commission would not insist the candidates to** W.P.(C) No.26224 of 2018 5 **produce OBC certificate issued within the cut off dates i.e. 3 years, before the last date of receipt of applications and up to 180 days after the closing date of applications mentioned in the notices. It was stated that candidates may furnish prima facie proof of being OBC, to enable the Commission to consider/process their claim under the OBC category and that candidature of OBC category will remain provisional subject to verification of his/her claim by the User Department concerned as appointing Authority, as per the extant Government provisions/guidelines on the subject.** **7. When the writ petition came up for admission, it was submitted on behalf of the respondents that no steps would be taken for re-notification of the vacancy reserved for OBC and the same was recorded.** **8. On 07.09.2018 respondents 1 to 3 have filed counter affidavit. It is stated that as per condition no.10 in Ext.P1 notification a candidate who has not produced non-creamy layer certificate for the relevant financial year would not be eligible to be considered under the OBC category. It is stated that 1[st] respondent institute is one among the IISERs, a group of premier science education and research institutes having national importance. It is stated that the first communication which received from the petitioner regarding the production of non creamy layer certificate was by way of email dated 4.5.2018 and at that time itself she was informed of the inability to accommodate her request. As per** W.P.(C) No.26224 of 2018 6 **Ext.R1(b) call letter issued to the petitioner for written test on 1.6.2018 it was stated that her candidature was provisional and also stated that during verification of documents, since she has not submitted valid OBC-NCL certificate along with her application, she was short listed under general category and would be considered only under the general category. According to the respondents she did not produce non-creamy layer certificate even at the time of written test or at the time when the results were published as per Ext.P7 in which she was placed at 2[nd] position in the general category. According to respondents, petitioner has turned around to seek eligibility under the OBC category understanding that she might not be eligible in unreserved category and since there are no qualified candidates available in the OBC category for Technical Assistant which can be utilized to her advantage. Respondents have stated that there are other four applicants who were also not considered under the OBC category for non production of the relevant certificate. It is further stated that as per Ext.R1(c) office memorandum issued by the Department of Personnel & Training on 31.3.2016, non-creamy layer certificate would be applicable to OBC candidates who are covered under income/wealth test criterion and the income limit is decided on the basis of income earned during three previous financial years preceding the year of appointment. The validity of non-creamy layer certificate issued during any month of financial year 2016-17 covering three preceding financial years viz.2013-14, 2014-15 and** W.P.(C) No.26224 of 2018 7 **2015-16 be accepted by the concerned authorities for any appointments or recruitment which would be valid during the period of April 2016 to March 2017. It is further ordered that appointing authorities would accept production of self-attested photocopy of the non-creamy layer certificate, subject to verification of the original non-creamy layer certificate, as it is the practice being followed for verification of other original documents. According to the respondents till date no office memorandum has been issued by any government organization or respondent institution which allows acceptance of invalid certificate. According to the respondents, selection is conducted strictly in accordance with notification and in accordance with rules. According to the respondents, the case of the petitioner that she was unable to produce the relevant non creamy layer certificate on account of pregnancy related reasons is unsustainable as Ext.P4 pertains to a period of five days from 30.1.2018 to 4.2.2018 only which is two months after the last date of submission of application.** **9. Learned counsel for the petitioner relied on the judgments of the apex court in** _**Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board and another : (2016) 4 SCC 754 :AIR 2016 SC 1098: 2016 KHC 6164**_ **wherein the apex court held that failure to submit OBC certificate along with application on or before the last date of submitting the application cannot be said to be a reason for rejecting the application. The judgment of the High Court of Delhi in** W.P.(C) No.26224 of 2018 8 _**Ms.Pushpa vs. Government, NCT of Delhi and ors.**_ **, the Division Bench judgment of this court in W.A.No.655 of 2016 were also relied on in support of the contention that mere delay in submission of the NCL certificate cannot result in denial of appointment to her and the respondents are to be directed to treat her as OBC- NCL candidate accepting the certificate produced by her.** **10. On the other hand, the learned Senior Counsel argued that all these are cases where production of OBC certificate was considered and not production of non creamy layer certificate. When the notification itself provides that non-creamy layer certificate should be produced along with the application, petitioner cannot raise any claim against the reserved vacancies on the basis of any invalid certificate produced along with the application. It is pointed out that there are other candidates also who did not produce certificate in similar circumstances.** **11. Having considered the pleadings on record and the contentions advanced by Sri.V.Varghese, the learned Counsel for the petitioner and Smt.Sumathi Dandapani, the learned Senior Counsel for the respondents, it is seen that the only reason for not including the petitioner in the rank list against the sole vacancy for the OBCNLC category is the non-production of non-creamy layer certificate for the current year along with the application. Since no candidate is included against that OBC NCL category and petitioner is already included as no.2 in the wait list of general category, there would** W.P.(C) No.26224 of 2018 9 **not be any other candidate who would be eligible to be ranked above her. Therefore the contentions of the respondents that there are other candidates also who could not produce NCL certificates at the relevant time and therefore their claims would also have to be considered cannot be accepted, because any candidate who could not find their names in the wait list of general category would not be eligible to be included in the main rank list over and above the petitioner as she has proved her merit.** **12. The respondents cannot have any objection as to the fact that petitioner belongs to OBC category, because Ext.P3 certifies her community, which is not subject to alteration by lapse of time. Updation is required only in respect of income. As the petitioner did not have the OBC-NCL certificate of the current year she attached the copy of Ext.P3 certificate issued on 12.04.2016 along with her application. Ext.P8 certificate issued on 30.07.2018 for the current year could be produced only after 3 days of the publication of results in the written examination as per Ext.P7 rank list. Ext.P3 as well as Ext.P8 certificates would show that petitioner continued to be a member of OBC NLC. Ext.P1 notification is seen issued on 31.10.2017, fixing last date for submission of application as 24.11.2017 and 30.11.2017 respectively, whereas petitioner submitted her application on 09.11.2017. Immediately on publication of list of short listed candidates she had requested for time for production of the certificate for current year.** W.P.(C) No.26224 of 2018 10 **13. However the question to be examined is whether clause 10 of Ext.P1 notification and the action of respondents in insisting production of NCL certificate along with the application is arbitrary or that whether the certificate Ext.P8 produced belatedly is liable to be accepted. Clause 10 of Ext.P1 notification reads as follows:** _**Reservations for those belongs to SC/ST/OBC-NCL/Ex-Servicemen category will be as per Govt. of India norms. Candidates belongs to reserved category (SC/ST/OBC-NCL/Ex-Servicemen/PWD) should submit the valid certificate issued by the appropriate authorities as applicable for jobs under government of India. In the absence of such certificate the candidate will be treated as General Category. The OBC-NCL certificate should be issued during the current financial year.**_ **Clause 26 provides for 4 steps under the head “how to apply”. Step 1: Register for creating user ID and password for online application in institute website giving last date for online application as 24.11.2017. Step 2: to fill up the online application. Step 3: for payment of fees. Step 4: “ take a print-out of the completed application form, attach the proof of payment and forward the same along with self-attested copies of certificates for educational qualification and experience, as claimed in the application, by registered post/speed post only in a sealed cover superscribing “Application for the post of ….......... Post Code ….........” on or before 30.11.2017 to the Registrar.** **14. It is relevant to note that clause 11 of Ext.P1 notification provides that incomplete applications and applications not supported by relevant documents would be summarily rejected. It further** W.P.(C) No.26224 of 2018 11 **provides that online applications with attachments would be considered only if hard copy as prescribed in clause 26 is received before the prescribed dates. Clause 26 explains in 4 steps how applications should be submitted. In step 4 of clause 26, what is directed to be attached along with the hard copy of the application are certificates to prove educational qualification and experience. Community certificate or NCL are not included in it. Therefore the application submitted by the petitioner has to be treated as one in tune with clause 11 read with clause 26 of Ext.P1. It is also pertinent to note that in clause 26 while explaining four steps for submission of application, step 4 does not provide that along with the print out of completed application form OBC-NCL certificate shall be produced while directing that proof of payment as well as self attested copies of educational qualification and experience as claimed in the application shall be attached and forwarded. However, clause 10 provides that a candidate who would be considered for reservation shall submit valid certificate issued by the appropriate authority and that in the absence of such certificate candidate will be treated as general category. Therefore the respondents cannot also insist that the petitioner has not produced all the certificates as directed in clause 26.** **15. In the judgment in** _**Ram Kumar Gijroya's**_ **case (supra) relied on by the learned Counsel for the petitioner, the question which arose for consideration before the apex court was whether a candidate** W.P.(C) No.26224 of 2018 12 **who appeared in an examination under the OBC category and submits the certificate after the last date mentioned in the advertisement is eligible for selection under the OBC category. There the Delhi Subordinate Services Selection Board invited applications for appointment of Staff Nurse fixing last date as 21.01.2008. Based on application petitioner was issued admit card and on being successful in the examination she was shortlisted. But she was not included in the final rank list on the ground that she failed to submit the OBC certificate issued by the appropriate authority along with application form before the last date of submission of application form. Though the writ petition filed by the petitioner therein was allowed by a Single Judge of the High Court, it was reversed by the Division Bench. In appeal the Apex Court upheld the judgment of the Single Bench approving the judgments in** _**Pushpa**_ **v.** _**Govt. (NCT of Delhi): 2009 SCC online Delhi 281, Tejpal Singh V Govt. (NCT of Delhi): 1999 SCC online Delhi 1092,**_ **and held that the view of the learned Single Judge was perfectly in tune with the object of reservations as well as the law laid down by the Constitution Bench in** _**Indra Sawhney**_ **v.** _**Union of India: (1992) supp 3 SCC 317**_ **as well as** _**Valsamma Paul**_ **v.** _**Cochin University: (1996)3 SCC 545**_ **. It was concluded as follows:** > _**“18. In our considered view, the decision rendered in Pushpa is in conformity with the position of law laid down by this Court, which have been referred to supra. The Division Bench of the High Court erred in reversing the judgment and order passed by the learned Single Judge, without noticing the binding precedent on the question**_ W.P.(C) No.26224 of 2018 13 _**laid down by the Constitution Benches of this Court in Indra Sawhney and Valsamma Paul wherein this Court after interpretation of Articles 14, 15, 16 and 39-A of the directive principles of State policy held that the object of providing reservation to the SCs/STs and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39-A of the directive principles of State policy is to achieve the concept of giving equal opportunity to all sections of the society.”**_ **16. Following the judgment in** _**Ram Kumar Gijroya's**_ **case this court in the judgment in W.A.No.655 of 2016 upheld the judgment of the learned Single Judge directing appointment of the petitioner therein whose candidature for the post of Sub Inspector of Police in Delhi Police and CISF was rejected on the ground that the OBC certificate produced by him was not issued within 180 days from the closing date of receipt of application, as prescribed in the notification. In that case the petitioner had claimed age relaxation applicable to OBC candidates. He was successful in the written test and attended the interview after clearing the medical test. The OBC certificate in the proforma prescribed was to be produced at the time of interview. Relying on the judgment of the apex court in** _**Ram Kumar Gijroya's**_ **case (supra) and the judgments of the Delhi High Court, the Division Bench dismissed the appeal.** **17. The learned Senior Counsel vehemently argued that in none of the cases production of OBC NCL certificate arose for consideration. But the said contention cannot be correct as seen from para 7 and 9** W.P.(C) No.26224 of 2018 14 ## **of the judgment in W.A.No.655 of 2016, relevant portion of which** ## **reads as follows:** _**“7. It is contended by the learned Counsel for the appellants that what is sought to be produced is an OBC non-creamy layer certificate. The incumbent would be entitled to the benefit of reservation only if he satisfies the twin requirements that he belongs to a backward community and is not a member of the creamy layer. Xxxx”**_ _**xxxxx**_ _**“9. xxxxxThe only question to be decided is whether his candidature under the reserved category could have been rejected on the ground that he did not produce the OBC non-creamy layer certificate in the prescribed format which was issued within 180 days of the closure of the application.”**_ ## **18. Therefore the question considered was with respect to** **production of OBC NLC certificate itself. Even otherwise in order to claim the benefits available to OBC one should not be a member of creamy layer, either for the purpose of communal reservation or for age relaxation. The only difference in the present case is that the rejection is on the ground that the certificate for the current year was not produced along with the application, whereas all other authorities insist the same either after results of examination, or at the time of verification of certificates or after the written or oral examination.** **19. The petitioner has challenged clause 10 of Ext.P1 urging specific contentions in ground C that insisting production of certificate for the current year does not have any nexus to the object sought to be achieved by communal reservation. Except for denying the contentions the respondents have not answered how the production of certificate along with the application would advance** W.P.(C) No.26224 of 2018 15 **the object of communal reservation. It would only deprive the benefit to eligible candidates. In the light of the judgment in** _**Ram Kumar Gijroya's**_ **case such a condition can only be found to be arbitrary. According to the counter affidavit the notification was issued on 01.11.2017 with last date as 24.11.2017 for online application and 30.11.2017 for sending hard copy. Within these 30 days the candidates are required to produce the non-creamy layer certificate of the current year. The petitioner has produced Ext.P8 certificate issued on 30.7.2018, which shows that she continued to belong to OBC-NCL category. Ext.P3 certificate which she had produced along with the application, issued on 12.04.2016 also states that she belongs to OBC-NCL. The question was only with respect to the variation in income in the year 2017-18. Any condition which provides for rejection of candidature for non-production of non-creamy layer certificate for the current year along with the application itself cannot in any manner advance the socio economically weaker sections. It can only deny the opportunities available to them. Therefore such conditions can only be in violation of Article 14 and 16 of the Constitution of India.** **20. The petitioner was included in the waiting list of general category candidates as no.2. In Ext.P7 nobody is included among reserved candidates for OBC. Therefore in case the request of the petitioner was accepted, the petitioner would have found a place against the reserved vacancy for OBC. Though it is seen that Ext.P9** W.P.(C) No.26224 of 2018 16 **notice was issued by the Staff Selection Commission and though it is not applicable to the petitioner, granting some more time to the candidates will not in any way affect the reputation of the 1[st] respondent. It will also not affect the process of selection or selection of meritorious candidates or the reputation or prestige of the institution. In the light of the aforementioned judgments of the apex court as well as this court, I am of the view that the petitioner is entitled to be considered as a candidate under the OBCNCL category. Since she has already been included as rank no.2 in the waiting list, there cannot be any objection for including her against OBC-NCL.** **Accordingly the writ petition is allowed. Respondents are directed to accept Ext.P8 certificate and treat the petitioner as one belonging to OBC-NCL and include her in Ext.P7 list in OBC NCL category within a period of two weeks.** ## **Sd/-** ## **P.V.ASHA** **JUDGE** rkc W.P.(C) No.26224 of 2018 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION FOR THE POST OF TECHNICAL ASSISTANT IN CHEMISTRY.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION ONLINE SUBMITTED BY THE PETITIONER TO EXT.P1.** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED 12.04.2016 ISSUED BY THE TAHSILDAR, ALUVA.** **EXHIBIT P4 TRUE COPY OF THE RELEVANT EXTRACT OF THE DISCHARGE SUMMARY ISSUED ON 02.04.2018 TO THE PETITIONER.** **EXHIBIT P5 TRUE COPY OF THE LIST OF CANDIDATES SHORT LISTED FOR TECHNICAL ASSISTANT (CHEMISTRY) ISSUED BY THE RESPONDENTS. EXHIBIT P6 TRUE COPY OF THE REQUEST DATED 28.07.2018 SUBMITTED ONLINE BY THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE INFORMATION NOTE NO.R14011/1/11-HR DATED 25.07.2018 ISSUED BY THE RESPONDENTS.** - **EXHIBIT P8 TRUE COPY OF THE CERTIFICATE DATED 30.7.2018 FROM THE TAHSILDAR, ALUVA.** - **EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 27.07.2018 FILED BY THE PETITIONER BEFORE THE DIRECTOR OF THE 1ST RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE NOTIFICATION NO.F.NO.14/2010-P & P-1 DATED 17.08.2017 OF THE UNDER SECRETARY OF THE STAFF SELECTION COMMISSION.** **EXHIBIT P11 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION FOR VARIOUS POSTS INCLUDING TECHNICAL ASSISTANT (CHEMISTRY)** **RESPONDENTS' EXHIBITS** W.P.(C) No.26224 of 2018 18 **EXT.R1A** **EXT.R1B** **EXT.R1C** **TRUE COPY OF THE E-MAIL DT.4.5.18 SENT BY THE PETITIONER.** **TRUE COPY OF THE CALL LETTER FOR WRITTEN TEST ISSUED BY THE RESPONDENT BEARING REFERENCE NO.R-14014/1/14-HR DT.1.6.18** **TRUE COPY OF THE OM NO.36036/2/2013-ESTT (RES-I) DT.31.3.16 ISSUED BY THE DEPARTMENT OF PERSONNEL&TRAINING**