Leema Rosy D. v. Registrar General, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934** ## **WP(C).No. 3550 of 2013 (R)** **--------------------------** **PETITIONER(S) :** **LEEMA ROSY D. AGED 33 YEARS WIFE OF SAJAN ANTONY, RESIDING AT NADUVILLAVEEDU KANDAKKADAVU, KOCHI 682 008, ERNAKULAM DISTRICT.** **BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA** **RESPONDENT(S) :** **THE HON'BLE HIGH COURT OF KERALA ERNAKULAM 682 031 REPRESENTED BY THE REGISTRAR GENERAL.** **BY ADVS. SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **WP(C).No. 3550 of 2013 (R)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE ENGOLLMENT CERTIFICATE OF THE PETITIONER DATED 29/10/2006** - **EXHIBIT P2 TRUE COPY OF THE NOTIFICATION NO.REC4-97821/2011 OF THE HIGH COURT DATED 31/1/2012** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER** - **EXHIBIT P4 TRUE COPY OF THE MERIT LIST OF CANDIDATES DATED 2/11/2012** - **EXHIBIT P5 TRUE COPY OF THE COMMUNITY CERTIFICATE ISSUED BY THE TAHSILDAR, KOCHI DATED 7/11/2012** - **EXHIBIT P6 TRUE COOPY OF THE CERTIFICATE ISSUED BY THE TALUK OFFICE, MADRAS DATED 24/2/1994** - **EXHIBIT P7 TRUE COPY OF THE G.O.(RT) NO.806/79/DD DATED 24/4/1979 OF THE GOVERNMENT .** - **EXHIBIT P8 TRUE COPY OF THE COMMUNITY CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KUMBALANGHI DATED 15/12/2012** - **EXHIBIT P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE RESPONDENT DATED 17/12/2012** - **EXHIBIT P10 TRUE COPY OF THE ORDER OF THE RESPONDENT DATED 25/1/2013.** **RESPONDENTS' EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **P.N.RAVINDRAN, J.** ----------------------------- W.P.(C)No.3550 of 2013 ----------------------------------Dated this the 7[th] day of February, 2013 ## **JUDGMENT** The petitioner, a practising lawyer applied for appointment as Munsiff-Magistrate pursuant to Ext.P2 notification dated 31.01.2012, issued by this Court. In the application, a copy of which is on record as Ext.P3, the petitioner stated against column 10 thereof that she is not claiming the benefit of reservation in favour of candidates belonging to the Scheduled Castes/Scheduled Tribes/Non-creamy layer of Other Backward Classes. The petitioner's application was therefore, treated as an application by a general category candidate. She appeared for the written test that was held on 13.05.2012. Since she qualified in the written test, she was invited to appear for the interview. After the written test and the interview were conducted, Ext.P4 merit list of candidates selected for appointment by direct recruitment as Munsiff-Magistrate in the Kerala Judicial Service was published on 2.11.2012. The petitioner is serial No.53 therein. After Ext.P4 merit list was published, the petitioner submitted Ext.P9 representation dated 17.12.2012 addressed to the Registrar (Recruitment & Computerisation) of this Court, enclosing with it, a W.P.(C)No.3550 of 2013 2 copy of Ext.P8 community certificate issued by the Village Officer, Kumbalaghi Village to the effect that she belongs to the Non-creamy layer of the Christian - Latin Catholic community and requested that she may be given the benefit of reservation available to the Latin Catholic community, which is a backward class in the State of Kerala. By Ext.P10 letter dated 25.01.2013, the Registrar (Recruitment & Computerisation) of this Court informed the petitioner that her request to consider her as a candidate eligible for reservation is rejected. Ext.P10 is under challenge in this writ petition, wherein the petitioner seeks the following reliefs: _"i) call for the records relating to Exhibit P-10 and quash the original of the same by the issue of a writ of certiorari or other appropriate writ or order._ _ii) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondent to consider the candidature of the Petitioner by granting the reservation benefits of Latin Catholic community to the Petitioner._ _iii) declare that the Petitioner is entitled to get the benefit of Latin Catholic Community while effecting appointment pursuant to Exhibit P-2 Notification."_ 2. The petitioner has averred that at the time of submission of the application, she was not in possession of a community certificate and that was the reason why she did not make a claim for reservation. It is contended that as the petitioner has produced a community certificate to prove that she belongs to the Non-creamy layer of the Latin Catholic community, notwithstanding the fact that she had not claimed the benefit of reservation in Ext.P3 application submitted by W.P.(C)No.3550 of 2013 3 her pursuant to Ext.P2 notification, she is entitled to be treated as a candidate eligible for reservation available to Other Backward Classes. Reliance is placed on the decision of the Apex Court in **U.P. Public Service Commission v. Satya Narayan Sheohare & Ors.** [2009 (5) SCC 473] in support of the said contention. 3. I heard Sri.V.A.Muhammed, learned counsel appearing for the petitioner and Sri.K.R.B.Kaimal, learned Senior Advocate appearing for the respondent. Sri.V.A.Muhammed, learned counsel appearing for the petitioner contended that it was because of the stipulation in Ext.P2 notification more particularly paragraph 15 thereof that the petitioner did not claim the benefit of reservation when she submitted Ext.P3 application. The learned counsel contended that though the petitioner is a member of a Backward Class community as she was not in possession of the original of Ext.P8 certificate which admittedly was issued only on 15.12.2012 after the merit list was published, the petitioner could not have claimed the benefit of reservation in favour of Non-creamy layer of Other Backward Classes and if such a claim had been made, the application would have been rejected and therefore, as the petitioner has now produced a community certificate, the non production of the community certificate along with application to claim benefit of reservation cannot be held out against her. Relying on the decision of the Apex Court in **U.P. Public Service Commission v. Satya Narayan Sheohare & Ors.** _(supra)_ the learned counsel for the W.P.(C)No.3550 of 2013 4 petitioner contended that notwithstanding the fact that the petitioner had not claimed the benefit of reservation in Ext.P3 application as she had produced Ext.P8 community certificate to the effect that she belongs to the Non-creamy layer of Christian - Latin Catholic community, the benefit of reservation should be extended to her. 4. Per contra, Sri.K.R.B.Kaimal, learned Senior Advocate appearing for the respondent submitted that the principles laid down by the Apex Court in **U.P. Public Service Commission v. Satya Narayan Sheohare & Ors.** _(supra)_ can have no application in the instant case. The learned Senior Counsel contended that in the case before the Apex Court when the applicants submitted the application, the castes to which they belonged had not been notified as Other Backward Classes under the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, that it was only after the last date stipulated for submission of applications that the castes to which the applicants belonged were included in the list of Other Backward Classes and that it was in such circumstances that the Apex Court held that section 15 of the Act would apply to them. The learned counsel contended that it was in view of the stipulations in section 15 of the Act, more particularly the explanation thereto, that the Apex Court held that the process of selection commenced only on the date on which the written test was conducted on 4.8.2000 and before the said date, the Act was amended W.P.(C)No.3550 of 2013 5 including the castes to which the applicants belong in the list of Other Backward Classes and therefore, though the applicants were general category candidates when the recruitment notification dated 4.3.2000 was issued, on the relevant date namely the date on which selection process is deemed to have been initiated, they were Other Backward Class candidates. The learned Senior Counsel contended that in such circumstances, as the facts in the instant case are not similar, the principles laid down by the Apex Court in **U.P. Public Service Commission v. Satya Narayan Sheohare & Ors.** _(supra)_ can have no application. The learned Senior Counsel also contended that the petitioner who did not claim the benefit of reservation when she submitted the application, cannot thereafter be heard to contend that as she has now produced a community certificate, she should be given the benefit of reservation available to candidates belonging to the Other Backward Classes. The learned Senior Counsel also brought to my notice the disparity between Ext.P5 community certificate dated 7.11.2012 issued by the Tahsildar, Kochi which certifies that the petitioner belongs to Christian Adi Dravidar Community (a backward class in the State of Tamil Nadu) and Ext.P8 certificate dated 15.12.2012 issued by the Village Officer, Kumbalanghi Village wherein it is certified that petitioner belongs to Christian-Latin Catholic community (which is a backward class in the State of Kerala) and contended that in the light of the disparity between the two W.P.(C)No.3550 of 2013 6 certificates, the petitioner cannot, even assuming that the belated production of a caste certificate is of no consequence, contend that she is a candidate eligible for reservation. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. In paragraph 6 (a) of Ext.P2 notification it is stipulated that the rules relating to reservation of appointment for candidates belonging to the Scheduled Castes/ Scheduled Tribes/Non-creamy layer of the Other Backward Classes, contained in Part II of the Kerala State and Subordinate Services Rules, 1958 (Rules 14 to 17) shall apply to the appointment by direct recruitment. In paragraph 15 (g) of Ext.P2 notification it is stipulated that all the columns in the application should be filled up by the candidate in his/her own hand and if any column is not applicable, the words 'not applicable' should be written against that particular column. In paragraph 15 (h) it is stipulated that full and correct information shall be furnished against every column, that furnishing of false or incorrect information or suppression of material information will disqualify the candidate at any stage of selection and that anything not specifically claimed in the application against the appropriate column, will not be considered at a later stage. The petitioner had in column 10 of the application stated that she does not claim the benefit of reservation. In column 10(a)(i) she had given her religion as Christian and in the column immediately underneath it she had stated that it is W.P.(C)No.3550 of 2013 7 not applicable. She had admittedly not claimed the benefit of reservation when she submitted Ext.P3 application and no document to the effect that she belongs to the Non-creamy layer of a community which is designated as a Backward Class in the State of Kerala was produced along with it. It is evident from Ext.P3 application that the petitioner did not claim the benefit of reservation as a person belonging to the Non-creamy layer among Other Backward Classes. The petitioner cannot therefore, on the terms of Ext.P2 notification contend that she should be given the benefit of reservation, as she has, after the merit list was published, produced Ext.P8 community certificate to prove that she belongs to the Non-creamy layer of the Christian-Latin Catholic community which is designated as a Backward Class in the State of Kerala. 6. I shall next consider whether the principles laid down by the Apex Court in **U.P. Public Service Commission v. Satya Narayan Sheohare & Ors.** _(supra)_ can have any application in the case on hand. In the case before the Apex Court, the notification inviting applications for appointment to the post of Civil Judge (Junior Division) was issued on 4.3.2000. Two among the applicants belonged to the Kalar community and yet another belonged to the Kalal community. After the notification was issued, the Government amended the U.P.Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, by a notification dated W.P.(C)No.3550 of 2013 8 7.7.2000 and thereby, in the list of backward classes appended to the First Schedule to the said Act, the castes Kalal, Talwar and Kalar were included. Thereafter a written examination was held on 4.8.2000, 5.8.2000 and 6.8.2000 and the two candidates belonging to Kalar community and the candidate belonging to the Kalal community participated in the said examination. Shortly before the examinations were held but pursuant to the notification dated 7.7.2000 amending the Act, they had applied for and obtained caste certificates dated 2.8.2000 and 24.8.2000 and relying on the said caste certificates they claimed the benefit of reservation as candidates belonging to Other Backward Classes. That request was rejected. Feeling aggrieved, they filed writ petitions in the High Court of Allahabad contending that they ought to have been treated as candidates belonging to the Other Backward Classes. The writ petitions were allowed. The High Court held interpreting section 15 of the U.P.Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, that as the written test was held only on 4.8.2000 after the Act was amended by notification dated 7.7.2000, whereby the First Schedule to the Act was amended, the writ petitioners are entitled to be treated as candidates belonging to the Other Backward Classes. The High Court held that the status of the applicants on the date on which the selection process is deemed to have been initiated is the relevant factor to decide whether they are entitled to claim the benefit of 9 W.P.(C)No.3550 of 2013 reservation, having regard to the special provisions contained in section 15 of the Act. On appeal by the U.P. Public Service Commission, upholding the decision of the High Court, the Apex Court held that the principle underlying section 15 of the Act would apply whenever a new caste, which was not a Backward Class earlier, is added to the First Schedule to the Act by an amendment to the Act and therefore, whenever the Act is amended by including new castes/classes in the list of Other Backward Classes in the First Schedule, the date of amendment to the Act would be the date of commencement of the Act in regard to such castes/classes inserted by the amendment. It was held that in view of the explanation to subsection (1) of section 15 of the Act, the selection process should be deemed to have been initiated from the date on which the written test was started, that in the case on hand the written test started from 4.8.2000 after the Act was amended and therefore, though the writ petitioners were general category candidates when the notification inviting applications was issued, on the relevant date namely the date on which the selection process is deemed to have been initiated, they were candidates belonging to the Other Backward Classes. The situation in the case on hand is entirely different. There is no provision identical to section 15 of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 in the Kerala State and Subordinate Services Rules, 1958. The W.P.(C)No.3550 of 2013 10 Latin Catholic community was designated as a Backward Class in the State of Kerala long ago. The petitioner cannot therefore rely on the principles laid down by the Apex Court in **U.P.Public Service Commission v. Satya Narayan Sheohare & Ors.** ( _supra_ ) to contend that she should be given the benefit of reservation. I accordingly overrule the said contention. In the view that I have taken it is not necessary for me to consider whether in view of the disparity between Exts.P5 and P8 certificates, the writ petitioner should be non-suited. For the reasons stated above, I hold that there is no merit in the instant writ petition. The writ petition fails and it is dismissed. ## Sd/- **P.N.RAVINDRAN JUDGE** /True copy/ P.A. to Judge vpv/rkc