Leema Rosy D. v. The High Court of Kerala, Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 15TH DAY OF MARCH 2013/24TH PHALGUNA 1934 WA.No. 349 of 2013 () IN WP(C).3550/2013 ------------------------------------------ AGAINST THE ORDER/JUDGMENT IN WP(C).3550/2013 of HIGH COURT OF KERALA DATED 07-02-2013 APPELLANT(S)/APPELLANT/ PETITIONER IN WP: ----------------------------------------------------------------------- --------- LEEMA ROSY D, AGED 33 YEARS W/O SAJAN ANTONY, RESIDING AT NADUVILLAVEEDU KANDAKKADAVU, KOCHI 682008, ERNAKULAM DISTRICT BY ADVS.SRI.C.ANILKUMAR (KALLESSERIL) SRI.C.Y.VINOD KUMAR SRI.K.RAMAKUMAR (SR.) RESPONDENT(S)/RESPONDENT: -------------------------------------------------- THE HIGH COURT OF KERALA, ERNKULAM 682031 REPRESENTED BY THE REGISTRAR GENERAL R BY ADV. SRI.B.UNNIKRISHNA KAIMAL R BY ADV. SRI.KRB.KAIMAL (SR.) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 8-03-2013, THE COURT ON 15/3/2013 DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 349 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 15th DAY OFMARCH, 2013** ## **JUDGMENT** ## Ramachandran Nair, J. The appellant approached this Court by filing W.P.(C) NO.3550/2013 mainly for a direction to the respondent, viz. the High Court of Kerala to consider the candidature of the petitioner by granting reservation benefits of Latin Catholic community after quashing Ext.P10. The learned Single Judge dismissed the writ petition and hence the appeal. 2. We heard learned Senior Counsel Shri K. Ramakumar appearing for the appellant and Shri K.R.B. Kaimal, learned Senior Counsel appearing for the High Court of Kerala. 3. The High Court published a notification, a copy of which is produced as Ext.P2, dated 31.1.2012 inviting applications for the post of Munsiff Magistrate in the Kerala Judicial Service. The last date for receipt of applications was 3.3.2012. The appellant submitted an application, a copy of which is produced as Ext.P3 without claiming the benefit of reservation, as a candidate from general category. Presently, the case is W.A.No.349/2013 -2- that her father belongs to Tamil Nadu and the mother is from Kerala. The father belongs to Christian Adi Dravida community which is recognised as a Backward community in the State of Tamil Nadu. Her mother belongs to Latin Catholic community which is recognised as “Other Back Community” in the State of Kerala. 4. After the selection process was over, by Ext.P4 dated 2.11.2012 the High Court published a merit list wherein the appellant is arrayed as serial No.53. Subsequent to this, she obtained a community certificate from the Tahsildar, Kochi dated 7.11.2012 stating that she belongs to Christian Adi Dravida Community which is recognised as a Backward Class in Tamil Nadu State. Ext.P8 is a later certificate dated 15.12.2012 issued by the Village Officer, Kumbhalangi stating that she belongs to “Christian Latin Catholic”. On the basis of the said certificate, she filed a representation before the Registrar (Recruitment and Computerisation) of the High Court as per Ext.P9 dated 17.12.2012 to accept her community certificate to avail the OBC reservation for Latin Catholic community which stood rejected by Ext.P10 communication. 5. The learned Single Judge, in para 5 of the judgment, was of the W.A.No.349/2013 -3- view that the petitioner had, in column 10 of the application, stated that she does not claim the benefit of reservation and in column 10(a)(i) she had given her religion as Christian. It was therefore found that 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 noncreamy layer of a community which is designated as Backward Class in the State of Kerala was produced along with it. It was further found that the petitioner did not claim the benefit of reservation and thus cannot contend on the basis of the terms of Ext.P2 notification that she should be given the benefit of reservation. The decision of the Apex Court relied upon by the petitioner in **U.P. Public Service Commission v. Satya Narayan Sheohare & Others** {(2009) 5 SCC 473} was also distinguished, as it cannot apply to the facts of the petitioner's case. 6. Shri K. Ramakumar, learned Senior Counsel submitted that the appellant did not claim the benefit of reservation in the light of the declaration to be submitted in the form of application itself that she is “in possession of the original certificates/documents to prove the claims made by me in the application and ready to produce the same as and when called W.A.No.349/2013 -4- for.” As she was not in possession of the community certificate, the application was accordingly submitted. The certificate, Ext.P8 could be obtained later. It is further submitted that this is a case where no prejudice will be caused to any other candidate as no Latin Catholic community candidate has come out successful. There is no prohibition to accept a claim for reservation benefits at a later point of time and therefore the High Court ought to have accepted the certificate and treated her as a member of Latin Catholic community. Learned Senior Counsel therefore submitted that the same alone will advance the constitutional principles regarding reservation under Article 15. Reliance is placed on **U.P. Public Service Commission v. Satya Narayan Sheohare and Others** {(2009) 5 SCC 473}, **Santhamma v. Public Service Commission** (1982 KLT 786) and **Charles K. Skaria v. Dr.C. Mathew and others** (AIR 1980 SC 1230). 7. Per contra, learned Senior Counsel Shri K.R.B. Kaimal appearing for the High Court of Kerala submitted that the appellant cannot be heard to say that she is entitled to be treated as a member of Latin Catholic community, in the light of the clear stipulations in the notification itself. It is stated that going by clause 15(h) of the notification, a claim which is not W.A.No.349/2013 -5- made in the application cannot be raised at a later stage. It is submitted that in column 10 relating to the specific claim concerning the benefit of reservation, she had noted the answer as “No”. The religion noted in column 10(a)(i) is “Christian” and against column 10(a)(ii) Caste/Tribe/Community, it is given as “Not applicable”. She never claimed the benefit as a Latin Catholic Community candidate. It is submitted that the present claim cannot therefore be accepted. The written test was held on 13.5.2012. The notice containing the merit list of candidates, Ext.P4 was published on 2.11.2012. Learned Senior Counsel also submitted that the reliance placed on Ext.P7 Government Order to claim the benefit of reservation for inter-caste married people cannot be accepted since the said Government Order has been withdrawn by a later Government Order, viz. G.O.(Ms) 11/2005/SCSTDD dated 22.3.2005, based on the principles stated in the judgment of the Apex Court in Civil Appeal No.659/2003. Learned Senior Counsel submitted that the petitioner's claim that she belongs to Latin Catholic Community cannot also be sustained, as the father is a “Christian Adi Dravida” which is not a recognised Backward Community in the State of Kerala and her community will have to go along with that of her W.A.No.349/2013 -6- father only. It is further pointed out that Ext.P5 certificate of the Tahsildar cannot help her as therein the community is noted as “Christian Adi Dravida”. It is further pointed out that the certificate Ext.P8 obtained later from the Village Officer also cannot be accepted as he has no authority to issue it, which is evident from the foot note in the certificate itself which shows that among the revenue officers the authority to issue the certificate is on an officer not below the rank of Tahsildar. Therefore, it is submitted by the learned Senior Counsel that the judgment does not call for any interference. 8. The facts are thus clear. The stipulations in the notification clearly provides how the application will have to be filled up, in clause 15. Clause 15(h) reads as follows: “(h) Full and correct information shall be furnished against every column. Furnishing of false or incorrect information or suppression of material information will disqualify the candidate at any stage of selection. Anything not specifically claimed in the application against the appropriate column will not be considered at a later stage.” (emphasis supplied) Therefore, a specific claim, if not made in the application cannot be considered at a later stage. We find, on a reference to the copy of the W.A.No.349/2013 -7- application Ext.P3 that in column 10 she had given the following details: “10. Do you claim the benefit of reservation of } appointment in favour of Scheduled Castes/ } No Scheduled Tribes/non-creamy layer of } Other Backward Classes? } (a) If so, state (i) Religion } Christian (ii) Caste/Tribe/Community } Not applicable” Therefore, she has not claimed any benefit of reservation and thus has competed for the selection as a general candidate alone. In the merit list she found a place as serial No.53. 9. Shri Ramakumar, learned Senior Counsel heavily relied upon a judgment of the Apex Court in **Satya Narayana Sheohare's case** {(2009) 5 SCC 473}. Therein, the Apex Court considered Section 15 of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act (4 of 1994. The post notified was the post of Civil Judge (Jr.Dn.). The facts of the case show that the candidate should have qualification as on the last date of acceptance of the application. The two candidates who approached the High Court appeared for the written examination which was held on 4[th] , 5[th] and 6[th] of August, 2000 as general category candidates. By notification dated 7.7.2000 the State Government W.A.No.349/2013 -8- had added the castes of 'Kalal', 'Kalwar' and 'Kalar” in the list of Other Backward Classes by amending the First Schedule to the said Act. The respondents before the Apex Court respectively belong to 'Kalar' and 'Kalal' and after obtaining caste certificates, they made a representation to the Public Service Commission to accept their caste certificates and extend the benefit of reservation which was not accepted. The High Court allowed the writ petition. 10. We find that the Apex Court examined the effect of the saving clause under Section 15 and its Explanation. The Explanation provided that “For the purposes of this sub-section the selection process shall be deemed to have been initiated where, under the relevant service rules, recruitment is to be made on the basis of: (i) written test or interview only, the written test or the interview, as the case may be, has started, or; (ii) both written test and interview, the written test has started.” In para 5 of the judgment, the Apex Court found that “whenever the act is amended by including new castes/classes in the list of other backward classes in Schedule I, the date of amendment to the Act would be the date of commencement of the Act in regard to such caste/class inserted by the amendment.” The important W.A.No.349/2013 -9- question whether the scheme under Section 15 will come to the aid of the respondents, was considered in para 6 and we extract the whole paragraph for easy reference: “It is evident from the explanation to sub-section (1) of Section 15 that where under the relevant service rules recruitment is to be made on the basis of written test and interview, the selection process shall be deemed to have been initiated on the date on which written test was started. In this case, there is no dispute that the written test started on 4.8.2000. It is also not in dispute that before 4.8.2000 when the written test commenced, the State Government had issued a notification amending the First Schedule to the Act including the castes to which the writ petitioners belonged, in the list of OBCs. Therefore, though the writ petitioners were general category candidates when the recruitment notification dated 4.3.2000 was issued, as on the relevant date, namely the date on which the selection process was deemed to have been initiated, they were OBC candidates. Having regard to the fact that the notification including their castes in the Schedule was issued on 7.7.2000 after the recruitment notification, they were not able to show their caste as an OBC nor could they claim the benefit of reservation as OBC candidates when they made applications. However when the Act was amended on 7.7.2000 before the commencement of the written test, they became entitled W.A.No.349/2013 -10- to claim the benefit of reservation, and they secured the necessary certificates and gave their representations without any delay on 29.8.2000 and 13.9.2000 respectively. Having regard to the principle underlying Section 15 of the Act, we are of the view that the decision of the High Court directing that the writ petitioners should be treated as OBC candidates does not call for any interference.” 11. The view taken is that since the selection process, going by the Explanation to Section 15(1) shall be deemed to have been initiated on the date on which the written test was started and the written test to that particular post started only on 4.8.2000 and that the notification amending the First Schedule including the castes to which the respondents before the Apex Court belong in the list of Other Backward Classes, was issued prior to the written test, they are entitled to get the benefit. The Act was also amended on 7.7.2000 before the commencement of the written test and accordingly it was held that they are entitled to the benefit. 12. Squarely the said principle cannot apply to the facts of this case. This is a case where Latin Catholic community is included already among the list of Communities long ago. It is not a development, which occurred after the notification, Ext.P2. Therefore, as rightly held by the W.A.No.349/2013 -11- learned Single Judge, no reliance can be placed on the dictum laid down by the Apex Court in the above decision, by the appellant. Merely because a candidate has obtained a community certificate at a later point of time after the entire selection process is over, culminating in publication of merit list, it cannot be said that a claim for reservation benefits based on that will survive as on the last date of the submission of application. 13. Shri K. Ramakumar, learned Senior Counsel further relied upon the principles stated by the Apex Court in **Charles K. Skaria's case** (AIR 1980 SC 1230). As rightly pointed by the learned Senior Counsel for the High Court, Shri K.R.B. Kaimal, the said decision cannot help the appellant herein. We find that the same is a case where P.G. Diploma holders were considered for selection for admission to P.G. degree courses in Medicine. They had claimed the benefit of 10 marks as per para 4 of the prospectus, they having obtained the Diploma before the last date of application. The Diploma was not attached with the application. The question was whether the same will be fatal. The Apex Court was of the view that the proof of having a diploma obtained is different from the factum of having got it. In para 20, the Apex Court, speaking through V.R. W.A.No.349/2013 -12- Krishna Iyer, J. has explained the position thus: “20. There is nothing unreasonable nor arbitrary in adding 10 marks for holders of a diploma. But to earn this extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate in fact, secured a diploma before the final date of application for admission to the degree course? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection.” The same also cannot have any application herein, since this is not a case where the appellant had claimed any reservation benefits in her application and she was only trying to supplement it by producing a community certificate later. In fact, even going by the prescriptions in the notification the original certificates need be produced later. But evidently the claim should be there in the application itself. When the appellant has answered against column 10, whether she claims any benefit of reservation as “No”, W.A.No.349/2013 -13- no amount of argument can be considered by this Court in support of the plea that at any later time the appellant can claim the benefit of reservation, that too after the candidate has participated in the selection process and the selection has been finalised by publishing a merit list. In column 15(g) of Ext.P2 notification, among the instructions it is specified that “If any column is not applicable, write 'not applicable' against a particular column.” We have already noticed that against column 10(a)(ii) where the “Caste/Tribe/Community” has to be shown, the answer given is “Not applicable”, which also clinches the issue against her. 14. Even though reliance is placed on the decision of this Court in **Santhamma's case** (1982 KLT 786), we find that the principles explained by this Court in para 7 that “Article 16(4) providing for reservation of appointments in favour of backward classes has to be read along with Article 14”, cannot help to advance the plea of the appellant herein. We find, on a reading of the facts of the said case that the candidate therein was included in the rank list published by the Public Service Commission. The candidate, in the relevant column in the SSLC Book inserted the word 'Ezhava”, as the said column was left blank. Her community status was W.A.No.349/2013 -14- referred to the Commissioner of Government Examinations for verification and the Commissioner found, after due enquiry, that the entry was correct though unauthorised and a duplicate SSLC Book was issued. Later, the Public Service Commission proceeded against the candidate under Rule 22 of the Public Service Commission Rules of Procedure for the alleged misconduct of making unauthorised entry in the SSLC book, even though the entry was not false. In the above factual setting, this Court analysed various aspects. It was held that the action is violative of Article 14 of the Constitution and finally it was observed in para 8 that “the widest discretion may sometimes have to be controlled by imposing minimum standards of reasonableness. “ Shri K. Ramakumar, learned Senior Counsel relied on the principles stated in the said judgment and argued that herein there is no prohibition under any of the stipulations in the notification to treat the candidate as belonging to Latin Catholic and therefore the representation should have been considered in her favour. It is submitted that the discretion should have been exercised in favour of the appellant, as no other candidate will be affected and the consideration of the claim of the appellant will not prejudice the claim of any other member of the Latin W.A.No.349/2013 -15- Catholic community. 15. The above contention was opposed by the learned Senior Counsel appearing for the High Court by pointing out that the candidate is bound by the stipulations in the notification and the notification does not give any discretion to the concerned authority to entertain such a claim. 16. We are also of the view that there is no stipulation in the notification which permits the authority to accept a belated claim for the benefit of reservation. The candidates have been clearly put to notice, going by clause 15(h) as noted already, that “anything not specifically claimed in the application against the appropriate column will not be considered at a later stage.” Therefore, we cannot accept the contention of the appellant that discretion is vested with the authority to entertain such a claim. There is no such indication, going by the above stipulation, in the notification. There is no plea that any of the relevant statutory rules also confer such a discretion on the respondent. Unless and until there is any clause enabling the authority to exercise such a power and to extend the benefit, it cannot be claimed as a matter of right by the appellant. The stipulations in the notification cannot be stretched to that extent. W.A.No.349/2013 -16- 17. It is not a question of not causing any prejudice to the claim of any other candidate, but one of the absence of power itself. Shri K. Ramakumar submitted that none among the Latin Catholic Community have become successful in the written the test and therefore, a candidate belonging to that community will not get selection and that the petitioner can be fitted in that slot. 18. The appellant has rightly been included as a general category candidate in terms of her ranking. Therefore, a claim which was never raised by her cannot come to her rescue in the final hour. It is raised only after the publication of Ext.P4 list of candidates. It is clear that periodical notifications are being issued by the High Court to select candidates in the arising vacancies from time to time and therefore there is no basis in the apprehension that nobody from the community will be there to fill up the reservation slot. 19. We therefore confirm the view taken by the learned Single Judge, which cannot be said to be perverse to any extent warranting interference in the appeal. The learned Judge was right in concluding that the appellant who has not claimed the benefit of reservation in the W.A.No.349/2013 -17- application, cannot get such a benefit on the basis of Ext.P8 certificate. The learned Judge also has not gone through the plea raised by the respondent with regard to the validity and sufficiency of Ext.P8. Therefore, we are also not going into such details, viz. want of authority for the Village Officer to issue a certificate and its acceptability and we are also not entering into any such discussion. Accordingly, the Writ Appeal is dismissed. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(A.V. RAMAKRISHNA PILLAI, JUDGE)** ## **kav/**