Reshma Divakaran v. High Court of Kerala represented by Registrar, District Judiciary, High Court Complex, Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 28[TH] DAY OF JULY 2021 / 6TH SRAVANA, 1943** ## **WP(C) NO. 13642 OF 2021** ## **- PETITIONER :** RESHMA DIVAKARAN, AGED 32 YEARS D/O. (LATE) DIVAKARAN, KAYYALAPARAMBIL HOUSE, VELLANGALLUR P.O., VADAKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. BY ADV M.VIVEK ## **- RESPONDENT :** THE HIGH COURT OF KERALA REPRESENTED BY REGISTRAR DISTRICT JUDICIARY, HIGH COURT COMPLEX, ERNAKULAM, PIN-682 031 BY ADV ELVIN PETER P.J. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 13642 OF 2021 -: 2 :- ## **JUDGMENT** ## **Dated this the 28th day of July, 2021** This writ petition is filed seeking the following reliefs :- - “(i) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondent to extend the relaxation given to candidates belonging to Scheduled Castes and Scheduled Tribes in Viva-Voce to Preliminary and Main Examinations under Ext.P1 notification and to declare the petitioner selected for the main examination and to permit her to participate in the main examination and viva-voce. - (ii) Issue a writ of mandamus or any other appropriate writ, direction or order setting aside the ratio of successful candidates against the notified vacancies (1:10) notified at paragraph No.2 in point No.9 in Ext.P1 and directing the respondent to re-fix the ratio of successful candidates against the notified vacancies in terms with relief (i). - (iii) Issue a writ of prohibition or any other appropriate writ, direction or order prohibiting the respondent from identifying the candidates against their religion, caste or community while receiving applications for appointment to any post under its authority.” 2. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent. 3. The petitioner, who is an applicant to the post of Munsiff- Magistrate in the Kerala Judicial Service in pursuance to Ext.P1 WP(C) NO. 13642 OF 2021 -: 3 :- notification submits that the relaxation of marks only for the viva-voce is illegal and unjust and seeks relaxation of marks in the preliminary stages of the selection as well. The petitioner had submitted applications for appointment under Serial Nos.8 and 9, that is, for the NCA vacancy reserved for Scheduled Caste as well as 47 MunsiffMagistrates. The contention of the learned counsel for the petitioner is that the non-granting of relaxation with regard to the preliminary stages of the examinations has resulted in a situation where persons obtaining very low marks are found qualified for proceeding to the next stage of selection in the case of the other NCA vacancies while the petitioner is not being granted any benefit of relaxation in the written test. It is submitted that when the results of the preliminary examination were published on 15.6.2021, the petitioner's name was not included. It is stated that the main examination is due to be held on 31.7.2021 and the petitioner is liable to be permitted to proceed to the next stage of selection if the relaxation in marks is granted in the preliminary examination as well. 4. A statement has been placed on record by the respondent. It is stated therein that the notification was with regard to four categories of NCA vacancies and 47 regular vacancies. It is WP(C) NO. 13642 OF 2021 -: 4 :- submitted that the notification itself specifically provided that the relaxation would be applicable only for reserved categories in the viva-voce examination and that the candidates would be shortlisted after the preliminary examination in the ratio of 1:10 applied to the notified vacancies. It is stated that in the case of the NCA vacancy reserved to be filled up from Scheduled Caste candidates, the last candidate shortlisted, taking note of the 1:10 ratio, had secured 87 marks while in the regular vacancies notified as category 9 of 20, the last candidate who had been shortlisted, applying the ratio, had scored 82 marks. It is submitted that the petitioner had secured only 70 marks. It is, therefore, contended that in case the petitioner's name is to be included for further selection, all those persons who have secured equal or higher marks than the petitioner would have to be so included and the ratio would then have to be given a go by. It is further submitted by the learned counsel appearing for the respondent that the notification was specific and that it was not subjected to any challenge by the petitioner at the relevant time. It is submitted that the notification being dated 30.6.2021, the action of the petitioner in having participated in the selection fully knowing the conditions of the notification and turning around to challenge the WP(C) NO. 13642 OF 2021 -: 5 :- same after being unsuccessful in the preliminary stage of selection is completely impermissible. 5. The specific case of the petitioner in the writ petition is that the petitioner had scored only 70 marks out of 200 in the preliminary examination. The specific contention raised in the writ petition is that the candidates belonging to Scheduled Caste need to secure only 35% marks in the viva-voce. The contention is that this relaxation is not extended to preliminary and main examinations and therefore, the non-extension of the relaxation is bad in law. It is further contended that the roll numbers in Ext.P4 are in a sequence and therefore, the identification and enrollment of candidates on the basis of caste is not permissible in a competitive examination. It is further contended that in recruitment No.5/2020, there is only one candidate who has secured more marks than the petitioner and all the other nine candidates have lower marks. 6. Having considered the contentions advanced, I notice that the preliminary contention raised by the learned counsel for the respondent with regard to the petitioner having participated in the selection without any demur and later raising objections at a stage when she is unsuccessful in the selection process is a justifiable WP(C) NO. 13642 OF 2021 -: 6 :- contention. The Hon'ble Apex Court has in number of decisions categorically held that the challenge to a selection procedure after participating in the process of selection is impermissible in view of the acquiescence to the process by participation in the procedure. The decisions of the Apex Court in **Sarojakumari D.** v. **R. Helen Thilakom and Others** [(2017) 9 SCC 478], **Pradeep Kumar Rai and Ors.** v. **Dinesh Kumar Pandey and Ors.** [AIR 2015 SC 2342], **Anupal Singh and others** v. **State of Uttar Pradesh** [(2020) 2 SCC 173] etc. are some of the decisions on the point. 7. The notification pursuant to which the petitioner applied and participated in the preliminary examination was dated 30.6.2020. The results of the preliminary examination were published on 15.6.2021. It is only on finding that the petitioner is not included in the shortlist prepared for further selection that she has approached this Court on 7.7.2021 and on that short ground, this writ petition is liable to be dismissed. 8. The further contentions raised by the petitioner with regard to relaxation of qualifying criteria in the preliminary round of selection is not supported by any legally sustainable grounds. In view of the fact that the further selection was to be confined to eligible WP(C) NO. 13642 OF 2021 -: 7 :- candidates and notified vacancies in the ratio of 1:10 and in view of the fact that there is no violation of such condition and that the last candidate shortlisted admittedly has much higher marks than the petitioner, I am of the opinion that the contention raised by the petitioner cannot be accepted. The further contention that there are persons having lower marks in the other NCA lists who have been shortlisted for further selection is also not a sustainable ground against the selection, especially in view of the fact that the recruitments are to separate NCA vacancies, though the notification is the same. In the above view of the matter, I am of the opinion that the prayers sought for in the writ petition cannot be allowed. The writ petition fails and the same is, accordingly, dismissed. **Sd/ANU SIVARAMAN JUDGE** Jvt/4.8.2021 WP(C) NO. 13642 OF 2021 -: 8 :- ## **APPENDIX OF WP(C) 13642/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION NO.REC4-10546/2020 DATED 30.06.2020 Exhibit P2 TRUE COPY OF THE HALL TICKET OF THE PETITIONER Exhibit P3 TRUE COPY OF THE NOTIFICATION NO.REC4-10945/2016 DATED 18.02.2016 Exhibit P4 TRUE COPY OF THE RESULT NOTIFICATION NUMBER REC 4- 10546/2020 DATED 15.06.2021 Exhibit P5 A TABULAR REPRESENTATION OF THE SELECTED CANDIDATES AS PER EXT.P4 AND THEIR MARKS