Sumesh T.S. v. Kerala Public Service Commission and others

W.P.(C).No.5499 of 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944 WP(C) NO. 5499 OF 2021** ## **PETITIONER:** SUMESH T.S. AGED 30 YEARS S/O T.P.SIVASANKARAN, THAYAMPARAMBIL HOUSE, MANNUTHY CHIRA, MANNUTHY P.O., THRISSUR-680651. BY ADVS. C.HARIKUMAR SRI.RENJITH RAJAPPAN SHRI.ANAND GOKULDAS ## **RESPONDENTS:** 1 THE KERALA PUBLIC SERVICE COMMISSION OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, M.G. ROAD, NEAR PATTOM JUNCTION, PALACE PATTOM, THULASI HILLS, PATTAM , THIRUVANANTHAPURAM-695004, REPRESENTED BY ITS SECRETARY. 2 EXECUTIVE OFFICER(HQ) KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, OFFICE OF THE CHIEF EXECUTIVE OFFICER, HARISREE BUILDING, MWRA-14, KOCHUPILAMOODU, KOLLAM -691001. W.P.(C).No.5499 of 2021 2 3 VIDYA . T SATHYA SAI BHAVAN, CRA -208 CHADIYARA, POOJAPURA THIRUVANANTHAPURAM-695 012 (ADDL.R 3 IMPLEADED AS PER ORDER DATED 18/06/2021 IN IA.3/2021 IN WP(C) 5499/2021.) BY ADVS. P.C.SASIDHARAN SRI.P.RAMAKRISHNAN R.SUNIL KUMAR A.SALINI LAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2022, THE COURT ON 16.09.2022 DELIVERED THE FOLLOWING: W.P.(C).No.5499 of 2021 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).No.5499 of 2021** **= = = = = = = = = = = = = = = = Dated this the 16[th] day of September, 2022** ## **JUDGMENT** - 1.This writ petition is filed seeking the following reliefs:- - “i. issue a writ of certiorari quashing Exhibit P6. - ii.a writ of mandamus directing the 1[st] respondent to include the petitioner in the Exhibit P9 rank list in the OBC category. iii.issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the interest of justice.” - 2.Heard the learned counsel for the petitioner, learned Standing Counsel appearing for the Public Service Commission, learned counsel appearing for the 2[nd] respondent Kerala Motor Transport Workers Welfare Fund Board and learned counsel appearing for the additional 3[rd] respondent. 3. The petitioner was a candidate for selection to the post of District Executive Officer in the Kerala Motor Workers Welfare Fund Board,pursuant to Ext.P1 notification dated W.P.(C).No.5499 of 2021 4 28.06.2017 and he was short listed in the selection. It is contended that the petitioner belongs to OBC category of Hindu-Veerasaiva. However, in the SSLC certificate the caste of the petitioner is wrongly shown as Hindu-Pillai. 4.It is contended by the petitioner that Exhibit P3 certificate issued by the Village Officer, Ollukkara would show that the petitioner belongs to Hindu-Chetty (Pappada-Chetty) community. The petitioner had also taken steps for effecting correction of the caste status wrongly shown in the SSLC Certificate by Gazette notification. He had produced Exhibit P4 challan form at the time of verification of documents to show that he had applied for Gazette notification of the correction in the SSLC book. However, by Exhibit P6 proceedings the petitioner was informed that since he could not produce the Gazette notification on 12.8.2020, that is the date of the interview, the petitioner would not be entitled for reservation in the instant selection. W.P.(C).No.5499 of 2021 5 5. A counter affidavit has been placed on record by the 1[st] respondent contending that the petitioner had applied pursuant to Ext.P1, claiming reservation benefit of OBC Chetty. It is submitted that after publication of the shortlist, the Commission directed all candidates included in the shortlist to appear for one time verification of their documents to prove their claims regarding age, qualification etc. Then it was found that the caste of the petitioner in his SSLC book is Hindu-Pillai. Petitioner produced a non-creamy layer certificate issued by Village Officer, Ollukkara stating that the petitioner belongs to Hindu-Chetty community. Since the claim of the petitioner in his application is OBC Chetty and since the entry in his SSLC book is Hindu-Pillai, the Commission directed him to produce a Gazette Notification. However, on the date of the interview, the petitioner did not produce the Gazette notification correcting the entries in his SSLC Book and he submitted only a noncreamy layer certificate stating that he belongs to HinduVeerasaiva community. It is contended that since the petitioner was not found eligible for the benefit of reservation, he has been included in the ranked list as an open category candidate. W.P.(C).No.5499 of 2021 6 6.It is contended that as per paragraph 13(g)(ii) in Part II, General Conditions of Ext.P1 Gazette Notification, it is specifically stated that where there is a difference in the Date of Birth, Community, Religion etc of candidates as between the school records and those furnished in the application form, the original Gazette Notification publishing the change of caste, community shall be produced before the Commission at the time of the interview or as and when required by the Commission. The same should also be produced before the appointing authority at the time of joining duty. It is stated that the Commission had issued Circular No.7/2018 dated 16.08.2018 insisting that if the claim of the applicant differs from that of his SSLC book, the correction made in the SSLC book by way of Gazette notification shall be insisted upon and the candidate shall produce the notification along with the Community/non-creamy layer certificate at the time of certificate verification. It is contended that the date of finalisation of selection is the date of interview or the date fixed for production of documents, whichever is later. It is further contended that the claim of the petitioner is self W.P.(C).No.5499 of 2021 7 contradictory and that he himself has no consistent case with regard to his caste status. 7.The learned standing counsel appearing for the 1[st] respondent places reliance on the decision in **Shaiji Cherukkattil v. Kerala Public Service Commission and another** [2010(4) KHC 805] and also the judgment dated 26.5.2011 in W.P. (C).No. 11716 of 2011. It is contended that this Court in **State of Kerala and others v. Ritha Thomas** [2010(2) KLT 637] has held that SSLC book is a public document accepted for all official purposes and that changes carried out in the same should also be published in the Gazette notification for information of the public. It is, therefore, contended that if there is any difference in Caste in the SSLC book and the application submitted by the candidate, the candidate has to produce Gazette Notification regarding the change of caste status in the SSLC Book. Paragraph 14 of the General conditions is also relied on to contend that documents in proof of educational qualifications, date of birth, community, experience etc, are to be produced at the time of interview or W.P.(C).No.5499 of 2021 8 at any time as directed by the Commission. It is submitted that in the instant case, in the absence of Gazette notification rectifying the mistake concerning the entries relating to the Caste in the SSLC Book, the petitioner could not have claimed the benefit of reservation under the OBC Category. The decisions of a Full Bench of this Court in **Kerala Public Service Commission v. Reshmi K.R** [O.P.(KAT) No.143 of 2016] and other decisions laying down that the general conditions to a notification are mandatory in nature are also relied on. 8.The 3[rd] respondent has also placed a counter affidavit on record. It is contended that the petitioner passed SSLC twelve years back and he was very well aware that the community in his SSLC book was shown as 'Pillai' which is not a caste under OBC. It is stated that Kurukkal/Gurukkal is a sub caste of Veerasaiva, which is not included in the OBC list. The veracity of Ext.P3 is also challenged by the 3[rd] respondent in the counter affidavit. It is contended that the petitioner could produce nothing during the selection to show that the W.P.(C).No.5499 of 2021 9 community in the SSLC book stood corrected and that the petitioner is entitled to reservation. It is contended that the 3[rd] respondent, who belongs to an OBC community, is entitled to appointment in the OBC turn and the claims of the petitioner are completely misconceived. 9.A reply affidavit has been placed on record stating that the documents produced in support of community status by the petitioner were liable to be accepted by the respondents. It is contended that the absence of Gazette notification rectifying the mistake relating to caste status in the SSLC book was the reason for denial of benefit of OBC status to the petitioner. It is stated that the correction had already been carried out and that the Gazette notification had also been effected. It is contended that by producing Ext.P4 challan, the petitioner had succeeded in producing all requisite documents before the finalisation of the ranked list and therefore he was liable to be included in the ranked list. W.P.(C).No.5499 of 2021 10 10.An additional counter affidavit is placed on record by the 3[rd] respondent, producing documents in support of the contention that the category of Hindu Pappada Chetty stands included in Serial No.73 of the list III in the Schedule to Kerala State and Subordinate Service Rules only by Ext.R3(G) communication dated 18.06.2022 and that the petitioner could have no claim for inclusion as OBC before the said date. 11.I have considered the contentions advanced. The specific case of the petitioner in the writ petition is that the petitioner belongs to the Hindu Pappada Chetty Community and is entitled to advice and appointment as a member of Other Backward Class community. Ext.P2 is a communication which states that persons, who are included in the category of 'Pappada Pandaram' or 'Pappada Chetty,' are entitled to certificate as 'Veerasiva Pandaram'. Ext.P3 is a non-creamy layer certificate where the caste of the petitioner is shown as Hindu-Chetty (Pappada-Chetty). Ext.P4 is a challan dated 30.07.2020 for payment of fees for correction of caste in the SSLC book. Ext.P5 is the another non creamy layer certificate W.P.(C).No.5499 of 2021 11 showing the caste of petitioner as Hindu-Veerasaiva. The reason stated in Ext.P6 is that where there is a change in the caste recorded in the SSLC book, the correct caste should be recorded in the application and the caste certificate/noncreamy layer certificate showing the correct caste as well as the Gazette notification showing the correction should be made available at the time of document verification. It is submitted that the petitioner had not produced any such documents, even at the time of the interview and that therefore his claim could not be considered. In List III of the Schedule to Part I of the Kerala State & Subordinate Service Rules, Entry 13 refers to Chetty/Chetties and its sub castes. Entry 73 reads as follows:- “Veerasaivas (Yogis, Yogeeswara, Poopandaram/ Maalapandaram, Jangam and Pandaram).” 12.The petitioner’s caste was entered as Hindu-Pillai in his SSLC certificate. The petitioner claims that the same was a mistake. No effort had been made by the petitioner for making appropriate corrections in the SSLC certificate. W.P.(C).No.5499 of 2021 12 Exhibit P3 non-creamy layer certificate dated 1.1.2020 issued by the Village Officer, Ollukkara would show that the petitioner's community is recorded as Hindu-Chetty (Pappadachetty) while Exhibit P5 issued by the very same authority on 30.07.2020 would show that the community is noted as Hindu-Veerasaiva. It appears that the document produced during the time of One Time Verification was Exhibit P3. Even as on the date of the interview, the petitioner could not produce any authoritative document to show that he was entitled for inclusion in the OBC category. The Gazette notification with regard to correction of his caste in the SSLC book which was the document required was admittedly not produced. 13.This Court in **Shaiji Cherukkattil v. Kerala Public Service Commission and another** [2010(4) KHC 805] had held that where the conditions and stipulations contained in the notification inviting applications are clear, all candidates are bound by such conditions. It was held that unless a candidate produces a proper non-creamy layer certificate W.P.(C).No.5499 of 2021 13 and accompanying documents to enable him to claim the benefit of reservation at the relevant time, he cannot be permitted to claim such reservation in that particular selection. In judgment dated 26.5.2011 in W.P. (C).No.11716/2011 also, a learned single Judge of this Court considered a case where the Gazette Notification declaring correction in the SSLC book was done after the last date prescribed for the same. This Court held that the fact that the petitioners subsequently got the SSLC book corrected will not entitle them to claim reservation on the basis of such correction, if the evidence of correction, as required, had not been produced at the relevant time, that is, at least before the date of the interview. 14.In the instant case, the petitioner has not produced the Gazette notification at the time of One Time Verification at the time of the interview. The admitted case of the petitioner is that the Gazette notification regarding the error in the SSLC book was effected only in the Gazette dated 15.9.2020. In view of the fact that Exhibit P1 notification W.P.(C).No.5499 of 2021 14 was issued as early as on 28.6.2017 and the last date for submitting application was 2.8.2017, I fail to see how the contention of the petitioner that the Covid pandemic had somehow prevented the petitioner from effecting Gazette publication of correction the entry of caste in the SSLC book can be accepted. Admittedly, the petitioner had attempted to effect the publication in the Gazette only in July 2020. No effort had been made by the petitioner to effect any such corrections even in spite of the receipt of Exhibit P3 caste certificate dated 1.1.2020. Exhibit P5 certificate had also been obtained by the petitioner only on 30.7.2020. Exhibit R3(g) produced by the 3[rd] respondent would show that the community Hindu-Chetty, Pappada-Chetty and other community mentioned therein have been included in Entry 73 of List III in Schedule I of the KS&SSR only on 18.6.2022. Exhibit P12 would show that the correction effected in the SSLC book is in accordance with Exhibit P5 certificate and not relying on Exhibit P3. The petitioner does not have a case that Exhibit P12 was produced before the PSC before the finalisation of the ranked list. In the 15 W.P.(C).No.5499 of 2021 above factual situation, I am of the opinion that the contentions raised by the petitioner that the petitioner was entitled to appointment in pursuance to Exhibit P1 notification on granting the benefit of reservation is completely misconceived. The challenge against Exhibit P6 fails and the writ petition is accordingly dismissed. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.5499 of 2021 16 ## **APPENDIX OF WP(C) 5499/2021** PETITIONER EXHIBITS - EXHIBIT P1 THE TRUE COPY OF THE NOTIFICATION IN THE GAZETTE EXTRAORDINARY IN CATEGORY NO. 222/2017 DATED 28/06/2017. - EXHIBIT P2 THE TRUE COPY OF THE INFORMATION RECEIVED UNDER THE RIGHT TO INFORMATION ACT DATED 17/8/2016. EXHIBIT P3 THE TRUE COPY OF THE CASTE CERTIFICATE SHOWING THE PETITIONER'S CASTE AS THE HINDU-CHETTY (PAPPADACHETTY) ISSUED BY THE VILLAGE OFFICER, OLLUKKARA DATED 01.01.2020. - EXHIBIT P4 THE TRUE COPY OF THE CHALLAN FORM DATED 30.07.2020 PRODUCED BY THE PETITIONER AT THE TIME OF INTERVIEW. EXHIBIT P5 THE TRUE COPY OF THE CASTE CERTIFICATE SHOWING THE PETITIONER'S CASTE AS THE HINDU VEERASAIVA ISSUED BY THE VILLAGE OFFICER, OLLUKKARA DATED 30.07.2020. EXHIBIT P6 THE TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 15/09/2020. EXHIBIT P7 THE TRUE COPY OF THE APPOINTMENT CHART OF ADVICE DATED 2.02.2009. EXHIBIT P8 THE TRUE COPY OF THE ROTATION CHART SHOWING THE NEXT TURN FRO OBC CANDIDATE. W.P.(C).No.5499 of 2021 17 EXHIBIT P9 THE TRUE COPY OF THE RANK LIST FOR DISTRICT EXECUTIVE OFFICER/ ADDITIONAL DISTRICT EXECUTIVE OFFICER IN LIST NO. 222 OF 2017 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P10 THE TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT THROUGH EMAIL AND BY REGISTERED POST DATED 4.08.2020. RESPONDENT EXHIBITS Exhibit R3 A TRUE COPY OF THE REPLY RECEIVED BY 3RD RESPONDENT UNDER RIGHT TO INFORMATION ACT FROM OLLUKARA VILLAGE OFFICE DATED 12/10/2021 - Exhibit R3 B TRUE COPY OF MY CAST CERTIFICATE ISSUED BY VILLAGE OFFICER SASTHAMANGALAM DATED 23/01/2020 Exhibit R3 C TRUE COPY OF THE GAZETTE NOTIFICATION DATED 18/1/2014 PETITIONER EXHIBITS EXHIBIT P12 The true copy of the relevant pages of the Gazette Notification dated 30.07.2020 EXHIBIT P12 The true copy of the relevant pages of the Gazette Notification dated 30.07.2020 RESPONDENT EXHIBITS Exhibit R3(D) TRUE COPY OF THE G.O(MS) 57/96/SCSTDD DATED 08/11/1996 W.P.(C).No.5499 of 2021 18 Exhibit R3(E) TRUE COPY OF THE LIST OF OTHER BACKWARD CLASSES IN KERALA Exhibit R3(F) TRUE COPY OF THE REPLY RECEIVED BY THE PETITIONER UNDER R.T ACT DATED 13/12/2021 Exhibit R3(G) TRUE COPY OF THE G.O(K)NO. 07/2022 OBC DATED 18/09/2022 True copy PS to Judge