Union of India and Others v Abdul Rasheed S/O Kuttoosa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE THE ACTING CHIEF JUSTICE MR.THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 21ST DAY OF JULY 2016/30TH ASHADHA, 1938** **WA.No. 655 of 2016 () IN WP(C).39210/2015 -------------------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN WP(C) 39210/2015 of HIGH COURT OF KERALA** **APPELLANT(S)/APPELLANT: ----------------------** **1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NEW DELHI 110012** **2. THE CHAIRMAN STAFF SELECTION COMMISSION, BLOCK NO 12, C G O COMPLEX, LODHI ROAD, NEW DELHI 110504** **3. THE REGIONAL DIRECTOR(KKR) STAFF SELECTION COMMISSION, IST FLOOR E WING KENDRIA SADAN, KORAMANGALA, BANGALORE, KARNATAKA 560034** ## **BY ADV. SMT.O.M.SHALINA, CGC** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **ABDUL RASHEED S/O.KUTTOOSA, KAMBAYATHIL HOUSE, KANNANKADAVU, KAPPAD P O, KOZHIKODE DISTRICT, PIN 671304.** **NAME OF RESPONDENT IS CORRECTED AS ABDUL RASHEED INSTEAD OF ABDUL MAJEED IN WRIT APPEAL AND CMAPP.422/16 AS PER ORDER DATED 17.6.16 IN IA.670/16.** **BY ADV. SRI.K.K.MOHAMED RAVUF** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2016, THE COURT ON 21.7.2016 DELIVERED THE FOLLOWING:** ## **THOTTATHIL B.RADHAKRISHNAN, Ag.CJ. & ANU SIVARAMAN, J.** ## **----------------------------------------------W.A.No. 655 of 2016 ----------------------------------------------Dated this the 21[st] July, 2016** ## **JUDGMENT** ## **Anu Sivaraman, J.** This writ appeal is preferred by the Union of India and the Staff Selection Commission against the judgment of the learned single Judge directing the appointment of the respondent and his adjustment in an available vacancy, if found otherwise eligible. The candidature of the respondent in the post of Sub Inspector in Delhi Police & Central Armed Police Forces (CAPFs) and Assistant Sub Inspector in CISF had been rejected by the appellants on the ground that the OBC certificate produced by him was issued 180 days after the closing date of the application. The respondent was an applicant pursuant to the notification dated 28.3.2015. The last date of application was 2.5.2015. 2. Clause 4(C) of the notification provided as follows: ## “ _4(C):_ _**PROCESS OF CERTIFICATION AND FORMAT OF CERTIFICATES** :_ _Candidates who wish to be considered against vacancies reserved/or seek age-relaxation must submit requisite certificate from the competent authority, in the prescribed format when such certificates are sought by concerned Regional/Sub Regional Offices at the time of interview/document verification. Otherwise, their claim for SC/ST/OBC/ExS/ Departmental candidates (Delhi Police) status will not be entertained and their candidature/applications will be considered under General (UR) category. The formats of the_ 2 _**WA.655/16**_ _certificates are annexed. Certificates in any other format will not be accepted. The Commission has decided to accept OBC certificate in the prescribed format issued after the closing date but within a period of 180 days from the closing date for receipt ” of application._ 3. The respondent was qualified in the written test and attended the Medical Board in which also he was cleared. By Exhibit P7 call letter, he was required to attend an interview on 7.12.2015. Though the first respondent was in possession of Exhibit P8 community certificate dated 20.4.2015, since a certificate was required to be produced in the format prescribed by the notification, he had procured Exhibit P9 dated 1.12.2015 and had produced it at the time of interview. However, his application was rejected stating that the OBC certificate was not issued within the stipulated date fixed for as per the notification and that he was over aged under the general category. Exhibit P10 rejection was under challenge in the writ petition on the ground that the rejection was contrary to the requirements of the notification. 4. A counter affidavit was filed in the writ petition on behalf of respondents 2 and 3 stating that clause 4(C) of the notification specifically stated that the OBC certificate should be one issued within a period of 180 days from the closing date of receipt of the application, i.e., 2.5.2015. It was contended that the reason for such prescription was to ensure that only persons who are entitled to apply under the notification could be given relaxation. Exhibit R3(b) circular issued by 3 _**WA.655/16**_ the Department of Personnel and Training, which mandated that OBC certificates in prescribed format issued upto 180 days from the closing date alone would be accepted was relied on in support of the contention. 5. The learned single Judge considered the contentions and held that internal communication issued between the departments of the Government cannot be relied on to restrict a benefit under the notification and that clause 4(C) of the notification is to be looked into to consider whether the certificate produced by the writ petitioner could have been accepted. On a close reading of clause 4(C) of the notification, the learned single Judge held that the permission given to OBC candidates to produce certificates issued within 180 days from the closing date of receipt of application can only be understood as an enabling clause permitting the recruiting agency to consider inclusion of any community under the OBC category within 180 days from the last date of application. Viewed in this perspective, since the community to which the respondent belonged was admittedly entitled to be considered as Other Backward Community, the rejection of his candidature on the ground that Exhibit P9 was a certificate issued beyond 180 days from the date of closing of the application was found to be illegal and invalid. The appellants were directed to consider the respondent and to grant him appointment, if he is otherwise eligible. 4 _**WA.655/16**_ 6. Heard Smt.O.M.Shalina, learned Central Government Counsel appearing for the appellants and Sri.K.K.Mohammed Ravuf, learned counsel appearing for the respondent. 7. It is contended by 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. Even though the community status of the respondent remains constant, it is contended that the non-creamy layer status may be subject to change and therefore only a certificate issued within 180 days from 2.5.2015 would be liable to be accepted. Further, it is stated that a Division Bench of the High Court of Delhi in WP(C).2760 of 2016 had considered the clause in the notification dated 28.3.2015 and held that the rules having stipulated that the candidate should possess an OBC certificate in the prescribed format issued within 180 days of the closing date of the application, there can be no direction issued to accept the certificate issued after such date. 8. The learned counsel appearing for the respondent would, on the other hand, submit that the respondent belongs to Muslim community. He had current certificate to that effect in his possession as well, as is evident from Exhibit P8. It is only because he was 5 _**WA.655/16**_ required to produce the certificate in the prescribed formant that he had to make further application and Exhibit P9 certificate dated 1.12.2015 was produced at the time of interview as was required in the notification. He relies on a judgment of the Apex Court reported in _**Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board and Another**_ [(2016)4 SCC 754] to contend that the candidature of OBC candidates could not be rejected solely on account of late submission of caste certificate. Reliance was also placed on the decision of the Honourable Supreme Court in _**Tej Pal Singh and others v. Government of NCT of Delhi and Another**_ [(2000) ILR 1 Delhi 298] . 9. It is not in dispute before us that the respondent is a person belonging to OBC. The fact that he was entitled to reservation is also not in dispute. The 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 date of closure of the application. 10. The land mark judgment of the Apex Court in _**Indra Sawhney v. Union of India**_ [(1992)3 SCC Supple. 217] has explained the concept of reservation in its historical background and has laid down the principles for implementation. In _**Tej Pal Singh's case**_ 6 _**WA.655/16**_ _**(supra)**_ , the Apex Court held that candidates belonging to SC and ST categories who submitted the community certificates belatedly were also eligible to be considered for appointment under the reserved category. In _**Pushpa v. Government NCT of Delhi & ors.**_ [2009(2) Laws (Delhi) 278], with regard to the late submission of community certificate of an OBC candidate, the Apex Court held that a person belongs to OBC category by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by a competent authority to this effect is only an affirmation of the fact which is already in existence. In _**Ram Kumar Gijroya's case (supra)**_ the Apex Court considered the question of law as to whether a candidate who appears in an examination under the OBC category and submits the certificate after the last date mentioned in the advertisement is eligible for selection to the post under the OBC category or not. Deciding a batch of civil appeals, it was held that the judgment of the Division Bench setting aside the judgment and order dated 24.11.2010 wherein the learned single Judge had allowed the writ petition and directed the respondents to accept the OBC certificates produced belatedly was erroneous and the same was set aside. The direction to consider the appellant for selection in the reserved category was thus upheld. In the facts of this case as well, we are of the view that the certificate produced by the first respondent at 7 _**WA.655/16**_ the time of interview should have been accepted and acted upon by the appellants. 11. Having considered the pleadings and materials on record as well as the binding judgments of the Apex Court cited above, we are of the opinion that the view taken by the learned single Judge that the candidature cannot be rejected on the ground of the caste certificate being one issued after 180 days from 2.5.2015 is the legally correct and acceptable view. We are, therefore, not inclined to interfere with the judgment of the learned single Judge through this intra court appeal. The writ appeal fails. In the result, the writ appeal is dismissed. **THOTTATHIL B.RADHAKRISHNAN** ## **ANU SIVARAMAN** **JUDGE** _vgs_