Kerala High Court: The Division Bench of Alexander Thomas and K. Babu, JJ., held that rejection of the candidature of the respondent from the OBC category on the mere ground of belated submission of the relevant OBC-NCL certificate was violative of Article 14 and 16 of the Constitution. The Bench stated,
“The respondent has clearly stated in letter dated 27-07-2018 that she was under rest and was unable to travel as advised by her gynecologist due to difficulties during pregnancy period and hence was unable to produce OBC-NCL certificate valid for the period mentioned in the notification along with the application and she undertook that she can produce OBC-NCL certificate before the recruitment cell at any time.”
Facts of the Case
The present appeal had been filed against the order of the Single Judge, wherein, Single Judge, after appreciating the rival contentions on the basis of the materials placed before the Court, has rejected the contentions of the appellants and had interfered with the impugned decision to reject the candidature of the respondent in the OBC-NCL category and directed the appellants to accept the respondent’s certificate and treat her as one eligible, who belongs to OBC-NCL category and to include her in select list for the OBC-NCL reservation within two weeks.
The respondent belonged to OBC, non-creamy layer category. She had applied for the post of Technical Assistant, Chemistry in response to the notification issued by the appellant-Indian Institute Of Science Education and Research inviting applications for appointment for which one vacancy each was notified in general category, OBC and Scheduled Caste category. Later on, her representation was cancelled owing to delay in submission of non-creamy layer certificate.
According to the appellants, as per condition No.10 in the selection notification, a candidate who had not produced a non-creamy layer certificate for the relevant financial year would not be eligible to be considered under the OBC category. The appellants further contended that, during verification of documents, since the respondent had not submitted the valid OBC -NCL certificate along with her application, she was short listed under general category. As the respondent failed to produce the required OBC – NCL certificate, she was placed at second position in the waiting list of UR (unreserved) category in select list. Since, the respondent was unsuccessful in producing the required OBC-NCL certificate, for the current financial year, along with the application and that she failed to state any reason for not submitting the same for the relevant period during the submission of the online application she was declared unsuccessful.
Analysis and Findings of the Court
The crucial question before the Court was whether the selection notification dated had insisted that the candidates concerned should necessarily produce OBC-NCL certificate at the time of submission of the application. Clause 26 of the selection notification clearly provided for four steps under the caption, “How to apply”. Step 4 mentioned there was very crucial and relevant for the present case and it read as follows: “Step 4 – take a print out of the completed application form, attach proof of payment and forward the same along with self attested copies of the certificates for educational qualifications and experience, as claimed in the application, by registered post/ speed post only in a sealed cover superscribing ‘application for the post of ……….., postcode ……’ on or before 30.11.2017 to the Registrar.”
Hence, after reading Clause 26 along with step 4 therein read with Clause 11, the Bench opined that that what was directed to be attached along with the hard copy of the application were certificates to prove educational qualification, experience and community. Therefore, OBC-NCL certificate was not included. Therefore, there was no obligation that copy of the OBC-NCL certificate for the current year should compulsorily be produced along with the hard copy of the application on or before the last date of 30-11-2017.
Clause 10 clearly stipulated that the norms issued by the Government of India on 17-08-2017 to relax the earlier rigorous conditions would be applicable in the instant case. According to said norms and as per the order of the Supreme Court in S.L.P.(C) No.3116/2017 in Union of India v. Abdul Rasheed, the Staff Selection Commission considered the matter regarding relaxation of the time limit in producing OBC certificates within the cut off period and that based on the approval of the Union Government in the Department of Personnel & Training as well as the Department of Legal Affairs, it is ordered that with effect from 23-01-2017, (date of the abovesaid S.L.P. Order), insistence will not be made for production of the requisite OBC certificate before the last date of receipt of the applications, etc. It was further mentioned that,
“Where document verification has already been completed and the final result was declared after 23.1.2017 or is yet to be declared, the candidate may produce prima facie proof of being OBC, if already not produced, to enable the Commission for consideration/ processing of their claim under OBC category. Further that such candidature of OBC candidates will remain provisional and subject to verification.”
Accordingly, the candidates were required to make the claim for reservation benefits like OBC-NCL in the application form which was to be submitted before the prescribed last date and those candidates who had not produced the reservation eligibility certificates like OBC-NCL certificate would have to produce it before the selection authorities within a reasonable time. Hence, the OBC-NCL certificate need not be produced along with the application before the last date and the candidate would have to later produce the said certificate before the selection authority within a reasonable time.
Therefore, not granting reasonable time to a candidate for production of OBC-NCL certificate would amount to violation of Clause 26 and Clause 10 read with Government norm any interpretation to the contrary would defeat the principles of affirmative action, equity and justice/reasonableness and fairness which are intrinsic in Articles 14 and 16 of the Constitution.
Rejecting the contention of the appellants that government norm and decisions in Abdul Rasheed’s case would apply only for grant of more time for production of OBC certificate and the same will not govern the issue of grant of more time for submission of NCL certificate, the Bench clarified,
“Only if the candidate concerned can establish that he/she belongs to OBC, can she/he establish the claim for NCL. So if more time is to be granted for submission of OBC certificate, then necessarily the same will apply for submission of NCL certificate as well. Moreover, this contention is highly hyper-technical, as the OBC-NCL certificate issued by the competent authority is a comprehensive one.”
In the instant case, the application submitted by the respondent was before the prescribed last date, she had also produced certificate dated 12-04-2016 certifying her OBC status and incidentally it was to be noted that that certificate also certified her NCL eligibility. The issue was only in regard to the variation of income for the year 2017-18. In view of the abovesaid aspects, the Bench held that, the considered findings made by the learned Single Judge in the impugned judgment in the in favour of the respondent interdicting with the impugned decision of the appellants that led to the rejection of her candidature for the post of Technical Assistant (Chemistry) reserved for OBC-NCL, could not be said to be illegal, wrong or perverse. Therefore, the Bench remarked,
“Rejection of the candidature of the respondent from the OBC category on the mere ground of belated submission of the relevant OBC-NCL certificate will only result in virtually throwing out a meritorious candidate with extensive research experience, in the facts and circumstances of this case. This will only lead to a situation where the rights and opportunities guaranteed to the respondent under Articles 14 and 16 of the Constitution of India will be flagrantly violated.”
[Indian Institute of Science Education and Research v. Smitha V S, 2021 SCC OnLine Ker 2483, decided on 07-04-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For the Appellants: Sr. Adv. Sumathy Dandapani and Adv. Millu Dandapani
For the Respondent: Adv. S.P.Aravindakshan Pillay, Adv. N.Santha, Adv. Peter Jose Christo, Adv. S.A.Anand and Adv. L.Annapoorna