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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, K. BABU, JJ.
Indian Institute of Science Education and Research – Appellant
Versus
Dr. Smitha V.S. – Respondent
W.A. No. 2029 of 2018
Decided On : 07-04-2021
Kerala High Court Act – Section 5 – Appointment – Notification – Respondent is a post graduate with Ph.D in Chemistry working as Research Associate in CSIR – She belongs to OBC, non-creamy layer category. – Appellant No. 1 issued Ext.P1 notification as per Advt. inviting applications for appointment to various posts including that of Technical Assistant in Chemistry, of which one vacancy each was notified in general category, OBC and Scheduled Caste category. – Last date fixed for submitting online application was 24.11.2017 and the last date for submitting print out of the completed application form, with self attested copies of certificates showing educational qualification and experience, was fixed as 30.11.2017 – Whether Ext.P1 selection notification dated 31.10.2017 has insisted that the candidates concerned should necessarily produce OBC-NCL certificate at the time of submission of the application going by the prescriptions in the four steps covered by Clause 26 of Ext.P1 selection notification and Clause 10 of Ext.P1 selection notification read with Ext.P10 norms of the Union Government authorities.
Finding of the court: 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. – It can be seen that the respondent who claimed the OBC-NCL benefit in Ext.P-2 application, is entitled to get reasonable time to produce the requisite OBC-NCL certificate, going by the norms at Clause 26 of Ext.P-1, more particularly Step 4 thereof and Clause 10 of Ext.P-1 read with Ext.P-10. – So in the instant case, the respondent is entitled for the said relief, even going by the abovesaid norms which governed the instant selection process, even without placing reliance on the dictum in Ram Kumar Gijroya's case (supra), etc. – Admittedly Ext.P-10 norms were in force at the time of initiation and finalisation of the present selection process at Ext.P-1/P-11. – Assuming that those norms are to be varied in future, for any valid reasons, any such alteration cannot affect the present selection process. – This is so, as it is trite that any such alteration of norms in future even if effected in the manner known to law, cannot affect the impugned selection process in question, as if it were to be so done, it would amount to changing the rules of the game after the selection. – Hence the abovesaid plea made on behalf of the appellants does not appear to be tenable. – Court is in full agreement with the conclusions arrived at in the impugned judgment of Single Judge in these writ proceedings for the aforestated reasons given by us herein above. – Hence the orders and directions rendered in the impugned judgment in the W.P. (C) do not deserve interference in this intra-court appeal. – Court note that the impugned selection process has been finalised, quite some time ago and the respondent is overaged and has been waiting patiently for a very long time. – Hence it is ordered that the appellants will comply with the directions and orders in the impugned judgment in W.P. (C) without any further delay, at any rate, within 6 weeks from the date of receipt of a copy of this judgment. – So the impugned judgment in this W.P. (C) will stand modified, as above
Result: Writ Appeal Dismissed
JUDGMENT :
K. BABU, J.
1. The judgment dated 19.9.2018 in Writ Petition No. 26224 of 2018, rendered by a learned Single Judge of this Court, is under challenge in this intra-court appeal filed under Section 5 of the Kerala High Court Act.
2. Appellants are respondents 1 to 3 in the Writ Petition. The writ petitioner is the sole respondent in this appeal.
3. We have heard the learned Senior Counsel Smt. Sumathy Dandapani appearing for the appellants and Sri. S.P. Aravindakshan Pillay, learned counsel appearing for the respondent.
4. The relevant facts required to appreciate the rival contentions are extracted below:
5. The respondent submitted Ext.P2 application on 9.11.2017 indicating OBC-NCL as the category against Entry No. 7 therein. She also submitted Ext.P3 certificate dated 12.4.2016, issued by the Tahsildar, Aluva, to the effect that she belongs to Hindu-Ezhava community which is recognised as a backward class and that she does not belong to creamy layer category, along with her application.
6. Appellant No. 1 published Ext.P5 short list of candidates on 2.5.2018 wherein the respondent was included at S. No. 6 for the post of Technical Assistant (Chemistry) in the general category. Ext.P5 contained names of 14 candidates in which one candidate at S. No. 11 was short listed in OBC-NCL category. On 4.5.2018, the respondent submitted Ext.P6 e-mail to appellant No. 2, requesting to consider her as OBC-NCL candidate, stating that the certificate she had already produced is valid only up to April, 2017 and that she would produce the certificate for the current financial year at the time of interview/written test.
7. The written test was held on 21.6.2018 and results were published on 25.7.2018. Under the general category and SC category, one candidate each was included in the rank list. No candidate was included in OBC-NCL category. The respondent was included at S. No. 2 in the waiting list under general category. Immediately thereupon, the respondent submitted Ext.P9 representation dated 27.7.2018, requesting appellant No. 2 to consider her under OBC category, stating that she was wait listed in general category though she belongs to OBC-NCL category. She also produced Ext.P8, OBC-NCL certificate dated 30.7.2018, issued by the Tahsildar, Aluva. The respondent had also stated that she was unable to travel at the time of submission of the application as it was during her pregnancy period which made her unable to produce the OBC-NCL certificate for the current year. The respondent filed Writ Petition challenging Ext.P7 select list to the extent it does not include her in the OBC-NCL category.
8. The appellants resisted the claim of the respondent. According to the appellants, as per condition No. 10 in Ext.P1 notification, a candidate who has not produced 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 the first communication received from the respondent regarding production of non-creamy layer certificate (NCL certificate) was by way of e-mail dated 4.5.2018 and at that time itself she was informed of the inability to accede to her request. As per Ext
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