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2025 DIGILAW 1843 (KER)

Sini K. v. W/o Anish Kumar E. VS State of Kerala

2025-07-04

A.MUHAMED MUSTAQUE

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JUDGMENT : A. Muhamed Mustaque, J. 1. The short point in this case is: can a candidate who applied as a general candidate later claim the benefit of reservation, if their community was included in the backward community list after the last date for submitting the application? 2. The Kerala Public Service Commission (PSC) published a notification on 30/08/2016 inviting applications for selection to the post of High School Assistant (Physical Science) in Malayalam medium. The last date of application was 05/10/2016. Smt. Minusha K., the 7th respondent in this Original Petition, applied for the above post as a general candidate. She belongs to the Mukhari/Moovari community. On 18/12/2018, the Government ordered that the Mukhari/Moovari community shall be included in the OBC list under Schedule III, Part I of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as KS&SSR). Based on the above government order, Smt. Minusha obtained a non-creamy layer certificate from the Village Officer on 13/06/2019; accordingly, she updated her profile in the PSC portal. The PSC published the ranked list on 18/11/2020. Smt. Minusha was included in the general category. The petitioner herein, Smt. Sini K.V. was included in the OBC category. Smt. Minusha made a request to the PSC claiming the benefit of the OBC community. The PSC rejected her request. In a challenge made before the Tribunal, the Tribunal found that the PSC extended reservation in another notification for appointment of Women Police Constable in similar circumstances and, therefore, PSC cannot adopt a different yardstick. Further, the Tribunal was of the view that a reservation has to be applied at the time of appointment and therefore, there is no impediment in considering such a request for the benefit of a reservation at the time of appointment. Accordingly, the Tribunal set aside its decision and declared that Smt. Minusha shall be treated as a candidate belonging to the OBC, entitled to reservation. Considering her rank, it was ordered that she shall be given preference over the petitioner herein, who holds a lower rank in the OBC category. 3. Accordingly, the Tribunal set aside its decision and declared that Smt. Minusha shall be treated as a candidate belonging to the OBC, entitled to reservation. Considering her rank, it was ordered that she shall be given preference over the petitioner herein, who holds a lower rank in the OBC category. 3. The learned counsel Shri Nandakumar, appearing for the petitioner, placing reliance on the judgment of the Apex Court in Karn Singh Yadav v. State (NCT of Delhi), (2024) 2 SCC 716 , argued that eligibility criteria must be considered as applicable on the last date of receipt of the application, and submitted that any relaxation would deny the opportunity to similarly situated candidates. He also relied on a Division Bench judgment of this court in Kerala Public Service Commission v. Dineesh K.M. 2024 6 KHC 182 . 4. In Karn Singh Yadav (supra), the Apex Court in paragraph 5 held as follows: “5 . In view of the acute problem of unemployment, whenever few vacancies are notified by any public authority, it is common that thousands of applicants apply for such posts. If the applicants are permitted to rectify applications after cut-off dates, the same would render the scrutiny process indefinite. In the course of such recruitment process, many persons, though they belong to the OBC category or SC/ST category, might not have obtained the required caste certificate before the cut-off date. Such persons, being law abiding and being conscious of the bar contained in the notification of the cut- off date, might not have applied seeking employment. In case the authority starts accepting caste certificates subsequent to the prescribed cut-off dates whenever a candidate approaches the authority, the remaining candidates who had not applied would definitely be affected. If the applicants are allowed to submit certificates in proof of their claim of reservation subsequent to the notified cut-off date, it would create administrative chaos.” 5. In Dineesh (supra), this Court opined as follows: “12. In James Mathew [ (2017) 15 SCC 595 ] the Apex Court held that once the National Commission issued a certificate regarding the status of a minority education institution, it declared the existing status and had retrospective effect. In Praveen Kumar C.P. [ (2021) 17 SCC 383 ], the question was concerning recognition of equivalence of educational qualifications. In James Mathew [ (2017) 15 SCC 595 ] the Apex Court held that once the National Commission issued a certificate regarding the status of a minority education institution, it declared the existing status and had retrospective effect. In Praveen Kumar C.P. [ (2021) 17 SCC 383 ], the question was concerning recognition of equivalence of educational qualifications. It was held that once the university issues orders recognising the equivalent status of the degree obtained by the candidate from another University, the same would be the required qualification, irrespective of the fact that the employment notification was issued earlier. The said principle may not be applicable to the facts of this case. The Pattariya community was newly added in the list of OBCs. The benefit of that order cannot have retrospective application for, the same is not a declaration of a right or status, but it is creation of a new right.” 6. The learned counsel for the 7th respondent - Minusha, relying upon the following judgments in N. Babu v. T.M. Poulose, (2003) 2 KLT 428 , Dr. Rajesh Komath and Others v. University of Calicut and Others , 2020 SCC OnLine Ker 26055 and Varija K. v. University of Calicut , 2015 SCC OnLine Ker 8220 argued that inclusion of the community in the reservation list is to undo the historical injustice, and such inclusion is only a declaration of a historical fact and is in the nature of restoration of the benefit. Therefore, the denial of a reservation would be unjust. Further, placing reliance on Dr. Rajesh Komath (supra), the learned counsel argued that the reservation applies at the time of appointment and not at the time of application. 7. The petitioner also placed reliance on Varija (supra), and submitted that merely for the reason that the benefit of the reservation was not claimed in an application, it should not result in the denial of the reservation at a later stage. 8. In Varija (supra), a Single Judge of this Court considered the issue regarding the reservation claim of a person belonging to the Marathi community. This Court, in the above case, decided the case on a totally different factual situation, where the Marathi community was originally included among Scheduled Tribes. Thereafter, it was excluded, and again it was included. 8. In Varija (supra), a Single Judge of this Court considered the issue regarding the reservation claim of a person belonging to the Marathi community. This Court, in the above case, decided the case on a totally different factual situation, where the Marathi community was originally included among Scheduled Tribes. Thereafter, it was excluded, and again it was included. It is in that context, this Court held that such a benefit should be given to the candidate who belonged to the Marathi community. 9. Here, in this case, the issue is totally on a different consideration. Article 16 of the Constitution refers to equal opportunity in matters of public employment. There will be several candidates belonging to the Mukhari/Moovari community who will be entitled to the benefit of reservation. They have not exercised the option for the simple reason that at the time of notification, the above community was not included among the OBC category. Equal opportunity in public employment is a core constitutional value. One cannot steal and march over others by chance. The last date of the notification assumes importance to set a level playing field for everyone who is equal. A reservation cannot be claimed based on fortuitous circumstances, and if at the time of notification the reservation cannot be claimed, it cannot be claimed subsequently. 10. The Apex Court in J&K Public Service Commission v. Israr Ahmad, (2005) 12 SCC 498 held as follows: “5. We have considered the rival contentions advanced by both the parties. The contention of the first respondent cannot be accepted as he has not applied for selection as a candidate entitled to get reservation. He did not produce any certificate along with his application. The fact that he has not availed of the benefit for the preliminary examination itself is sufficient to treat him as a candidate not entitled to get reservation. He passed the preliminary examination as a general candidate and at the subsequent stage of the main examination he cannot avail of reservation on the ground that he was successful in getting the required certificate only at a later stage. The nature and status of the candidate who was applying for the selection could only be treated alike and once a candidate has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim. The nature and status of the candidate who was applying for the selection could only be treated alike and once a candidate has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim. The Division Bench was not correct in holding that as a candidate he had also had the qualification and the production of the certificate at a later stage would make him entitled to seek reservation. Therefore, we set aside the judgment of the Division Bench and allow the appeal..” (Emphasis supplied) 11. It was noted by the Tribunal that the PSC had extended a benefit to a candidate who had never submitted an application under the OBC category, in a similar instance. If the factual situations are similar, we cannot approve such an approach by the PSC. One wrong cannot create a right for others. Therefore, the Tribunal could not have relied on such action of the PSC. In such circumstances, reservation cannot be claimed retrospectively, unless the rules enable it. In the above circumstances, we are of the view that the Tribunal committed a serious error in allowing the claim of Smt. Minusha. The impugned order is set aside. The Original Petition is allowed.