Karnataka High Court
Kavitha H M vs State Of Karnataka on 10 March, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
WP No. 5109 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 5109 OF 2023 (GM-CC)
BETWEEN:
KAVITHA H.M.,
W/O RAJESHA H.N.,
AGED ABOUT 29 YEARS,
BASAVESHWARA TEMPLE,
HONENA HALLI, RAVANDURU HOBLI,
PERIYAPATNA TALUK, MYSURU - 571 108.
...PETITIONER
(BY SRI. SUNEEL S. NARAYAN., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY UNDER SECRETARY,
Digitally signed by DEPT. OF PRIMARY AND
PADMAVATHI B K
Location: HIGH SECONDARY EDUCATION,
COURT OF 2ND GATE, 6TH FLOOR,
KARNATAKA
M.S.BUILDING, DR.AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF BACKWARD CLASSES
AND WELFARE DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU - 560 001.
-2-
WP No. 5109 of 2023
3. DEPARTMENT OF PERSONAL AND
ADMINISTRATIVE REFORMS
SECRETARY TO GOVERNMENT
ROOM NO.245, 2ND FLOOR,
VIDHANA SOUDHA,
BENGALURU - 560 001.
4. CENTRALISED ADMISSION CELL
SPECIAL OFFICER,
OPP. CAUVERY BHAVAN,
BENGALURU - 560 002.
5. THE DISTRICT OFFICER
BACKWARD CLASSES
WELFARE DEPARTMENT,
MYSURU - 570 007.
6. DEPUTY DIRECTOR OF PUBIC
INSTRUCTIONS (ADMIN)
DEPT. OF PUBLIC INSTRUCTION
OFFICE OF DDPI
MYSURU - 570 007.
...RESPONDENTS
(BY SMT.SHWETHA KRISHNAPPA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECTING THE R-5 AND 6 HEREIN TO TAKE IMMEDIATE AND
NECESSARY STEPS BY CONSIDER IN PETITIONERS
REPRESENTATION AT ANNX-H AND J I.E. REQUEST LETTERS
DTD 14.10.2022 AND 22.11.2022 AND FURTHER DIRECT TO
RECTIFY THE ERROR IN THE APPLICATION WITH RESPECT TO
CASTE CATEGORY AND FURTHER DIRECT TO CONSIDER
PETITIONERS APPLICATION AND ISSUE FRESH TEMPORARY
LIST WITH RESPECT TO MYSORE DIST.
-3-
WP No. 5109 of 2023
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question non-
consideration of her candidature under 3B category owing to her name not being figured in the provisional select list dated 27.02.2023, published by the 6th respondent / Deputy Director of Public Instructions (Administration) ('the Selection Authority' for short) for the post of graduate primary teachers from 6th to 8th standard classes. The petitioner further seeks a direction by issuance of a writ in the nature of mandamus to correct the error of the petitioner, which is depicted as she belonging to General Merit Category to that of 3B Category.
2. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-
The 1st respondent/ Government of Karnataka issues a notification on 21.03.2022, inviting applications for the posts of teacher for class 6th to 8th standard classes for the Government and Aided Educational Institutions at Mysuru. The petitioner -4- WP No. 5109 of 2023 belongs to 3B Category and finding herself eligible, applies pursuant to the said notification and the application had been sent through online as required. The petitioner claims to have got it typed at a cyber centre and while filling the application under the category column fills it as General Merit instead of 3B Category. The application gets uploaded online showing the petitioner as belonging to General Merit instead of 3B Category to which she actually belongs, on 09.04.2022. Noticing the error, the petitioner orally requested the Authority to change the category and also addressed a communication on 14.10.2022, seeking to change her caste as belonging to 3B category instead of general merit. The petitioner claims that she has submitted another representation on 22.11.2022 and has also visited the concerned Authorities for rectification of the errors. The merit list was then notified of the candidates who had come within the zone of consideration and the name of the petitioner did not figure in the provisional select list dated 27.02.2023. Though representations have been submitted by the petitioner, the Selection Authority has not considered the same nor given any endorsement to that effect. All these did not yield any result and therefore, the petitioner is knocking at -5- WP No. 5109 of 2023 the doors of this Court in the subject petition calling in question of non-consideration of her representations and seeking to revive the provisional select list.
3. Heard Sri Suneel S.Narayan, learned counsel appearing for the petitioner, Smt. Shwetha Krishnappa, learned Additional Government Advocate for the respondents.
4. The learned counsel appearing for the petitioner would contend with vehemence that it is an error on the part of the person who was uploading the application in cyber centre, which missed the eye of the petitioner as it was uploaded depicting the petitioner to be belonging to General Merit, which in fact, is an error and she does belong to 3B category -
Veerashaiva Lingayath. Representations though submitted did not yield any result from the 5th respondent and the 6th respondent - Selection Authority, as both have neither effected the technical error of depicting the caste of the petitioner nor gave endorsement to the representations so submitted. He would submit that the petitioner has secured such marks that she would undoubtedly be considered if she was treated as belonging to 3B category. The error takes away the right of -6- WP No. 5109 of 2023 consideration for appointment of the petitioner. He would submit that the issue in the lis stands covered by the order of this Court rendered in W.P.No.24847/2022 disposed on 31.01.2023.
5. The learned Additional Government Advocate representing the respondents though would put up vehement opposition to the plea of the petitioner but admits that non-
consideration of the candidature of the petitioner and the issue in the lis stands covered by the order of this Court rendered in the aforesaid writ petition.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
7. The afore-narrated facts are not in dispute. The issue in the subject petition stands covered by the order of this Court in W.P.No.24847/2022 disposed on 31.01.2023. This Court following the various judgments of the Apex Court, has held as follows:
"13. In the aforesaid circumstances, the Apex Court considering the very issue where the caste certificate itself was not submitted at the time of -7- WP No. 5109 of 2023 filing of the application but was later submitted holds it to be a curable defect which would not take away consideration for appointment of a Scheduled Caste candidate. The Apex Court in the case of RAM KUMAR GIJROYA v. DELHI SUBORDINATE SERVICES SELECTION BOARD1, holds as follows:
"14. The Division Bench of the High Court erred in not considering the decision rendered in Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] . In that case, the learned Single Judge of the High Court had rightly held that the petitioners therein were entitled to submit the OBC certificate before the provisional selection list was published to claim the benefit of the reservation of OBC category. The learned Single Judge correctly examined the entire situation not in a pedantic manner but in the backdrop of the object of reservations made to the reserved categories, and keeping in view the law laid down by a Constitution Bench of this Court in Indra Sawhney v. Union of India [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] as well as Valsamma Paul v. Cochin University [Valsamma Paul v. Cochin University, (1996) 3 SCC 545 :
1996 SCC (L&S) 772 : (1996) 33 ATC 713] . The learned Single Judge in Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] also considered another judgment of the Delhi High Court, in Tej Pal Singh [Tej Pal Singh v. Govt. (NCT of Delhi), 1999 SCC OnLine Del 1092 : ILR (2000) 1 Del 298] , wherein the Delhi High Court had already taken the view that the candidature of those candidates who belonged to the SC and ST categories could not be rejected simply on account of the late submission of caste certificate.
15. The relevant paragraph from the judgment of this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 1 (2016) 4 SCC 754 -8- WP No. 5109 of 2023 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] has been extracted in Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] along with the speech delivered by Dr Ambedkar in the Constituent Assembly and reads thus: (Pushpa case [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] , SCC OnLine Del para 9) "9. ... '251. Referring to the concept of equality of opportunity in public employment, as embodied in Article 10 of the Draft Constitution, which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in public administration, Dr Ambedkar emphatically declared that reservation should be confined to "a minority of seats", lest the very concept of equality should be destroyed. In view of its great importance, the full text of his speech delivered in the Constituent Assembly on the point is appended to this judgment. But I shall now read a few passages from it. Dr Ambedkar stated:
"... firstly, that there shall be equality of opportunity, secondly, that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration. ... Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. ... Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, [Ed.: The matter between two asterisks has been emphasised in Indra Sawhney case, 1992 Supp (3) SCC 217.] must be confined to a minority of seats [Ed.: The matter between two asterisks has been emphasised in Indra -9- WP No. 5109 of 2023 Sawhney case, 1992 Supp (3) SCC 217.] . It is then only that the first principle could find its place in the Constitution and effective in operation. ... we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State...."
[Constituent Assembly Debates, Vol. 7, pp. 701-02 (1948-1949).] These words embody the raison d'être of reservation and its limitations. Reservation is one of the measures adopted by the Constitution to remedy the continuing evil effects of prior inequities stemming from discriminatory practices against various classes of people which have resulted in their social, educational and economic backwardness. Reservation is meant to be addressed to the present social, educational and economic backwardness caused by purposeful societal discrimination. To attack the continuing ill effects and perpetuation of such injustice, the Constitution permits and empowers the State to adopt corrective devices even when they have discriminatory and exclusionary effects. Any such measure, insofar as one group is preferred to the exclusion of another, must necessarily be narrowly tailored to the achievement of the fundamental constitutional goal.' (Indra Sawhney case [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , SCC pp. 433-34, para
251)"
16. In Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] , relevant paragraphs from Tej Pal Singh [Tej Pal Singh v. Govt. (NCT of Delhi), 1999 SCC OnLine Del 1092 : ILR (2000) 1 Del 298] have also been extracted, which read thus:
(Pushpa case [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] , SCC OnLine Del para 11) "11. ... '15. The matter can be looked into from another angle also. As per the advertisement dated 11-6-1999 issued by the
- 10 -WP No. 5109 of 2023
Board, vacancies are reserved for various categories including SC category. Thus in order to be considered for the post reserved for SC category, the requirement is that a person should belong to SC category. If a person is SC he is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to SC category and act thereon by giving the benefit to such candidate for his belonging to SC category. It is not that petitioners did not belong to SC category prior to 30-6-1998 or that acquired the status of being SC only on the date of issuance of the certificate. In view of this position, necessitating upon a certificate dated prior to 30-6-1998 would be clearly arbitrary and it has no rationale objective sought to be achieved.
16. While taking a particular view in such matters one has to keep in mind the objectives behind the post of SC and ST categories as per constitutional mandate prescribed in Articles 15(4) and 16(4) which are enabling provisions authorising the Government to make special provisions for the persons of SC and ST categories. Articles 14(4) and 16(4), therefore, intend to remove social and economic inequality to make equal opportunities available in reality. Social and economic justice is a right enshrined for protection of society. The right in social and economic justice envisaged in the Preamble and elongated in the fundamental rights and directive principles of the Constitution, in particular Articles 14, 15, 16, 21, 38, 39 and 46 are to make the quality of the life of the poor, disadvantaged and disabled citizens of the society meaningful.' (Tej Pal Singh case [Tej Pal Singh v. Govt. (NCT of Delhi),
- 11 -
WP No. 5109 of 20231999 SCC OnLine Del 1092: ILR (2000) 1 Del 298] , SCC OnLine Del paras 15-16)".
(Emphasis supplied) The Apex Court endorses/affirms the view of the Delhi High Court in the case of PUSHPA v. GOVERNMENT, NCT OF DELHI2. That was a case where a Scheduled Caste candidate had been denied appointment on the ground that the caste certificate had not been appended to the application. The Delhi High Court had held as follows:
"7. Caste is the only accepted criteria to identify under-represented groups. The underlying theory is that the under- representation of the identifiable groups is a legacy of the Indian caste system. After India gained independence, the Constitution of India listed some erstwhile groups as Scheduled Castes (SC) and Scheduled Tribes (ST). The framers of the Constitution believed that, due to the caste system, SCs and the STs were historically oppressed and denied respect and equal opportunity in Indian society and were thus under-represented in nation-building activities. Later, reservations were introduced for other sections as well.
8. The principle of equality permeates the Constitution of India. All the citizens are entitled to be treated by the state equally, irrespective of their caste, race, religion, sex, descent, place of birth and residence. No citizen may be discriminated against by the state only on any of these grounds. The exceptions to this principle are made in favour of women and children, the backward classes, the Scheduled Castes and the Scheduled Tribes, and the weaker sections.
9. Referring to the reasons for reservation, the Hon'ble Apex Court in Indra 2 2009 SCC OnLine Del 281
- 12 -WP No. 5109 of 2023
Sawhney v. Union of India, 1992 Supp (3) SCC 217, observed as under:
"251. Referring to the concept of equality of opportunity in public employment, as embodied in Article 10 of the draft Constitution, which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in public administration, Dr Ambedkar emphatically declared that reservation should be confined to 'a minority of seats', lest the very concept of equality should be destroyed. In view of its great importance, the full text of his speech delivered in the Constituent Assembly on the point is appended to this judgment. But I shall now read a few passages from it. Dr Ambedkar stated:
"... firstly, that there shall be equality of opportunity, secondly, that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration... Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity...Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation ... we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State,
- 13 -WP No. 5109 of 2023
...". Constituent Assembly Debates, Vol. 7, pp.701-702 (1948-49).
(emphasis supplied) These words embody the raison d'etre of reservation and its limitations. Reservation is one of the measures adopted by the Constitution to remedy the continuing evil effects of prior inequities stemming from discriminatory practices against various classes of people which have resulted in their social, educational and economic backwardness. Reservation is meant to be addressed to the present social, educational and economic backwardness caused by purposeful societal discrimination. To attack the continuing ill effects and perpetuation of such injustice, the Constitution permits and empowers the State to adopt corrective devices even when they have discriminatory and exclusionary effects. Any such measure, in so far as one group is preferred to the exclusion of another, must necessarily be narrowly tailored to the achievement of the fundamental constitutional goal."
10. Keeping this in mind and considering that the petitioner applied for the OBC certificate to the concerned office of SDM much before January 2008, when the advertisement was made by DSSSB and since the certificate was made available to the petitioner on 13/5/2008, the petitioner cannot be made to suffer for the lapse on the part of the SDM office. But at the same time it is made clear that in all such cases caste certificate should reach the Board prior to their making provisional selection as while making provisional selection, the Board verifies & satisfies itself with authenticity of documents and eligibility as per the recruitment rules. Herein, the petitioner had sent the documents vide letter dated 3/7/2008, prior to publication of the provisional results on 25/7/2008.
- 14 -
WP No. 5109 of 202311. The issue is also no more res integra as in the case of Tej Pal Singh v. Govt. of NCT of Delhi, (2005) 120 DLT 117 this Court has already taken a view that the candidates who belong to 'SC' and 'ST' categories but could not file certificate in proof of the same could not have been rejected simply on account of the late submission of the certificates and submission of such certificates cannot be made a pre-condition for accepting the application forms. The relevant para of the said judgment is reproduced as under:
"17. The matter can be looked into from another angle also. As per the advertisement dated 11th June, 1999 issued by the Board, vacancies are reserved for various categories including 'SC' category. Thus in order to be considered for the post reserved for 'SC' category, the requirement is that a person should belong to 'SC' category. If a person is SC his is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to 'SC' category and act thereon by giving the benefit to such candidate for his belonging to 'SC' category. It is not that petitioners did not belong to 'SC' category prior to 30th June, 1998 or that acquired the status of being 'SC' only on the date of issuance of the certificate. In view of this position, necessitating upon a certificate dated prior to 30th June, 1998 would be clearly arbitrary and it has no rationale objective sought to be achieved."
(Emphasis supplied)
- 15 -
WP No. 5109 of 2023The observations above were affirmed by the Apex Court in the case of RAM KUMAR GIJROYA. The afore-quoted cases were the cases where the caste certificate itself was not appended. If that cannot be glorified as an error and that error had been set at naught by the constitutional Courts; the error in the case at hand is only trivial. A triviality cannot take away the right of a Scheduled Caste candidate for consideration of his case as a candidate belonging to Scheduled Caste.
14. The learned counsel for the petitioner would now submit that a final select list is also notified by the Commission during the pendency of the writ petition and therefore, a direction is required to be given to the Commission to include the name of the petitioner in the select list according to his merit vis-à-vis the candidate who is less meritorious than that of the petitioner in the category of Scheduled Caste. Here again the learned counsel appearing for the Commission submits that this would open Pandora's box and become a precedent. I decline to accept the submission of the Commission, if this order opens up Pandora's box; so be it, if it becomes a precedent; so be that. This Court would not turn a deaf ear to a cry of a Scheduled Caste candidate who has scored high marks, despite the trials and tribulations throughout that they face to lose the opportunity of getting selected for trivial reasons. The Commission ought to have corrected the trivial human error when the petitioner pointed it out at the time of document verification. Having not done so, the Commission cannot now contend that this order would open up Pandora's box or become a precedent. It cannot be forgotten that, "to err is human", infallibility is unknown to humanity.
15. For the aforesaid reasons, I pass the following:
- 16 -
WP No. 5109 of 2023
ORDER
(i) The Writ Petition is allowed.
(ii) A mandamus issues 2nd
respondent/Commission to rectify the error and treat the petitioner as one belonging to Scheduled Caste and regulate the provisional/final select list in accordance with the merit of the petitioner under the category of Scheduled Caste with all consequential benefits flowing thereto.
(iii) The aforesaid action shall be carried out within a period of 2 weeks' from the date of receipt of a copy of this order."
In the light of the afore-narrated facts and the order afore-extracted, which stands cover the issue in the lis, on all its fours, I pass the following:
ORDER
(i) The Writ Petition is allowed.
(ii) A mandamus issues 6th
respondent/Selecting Authority to
rectify the error and treat the
petitioner as one belonging to 3B
Category and regulate the provisional select list in accordance with the merit of the petitioner under the category of 3B Category with all
- 17 -WP No. 5109 of 2023
consequential benefits flowing
thereto.
(iii) The aforesaid action shall be carried
out within a period of 2 weeks' from
the date of receipt of a copy of this
order.
Sd/-
JUDGE
NVJ
List No.: 1 Sl No.: 53