The Kerala High Court has held that State's rights to provide reservation remains unaffected by UGC Guildelines.
The Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P while dealing with a writ appeal, observed that regulations notified by the UGC that determine qualifications for selection to various posts in Universities in a State don't override State Govt's Reservation Policy for backward classes.
In the writ appeal, the particular question that was posed was whether a non-Keralite can claim communal reservation in a Pan India selection process conducted by State University?
The Respondent-University invited applications from eligible candidates for the post of Associate Professor in Information Technology ear-marking the said post for the Muslim Category among the other backward classes. Applicants seeking reservation benefits available for SC/ST/OBC/differently abled categories were to upload the necessary documents justifying the claim of respective reservation as per Government of Kerala norms from the competent Authority. The 5th respondent, a native of Karnataka, produced a certificate claiming to be a person belonging to the non-creamy layer of the OBC and the said certificate was issued from the Revenue Department of the Government of Karnataka. The Writ Petitioner contends that the application of the 5th respondent could not have been entertained as he is a non-domicile hailing from the State of Karnataka and the principle of reservations envisaged under the provisions Kerala State and Subordinate Service Rules will not permit reservation in favour of non-domicile candidates. Further it is the contention of the writ petitioner that as per Kannur University First Statute,1998 Chapter III Clause (iii) the teachers of the University shall be appointed observing the provisions of Clause (a), (b) and (c) of Rule 14 and Rules 15, 16 and 17A of the KS & SSR as amended from time to time. Since the 5th respondent is not a native of Kerala and not being certified to be an eligible candidate under the OBC by the State of Kerala, his candidature could not have been considered let alone being selected. Allegations of additional favours have also been levelled against the University.
The University in the counter-affidavit, stated that notification was for appointment to the single post of Associate Professor in the Department of Information Technology reserved for Muslim Candidate, but contended that as per the UGC Regulation, 2018, direct recruitment for the post of Associate Professor in the Universities and colleges shall be on the basis of merit through an all India test and that there was no bar for a candidate belonging to Muslim Community from any State of India to participate in the selection process and further that the 5th respondent though a native of the State of Karnataka belongs to the Muslim Community which is notified as backward class in the State of Kerala as well as in the State of Karnataka.
The single-judge upon ananlysis observed that Regulation 3.1 of the UGC which is applicable to the 2nd respondent University meant that the application was on an All India basis and therefore, there is no bar for any applicant to submit application and further that there was no exclusion of Non Keralaites in the notification. He also found that the writ petitioner has participated in the selection, and thus is estopped from challenging the selection process and dismissed the writ petition.
High Court's Analysis on Appeal
The Learned Counsel for the appellant opposed the impugned judgement on the basis of legal precedents in Action Committee Vs. Union of India, 1994 Latest Caselaw 382 SC, M.C.D. Vs. Veena & Ors, 2001 Latest Caselaw 391 SC, Pankaj Kumar Vs. State of Jharkhand, 2021 Latest Caselaw 339 SC, Raj Kumar Meena v. Rankaswami and Others and contended that a candidate who has been certified as belonging to SC/ST/OBC in a particular State cannot claim benefits or privileges on the basis of the said certification in another State.
Learned Counsel for the respondent-candidate submitted that the 2nd respondent University is totally bound by the UGC Regulations and thus the selection being on an All India basis, the only relaxation permissible was a relaxation of the cut off marks for the eligibility and no other concession could be given and therefore, there was no bar at all for the 5th respondent either to apply or to get selected.
The Court held that the respondent-candidate was not entitled to stake his claim in a reserved seat on the basis of the certificate issued to him from the State of Karnataka. It further observed that the selection on All India basis on the basis of UGC Regulation doesn't make it incumbent on the 2nd respondent to avoid any kind of social reservation.
"We do not see as to how the UGC Regulations can affect the reservation policy of the State. The notification inviting the candidates on an All India basis in accordance with the UGC Regulations cannot mean that the reservation of posts which was in accordance with the Constitutional mandate as implemented within the State is affected in any manner."
The Court clarified that right of the State to provide reservation is unaffected by the Regulations issued by the UGC which determines the qualifications for selection to a post which is binding on the Universities.
"It is trite that Article 16 (4) of the Constitution of India is an enabling provision which enables the State to provide backward classes including Scheduled Castes and Scheduled Tribes, the reservation in appointments to public services. Such reservation is to be provided on the basis of quantifiable data including the adequacy or inadequacy, as may be of the representation of such classes in government service. Resultantly, such data will vary from State to State and a certification of a particular class as being entitled to reservation in a State cannot ipso facto make it applicable to the other States in the country."
In furtherance, the Court oust the observation by learned Single Judge that the writ petitioner is estopped from challenging the selection process as he has participated in it also cannot be sustained.
"The ineligibility of the 5th respondent is a matter which the writ petitioner can question and the same had to be considered on merit. Simply because the appellant has participated in the selection process did not mean that the appellant had acquiesced to the illegality in the selection process."
The candidature of the 5th respondent in the reserved seat was totally impermissible and illegal and it is declared so, the Court concluded. Appeal was accordingly allowed, Respondent-University was directed to appoint the apellant being the second rank holder.
Case Title: DR.ABDUL HALEEM vs STATE OF KERALA
Case Details: WA NO. 1423 OF 2021
Coram: Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P
Read Judgement Here:
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