The Hon'ble Supreme Court in Stafe of Tamil Nadu v. G. Hemalatha

Petition under Article 226 o't the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of writ of Mandamus declaring the impugned action of the 2nd respondent in not considering petitioner under B.C-A category, in selection, to the post of Sub- Engineer (Electrical) vide Notification No. 2/20'18, dated 24.05.2018, inspite of merit marks of the petitioner and thereby denying the selection of the petitioner only on technical reason, though the petitioner submitted representations dated

07.09.2018 and 26.09.2018, enclosing Non Creamy Layer Certificate as highly illega!, arbitrary and violative of Article l4 and Article 16 of the Constitution of lndia. lA NO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in suppo( of the petition, the High Court may be pleased to direct the respondents to consider the candidature of the petitioner for selection to the post of Sub-Engineer (Electrical) vide Notification No. 2l2O1B, dated 24.05.2018 under B.C-A category, on the basis of Non Creamy Layer Certificate, issued by the competent authority, submltted by the petitioner through his representations dated 07.0S.2018 and 26.09.2018, by allowing the petitioner for verification and other selection process, pending disposal of the above writ petition. Counsel for the Petitioner : SRI G.V.SHIVAJI dtjnsel for the Respondent No.1 : GP FOR SOCIAL WELFARE Counsel for Respondents No.2 : SRI ZAKIR ALI DANISH, SC FOR TGNPDCL Counsel for Respondents No.3 : SRI CHANDRAIAH SUNKARA The Court made the following: ORDER 1 wp 40384_2018 NBK, J THE HON'BLE SRI IUSTICE NAGESH BHEEMAPAKA WRIT PETITION No.40384 of 2018 ORDER: The petitioner; belonging to the B.C-A community, hails from a poor background and holds a Diploma in Electrical Engineering [DEE] from the State Board ofTechnical Education. The 2nd respondent issued Public Recruitment Notification No. 2 of 2OlB on24.05.2O18, notiflring 497 vacancies for Sub-Engineer (Electrical). The petitione4, eligible under the B.C-A category, appeared for the written test on 08'08'2018 fHalt Ticket No. l12O2l7) and secured 76/700 marks. Howeve[ candidates were slated for verification only up to 42L vacancies, leaving the remaining unaddressed. The petitioner was not considered for verification due to an inadvertent error while filling out the application. He mistakenly marked "Yes" to the query on falling under the creamy layer due to limited English proficiency. Howeve6, as per Clause 7 of the notification, the latest certificate excluding creamy layer status must be produced at verification. The petitioner submitted representations on 07.Og.20L8 and 26.09.201'8, enclosing the Non-Creamy Layer Certificate and Income Certificates from 20t3-74 and 20LB' Despite this, no action was taken, and he was denied verification, leading to loss of selection opportunity despite his merit. At the certificate verification stage, as per Clause 7, the petitioner should be considered under B'C-A based on his Non-creamy Layer certificate. Since the selection process is ongoing, he stands a fair chance if reclassified under B'C-A' The petitioner prays to issue a writ of Mandamus declaring the action of the him under B.C-A for the Post of Sub- 2nd respondent in not considering \, I I 2 wp_40384 2018 NBK, J Engineer fElectricalJ (Notification No. 2/2OlB, dated, 24.05.2018) as arbitrary and illegal.

2. Heard Mr. G. Shivaji, learned counsel for the petitioner; Ms. K. Udaya Sri, learned counsel appearing for respondent No.1; and Mr. Zakir Ali Danish, learned Standing Counsel for respondent-TSNPDCL.

3. The sum and substance of the counter affidavit filed by the respondents, including the Znd respondent, is that TSNPDCL issued Notification No. 2/2018 on 24.05.2018 for 497 Sub-Engineer fElectricalJ posts. The last date for applications was 18.06.2018. The ') petitioner applied on 08.06.2018 under BC-A but marked "Yes" for the Creamy Layer status. He secured 83 marks in the written exam on 0A.07.2018 but was considered under OC vacancies and was not called for certificate verification. He filed WP No. 35646 of 2018, and this Hon'ble Court directed consideration of his representation (27.09.2078). His request was rejected via letter dated24.12.2018. The Hon'ble Supreme Court in Stafe of Tamil Nadu Vs. G. Hemalatha (2020 19 SCC 430) held that selection instructions are binding, and High Courts cannot modiSr them. Notification No. 2/2078, dated 24.05.2018, clearly stated that application details could not be altered later. Thus, the petitioner's request to modiff his category is untenable. Selection under Notification No.2/2078 concluded in December 2018, and candidates joined their posts. The petitioner failed to adhere to application guidelines, which explicitly stated that data entry was final. His claim was only made after results were declared on 27.09.2018. The petitioner obtained a Non-Creamy Layer certificate on 02.08.2018, after applying. Eligibility is assessed based on application details, and he self- 3 wp 40384 2018 NBK, J declared as creamy Layer. Hence, he was considered under oc and did not meet the OC cut-off which is BB marks as he got 83 marks' The Hon'ble Supreme Court in Rqmesh Chandra Sha Vs. Anil Joshi (2013 11 scc 30g) ruled that candidates cannot challenge selection criteria post- application. Since he paid Rs. 100/- as a BC candidate, it does not automatically qualiff him under BC-A vacancies. fhe Hall Ticket was system-generated based on his input; it does not alter application details. All vacancies under Notification No. 2/2018 were filled, and the petitioner did not meet the oC cut-off. The Hon,ble High Court, in I.A. No.L of 2019 in WP. No. 76279 of 2019, issued interim orders to Lonsider the petitioner under BC-A Non-Creamy Layer if he qualifies. Howeve[ his declaration indicating Yes to creamy layer disqualifies him d tobeconsideredagainstBC.Acategory'Itisthereforecontendedthat the writ petition lacks merit.

4. A reply affidavit is filed by the petitioner to the counter of 2nd respondent inter alia stating that the petitioner marked 'yes' by understanding the phrase "under the creamy layer" as "below" due to ambiguityinwording.TheHon'bleHighCourt,initsorderdated og.1.\.}OLB,referred to the oxford Dictionary's definition of "under" as "below." The petitioner having genuinely confused by the ambiguous wordmarked',yes..forthecreamylayerwhilestatingBC-Acommunity and Rajaka sub-caste. Due to the ambiguous question, the response was erroneous. Upon realizing the mistake, the petitioner submitted representations on 07.09.2018 and 26.09.2078, enclosing a Non- Creamy Layer certificate (C/760/20L8, dated 06'09'2018)' The TSNPDdt results were publishe d on\4.12-2018, and the petitioner had sought correction before results were declared. The claim that 497 4 wp 40384 2018 NBK, J vacancies were notified but only 427 were available due to transfers I { contradicts recruitment norms. It is stated that Notification No.2/2018 dated24.05.2018 allocated 4 BC-A [men) and 2BC-A fwomenJ posts. Candidates R. Chenna Rao (91), K. Raghavendra [BBJ, A. Manideep (87], and T. Durga Bhawani were appointed under the open category. Only one BC-A fwoman] post was filled by Chintapalli Indu [7lJ. Four BC-A fmenJ and one BC-A fwoman) vacancies remain unfilled. TSNPDCL published results on 04.1,22018. The application form did not require a Non-Creamy Layer certificate. Respondents' claim that the petitioner lacked the certificate at the time of application is baseless, as submission was not required until verification, which the petitioner never reached. He enclosed the certificate with representations. The last selected BC-A (G) candidate secured 87 marks, and the last OC (Gl candidate secured 84. Since BC-A [G] marks were highe4, the top BC-A candidates should have been placed in OC, ensuring BC-A vacancies were properly filled. The petitioner ranks third in the BC-A list. It is stated that submission of the Non-Creamy Layer certificate was not mandated in the application. It is contended that Hon'ble Supreme Court in Dolly Chanda v. Chairman fEEr ruled procedural [apses can be relaxed, and the ambiguity in wording was created by the respondents, and they cannot retroactively clarifiT "under" as "within.". It is stated that the implead petitioners scored higher than the petitione{, but since no BC-A candidates were selected, they occupy the first two places, and the petitioner stands third, and the petitioner 1 (2003) 9 scc 779 5 wp_40384_2018 NBK, J submitted representations on 28.01"20L9 and 3l'0L'2019 to respondent-TSN PDCL authorities.

5. Learned counsel for the petitioner; while making submissions on the lines of writ affidavit, primarily contends that the petitioner misunderstood the phrase "under the creamy layer" due to the ambiguous wording in the application form and inadvertently marked "yes."Theterm"under"wasreasonablyinterpretedas"below,''andthe petitioner acted in good faith. The Hon'ble High court, in its interim order dated Og.L7.z}l},acknowledged that "under" can mean "below" Qp per the oxford Dictionary. The error was thus attributable to the respondents' poorly framed question' The petitioner promptly submitted representations dated O7'09'2O|B and 26'09'2018' well before the results were declared, requesting a correction' The non- creamy Iayer certificate dated 06.09'2018 was also enclosed' The petitioner had no reason to misrepresent his status, as he qualified under the BC-A category and was eligible for selection' The respondents'contentionthat4gTvacancieswerenotifiedbutonly42T were available due to appointments by transfer is legally unsustainable, asvacanciesdesignatedfordirectrecruitmentcannotbediverted. Despite notifying four posts for BC-A men and one for BC-A women' the respondentsfailedtofillthesevacanciesappropriately.Candidatesfrom BC-A who secured higher marks were appointed under the general category, leaving BC-A vacancies unfilled' The petitioner; who secured 87 marks, ranked third in the BC-A category and should have been considered. It is contended that the respondents never required the non-creamy layer certificate at the application stage' nor did they provide an opportunity for correction at verification' The petitioner had t \ ! fr .. T: F '$r5 trr j i i l 6 wp 40384-2018 NBK, J the certificate we'before the exam resurts, and his representation was made in due time' Learned counsel contends that reriance on Dorty Chanda v. Chairman tEE (2003) 9 SCC 77g by rhe respondents is misplaced, and the petitioner has non_creamy layer certificate and could have produced had he been cared for certificate verification. 6' Learned Standing counsel for the respondents submits that the petitioner marked ,yes,,to the phrase ,,under the creamy layer,,. The application form provided clear instructions, and any doubts shourd have been clarified through the herp desk. The petitioner failed to verisz his response before submission and did not raise any query at the relevant stage' The respondents contend that 4g7 vacancies were notified, but 427 were available due to appointments by transfe4, which is legally permissibre. The recruitment process adhered to the prescribed rules, and all appointments were made based on merit. The last selected BC-A [G] candidate secured 87 marks, and the petitioner; despite scoring the same, cannot claim selection as other meritorious candidates occupied higher positions. The petitioner did not meet the criteria for rectification post-submission, as per the recruitment norms. The reliance on the Supreme Court,s judgment in Dolty Chanda v. chairman JEE is misplaced since the case does not pertain to erroneous submissions by candidates but rather procedurar reraxations in document submission. The ambiguity claim is unfounded as the phrase "under the creamy layer,, is standard terminology in reseration policies' The respondents acted in compliance with established procedures' and the petitioner has no vested right to claim serection. The representations submitted after pubrication of resurts cannot arter the recruitment process and therefore the writ petition lacks merit. \.L \/ '1 wp_403a4_2014 NBK, J

7. Having considered the respective submissions and perused the record, it may be noted that the specific case ofthe petitioner is that the column provided to indicate his status with regard to creamy layer is ambiguous as the word "under" could be interpretable as 'below', and not 'within', and employing such word, having different connotations, caused the confusion; and though he belonged to nitn-creamy laye6' he erroneously indicated as "Yes", thereby implying that he belongs to creamylayer.Howevel,admittedly,theonlineportaldidnotpermit corrections to the data entered in the application form, thereby the error remained. The petitioner represented to the respondent iuthorities to consider his candidature by submitting certificate dated 02.O8.}Ol}whereby he is certified as belonging to non-creamy layer' ) B.Atthisjuncture,itisrelevanttorefertothejudgmentofHon'ble Supreme Court in Vashist Narayan Kumar (1 supra), wherein the Apex Court had the occasion to decide a similar issue of error committed by the petitioner therein in an online application form for the post of constable notified by the central Selection Board. The question that fell for consideration, as framed by the Hon'ble Supreme Court, is as follows: ..l0.Thequestionthatarisesforconsiderationiswhethertheerror committed in the application form, which was uploaded is a material error or a trivial error and was the State justified in declaring the appellant as having failed on account of the same?" g. The Apex Court referred to Aiay Kumar Mishra (supra) wherein it was held at para 9 as follows: "9. lt is true that whenever any material discrepancy is noticed in the application form and /or when any suppression and/ or mis- .; f; H ]; 8 wp_40384 2018 NBK, J representation is detected, the candidature might be cancelled even after the application has been processed and the candidate has been allowed to participate in the selection process. However, after a candidate has participated in the selection process and cleared all the stages successfully, his candidature can only be cancelled, after careful scrutiny of the gravity of the lapse, and not for trivial omissions or errors."

10. It was follows: further held in Vashist Narayan Kumar (supra) AS

14. We are not impressed with the argument of the State that the error was so grave as to constitute wrong or misJeading information. We say on the peculiar facts and circumstances of this case. Even the State has not chosen to resort to any criminal action, clearly implying that even they did not consider this error as having fallen foul of the following clause in the advertisement:- "lnstructions to fill online application form are avaitabte on the website. lt is recommended to all the candidates to carefully read the instructions before filling the online apptication form and kindly fill the appropriate response in the following tabs. ln case, the information given by the candidates found wrong or misteading, the application form wi get rejected and necessary criminal actions wilt also be taken against the candidate."

15. Recently this Bench in Divya vs. Union of lndia & Ors., 2023:INSC:900 = 2023 (131 Scale 730, while dectining retief to candidates who acquired eligibility after the date mentioned in the notification carved out a narrow exception. There, the judgment in Ajay Kumar Mishra vs. Union of tndia & Ors., [2016] SCC Online Det 6553, a case very similar to the facts of the present case, was noted. ln Ajai Kumar Mishra (supra), lndira Banerjee, J. (as Her Ladyship then was) speaking for the Division Bench of the Delhi High Court in para 9 stated as under:- 9. lt is true that whenever any material discrepancy is noticed in the application form and/or when any suppression and/ or mis_ reprbsentation is detected, the candidature might be cancelled even 9 wp 40384 2018 NBK,I after the application has been processed and the candidate has been allowed to participate in the selection process. However, after a candidate has participated in the selection process and cleared all the stages successfully, his candidature can only be cancelled, after careful scrutiny of the gravity of the lapse, and not for trivial omissions or errors." (emphasis supplied) The exception for trivial errors or omissions is for the reason that law does not concern itself with trifles. This principle is recognized in the legal maxim - De minimis non curat lex. ln fact, in Anuj Pratap Singh (supra), as is clear from para 14 of the said judgment, the candidate unable to correct the error at the first point was forced to repeat it while submitting the application for sitting in the main exam since he had no other option' The Court accepted the explanation and condoned the error in the filling up of the column pertaining to the date of birth. {8. The learned counsel for the State drew attention to the verification by the appellant, of the details in a printed form furnished by the selection board. He contended that the appellant signed the form which carried the date of birth' First of all, the form was a printed form which reflected the date of birth as given by the appellant and the appellant signed the printed form on t0'03'2018' We are inclined to accept the explanation of the aPpellant that since the appellant was unaware of his own mistake he had mechanically signed the printed form. lt is only later, on {l'06'2018' on the publication of the result that the appeltant realized the error' We do not think that the appellant could be penalised for this insignificant error which made no difference to the ultimate result' Errors of this kind, as noticed in the present case, which are inadvertent do not constitute misrepresentation or wilf ul suppression' 19. ln this case, the appellant has participated in the selection process and cleared all the stages successfully' The error in the application is trivial which did not play any part in the selection process. The State was not justified in making a mountain- out of f, !t E x :;1. 10 wp 40384_2018 N8K, J this molehill. Perhaps the rarefied atmosphere of the cybercafe, got the better of the appellant. He omitted to notice the error and even failed to avail the corrective mechanism offered. 11,. It is pertinent to note that in Vashist Narayan Kumar (supraJ, the petitioner made a similar error while filling out an online application form for recruitment to the post of Constable, and further he could not avail the corrective mechanism provided therlin. However; in the instant case, admittedly, there is no corrective mechanism provided in the online application portal to rectifl/ any inadvertent errors made by the candidate/petitioner while filling out the application form, thereby the petitioner herein is in even more disadvantageous position than the one in Vashist Narayan Kumar (supra).

12. Upon considering the arguments and judgments relied on, and also the arguments advanced by the learned counsel, this Court is ofthe view that the case in Vashist Narayan Kumar (supra) is squarely applicable to the facts ofthe present case. In that view ofthe matteq, this Court is inclined to allow the writ petition.

13. Accordingly, the writ petition is allowed, granting the relief as prayed for. No costs. The respondent-TsNPDCL shall pass appropriate orders within a period ofthree weeks from the date ofreceipt of a copy of this order. Miscellaneous petitions pending, if any, shall stand closed -rff :;,H:'#IHiiiuT"j*:,:ttii.mit:h,f: j,,+r*. //TRUE COPYII To, 1 Ili#J::''SJ,r:".+:7d,8 ffi ::f i.Slff ::s ,1.\.pEp,?7-JTSAYIIXH sEcTloN oFFlcER J werra re Depa rtment, Secreta riat

2. The Chairman and Managing Director, Northern Power Distribution, Company of Telangana Limited, Vidyut Bhavan, Warangal.

3. One CC to SRI G.V.SHIVAJI, Advocate. [OPUC] 4 One CC to SRI CHANDRAIAH SUNKARA, Advocate. [OPUC] 5. Two CCs to GP FOR SOCIAL WELFARE, High Court for the State of Telangana. [OUT] 6 One CC to SRI ZAKIR ALI DANISH, SC FOR TSNPDCL. [OPUC] 7. Two CD Copies. / ) BSK BS tr. HIGH COURT t r oRte o:21to3t2oz5 IHe SrA It: +o ( J 23 APl] zrfi Dg SPATCHr*O * I 7- a ,\ ORDER WP.No.40384 of 2018 ALLOWING THE WRIT PETITTON WITHOUT COSTS ."(uo p ;6,