PRIYANKA PRAKASH KULKARNIversusMAHARASHTRA PUBLIC SERVICE COMMISSION

          [2024] 1 S.C.R. 1223 : 2024 INSC 98

            Priyanka Prakash Kulkarni
                        v.
      Maharashtra Public Service Commission
                 Civil Appeal No. 1982 of 2024

                        29 January 2024
  [Vikram Nath and Satish Chandra Sharma, JJ.]

                    Issue for Consideration
Appellant was not able to take benefit of female reservation on
account of her inability to produce a valid Non-Creamy Layer
(NCL) certificate on the last date of submission of the application
form. Later, a corrigendum enabled candidates to submit an NCL
certificate valid in the current financial year. However, the High
Court held that since the petitioner had applied from Open General
Category because she did not hold the NCL certificate, her prayer
for change of category cannot be accepted.

                           Headnotes
Service Law – Female Reservation – Non-Creamy Layer
certificate – Change of category – Appellant contended that
she did not submit her application under the ‘Reserved
Female Category’ on account of her inability to obtain an NCL
Certificate which was valid as on the last date of submission
of the application form i.e., 01.06.2022 – However, upon the
issuance of the Corrigendum, the appellants’ eligibility qua the
‘Reserved Female Category’ came to be revived as the appellant
was no longer mandated to furnish an NCL Certificate which
was valid as on the last date of submission of the application
form but instead was called upon to furnish an NCL Certificate
pertaining to current financial year:
Held: Admittedly, the appellant i.e., a candidate who was
scrupulously following the terms and conditions of the impugned
advertisement was constrained to apply under the ‘Open General
Category’ only on account of certain logistical limitations prevent-
ing her from obtaining a valid NCL Certificate – Consequently, in
the absence of the requisite documents evidencing status as a
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    person belonging to the NCL under the impugned advertisement
    read with the Circular i.e., a valid NCL Certificate as on the
    date of submission of the application form, the appellant did not
    mark ‘yes’ against the specific question pertaining to her status
    as a person belonging to the NCL – The aforenoted conduct of
    the appellant is bonafide – Accordingly, the appellant cannot be
    unfairly deprived of the benefit of female reservation merely on
    account of the appellant’s honesty and restraint which did not allow
    her to mark ‘yes’ against a column inquiring about a prospective
    candidates’ status as a person belonging to the NCL, in the
    absence of the underlying supporting document – Additionally,
    other similarly situated candidates have been granted the benefit
    under the Corrigendum; and their otherwise defective applications
    have now been considered by the Respondent – The High Court
    adopted a hypertechnical interpretation of the instructions without
    appreciating that such an interpretation would nullify the effect of
    the Corrigendum – Impugned order set aside. [Paras 16, 17, 18]

                             Case Law Cited
         State of T.N. v. G. Hemalathaa (2020) 19 SCC 430 –
         referred to.

                            List of Keywords
    Service Law; Female reservation; Non-creamy Layer certificate;
    Eligibility qua ‘reserved female category; hypertechnical
    interpretation of instructions; Benefit of corrigendum; Relaxed
    instructions.

                           Case Arising From

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.1982 of 2024

    From the Judgment and Order dated 23.08.2023 of the High Court
    of Judicature at Bombay in WP No.9040 of 2023

                        Appearances for Parties
    Abhijeet Pawar, Praveen B. Kamble, Lalit Kaushik, Dinesh Bhardwaj,
    Sashank Gaurav, Amit Sharma, Advs. for the Appellant.
    Rahul Chitnis, Garv Singh, Ms. Samiksha Gupta, Chander Shekhar
    Ashri, Advs. for the Respondent.
[2024] 1 S.C.R.                                                      1225

            Priyanka Prakash Kulkarni v. Maharashtra Public
                         Service Commission

                Judgment / Order of the Supreme Court
                                  Order
1.   Leave granted.
2.   The decision of the Division Bench of the High Court of Judicature
     at Bombay (the “High Court”) wherein the High dismissed Writ
     Petition No. 9040 of 2023; and consequently, granted imprimatur
     to the decision of the Maharashtra Administrative Tribunal, Mumbai
     (the “MAT”) dated 07.07.2023 in Original Application No. 396 of 2023
     (the “OA”) is assailed before us (the “Impugned Order”).
3.   An advertisement was issued by the Respondent on 11.05.2022
     in relation to the State Services Preliminary Examination for the
     recruitment of person(s) to the gazetted post of ‘Group A’ and ‘Group
     B’ officers under the Government of Maharashtra (the “Impugned
     Advertisement”). Pertinently, Paragraph 5.5 of the Impugned
     Advertisement contemplated the benefit of inter alia female reservation
     subject to certain prerequisites which included (i) that the candidate
     must be a domicile of Maharashtra; and (ii) that the candidate must
     belong to the Non-Creamy Layer (“NCL”).
4.   Furthermore, under Paragraph 5.10 read with Paragraph 5.14 of
     the Impugned Advertisement, a candidate seeking to avail inter alia
     female reservation must not only clearly state that he/she is domiciled
     in Maharashtra but should also submit an NCL Certificate issued by
     the competent authority which must be valid as on the last date of
     submission of the application form i.e., 01.06.2022.
5.   In the aforesaid context, the Appellant i.e., a candidate employed
     as State Tax Officer in the Goods and Services Tax (“GST”)
     Department, Nodal 3, Pune, Maharashtra submitted her application
     for the aforesaid examination under the ‘Open General Category’ on
     account of her inability to produce a valid NCL Certificate as on the
     last date of submission of the application form. However admittedly,
     and undoubtedly the Appellant was otherwise eligible to apply under
     ‘Reserved Female Category’ qua the underlying examination being
     conducted pursuant to the Impugned Advertisement.
6.   Thereafter, the Appellant cleared the preliminary examination and
     qualified for the main examination. Subsequently, on 11.10.2023,
     the Appellant cleared the main examination from the ‘Open General
     Category’.
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7.   However, in the interregnum, on 17.02.2023, the Department
     of Other Backward Bahujan Welfare issued a corrigendum (the
     “Corrigendum”) amending Clause 2 (iii) of a circular bearing
     number CBC-2012/P.No.182/Vijabhaj-1, dated 25.03.2013 issued by
     Department of Social Justice and Special Assistance, Government
     of Maharashtra whereunder (i) the procedure of obtaining; and (ii)
     validity of inter alia NCL Certificates’ were regulated (the “Circular”).
     Pertinently, the Corrigendum enabled candidates to submit an NCL
     Certificate which would have been valid in the current financial year
     as against an NCL Certificate which had to have been valid as on
     the last date of submission of the application form i.e., 01.06.2022.
8.   In light of the changed circumstances following the issuance of the
     Corrigendum as more particularly delineated above, the Appellant,
     who had otherwise been eligible to apply under the ‘Reserved Female
     Category’ but for mandatory requirement of a valid NCL Certificate
     as on 01.06.2022, subsequently obtained an NCL Certificate on
     09.03.2023. Thereafter, the Appellant made a representation to the
     Respondent to consider her candidature as a ‘Reserved Female
     Category’ candidate.
9.   Aggrieved by the non-consideration of her representation, the
     Appellant preferred the OA before the MAT. Vide an order dated
     07.07.2023, the MAT dismissed the OA observing inter alia that the
     Appellant was not in possession of an NCL Certificate prior to the
     issuance of the Corrigendum (the “Underlying Order”). Aggrieved
     by the Underlying Order, the Appellant herein preferred a writ petition
     before the High Court. Vide the Impugned Order, the writ petition
     came to be dismissed. The operative paragraph of the Impugned
     Order is reproduced below:
          “6. Therefore, after hearing both the side and considering
          the conspectus of the matter, it is amply clear that the
          Petitioner had applied from Open General Category,
          because she did not hold the NCL Certificate. Having
          appeared for the Preliminary examination as well as Main
          examination from the “Open General” Category, merely
          because a corrigendum is issued, the Petitioner cannot
          be allowed to change the category at this stage, more so,
          on background of the general instructions to the candidate
          contained in paragraph Nos.1.2.5.6 and 1.2.5.7, which does
[2024] 1 S.C.R.                                                                               1227

              Priyanka Prakash Kulkarni v. Maharashtra Public
                           Service Commission

            not permit to make any changes once the form is filled in.
            If the Petitioner was desirous of making an Application for
            general women category, she ought to have obtained the
            NCL in advance showing diligence, which she has failed.
            At this stage, if the Petitioner is allowed to change her
            category, it will open a flood gate of litigation, as observed
            by the MAT. Hence, the said prayer of the Petitioner cannot
            be considered.”
10. Mr. Amit Sharma, Ld. Counsel appearing on behalf of the Appellant
    has fairly submitted before us that the Appellant did not submit her
    application under the ‘Reserved Female Category’ on account of her
    inability to obtain an NCL Certificate which was valid as on the last
    date of submission of the application form i.e., 01.06.2022. However,
    upon the issuance of the Corrigendum, the Appellants’ eligibility qua
    the ‘Reserved Female Category’ came to be revived as the Appellant
    was no longer mandated to furnish an NCL Certificate which was
    valid as on the last date of submission of the application form but
    instead was called upon to furnish an NCL Certificate pertaining to
    current financial year.
11. Furthermore, Mr. Sharma has submitted before us that 7 (seven) – 8
    (eight) other persons who dishonestly applied under the ‘Reserved
    Female Category’ without a valid NCL Certificate, have been
    granted the benefit under the Corrigendum, and subsequently upon
    producing the NCL Certificate as per the terms of the Corrigendum,
    the Respondent has proceeded to consider their candidature under
    the ‘Reserved Female Category’.
12. On the other hand, Mr. Rahul Chitnis, Ld. Counsel appearing on
    behalf of the Respondent has vehemently opposed the aforesaid
    submission(s). The main thrust of the arguments of Mr. Chitnis
    is two-fold i.e., (i) the Appellant cannot be allowed to change the
    category of her candidature in light of Clause 1.2.5.6 and 1.2.5.7 of
    the General Instructions to Candidates published on the Respondent
    Commission’s website (the “Instructions”)1; and (ii) the Appellant
    has failed to mark ‘yes’ against the specific question pertaining to a
    prospective candidates’ status as a person belonging to the NCL.
    Accordingly, it was submitted that the Appellant’s case is differently


1   Reliance in this regard was placed on State of T.N. v. G. Hemalathaa, (2020) 19 SCC 430.
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     placed from the other 7 (seven) – 8 (eight) persons whom whilst
     having applied without a valid NCL Certificate, marked ‘yes’ against
     the specific question pertaining to their status as a person belonging
     to the NCL, and accordingly were granted the benefit under the
     Corrigendum.
13. Upon a perusal of Paragraph 5.10 read with Paragraph 5.14 of
    the Impugned Advertisement, it is clear that any application under
    the ‘Reserved Female Category’ was to be supported by an NCL
    Certificate that was valid as on the last date of submission of the
    application form i.e., 01.06.2022. Subsequently, vide the issuance of
    the Corrigendum, the aforenoted position changed; and candidates
    were now eligible to furnish an NCL Certificate pertaining to the
    current financial year.
14. Additionally, Clause 1.2.5.6 and 1.2.5.7 of the Instructions although
    prohibits any modification and / or change in the application
    submitted pursuant to the Impugned Advertisement, could not have
    been interpreted in such a manner so as to nullify the effect of the
    Corrigendum.
15. In this regard, the reliance placed on G. Hemalathaa, (Supra) is
    misdirected as therein a rule issued by the Tamil Nadu Public Service
    Commission was admittedly contravened; and thereafter relaxed by
    the High Court on humanitarian grounds erroneously. Herein, it is the
    on account of the Corrigendum that certain relaxations have been
    awarded to all person(s) however, on account of an overly restrictive
    interpretation of (i) the Corrigendum; and (ii) the Instructions, the
    benefit(s) under the Corrigendum are being selectively restricted
    by the Respondent.
16. Admittedly, the Appellant i.e., a candidate who was scrupulously
    following the terms and conditions of the Impugned Advertisement
    was constrained to apply under the ‘Open General Category’ only
    on account of certain logistical limitations preventing her from
    obtaining a valid NCL Certificate. Consequently, in the absence of
    the requisite documents evidencing status as a person belonging
    to the NCL under the Impugned Advertisement read with the
    Circular i.e., a valid NCL Certificate as on the date of submission
    of the application form, the Appellant did not mark ‘yes’ against the
    specific question pertaining to her status as a person belonging
    to the NCL.
[2024] 1 S.C.R.                                                        1229

            Priyanka Prakash Kulkarni v. Maharashtra Public
                         Service Commission

17. The aforenoted conduct of the Appellant is bona-fide. Accordingly,
    in our view the Appellant cannot be unfairly deprived of the benefit
    of female reservation merely on account of the Appellant’s honesty
    and restraint which did not allow her to mark ‘yes’ against a column
    inquiring about a prospective candidates’ status as a person belonging
    to the NCL, in the absence of the underlying supporting document.
    Additionally, other similarly situated candidates have been granted
    the benefit under the Corrigendum; and their otherwise defective
    applications have now been considered by the Respondent.
18. In our considered opinion, the High Court adopted a hyper-technical
    interpretation of the Instructions without appreciating that such an
    interpretation would nullify the effect of the Corrigendum. Such an
    interpretation ought not to have been adopted especially in light of
    the fact that other persons have been granted the benefit of the
    Corrigendum; and that the Respondent has relaxed the Instructions
    qua such persons so as to enable valid NCL Certificates to be
    furnished.
19. In light of the aforesaid, we find that the Impugned Order and
    resultantly, the Underlying Order ought to be set aside. Accordingly,
    taking note of the peculiar facts of the case; and that the Appellant is
    a meritorious candidate who has cleared the main examination under
    the ‘Open General Category’ despite being deserving of the benefit
    of female reservation, we are inclined to balance the equities and do
    justice by exercising our power under Article 142 of the Constitution
    of India. Accordingly, we direct the Respondent to forthwith treat the
    Appellant as a candidate under the ‘Reserved Female Category’.
20. The appeal is allowed in the aforesaid terms. Pending application(s),
    if any, shall stand disposed of.


     Headnotes prepared by: Ankit Gyan                    Result of the case:
                                                             Appeal allowed.