IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 32988 of 2005(B)
1. K.P.SOBHANAKUMARI, KALARIKKAL PARAMBIL
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT MEDICAL OFFICER(HEALTH)
3. K.VIJAYALAKSHMI, KADAVATH HOUSE,
4. T.UNNIKRISHNAN, THEKKUMPURATH HOUSE,
For Petitioner :SRI.V.RAJENDRAN
For Respondent :SRI.P.CHANDRASEKHARAN PILLAI
The Hon'ble MR. Justice V.GIRI
Dated :04/09/2007
O R D E R
V.GIRI,J.
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W.P.(C) NO.32988 of 2005
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Dated this the 4th day of August, 2007
JUDGMENT
The challenge in the writ petition is against Exts.P1 and P5. Ext.P1 is
the proceedings of the District Medical Officer, Manjeri dtd.27.6.2005, by
which appointments were effected to the post of part-time sweeper. Ext.P5 is
an order passed by the Government, on a representation filed by the
petitioner alleging irregularities in the matter of selection, which led to
Ext.P1 order. In Ext.P5, Government has stated that the records relating to
the selection did not reveal any irregularity in the selection process.
2. The vacancies in the post of part-time sweepers was sought to be
filled up from among candidates sponsored by the Employment Exchange.
The candidates were interviewed on 16.6.2005. The petitioner and
respondents 3 and 4 were also included in that interview. The petitioner
contends that she is a member of the scheduled caste community and she
had entered into an inter-caste marriage. She failed in the SSLC examination.
The qualification prescribed for the post in question is education between
standards 7 to 10. Petitioner contends that in so far as the third respondent
is concerned, she had not only passed SSLC, but had also studied for Pre-
degree. Therefore, she is disabled from being considered for the post in
question. Reference in this regard is made to Ext.R1(a) circular, wherein
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candidates having qualification above SSLC are not to be selected. The
petitioner contends that since the third respondent had studied for Pre-
degree, she is disabled in terms of Ext.R1(a) circular and consequently third
respondent ought not to have been selected.
3. In so far as the 4th respondent is concerned, the petitioner
contends that the 4th respondent was preferred on account of the fact that
he was related to a member of the Selection Committee. What is therefore
alleged in relation to the selection of the 4th respondent is personal bias
influencing a member of the Selection Committee. I note, at the outset, that
the member of the Selection Committee against whom bias is alleged is not
a party to the writ petition as such. I am not inclined to go into that question
in the absence of such party.
4. Yet another contention raised by the petitioner relates to the
awarding of marks. In accordance with Ext.R1(a) circular, she contends that
as she is a member of the Scheduled caste and as she has contracted an
inter-caste marriage, she is entitled to be considered as belonging to a
preferred category in terms of G.O.(MS) 224/80/GAD dated 2.6.1980. The
said order is applicable to all candidates sponsored by the Employment
Exchange. Reference is also made to Ext.R1(a) circular, wherein it is stated
that additional five marks is contemplated for candidates belonging to special
category. Though Ext.R1(a) circular does not specify persons who have
contracted inter-caste marriage as a special category, it seems from a
reading of the same that the category mentioned therein is not exhaustive. If
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that be so, the categories which are referred in the above mentioned
government order are also be qualified to be treated as a special category for
the purpose of Ext.R1(a) circular. Further, the Government Order in question
applies to all appointments through Employment Exchanges.
5. As a result thereof, the petitioner was entitled to be treated as
belonging to a special category and consequently she was entitled to an
award of five marks for possessing the said privilege.
6. Separate counter affidavit has been filed by respondents 1 and 2.
The allegations regarding bias having influenced the selection of the 4th
respondent is refuted. At any rate, as I have mentioned above, I am not
inclined to go into the question in the absence of the person against whom
bias is alleged being on the party array.
5. The second contention raised by the petitioner is to the effect that
the third respondent had acquired a qualification further to SSLC, and
therefore, she should have been treated as disqualified for the post in
question. In as much as the third respondent has only studied for Pre-
degree, she may not be disabled by a reason of the said fact. What is
contemplated by Ext.R1(a) which mentions about the qualifications above
SSLC is obviously an acquisition of a qualification above SSLC. Mere
prosecution of the Pre-degree course without acquisition of the said
qualification is insufficient to make the person concerned disqualified for the
purpose of Ext.R1(a).
6. What remains to be considered is the petitioner’s contention
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regarding she being entitled to be awarded five marks for being included in a
special category within the meaning of 1980 G.O. read with Ext.R1(a)
circular. The details of the marks secured by the petitioner and the two
selected categories are given in the statement filed by respondent No.1. They
are extracted hereunder.
Sobhanakumari Vijayalakshmi Unnikrishnan
Petitioner 3rd respondent 4th respondent
Marks for Educational
Qualification 5 5 5
Marks for age 7 8 1/2 7
" Employment registration
seniority 10 10 10
" Previous experiene in HSD 3 Nil Nil
" Special Category Nil Nil Nil
" Interview 4 8 8
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Total 29 31 1/2 30
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7. Apparently, no marks have been awarded to the petitioner under
the head of special category. If the petitioner’s claim that she belongs to the
scheduled caste community and she had also contracted an intercaste
marriage is liable to be accepted, then obviously, the petitioner was entitled
to be awarded five marks, under the column `special category’. The
petitioner has specifically averred in the writ petition that she is a member of
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the scheduled caste community and she had contracted an inter-caste
marriage. She apparently produced a certificate evidencing the said fact,
issued by Tahsildar Nilambur, before the Selection Committee. The
aforementioned facts have not been controverted in the counter affidavit filed
by respondents 1 and 2. This being the position, Selection Committee should
have awarded marks to the petitioner for the reason of her being included in
the special category. If such five marks is added, it is obvious that the
petitioner should have been selected. There is no other reason which is given
in the counter affidavit filed by respondents 1 and 2. Obviously, this error has
escaped the attention of the Government while passing Ext.P5 order.
8. I note that there is no counter affidavit by the contesting
respondents 3 and 4.
9. In view of the aforementioned discussions, I find that the petitioner
was entitled to be selected to the post of part-time sweeper pursuant to the
notification which ultimately led to Ext.P1. The selection of the 4th
respondent (who has secured marks lower than the third respondent) by
overlooking the petitioner, will have to be treated as illegal. At any rate, the
petitioner had to be selected and ought to have been selected by the
Selection Committee. In the circumstances, I am constrained to interfere
with Exts.P1 and P5.
10. The writ petition is, therefore, disposed of in the following terms:
1) Ext.P1 is set aside to the extent to which it has selected 4th
respondent to the post of part-time sweeper. The selection of the 3rd
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respondent is upheld.
2) The petitioner is declared to be entitled to appointment to the post
of part-time sweeper in the place of the 4th respondent.
3) The second respondent shall issue appropriate orders appointing the
petitioner as a part-time sweeper and issue other appropriate posting orders
as a consequence thereof, within a period of one month from the date of
receipt of a copy of this judgment. The petitioner shall make available copies
of all relevant records including the certificate stated to have been issued by
the Tahsildar, Nilambur evidencing her inter-caste marriage before the
District Medical Officer along with a copy of the judgment within a period of
three weeks from today. It is made clear that the salary or other benefits
which have been disbursed to the 4th respondent, for the period during
which she has worked, need not be refunded back to the Government.
The writ petition is allowed as above.
V.GIRI, JUDGE
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