IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28470 of 2008(L)
1. G. RAJENDERA KUMAR, S/O. GAMALIEL,
... Petitioner
Vs
1. THE STATE OF KERALA, REP. BY THE
... Respondent
2. THE KERALA STATE ROAD TRANSPORT
3. THE KERALA PUBLIC SERVICE COMMISSION,
4. THE ASSISTANT TRANSPORT OFFICER,
For Petitioner :SRI.N.UNNIKRISHNAN
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :28/07/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No. 28470 of 2008-L
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Dated this the 28th day of July, 2010.
JUDGMENT
The petitioner herein is working as Driver Grade II in the Kerala State
Road Transport Corporation. The challenge is against Exts.P6, P9, P10 and
P12 fixing the petitioner’s rank and seniority in the cadre.
2. The petitioner’s averments in a nutshell, are the following: The
Public Service Commission invited applications for the post of Reserve
Driver and he appeared for the physical fitness examination and
examination of certificates on 30.10.1999. He was directed to produce
original certificate of caste, as per Ext.P1 letter by the Public Service
Commission, viz. Nadar Latin Catholic Christian.
3. Ext.P2 is the caste certificate dated 25. 2.1989 issued by the
Village Officer, Kuruppuzha and Ext.P3 is a further certificate issued by the
same officer on 29.10.1999. Ext.P4 is the true copy of the Non-Creamy
Layer certificate produced by him. On the basis of these certificates, it is
submitted that the petitioner is liable to be treated as a person belonging to
Latin Catholic community. Ext.P5 is the true copy of the advice memo
dated 22.6.2000 wherein his rank is shown as 277. He was regularised as
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per Ext.P6.
4. The gradation list was published by the Corporation as per Ext.P7
dated 1.1.2008, wherein he is shown as serial No.959. The petitioner
requested the third respondent Commission for giving the benefit as Latin
Catholic Christian as per Ext.P8. Ext.P9 is the copy of the ranked list
received from the Corporation wherein he is shown as serial No.277 (Latin
Catholic). But in the advice list Ext.P10, he is shown as serial No.519.
Thereafter, he submitted a letter to the Chairman of the Public Service
Commission, as per Ext.P11 and a reply has been given as per Ext.P12, to
the effect that as he has mentioned his caste as Nadar in the application and
has produced non-creamy layer certificate showing as Latin Christian, he
was given the benefit under the open category. It is also mentioned in
Ext.P12 that in the rank list he was included as “Nadar”, since in the
application the caste was shown as “Nadar”. This is mainly under
challenge herein.
5. The respondents have filed separate counter affidavits in the
matter. It is mainly contended by the learned counsel for the petitioner that
the petitioner is entitled to be granted the benefit of Latin Christian
community. Nadar is a sub caste, whereas Latin Christian is the community
to which he should be included. Exts.P1 to P3 are referred to, to show that
wpc 28470/20 3
he belongs to Latin Christian Community. It is further pointed out that
there is seven years delay in finalising the matter by the Public Service
Commission and the Corporation and further, Ext.P12 reply was given by
the Chairman who is not the empowered authority to take a decision on his
complaint.
6. Learned Standing Counsel for the Public Service Commission
contended that as the petitioner claimed his caste as Nadar and religion as
Latin Catholic in the application, and as he failed to produce the certificate
showing his caste as Nadar, he can only be treated as an open category
candidate. Reliance is placed on the decision of a Division Bench of this
Court in W.A. No.2383/2007 to contend that those claims made other than
that is raised in the application, cannot be considered in the light of Clause
18 of the General Conditions published by the Commission.
7. My attention was invited by the learned counsel for the petitioner
to Ext.P1, a letter issued from the Commission to the petitioner wherein he
was directed to produce the community certificate showing that he belongs
to Nadar Latin Catholic Christian. Ext.P2 certificate shows that the
petitioner belongs to Nadar Christian community and Lathin Catholic –
religion and Ext.P3 is also to the same effect. Obviously, the certificate
wpc 28470/20 4
shows that he belongs to Nadar X’an – Latin Catholic.
8. It is pointed out that the change of his status in the advice list and
in the gradation list is without notice to him and the Commission has no
manner of right to do the same.
9. In Ext.P11, representation filed by the petitioner, he has stated that
his ranking at the time of appointment is 277 and he submitted the non
creamy layer certificate showing that he is eligible to get the benefits of
Latin Catholic. Therefore, what the petitioner seeks for is the consideration
of his claim as a Latin Catholic.
10. The petitioner has further produced along with I.A.
No.8472/2010, Exts.P17 and P18. Ext.P17 is a letter from the District
Collector to the Tahsildar of the District. Therein it is stated that there is
distinction between caste and community and a Latin Catholic irrespective
of whether he is Nadar or Mukkuva, is entitled to obtain a Latin Catholic
community certificate. Ext.P18 is a copy of letter issued by the
Government to the Bishop of Trivandrum. Therein, what is stated is that a
person belonging to Latin Catholic community, is entitled to get a
certificate on that basis, whatever be the caste shown in school records.
11. Herein, the definite stand taken by the respondents is that the
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petitioner was given the benefit of Nadar, going by his statement in the
application and later he failed to produce any certificate regarding the said
caste status, and Ext.P4 showing him as Latin Catholic cannot be accepted
for this reason.
12. Shri N. Unnikrishnan, learned counsel for the petitioner invited
my attention to the relevant rules of KS & SSR and the definition of
‘selection year’, to contend that the steps taken by the Commission is really
barred by law and therefore they cannot refix the advice seniority, that too
after seven years.
13. Shri Alexander Thomas, learned Standing Counsel for the
Commission invited my attention to Rule 17(1) of Part II KS & SSR,
wherein Latin Catholics and Anglo Indians will come under item 3 in the
group of Backward Classes, Nadars (Hindu Nadars and Nadars included in
S.I.U.C.) will come under item 4 and Other Backward Classes will come
under item 8. He therefore submitted that the claim raised by the petitioner
as Latin Catholic, cannot be accepted now.
14. Even going by the pleadings of the petitioner, he had shown the
caste as Nadar in the application. The reliefs sought for in the writ petition
is to grant benefits of reservation under OBC/LC category. As already
noted, going by Rule 17, Latin Catholics and Anglo Indians are grouped
wpc 28470/20 6
together as item 3 therein and Other Backward Classes as item 8.
Therefore, OBC and LC are shown separately for the purpose of the rules.
Similarly, Nadars are also shown separately for the purpose of granting
benefit of reservation. Exts.P2 and P3 certificates show that the petitioner’s
caste is Nadar and his religion is Latin Catholic. Obviously, the claim
raised in the application is on the basis of his caste as Nadar and
accordingly he was given the benefit by giving rank No.277, as evidenced
by Ext.P6 also. When the non creamy layer certificate was produced, it was
shown as LC (Latin Catholic). It was not accepted by the Commission,
rightly. The plea raised by the petitioner is that he was not conversant with
the intricacies and accordingly the Commission should have accepted
Exts.P2 to P4 to give him the benefit of Latin Catholics.
15. Evidently, Latin Catholics and Nadars are two different groups,
going by the grouping of Other Backward Classes under Rule 17. A Latin
Catholic may not be having a caste or sub-caste even going by Ext.P18.
Rank No.277 given to the petitioenr, as evident from the counter affidavit,
is based on the fact that he was treated as a Nadar by caste. The Division
Bench in Writ Appeal No.2383/2007, considered an identical issue. The
appellant therein, in the application showed that she belongs to Ezhava
community. At the time of verification of documents, she failed to prove
wpc 28470/20 7
the caste status and Ext.P3 certificate produced by the Village Officer
showed that she belongs to L.C. community. In the absence of a certificate
showing her caste as Ezhava, the Public Service Commission treated her as
Open Category candidate. The Division Bench found that on the basis of
Clause 18 of the General Conditions, the Commission rightly rejected the
application. The situation herein is also similar. The petitioner was
assigned rank No.277 based on his claim that he is a Nadar. It is only
when at the time of verification of certificates, it was found that he
claims to be a Nadar – Latin Catholic. But, evidently Nadar is the name of
a caste which was required to be proved to sustain his claim and Latin
Catholic is the religion shown by him. If he has to be given the benefit as
LC, then the entire ranking will have to be changed. Hence, the fixation of
seniority cannot be faulted at all. Rule 27(c) of KS & SSR refers about
fixing the relative seniority in the advice list. Herein, the Public Service
Commission cannot be faulted for publishing the advice list later. The
petitioner and others were appointed obviously in the light of the request
made by the Corporation provisionally, and that too without working out the
rules of reservation and without verifying the communities claimed and
proved by candidates. It is only after a number of years, the seniority list
was prepared. At that stage it was found that the claim of community in the
wpc 28470/20 8
application was a Nadar which was not proved and accordingly he was
treated as an Open Competition candidate. Going by the counter affidavit
filed by the Commission, it can be seen that the rank list was brought into
force on 11.5.2000 and he was advised on 22.6.2000 and no complaint was
filed till 24.9.2007. Only after the gradation lit was published, the objection
was raised. The proceeding leading to Ext.P12 cannot therefore be held to
be bad in law.
16. Even though learned counsel for the petitioner relied heavily
upon the additional documents produced by him, evidently that also cannot
help him. Shri N. Unnikrishnan submitted that the order passed by the
Chairman of the Commission also cannot be supported. But evidently, the
petitioner’s representation was addressed to the Chairman of the
Commission. Learned Standing Counsel for the Commission explained that
under the delegation of powers, the Chairman disposed of the representation
and therefore that cannot be faulted. The said reason is well founded.
17. The further question is whether the petitioner ought to have been
given a notice by the Commission in the matter, before changing the rank.
The change of rank in the advice list arose due to the fact that the
petitioner’s ranking in the rank list was given considering him as Nadar and
later, on coming to know that in the certificate his caste is shown as Latin
wpc 28470/20 9
Catholic, they treated him as Open Competition candidate. Even if a notice
was issued to him, nothing could have turned upon it. The situation herein
being similar to that considered by the Division Bench in W.A.
No.2383/2007, the said dictum also applies here.
For all these reasons, I find no reason to interfere with the order
passed as Ext.P12. Therefore, the writ petition fails and the same is
dismissed. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/