Diya Mahesh v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 30TH DAY OF AUGUST 2016/20168TH BHADRA, 1938** ## **WP(C).No. 1557 of 2016 (T)** **-----------------------------------------** ## **PETITIONER(S) :** - **------------------------** **DIYA MAHESH, AGED 18 YEARS, DAUGHTER OF K.P.MAHESH, RESIDING AT 1/1552 NANDANAM, SOUTH THAMARAPARAMB, FORT COCHIN, COCHIN- 682 001.** ## **BY ADV. SMT.REKHA VASUDEVAN** ## **RESPONDENT(S) :** ## **-----------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM 695 001.** **2. THE TAHSILDAR, FORT COCHIN, COCHIN 682 001.** **3. THE VILLAGE OFFICER, FORT COCHIN, COCHIN 682 001.** ## *** ADDITIONAL R4 IMPLEADED** **4. COCHIN PORT TRUST, REPRESENTED BY CHAIRMAN, WILLINGTON ISLAND, COCHIN - 682 003.** - **ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 17.06.2016** - **IN W.P(C).NO. 1557 OF 2016** **R1 TO R3 BY GOVERNMENT PLEADER SRI. ARAVINDA KUMAR BABU ADDL. R4 BY ADVS. SRI.V.ABRAHAM MARKOS** **SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SRI.NOBY THOMAS CYRIAC SRI.HARAN THOMAS GEORGE SRI.GOVIND VIJAYAKUMARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-08-2016, THE COURT ON 30-08-2016 DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 1557 of 2016 (T)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **P1: TRUE COPY OF THE APPLICATION DATED 28/12/2015 ALONG WITH THE FORWARDING LETTER DATED 28/12/2015 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **P2: TRUE COPY OF THE INDIAN INCOME TAX RETURN VERIFICATION APPLICATION FORM FOR THE ASSESSMENT YEAR 2015-2016.** - **P3: TRUE COPY OF THE CERTIFICATE DATED 16/12/2015 ISSUED BY CHIEF MEDICAL OFFICER OF THE COCHIN PORT TRUST.** - **P4: TRUE COPY OF G.O(P)NO. 1/2015/BCDD DATED 01/01/2015 ISSUED BY THE BACKWARD COMMUNITIES DEVELOPMENT (A)DEPARTMENT.** - **P5: TRUE COPY OF THE G.O(P)NO. 184/2014/(188)/FIN DATED 21/05/2014 ISSUED BY THE FINANCE DEPARTMENT.** - **P6: TRUE COPY OF THE PROCEEDING BEARING NO. 28/16 DATED 19.01.2016 ISSUED BY THE 3RD RESPONDENT.** - **P7: TRUE COPY OF THE S.O.946(E) DATED 09.04.2009 ISSUED BY THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS.** - **P8: TRUE COPY OF THE OFFICE MEMORANDUM NO. 11012/7/2008-ESTT(A) DATED 17.04.2009 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING.** - **P9: TRUE COPY OF THE F.N.W-03/0059/2014-DPE(WC) DATED 18.12.2014 ISSUED BY THE DIRECTOR, DEPARTMENT OF PUBLIC ENTERPRISES.** - **P10: TRUE COPY OF THE RELEVANT PAGES OF THE G.O(P)NO. 7/2016/FIN DATED 20.01.2016 ISSUED BY THE FINANCE DEPARTMENT.** **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R2(A): A COPY OF G.O(P)NO. 81/09/SCSTDD DATED 26.09.2009.** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. ## **P.B.SURESH KUMAR, J.** ## **= = = = = = = = = = = = = =** ## **WP(C).No.1557 of 2016-T.** ## **= = = = = = = = = = = = = =** Dated this the 30[th] day of August, 2016. ## **J U D G M E N T** The petitioner who belongs to Ezhava community is aspiring to get admission for MBBS course against the seats reserved for socially and educationally backward classes. Only candidates coming within the Non Creamy Layer strata of the said classes are entitled to reservation for admission. A certificate from the competent authority that the candidate falls under the Non Creamy Layer strata of the community concerned is, therefore, mandatory for securing admission. The petitioner though applied for Non Creamy Layer Certificate, her application was not considered. She has, therefore, approached this Court in this writ petition. As per the interim order dated 15.1.2016, this Court directed the third respondent to pass orders on the application submitted by the petitioner for Non Creamy Layer Certificate. Pursuant to the said interim order, the application submitted by the petitioner has been considered and rejected by 2 ## **WP(C).No.1557/2016-T.** the third respondent, as per Ext.P6 communication. The petitioner, thereupon, amended the writ petition and incorporated pleadings challenging Ext.P6 communication as well. The essence of the prayers in the amended writ petition is for a direction to the second respondent to issue Non Creamy Layer Certificate sought by the petitioner. 2. A counter affidavit has been filed in the matter by the second respondent. The stand taken by the second respondent in the counter affidavit is that the rejection of the application of the petitioner for Non Creamy Layer Certificate is in accordance with Ext.P4 guidelines issued by the State Government. 3. Heard the learned counsel for the petitioner as also the learned Government Pleader. 4. Ext.P6 communication issued by the third respondent indicates that the request of the petitioner has been rejected on two grounds. The first ground is that the total annual income of the family of the petitioner exceeds Rs.6,00,000/-. The second ground is that the mother of the petitioner being a **WP(C).No.1557/2016-T.** 3 Class I employee in the service of the Cochin Port Trust, the petitioner is excluded from claiming the Non Creamy Layer status. Ext.P4 is the order issued by the Government fixing the guidelines for deciding the eligibility to claim admission for professional courses against the seats reserved for socially and educationally backward classes. Ext.P4 excludes certain persons from the purview of Non Creamy Layer status. Annexure III schedule to Ext.P4 order mentions the persons to whom rule of exclusion would apply among the six categories of persons. Serial No.II of Annexure-III schedule, which is relevant in the context, reads thus:- Son(s) and daugher(s) of “II.Service Category A. Group A/Class I a) Parents both of whom are Officers of the All Class I Officers; India Central and b) Parents, either of whom is a State Services class I Officer; (Direct Recruits) c) Parents, both of whom are b) Parents, either of whom is a class I Officer; c) Parents, both of whom are Class I Officers, but one of them dies or suffers permanent incapacitation; d) Parents, either of whom is a Class I Officer and such parent or suffers permanent capacitation and before such 4 ## **WP(C).No.1557/2016-T.** death or such incapacitation has had the benefit of employment in any International Organisation like UN, IMF, World Bank etc., for a period of not less than 5 years. e) Parents, both of whom are Class I Officers die or suffer permanent incapacitation and before such death or such incapacitation of the both; either of them has had the benefit of employment in any International Organisation like UN, IMF, World Bank etc., for a period of not less than 5 years. Provided that the rule of exclusion shall not apply in the following case: Sons and daughters of parents either of whom are Class I Officers and such parent(s) dies/ die or suffer permanent incapacitation. Son(s) daugher(s) of B. Group B/Class II Son(s) daugher(s) of Officers of the Central and State Services Class II Officers; (Direct Recruitment) a) Parents both of whom are b) Parents of whom only the 5 ## **WP(C).No.1557/2016-T.** husband is a Class II Officer and he gets into Class I at the age of 36 or earlier; c) Parents, both of whom are Class II Officers and one of them dies or suffers permanent incapacitation and either one of them has had the benefit of employment in any International Organisation like UN, IMF, World Bank etc., for a period of not less than 5 years before such death or permanent incapacitation; d) Parents of whom the husband is a Class I Officer (Direct Recruit or pre thirty six promoted) and the wife is a Class II Officer and the wife dies or suffers permanent incapacitation; and e) Parents of whom the wife is a Class I Officer (Direct Recruit or pre thirty six promoted) and the husband is a Class II Officer and the husband dies or suffers permanent incapacitation. Provided that the rule of exclusion shall not apply in the following 6 ## **WP(C).No.1557/2016-T.** cases: Son(s) and daughter(s) of Parents both of whom are Class II Officers and one of them dies or suffers permanent incapacitation. Parents both of whom are Class II officers and both of them die or suffer permanent incapacitation even though either of them has had the benefit of employment in any International Organisation like UN, IMF, World Bank etc., for a period of not less than 5 years before their death or permanent incapacitation. C. Employees in Public Sector Undertakings etc. The Criteria enumerated in A & B above in this Category will apply mutatis mutandis to officers holding equivalent or comparable posts in PSUs, Banks, Insurance Organisations and Universities etc. And also equivalent or comparable posts and positions under private employment.” ## The note beneath Annexure-III schedule reads thus:- “ **Note** :- The Income/wealth test governs Categories IV, V(B) and others covered under VI as stated earlier. For the remaining categories, namely, I, II, III and V(A), specific **WP(C).No.1557/2016-T.** 7 criteria have been laid down; however, if in these categories, any person, who is not disentitled to the benefit of reservation has income from other source or wealth, which will bring him within the criterion under item No.VI, then he shall be disentitled to reservation, in case his income without clubbing his income from salaries or agricultural land or his wealth is in excess of cut-off point prescribed under the income/wealth criteria. This note is for the guidance of the Revenue authorities for issuing the Creamy Layer Certificate.” As noted above, Annexure III schedule to Ext.P4 order defines the persons to whom the rule of exclusion would apply among the categories mentioned therein. The note beneath Annexure III schedule indicates that among the categories mentioned in the schedule, income/wealth test applies only to those under categories IV, V(B) and VI. The said note also indicates that persons coming under the remaining categories, who are not specifically mentioned therein, are liable to be excluded from the creamy layer category only if they have family income exceeding the prescribed limit from sources other than salary. In other words, the salary income is not the criteria for deciding the eligibility of the persons coming under the said categories to 8 ## **WP(C).No.1557/2016-T.** claim the Non Creamy Layer status. Let us apply the said guidelines to the facts of the present case. The mother of the petitioner entered the service of the Cochin Port Trust as a Class I officer. She is a Doctor by profession. The father of the petitioner is employed in private sector. In so far as the mother of the petitioner is a Class I officer in a public sector undertaking, the petitioner comes under Category II-C. Going by the note beneath the schedule referred to above, if the rule of exclusion mentioned in the said category does not apply to the petitioner, the income of her parents from their salary cannot be the criterion to decide the eligibility of the petitioner for Non Creamy Layer certificate. The petitioner in that case, is liable to be excluded from Non Creamy Layer status, only if she has family income exceeding the limit prescribed from other sources. Admittedly, the family of the petitioner do not have income from other sources. As such, the first ground on which the Non Creamy Layer certificate sought by the petitioner is rejected, namely, that the salary income of the family of the petitioner is Rs.11,97,394/-, is unsustainable. **WP(C).No.1557/2016-T.** 9 5. The surviving question is whether the rule of exclusion mentioned in Annexure III schedule applies to the petitioner. The fact that the mother of the petitioner is a direct recruit Class I officer in Cochin Port Trust, which is a public sector undertaking, is not in dispute. As noted above, the petitioner, therefore, comes under Category II-C. Annexure III schedule provides that the criteria enumerated in clauses II-A and II-B of Annexure-III schedule apply _mutatis mutandis_ to officers holding equivalent or comparable posts in public sector undertakings. It is beyond dispute that if either of the parents of a candidate is a Class I officer of the All India Central and State Services (Direct Recruits), the rule of exclusion applies to the candidate. The issue to be resolved is, therefore, whether the Class I post which the mother of the petitioner holds, can be treated as equivalent or comparable to a Class-I post in All India Central and State Services. The case of the petitioner is that the Class-I post which her mother holds is not equivalent or comparable to a Class-I post in the State service. The petitioner relies on the difference in the pay scales of Class-I officers in the service of Cochin Port **WP(C).No.1557/2016-T.** 10 Trust as also the State service to contend that the posts are not equivalent or comparable. According to the learned counsel for the petitioner, going by the pay scales, the post which the mother of the petitioner holds in the service of Cochin Port Trust is comparable only to a Class-B post in the State service. According to me, there is absolutely no basis for the said comparison. As noted above, the social and educational backwardness of persons coming under Category II-C is not to be judged based on their salary income. All the candidates coming under the said category except to whom the rule of exclusion applies are treated as coming under Non Creamy Layer status. A close reading of Annexure III schedule to Ext.P4 order indicates that certain persons are excluded from Non Creamy Layer status based on the status of the post which their parents hold. Looking at the schedule in the said perspective, I have no hesitation to hold that the Class I post which the mother of the petitioner holds in the service of the Cochin Port Trust is certainly comparable to a Class I post in the State service. Further, the reservation provided for in Article 15(4) of the Constitution is 11 ## **WP(C).No.1557/2016-T.** intended for the benefit of socially, economically and educationally backward strata of the society. Socially, economically and educationally advanced sections of the society are certainly to be excluded while conferring the benefit contemplated by the Constitution. [See **Ashoka Kumar Thakur** v. **Union of India** [(2008)6 SCC 1)]. As noted above, the mother of the petitioner is a doctor by profession. The family income of the petitioner is Rs.11,97,394/-. If persons placed in the position of the petitioner are permitted to avail the benefit of reservation, I have no doubt that the benefit of reservation will not go to persons to whom the same was intended to be conferred. Ext.P6 decision of the third respondent declining the Non Creamy Layer certificate sought by the petitioner is, therefore, in order. The writ petition is, accordingly, dismissed. _**Sd/-**_ **P.B.SURESH KUMAR, JUDGE.** _**Kvs/-**_ _**// true copy //**_