Lissyamma L. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934 ## **W.A.No.482 of 2013** ------------------------------------------ AGAINST THE JUDGMENT IN W.P.(C).12589/2005, OF HIGH COURT OF KERALA, DATED 17-10-2011. ---------------------- ## **APPELLANT/** PETITIONER:- ---------------------------------------- LISSYAMMA. L., W/O.FRANCIS, PLAVILA PANDINJATTATHIL, KUMBALAM , KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL. ## **RESPONDENTS/** RESPONDENTS:- ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, - GENERAL EDUCATION SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2. THE TAHASILDAR, TALUK OFFICE, KOLLAM DISTRICT, PIN - 691 001. 3. THE SECRETARY, - KERALA PUBLIC SERVICE COMMISSION, PATTOM PALACE JUNCTION, THIRUVANANTHAPURAM, PIN - 695 001. 4. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, M.G.ROAD, THRISSUR, PIN - 686 001. R1 & R2 BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL. R3 & R4 BY STANDING COUNSEL SRI.P.C.SASIDHARAN. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- Manjula Chellur, C.J. & K.Vinod Chandran, J. ------------------------------------W.A.No.482 of 2013 -------------------------------------Dated this, the 21[st] day of March, 2013 ## JUDGMENT ## K.Vinod Chandran,J. The appellant impugn the judgment of the learned Single Judge refusing her claim to be considered as a Latin Catholic candidate as against her original claim of belonging to Other Christian (OX-Parava Christian) community and her revised claim to be considered under the Latin Catholic community quota. 2. The appellant applied for the post of High School Assistant (for short “HSA”) (Malayalam) in Thrissur District. The appellant, in her application, claimed to be “X'ian Parava”, but failed to produce her Caste Certificate and Non-Creamy Layer Certificate as required under Exhibit P2 communication. Having been unsuccessful in her attempt to obtain a Non-Creamy Layer Certificate, alleging unwarranted delay of the Tahsildar in issuing such certificate, the appellant was before this Court seeking a direction to the 2[nd] respondent-Tahsildar to issue certificate and a direction to the respondents 3 and 4 to grant the appellant W.A.No.482 of 2013 - 2 - sufficient time to produce the said certificate as also a declaration of her eligibility to claim reservation as a X'ian Parava. These were the only prayers in the writ petition at the time of filing and at the time of disposal. 3. By an interim order dated 15.04.2005, this Court directed the Tahsildar to provisionally issue a Non-Creamy Layer Certificate, which was issued as per Exhibit P6. Pursuant to issuance of Exhibit P7 dated 7.2.2008, by which the appellant was informed that though as per the provisional certificate issued, the appellant was included as the 1[st] rank holder in the Supplementary List in the “OX” category provisionally, the appellant had not till date produced Caste Certificate. The appellant, hence, by I.A.No.2795 of 2008, sought for a direction to the Public Service Commission to advise her to the post of HSA (Malayalam) from the rank list as per the turn in the reservation quota for Other Christian (OX). That application was allowed and the appellant was provisionally advised and she joined as per the advice. However, the fact remains that her appointment was purely provisional on the basis of the interim orders issued by this Court, dependant upon the production of valid certificates and also the final disposal of the writ petition. W.A.No.482 of 2013 - 3 - 4. While so, this Court by a decision reported in _**Rajan v. State of Kerala**_ **[2007 (1) KLT 730]** held that Non-Creamy Layer certificates cannot be issued on the basis of the Secondary School Leaving Certificates, Educational records or certificates issued by the Parish Priests, since none of them would be a binding evidence for proving caste. It was categorically held that there are no Christians who are entitled to be included as members belonging to Parava or Bharatha community and they would only be included in the Latin Catholic community. 5. The appellant, then, immediately did a volte-face and applied for a community certificate on the basis of her claim to be included under the Latin Catholic X'ian, which is evidenced by Exhibits P8 to P11. The claim was that now she should be advised against the Latin Catholic community slot from the rank list and accommodated in a suitable vacancy available to the Latin Catholic community. The learned Single Judge specifically noticed the averment of the Public Service Commission to the effect that all the Lain Catholic turns which arose during the validity period of the rank list have been filled with Latin Catholic candidates itself. It was the specific contention of the Public Service Commission that since independent turns are prescribed for each community, W.A.No.482 of 2013 - 4 - the appellant could not be accommodated in a Latin Catholic community slot unless and until a person already appointed is ousted. 6. We notice that the appellant has not chosen to implead any of the persons who would be affected, despite the specific averment of the Public Service Commission that all turns available to the Latin Catholic community have been filled up and the appellant could be accommodated only after ousting such a person. We also notice that the appellant has not chosen to amend the writ petition or seek reliefs in accordance with her modified claim, but has merely filed an interlocutory application seeking direction to accommodate her in the Latin Catholic community slot. 7. The learned counsel for the appellant would strenuously urge that the appointment of the appellant has now been cancelled by Annexure-I order dated 18.02.2012 after the judgment of the learned Single Judge and it would effectively result in her losing the job she obtained. We are unable to see any valid claim for equity to be raised on behalf of the appellant. The appellant had all along claimed that she belonged to Christian Parava community and was entitled to be treated as “Other W.A.No.482 of 2013 - 5 - Christian” based on her said claim. But, she failed to produce a Caste Certificate or a Non-Creamy Layer Certificate and approached this Court for directions to issue a Non-Creamy Layer Certificate. The interim order dated 15.4.2005 specifically directed issuance of a Non-Creamy Layer Certificate; **provisionally** . On the basis of the above provisional certificate, the appellant sought for a direction to the Public Service Commission to advise the appellant to the post of HSA Malayalam. She consistently refused to produce the Caste Certificate, the production of which had been specifically directed by the Public Service Commission. Again an order was issued to **provisionally** advise the appellant, which was also accepted by the appellant. 8. I.A.No.2347 of 2011 was filed in the wake of Exhibit P12 judgment, claiming herself to be a member of the Latin Catholic community and seeking regularization of her provisional appointment in the Latin Catholic community slot. We fail to understand as to how that can be done, since her original claim was that she is a X'ian Parava, entitled to be treated as “Other Christian”, to substantiate which claim, she failed to produce a Caste Certificate or even a Non-Creamy Layer Certificate. She obtained interim orders from this Court for issuance of a W.A.No.482 of 2013 - 6 - provisional Non-Creamy Layer Certificate and also a provisional advise on the basis of such provisional certificate. That issuance of a Non-Creamy Layer Certificate and the appointment granted to her were merely provisional, subject to the issuance of valid certificate and production of the same as also substantiating her claims in the writ petition. 9. The appellant till date has not produced any such certificate as Caste Certificate as demanded by the Public Service Commission. She attempts to get her provisional appointment confirmed in the quota reserved for the Latin Catholic community on the ground of equity. Her provisional appointment, looking at her very claim, is only on the basis of her being included as Other Christian (OX-Parava Christian) and not as a Latin Catholic. The Lain Catholic community slots, as was noticed above, has already been filled up. The appellant cannot be confirmed on the basis of her provisional appointment as she has failed to substantiate her claims of belonging to X'ian Parava; upon which she obtained provisional appointment. The appellant also cannot be confirmed in the provisional appointment treating her to be a Latin Catholic, since her provisional appointment was not in the Latin Catholic slot. Latin Catholic slot having been already filed, there is no W.A.No.482 of 2013 - 7 - question of her being considered to the same, since the present claim is totally belated and a consideration would prejudice persons who have already been taken to the slots available for the Latin Catholic community and glaringly; they are not parties to the above writ petition. 10. The claim of the appellant strenuously urged by the learned counsel is that she should be granted the benefit under Exhibit P12 judgment. The law having been declared by Exhibit P12, she cannot be denied her claim which flows under Exhibit P12, is the contention. Exhibit P12, as has been noticed earlier, merely declared that the Parava/Bharatha community does not include the Christians and if at all Christians having been included in the Parava/Bharatha community, they can only be said to be belonging to Latin Catholic communities. We do not see any declaration that all persons who claimed to be Christian Parava or Bharatha should, after the judgment, be treated as belonging to Latin Catholic communities without anything more and given all benefits retrospectively. 11. The appellant having all along claimed to be a X'ian Parava and having provisionally obtained appointment under the slot for the said community, cannot merely turn around on the W.A.No.482 of 2013 - 8 - basis of Exhibit P12 and claim that she being a Latin Catholic, should be allotted in the slots available to the Latin Catholic community. We have already noticed that the slots available to the Latin Catholic community have already been filled up and the later realization of the appellant will not confer on her any right to be confirmed in the provisional appointment she obtained based on her claim of being a X'ian Parava. X'ian Parava if by Exhibit P12 can no longer be considered to be an eligible community under OX (Other Christian), the next eligible community would have to be given the seat. That cannot be deemed to be of Latin Catholic slot, since the slots available to that community have already been filled up. Neither can such provisional appointment be regularized under the Latin Catholic community slot, since those have already been filled up nor can it be under Christian Parava, since the appellant's said claim does not subsist. We do not see any merit in the Writ Appeal and we dismiss the same, however, without costs. Sd/- Manjula Chellur, Chief Justice vku/ Sd/K.Vinod Chandran, Judge ( true copy)