Lissyamma L. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933** **WP(C).No. 12589 of 2005(W)** **----------------------------------------** ## **PETITIONER(S):** **-------------------------** **LISSYAMMA L, W/O.FRANCIS,PLAVILA PADINJATTATHIL, KUMBALAM, KOLLAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL SMT.MEREENA JOSEPH** ## **RESPONDENT(S):** **------------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE TAHSILDAR, TALUK OFFICE, KOLLAM DISTRICT.** **3. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM PALACE JUNCTION, THIRUVANANTHAPURAM.** **4. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, M.G.ROAD, THIRUSSUR.** **R1 & R2 BY GOVT. PLEADER SMT. SANGEETHA R3 & R4 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P(C) NO.12589/2005** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE IST PAGE OF THE SSLC BOOK EXTRACT OF THE PETITIONER.** ## **P2:- COPY OF THE COMMUNICATION LETTER NO.E1(1) 4486/02 DTD. 14.3.05 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** ## **P3:- COPY OF THE G.O.(P) 36/00/SC/ST/DD DTD. 27.5.2000.** **P4:- COPY OF THE PAPTIST CERTIFICATE DTD. 4.4.05 ISSUED BY PARISH PRIEST FR.SEPHERIN K.B. OF ST. MICHAEL'S CHURCH, KUMBALAM, DIOCESE OF QUILON.** **P5:- COPY OF THE ORDER IN WP(C) 12970/04 DT.D 16.4.04 OF THIS HONOURABLE COURT.** **P5(a):- COPY OF THE ORDER IN WP(C) 13504/04 DTD. 27.4.04.** **P6:- COPY OF THE CREAMY LAYER CERTIFICATE NO.K.DIS. 13737/2005/B7 DTD. 19.4.2005 ISSUED BY IST RESPONDENT TO THE PETITIONER.** **P7:- COPY OF THE NOTICE NO.R1(1)4486/2002 DTD. 7.2.2008 ISSUED BY THE 3RD RESPONDENT.** **P8:- COPY OF THE CERTIFICATE NO.K.DIS /100/84/B3 DTD. 1.1.2010 ISSUED BY THE 2ND RESPONDENT.** **P9:- COPY OF THE CERTIFICATE NO.1276/2010/K.DIS DT.D 19.1.2010 ISSUED BY THE VILLAGE OFFICER, MULAVANA.** **P10:- COPY OF THE GAZETTE NO.10 DTD. 9.3.2010.** **P11:- COPY OF THE ORDER NO.R1(1) 4486/2002 DTD. 17.1.2001 ISSUED BY THE P.S.C.** **P12:- COPY OF THE JUDGMENT IN WPC. 24227/2004 AND CONNECTED CASES DTD. 18.12.2006 OF THIS HONOURABLE COURT.** **P13:- COPY OF THE JUDGMENT IN W.A. 609/2008 DTD. 27.8.2008 OF THIS HONOURABLE COURT.** **P14:- COPY OF THE JUDGMENT IN WP(C) 22980/2007 DTD. 24.2.2010 OF THIS HONOURABLE COURT.** ## **RESPONDENT'S EXHIBITS** **NIL:-** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **ANTONY DOMINIC, J. ================ W.P.(C) NO. 12589 OF 2005 =====================** ## **Dated this the 17[th] day of October, 2011** ## **J U D G M E N T** Petitioner approached this Court claiming to belong to Other Christian (OX-Parava Christian). According to her, in response to a notification issued by the PSC on 12/11/02 inviting applications for the post of H.S.A Malayalam in Trichur District, she submitted an application and was eventually issued Ext.P2 calling upon her to produce the certificates proving her community status. 2. At that stage, despite Exts.P1 and P4, the SSLC Book and the Baptism Certificate, Tahsildar delayed issuance of community certificate. It was thereupon the writ petition was filed with the following prayers: _“(ii) to issue a writ of mandamus or other appropriate writ, order or direction commanding the 2[nd] respondent to issue certificate to the petitioner to the effect that the petitioner belongs to Other Christian (Parava Christian) as stated in Ext.P1 and P4 1[st] page of the SSLC extract and Baptism Certificate that she does not belong to the creamy layer as per guidelines in G.O(P) 36/00/SC/ST/DD/ dated 27/5/00 and schedule prescribed thereunder to identify the creamy layer among the designated other Christians in the State of Kerala within a stipulated time as directed by this Hon'ble Court._ _(iii) to issue a writ of mandamus or other appropriate writ order or direction commanding the respondents 3 and 4 to grant sufficient time to the petitioner to_ **WPC No. 12589/05** **:2 :** _produced the creamy layer certificate and till then petitioner's name may not be removed from the list for selection to he post of HSA (Malayalam) pursuant to Ext.P2._ _(iv) to declare that the petitioner is entitled to get job reservation and other benefits as provided in Ext.P3 Government Order to the effect that she belongs to the category of Other Christian (Parava Christian).”_ 3. In this writ petition, on 15/4/2005, an interim order was passed directing issuance of a certificate and accordingly, Ext.P6 certificate was issued to the effect that the petitioner is a Christian Parava (OX) and that she does not belong to non creamy layer group. That was produced and accepted by the PSC and on that basis she was included in the supplementary rank list of OX category. Subsequently she was issued Ext.P7 show cause notice proposing to remove her from the ranked list. That was stayed by this Court by order dated 27/2/2008, which order was extended until further orders by order dated 18/6/2008. Later, pursuant to the directions of the Division Bench dated 23/6/2008, petitioner was also advised for appointment on a provisional basis. 4. It is stated that meanwhile, Division Bench of this Court rendered judgment in _**Rajan v. State of Kerala**_ (2007(1) KLT 730), a copy of which has been produced as Ext.P12 to the effect **WPC No. 12589/05** ## **:3 :** that traditional fisher folk belonging to Christian Latin Catholic community has no relationship with scheduled caste Parava. In view of the said judgment, it appears that, based on the petitioner's application, she was issued Ext.P8 community certificate to the effect that she belongs to Latin Catholic community and she also got Ext.P10 gazette notification published to the effect that she has changed her community status. Subsequently, in compliance with order dated 23/6/2008 of the Division Bench, she was also provisionally advised by the PSC as per Ext.P11. 5. When the writ petition was taken up for hearing, the contention raised by the learned counsel for the petitioner is that although the petitioner was initially included in the ranklist as a candidate belonging to OX category, in view of the changes that have taken place consequent on the judgment in **Rajan's** case (supra), petitioner obtained Ext.P8 community certificate and therefore treating her as one belonging to Latin Catholic community, she is entitled to be advised to one of the slots for the said community. In support of this contention, counsel for the petitioner relies on Ext.P13 judgment of the Division Bench, which **WPC No. 12589/05** **:4 :** was followed in Ext.P14 judgment as well. 6. However, on behalf of the PSC, this contention of the petitioner is contradicted. According to the learned standing counsel, a candidate included in the supplementary list like the petitioner can aspire for advise only to the community quota slots only. It is stated that the petitioner was originally included in the OX category and that on the strength of such inclusion, she is now seeking advise against the Latin Catholic community slots. It is stated that, to get such appointment, there should be unfilled slots earmarked for Latin Catholic community. It is stated that all the slots which were available for Latin Catholic are filled up. The averments to that effect in the affidavit filed by the PSC dated 29[th] of March, 2011 reads thus:- _“4. Further all the L.C turns which arose during the Rank List has been filled up by L.C. candidate itself. Since independent turns are prescribed for each community, the petitioner cannot be advised to the L.C. turn without ousting an L.C. candidate already advised. Hence the prayer of the petitioner to advise him to L.C. turn or that his advise to that of an L.C. candidate cannot be entertainable.”_ On this basis, PSC seeks dismissal of the writ petition. 7. As already seen, although inclusion of the petitioner in **WPC No. 12589/05** **:5 :** the supplementary ranked list was on the basis that she is a candidate belonging to OX category, what is now sought for by the petitioner is appointment in a post reserved for Latin Catholic candidates. Such an appointment can be directed by this Court only if slots reserved for such Latin Catholic candidates are shown to be still remaining vacant. 8. Factually, from the aforesaid affidavit of the PSC, it is seen that no such slots are available. In such a situation, this Court will not be justified in directing that the petitioner who is advised by Ext.P11 should be appointed against the slot reserved for Latin Catholic community candidates. True, the counsel for the petitioner relied on Exts.P13 and P14 judgments. However, Exts.P13 and P14 judgments do not show that it was inspite of non availability of vacancies earmarked to Latin Catholic community, this Court directed the appointment of the petitioners therein. Therefore, in my view, those judgments will not come to the help of the petitioner. 9. Counsel for the petitioner then contended that having advised for appointment, non availability of the slot is not an argument that is available to the PSC. I am unable to agree for **WPC No. 12589/05** **:6 :** the reason that while passing order dated 23/6/2008, in compliance of which petitioner was advised by Ext.P11, this Court did not direct that the advise should be subject to availability of slots earmarked to Latin Catholic candidates. Therefore, as rightly pointed out by the learned counsel for the PSC, advise by Ext.P11 could only be against the OX category, in which category, appointment is no longer claimed by the petitioner and rightly so, in view of the judgment in **Rajan's** case. 10. It was then contended by the learned counsel for the petitioner that the non availability of L.C slot is a matter which is only within the knowledge of the appointing authority and not the PSC. This contention in my view is not available to the petitioner for the reason that, urging the availability of L.C slot, petitioner has not amended the writ petition by incorporating appropriate pleadings to the notice of the Government. In such a case, I cannot also find fault with the Government nor can I reject the plea of the PSC which is contained in its affidavit dated 29[th] of March, 2011. The result of the discussion is that the petition has to fail and the writ petition is dismissed. It is made clear that this ## **WPC No. 12589/05** **:7 :** judgment will not in any manner affect the petitioner's claim for appointment in future, as an LC candidate, if she is otherwise eligible. **ANTONY DOMINIC, JUDGE** Rp