Rejimon P.J. v. State of Kerala, Kerala Public Service Commission, District Officer, Kerala Public Service Commission, Palakkad, and Deputy Director of Education, Palakkad (OP(KAT).No.33 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 29TH DAY OF JANUARY 2014/9TH MAGHA, 1935** ## **OP(KAT).No. 33 of 2014 (Z)** **--------------------------AGAINST THE ORDER/JUDGMENT IN OA.NO.2545/2013 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 18-11-2013** ## **PETITIONER(S)/APPLICANT:** **----------------------------------------------** **REJIMON P.J., AGED 40 YEARS S/O.V.A.JOSEPH, PERUMBAMPILLIL HOUSE KADAPLAMATTOM P.O., KOTTAYAM-686571.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT THIRUVANANTHAPURAM-695001.** **2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY KERALA PUBLIC SERVICE COMMISSION, PATTOM THIRUVANANTHAPURAM-695004.** **3. THE DISTRICT OFFICER,** - **KERALA PUBLIC SERVICE COMMISSION, PALAKKAD-678001.** **4. DEPUTY DIRECTOR OF EDUCATION, PALAKKAD-678001.** **R BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 23-01-2014, THE COURT ON 29-01-2014 DELIVERED THE FOLLOWING:** **OP(KAT).No. 33 of 2014 (Z) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS: -------------------------------------** **EXT.P1: COPY OF THE ORDER DATED 18.11.2013 IN O.A.NO.2545/2013.** **EXT.P2: COPY OF THE MEMORANDUM OF O.A.NO.2545/2013 TOGETHER WITH ANNEXURES.** **ANNEXURE-A1: COPY OF THE RELEVANT PAGES OF THE SSLC BOOK OF THE APPLICANT.** **ANNEXURE-A2: COPY OF THE KERALA GAZETTE DATED 10.3.2009.** **ANNEXURE-A3: COPY OF THE RANKED LIST DATED 7.12.2010.** **ANNEXURE-A4: COPY OF THE ORDER DATED 31.7.2012 IN T.A.NO.2789/2012.** **ANNEXURE-A5: COPY OF THE JUDGMENT DATED 28.11.2012 IN OP(KAT) NO.3773/2012** **ANNEXURE-A6: COPY OF THE ORDER DARED 27.9.2013 IN SLP(CIVIL) FILED BEFORE THE SUPREME COURT.** **ANNEXURE-A7: COPY OF THE NON CREAMY LAYER CERTIFICATE PERTAINING TO THE APPLICANT.** **ANNEXURE-A8: COPY OF THE REPRESENTATION DATED 14.10.2013 FILED BY THE APPLICANT BEFORE THE 2ND RESPONDENT.** **RESPONDENT(S)' EXHIBITS: NIL** **---------------------------------------** **/TRUE COPY/** ## **P.S. TO JUDGE** **C.R.** ## **THOTTATHIL B. RADHAKRISHNAN & A.K.JAYASANKARAN NAMBIAR, JJ.** **------------------------------O.P.(KAT).NO.33 OF 2014 ----------------------------------Dated this the 29[th] day of January, 2014** ## **J U D G M E N T** ## **JAYASANKARAN NAMBIAR,J.** This Original Petition under Article 227 of the Constitution of India is filed challenging the order dated 18.11.2013 of the Kerala Administrative Tribunal (hereinafter referred to as KAT) in O.A.No. 2545/2013. Vide the said order, the KAT dismissed the application filed by the petitioner seeking a direction to the 2[nd] and 3[rd] respondents to include the petitioner in Annexure A3 rank list of candidates for the post of H.S.A (Malayalam) in the General Education Department, Palakkad District or in the alternative to dispose Annexure A8 representation preferred by the petitioner. 2. The brief facts that led to the order dated 18.11.2013 of the KAT are as follows: The petitioner belonged to the Christian Cheramar Community at the time of preferring an application with the State Public Service **O.P.(KAT).NO.33/2014** **2** Commission (hereinafter referred to as PSC) for consideration to the post of H.S.A (Malayalam). His caste status remained so even on the last date prescribed for receipt of applications by the PSC Viz. 18.07.2007. It appears, that thereafter on 09.12.2008, he embraced the Hindu religion and consequently became a member of the Hindu Cheramar community. The Hindu Cheramar Community is conferred a scheduled caste status within the State of Kerala for the purposes of implementing the reservation policy in the matter of appointments to services in the State. As a consequence of the conversion to Hindu religion, when the petitioner was asked to appear for verification of his certificates on 12.05.2010, he could not obtain a non-creamy layer certificate, that was essential to substantiate his claim for consideration as an “Other Christian” candidate. The net result, therefore, was that when the PSC considered his candidature for inclusion in the select list prepared in accordance with the provisions of Rule 14 of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as KS&SSR), his candidature as an “other Christian” candidate could not be accepted for want of the non-creamy layer certificate and his candidature as a scheduled caste candidate could not be considered for want of a claim in that regard **O.P.(KAT).NO.33/2014** **3** in the application submitted by him. The PSC, therefore, vide order dated 26.09.2011, rejected his claim for reservation under both categories and included him under the General category while drawing up the select list. 3. While the petitioner challenged the said order of the PSC through a writ petition before this Court (later converted into an OA and transferred to the KAT), the challenge did not succeed before that forum. A further attempt, through an original petition under Art. 227 of the Constitution of India, before this Court also did not succeed. This Court did, however, grant the petitioner liberty to substantiate his claim for the benefit of reservation as applicable to “other Christian” community by moving the appropriate authorities through a representation as and when he obtained a non-creamy layer certificate. The judgement of this court (produced as Annexure A5 in this original petition) attained finality with the dismissal, by the Supreme Court, of the SLP preferred by the petitioner against the said judgement. The order of the Supreme Court is produced as Annexure A6 in this original petition. **O.P.(KAT).NO.33/2014** **4** 4. It would appear that, acting on the strength of the limited liberty, granted by this Court in Annexure A5 judgement and the Supreme Court in Annexure A6 order, the petitioner approached the PSC with a request to consider his claim for inclusion in the rank list as an “Other Christian” candidate on the strength of the non-creamy layer certificate that he had since obtained. This was through the representation produced as Annexure A8 in this original petition. When nothing was heard from the PSC, the petitioner approached the KAT through O.A.No.2545/2013 which was disposed by the order impugned in this original petition. 5. We have heard Adv. Sri. Kaleeswaram Raj, learned counsel for the petitioner as also Adv. Sri. P.C.Sasidharan, learned standing counsel for the PSC. 6. Sri. Kaleeswram Raj would contend that the order of the KAT in not directing the PSC to consider the claim of the petitioner for inclusion as an “other Christian” candidate on the strength of the non-creamy layer certificate obtained by him is illegal. He points out that the KAT had, while disposing O.A.No.2545/2013, found it **O.P.(KAT).NO.33/2014** **5** unnecessary to direct the PSC to consider this claim of the petitioner since it was of the view that even if the petitioner did succeed in substantiating his status as an “other Christian” candidate as on the last date of submission of application, based on the non-creamy layer certificate obtained by him, it would have been an exercise in futility vis-à-vis his claim for reservation to the post that he was going to join subsequently. This was because, by the date of his appointment, he would have ceased to be a member of that community. According to counsel for the petitioner, the benefit of reservation that the petitioner was entitled to on account of his belonging to the Cheramar community was one that enured to him on account of the backwardness faced by members of that community. The mere fact that he had embraced the Hindu religion subsequently could not deprive the petitioner of the benefit of reservation that had already accrued to him. Counsel for the petitioner further adds that when Article 25 of the Constitution of India confers on all persons the freedom of conscience and free profession, practice and propagation of religion, the conversion from Christianity by embracing Hinduism, could not affect the backwardness that was attached to members of a particular community – in this case Cheramars. It is the further **O.P.(KAT).NO.33/2014** **6** contention of Sri. Kaleeswaram Raj that by virtue of the provisions of Rule 17C of the KS&SSR, read with the judgement of the Supreme Court in **Ashok Kumar Sharma and Others v. Chander Shekhar and Another ((1997) 4 SCC 18)** , once the petitioner had satisfied the criteria for reservation as an “other Christian” candidate as on the last date of application, his subsequent conversion to the Hindu religion, and consequent loss of status as an “other Christian” would have no bearing on his claim for reservation as an “other Christian”. 7. Sri. P.C.Sasidharan, learned Counsel for the PSC, on the other hand, points out that the reservation policy of the State, as implemented through the provisions of the KS&SSR, takes into account the backwardness perceived by members of specifically identified communities and it is for the benefit of the members of those communities that the benefits of reservation would be available. Seen in that light, the petitioner had, by converting his religion, renounced his membership of the Christian Cheramar community and become a member of the Hindu Cheramar community. Since the claim, in the application submitted by him, was for the benefit of reservation as applicable to “other Christians”, the petitioner could **O.P.(KAT).NO.33/2014** **7** not be given the said benefit when he had ceased to be a Christian by embracing Hinduism. His claim for inclusion in the select list under the category of “other Christian” also could not be considered because, notwithstanding the fact that he satisfied the criteria for classification as “other Christian” as on the last date of submission of the application, he would nevertheless not be an “other Christian” on the date of taking up of the appointment. 8. We have considered the submissions of both sides. Considering the nature of the submissions made before us, we feel it apposite to point out that the policy of reservation to posts in the services of the State is one that takes root from the provisions of Articles 15 (4) and 16 (4) of the Constitution of India. The said provisions are, in themselves, exceptions to the fundamental right against discrimination guaranteed under Article 15 (1) of the Constitution and the fundamental right of equality in the matter of public employment guaranteed under Article 16 (1) of the Constitution. The provisions for reservation made by the State have, therefore, to be strictly interpreted so as to ensure that only those persons who have been identified by the State, as entitled to the **O.P.(KAT).NO.33/2014** **8** Constitutional protection, get the benefits of the said provisions. In the instant case, the reservation that is envisaged for “Other Backward Classes” under Rules 14 and 16 of the KS&SSR, takes within its fold “Scheduled Caste Converts to Christianity” as well. Scheduled Castes are separately considered for the purposes of the reservation under these Rules. In our view, when the Rules framed by the State, to implement the policy of reservation, expressly deal with both “Scheduled Castes” and “Scheduled Caste Converts to Christianity”, the benefits enuring to a member of the Cheramar community would vary depending on the religion that he or she has embraced. This is because the identification of social backwardness of any particular community is an exercise that is done by the State, and a specification by the State of any particular community or sub-sect thereof cannot be generalized to include all possible variants thereof. In the instant case, members of the Cheramar community that have embraced the Hindu faith have been classified as Scheduled Castes and those who have embraced the Christian faith have been classified as “Scheduled Caste Converts to Christianity” (sometimes referred to as “other Christians”) for the purposes of reservation. The benefit available to the petitioner will, therefore, have to be that available to **O.P.(KAT).NO.33/2014** **9** one or the other of the categories but not to both. 9. Coming now to the contention of counsel for the petitioner based on Rule 17C of the KS&SSR, we find that the same will not come to the rescue of the petitioner in the instant case. Rule 17C is a provision that enables a candidate staking a claim for reservation to submit documents to substantiate his claim at any stage before the finalization of the ranked list for the post in question. Rule 17C reads as under: [ **17C.** The candidate claiming the benefit of age relaxation/reservation in appointments/special recruitments by virtue of being a member of a Backward Classes/Scheduled Castes/Scheduled Tribes as provided for in sub-rules (c) [(d) and (dd)] of rule 10, rule 14, rule 17A and rule 17B ibid shall produce to the satisfaction of the Kerala Public Service Commission, Certificates/relevant documents as required by them, to prove the claim in the application and in any case, before the finalisation of the ranked list for the post concerned.] No doubt the Rule indicates that the last stage for production of documents to substantiate a claim in the application is the stage just before finalization of the rank list. It may also indicate that a **O.P.(KAT).NO.33/2014** **10** subsequent change in position will not affect the rights that have accrued to a candidate as on that date. It was in this connection that learned counsel for the petitioner placed reliance on the judgement of the Supreme Court in **Ashok Kumar Sharma's case (cited supra).** That was a case where the Supreme Court, in a case which called into question the eligibility of a candidate for recruitment to the post of Junior Engineer in the service of the Jammu & Kashmir State, held that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. The court further held that a person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. Counsel for the petitioner attempted to draw an analogy from the above case and contended that, in the context of Rules 14 and 17C of the KS&SSR, the subsequent embracing of Hindu religion by the petitioner could not affect his status as an “other Christian” on the last date specified in Rule 17C and consequently, his position in the rank list prepared by the PSC would have to be as applicable to “other Christian” notwithstanding his subsequent change of religion. **O.P.(KAT).NO.33/2014** **11** 10. We find ourselves unable to accept the said contention. As already noticed above, Rule 17C is in the nature of an enabling provision. It has to be read in the context of the object sought to be achieved by the said provision together the other provisions in the KS&SSR. Thus read, the Rule simply enables a person seeking the benefit of reservation to submit documents to substantiate his claim, at any stage before the finalization of the rank list. For it to serve this purpose, the claim of the candidate as stated in his application must hold good up to the stage of his appointment which is when the candidate satisfies the object of reservation by representing the community concerned in the services of the State. In the instant case, while Rule 17C might have enabled the petitioner to substantiate his claim for reservation as an “other Christian” had he continued in that status and got appointed to a post as a member of the Christian Cheramar community, his voluntary act of embracing the Hindu religion and thus converting his status to that of a scheduled caste, (Hindu Cheramar) effectively deprived him of a continued status as an “other Christian” candidate for the purposes of staking a claim to a post reserved for such candidates. The petitioner cannot be heard to **O.P.(KAT).NO.33/2014** **12** say that while he had voluntarily converted his status from that of an “other Christian” to that of a Hindu Cheramar, he should continue to get the benefit of the reservation applicable to “other Christians” merely because that was his status as on the last date of submission of application. Such an argument would run foul of the object of the reservation policy envisaged under the Constitution. We see no reason to interfere with the order of the Kerala Administrative Tribunal impugned in this original petition. The OP (KAT) is hence dismissed but without any order as to costs. ## **THOTTATHIL B. RADHAKRISHNAN JUDGE** ## **A.K.JAYASANKARAN NAMBIAR JUDGE** prp