IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 WA.No. 1043 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.6288/2007 Dated 20/02/2009 .................... APPELLANT(S): R-1 IN WP:- ------------------------- SECRETARY, KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC RESPONDENT(S): PETITIONER AND R-2 TO 4 IN WP:- ---------------------------------------------- 1. SAJU DAVID, MARY VILASAM, KODUVILA P.O., EAST KALLADA, KOLLAM. 2. SECRETARY, DEPARTMENT OF LOCAL GOVT., GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR, DIRECTORATE OF URBAN AFFAIRS, THIRUVANANTHAPURAM. 4. TAHSILDAR, TALUK OFFICE, KOLLAM. ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE FOR R1 SRI.C.R.SIVAKUMAR FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. ````````````````````````````````````````````````````````````` W.A. No. 1043 of 2009 ````````````````````````````````````````````````````````````` Dated this the 25th day of May, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Antony Dominic, J. The Kerala Public Service Commission is the appellant in this case. 2. The facts which led the first respondent herein to file the writ petition are that, the Public Service Commission invited applications for the post of Municipal Secretary Grade-III covered by the Municipal Common Service Rules. Claiming himself eligible for the benefit of reservation as an 'Other Christian' (OX), first respondent submitted an application for the aforesaid post, producing necessary caste certificate. After the selection process, the appellant published the ranked list on 31.12.2004, in which the first respondent was assigned rank No.1 among the category W.A. No.1043/2009 : 2 : 'Other Christian'. 3. Subsequently, the first respondent was called upon to produce non-creamy layer certificate before the PSC. When the Tahsildar declined to issue the certificate, the first respondent approached this Court and filed O.P. No.33334/2000, impleading the PSC and Tahsildar as the respondents. That original petition was disposed of by Ext.P4 judgment, which reads as under:- “ The prayer in the original petition is for issuance of a certificate showing that petitioner does not belong to the creamy layer. It is submitted that the certificate is urgently required. Consequently, there will be a direction to the second respondent to issue such a certificate within a period of seven days from today so as to facilitate the petitioner to produce it before appropriate authorities. In case the certificate is found to be improper or received by suppressing any material facts in any subsequent enquiry, the benefits that might have enured W.A. No.1043/2009 : 3 : to the petitioner on the strength of the certificate will be liable to be reviewed and cancelled.” 4. Though the PSC was the first respondent in that original petition, neither the PSC nor the Tahsildar, who was the second respondent, challenged the judgment and thus, the judgment has attained finality. In pursuance to the directions in the judgment, the Tahsildar, the competent authority to issue the non-creamy layer certificate, issued Ext.P3 certificate in the prescribed form, which reads as under:- “ The following certificate is issued based on the directions contained in the Judgment dated 28.11.2000 in OP No.33334/2000-R of the Hon.High Court of Kerala. This is to certify that Shri.Saju D., S/o.T.P.David, Mary Vilasom, Sinkarapally, Koduvila P.O. of Village East Kallada, District Kollam in the State of Kerala belongs to Xian-Latin Parava Convert Community, which is designated as a W.A. No.1043/2009 : 4 : backward class in the State of Kerala. 2. This is also to certify that the above Shri.Saju D. does not belong to the category of “Creamy Layer” in the light of the guidelines issued in G.O.(P) 36/2000/SC/ST DD dated 27-5-2000 and the scheduled prescribed thereunder to identify the “Creamy Layer” among the designated “Other Backward Classes” in the State of Kerala. The above certificate is issued subject to the observations of Hon.High Court of Kerala in the Judgment mentioned in the first para “that in case the certificate is found to be improper or received by suppressing any material facts in any subsequent enquiry, the benefits that might have enured to the petitioner on the strength of the certificate will be liable to be reviewed and cancelled.” 5. Thereupon, the first respondent produced Ext.P3 certificate before the PSC. In spite of having produced the W.A. No.1043/2009 : 5 : certificate, PSC issued Ext.P5 communication dated 13.02.2007, requiring the first respondent to produce a fresh certificate. Ext.P5 communication reads as under:- “ You were included provisionally as Rank No.1 in the supplementary list of OX under category-I of the ranked list for the post of Municipal Secretary Grade-III in the Municipalities department published w.e.f. 31.12.2004. As you had produced provisional non-creamy layer certificate obtained as per the direction of Hon'ble High Court in the judgment in OP No.33334/2000 dated 28.11.2000. You are therefore directed to produce a copy of fresh NCLC (unconditional) with original for verification within 10 days from the date of receipt of this letter, failing which your name will be deleted from the Ranked List for the post of Municipal Secretary Grade-III in Municipalities department” 6. In the meantime, the first respondent came to know that several candidates were advised from the ranked W.A. No.1043/2009 : 6 : list overlooking his ranking and that made him to file the writ petition seeking to quash Ext.P5 and to direct the PSC to act upon Ext.P3 certificate as an unconditional one and issue advice memo in the post of Municipal Secretary Grade-III. 7. The writ petition was heard and was allowed, directing the appellant to consider the name of the petitioner for advice subject to his turn and that steps in that behalf were ordered to be finalised as expeditiously as possible, at any rate, within a period of three months. However, the learned Single Judge reserved the right of the PSC or the competent authority, in the following terms:- “ In case, the certificate is found to be improper or received by suppressing any material facts in any subsequent enquiry, the benefits that might have enured to the petitioner on the strength of the certificate will be liable to be reviewed and cancelled.” 8. It is aggrieved by the aforesaid judgment of the W.A. No.1043/2009 : 7 : learned Single Judge, this appeal has been filed by the PSC. Counsel for the appellant raised two contentions. First contention raised by the counsel for the PSC is that Ext.P3 is only a provisional certificate issued in pursuance to Ext.P4 judgment and that, therefore, the certificate cannot be acted upon. We do not find any merit in this contention. 9. A reading of Ext.P4 judgment, pursuant to which Ext.P3 certificate was issued, shows that the certificate was liable to be reviewed and cancelled, if it was found to be improper or obtained suppressing any material facts. This observation has been reiterated in Ext.P3 certificate also. As we have already stated, though the PSC and the Tahsildar were parties to Ext.P4 judgment, none have gone in appeal against the judgment and the judgment has attained finality. That apart, neither the PSC nor the Tahsildar have initiated any enquiry in the matter nor has any authority found any impropriety with the certificate issued. Thus, as on date, the certificate remains valid. W.A. No.1043/2009 : 8 : Therefore, by no stretch of imagination, can such a certificate be treated as a provisional one as sought to be made out by the PSC. Therefore, we hold that so long as Ext.P3 certificate remains valid, it is liable to be acted upon and that, benefits thereof are liable to be extended to the first respondent. 10. It is then contended by the learned counsel for the appellant that, in the area from which the first respondent hails, there is no Parava Convert to Christianity eligible to claim the benefit of reservation available to 'Other Christian' as provided in the Rules of reservation. This contention is sought to be sustained by relying on the findings of this Court in the judgment in Rajan Vs. State of Kerala [2007 (1) KLT 730]. At the outset, we should state that in Ext.P5 challenged in the writ petition, caste status of the first respondent was not disputed by the appellant and that, it is in spite of that this contention is urged before this Court. In any case, we shall deal with this contention also. W.A. No.1043/2009 : 9 : 11. Though there are certain general observations in the aforesaid judgment, admittedly, this is a case where the first respondent has produced a caste certificate, certifying his caste status as a Parava Converted Latin Catholic eligible for the benefit of reservation available to 'Other Christians'. This certificate has been issued by the competent authority and has not been cancelled so far and PSC has no case otherwise. Therefore, so long as the certificate and the caste status of the first respondent remains undisturbed, he is entitled to the benefit of the reservation. If at all, the authorities have a case that the first respondent does not belong to the category of 'Other Christian', it is for the authorities to conduct necessary enquiry in accordance with law and with notice to the first respondent and invalidate the certificate, which has not been done. In such a case, the benefit of reservation now available to the first respondent, cannot be denied to him, relying on the findings of this Court in the judgment referred W.A. No.1043/2009 : 10 : to above to which the first respondent is not a party. Therefore, we reject the second contention raised by the learned counsel for the appellant. In the result, we do not find any merit in the writ appeal and the writ appeal will stand dismissed. Sd/- (J.CHELAMESWAR, CHIEF JUSTICE) Sd/- (ANTONY DOMINIC, JUDGE) aks/26.05 // True Copy // P.A. To Judge