IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 WP(C).No. 6316 of 2008(B) -------------------------------------- PETITIONER(S): ------------------------ BEENA.S, PRIJU HOUSE, MARUTHOOR MELANCODE, VATTAPPARA P.O., THIRUVANANTHAPURAM PIN 695 028. BY ADV. MR.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): ------------------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. TAHSILDAR, NEDUMANGAD. ADV. MR.ALEXANDER THOMAS,SC,KPSC FOR R1 BY SP. GOVT. PLEADER MR.SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2009, ALONG WITH WPC NO. 18912 OF 2008 THE COURT 01/07/2009 DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6316/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTIFICATION DT. 14.11.05, PUBLISHED BY THE PUBLIC SERVICE COMMISSION INVITING APPLICATION TO THE POST OF HIGHER SECONDARY SCHOOL TEACHER. P2:- COPY OF THE NOTIFICATION NO.S/L.18/2007/ERVIA/1893/06/EW DT. 10.4.07. P3:- COPY OF THE MEMO NO.GRII A (1) 46937/05/GW DT. 31.5.07 ISSUED BY THE IST RESPONDENT. P4:- COPY OF THE RELEVANT PAGE OF THE S.S.L.C. BOOK OF THE PETITIONER WHEREIN HER RELIGION AND CASTE IS RECORDED AS HINDU CHERAMAR AND THAT FURTHER HER MOTHER AS GUARDIAN. P5:- COPY OF THE COMMUNITY CERTIFICATE NO.B2/10349/05 DT. 30.6.05, ISSUED BY THE TAHSILDAR AND EXECUTIVE MAGISTRATE, NEDUMANGAD. P6:- COPY OF THE CERTIFICATE DT. 3.7.06 ISSUED BY THE GENERAL SECRTARY, KERALA HINDU MISSION. P7:- COPY OF THE NOTIFICATION DT. 12.9.06. P8:- COPY OF THE LETTER NO.GRII A(1) 46937/05/GW /545-294 DT. 18.12.06 OF THE IST RESPONDENT. P9:- COPY OF THE CERTIFICATE NO.B2-18670/2006 DT. 23.12.06 ISSUED BY THE TAHSILDAR, NEDUMANGAD. P10:- COPY OF THE CERTIFICATE DT. 28.5.07 ISSUED BY THE TAHSILDAR, NEDUMANGAD. P11:- COPY OF THE RANKED LIST NO.147/07/SSIV , FOR THE POST OF HIGHER SECONDARY SCHOOL TEACHER MALAYALAM. P12:- COPY OF THE LETTER NO.IDS/1(3) 3968/07/GN DT. 4.10.07 OF THE STATE PUBLIC INFORMATION OFFICER, ATTACHED TO THE OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION. P13:- COPY OF THE LETTER NO.A3/69757/07 DT. 12.11.07 REQUESTED THE IST RESPONDENT. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.6316/2008-B & 18912/2008-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2009. JUDGMENT The petitioner in both the writ petitions is the same. She is seeking inclusion of her name in the rank lists prepared by the Public Service Commission for appointment as HSST (Malayalam) and HSST Malayalam (Junior) by giving her the benefit available to Scheduled Castes. 2. Going by Ext.P12 produced in Writ Petition No.6316/2008, the Public Service Commission has taken a stand that in respect of children of inter caste married couple, the benefit available is that of the community of the father and as the petitioner does not appear to be a member of Hindu Cheramar community, the benefit cannot be granted to her. 3. The petitioner is borne in the wedlock of one Alby Joseph and Sreemathy B. The case of the petitioner is that her father who was a Christian Cheramar, had deserted her mother 29 years back. The petitioner and other children were brought up by the mother in accordance with her caste, namely, Cheramar Hindu. Therefore, they are brought up as members of Scheduled Caste Community and were being subjected to the same wpc 6316 & 18912/2008 2 disabilities and were following the customs and traditions of the said community. 4. Ext.P1 produced in both the writ petitions is the notification inviting applications for the respective posts. The post of HSST Malayalam is category No.176/2005 and the post of HSST Malayalam (Junior) is category No.199/2005. In the application, she claimed that she belongs to Scheduled Caste community. The petitioner was included in the short list published by the Commission, viz. in the supplementary list for Scheduled Castes, her register numbers being 294 and 286 respectively. She was then invited for an interview. In the school register her community had been recorded as Hindu Cheramar which is evidenced by Ext.P4, the relevant page of the SSLC Book. Ext.P5 is the copy of the community certificate issued by the Tahsildar certifying that she belongs to Hindu Cheramar Caste. The name of the mother is also shown in the certificate. It appears that in her anxiety she accepted some wrong advice by the Village Officer that she should undertake reconversion through Kerala Hindu Mission, as her father belongs to Cheramar Christian. Accordingly, she underwent the said conversion ceremony. Ext.P6 is the certificate issued by the Kerala Hindu Mission in that regard. The same was published in the wpc 6316 & 18912/2008 3 Kerala Gazette dated 12.1.2006, going by Ext.P7. Ext.P8 is the communication issued by the Commission to produce the community certificate and Ext.P9 is the certificate issued by the Tahsildar showing that she belongs to Cheramar Hindu community. Ext.P10 is the further certificate issued by the Tahsildar showing that the petitioner who is a member of Cheramar Christian Community, has embrased Hinduism through the Kerala Hindu Mission and that the change has already been published in the Kerala Gazette. 5. The petitioner produced all the above documents before the Commission. It is only thereafter she knew that going by the well established procedures, such reconversion was not necessary, as she rightly belongs to Scheduled Caste community going by the fact that her mother is a Scheduled Caste and the father has already deserted. But in the meanwhile, her name was not included. Again, she took up the matter with the second respondent,viz. the District Collector. After due enquiry, a detailed report has been submitted to the Commission by the District Collector which is produced as Ext.P13 in Writ Petition No.6316/2008 and Ext.P12 in the other writ petition. Ext.P13 shows that her father who was a believer of Christian, had deserted her family and that the petitioner and her wpc 6316 & 18912/2008 4 family had been living in accordance with the customary rites of Hindu community. Since no further action was taken, she approached this court by filing these writ petitions. 6. Heard learned counsel for the petitioner, learned Special Govt. Pleader and learned Standing Counsel appearing for the Public Service Commission. By relying upon the Full Bench decision of this court in Indira v. State of Kerala (2005 (4) KLT 119), learned counsel for the petitioner submitted that the petitioner is a member of Scheduled Caste Hindu Cheramar and the said caste status cannot be denied. The stand taken by the Public Service Commission in their counter affidavit is that initially the petitioner submitted a community certificate showing her caste as Hindu Cheramar, but it was issued in her mother’s name. It is further contended that the certificate issued by the Kerala Hindu Mission will show that she had underwent a conversion ceremony. It is therefore submitted that in these circumstances, the certificates were not accepted. 7. The issue raised is squarely covered by a Full Bench decision of this court in Indira's case (2005 (4) KLT 119). The Full Bench examined the cases where either the father or the mother may not belong to Scheduled Caste community. After examining the matter in detail, the Full Bench held wpc 6316 & 18912/2008 5 thus in para 19. “19. Therefore, if father belongs to scheduled caste/scheduled tribe the child may inherit his caste from his father by operation of personal law. Even then, in order to get the benefit of Art.15 (4), 16(4) or 16(4A) read with Articles 341 and 342 of the Constitution, the person has to further establish that he still uses the caste of his father subject to same disabilities, disadvantages, sufferings etc. of that caste or tribe. Unless and until the person establishes those factors the mere fact that by virtue of the personal law he has inherited his caste status from his father or mother, as the case may be, by itself would not be sufficient to show that he is still subject to the same disadvantages. Even if father belongs to scheduled caste/scheduled tribe, child could be brought up in the company of the mother who belongs to forward caste without subjecting him to any sufferings, disadvantages, incapacity or ignonimity which would normally be suffered by the members of scheduled caste/scheduled tribe and vice versa, like mother belongs to scheduled caste and father belongs to non scheduled caste and the child is brought up by the father and would not be subjected to the disadvantages and sufferings as if he is a member of scheduled caste/scheduled tribe.” It was further held in para 20 as follows: “20. Children born of inter caste marriage of which either of the parents belongs to scheduled caste/scheduled tribe should have a wpc 6316 & 18912/2008 6 caste status either that of the mother or that of the father. Articles 15(4), 16(4) and 16(4A) are intended to remove all handicaps and disadvantages suffered by members of scheduled caste/scheduled tribes. Suppose a neglected or deserted SC/ST woman brings up her child, with the same handicaps, suffering, disadvantages, attached to that caste/tribe, whose father belong to non SC/ST, it is too harsh to deny the benefit to that child on the mere reason that the child's father belongs to non scheduled caste/scheduled tribe caste. Person who claims the status of scheduled caste/scheduled tribe of his/her father or mother has to establish that on his/her birth, he/she is subjected to same social disabilities and also following the same customs and traditions and the community has accepted that person to its fold.” As regards the procedure under the Govt. Order dated 20.6.2005 relating to issuance of SC/ST certificate, it was held that the said Govt. Order would also be applicable to children borne in the wedlock of inter-caste married couple, if the mother belongs to SC/ST. 8. In the light of the above, the circumstances of the petitioner have to be examined. It is clear from the pleadings and from Ext.P13 report of the District Collector that the father of the petitioner had deserted the petitioner and her mother 29 years back. The petitioner and her family are living as per the traditions of Hindu rites. Reliance is placed on a letter wpc 6316 & 18912/2008 7 dated 7.1.2006 of the Vigilance Officer of KIRTADS which specifies that when the father had deserted the family and the child is borne under the protection of the mother, the caste certificate to be issued is that of the mother. Accordingly, the District Collector has stated that the same applies to the petitioner also. 9. In that view of the matter, the test laid down in paragaphs 19 and 20 of Indira’s case (2005 (4) KLT 119) are satisfied in the case of the petitioner. The Full Bench was of the view that “suppose a neglected or deserted SC/ST woman brings up her child, with the same handicaps, suffering, disadvantages, attached to that caste/tribe, whose father belong to non SC/ST, it is too harsh to deny the benefit to that child on the mere reason that the child's father belongs to non scheduled caste/scheduled tribe caste.” Even though the burden is on the person to establish the same, the petitioner has clearly established it by producing relevant documents including Ext.P13. 10. Since the Full Bench further held that G.O. (Ms) 25/2005/SC/STDD dated 20.6.2005 would also be applicable to children borne out of intercaste couple if the mother belongs to SC/ST community, the community certificate issued in her favour, even as originally, viz. wpc 6316 & 18912/2008 8 Ext.P5 is valid. Going by the SSLC certificate as well as Exts.P9 and P10 it is clear that the petitioner belongs to Cheramar Hindu community. Therefore, she is entitled for the benefit applicable to Scheduled Caste community. 11. In that view of the matter, the writ petitions are allowed. Ext.P12 in W.P.(C) No.6316/2008 and Ext.P11 in W.P.(C) No.18912/2008 are quashed. The first respondent is hereby directed to include the name of the petitioner in the rank lists for HSST Malayalam and HSST Junior in the appropriate place treating her as a member of Scheduled Caste community after accepting the community certificate and accordingly advise her in accordance with her turn. It is made clear that the same will be without prejudice to the rights of any of the candidates who have been advised already. Appropriate action will be taken within a period of one month from the date of receipt of a copy of this judgment. (T.R. Ramachandran Nair, Judge.) kav/