IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 WP(C).No. 28698 of 2008(N) -------------------------- PETITIONER: --------------- NISHADEVI.A.G, AMBALATHUMVILA HOUSE, KUTTICHAL.P.O, THIRUVANANTHAPURAM. BY ADV. MR.A.AHZAR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM. 3. SECRETARY, PUBLIC SERVICE COMMISSION, PATTAM, THIRUVANANTHAPURAM. 4. TAHASILDAR, TALUK OFFICE, NEDUMANGADU. 5. VILLAGE OFFICER, VILLAGE OFFICE, MANOORKARA, KUTTICHAL, THIRUVANANTHAPURAM. ADV. MR. ALEXANDER THOMAS, SC, KPSC GOVERNMENT PLEADER MR. SANTHOSH KUMAR. P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2009, ALONG WITH WPC NO. 28122 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. GIRI, J. ------------------------------- WP(C).NO. 28698 of 2008 --------------------------------- Dated this the 29th day of September, 2008 ORDER OF REFERENCE The petitioner is a Law Graduate and a practicing lawyer. Her father belongs to scheduled caste Cherama community and her mother belongs to scheduled Tribe Mala Arayan community as evidenced by Ext.P1. The petitioner applied for the post of Municipal Secretary Grade III in the Urban Affairs Department which is reserved for Scheduled Tribe. She is required to produce a caste certificate showing that she belongs to ST. According to her, she has been brought up with affinity to the conditions of the Mala Araya community which is her mother's tribe and this has been found in Ext.P6 as well and that all along the petitioner has been given caste status as ST. But a caste certificate on the basis of the mother's caste has not been issued and hence this writ petition. 2. The learned Government Pleader submits that going by the Government orders which are currently prevailing a caste certificate will be issued only on the basis of the caste of the WPC.28698 /2008 2 father and not that of the mother. Learned counsel refers to the decision of the Full Bench of this court in Indira vs. State of Kerala (2005(4)KLT 119). Paragraphs 20 and 21 of the decision read as follows:- “ 20. Children born of inter caste marriage of which either of the parents belongs to scheduled caste/scheduled tribe should have a caste status either that of the mother or that of the father. Article 15(4),16(4) and 164A) 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. WPC.28698 /2008 3 21. The Government, vide order G.O.(Ms) No.25/2005/SCSTDD dated 20.6.2005 directed the competent authorities to issue SC/ST community certificates to the children born out of intercaste married couples as per the caste/community of the father subject to the conditions of acceptance, customary traits and tenets stipulated in Punit Rai's case and Sobha Hymavathi Devi's case. The above government order would also be applicable to the children born out of intercaste married couple if the mother belongs to SC/ST community. Subject to the above direction, rest of the directions contained in G.O.(Ms)No.11/05 and G.O.(Ms) No.25/2005 would stand. “ 3. The learned Government Pleader on the other hand submits that the dictum laid down by the Full Bench has been modified by the Supreme Court in Civil Appeal Nos.1706-1707 of 2008. The judgment reads as follows:- “Heard learned counsel for the parties. Leave granted. It has been stated that, pursuant to interim orders passed by the High Court as well as this court, the appellant has already completed his course and is due to WPC.28698 /2008 4 appear in the final year examination to be held in the month of April, 2008. In view of this, we direct that the appellant shall be permitted to appear in the examination but, in the matter of employment, he shall not be permitted to claim the benefit that he belongs to Mala Arayan Scheduled Tribe. The impugned order is, accordingly, modified.” 4. Going by the dictum laid down by Punit Rai, a person is entitled to a caste certificate on the basis of his father's caste. Though Punit Rai is referred to in Indira, the Full Bench directed that the Government order G.O.(Ms)No.11/2005 and G.O.(Ms) No.25/2005 which admittedly were issued on the basis of the dictum laid down in Punit Rai would be applicable to the children born out of intercaste marriage, if the mother belongs to the SC/ST community, The Full Bench did not consider a case where the father belongs to the scheduled caste community and mother belongs to ST community and the offspring aspire for the benefit of the status of the mother. It is to be noted that the Supreme Court has modified the dictum laid down by Indira by specifically directing that the claimant in the said caste WPC.28698 /2008 5 shall not be entitled to claim employment on the premise that she belongs to the Mala Arayan community. In other words, the direction issued by the Supreme Court might indicate that the person concerned cannot claim the caste status of the mother as such. 5. Since the issue is a common one and is of considerable importance, I am of the view that an authoritative pronouncement of a bench of this court is necessary. In the result, I adjourn this case under section 3 of the High Court Act. The registry shall place the papers before the Honourable the Chief Justice for appropriate orders. V. GIRI, JUDGE. pmn/ WPC.28698 /2008 6