IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 6TH MAY 2008 / 16TH VAISAKHA 1930 WP(C).No. 26183 of 2006(P) --------------------------------- PETITIONER: ------------------- RESHMA C.B., W/O. JAYAKRISHNAN T.V., THAZHATHUVEETTIL, CHOOLUR P.O., REGIONAL ENGINEERING COLLEGE (VIA), KOZHIKODE DISTRICT. BY ADV. SRI.R.RAJESH KORMATH SRI.P.K.SURESH KUMAR(AMICUS CURIAE) SRI.P.B.SURESH KUMAR(AMICUS CURIAE) RESPONDENT(S): ------------------------ 1. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. SECRETARY, KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. ADDL.R3 IMPLEADED: ADDL. R3. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVT.OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. IMPLEADED AS PER ORDER DT. 25/1/2007 ON IA.868/2007. R1 & R2 - ADV. SRI.P.C.SASIDHARAN. ADDL.R3 - BY GOVT.PLEADER SRI.A.J.VARGHESE. AMICUS CURIAE (1) ADV.SRI.P.B.SURESH KUMAR (KOLLAM) (2) ADV.SRI. P.K.SURESH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2007, THE COURT ON 06/05/2008 DELIVERED THE FOLLOWING: ORDER ON IA.924 OF 2007 IN WP(C)26183 OF 2006. ------- CLOSED. 6/5/2008. SD/-A.K.BASHEER,J. APPENDIX EXT.P1: TRUE COPY OF NOTIFICATION DT. 29/6/2004 . EXT.P2: TRUE COPY OF APPLICATION DT. 28/7/2004. EXT.P3: TRUE COPY FO ADMISSION TICKET. EXT.P4: TRUE COPY OF NOTIFICATION DT. 10/4/2006. EXT.P5: TRUE COPY OF COVERING LETTER DT. 22/4/2006. EXT.P6: TRUE COPY OF COMMUNITY CERTIFICATE DT. 5/10/2005. EXT.P7: TRUE COPY OF COMMUNICATION DT. 3/7/2006. EXT.P8: TRUE COPY OF NON CREAMY LAYER CERTIFICATE DT. 6/7/2006. EXT.P9: TRUE COPY FO COMMUNICATION DT. 4/8/2006. EXT.P10: TRUE COPY OF RELEVANT PAGE OF SSLC BOOK. EXT.P11: TRUE COPY OF RESIDENCE CERTIFICATE DT. 9/8/2006. EXT.P12: TRUE COPY OF ECLARATION LETTER DT. 10/8/2006. EXT.P13: TRUE COPY OF COMMUNICATIOND T. 2/9/2006. EXT.P14: TRUE COPY FO RECEITP DT. 12/9/2006. EXT.P15: TRUE COPY OF NATIVITY CERTIFICATE DT. 15./9/2006. EXT.P16: TRUE COPY OF RECEIPT DT. 15/9/2006 EXT.P17: TRUE COPY OF VISITORS PASS DT.7/10/2006. A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P (C) No. 26183 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of May, 2008. Judgment What are the essential requisites or qualifications to be treated as a native of Kerala? Will the child of native parents of Kerala State become disentitled to be recognised as a native of Kerala, if he/she had been born, brought up and educated outside Kerala? 2. These are the two primary questions that have cropped up for consideration in this writ petition. 3. Relevant facts, shorn of unnecessary details, may be briefly noticed. 4. Petitioner who is a Post Graduate in Computer Application had submitted Ext.P2 application for selection to the post of Higher Secondary School Teacher in Computer Science/Computer Application, in response to Ext.P1 notification issued by the Kerala Public Service Commission. Petitioner passed the written test conducted by the Commission and she was included in the supplementary list under the Head “Ezhava”. The Village Officer, Poolakode had issued Ext.P6 community certificate certifying that petitioner belonged to Hindu Thiyya community. In response to Ext.P7 communication received from the Commission, petitioner had produced Ext.P8 certificate issued by the Village Officer, Poolakode certifying that the Hindu Thiyya community, to which the petitioner belonged, had been designated as a backward class in the State of Kerala. Petitioner had also produced Ext.P15 nativity WP(C)26183/2006 2 certificate issued by the Additional Tahsildar, Kozhikode certifying that petitioner is a native of Kerala. 5. But the Commission took the view that petitioner was not eligible to be invited for interview since she was not a native of Kerala. In Ext.P13 communication issued by the Commission, petitioner was informed that she would not be entitled to get the benefit of caste reservation since she was not a permanent resident of Kerala. 6. Petitioner prays for issue of a writ of certiorari to quash Ext.P13 communication issued by the Commission. She further prays for issue of a writ of mandamus or such other appropriate writ, order or direction commanding the respondents to include her under the category “Other Backward Class”, in order to be considered for selection to the post of Higher Secondary school Teacher in Computer Science/Computer Application. 7. Sri.Rajesh R Kormath, learned counsel for the petitioner contends that the stand taken by the Commission is totally illegal, arbitrary and untenable. He points out that the Commission had not disputed the fact that petitioner's parents are natives of Kerala, who hail from Malappuram village of Malappuram district. The mere fact that petitioner's parents had shifted their residence to the neighbouring State of Tamil Nadu did not mean that they lost their nativity in Kerala. Similarly petitioner cannot be held to be a “non-native” of Kerala for the reason that she was born and brought up in Tamil Nadu WP(C)26183/2006 3 as a consequence of the shifting of residence of her parents to Tamil Nadu in connection with their employment. 8. Per contra, it is contended by the learned Standing Counsel for the Commission that petitioner cannot claim to be a native of Kerala, as she was not, admittedly, born or brought up in Kerala. She had had her entire education in Tamil Nadu. In Ext.P2 application submitted by the petitioner in response to Ext.P1 notification, she had shown her permanent residential address at Peelamedu in Coimbatore. Petitioner would be entitled to get the benefit of caste reservation under the category of Ezhava, only if she is a native and permanent resident of Kerala. It is pointed out by the learned Standing Counsel that Ezhava community is a caste found exclusively in Kerala and therefore a native and permanent resident of Tamil Nadu cannot aspire to get the benefit of caste reservation earmarked for Ezhavas in the State of Kerala. 9. In Indra Sawhney v. Union of India (1992 Supp. 3 SCC 217), His Lordship Justice Jeevan Reddy, while considering the meaning and the connotation of terminologies like class, community, caste etc. had referred to various earlier pronouncements of the Apex Court. The following observations made by D.A.Desai, J. in K.C.Vasanth Kumar v. State of Karnataka ( 1985 Supp SCC 714) were noticed by his Lordship: “What then is a caste? Though caste has been discussed by scholars and jurists, WP(C)26183/2006 4 no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo Hierarchicus is expected to be the central and substantive element of the caste-system which differentiates it from other social systems. The concept of purity and impurity conceptualises the caste system ....There are four essential features of the caste-system which maintained its homo hierarchicus character: (1) hierarchy; (2) commensality; (3) restrictions on marriage; and (4) hereditary occupation. Most of the castes are endogamous groups. Inter-marriage between two groups is impermissible. But “Pratilom” marriages are not wholly known”. The following observations in Indra Sawhney are also apposite: “ Thus it is amply clear that a caste is nothing but a social class—a socially homogeneous class. It is also an occupational grouping, with this difference WP(C)26183/2006 5 that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogeneous class. Endogamy is its main characteristic. Its social status and standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural India, occupation-caste nexus is true even today. A few members may have gone to cities or even abroad but when they return—they do barring a few exceptions—they got into the same fold again. It doen't matter if he has earned money. He may not follow that particular occupation. Still, the label remains. His identity is not changed. For the purposes of marriage, death and all other social functions, it is his social class—the caste— that is relevant. It is a matter of common knowledge that an overwhelming majority WP(C)26183/2006 6 of doctors, engineers and other highly qualified people who go abroad for higher studies or employment, return to India and marry a girl from their own caste. Even those who are settled abroad come to India in search of brides and bridegrooms for their sons and daughters from among their own caste or community. As observed by Dr.Ambedkar, a caste is an enclosed class and it was mainly these classes the Constituent Assembly had in mind— though not exclusively—while enacting Article 16(4)...” 10. The following decisions have been cited before me by learned counsel for the parties and M/s. P.B.Suresh Kumar and P.K.Suresh Kumar who were requested to assist the court as amicus curiae in the case. Their assistance has been quite meaningful and extremely helpful. P. Rajendran v. State of Madras (AIR 1968 SC 1012), Yogesh Bhardwaj v. State of U.P. ((1990) 3 SCC 355, Marri Chandra v. Dean, S.G.S. Medical College ((1990)3 SCC 130, Action Committee v. Union of India (1994) 5 SCC 244. Learned Standing Counsel for the Commission has invited my attention to an unreported decision in P.G. Jigeesh v. Kerala Public Service Commission in WP(C)26183/2006 7 O.P.No.27367/2000. 11. Though the decisions mentioned above have dealt with various questions relating to caste reservation, residential qualification of candidates seeking admission to educational institutions in other States etc, I do not deem it necessary to deal with them in this case. 12. It can not be disputed that the caste Ezhava/Thiyya is, as Venkataramiah, J. put it, in Vasanth Kumar (supra), a “horizontal segment or division of society or an association of families” exclusively found in Kerala. To put it differently, Ezhava community is not recognised as a backward class or community in Tamil Nadu for the purpose of job reservation or such other benefits. Similarly a backward caste or community exclusively found in Tamil Nadu stands on the same footing in Kerala. Therefore obviously a native of Tamil Nadu may not be entitled to claim the benefit of reservation earmarked for Ezhavas in the State of Kerala. 13. But the short question is: Can the nativity or caste status of the parents of a candidate have no relevance or bearing while deciding his/her nativity in the matter of reservation? 14. “ Native” has been defined in Black's Law Dictionary (6th edition) as hereunder: “A natural-born subject or citizen, a citizen by birth; one who owes his domicile or citizenship to the fact of his birth within the country WP(C)26183/2006 8 referred to. The term may also include one born abroad, if his parents were then citizens of the country, and not permanently residing in foreign parts. Apparently the above definition envisages a wider spectrum of nativity or citizenship based on international demographies. But still the latter part of the definition will clearly indicate that a citizen, even if born abroad, will retain his nativity of the country of his parents if they are not permanently residing abroad. 15. In this case we are concerned with a much narrower concept of nativity, and that too in the small State of Kerala. As noticed already, it is the admitted position that petitioner's parents hail from Kerala. Ext.P11, P12 and P15 certificates show that she has been a resident of Poolakode village in Kozhikode district for the last two years. In Ext.P15 nativity certificate it has been stated that petitioner is a native of Kerala. Obviously it is a case of “Return of the Native”. Petitioner and her parents have come back in search of their “roots”. 16. It is the specific case of the petitioner that she and her parents hail from Malappuram village in Kerala and that they have been residing in Poolakode village in Kozhikode district now. While conceding that she was born and brought up in Coimbatore, petitioner contends that she has not lost her “nativity of Kerala”. It has to be noticed that a person who is born to parents belonging to a particular WP(C)26183/2006 9 religion, community or caste does not cease to belong to that religion, community or caste unless he/she decides otherwise and converts to another religion. It is also beyond controversy that a person cannot change his caste through any known custom, procedure or means, though he may be able to convert from one religion to another. Therefore, if petitioner's parents admittedly belong to Ezhava community, it cannot be said that she would have lost her caste status for the mere reason that she was born in Tamil Nadu or some other State in the country. So long as petitioner's parents belong to Ezhava community, she cannot be denied her caste status. 17. It is contended on behalf of the Commission that residence of a particular person for a short period in a village in Kerala will not confer the status of “native” on him. He will become eligible to be treated and recognised as a native of Kerala only if he had been born in Kerala. But I am unable to accept the above contention not only for the aforesaid reasons, but also in view of an order issued by the Revenue Department, Govt. of Kerala in G.O (Ms).205/63/RD dated February 26, 1983. In my view, this order will settle the issue involved in this case for all practical purposes. 18. In the above order, the Government had issued the following guidelines in the matter of issuance of nativity certificate. i) Where father and mother are born natives of Kerala, nativity certificate will be issued to them as well as to their children. WP(C)26183/2006 10 (ii) Where father or mother is a native of another State and on marriage they are permanently residing in Kerala, nativity certificate will be issued to their children. (iii) In other cases, only residential certificates will be issued. (emphasis supplied) In my view, clause (1) quoted above will make the petitioner eligible to be treated as a native. In view of the above order issued by the Government, a copy of which is marked in the case as Ext.X1, I am satisfied that petitioner is entitled to succeed in the writ petition. 19. It is held that “born natives” of Kerala shall be treated and recognised as natives of Kerala irrespective of the fact that they had shifted their residence or migrated to another State for the purpose of employment or for other reasons. Transfer of residence from the “native” State to another within the national territories will not ipso facto disqualify the born natives to claim the status of native of the State to which they belong by birth and descent. Similarly the children of such “born natives”, even if they are born and brought up and had had their education outside the native State, shall also be eligible and entitled to be treated as “natives” of the parent State. The only requisite is that the parents of the claimant shall be “born natives”. The questions posed in the judgment are answered accordingly. 20. Therefore Ext.P13 is quashed. The Commission is directed to consider the petitioner for selection, if she is not otherwise WP(C)26183/2006 11 ineligible. Petitioner shall be given appropriate ranking in the list on the basis of the marks obtained by her in the written examination as well as in the interview and also giving the benefit of communal reservation, if any, available to her. Writ Petition is disposed of in the above terms. A.K. Basheer Judge. an.