IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 28470 of 2008(L) -------------------------------------- PETITIONER: ------------------- G. RAJENDERA KUMAR, S/O. GAMALIEL, AGED 48 YEARS, DRIVER GRADE-II, KSRTC, NEDUMANGAD AND RESIDING AT S.P. COTTAGE, MANALAYAM, ELAVATTOM.P.O, KUMPUZHA, THIRUVANANTHAPURAM. BY ADV. SRI.N.UNNIKRISHNAN. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, TRANSPORT (A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM, REP. BY CHAIRMAN AND MANAGING DIRECTOR. 3. THE KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 4. THE ASSISTANT TRANSPORT OFFICER, K.S.R.T.C, NEDUMANGAD. R2 & R4 BY SRI.V.V.NANDAGOPAL NAMBIAR, S.C, K.S.R.T.C, R3 BY SRI.ALEXANDER THOMAS, S.C,K.P.S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON 28/07/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.28470/2008-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER NO.CR1A (1) 208/91/CW DTD. 23/10/1999 ISSUED BY R.3. EXT.P.2: COPY OF THE CASTE CERTIFICATE NO. 48/89 DTD. 25/02/1989 ISSUED BY THE VILLAGE OFFICER, KURUPUZHA VILLAGE. EXT.P.3: COPY OF THE CASTE CERTIFICATE NO. 499/99 DTD. 29/10/1999 ISSUED BY VILLAGE OFFICER, KURUPUZHA. EXT.P.4: COPY OF THE CREAMY LAYER CERTIFICATE NO. 12293/00 DTD. 22/05/2000 ISSUED BY THAHSILDAR, NEDUMANGAD. EXT.P.5: COPY OF THE ADVICE MEMO NO. R1 B(2) – 13160/2000/GV/277 DTD. 22/06/2000. EXT.P.6: COPY OF THE MEMORANDUM NO. E2/2232/2001/PKDA DTD. 20/07/2001 ISSUED BY THE DISTRICT TRANSPORT OFFICER, PEROORKADA. EXT.P.7: COPY OF THE MEMORANDUM NO. PL.18/33621/05 DTD. 08/07/2008 AND GRADATION LIST OF DRIVERS AS ON 01/01/2008. EXT.P.8: COPY OF THE LETTER DTD. 24/09/2007 SENT BY THE PETITIONER TO THE R.3. COMMISSION. EXT.P.9: COPY OF THE RANK LIST RECEIVED THROUGH LETTER NO. PAO 389/08 DTD. 19/08/08. EXT.P.10: COPY OF THE ADVICE SENIORITY LIST. EXT.P.11: COPY OF THE LETTER DTD. 20/11/2007 SENT BY THE PETITIONER TO THE CHAIRMAN, KPSC. EXT.P.12: COPY OF THE LETTER NO. RIB (2) 26987/07/GW DTD. 29/07/2008. EXT.P.13: COPY OF THE ORDER DTD. 25/09/2008 IN W.P.(C). NO. 28470/2008(L). EXT.P.14: COPY OF THE LETTER DTD. 26/09/2008 SENT BY COUNSEL FOR THE PETITIONER TO THE RESPONDENTS. EXT.P.15: COPY OF THE FINAL GRADATION LIST AS ON 01/01/2008. EXT.P.16: COPY OF THE MEMORANDUM NO. PL13/017486/08 DTD. 06/01/2010. EXT.P.17: COPY OF THE LETTER NO. A16-34691/98 DTD. 10/05/1999. EXT.P.18: COPY OF THE LETTER NO. 212/S/E2/94/SC/ST-DD DTD. 30/09/1995. EXT.P.19: COPY OF THE MARRIAGE CERTIFICATE DTD. 18/06/2010. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 28470 of 2008-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July, 2010. JUDGMENT The petitioner herein is working as Driver Grade II in the Kerala State Road Transport Corporation. The challenge is against Exts.P6, P9, P10 and P12 fixing the petitioner's rank and seniority in the cadre. 2. The petitioner's averments in a nutshell, are the following: The Public Service Commission invited applications for the post of Reserve Driver and he appeared for the physical fitness examination and examination of certificates on 30.10.1999. He was directed to produce original certificate of caste, as per Ext.P1 letter by the Public Service Commission, viz. Nadar Latin Catholic Christian. 3. Ext.P2 is the caste certificate dated 25. 2.1989 issued by the Village Officer, Kuruppuzha and Ext.P3 is a further certificate issued by the same officer on 29.10.1999. Ext.P4 is the true copy of the Non-Creamy Layer certificate produced by him. On the basis of these certificates, it is submitted that the petitioner is liable to be treated as a person belonging to Latin Catholic community. Ext.P5 is the true copy of the advice memo dated 22.6.2000 wherein his rank is shown as 277. He was regularised as wpc 28470/20 2 per Ext.P6. 4. The gradation list was published by the Corporation as per Ext.P7 dated 1.1.2008, wherein he is shown as serial No.959. The petitioner requested the third respondent Commission for giving the benefit as Latin Catholic Christian as per Ext.P8. Ext.P9 is the copy of the ranked list received from the Corporation wherein he is shown as serial No.277 (Latin Catholic). But in the advice list Ext.P10, he is shown as serial No.519. Thereafter, he submitted a letter to the Chairman of the Public Service Commission, as per Ext.P11 and a reply has been given as per Ext.P12, to the effect that as he has mentioned his caste as Nadar in the application and has produced non-creamy layer certificate showing as Latin Christian, he was given the benefit under the open category. It is also mentioned in Ext.P12 that in the rank list he was included as “Nadar”, since in the application the caste was shown as “Nadar”. This is mainly under challenge herein. 5. The respondents have filed separate counter affidavits in the matter. It is mainly contended by the learned counsel for the petitioner that the petitioner is entitled to be granted the benefit of Latin Christian community. Nadar is a sub caste, whereas Latin Christian is the community to which he should be included. Exts.P1 to P3 are referred to, to show that wpc 28470/20 3 he belongs to Latin Christian Community. It is further pointed out that there is seven years delay in finalising the matter by the Public Service Commission and the Corporation and further, Ext.P12 reply was given by the Chairman who is not the empowered authority to take a decision on his complaint. 6. Learned Standing Counsel for the Public Service Commission contended that as the petitioner claimed his caste as Nadar and religion as Latin Catholic in the application, and as he failed to produce the certificate showing his caste as Nadar, he can only be treated as an open category candidate. Reliance is placed on the decision of a Division Bench of this Court in W.A. No.2383/2007 to contend that those claims made other than that is raised in the application, cannot be considered in the light of Clause 18 of the General Conditions published by the Commission. 7. My attention was invited by the learned counsel for the petitioner to Ext.P1, a letter issued from the Commission to the petitioner wherein he was directed to produce the community certificate showing that he belongs to Nadar Latin Catholic Christian. Ext.P2 certificate shows that the petitioner belongs to Nadar Christian community and Lathin Catholic – religion and Ext.P3 is also to the same effect. Obviously, the certificate wpc 28470/20 4 shows that he belongs to Nadar X'an - Latin Catholic. 8. It is pointed out that the change of his status in the advice list and in the gradation list is without notice to him and the Commission has no manner of right to do the same. 9. In Ext.P11, representation filed by the petitioner, he has stated that his ranking at the time of appointment is 277 and he submitted the non creamy layer certificate showing that he is eligible to get the benefits of Latin Catholic. Therefore, what the petitioner seeks for is the consideration of his claim as a Latin Catholic. 10. The petitioner has further produced along with I.A. No.8472/2010, Exts.P17 and P18. Ext.P17 is a letter from the District Collector to the Tahsildar of the District. Therein it is stated that there is distinction between caste and community and a Latin Catholic irrespective of whether he is Nadar or Mukkuva, is entitled to obtain a Latin Catholic community certificate. Ext.P18 is a copy of letter issued by the Government to the Bishop of Trivandrum. Therein, what is stated is that a person belonging to Latin Catholic community, is entitled to get a certificate on that basis, whatever be the caste shown in school records. 11. Herein, the definite stand taken by the respondents is that the wpc 28470/20 5 petitioner was given the benefit of Nadar, going by his statement in the application and later he failed to produce any certificate regarding the said caste status, and Ext.P4 showing him as Latin Catholic cannot be accepted for this reason. 12. Shri N. Unnikrishnan, learned counsel for the petitioner invited my attention to the relevant rules of KS & SSR and the definition of 'selection year', to contend that the steps taken by the Commission is really barred by law and therefore they cannot refix the advice seniority, that too after seven years. 13. Shri Alexander Thomas, learned Standing Counsel for the Commission invited my attention to Rule 17(1) of Part II KS & SSR, wherein Latin Catholics and Anglo Indians will come under item 3 in the group of Backward Classes, Nadars (Hindu Nadars and Nadars included in S.I.U.C.) will come under item 4 and Other Backward Classes will come under item 8. He therefore submitted that the claim raised by the petitioner as Latin Catholic, cannot be accepted now. 14. Even going by the pleadings of the petitioner, he had shown the caste as Nadar in the application. The reliefs sought for in the writ petition is to grant benefits of reservation under OBC/LC category. As already noted, going by Rule 17, Latin Catholics and Anglo Indians are grouped wpc 28470/20 6 together as item 3 therein and Other Backward Classes as item 8. Therefore, OBC and LC are shown separately for the purpose of the rules. Similarly, Nadars are also shown separately for the purpose of granting benefit of reservation. Exts.P2 and P3 certificates show that the petitioner's caste is Nadar and his religion is Latin Catholic. Obviously, the claim raised in the application is on the basis of his caste as Nadar and accordingly he was given the benefit by giving rank No.277, as evidenced by Ext.P6 also. When the non creamy layer certificate was produced, it was shown as LC (Latin Catholic). It was not accepted by the Commission, rightly. The plea raised by the petitioner is that he was not conversant with the intricacies and accordingly the Commission should have accepted Exts.P2 to P4 to give him the benefit of Latin Catholics. 15. Evidently, Latin Catholics and Nadars are two different groups, going by the grouping of Other Backward Classes under Rule 17. A Latin Catholic may not be having a caste or sub-caste even going by Ext.P18. Rank No.277 given to the petitioenr, as evident from the counter affidavit, is based on the fact that he was treated as a Nadar by caste. The Division Bench in Writ Appeal No.2383/2007, considered an identical issue. The appellant therein, in the application showed that she belongs to Ezhava community. At the time of verification of documents, she failed to prove wpc 28470/20 7 the caste status and Ext.P3 certificate produced by the Village Officer showed that she belongs to L.C. community. In the absence of a certificate showing her caste as Ezhava, the Public Service Commission treated her as Open Category candidate. The Division Bench found that on the basis of Clause 18 of the General Conditions, the Commission rightly rejected the application. The situation herein is also similar. The petitioner was assigned rank No.277 based on his claim that he is a Nadar. It is only when at the time of verification of certificates, it was found that he claims to be a Nadar - Latin Catholic. But, evidently Nadar is the name of a caste which was required to be proved to sustain his claim and Latin Catholic is the religion shown by him. If he has to be given the benefit as LC, then the entire ranking will have to be changed. Hence, the fixation of seniority cannot be faulted at all. Rule 27(c) of KS & SSR refers about fixing the relative seniority in the advice list. Herein, the Public Service Commission cannot be faulted for publishing the advice list later. The petitioner and others were appointed obviously in the light of the request made by the Corporation provisionally, and that too without working out the rules of reservation and without verifying the communities claimed and proved by candidates. It is only after a number of years, the seniority list was prepared. At that stage it was found that the claim of community in the wpc 28470/20 8 application was a Nadar which was not proved and accordingly he was treated as an Open Competition candidate. Going by the counter affidavit filed by the Commission, it can be seen that the rank list was brought into force on 11.5.2000 and he was advised on 22.6.2000 and no complaint was filed till 24.9.2007. Only after the gradation lit was published, the objection was raised. The proceeding leading to Ext.P12 cannot therefore be held to be bad in law. 16. Even though learned counsel for the petitioner relied heavily upon the additional documents produced by him, evidently that also cannot help him. Shri N. Unnikrishnan submitted that the order passed by the Chairman of the Commission also cannot be supported. But evidently, the petitioner's representation was addressed to the Chairman of the Commission. Learned Standing Counsel for the Commission explained that under the delegation of powers, the Chairman disposed of the representation and therefore that cannot be faulted. The said reason is well founded. 17. The further question is whether the petitioner ought to have been given a notice by the Commission in the matter, before changing the rank. The change of rank in the advice list arose due to the fact that the petitioner's ranking in the rank list was given considering him as Nadar and later, on coming to know that in the certificate his caste is shown as Latin wpc 28470/20 9 Catholic, they treated him as Open Competition candidate. Even if a notice was issued to him, nothing could have turned upon it. The situation herein being similar to that considered by the Division Bench in W.A. No.2383/2007, the said dictum also applies here. For all these reasons, I find no reason to interfere with the order passed as Ext.P12. Therefore, the writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/