IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 WP(C).No. 27971 of 2004(E) -------------------------- PETITIONER(S): --------------- 1. SUSEELA B., D/O. APPAYYA NAIK, BAJAR MOOLA HOUSE, URDOOR P.O., MULLERIA,KASARGOD. 2. PREMA K., KAYARKATTE HOUSE, PAIVALIKA P.O.,UPPALA, KASARGOD. 3. AITHAPPA NAIK, KANIYALA HOUSE, DHARMATHEDAKA, KUMBLA, KASARGOD. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KASARGOD. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 4. TAHSILDAR, KASARGOD TALUK, KASARGOD. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R1,2 GOVERNMENT PLEADER SRI. P. SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1. True copy of the circular dated 29.7.2003 issued by the Ist respondent regarding the implementation of Presidential notification. Ext.P2. True copy of the communications dated 5.11.2003 issued by the Deputy Secretary to Government of Kerala to the Secretary, Ministry of Tribal Affairs Government of India. Ext.P3. True copy of the judgment dated 14.6.2004 in WP(c).No.17259/2004 of this Hon'ble Court. Ext.P4. True copy of the communication dated 20/8/2004 issued by the 2nd respondent to the Ist petitioner. Ext.P5. True copy of letter dated 10.9.2004 issued by the Tahsildar, Kasargod. Ext.P6. True copy of the request dated 7.9.2004 submitted by the 2nd petitioner to the 2nd respondent Ext.P7. True copy of the show cause .memo dated 15.2.2008 issued to the Ist petitioner. Ext.P8. True copy of the show cause memo dated 15.2.2008 issued to the 2nd respondent. Ext.P9. True copy of the show cause memo dated 15.2.2008 issued by the 3rd petitioner. Ext.P10. True copy of the reply dated 4.3.2008 to Ext.P7 by the Ist petitioner. Ext.P11. True copy of the reply dated 4.3.2008 to Ext.P8 by the 2nd petitioner,. Ext.P12. True copy of the reply dated 4.3.2008 to Ext.P9 by the Ist petitioner. Ext.P13. True copy of the letter dated 30.7.2008 issued by the PSC to the Ist petitioner. Ext.P14. True copy of the letter dated 30.7.2008 issued by the PSC to the 2nd petitioner, Ext.P15. True copy of the letter dated 30.7.2008 issued by the PSC to the 3rd petitioner. // true copy/// P.A to Judge. ANTONY DOMINIC,J. ----------------------- W.P.(C).No.27971/2008 ------------------------ Dated this the 17th day of December, 2008. JUDGMENT Petitioners belong to Marati community in Kasaragod District. They were included in the combined ranked list published by the Public Service Commission for the post of LP/UP School Assistant in the Kasaragod District, which came into force from 30.11.2002. 2. Initially, their community was included in the list of Scheduled Tribes, but was deleted from the list with effect from 8.1.2003. Following the deletion of their community, PSC issued Ext.P4 calling upon the petitioners to produce Non Creamy Layer certificate for their retention in the OBC list. However, by Ext.P5, the Tahsildar, to whom applications were made, refused to issue the certificates, for the reason that the Marati community was not included in the OBC list by the State Government. It was at that stage the writ petition was filed. WP(c).No.27971/2004 2 3. Now the position is that, according to the Government Pleader, the State Government have recommended to the Central Government, for retention of the petitioners' community as Scheduled Tribe itself and that a final decision of the Central Government is awaited. It cannot be disputed that deletion or inclusion of scheduled castes and scheduled tribes in the list is exclusively within the domain of the Central Government and therefore the only step that the State Government could have taken was to have made recommendation in that behalf. This the State Government has done and therefore it is entirely within the province of the Central Government to decide on this , either way. 4. Counsel for the petitioners submits that in the interregnum, particularly taking into account the fact that the delay in this respect will result the candidates belonging to the Marati community loosing job opportunities, the State Government ought to have made an ad hoc arrangements by at least WP(c).No.27971/2004 3 declaring them as to belonging to OBC. I am afraid that such a direction may not be possible for the reason that the State Government have already concluded that the petitioners' community should be categorized as ST. That apart, the State Government's declaration of OBC status can only be based on the recommendation from the Kerala State Commission of Backward classes, which also has not made any recommendation in this behalf. 5. Therefore, the only order that can be passed in this case is that, it will be open to the petitioner to move the State Government or the Commission as the case may be for getting themselves declared as OBC, if the ultimate decision of the Central Government is not to retain them as Scheduled Tribe or in the event of inordinate delay on the part of the Central Government in finalizing the matter. 6. Petitioners claimed that the Government should invoke Rule 39 of the General Rules in the meanwhile. This is a matter for the State Government WP(c).No.27971/2004 4 to decide and I leave it open to the petitioner to move for the same. The writ petition is closed. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.27971/2004 5