IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 34821 of 2007(U) -------------------------- PETITIONER: ------------ BINDU.K., "SAGARIKA", MATHARA, GURUVAYOORAPPAN COLLEGE P.O., CALICUT. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.T.G.SEETHAL RESPONDENTS: ------------- 1. THE KERALA STATE PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, THRISSUR. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC SRI.SANTHOSH KUMAR,SPL.GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34821 of 2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1- TRUE COPY OF THE NOTIFICATION ISSUED IN THE KERALA GAZETTE DATED 31.12.05 EXT.P2- TRUE COPY OF LETTER ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT DATED 29.8.06 EXT.P3- TRUE COPY OF THE FRONT PAGE OF THE SSLC CERTIFICATE OF THE PETITOINER EXT.P4- TRUE COPY OF THE COMMUNITY CERTIFICATE ISSUED TO THE PETITIONER EXT.P5- TRUE COPY OF THE NOTIFICATION ISSUED BY THE RESPONDENT DATED 30.6.07 EXT.P6- TRUE COPY OF THE LIST PUBLISHED BY THE RESPONDENT DATED 20.10.07 (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- W.P.(C).34821/2007 -------------------- Dated this the 20th day of February, 2008 JUDGMENT The Public Service Commission invited applications from eligible candidates for the post of Junior Health Inspector Gr-II, as per Exhibit P1 notification dated 31.12.2005. The petitioner responded to Exhibit P1 notification. Exhibit P5 includes all candidates found qualified and eligible for the post of Junior Health Inspector and the petitioner was included therein. Petitioner claims that she belongs to Hindu-Paravan community which is a scheduled caste and therefore, she had claimed that she belongs to scheduled caste. It was so shown in Exhibit P5. Later, the petitioner was required to produce the certificates for verification. She produced before the Commission Exhibit P3, an extract of S.S.L.C Book and Exhibit P4 certificate issued by the District Collector, Kozhikode, on 22.6.2001 certifying that the petitioner, D/o of Sri.Balakrishnan belongs to Hindu- Paravan community which is included in the list of scheduled caste. Petitioner submits that Exts. P3 and P4 W.P.(C).34821/2007 2 should have been treated as conclusive of the petitioner’s claim that she belongs to scheduled caste and accordingly, the petitioner should have been included in the final list. She filed this writ petition challenging Exhibit P6 rank list. She has also sought for a direction to the Public Service Commission to include her in Exhibit P6 rank list at the appropriate place. 2. Since the averment in the writ petition was to the effect that the petitioner is an offspring of intercaste married couple, by an order dated 26.11.2007, petitioner was required to file an additional affidavit expatiating on this aspect. Petitioner has filed such additional affidavit. It is averred therein that the petitioner’s father belongs to 'Thiyya' Community which is an OBC and petitioner’s mother belongs to Paravan community, which is a scheduled caste. 3. Learned Standing Counsel for the Public Service Commission, on instruction, submits that the petitioner's claim that she belongs to the scheduled caste was W.P.(C).34821/2007 3 verified and on enquiry, she stated that she is a member of the scheduled caste rested on the fact that her mother belongs to scheduled caste, though her father is a 'Thiyya' which is an Other Backward Community. It is contended that in such circumstances, the situation is governed by G.O (Ms) No.11/2005/SCSTDD dated 22.3.2005. The contents of the Government Order are extracted for ready reference. “In the GO read as 2nd paper above the Government ordered that the principle enunciated in the G.O read as Ist paper above will be adopted for determining the caste of the children born of inter caste marriage for all purposes, according to which the children will be treated as belonging to Scheduled Caste or Scheduled Tribe Community, if either of the parents belongs to that community. In the letter read as 4th paper above, Government directed to follow the principle of determining the caste status of children born of parents, contracted inter- caste marriage enunciated in the W.P.(C).34821/2007 4 GOs read as 2nd and 3rd papers above and to issue Community Certificates to the persons concerned so as to enable them to be eligible for all concessions and benefits admissible to Scheduled Castes/Scheduled Tribes/Other Backward Classes. Government have examined all aspects of the issue, including the legality, propriety and constitutionally of the existing Government directions especially in the wake of the judgment of the Honourable Supreme Court read as 5th paper above and have found that the GO read as 2nd paper and the letter read as 4th paper above are tantamount to conferring Scheduled Caste/Scheduled Tribe status to the children born of inter- caste married couple, if either of the parents belongs to Scheduled Castes/Scheduled Tribes community. Government therefore order that the GO read as 2nd paper and the letter read as 4th paper above stand cancelled with immediate effect”. 4. It is contended that earlier Government Order G.O(MS) No.11/77/DD dated 25.1.1977 and Government W.P.(C).34821/2007 5 letter No.3424/E2/84/HWD dated 12.7.1984 which enabled the children born out of intercaste married couples to claim scheduled caste status if either of the parents belonged to Scheduled Caste or Scheduled Tribes community, stands cancelled by G.O (MS) No.11/2005. In that view of the matter, it was contended that the situation will have to be treated as governed by the directions issued by the Supreme Court in Punit Rai v. Dinesh Chaudhary (2003 (8) SCC 204). 5. I heard learned counsel for the petitioner Mr.Devan Ramachandran, learned Special Government Pleader Mr.Santhosh Kumar and the learned Standing Counsel for the PSC Mr.Alexander Thomas. Learned counsel for the petitioner contended that this Court in Indira v. State of Kerala reported in 2005 (4) KLT 119 (F.B.) held that the offspring of intercaste married couples would be entitled to claim the benefits of the candidates who belong to SC or ST, even if the mother belongs to SC/ST community. Reference in this regard is made to paragraph 21 of the judgment of the Full Bench W.P.(C).34821/2007 6 which reads as follows:- 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.” 6. Accordingly, it was contended that going by the dictum laid down by the Full Bench, since there is no dispute that the petitioner's mother belongs to SC, petitioner should also be treated as entitled to claim that she belongs to SC. I have already referred to G.O.(MS). W.P.(C).34821/2007 7 No.11/2005 and G.O.(MS).No.25/2005 issued on 20.6.2005. The latter order was consequential upon G.O.(MS).11/2005 which cancelled the earlier Government orders issued in 1977 and the letter issued in 1984 enabling the offspring of intercaste married couple to claim the status of the SC/ST as the case may be, even if one of the parents belongs to SC/ST. Since G.O.(MS).11/2005 had only cancelled the earlier Government orders, apparently it was necessary for the Government to issue separate instructions to the competent authorities, who were called upon to issue SC/ST community certificates to the children born out of intercaste married couples in the matter of public employment. Accordingly the following orders were issued in G.O.(MS).No.25/2005:- (i). The Competent Authorities shall issue Scheduled Castes/Scheduled Tribes Community Certificates to the children born out of intercaste married couples only as per the caste/community of his/her father subject to the conditions of W.P.(C).34821/2007 8 acceptance, customary traits and tenets stipulated in the above judgments of the Honourable Supreme Court. (ii). The children of intercaste married couple of which one is Scheduled Caste/Scheduled Tribe will be eligible for educational and monetary benefits admissible to Scheduled Castes/Scheduled Tribes. (iii). The children of intercaste married couples who secured employment against the seat reserved for Scheduled Castes/Scheduled Tribes by virtue of the provisions of the G.O read as 3rd paper above will be allowed to continue till the end of their service. But they will not be eligible for any benefits intended for the Scheduled Castes/Scheduled Tribes with effect from 22.3.2005. (iv). The children of intercaste married couples who secured admission to various courses/training including professional Courses against the seat reserved for Scheduled Castes/Scheduled Tribes, on W.P.(C).34821/2007 9 the strength of G.O read as 3rd paper above, will be allowed to continue to receive all the educational benefits till the end of the respective course.” 7. Essentially the Government seems to have reverted to the position which was laid down by the Supreme Court in Punit Rai. The determination of the caste of the person in the context of the claim made by a person who was an offspring of any intercaste married couple came to be considered by the Supreme Court in Punit Rai. Paragraph 41 of the judgment of the Supreme Court (in so far as it is relevant to the context) is extracted below:- “Determination of the caste of a person is governed by the customary laws. A person under the customary Hindu law would be inheriting his caste from his father. In this case, it is not denied or disputed that the respondent's father belonged to a “Kurmi” caste. He was, therefore, not a member of the Scheduled Caste. The caste of the father, therefore, W.P.(C).34821/2007 10 will be the determinative factor in absence of any law.” 8. Supreme Court therefore, held that the caste of the father is determinative of the caste of the offspring. Apparently this was what taken into account by the Government when it issued in G.O.(MS).25/2005. 9. Full Bench in Indira's case considered G.O.(MS). 25/2005 also. But apparently the Full Bench enlarged the scope of Government Order when it was laid down that G.O.(M.S.)25/2005 would also be applicable to the children born out of the intercaste married couple, if the mother belongs to SC/ST community. In that view of the matter, Full Bench had enlarged the scope of the directions issued by the Supreme Court in Punit Rai. 10. Had the matter, as considered and declared by the Full Bench, remained the same, all that would have been required in this case was to consider the petitioner's certificate and verify whether she could be W.P.(C).34821/2007 11 treated as Scheduled Caste and proceed accordingly. But the judgment of the Full Bench in Indira, has been stayed by the Supreme Court. Copy of the said order has been made available before me by the learned Special Government Pleader Mr.Santhosh Kumar. “Until further orders, the operation of the impugned order shall remain stayed. It is directed that in case, the Special Leave Petitions are dismissed, the petitioner shall not be entitled to claim any benefit which would be accruing by virtue of this interim order.” 11. In effect, the expansive directions issued by the Full Bench in Indira has been stayed by the Supreme Court. Consequently what governs the situation is only G.O.(M.S.25/2005. The said Government Order enables an offspring of the intercaste married couple to claim the status of the SC/ST only if the father belongs to the Scheduled Caste. Benefit is not extended to a case where the mother belongs to the Scheduled Caste, and W.P.(C).34821/2007 12 the father belongs to some other caste. If that be the position, the stand taken by the PSC as such cannot be faulted with. For all these reasons, I do not find any error of law or error of jurisdiction in the stand taken by the PSC. Writ petition is bereft of merit and the same is dismissed. V.GIRI, Judge mrcs