IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 21233 of 2007(C) -------------------------- PETITIONER(S): --------------- RAMESH.R., MATTATHIPARAMBIL, CHENNANIKAD P.O., KOTTAYAM. BY ADV. SRI.O.D.SIVADAS RESPONDENT(S): --------------- 1. THE COCHIN PORT TRUST, WILLINGDON ISLAND, COCHIN REPRESENTED BY ITS CHAIRMAN. 2. THE TRAFFIC MANAGER, COCHIN PORT TRUST, OFFICE OF THE TRAFFIC MANAGER, WILLINGDON ISLAND, COCHIN. 3. C.GANESHAN, ORANGE & VEGETABLE FARM, PULAYANPARA, NELLIYAMPATHI P.O., PALAKKAD. BY ADV. SRI.A.X.VARGHESE FOR R3 BY ADV. SRI.A.V.JOJO FOR R3 BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE FOR R1 & 2 BY ADV. SRI.E.K.NANDAKUMAR FOR R1 & 2 BYADV. SRI.A.K.JAYASANKAR NAMBIAR FOR R1 & 2 BY ADV. SRI.ANIL D. NAIR FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.21233 OF 2007 EXT.P1 TRUE COPY OF THE NOTIFICATION DATED 27.5.2005 ISSUED BY THE SECOND RESPONDENT. EXT.P2 TRUE COPY OF THE MEMO DATED 21.7.2005 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER FOR WRITTEN EXAMINATION. EXT.P3 TRUE COPY OF THE COMMUNICATION NO.B1/LASCAR/2005/T DATED 23/04/2007 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P4 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 23.10.2007. //TRUE COPY// P.A. TO JUDGE. P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.21233 OF 2007 ------------------------------- Dated this the 7th day of October, 2010 J U D G M E N T By Ext.P1 notification dated 27.5.2005, the Cochin Port Trust invited applications from candidates belonging to the scheduled castes/scheduled tribes for appointment as Shed Clerk and Lascar. The number of posts notified in each category was two and the recruitment was confined to candidates belonging to the scheduled castes/scheduled tribes. 2. Pursuant to Ext.P1 notification, the petitioner, the third respondent and other candidates applied. They were directed to appear for a written test that was held on 31.7.2005. Thereafter, an interview was held on 1.8.2005 in which the petitioner, the third respondent and others appeared. It appears, though the third respondent has not filed a counter affidavit in this case, that after the interview was held, the third respondent along with three others filed W.P.(C) No.25990 of 2005 in this Court for a direction to the State of Kerala and its officers to issue certificates to the effect that they belong to the scheduled tribes. While that writ petition was pending, the petitioner herein filed this writ petition complaining about the delay in finalisation of the selection process. He contended that in view of a W.P.(C) No.21233 of 2007 2 dispute as regards the caste status of the third respondent and the pendency of W.P.(C) No.25990 of 2005 referred to above, the selection and appointment of Lascars has been held up. The petitioner contended that as he is the second candidate in the order of merit, if the first candidate is in any way ineligible, the respondents are bound to appoint him. 3. This writ petition was admitted on 10.7.2007. Thereafter, on an application filed by the petitioner as I.A.No.13188 of 2007, this Court passed the following order:- “Heard learned counsel for the petitioner, learned standing counsel for Cochin Port Trust and the learned counsel for the 3rd respondent. Counsel for the Port Trust submits that the 3rd respondent in this writ petition is included as Rank No.1 in the select list prepared for Lascar reserved for Scheduled Tribe candidates. Petitioner is included therein as Rank No.2. Apparently, the 3rd respondent was asked to produce a caste certificate. But he has not been able to produce the same so far, as proceedings are pending against him before the KIRTADS. In such circumstances the post is kept vacant. Counsel for the Port Trust further submits that they are in need of a Lascar and the post is kept vacant only because of the fact that the first rank holder has not been able to prove his caste status. In the circumstances, there will be a direction to the first respondent to appoint the petitioner herein, R.Ramesh, as a Lascar in the Traffic Department in the post reserved for Scheduled Tribe on a W.P.(C) No.21233 of 2007 3 provisional basis. This posting will be subject to further orders from this Court. Post for hearing in the first week of December, 2007.” The above order discloses the fact that there was a dispute regarding the caste status of the third respondent; that the third respondent was asked to produce a caste certificate to the effect that he belongs to the scheduled tribe community; that he has not been able to produce such a certificate, and therefore, the post of Lascar is kept vacant. This Court also noticed the submission of the Cochin Port Trust that they need the services of a Lascar. This Court accordingly directed the Cochin Port Trust to appoint the petitioner as Lascar in the post reserved for the scheduled tribes on a provisional basis, subject to further orders from this Court. The petitioner was thereafter appointed. 4. Though the third respondent has been served notice and has entered appearance through counsel, he has not filed a counter affidavit in this case. However, Sri.Kaleeswaram Raj, learned counsel appearing for the third respondent relying on the averments in W.P.(C) No.25990 of 2005 contended that the third respondent is a member of the Malayan community which is a scheduled tribe in the W.P.(C) No.21233 of 2007 4 State of Kerala, that Ext.P16 certificate produced in W.P.(C) No.25990 of 2005 issued to that effect by the Tahsildar, Chittur, was produced before the first respondent and that the first respondent ought to have accepted the said certificate and appointed the third respondent, the first rank holder. The learned counsel also contended that as Ext.P16 certificate produced in W.P.(C) No.25990 of 2005 has not so far been cancelled, the first respondent ought to have accepted Ext.P16 and acted on it. 5. Per contra, Sri.E.K.Nandakumar, learned standing counsel appearing for the Cochin Port Trust submitted again relying on the averments in the counter affidavit filed by the Cochin Port Trust in W.P.(C) No.25990 of 2005 that in the third respondent's Secondary School Leaving Certificate, his caste is shown as Hindu Kounder; that in Ext.P4 certificate produced in W.P.(C) No.25990 of 2005, the Sub Collector, Namakkal, has on 19.2.1996 certified that the third respondent is a member of Hindu Malayali community which is admittedly a scheduled tribe in the State of Tamilnadu and that in view of the conflicting claims of the petitioner, the third respondent was asked to produce a fresh caste certificate to prove his caste. He also contended that the third respondent has, notwithstanding the W.P.(C) No.21233 of 2007 5 opportunities given to him to produce a caste to the effect that he is a member of a scheduled tribe community, not produced the same. 6. I have considered the submissions made by the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record in this case and also in W.P.(C) No.25990 of 2005 which I have to necessarily refer to for want of adequate pleadings in this writ petition. It is evident from Ext.P4 produced by the third respondent (who is the 4th petitioner in W.P.(C) No.25990 of 2005) that in the year 1996, the Sub Collector, Namakkal, had certified that he belongs to the Hindu Malayali community, which is recognised as a scheduled tribe in the State of Tamil Nadu. In the Secondary School Leaving Certificate issued to the third respondent by the State of Tamilnadu, his caste status is shown as Hindu Kounder. Strangely, in Ext.P16 caste certificate(Ext.P16 in W.P.(C) No.25990/2005) issued by the Tahsildar, Chittur, it is stated that the third respondent is a member of the Malayan community which is a scheduled tribe in the State of Kerala. The conflicting claims or the conflicting declarations made in the aforesaid documents leads the conclusion that there is a dispute as regards the caste status of the third respondent. On the materials W.P.(C) No.21233 of 2007 6 on record, it cannot be said with certainty that the third respondent is a member of a scheduled tribe community in the State of Kerala, as per the Constitution (Scheduled Tribes) order, 1976. Necessarily, the third respondent cannot, so long as the dispute is not resolved, seek appointment as Lascar in the Cochin Port Trust, against a post reserved for the scheduled tribes. 7. Ext.P7 notification inviting applications for appointment as Lascar in the Cochin Port Trust was issued on 27.5.2005. More than 5 years have passed thereafter. The interim order passed by this Court which is extracted above recognizes and acknowledges the need for the services of a Lascar in the Cochin Port Trust. Taking note of the said fact, the petitioner herein, the second rank holder, was permitted to be appointed. The third respondent has not so far proved his entitlement to be treated as a member of a scheduled tribe community in the State of Kerala, going by the provisions of the Constitution (Scheduled Tribes) Order, 1976. He cannot, in such circumstances, claim appointment against a vacancy reserved for the scheduled tribes. Necessarily therefore, the appointment of the petitioner will have to be regularised. In the result, I dispose of the writ petition with a direction W.P.(C) No.21233 of 2007 7 that the appointment of the petitioner as Lascar pursuant to the interim order passed by this Court on 5.10.2007 shall be regularised. It is clarified that the disposal of this writ petition will not stand in the way of the third respondent from prosecuting W.P.(C) No.25990 of 2005. P.N.RAVINDRAN, Judge. nj.