Dr. Neema C.P vs The Cochin University Of Science & ...
2024 Latest Caselaw 17395 Ker

Kerala High Court

Dr. Neema C.P vs The Cochin University Of Science & ... on 21 June, 2024

Author: P Gopinath

Bench: P Gopinath

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR. JUSTICE GOPINATH P.
      FRIDAY, THE 21ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946
                     WP(C) NO. 18212 OF 2023
PETITIONER/S:
           DR. NEEMA C.P, W/O. RAJEEV P,AGED 48 YEARS
           ROHINI, NEAR RAILWAY CUTTING, PANNERI MUKKU,
           VALAPATTANAM P.O., KANNUR DISTRICT, PIN - 670010
           BY ADVS.
           NISHA GEORGE
           REGINALD VALSALAN
           SIDHARTH.R.WARIYAR
           GEORGE POONTHOTTAM (SR.)


RESPONDENT/S:
     1     THE COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY
           UNIVERSITY ROAD, SOUTH KALAMASSERY, KALAMASSERY, KOCHI,
           ERNAKULAM DISTRICT - - 682022
           REPRESENTED BY ITS REGISTRAR
     2     THE VICE CHANCELLOR
           THE COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY,
           UNIVERSITY ROAD, SOUTH KALAMASSERY, KALAMASSERY, KOCHI,
           ERNAKULAM DISTRICT, 682022
     3     THE TAHSILDAR, TALUK OFFICE ROAD, NEAR EXCISE OFFICE,
           EAST FORT, PAZHAVANGADI,
           THIRUVANANTHAPURAM, PIN - 695023
     4     LAKSHMI P.R.
           ASSISTANT PROFESSOR (ATMOSPHERIC SCIENCE)
           FACULTY OF MARINE SCIENCE, THE COCHIN UNIVERSITY OF
           SCIENCE & TECHNOLOGY, UNIVERSITY ROAD,
           SOUTH KALAMASSERY, KALAMASSERY, KOCHI,
            ERNAKULAM DISTRICT, PIN - 682022
           BY ADVS.
           SHRI.S.P.ARAVINDAKSHAN PILLAY, SC, COCHIN UNIVERSITY OF
           SCIENCE AND TECHNOLOGY
           LAKSHMI RAMADAS
           M.R.SABU(000K/521/1989)
           APARNA RAJAN(K/851/2009)
           SREEDHAR RAVINDRAN(K/559/2012)

          SRI. P RAVINDRAN (SR.) FOR R4. ,
          SRI VENUGOPAL V (GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 18212 OF 2023                2



                                 JUDGMENT

Petitioner is a person belonging to the ' Thiyya' community

and is included among the 'Other Backward Class' (hereinafter

referred to as 'the OBC') category. According to the petitioner,

the petitioner had applied for the post of Assistant Professor -

(Meteorology) in the Department of Atmospheric Science in the

1st respondent-University. The said post was reserved for

members of the OBC community. According to the petitioner,

the petitioner and 4th respondent were ranked as 2 nd and 1st

respectively in the rank list prepared by the University for

appointment to the abovesaid post. The singular challenge

made by the petitioner to the appointment of the 4th

respondent is that the 4th respondent was not entitled to the

benefit of OBC reservation as she was not entitled to a Non-

Creamy Layer Certificate. It is alleged that, both the parents of

the 4th respondent were employed in Class I posts and

therefore, going by the relevant Government orders regarding

issuance of Non-Creamy Layer Certificate, the 4th respondent

was not entitled to a Non-Creamy Layer Certificate. In other

words, it is the case of the petitioner that, if the 4 th respondent

was thus not entitled to the benefit of OBC reservation, the

petitioner, being next in the rank list, should have been

appointed in preference to the 4th respondent.

2. The 4th respondent has filed a counter affidavit. The

specific contention taken in the counter affidavit is that though

the parents of the 4th respondent might have retired from Class

I posts, for the purposes of considering whether the 4 th

respondent is entitled to a Non-Creamy Layer Certificate, the

consideration must be the post to which they were originally

appointed. It is submitted with reference to Ext.R4(e)

document (O.M. No.36012/22/93Estt.(SCT) dated 08.09.1993)

that the 4th respondent will lose the benefit of reservation only

if either of her parents had been appointed to a Class I post or

Class-II post by 'Direct Recruitment'. It is submitted with

reference to Exts.R4(b) and R4(c) that the father of the 4 th

respondent had been originally appointed on 13.08.1984 as

Assistant Grade-I in the Kerala State Beverages (Manufacturing

and Marketing) Corporation Limited and that the mother of the

4th respondent had been appointed as Junior Lecturer in

Sanskrit (General), Department of Collegiate Education on

16.03.1984. It is submitted that, both these posts are not Class

I or even Class II posts and therefore, the 4 th respondent is

entitled to a Non-Creamy Layer Certificate as contemplated by

the provisions of Ext.R4(e).

3. A reply affidavit was filed by the petitioner raising

doubts regarding the genuineness of Exts.R4(b), R4(c) and

R4(d) documents. It was pointed out that both in Exts. R4(b)

and R4(c) documents, the posts to which the person concerned

was appointed appears to have been manipulated.

4. When the matter is taken up for consideration today,

Adv. P. Ravindran, the learned Senior Counsel appearing for

the 4th respondent, on the instructions of Adv. Lakshmi Ramdas,

has placed for my consideration the originals of Exts. R4(b),

R4(c) and R4(d). I have perused the originals of Exts. R4(b),

R4(c) and R4(d) and I am convinced that there is absolutely no

manipulation and photocopies of Exts. R4(b), R4(c) and R4(d)

produced along with the counter affidavit of the 4 th respondent

are exact copies of the originals. The question as to whether

the 4th respondent will lose benefits of reservation in the OBC

Category if any of her parents are retired from a Class-I Post is

no longer res integra . It is settled by the judgment of this

Court in Abdul Gafoor C.H. and Another V. State of Kerala

and Others [2024 SCC OnLine Ker 477], that a son or

daughter of a Government employee, who retires from a Class I

Post or Class II post will lose benefit of OBC reservation only if

the parents or either of them had been originally appointed to

Class I post or Class II post by Direct Recruitment. This is not

the case here. The parents of the 4 th respondent were not

appointed directly to the post from which they retired. I am in

respectful agreement with the view taken by this Court in

Abdul Gafoor (supra). Further this is also clear from

Ext.R4(e) Office Memorandum issued by the Government of

India in the Ministry of Personnel, Public Grievances and

Pensions (Department of Personnel and Training), as also from

Ext.R4(g) order issued by the Government of Kerala in the

SC/ST Development Department. Therefore, the petitioner is

not entitled to any of the reliefs sought for in the writ petition.

The writ petition fails and it is accordingly, dismissed.

Sd/-

GOPINATH P. JUDGE ajt

APPENDIX OF WP(C) 18212/2023

PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE NON-CREAMY LAYER CERTIFICATE ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT ON 30.01.2016 ALONG WITH ITS TYPED LEGIBLE COPY Exhibit-P2 TRUE COPY OF THE RANK LIST FOR THE POST OF ASSISTANT PROFESSOR, METEOROLOGY ISSUED BY THE 1ST RESPONDENT UNIVERSITY Exhibit-P3 TRUE COPY OF THE JUDGMENT DATED 16.09.2022 PASSED BY THIS COURT IN W.P(C) NO.24902 OF

Exhibit-P4 TRUE COPY OF THE WRITTEN SUBMISSIONS DATED 17.01.2023 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT TAHSILDAR Exhibit-P4(a) TRUE COPY OF THE WRITTEN SUBMISSIONS DATED 17.01.2023 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT TAHSILDAR.

Exhibit-P5 TRUE COPY OF THE COMMUNICATION NO.A 5- 35817/2022 DATED 06.02.2023 SENT BY THE 3RD RESPONDENT TAHSILDAR TO THE PETITIONER. Exhibit-P5(a) TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O.MS. NO. 66/90/HEDN DATED 13.03.1990 Exhibit-P6 TRUE COPY OF THE CIRCULAR NO.27396/F3/07/SCSTDD DATED 14.06.2010 ISSUED BY THE GOVERNMENT Exhibit-P7 TRUE COPY OF THE GOVERNMENT ORDER BEARING GO.

(MS) NO. 05/2014/BCDD DATED 31.01.2014 Exhibit-P8 True copy of the Notification No.F.1-21/87 U.I dated 17.6.1987 issued by the University Grant Commission Exhibit-P9 True typed copy of the notification dated 27.11.1990 in D.O.No.F.1-6/90(PS cell) issued by the University Grants Commission RESPONDENT EXHIBITS Exhibit-R4(a) True copy of the order issued by the Cochin University of Science and Technology Appointing the 4th respondent to the post of Assistant Professor, Meteorology Department No.Ad.D1/AP/LPR/Atm. Sc./2016 Dated 23.03.2016 Exhibit-R4(b) True copy of the order issued by the Managing

Director, BEVCO relieving 4th respondent's father Sri.Ravi Sankar P.V. on superannuation dated 18.11.2015 No.AE1/890/2012/KSBC Exhibit-R4(c) True copy of the order issued by the Director of Collegiate Education appoint the 4th respondent's Mother, Smt.T.G.Shylaja as Junior Lecturer in Sanskrit In the Government Brennen College, Thalassery No.Estt.F3/37559/81/Coll.Edn. Dated 16.03.1984 Exhibit-R4(d) Typed copy of the proceedings of the Additional Director of Collegiate Education dated nil of November, 1992 No. 84914/91 Exhibit-R4(e) True copy of the office memorandum issued by the Government of India dated 08.09.1993 No.36012/22/93- Estt. (sct).

Exhibit-R4(f) True copy of the relevant pages of the communication issued by the Department of Personnel and Training O.M.No.36033/ 5/2004- Estt.(SCT), dated 14.10.2004 to the Chief Secretaries of all the States/Union Territories Exhibit-R4(g) True copy of the order issued by the Government of Kerala No.G.O.(P) No.81/09/SCSTDD dated 26.09.2009 Exhibit-R4(h) True copy of the order issued by the Government of Kerala No.G.O.(MS) No.95/2009/SCSTDD Dated 10.11.2009 Exhibit-R4(i) True copy of the proceedings of the Additional Director of Collegiate Education, Thiruvananthapuram bearing No.F3.28931/84/L.Dis. Dated 19.06.1984 Exhibit-R4(j) The order issued by the Managing Director, Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd. Bearing No. AE1/14608/07 DATED 12.12.2007