Children of parents promoted to Class-I before age 40 excluded from Non-Creamy Layer, status persists post-retirement.

JUDGMENT :

BECHU KURIAN THOMAS, J.

Petitioner challenges the order rejecting his application for the grant of a Non-Creamy Layer Certificate and also seeks for a direction to issue him such a certificate, for enabling admission to Central Government educational institutions.

2. Petitioner is preparing for the entrance examination for admission to the Indian Institute of Management. He claims that he belongs to a socially and educationally backward class. Petitioner's father retired from service on 30.04.2021, as the Principal of an aided college, affiliated to the University of Calicut. However, when the petitioner applied for the Non-Creamy Layer Certificate, the third respondent rejected the application. Since the rejection of his application was not communicated to him, petitioner's father filed an application under the Right to Information Act, 2005. In Ext.P2 reply, it was informed that petitioner’s application was rejected on the ground that his father had become a Group A/Class-I Officer before he attained the age of forty years.

3. The petitioner filed an appeal against the order before the second respondent and the same was dismissed by Ext.P5 order. According to the petitioner, since his father had retired from service, he cannot be excluded from the benefits of the Non-Creamy Layer Certificate and the rejection of his application was without noticing the fact of retirement. Thus, petitioner has approached this Court pointing out that there is no provision either in Ext.P1 or in Ext.P4 to include the children of pensioners, who have no other income, in the creamy layer and therefore the petitioner is entitled to be issued with such a certificate.

4. A counter affidavit has been filed by the third respondent pointing out that when the petitioner's application was verified, it was found that he belongs to Islam-Mappila community and his father was the Principal of an aided college, who retired from service on 30.04.2021. According to the respondents, as per O.M. Dated 08.09.1993, produced as Ext.P4, bearing No.36012/22/93, petitioner comes under the occupation group of service category, which stipulates that, sons and daughters of whom only the husband is a Class-II officer and gets into Class-I at the age of forty or earlier, are not entitled to get the Non-Creamy Layer Certificate. The respondents allege that, as per the certificate produced as Ext.P3, petitioner's father had entered into service in the post of Lecturer Class-II Officer and got promoted on 17.10.2004, at the age of thirty nine, to Class-I Officer in the cadre of Selection Grade Lecturer, for which the basic pay was Rs.12,000 – 18,300. The respondents further stated that the Government Order produced as Ext.P1 is not relevant as it is stipulated for the State Government educational purposes of Kerala, while Ext.P4 is applicable to the case of the petitioner, as it is for issuing certificates for Central Government purpose. As per Ext.P1, the age for consideration is thirty six years, while in Ext.P4 it is forty years. Respondents further alleged that the Non-Creamy Layer Certificate in the instant case has to be issued on the basis of status of parents and not on the basis of income and as petitioner's father got promoted to the post of Class-I Officer before attaining the age of forty, the petitioner is not entitled to get the certificate. As the status of the petitioner's family still remains the same, despite the retirement of his father, the certificate as applied for, cannot be issued. The respondents further state that the petitioner's father