‘C.R.’

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 19^TH DAY OF JANUARY 2024 / 29TH POUSHA, 1945 WP(C) NO. 11309 OF 2023 PETITIONERS:

1 ABDUL GAFOOR C.H, S/O C.MUHAMMED, AGED 52 YEARS, 5A, VH COSMIC APARTMENT, MAVOOR ROAD, CHEVAYUR, KOZHIKODE, PIN – 673017. 2 RANIYA FATHIMA .C, D/O ABDUL GAFOOR, C.H, AGED 17 YEARS, RESIDING AT 5A, VH COSMIC APARTMENT, MAVOOR ROAD, CHEVAYUR, KOZHIKODE – 673017, REPRESENTED BY HER FATHER ABDUL GAFOOR, C.H., 5A, VH COSMIC APARTMENT, MAVOOR ROAD, CHEVAYUR, KOZHIKODE - 673017., PIN – 673017.

BY ADVS.S.PRASANTH (AYYAPPANKAVU)

VARSHA BHASKAR ANUPAMA SIBI RESPONDENTS:

1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, BACKWARD CLASSES DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.

2 THE REVENUE DIVISIONAL OFFICER, RDO OFFICE, COLLECTORATE, CIVIL STATION P.O, KOZHIKODE, PIN – 673020.

3 THE TAHSILDAR, KOZHIKODE TALUK OFFICE, KOZHIKODE, PIN – 673020.

4 THE VILLAGE OFFICER, CHEVAYUR VILLAGE, CHEVAYUR, KOZHIKODE, PIN – 673017.

SRI P S APPU-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

‘C.R.’

JUDGMENT The 2^nd petitioner is the daughter of the

1^st petitioner and they impugn Ext.P3 order, whereby, the former has been denied the benefit of a ‘Non Creamy Layer Certificate’, on the ground that the latter among them, as also his wife – the mother of the 2^nd petitioner – joined service as Class II Officers, along with her husband, the 1^st petitioner.

2. Smt.Malavika K. - learned counsel for the petitioner, vehemently argued that Ext.P3 has been issued by the 3^rd respondent – Tahsildar without proper application of mind and without adverting to the Statutory Scheme because, as Ext.P6 would show, the 2^nd petitioner’s mother did not join a Class II post directly, but only after having served as an Upper Primary School Assistant (UPSA) in an Aided School. She argued that when this fact remains uncontroverted, the declarations is Ext.P12 judgment would come to play, wherein, it has been settled that the term ‘gets into Class I/Group A’ – as available in the Statutory Scheme - cannot mean that it should only be by promotion or deputation – which is to mean that it can also be through a Direct Recruitment process. She contended that since when the mother of the 2^nd petitioner was initially appointed in Class III/Group C, namely as a UPSA, the Tahsildar has acted in gross error, in having issued Ext.P3. She thus prayed that the said order be set aside.

3. Sri.P.S.Appu – learned Government Pleader, however, submitted that the declarations in Ext.P12 judgment would not apply to the petitioners at all because, contrary to the facts noticed by the learned Judge therein, Ext.P6 would establish that the mother of the 2^nd petitioner - who is the wife of the 1^st, was directly recruited to a Class II Post as Higher Secondary School Teacher (HSST) in Chemistry, on 13.06.2018. He argued that, therefore, she can only be construed to have been directly recruited to a Class II Post; and hence that the rigour of Ext.P8 Government Order stand against the petitioners.

4. I am afraid that I cannot find favour with the afore submissions of the learned Government Pleader without further scrutiny. This is because, as rightly argued by Smt.Malavika K., while dealing with the case of a father, who had entered Class I/Group A post, a learned Judge of this Court in Ext.P12 declared without doubt as under, adverting to the Government Order, bearing No.81/09/SCSTDD dated 26.09.2009:

9. The terms used in Ext.P11 G.O.

is “gets into Class I/Group A”. Therefore the appointment into a higher Class/Group need not be by promotion or deputation. In the case of the petitioner, the petitioner's father was appointed in Indo Swiss Project, which is a Government Project. It is evident from Ext.P12 that the said project was subsequently brought under Kerala Livestock Development and Milk Marketing Board