Pauly Sebastian v. Public Service Commission — 1990 DIGILAW 505 (KER)

Judgment :- The prayer in the original petition is to issue a writ of certiorari or other appropriate writ, direction or order quashing Ext.P2 letter of the Public Service Commission, the first respondent, proposing to deny the community benefit given to the petitioner provisionally and directing her to show cause within 15 days from the date of the letter why 'Latin Catholic community' noted against the petitioner's name in the ranked list should not be deleted. The other prayer is for a writ of mandamus or other appropriate writ, direction or order commanding the first respondent not to delete the petitioner's community, Latin Catholic, noted against her name in the ranked list finalised for the post of Tutor in Micro-Biology on 20-2-1990. The petitioner is a Syrian Catholic by birth. Her community is mentioned as Roman Catholic going by S.S.L.C. Book and she claims to be Latin Catholic by marriage. She took her M.B.B.S. Degree in the year 1986 from the Calicut Medical College and completed House Surgency from the Trichur Medical College in 1987. Se married one M.J. Sebastian who is a member of the Latin Catholic community (other than Anglo Indian) on 26-4-1987. The marriage to Mr.M. J. Sebastian was solemnised by a Latin Christian Priest in a Latin Church according to the Latin ceremony. In the year 1987, the first respondent invited applications from qualified hands for the post of Tutor in Micro-Biology in the Medical Education Department of the State of Kerala. The petitioner applied for the post. In the application the petitioner claimed that she belonged to Latin Catholic Community. An interview was conducted on 22-12-1989 at the Public Service Commission Office, Trivandrum and the petitioner's name was provisionally included in the ranked list finalised for the post of Tutor by the first respondent on 20-2-1990. Community certificate obtained from the third respondent was also produced stating that though she is a Syrian Catholic girl by birth, by marriage she has become a member of La tin Catholic. Thereafter, the petitioner received a communication dated 10-10-1990 from the first respondent stating that on examination of the case of the petitioner in detail, it was found that she is not eligible for the benefit of Community as Latin Catholic as she is a Syrian Catholic by birth and not entitled to the benefit of the community of her husband. Thereafter, the petitioner received a communication dated 10-10-1990 from the first respondent stating that on examination of the case of the petitioner in detail, it was found that she is not eligible for the benefit of Community as Latin Catholic as she is a Syrian Catholic by birth and not entitled to the benefit of the community of her husband. Therefore, the first respondent proposed to delete the community benefit given to her provisionally, from the ranked list. Ext.P2 is the show cause notice sent by the Public Service Commission on which the petitioner submitted Ext. PS reply dated 24-10-1990. In Ext. PS it is stated that her marriage to Mr. Sebastian was solemnised by a Latin Christian Priest in a Latin Church according to the Latin ceremony. She also produced community certificate to prove the same. The case of the petitioner is that by reason of her marriage to Mr. M.J. Sebastian, a Latin Christian, a change of community from Syrian Catholic to Latin Catholic has taken place in regard to the petitioner, and she become a member of her husband's community viz. Latin Catholic Community (other than Anglo Indian). Apprehending that the first respondent may delete her community status claimed as above from the ranked list, the petitioner filed this writ petition. 2. The facts that the petitioner is a Syrian Catholic by birth, and before the date of application she married a Latin Christian are not in dispute. The petitioner relied on the decisions of this Court in Dr.Kunjamma Alex v. P.S.C., 1980 KLT 18 wherein the learned Single Judge of this Court held that when a Syrian girl marries a Latin Catholic, it is possible for the girl to claim the benefit of Latin Catholic for the purpose of R.17 of the Kerala State and Subordinate Services Rules, 1958. The question raised in that case is as under: "When a Syrian Catholic Girl marries a Latin Catholic boy, does the girls became a Latin Catholic?" That was answered in favour of the petitioner in the affirmative. A writ appeal had been filed against the said decision and that was disposed of by the decision reported in P.S.C. v. Dr. Kunjamma Alex, 1981 KLT 24 on which strong reliance made by the counsel for the petitioner. The Division Bench held that on marriage the girl gets the community of her husband, viz. Latin Catholic. A writ appeal had been filed against the said decision and that was disposed of by the decision reported in P.S.C. v. Dr. Kunjamma Alex, 1981 KLT 24 on which strong reliance made by the counsel for the petitioner. The Division Bench held that on marriage the girl gets the community of her husband, viz. Latin Catholic. The short facts are: "The writ petitioner originally belonged to Syrian Catholic Community. On 30th December 1970 she got married to a person who, admittedly, belongs to the Latin Catholic (other than Anglo Indian) Community. That marriage was solemnised in a Latin Catholic Church in accordance with the rites observed therein. After a careful consideration of all the materials brought on record before him, the learned single judge came to the conclusion that by reason of the said marriage, a change of community had taken place in regard to the petitioner and she had become a member of her husband's community, namely, Latin Catholic (other than Anglo Indian) Community.Reference has been made by the learned single judge to the Canon Law governing the matter. Notwithstanding the persuasive arguments advanced before us by the learned Advocate for the appellant, we do not find any ground whatever for arriving at a conclusion different from that which has been reached by the learned single Judge. Hence, with respect, we agree with the finding entered by the learned single Judge. Hence, with respect, we agree with the finding entered by the leaned single judge that the action taken by the Public Service Commission as per Ext. PS for deleting the writ petitioner's name from the select list prepared by it of candidates found suitable for recruitment as Assistant Surgeon was illegal and unwarranted." 3. If the ma tier stood there, the petitioner had a good case and I would have admitted the original petition. But Standing Counsel for the first respondent, T.P.K. Nambiar, took notice and brought to my notice two decisions and also the subsequent events that eroded the authority of the decision of the Division Bench of this Court. It is submitted that the decision reported in 1981 KLT 24 was taken in appeal before the Supreme Court and in the petition for Special Leave to appeal (Civil) No.2850 of 1981 dated 3-4-1981, the Supreme Court passed the following order: "Special Leave to appeal granted. It is submitted that the decision reported in 1981 KLT 24 was taken in appeal before the Supreme Court and in the petition for Special Leave to appeal (Civil) No.2850 of 1981 dated 3-4-1981, the Supreme Court passed the following order: "Special Leave to appeal granted. The outcome of this Appeal shall not effect the present position of the respondent under the High Court Judgment. The operation of the judgment of the High Court generally stayed except in respect of the respondent." On the basis of this order, counsel for the first respondent submitted that there is general stay given by the Supreme Court and therefore, the principle laid down in 1981 KLT 24 cannot be followed in subsequent cases even though the parties in that case was given exemption from the general stay. Since the appeal against a judgment is pending, counsel for the petitioner submitted that the order passed by the Supreme Court is only the interim order and that will not affect the validity of the Division Bench ruling. Counsel for the first respondent submitted that in Writ Appeal No.542 of 1986, a Division Bench of this Court had occasion to consider the implication of the stay and held that in like cases, by virtue of the general stay of the Supreme Court, it is not necessary for the Public Service Commission to follow the decision in 1981 KLT 24. The observation of the Division Bench of this Court is as follows: "It is no doubt true as contended by the learned counsel for the appellant that the order made by the Supreme Court is only an interim order and the appeal is yet to be finally disposed of and that therefore there is possibility of the decision of this Court in 1981KLT24 being affirmed by the Supreme Court. But it cannot be said that the Public Service Commission has committed an error at this stage. If ultimately the decision of this Court in 1981 KLT 24 is affirmed by the Supreme Court, it is at that time we may be able to say that the action of the Public Service Commission is inconsistent with the law laid down by the Supreme Court on that question. If ultimately the decision of this Court in 1981 KLT 24 is affirmed by the Supreme Court, it is at that time we may be able to say that the action of the Public Service Commission is inconsistent with the law laid down by the Supreme Court on that question. Hence we are not inclined to interfere with the judgment of the learned single judge dismissing the Original Petition." The same view was taken by the same Division Bench in judgment dated 10-9-1986 in O.P.No.7175 of 1986 and following the Division Bench rulings, several writ petitions were also dismissed by this Court, two of them being O.P. No. 7799 of 1990 and O.P.No. 468 of 1987. Therefore, it is clear that the judgment of the Division Bench reported in 1981 KLT 24, so long as the operation of the same is stayed by the Supreme Court generally is not binding on the first respondent, and it is not necessary for the first respondent to follow the principles laid down by the Division Bench. 4. The prayer in the writ petition is to quash Ext.P2. It is well settled that Ext.P2f can be quashed only if it is vitiated by illegality, irrationality or procedural impropriety. The Division Bench of this Court in writ appeal No.542 of 1986stated that it is not necessary for the first respondent to follow the principles laid down in tin decision reported in 1981 KLT 24 and if an order is passed based on the general stay granted by the Supreme Court, the same will not be vitiated by illegality, irrationality of procedural impropriety. In CCSU v. Minister for the Civil Service, 1984 (3) All. E.R.935j the House of Lords held that: "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future o I the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community." This principle has been followed by the Supreme Court in ran/it Thakur v. Union of India, AIR 1987 SC 2386. In view of the above, Ext.P2 is not liable to be quashed. 5. The next prayer is for a writ of mandamus commanding the first respondent not to delete from the rank list the petitioner's community viz. Latin Catholic. In order to obtain a writ or order in the nature of mandamus, the petitioner has to satisfy that he has a legal right for the performance of a legal duty by the party against whom the mandamus is sought and such a right must be subsisting on the date of the petition. In ShriAnadi Mukta Sadguru S.M. V.S.J.M.S. Trust v. Rudani,1989 SC 1607, the Supreme Court held: "Article 226 confers power on the High Courts to issue writs for enforcement of this fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the;' State. They may cover any other person or body performing public duty. The form of the body) concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body,J The duty must be judged in the light of the positive obligation owed by the person or authority,; to the affected party. No matter by what means the duty is imposed. If a positive obligation exists! mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground! that the duty to be enforced is not imposed by the statute. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very/J wide remedy which must be easily available to reach injustice wherever it is found'. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very/J wide remedy which must be easily available to reach injustice wherever it is found'. Technicalities,' should not come in the way of granting that relief under Art.226." But in this case no right is established by the petitioner to extend the remedy by way of writ of mandamus to the petitioner, because, so long as the general stay of the Supreme] Court remains it cannot be stated that the petitioner has a right to be considered as Latin j Catholic though by birth she is a Syrian Catholic. There is no such duty on the part of j the first respondent to retain the petitioner's community as Latin Catholic. Hence, no! writ of mandamus also can be issued directing the first respondent not to delete the petitioner's community as Latin Catholic. 6. The Division Bench in writ appeal No.542 of 1986 and in O.P. 7175 of 1985 reserved the liberty to the candidates there into approach this Court with a fresh original petition in the event, the decision in 1981 KLT 24 is affirmed by the Supreme Court in the appeal pending before the Supreme Court and if the petitioner is still interested in pursuing their remedies. In the circumstances of the case, none of the reliefs sought by the petitioner can be granted by this Court. The Original Petition is, therefore, dismissed. However, I make it clear that the petitioner is at liberty to approach this Court with a fresh original petition in the event, the decision in 1981 KLT 24 is affirmed by the Supreme Court in the appeal pending before the Supreme Court and if the petitioner is still interested in pursuing her remedies.