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2013 DIGILAW 521 (KER)

K. P. Jaya v. University of Kerala

2013-06-24

A.M.SHAFFIQUE

body2013
Judgment : 1. Petitioner seeks a writ of certiorari to quash Exts.P6, P9, P11 and P17. 2. By Ext.P6, the appointment of the petitioner as lecturer, Department of Hindi in University of Kerala was cancelled and the third respondent has been appointed in her place. This order came to be passed on the basis of a judgment of this Court in W P(C) No.15330 of 2005 dated 2.2.2010. This Court in the said judgment found fault with the selection committee in awarding marks to the qualification obtained by the petitioner after the last date of application and it was found by this Court that the comparative merits of the candidates are to be determined for selection as on the date of application. The University was therefore, directed to re-consider the marks allotted to the parties and take a decision. On preparation of a fresh rank list after re-assigning the marks awarded to the candidates, the third respondent was found to be in the first position and hence Exr.P6 order came to be passed. 3. Ext.P9 is a notification in the Kerala Gazette dated 17.11.1996 by which the third respondent had notified that with effect from the date of notification i.e, 30.11.1996 he shall belong to the community "Hindu-Ezhava" and the same shall apply in respect of all documents relating to him. 4. Ext.P11 is a certificate dated 19.11.1996 issued by the Tahsildar certifying that the third respondent belongs to "Hindu- Ezhava community" which is an OBC in Kerala. Ext.P17 is a certificate issued by the Tahsildar certifying that the third respondent is belonging to Hindu-Ezhava community which is designated as the backward class in the State of Kerala and that he does not belong to the category of "Creamy Layer" as per guidelines in G.O.(P) No.36/2000/SC/ST/DD dated 27.5.2000. The certificate is issued on 25.3.2003. 5. According to the petitioner, the third respondent was appointed to the post of Lecturer in University of Kerala in the post reserved for Ezhava community, whereas the third respondent's father Dr.K.Sukumaran belongs to Hindu Nadar community and mother belongs to Hindu-Ezhava community. It is contended that these informations were obtained by the petitioner under the Right to Information Act. 5. According to the petitioner, the third respondent was appointed to the post of Lecturer in University of Kerala in the post reserved for Ezhava community, whereas the third respondent's father Dr.K.Sukumaran belongs to Hindu Nadar community and mother belongs to Hindu-Ezhava community. It is contended that these informations were obtained by the petitioner under the Right to Information Act. In the Secondary School Leaving Certificate issued after the 10th standard, no caste is recorded and only by virtue of the Gazette Notification at Ext.P11 the third respondent claims to have been converted as Hindu-Ezhava, which according to the petitioner, amounts to fraud. Since the appointment was obtained by fraudulent methods petitioner seeks to declare that the appointment of the third respondent as null and void, and while challenging the impugned order at Ext.P6 and the caste certificate issued in favour of the third respondent seeks a direction to terminate the service of third respondent and recover the salary paid to him with interest and also seeks to reinstate the petitioner in service with all back wages and service benefits. 6. WP(C) No.11184 of 2011 is filed on the contention that the petitioner was working in S.N.College, Kollam as lecturer, selection grade and was the Head of Department. Meanwhile, University of Kerala invited applications from qualified candidates for various teaching posts including the post of Lecturer in the Department of Hindi reserved for OBC-Ezhava community. The notification also required the candidate to produce the certificate stating that they do not belong to Creamy Layer as contemplated in GO(P) No.36/2000/SC/ST DD dated 27.5.2000. 7. After the due selection process, petitioner was issued an appointment order as Lecturer in Department of University of Kerala on 12.5.2005 after she resigned her permanent job in the SN College. Thereafter, by virtue of a judgment in WP(C) No.15330 of 2005, the rank list was reconsidered and one Dr.Sujith, who is the third respondent in W P(C) No.17399 of 2011 came to be appointed, which appointment is under challenge in the said case. In the present case, the contention of the petitioner is that on account of the reassigning of the marks as per judgment of this Court, she lost her employment. She got the assignment as lecturer in the University of Kerala after resigning a permanent job. She did not have a lien in the earlier post and therefore, she could not get any employment. She got the assignment as lecturer in the University of Kerala after resigning a permanent job. She did not have a lien in the earlier post and therefore, she could not get any employment. She approached the Government and the University to create a super numerary post in the University as it was not on account of her fault that she had to be removed from service. Since no action was taken in the matter either by the State Government or the University, she has sought for a declaration to be absorbed in the service of the University with all service benefits and to make good the loss of her employment with SN College by paying her compensation to the tune of Rs.3.67 Crores. 8. Separate counter affidavit has been filed by the University in both the cases. In W P(C) No.11184 of 2011 it is contended that against the judgment of the learned Single Judge in WP(C) No.15330 of 2005, though an appeal was filed by the petitioner before the Division Bench of this Court and thereafter before the Supreme Court, the same came to be dismissed. According to the University, they have supported the petitioner in the writ petition filed by Dr.Sujith. However, when this Court had arrived at a conclusion and same came to be confirmed in appeal, the University had to reassign the marks in terms with the directions issued and as a result of which the petitioner had lost her employment. It is also contended that the petitioner cannot be appointed in a super numerary post as the said post can be created only in terms with the provisions of the University Act and the Rules framed thereunder and therefore, the claim of the petitioner cannot be entertained. Counter affidavit is filed by the third respondent in W P (C) No.17399 of 2011 inter alia indicating that the Government of Kerala in G.O.(MS)No.298 dated 23.3.1961 ordered that the children of intercaste marriages are entitled to special concessions if the mother of the said children is entitled by virtue of her caste. It is contended that since the mother of the respondent was Ezhava, the petitioner is also entitled to the benefit of Ezhava community, which was rightly granted. 9. It is contended that since the mother of the respondent was Ezhava, the petitioner is also entitled to the benefit of Ezhava community, which was rightly granted. 9. In regard to the contention with reference to Creamy Layer it is contended that the father of the third respondent Dr.K.Sukumaran became a Class-II officer at the age of 41 and was promoted as Class-I Officer at the age of 53, whereas the mother of the third respondent Smt.V.Sakuntala became a Class-II Officer at the age of 42 and retired as such from service. The petitioner's reference to Ext.P20 Government Order, to identify the Creamy Layer among the OBCs is inapplicable for the respondent. It is also contended that the respondent's father retired from service in the year 2000 and the mother in the year 1999. Applications for the posts were invited by the University in the year 2003. Therefore, neither of them could come within the definition of Government servant for the purpose of attracting the coverage of Creamy Layer and the disadvantage if any to the wards of the Government servant because of their service status. It is therefore, contended that there is no basis for the contentions urged by the petitioner. 10. The petitioner had filed a reply to the counter affidavit filed by the third respondent inter alia stating that in Ext.P16(a), an information received in regard to the caste of third respondent's father his community is shown as Hindu Nadar. When further enquiries were made regarding as to how the third respondent obtained the caste certificate as Ezhava, information was received regarding the Gazette notification. In the SSLC Book the column for caste is left as blank. According to the petitioner, the third respondent had committed fraud in the matter relating to his caste and had obtained various benefits by concealing material particulars. The learned counsel also referred to instructions issued by Government of India at Ext.P25 dated 14.10.2004 to the Chief Secretaries of all States and Union Territories. This is in the form of a clarification. Certain questions had been raised with reference to the application of the provisions to determine Creamy Layer. One of the question was whether the sons and daughters of parents who retired from service on the basis of which their sons and daughters continue to fall in Creamy Layer after retirement of the parents. Certain questions had been raised with reference to the application of the provisions to determine Creamy Layer. One of the question was whether the sons and daughters of parents who retired from service on the basis of which their sons and daughters continue to fall in Creamy Layer after retirement of the parents. The answer was that the sons and daughters of parents who were included in the Creamy Layer on the basis of service status of their parents shall continue to be treated in Creamy Layer even if their parents have retired or have died after retirement. Therefore, the contention of the petitioner is that when the parents were officers of Class-I, the petitioner cannot have the benefit of Non Creamy Layer and therefore, the very appointment is bad in law. 11. Counter affidavit is filed by the 4th respondent relying upon the Government Orders dated 23.6.1961, 25.1.1977 and 24.4.1979 to indicate that the children of intercaste married couple shall be given all the benefits entitled to OBC provided either the father or the mother belongs to OBC. Hence, according to them, there is no violation of the rules or malpractice in issuing the caste certificate to the third respondent whose mother belongs to Hindu- Ezhava community. According to them, since the third respondent is the son of an intercaste marriage couple he can claim caste status of either of the parents. That apart it is contended that since the parents of the third respondent had entered in Government service as tutors which was a Class-III post, they cannot be treated as Creamy Layer. The first respondent has filed a counter affidavit inter alia stating that petitioner was a party to the proceedings in W.P.(C)No.15330 of 2005 and once the judgment had become final, it is not open for the petitioner to reopen the same alleging fraud. According to the University, in so far as the third respondent has relied upon the various documents like Ext.R1(a) to prove that he belongs to Hindu-Ezhava community. The University had accepted the same and had given the appointment to the third respondent. 12. Petitioner had filed a reply to the counter affidavit filed by the University reiterating the very same contentions urged in the writ petition. Certain additional documents are also produced by the petitioner along with an additional affidavit. 13. The University had accepted the same and had given the appointment to the third respondent. 12. Petitioner had filed a reply to the counter affidavit filed by the University reiterating the very same contentions urged in the writ petition. Certain additional documents are also produced by the petitioner along with an additional affidavit. 13. The short question to be considered in the above writ petition is whether the appointment of the third respondent to the notified post in the reservation seat of Ezhava is in any way bad in law. According to the petitioner, admittedly the third respondent's father is a Nadar and mother is an Ezhava and therefore, the Government Orders dated 23.3.1961 and 24.4.1979 can have no application, as admittedly both the communities are Ezhava communities. According to the petitioner, by virtue of judgment of the Supreme Court in Punit Rai v. Dinesh Chaudhary ( (2003)8 SCC 204 ), the children born to intercaste marriages is determined by the caste of the father. Therefore, the contention of the petitioner is that a Gazette notification cannot change the caste of a person. His community has to be derived either from the caste of his father or if at all his mother's caste is adopted by him, it has to be found out as to whether he was following the customs and traits of Ezhava community. Therefore, the contention is that by issuing a Gazette notification based on a certificate obtained from the Tahsildar and thereafter claiming the benefit of Ezhava community for the purpose of reservation to a particular post is a fraud played by the third respondent and therefore, his appointment has to be set aside. Yet another contention is with reference to the Non Creamy Layer certificate obtained by the third respondent. According to the petitioner, Ext.P18(b) and P20(b) would show that though the third respondent's parents started their career as tutors in Hindi, the third respondent's father became a Group-A officer 11 months prior to the birth of third respondent and third respondent's mother became a lecturer on 25.11.1972, i.e, six months after the birth of third respondent. It is the contention of the petitioner that as per the criteria fixed, for identifying Creamy Layer among OBC in terms of Ext.P20, if both the parents belong to Class-I/Group A or Class-II/Group B, their offspring also belongs to the Creamy Layer. It is the contention of the petitioner that as per the criteria fixed, for identifying Creamy Layer among OBC in terms of Ext.P20, if both the parents belong to Class-I/Group A or Class-II/Group B, their offspring also belongs to the Creamy Layer. The learned counsel for the petitioner relies upon the clarification issued by the Ministry of Personal, Public Grievances and Pensions, Government of India at Ext.P25 to indicate that even if the parents have retired the children would continue to be in the Creamy Layer. 14. The learned counsel for the petitioner relies upon the following judgments in support of his contentions: (i). Bank of India and another v. Avinash D.Mandivikar and others ( (2005)7 SCC 690 ) is relied upon wherein the Supreme Court held that mere delay in making a reference does not invalidate the order of the scrutiny committee. When it is found that the scrutiny committee reports can be accepted to find that a particular person did not belong to a Scheduled Tribe, the observations about delayed reference loses its significance. When fraud is perpetuated, the para meters of consideration will be different since fraud and collusion vitiates even the most solemn proceedings in any civilized system of jurisprudence. (ii). Additional General Manager/Human Resource Bharat Heavy Electrical's Ltd. v. Suresh Ramkrishnan Burde (2007)5 SCC 336 ) is relied upon to contend that where a person secures an appointment on the basis of a false caste certificate he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. 15. On the other hand, learned counsel for the respondents relied upon the judgment of the Supreme Court in (i) C.M.Arumugam v. S.Rajgopal and others (1976)1 SCC 863 , paragraph 16 of the said judgment reads as under: 16. The last contention, which formed the subject-matter of controversy between the parties, raised the issue whether on reconversion to Hinduism, the first respondent could once again become a member of the Adi Dravida caste, assuming that he ceased to be such on conversion to Christianity. The argument of the appellant was that once the first respondent renounced Hinduism and embraced Christianity, he could not go back to the Adi Dravida caste on reconversion to Hinduism. He undoubtedly became a Hindu, but he could no longer claim to be a member of the Adi Dravida caste. The argument of the appellant was that once the first respondent renounced Hinduism and embraced Christianity, he could not go back to the Adi Dravida caste on reconversion to Hinduism. He undoubtedly became a Hindu, but he could no longer claim to be a member of the Adi Dravida caste. This argument is not sound on principle and it also runs counter to a long line of decided cases. Ganapathi Iyer, a distinguished scholar and jurist, pointed out as far back as 1915 in his well known treatise on "Hindu Law": ". . . caste is a social combination, the members of which are enlisted by birth and not by enrolment. People do not join castes or religious fraternities as a matter of choice (in one respect); they belong to them as a matter of necessity: they are born in their respective castes or sects. It cannot be said, however, that membership by caste is determined only by birth and not by anything else." (emphasis supplied) Chandravarkar, J. observed in Nathu v. Keshwaji: "It is within the power of a caste to admit into its fold men not born in it as it is within the power of a club to admit anyone it likes as its member. To hold that the membership of a caste is determined by birth is to hold that the caste cannot, if it likes, mix with another caste and form both into one caste. That would be striking at the very root of caste autonomy." Sankaran Nair, J. made observations to the same effect in Muthusami case and concluded by saying: "It is, of course, open to a community to admit any person and any marriage performed between him and any member would in my opinion, be valid." Ganapathi Iyer, after referring to these two decisions, proceeded to add: "Of course it is open to a person to change his caste by entering another caste if such latter caste will admit him ... in this sense there is nothing to prevent a person from giving up his caste or community just as the caste may readmit an expelled person or an outcasted person if he conforms to the caste observances." Since a caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member. The rules and regulations of the caste may not have been formalised: they may not exist in black and white: they may consist only of practices and usages. If, according to the practices and usages of the caste, any particular ceremonies are required to be performed for readmission to the caste, a reconvert to Hinduism would have to perform those ceremonies if he seeks readmission to the caste. That is why Parker, J., dealing with the possible readmission of a reconvert to Brahminism observed in Administrator-General of Madras v. Anandchari: "His conversion to Christianity according to the Hindu law, rendered him an outcaste and degraded. But according to that law, the degradation might have been atoned for, and the convert readmitted to his status as a Brahmin, had he at any time during his life renounced Christianity and performed the rites of expiation enjoined by his caste." The rites of expiation were referred to by the learned Judge because they were enjoined by the Brahmin caste to which the reconvert wanted to be readmitted. But if no rites or ceremonies are required to be performed for readmission of a person as a member of the caste, the only thing necessary for readmission would be the acceptance of the person concerned by the other members of the caste. This was pointed out by Varadachariar, J. in Gurusami Nadar v. Irulappa Konar11 where after referring to the aforesaid passage from Administrator-General of Madras v. Anandachari (supra), the learned Judge said: The language used in 9 Mad 466 merely refers to the expiatory ceremonies enjoined by the practice of the community in question; and with reference to the class of people we are now concerned with, no suggestion has anywhere been made in the course of the evidence that any particular expiatory ceremonies are observed amongst them. No particular ceremonies are prescribed for them by the Smriti writers nor have they got to perform any Homas. No particular ceremonies are prescribed for them by the Smriti writers nor have they got to perform any Homas. One has therefore only to look at the sense of the community and from that point of view it is of particular significance that the community was prepared to receive Vedanayaga and Defendant 5 as man and wife and their issue as legitimate." These observations of Varadachariar, J. were approved by Mockett, J. in Durgaprasada Rao v. Sudarsanaswami and he pointed out that in the case before him, there was no evidence of the existence of any ceremonial in Veda Baligi fisherman community of Gopalpur for readmission to that community. Krishnaswami Ayyangar, J. also observed in the same case that "in matters affecting the well being or composition of a caste, the caste itself is the supreme Judge" (emphasis supplied). The same view has also been taken in a number of decisions of the Andhra Pradesh and Madras High Courts in election petitions arising out of 1967 General Election. These decisions have been set out in the judgment of this Court in Rajagopal v. C.M. Arumugam (supra)." (ii). Rameshbhai Dabhai Naika v. State of Gujarat & others ( (2012)3 SCC 400 ) is relied upon to contend that it is not an inflexible rule of general application that in all cases the child must be deem to have taken his or her caste from the father. Paragraph 5 and 28 are relevant which reads as under: 5. The High Court seems to have read the decisions in Valsamma Paul, Punit Rai and Anjan Kumar as laying down the rule that in all cases and regardless of other considerations the offspring of an inter-caste marriage or a marriage between a tribal and a non-tribal would take his/her caste from the father. In the three decisions there are indeed observations (though by no means forming the ratio of the decisions) that may lend credence to such a view but the question is whether it can be said to flow from those decisions, as an inflexible rule of general application, that in every case of an inter-caste marriage or a marriage between a tribal and a non-tribal, the offspring must take his/her caste from the father. The clear answer, to our mind, is in the negative. The clear answer, to our mind, is in the negative. A careful examination of the three cases together with some other decisions of this Court would clearly show that what was said in Valsamma1 in a certain context has been rather mechanically and inappropriately extended and applied to different other fact situations as the law laid down in Valsamma. Xxxx xxxx xxxx xxxx xxxx 28. The Court in para 6 of the judgment in Anjan Kumar case, as quoted above, applied the test of acceptance in the community in which the woman gets married. But more importantly in para 7 of the judgment went into the specifics of the case on the question of upbringing of the appellant Anjan Kumar and recorded a finding of fact that he was "brought up in the environment of forward community (and) did not suffer from any disability from the society to which he belonged". Having arrived at the aforesaid finding of fact the Court proceeded to refer to several decisions, including Valsamma and the judgment of Sinha, J. in Punit Rai (in particular para 27 of the judgment) and in para 14 came to observe and hold as follows: (Anjan Kumar case, SCC p. 265) "14. In view of the catena of decisions of this Court, the questions raised before us are no more res integra. The condition precedent for granting tribe certificate being that one must suffer disabilities wherefrom one belongs. The offshoots of the wedlock of a tribal woman married to a non-tribal husband--forward class (Kayastha in the present case) cannot claim Scheduled Tribe status. The reason being such offshoot was brought up in the atmosphere of forward class and he is not subjected to any disability. A person not belonging to the Scheduled Castes or Scheduled Tribes claiming himself to be a member of such caste by procuring a bogus caste certificate is a fraud under the Constitution of India. The impact of procuring fake/bogus caste certificate and obtaining appointment/admission from the reserved quota will have far-reaching grave consequences. A meritorious reserved candidate may be deprived of reserved category for whom the post is reserved. The impact of procuring fake/bogus caste certificate and obtaining appointment/admission from the reserved quota will have far-reaching grave consequences. A meritorious reserved candidate may be deprived of reserved category for whom the post is reserved. The reserved post will go into the hands of non-deserving candidate and in such cases it would be violative of the mandate of Articles 14 and 21 of the Constitution." (Emphasis added) Here the Court said that "the offshoots of the wedlock of a tribal woman married to a non-tribal husband--forward class (Kayastha in the present case) cannot claim Scheduled Tribe status". But it was not on the reasoning of Valsamma that in an inter-caste marriage or in a marriage between a tribal and a non-tribal the woman gets transplanted into the community of the husband and gets her caste from the husband (para 31 of the judgment in Valsamma case) or the reasoning in Sinha, J.'s judgment that in the absence of any statutory law a person would inherit his caste from his father and not his mother even in a case of inter-caste marriage (para 27, Punit Rai case). Here the reasoning is that, "... such offshoot was brought up in the atmosphere of forward class and he is not subjected to any disability". That is exactly the reasoning of Valsamma in para 34 of the judgment and that as noted above is the true ratio of the decision in Valsamma. It is, thus, clear that it is wrong and incorrect to read Valsamma, Punit Rai and Anjan Kumar as laying down the rule that in an inter-caste marriage or a marriage between a tribal and a non-tribal, the child must always be deemed to take his/her caste from the father regardless of the attending facts and circumstances of each case." 16. The learned counsel appearing for the third respondent also relied upon the judgments in M.Nagabhushana v. State of Karnataka ( (2011)3 SCC 408 ) in order to contend that the writ petition is bad for constructive resjudicata and the principles of Order 2 Rule 2 of the Code of Civil Procedure. Another judgment relied upon is Sabeeha Faikage v. Union of India ( (2013)1 SCC 262 ). 17. The question for consideration apparently poses two issues. Another judgment relied upon is Sabeeha Faikage v. Union of India ( (2013)1 SCC 262 ). 17. The question for consideration apparently poses two issues. One is whether the petitioner is entitled to challenge the appointment of third respondent which has been made pursuant to directions issued by this Court and secondly whether the appointment of the third respondent can be treated as null and void on account of his claim as Hindu- Ezhava belonging to Non Creamy Layer category. The further question that arises in WP(C) No.11184/2011 is whether the petitioner is entitled for any appointment or compensation as the case may be. 18. In regard to the first question, I do not think that the writ petition can be thrown out on the ground of constructive res judicata. True that the petitioner was a party to the proceedings in WP(C) No.15330 of 2005. At the time both the petitioner as well as the third respondent claimed the reservation seat of Ezhava community. In the present writ petition, the petitioner alleges that the third respondent had committed a fraud in claiming the reservation seat of Ezhava community on the basis of documents received subsequent to the judgment of this Court in WP(C) No.15330 of 2005. The allegation is that a fraud has been committed by the third respondent on the University for the purpose of getting the appointment. It is not in dispute that fraud vitiates all solemn acts as held by the Supreme Court in various judgments including that in Bank of India and another v. Avinash D.Mandivikar and others ( (2005)7 SCC 690 ). According to the petitioner, the fraud had come to her notice only subsequent to the judgment of this Court. Therefore, when fraud is practiced the cause of action for challenging an appointment on the basis of fraud arises only at the time when the fraud is detected. When the fraud is detected only subsequent to the date of judgment of this Court in W P(C)No.15330 of 2005, the petitioner could raise such a contention and therefore, I do not think that the writ petition can be thrown out on the ground of constructive res judicata or for not having taken up the contention of fraud in the earlier proceedings. 19. In regard to the next contention, the argument is two fold. 19. In regard to the next contention, the argument is two fold. One is that third respondent's father was a Hindu Nadar and mother a Hindu-Ezhava. Both are under the OBC category. But as far as the present post is concerned it is reserved to OBC "Ezhava". The undisputed fact is that the third respondent had obtained a certificate from the Tahsildar on 9.11.1996 certifying that the third respondent is a Hindu-Ezhava. Ext.P11 is the said certificate. Another caste certificate dated 28.11.1996 is produced as Ext.R3(c) certifying that the third respondent is a Hindu-Ezhava. This certificate is seen issued for producing before the Superintendent of Government Press for publication. On 17.12.1996 by Ext.P9 a publication is made in the Kerala Gazette notifying that the petitioner belongs to a member of Hindu-Ezhava community. The third respondent obtained appointment as Public Officer, Hindi for the seat reserved for Hindu-Ezhava community in terms of Ext.P8 notification on 30.4.1997. The present notification to the post of lecturer in the Hindi department was published on 3.2.2003. The petitioner was appointed to the said post on 12.5.2005 and her probation was declared on 13.5.2006. She was promoted as Reader in the said department on 1.10.2006. Her appointment was set aside and Ext.P6 order was passed on 8.4.2010 and on the same day the third respondent was appointed. Therefore, according to the petitioner even from the date when the third respondent obtained employment in the Hindi Department on 30.4.1997 a fraud has been practiced. The second limb of argument is based on the Non Creamy Layer certificate produced. Ext.P20 is the relevant document, which lays down the guidelines to identify Creamy Layer among backward classes in the State of Kerala. Annexure-I to Notification No.8206/F3 /2000/SC/ST/DD dtd.12.6.2000 includes certain categories of persons have been excluded from the benefit of reservation to be granted to Non Creamy Layer as specified in Annexure-D. The second category includes Group-A Class-I Officers of All India Central and State Services. Apparently, the third respondent's parents were not directly recruited as Class-I Officers. Therefore, the said provision will not apply. In respect of sub group (B) again the persons who were appointed as Group-B/Class-II officers by way of direct recruitment. This also will not apply. It is not disputed that the third respondent's parents were appointed to the post of tutors which is not either Class I or Class II posts. Therefore, the said provision will not apply. In respect of sub group (B) again the persons who were appointed as Group-B/Class-II officers by way of direct recruitment. This also will not apply. It is not disputed that the third respondent's parents were appointed to the post of tutors which is not either Class I or Class II posts. Therefore, merely for the reason that they got promotion to a Class- I or Class-II post does not exclude them from the operation of reservation category for Non Creamy Layer. As such the third respondent was entitled to obtain a non creamy layer certificate and the contrary contention of the petitioner cannot be sustained. 20. Now coming back to the first limb of the question as to whether there was fraud on the part of the third respondent in claiming a certificate as "Ezhava candidate, the main contention urged by the petitioner is based on the judgment in Punit Rai's case, ( (2003)8 SCC 204 ) wherein the Supreme Court held that the caste of the children born in intercaste marriages is determined by the caste of the father. Prima facie it can been seen from the documents produced that in the SSLC book of the third respondent caste is not mentioned. He had obtained a certificate from the Tahsildar, who is the competent authority stating that he belongs to Ezhava community. A person born to a intercaste marriage and who has followed the custom and practices of his mother can adopt the said caste as held by the Supreme Court in C.M.Arumugam's case and Rameshbai Dabhai Naika's case. It is a matter to be enquired as to whether a particular person is following the religious custom and trait of a particular caste. Right from 1996, third respondent claimed the reservation under the Ezhava community and he was successful in getting the appointments also. When a competent authority like Tahsildar has issued a certificate of caste, there is no reason for the University to treat the same as void or make a further enquiry into the matter. Of course, an enquiry is required only if there is a complaint regarding the caste status of a person. When a competent authority like Tahsildar has issued a certificate of caste, there is no reason for the University to treat the same as void or make a further enquiry into the matter. Of course, an enquiry is required only if there is a complaint regarding the caste status of a person. Until the filing of the writ petition, there was no such complaint and therefore, it is not possible for this Court while considering the writ petition under Article 226 of the Constitution of India to declare the caste status of the third respondent and come to a finding in that regard. If the petitioner has a case that the caste shown by the third respondent was wrong, it is for the petitioner to place sufficient materials before the University and it shall be open for the University to make necessary enquiries in that regard. In the absence of any such finding by a competent authority, it may not possible for this court to take a different view from what has been opined by the competent officer regarding the caste status of the third respondent. In that view of the matter I do not think that the petitioner can seek any remedy that the third respondent does not belong to Ezhava community. However, having regard to the fact that these materials had been placed before this Court, it shall be open for the petitioner to submit a proper representation to the University with all these materials, in which event it is for the University to take a decision in the matter in the light of the documents produced and if necessary by conducting proper enquiry into the matter. 21. In regard to WP(C) No.11184 of 2011, the request of the petitioner is for compensation or for appointment to any other post. The petitioner submits that it is not on account of her fault that she had to be terminated. But on account of mistake on the part of the University in relying upon the materials and documents which were found to be incorrect by this Court. The contention is that at the time when she got appointment she was employed at S.N. College as selection grade lecturer. But on account of mistake on the part of the University in relying upon the materials and documents which were found to be incorrect by this Court. The contention is that at the time when she got appointment she was employed at S.N. College as selection grade lecturer. That opportunity had been lost and after Ext.P6 order, she is unemployed and therefore, the University will have to compensate the petitioner for the loss of salary which she had incurred on account of their wrongful act. 22. It is relevant to note that while the petitioner's appointment has been set aside by virtue of a judgment of this Court wherein it was found that the grant of marks during interview for certain aspects which were acquired by the petitioner after the last date of application was bad in law. The petitioner was also a party to the said proceedings. It is on the basis of the documents produced by the petitioner that the interview committee have given the marks. So it could only be stated that the petitioner also contributed in the matter relating to the interview board or committee to have given such marks on the basis of materials produced which related to acquisitions after the relevant date of application. It is on account of the fact that the petitioner had produced such materials like additional qualifications, publications in approved journals and participation and presentation of papers in national and international conferences that the interview board had given marks which according to the learned Judge was not correct because all those acquisitions were made prior to the last date prescribed for submitting application. When this finding entered into by the learned Single Judge of this Court was confirmed in appeal, I do not think that the University can be found fault with. In fact the University supported the petitioner at the time when the case was filed by the third respondent. Such being the situation, I do not think that the petitioner is entitled to claim any benefit in this writ petition and therefore, the writ petition is only to be dismissed. In the result, these writ petitions are disposed of as under: 1. WP(C) No.11184 of 2011 is dismissed. 2. W P(C) No.17399 of 2011 is disposed of permitting the petitioner to submit a detailed representation to the University in regard to the caste status of the third respondent. In the result, these writ petitions are disposed of as under: 1. WP(C) No.11184 of 2011 is dismissed. 2. W P(C) No.17399 of 2011 is disposed of permitting the petitioner to submit a detailed representation to the University in regard to the caste status of the third respondent. The University shall conduct necessary enquiry in the matter and pass appropriate orders, as early as possible.