IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WP(C).No. 20530 of 2011(M) ---------------------------------- PETITIONER(S): ------------------- CHIPPY K.MARUVATHU, D/O. K.K.MARUVATHU, KUTHUKALLUNKAL HOUSE, PANACHIKKAVU P.O., PERUNNA WEST, CHANGANACHERRY. BY ADVS SRI.M.P.MADHAVANKUTTY SRI.GOKUL DAS V.V.H. RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001 2. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM - 695 001. 3. THE VIGILANCE OFFICER, VIGILANCE CELL, DIRECTORATE OF KIRTADS, KOZHIKODE-17. 4. TAHSILDAR, REVENUE TOWER, CHANGANACHERRY - 686 101. BY GOVT. PLEADER SRI.P.SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO.20530/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF APPLICATION FORM SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P2: COPY OF COMMUNITY CERTIFICATE DATED 31/10/2008. P3: COPY OF COMMUNITY CERTIFICATE DATED 23/12/2009. P4: COPY OF NOTICE DATED 04/05/2010 BEARING NO.B3/120/10/CEE (1) FROM THE OFFICE OF THE 2ND RESPONDENT. P5: COPY OF ORDER DATED 15/05/2010 BEARING NO.B3/120/10/CEE (35) ISSUED BY THE 2ND RESPONDENT. P6: COPY OF G.O.(MS) NO.109/2008/SCSTDD DATED 20/11/2008. P7: COPY OF the PROSPECTUS FOR THE ENTRANCE EXAMINATIONS FOR INTEGRATED FIVE YEAR LL.B. COURSE KERALA 2011 - 12. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs ANTONY DOMINIC, J ....................................................... W.P.(C).20530/2011 .............................................. Dated this the 28th day of July, 2011 JUDGMENT Petitioner applied for the Entrance Examination of the Integrated Five Year L.L.B Course, Kerala, 2011-12. According to the petitioner, her father belongs to Hindu Hill Pulaya Community, a Scheduled Tribe and her mother belongs to Hindu Viswakarma Community. It is her claim that she and other members of the family are following the customs and traditions of her father's community and that she too have suffered the disadvantages of being a Scheduled Tribe. 2. However, the fourth respondent did not issue the petitioner a certificate certifying her as a Scheduled Tribe candidate. Therefore, petitioner's application for admission in the Entrance Examination was treated among the General candidates. It is in these circumstances, the writ petition has been filed with the following prayers:- (i). To issue a writ of mandamus directing the 2nd respondent to consider and process Ext.P1 W.P.(C).20530/2011 2 application submitted by the petitioner and permit her to appear for the Entrance Examination for Integrated Fiver Year L.L.B Course Kerala, 2011-12. (ii). To issue a writ of mandamus directing the 4th respondent to issue community certificate to the petitioner showing that she belong to Hindu Hill Pulaya community. (iii). To issue a writ of certiorari and quash Ext.P4 notice and Ext.P5 order as illegal and arbitrary. (iv). To issue a declaration that the petitioner belongs to Hindu Hill Pulaya Community. 3. Petitioner submits that for the previous year, she made an application for admission to professional courses. At that stage, also, her claim as a Scheduled Tribe candidate was not considered on the basis of Ext.P4 report of the third respondent and Ext.P5 order of the second respondent. Challenging Exts.P4 and P5, petitioner filed W.P.(C).17287/2010 and that writ petition is still pending. 4. As far as the claim of the petitioner that she belongs to the Scheduled Tribe Community of Hindu Hill Pulaya is concerned, that was enquired into by the third respondent who submitted Ext.P4 W.P.(C).20530/2011 3 report. In the said report, while considering the status of the petitioner's father, being a Scheduled Tribe, third respondent has concluded thus- “The candidate's paternal grandparents Late Kuthimarvathu and Kuttiyamma Pathanamthitta District Belonged to Hindu Hill Pulaya origin. Out of the marital union between Late Kuthimarvathu and Kuttiyamma a child was born named K.K.Marvathu, the father of the candidate herein. He has not provided any details regarding his own paternal and maternal side to establish his ST claim. For his where about of his family members are unknown. The burden of proof is with the claimant itself as per Act 11 of 1996. However the revenue authority have issued a community certificate to the candidate as ST Hill Pulaya without all these details and it cannot be conceded”. Thereafter examining the merits of the case, the third respondent observed as follows - “Scheduled Tribe Hill Pulaya Community mainly concentrated in the Marayur area of Idukki District W.P.(C).20530/2011 4 but the claimant and the family has been residing at chenganassery since so many years. They have no affinity or milieu and circumstances to be deemed as a member of Hill Pulaya Community. Hence in this case, the ST claim is through her father which cannot be accepted in the light of the findings of enquiry as per Act 11 of 1996. Her mother belongs to Viswakarma (Kollan) Community. In this circumstances candidate's real caste status can be determined only on the basis of GO (MS) 109/2008/SCSTDD, dated 20.11.2008 and a copy of the same is produced herewith as Document-2. The order states that; “Authority who has to issue Scheduled Caste/Scheduled Tribe community certificate to the children born out of inter caste married couple of which one of the parents is Scheduled Caste/Scheduled Tribe should ensure that the claimant is subjected to the same social disabilities and also following the same customs and traditions and community has accepted that person to its fold as such”. Thus, as per the existing rules a child born out of the inter case marriage, who claims the SC status, should prove among other things that he/she claims to belong. Hence, in view of the above mentioned facts W.P.(C).20530/2011 5 the candidate's claim as a member of ST Hill Pulaya community cannot be conceded. More over she does not fulfill the criteria stipulated in G.O.(Ms). No.109/2008/SCSTDD, dated 20.11.2009 to consider him as a member of Scheduled Tribe Community. 5. It was on the aforesaid basis that the third respondent concluded that the petitioner is not eligible to claim for admission in the quota reserved for Scheduled Tribe candidates. It was accepting the above, that by Ext.P5, the second respondent also rejected the petitioner's claim. 6. When a person, who is born to an intercaste married couple claims the status of a Scheduled Tribe, it is the burden of that person to prove that he/she belongs to the Scheduled Tribe. In so far as this case is concerned, apart from the fact that the petitioner's father belongs to a Scheduled Tribe community, he was not able to substantiate that he or his family members follow the customs and traditions of that community. Further, petitioner also could not prove that as a result of her birth to an intercaste married couple of W.P.(C).20530/2011 6 which one is a Scheduled Tribe, she has suffered any disadvantages. In such a situation, on the materials available, third respondent cannot be faulted for the conclusion that he had arrived at in Ext.P3 and the second respondent also cannot be faulted for the view that he had taken in Ext.P5. Therefore, the prayer of the petitioner to quash Exts.P4 and P5 cannot be granted. 7. Once the said prayer for quashing Exts.P4 and P5 is rejected, refusal of the fourth respondent to issue a Scheduled Tribe certificate there upon also cannot be faulted. In view of the above, the relief sought for in the writ petition cannot be granted. 8. Be that as it may, as I have already held that it is because of the dearth of materials that the petitioner cannot succeed in this writ petition. On the other hand, the fact remains that she is born to an intercaste married couple and therefore, if the petitioner is able to satisfy the requirements of law to get herself recognized as a Scheduled Tribe candidate, she should be entitled to the consequential benefits. In order to enable the petitioner to get proved her claim as above, I direct that it will be open to the W.P.(C).20530/2011 7 petitioner to make a fresh application producing relevant materials before the fourth respondent in which event, the fourth respondent will conduct necessary inspection in the manner as laid down in Act 11 of 1996 and pass appropriate orders in the matter without any delay. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs