IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 WP(C).No. 23785 of 2011(W) -------------------------- PETITIONER(S): ---------------------- ANUGEETHI, AGED 18 YEARS, D/O.K.AJAYAKUMAR, RESIDING AT JAYA NIVAS, MEPPAYIL POST, VADAKARA-4, KOZHIKODE DISTRICT. BY ADVS. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S): ------------------------- 1. THE COMMISSIONER FOR ENTRANCE EXAMINATION, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR, KERALA INSTITUTE FOR RESEARCH TRAINING AND DEVELOPMENT OF SCHEDULED CASTE AND SCHEDULED TRIBE, KOZHIKODE-673020. 3. THE VIGILANCE OFFICER, VIGILANCE CELL, DIRECTORATE OF KERALA, INSTITUTE FOR RESEARCH TRAINING AND DEVELOPMENT OF SCHEDULED CASTE AND SCHEDULED TRIBE, KOZHIKODE-673017. 4. THE TAHSILDAR, TALUK OFFICE, VADAKARA, KOZHIKODE-673101. 5. THE DIRECTOR OF HARIJAN WELFARE, OFFICE OF THE DIRECTOR OF HARIJAN WELFARE, THIRUVANANTHAPURAM-695001. 6. STATE OF KERALA, REP. BY ITS SECRETARY, SCHEDULED CASTE & SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM-695001. BY SPECIAL GOVERNMENT PLEADER SRI.PSANTHOSHKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23785 of 2011(W) ---------------------------------------- APPENDIX -------------- PETITIONER'S EXHIBITS ------------------------------------- EXT.P1 TRUE COPY OF THE CERTIFICATE DATED 22/2/1979 ISSUED BY THE TAHSILDAR, VADAKARA, ISSUED TO THE FATHER OF THE PETITIONER. EXT.P2 TRUE COPY OF THE CERTIFICATE DATED 20/7/2006 ISSUED BY THE TAHSILDAR, VADAKARA TO THE TAHSILDAR TO THE PETITIONER. EXT.P2(A). TRUE COPY OF THE CERTIFICATE DATED 31.1.2011 ISSUED BY THE TAHSILDAR, VADAKARA TO THE PETITIONER. EXT.P3 TRUE COPY OF THE CERTIFICATE DATED 18/9/2010 ISSUED BY THE MANNAN-VANNAN SAMUTHAYAKA SANGHAM TALUK COMMITTEE, VADAKARA TO THE PETITIONER. EXT.P4 TRUE COPY OF THE CERTIFICATES DATED 21/6/2011 ISSUED BY THE TAHSILDAR, VADAKARA ISSUED TO THE PETITIONER. EXT.P5 TRUE COPY OF THE CERTIFICATE DATED 4/6/2011 ISSUED BY THE N.S.S.MEPPAYIL, VADAKARA TO THE PETITIONER. EXT.P6 TRUE COPY OF THE CERTIFICATE DATED 4/6/2011 ISSUED BY THE CHAIRMAN, VADAKARA MUNICIPALITY TO THE PETITIONER. EXT.P7 TRUE COPY OF THE CERTIFICATE DATED 18/3/1982 ISSUED BY THE DIRECTOR OF HARIJAN WELFARE, THIRUVANANTHAPURAM TO THE PETITIONER. EXT.P8 TRUE COPY OF THE EXTRACT FROM THE ADMISSION REGISTER OF ST.ANTONY'S GIRLS HIGH SCHOOL IN RESPECT OF THE PETITIONER. EXT.P8(A) TRUE COPY OF THE EXTRACT FROM THE ADMISSION REGISTER OF S.N.ENGLISH MEDIUM SCHOOL IN RESPECT OF THE PETITIONER. EXT.P8(B) TRUE COPY OF THE EXTRACT FROM THE ADMISSION REGISTER OF GOKULAM PUBLIC SCHOOL IN RESPECT OF THE PETITIONER. EXT.P9 TRUE COPY OF THE TRANSFER CERTIFICATE ISSUED TO THE PETITIONER BY THE GOKULAM PUBLIC SCHOOL. EXT.P10 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR ADMISSION TO THE PROFESSIONAL DEGREE COURSE. EXT.P11 TRUE COPY OF THE EXTRACT FROM THE ADMISSION REGISTER OF GOKULAM PUBLIC SCHOOL IN RESPECT OF THE SISTER OF THE PETITIONER. WP(C).No. 23785 of 2011(W) ---------------------------------------- EXT.P12 TRUE COPY OF THE ORDER OF THE IST RESPONDENT WITHHOLDING THE RESULT TO THE PETITIONER, TAKEN FROM THE WEBSITE. EXT.P13 TRUE COPY OF THE ANTHROPOLOGICAL REPORT DATED 12/5/2011 OF THE VIGILANCE OFFICER, KIRTADS. EXT.P14 TRUE COPY OF THE ORDER DATED 10/6/2011 ISSUED BY R1. EXT.P15 TRUE COPY OF THE PETITION DATED 27/6/2011 SUBMITTED BY THE PETITIONER. EXT.P16 TRUE COPY OF THE JUDGEMENT DATED 25/7/2011 IN WPC.18310/2011. EXT.P17 TRUE COPY OF THE REPRESENTATION DATED 28/7/2011 SUBMITTED BY THE PETITIONER BEFORE R1. EXT.P18 TRUE COPY OF THE ORDER NO.B3-1165/11/CEE DATED 13/8/2011. RESPONDANTS'S EXHIBITS “ NIL ---------------------------------------- / TRUE COPY / P.A. TO JUDGE VK ANTONY DOMINIC, J. ================ W.P.(C) NO. 23785 OF 2011 ===================== Dated this the 28th day of September, 2011 J U D G M E N T Petitioner seeks to quash Exts.P12, P13, P14 and P15 and also prays for a direction to the 1st respondent to grant her admission treating her as a member of scheduled caste community (Vannan) to the Medical/Engineering Course. 2. Petitioner is the daughter of one Ajaykumar, whose father belonged to a Nair community and his mother to Vannan community. Petitioner's mother also is an offspring of an intercaste married couple, her father belonged to protestant Christian and mother to Nair Community. 3. It appears that the petitioner submitted Ext.P10 application for admission to Professional Degree Courses, 2011 claiming to be a scheduled caste and describing her community status as Hindu Vannan. The certificate incorporated in Ext.P10 is signed by the Additional Tahsildar, Vatakara. 4. She participated in the Entrance Examination, but however on account of the pendency of an enquiry into the caste status, her results were withheld. It appears that on receipt of the WPC No. 23785/11 :2 : application, her claim was forwarded for an enquiry by the 3rd respondent, who submitted Ext.P13 report, concluding that the petitioner has not been brought up, as a member of the Vannan Community and therefore recommended that her claim be turned down. Accordingly, the 1st respondent issued Ext.P14 proceedings accepting the report and rejecting the petitioner's community claim and the application submitted by her. 5. Ext.P13 report and Ext.P14 proceedings of the 1st respondent were challenged before this Court in WP(C) No.18310/11. That writ petition was disposed of taking note of the additional materials produced by the petitioner and with the following directions:- “Be that as it may, if Exts.P4 to P8 and P14 were produced, the conclusions need not have been the same as reflected in Ext.P10. In view of these documents which do not appear to have been produced during the enquiry, I feel fairness requires that the petitioner should be given an opportunity to have the materials produced and on that basis the matter should be reconsidered. In that view of the matter, I direct that the petitioner will produce Exts.P4 to P8 and Ext.P14 referred to above before the first respondent who thereupon shall reconsider the claim of the petitioner in the light of the materials so produced and necessary action shall be taken on that basis. It is directed that the petitioner shall produce WPC No. 23785/11 :3 : the materials as directed above along with a copy of this judgment before the first respondent within 10 days from today and if the materials are so produced, the matter will be reconsidered and fresh orders will be passed within four weeks thereafter.” 6. In pursuance to the aforesaid judgment, the matter was reconsidered by the 1st respondent and Ext.P18 proceedings have been issued, the relevant portions of which read as under:- “The father of the petitioner, Ajayakumar is an offspring of intercaste married couple of which his father belonged to Nair and mother to Vannan community. He married Sheeba, who is also an offspring of inter-caste married couple of which her father belonged to Protestant Christian and mother to Nair community. In the SSLC of candidate's mother, caste is shown as Hindu Nair. So it has been considered that the candidate and her parents had affinity towards upper caste. Candidate has claimed SC status only through her paternal grand mother. Hence the petitioner being the 2nd generation has no claim for SC reservation. The Ext.P4 i.e, the Proceedings of the Tahsildar, Vatakara has no relevance for second generation issue. Ext.P5 community certificate issued by the Tahsildar, Vatakara has already been subjected to scrutiny by KIRTADS and furnished recommendations against it. The Certificate issued by Mannan Vannan Samudaya Sangham, Vatakara Taluk Committee (Ext.P6), NSS Karayogam, Mepaayil Vatakara (Ext.P7) and the Certificate issued by the Chairman Vatakara Municipality (Ext.P8) cannot be accepted as these are issued by non-governmental agencies and its genuineness cannot be proved. The Ext.P14 letter is relating to the caste status of the father of the candidate. Being 1st generation it has no relevance in deciding the caste of the petitioner who belong to the 2nd generation. The SC/ST claim arises by virtue of the provision in Article 341 & 342 of the Constitution of India. WPC No. 23785/11 :4 : It doesn't entitle an offspring of 2nd generation (inter-caste married couple) the Constitutional benefit. In the above circumstances, the claim for SC status put forth by the petitioner, Anugeethi K is rejected. As per order of the Honourable Lok Ayukta dated 25.5.2009 in Complaint No.413/2008, the application of the petitioner is also rejected.” 7. It is challenging Ext.P18, the writ petition is filed. 8. Learned senior counsel for the petitioner contended that the enquiry was conducted by the 3rd respondent and that the 3rd respondent did not have any jurisdiction to conduct such enquiry in terms of the provisions contained in the Kerala (SC & ST) Regulation of Issue of Community Certificates Act, 1996. It is contended that only an expert agency as contemplated in Section 9, could have conducted the enquiry and for that reason, the very enquiry conducted by the Vigilance Officer is liable to be rejected. 9. Having considered the submissions made by the learned senior counsel and in the light of the contentions raised by the learned Government Pleader, I am inclined to think that there is no merit in the contention. Section 9 of the Act provides for the conduct of enquiry by an Expert Agency. Term “Expert Agency” has been defined in Section 2(g) of the Act, which reads as under:- WPC No. 23785/11 :5 : “2(g) 'Expert Agency' means an officer or team of officers belonging to the anthropological Wing in the Kerala - Institute for Research,Training and Development Studies for Scheduled Castes and Scheduled Tribes (KIRTADS) of the Scheduled Castes and Scheduled Tribes Development Department of the Government, entrusted with the research, training and developmental studies of the Scheduled Castes and Scheduled Tribes and to exercise the powers conferred under sub section (1) of section 9 and perform such other duties under the control of the Deputy Director (Anthropology) who shall function as the Vigilance Officer of the Vigilance Cell” 10. A perusal of Section 2(g) shows that an officer of the KIRTADS who exercise the powers under Section 9(1) is an expert agency within the meaning of Section 2(g). Therefore, the enquiry conducted by the vigilance officer, he being an officer of the KIRTADS, is perfectly valid in terms of Section 9 read with Section 2(g) of the Act noticed above. 11. Learned senior counsel then contended that the Act does not contemplate the proceedings by the Commissioner of Entrance Examination, who has passed Ext.P18 and that the report of the vigilance officer should have been verified only by the Scrutiny Committee. This contention also has no substance. In so far as the applications made for admission to educational institutions are concerned, the Screening Committee has been constituted under Section 6 of the Act, which reads as under:- WPC No. 23785/11 :6 : “6. Constitution of Screening Committee for verification of Community Certificate;-(1) The applications from members of the Scheduled Castes and the Scheduled Tribes for admission to the seats reserved for the Scheduled Castes and the Scheduled Tribes in educational institutions shall be got scrutinised by a Screening Committee constituted by Government in the prescribed manner, to ensure that the Community Certificate produced in support of the Scheduled Caste or the Scheduled Tribe claim of the applicant is genuine. (2) The Screening Committee may cause detailed enquiry through the expert agency to ascertain if the applicant actually belongs to the Scheduled Caste or the Scheduled Tribe, as the case may be, and shall reject the application if the applicant does not belong to the Scheduled Caste or the Scheduled tribe as claimed by him. Provided that rejection of the application shall be without prejudice to the actions that may be taken under sections 11, 15 and 16.” 12. A reading of Ext.P18 shows that it was in exercise of the powers thus conferred in Section 6 of the Act that enquiry was held and Ext.P18 has been issued. Therefore, in so far as the claims for admission to educational institutions are concerned, Section 8 has no relevance. In so far as this contention is concerned, there is yet another hurdle in the way of the petitioner in as much as the jurisdiction of the 1st respondent to consider the claim was not a matter which was disputed by the petitioner when WP(C) No.18310/11 resulting in Ext.P16 judgment was passed. It WPC No. 23785/11 :7 : has to be remembered that it was in pursuance to the directions in that judgment, the matter was reconsidered by the 1st respondent which led to Ext.P18 order and if the petitioner had a contention that the 1st respondent was incompetent to hold such enquiry, the petitioner should have raised that contention in the previous round of litigation. 13. Learned senior counsel then relied on the Apex Court judgment in M.Chandra v. M.Thangamuthu and another {(2010) 9 SCC 712} and Kodikunnil Suresh v. N.S.Saji Kumar {(2011) 6 SCC 430} and contended that the certificates produced by the petitioner shows that she has been accepted by the Vannan Community, her grand mother's community. In so far as the judgments relied on by the learned counsel is concerned, those are cases where the question of reconversion of scheduled caste/scheduled tribe community was dealt with by the Apex Court and in both these judgments, it was held that the evidence available before the court was sufficient to conclude the finding in favour of the claimants. In my view, therefore, these judgments have no relevance in a case of this nature and therefore these judgments also will not improve the case of the petitioner any WPC No. 23785/11 :8 : further. 14. Then what remains is whether the findings in Ext.P18 call for any interference. Before this question is answered, it has to be made it clear that under Section 10 of the Act, the burden is entirely on the applicant to prove his claim for community status. This section reads thus:- “10. Burden of proof.--Where an application is made to the Competent Authority under Section 4 for the issuance of a community certificate in respect of a Scheduled Caste or Scheduled Tribe or in any enquiry conducted by the Competent Authority, the Expert Agency, or the Scrutiny Committee or in any trial or offence under this Act, the burden of proving that he belongs to such Caste or Tribe shall be on the claimant.” 15. Therefore, in the light of this section what is to be examined is whether the petitioner has discharged her burden in proof that she belongs to Vannan Community. Extracted portion of Ext.P18 shows that apart from producing certain documentary evidence, petitioner has not adduced any further evidence. These documentary evidence has been appreciated by the 1st respondent and the 1st respondent found that the documents are unreliable and insufficient to conclude the finding in her favour. 16. Having regard to the nature of the evidence produced WPC No. 23785/11 :9 : without adducing any further proof in the matter, I am inclined to think that not only that the petitioner has not discharged her burden in terms of Section 10 of the Act, but also that the findings of the 1st respondent are not perverse warranting interference in a proceedings under Article 226 of the Constitution of India. Writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp