IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 25-09-2008 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAH W.P.No.22820 of 2007 and M.P.Nos.1 & 2 of 2007 R. Gopalakrishnan ... Petitioner Vs. 1. The Chairman cum Secretary State Level Scrutiny Committee Adi Dravidar and Tribal Welfare Department Fort St. George Chennai – 600 009 2. The District Vigilance Committee Office of the Collectorate Madurai Rep. by its Chairman and District Collector 3. The General Manager (HRM) Human Resources Management Department Indian Bank H.O.66, Rajaji Salai Chennai – 600 001 4. The Deputy General Manager/Appointing Authority Indian Bank Vigilance Section Circle Office Salem ... Respondents Petition is filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the records relating to the order of cancellation of community certificate passed by the 2nd respondent dated 13-05-2007 in Ni.Mu.No.11063/98 (Adhi 8) and the consequential order of termination passed in Ref:CO:SAL:HRM:2007-08 dated 15-06-2007 on the file of the fourth respondent, quash the same. (Prayer amended in the writ petition as per Court order dated 28- 08-2008 in W.P.M.P.No.3 of 2007 in W.P.No.22820 of 2007. https://hcservices.ecourts.gov.in/hcservices/ For petitioner :: Mr. S. Doraisamy For respondents :: Mr. V. Kalyana Raman for M/s. Aiyar & Dolia for RR3 &4 Mr. M.Dhandapani, Spl.G.P. for RR1 & 2 ORDER The petitioner claims to belong to 'Malai Vedan' community which is a scheduled tribe. He made an application to the Tahsildar and a community certificate dated 23-11-1981 was issued by the Tahsildar to the petitioner in proceedings No.Na.Ka.A4.21947/81. He was thereafter appointed in the first respondent-Bank. At the time of appointment he was asked to produce a fresh community certificate in the proper format. This has also been produced. When he was in Erode he applied to the Revenue Divisional Officer who was then the appropriate authority to issue Schedule Tribe community certificates for his son Kannan. The District Collector, Erode sent a report that the petitioner did not belong to Malai Vedan community but the Hindu Vettuvar Community. This report was also forwarded to the second respondent Committee and the second respondent issued a notice on 03-10-2005 for enquiry. The petitioner filed W.P.no.35737 of 2005 since the second respondent had proceeded on the basis of the discreet report. Thereafter, the writ petition was not pressed and dismissed. The second respondent proceeded with the enquiry and cancelled the community certificate on 27-10-1983. Against that an appeal has been filed to the first respondent. In the mean time, the Bank had terminated his services and thereafter, this writ petition has been filed. 2. The learned counsel for the petitioner submitted that in view of the fact that G.O.(2D) No.108/2 Adi Dravidar and Tribal Welfare (CV-I) Department dated 12-09-2007 requires only the State Level Committee to scrutinise the Scheduled Tribe certificate, the petitioner should be given the said opportunity. 3. The learned Special Government Pleader made his submissions. 4. We have gone through the materials before us and also the records produced by the learned Special Government Pleader. According to the petitioner he belongs to Malaivedan community. The District Level Committee which is a Three Member Committee had passed an order on 13-05-2007 going through all the documents and after affording an opportunity. It is seen from the order passed by the District Level Committee that the petitioner had appeared on 25-11-2003 before the District Level Committee promising to produce several documents but thereafter did not produce any documents. He appeared on 10-01-2006 in response to the enquiry called for by the Three Member Committee formed as https://hcservices.ecourts.gov.in/hcservices/ per G.O.Ms.No.111. Therefore, it is clear from the order passed by the District Level Vigilance Committee that an opportunity had been given by the three member committee to the petitioner. As many as 12 documents were produced by the petitioner. 5. The first document is the community certificate given on 23-11-1981. In this, the Deputy Tahsildar's signature is not found. There is no signature of the Village Administrative Officer nor the Revenue Inspector and the seal is different from the usual Government seal. With regard to the second document, again the Tahsildar had not signed the certificate, it is merly signed as true copy. In his school records the petitioner has been shown as Vetuvan. Subsequently, with regard to his younger brother the community is shown as Malaivedan. The District Level Vigilance Committee came to the conclusion that the mention of the community as Vetuvan in the petitioner's certificate is alone correct and that subsequently, to take the advantages of the reservation, the other brother has shown himself as Malaivedan. The District Level Vigilance Committee held that there is no document to show how the petitioner had managed to get a certificate as Malaivedan though his school records show him as Vetuvan. There were other reasons, also, which weighed with the District Level Vigilance Committee with regard to the non-mention of the address and failure to prove the relationship between certain persons with the petitioner. But these may not be very crucial if otherwise the documents produced by the petitioner is convincing. However, the Anthropology expert also came to the conclusion that the examination of the petitioner shows that he did not have the special features of Malaivedan. For all these reasons, the Three Member District Level Vigilance Committee cancelled the certificate. They directed the petitioner file an appeal before the State Level Scrutiny Committee. The matter was pending before the State Level Scrutiny Committee, when this writ petition was filed and obviously stay has been obtained. 6. It was in Madhuri Patil's case(1995 AIR SC 94 (Kumari Madhuri Patil Vs. Addl. Commissioner, Tribal Development and others) that the Supreme Court laid down certain guidelines for streamlining the procedure for issuance of the social status certificate. In 2008 I MLJ 125(G.M. Indian Bank Vs. R. Rani and another), the Supreme Court held that when an order has been passed by a Two Member Committee, whose constitution is contrary to Madhuri Patil's case, the said defect could not be cured by taking the matter to the State Level Committee. In Writ appeal No.677 of 1999 dated 13-03-2000(E. Sankaran Vs. The Collector of Dharmapuri, this Court set aside the conclusion arrived on the basis of a discreet enquiry. In W.A.No.1005 of 2006 dated 07-08- 2006 (The Deputy General Manager Vs. M. Ravikumar), this Court had directed the employers to wait for the decision of the State Level Committee before terminating the employer. 7. In W.P.No.4352 of 2007 dated 29-08-2007 (K. Gangarani V. The State of Tamilnadu and others), the petitioner was https://hcservices.ecourts.gov.in/hcservices/ appointed in a vacancy reserved for Schedule Tribe. She claimed that she belonged to Hindu Kattunaicken community. When the community certificate was sent for verification, the Revenue Divisional Officer sent a report stating that the petitioner does not belong to the said community. Therefore, the District Collector directed that the proceedings be initiated for cancellation of the community certificate. The petitioner filed W.P.No.1305 of 1999 where without going into the merits, this Court directed that the District Level Caste Scrutiny Committee established under G.O.Ms.No.18(2D) alone could verify the community certificate. Again the District Level Vigilance Committee found that she does not belong to the Kattunaicken community. The petitioner again filed a writ petition. Thereafter, again the District Level Vigilance Committee conducted a detailed enquiry and came to the same conclusion. The petitioner again approached the Court by filing W.P.No.27210 of 2003 which came to be disposed of in the light of G.O.Ms.No.111 dated 06-07- 2005 which provided for re-constitution of the District Level Vigilance Committee by co-opting an Anthropologist as the third member and it was directed that the re-constituted Three Member District Level Committee is addressed to verify her communal status and pass appropriate orders. This Three Member District Level Committee reconstituted as per G.O.Ms.No.111 dated 06-07- 2005 verified the validity of the community certificate and held that the petitioner does not belong to the Kattunaicken community. This was challenged in the above writ petition viz., W.P.No.4352 of 2007. It was contended before the First Bench that the Scheduled Tribe Community certificate can only be cancelled by a Three Member State Level Committee and not the District Level Vigilance Committee. The Division Bench held that there was no infirmity in the constitution of the Three Member District Level Vigilance Committee and the same was in conformity with the scheme formulated in Madhuri Patil's case and the decision by the District Level Vigilance Committee is final and no further appeal would lie to the State Level Committee and the remedy of the aggrieved party is to approach the High Court under Article 226 of the Constitution of India. The learned Government Pleader had submitted before the First Bench that without properly understanding the G.O.Ms.No.111, the District Level Vigilance Committee has ordered to file an appeal before the Government whereas there is no appellate forum. Coming to the merits of the case, the First Bench held as follows: "11. Coming then to the merits of the case on hand, the learned counsel appearing for the petitioner has taken us through the detailed order passed by the District Level Vigilance Committee. The Committee has conducted a thorough enquiry after affording opportunity of personal hearing to the petitioner and upon detailed analysis of the documents produced on record, recorded a categorical finding that the petitioner does not belong to Hindu Kattunaicken caste. The Committee has noted that in the school register the petitioner's caste has https://hcservices.ecourts.gov.in/hcservices/ been mentioned as "Nayakkar" and subsequently, it has been altered as "Kattunayakan" and it has been counter signed by the Headmaster. It is also noticed by the Committee that in the same register in the next column the petitioner has been shown as belonging to "Backward Class community" and subsequently, after making alterations the petitioner has been shown as falling under the category of Scheduled Tribe in the column Tribal. It is further noted by the Committee that in the college transfer certificates of the petitioner's sisters, the caste has been mentioned as "Hindu Gourava". It is also observed by the Committee that the petitioner has not cared to produce the school attendance register of her father and instead produced a service certificate, which on enquiry was found that the said certificate was already cancelled by the competent authority. The Committee has also interviewed the petitioner with regard to her family habits, customs, etc., and on careful analysis with the help of an Anthropologist expert held that the family habits and the general mannerism of the petitioner does not belong to the "Kattunayakan" caste and instead belong to Backward "Gourava" community. This factual finding given by the authority cannot be interfered with by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. 12. In the result, this writ petition is dismissed. The interim relief stands vacated. It is open for the third respondent to take appropriate action in the light of the judgment of the Supreme Court in R.Viswanatha Pillai v. State of Kerala, AIR 2004 SC 1469 and the judgment of the Division Bench of this Court in Kavitha v. State of Tamil Nadu (supra). No costs. Consequently, connected miscellaneous petitions are closed." 8. In AIR 1995 SC 1506(Director of Tribunal Welfare, Government of Andhra Pradesh Vs. Laveti Giri and another) the Supreme Court held that the burden of proof as to social status is always on the person who propounds it to seek constitutional socio-economic advantages and that it is no part of the duty of the State to prove or disprove it. They reaffirm the guidelines laid down in Madhuri Patil's case. 9. Now let us examine the present case. We find from the affidavit filed by the petitioner in W.P.No.35737 of 2005, wherein the petitioner has stated that the Tribal Vedar Community is called by different names in different parts of the State and the third respondent had not made it clear that what are the communities included in the "Malai Vedan" community and whether Vettuvan community is included and therefore, the writ petition itself was for a prayer to clarify whether Vettuvan community falls under Schedule Caste category and what are the sub-caste in https://hcservices.ecourts.gov.in/hcservices/ the Malai Vedan community. 10. It was strenuously contended by the learned counsel for the petitioner that the matter should go back to the State Level Scrutiny Committee, which is the appropriate Committee as per G.O.(2D) No.108/2 Adi Dravidar and Tribal Welfare (CV-I) Department. The impugned order in this case by which the petitioner's certificate was cancelled was issued by the Three Member District Level Vigilance Committee. This is dated 15-06- 2007. G.O.(2D) No.108/2 Adi Dravidar and Tribal Welfare (CV-I) Department is dated 12-09-2005. In this G.O., the State Government had separated the scrutinisation Committee for Scheduled Caste and Scheduled Tribes. The District Level Vigilance Committee would scrutinise the Scheduled Caste Certificate and the State Level Scrutiny Committee would scrutinise the Scheduled Tribe Certificate. Both comprised of three members which included one Anthropologist. The State was alive to the fact that by G.O.Ms.No.111 dated 06-07-2005, a Three Member District Level Vigilance Committee had been constituted for scrutinising Scheduled Tribe Certificates also and had passed orders prior to G.O.(2D) No.108/2 Adi Dravidar and Tribal Welfare (CV-I) Department dated 12-09-2007, came into effect and had therefore, given directions for dealing with such orders. Paragraph No.3 of the said Government Order reads as follows: "The decision taken by the District Level Vigilance Committee re-constituted in Government Order (Ms) No.111, Adi Dravidar and Tribal Welfare, dated 6-7- 2005 for verification of the genuineness of Community Certificates issued as Scheduled Tribes is final for the cases which were remitted to the three member District Level Vigilance Committee by the State Level Scrutiny Committee as per Court direction upto the date of issue of this order. The individuals who have already appealed to the State Level Scrutiny Committee against the orders passed by the re-constituted by 3 member District Level Vigilance Committee in G.O. (Ms)No.111, Adi Dravidar and Tribal Welfare, dated 6-7-2005, in case of the certificate issued by the Deputy Tahsildar / Tahsildar be directed to initiate proceedings under Article 226 of the Constitution of India before the High Court, Madras. The appeal petitions already received by the State Level Scrutiny Committee against the orders passed by the two member District Level Vigilance Committee and which were not remitted back to the reconstituted three member District Level Vigilance Committee by the Government as the cases are challenged before the Court and thereby pending before the State Level Scrutiny Committee be enquired only by the State Level Scrutiny Committee irrespective of the certificate issued as Scheduled Castes/Scheduled Tribes. In respect of cases pending before the Court and not remitted to the State Level Scrutiny Committee, the out come of such cases have to https://hcservices.ecourts.gov.in/hcservices/ be awaited." (Emphasis supplied) Therefore, on the date when the District Level Vigilance Committee had considered the caste certificate, the District Level Vigilance Committee was properly constituted under G.O.Ms.No.111 and it comprised of 3 Members as per Madhuri Patil's case and it also had a anthropology expert to see if the particular applicant had the special characteristic of the Scheduled Tribe to which he claimed he belong to. This G.O. specifically provided that the individuals who have appealed to the State Level Scrutiny Committee against the orders passed by the re-constituted Three Member District Level Vigilance Committee shall initiate proceedings under Article 226 of the Constitution of India. Therefore, this case falls under that category. The petitioner had appealed to the State Level Scrutiny Committee which had no appellate jurisdiction. So the order passed by the Three Member District Level Committee should be reviewed by us in Article 226 of the Constitution of India, which we propose to do. 11. We have gone through the records and we see that originally the petitioner had gone before the Two Member Committee in 2003 and given certain statements. Then, after the constitution of the Three Member Committee as per G.O.Ms.No.111, notice was issued to the petitioner to appear before the District Level Committee for verification. The petitioner sent a letter stating that he had some abdominal operation and he could not come. It was adjourned to suit him. Thereafter, the petitioner gave a request on 01-12-2005 requiring the Secretary, Adi Dravidar and Tribal Welfare Department to clarify what are the different names which are synonymous with Malai Vedan community. It is thereafter, he filed W.P.No.35737 of 2005 and withdrew it. In December 2005, the District Collector addressed a letter to the employer of the petitioner stating that the petitioner had been called upon to appear for the enquiry on several dates 25-08-2005, 25-10-2005 and 21-11-2005 and that the petitioner was evading the enquiry. Thereafter, since the communication was sent directly to the employer having no other option, the petitioner appeared before the Committee. He produced several documents. The Three Member District Level Committee comprising of the Anthropologist passed the impugned order. Fair opportunity had been given to him. He had also appeared and given his written statements. We have also seen the caste certificate furnished by him bears no seal. It is merely signed as a true copy without the signature of the original person who has given the certificate. So the certificate is a true copy of an unsigned certificate. Then it is not a true certificate. The Anthropologist's conclusion also went against the petitioner. The petitioner has also indirectly come out with the truth, when he asked for a clarification that Vettuvan community belongs to the Malai Vedan Community. The Supreme Court in State of Maharashtra Vs. Milind and others (2001 (1) SCC 4) has held that, "The States have no power to amend Presidential https://hcservices.ecourts.gov.in/hcservices/ Orders. Consequently, a party in power or the Government of the day in a State is relieved from the pressure or burden of tinkering with the Presidential Orders either to gain popularity or secure votes. ...Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste; a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342. Allowing the State Governments or courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the schedule of the Presidential Order, when it is not so specifically included, may lead to problems. In order to gain advantage of reservations for the purpose of Article 15(4) or 16(4) several persons have been coming forward claiming to be covered by Presidential Orders issued under Articles 341 and 342. This apart, when no other authority other than Parliament, that too by law alone can amend the Presidential Orders, neither the State Governments nor the courts nor Tribunals nor any authority can assume jurisdiction to hold inquiry and take evidence to declare that a caste or a tribe or part of or a group within a caste or tribe is included in Presidential Orders in one entry or the other, although they are not expressly and specifically included. Therefore, it has to be held that it is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution(Scheduled Tribes) Order, 1950." 12. To summarize, (a) as per G.O.(2D)No.108/2 Adi Dravidar and Tribal Welfare (CV-I) Department dated 12-09-2007 against an order passed by a Three Member District Level Vigilance Committee even with regard to Scheduled Tribe Certificate if such order is prior to the date on which the said G.O. came into force, it is final, subject only to review under Article 226 of the Constitution of India. (b) Fair enquiry had been conducted by the District Level Vigilance Committee and after unduly protracting the matter the petitioner had appeared before the Committee given his statement and had also produced the documents. (c) He rested his case on a caste certificate which bears no seal and which is signed as a true copy. Therefore, it is a true copy of an unsigned certificate https://hcservices.ecourts.gov.in/hcservices/ which does not in any way advance his case. (d) The Anthropology expert concluded that the petitioner does not have the special characteristics of the community to which he claims he belongs. (e) The petitioner prayed for inclusion of several subcastes like Vettuvan in the Malaivedan community. This is contrary to the judgment of the Supreme Court. (f) There is evidence to show that the petitioner belongs to Hindu Vettuvan Community which is The petitioner has prolonged the matter only to cling on to the job which had been wrongfully secured by him. And as observed in W.P.No.4352 of 2007 it is open to the third respondent to take appropriate action in accordance with law. The cancellation of the Scheduled Tribe Certificate is confirmed. 13. The writ petition is dismissed with costs of a sum of Rs.1500/-. The connected miscellaneous petitions are also dismissed. Sd/- Asst. Registrar /True Copy/ Sub Asst. Registrar glp To 1. The Chairman cum Secretary State Level Scrutiny Committee Adi Dravidar and Tribal Welfare Department Fort St. George Chennai – 600 009 2. The District Vigilance Committee Office of the Collectorate Madurai Rep. by its Chairman and District Collector +2ccs to M/s.Aiyar & Dolia, Advocate Sr 55359 & 54836 +1cc to Govt. Pleader Sr 54849 RJ(CO) km/16.10. W.P.No.22820 of 2007 https://hcservices.ecourts.gov.in/hcservices/