N THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.03.2010 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.18251/2008 & M.P.No.3/2008 E.Arasu ... Petitioner Vs. 1.The State of Tamil Nadu Rep. by its Secretary to Government Adidravidar and Welfare Department, Fort St. George, Chennai – 600 009. 2.The District Collector and Chairman District Level Vigilance Committee Chennai District, Chennai 600 001. 3.State Bank of India, Rep. by its Assistant General Manager, Region III, Zonal Office, Rajaji Salai, Chennai – 600 001. 4.Assistant General Manager, State Bank of India, Office Administration Department, Local Head Office, College Road, Chennai 600 006. ... Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the concerned records from the second respondent and to quash the order of the second respondent bearing P4/60665/1998 dated 30.05.2008 and consequently direct the 3rd and 4th respondent to continue the petitioner in employment. For Petitioner :Ms.R.Kamatchi Sundaresan For Respondents :Mr.M.Dhandapani Special Govt. Pleader (W) for R1 to R2 Mr.P.D.Audikesavalu for R3 to R4 https://hcservices.ecourts.gov.in/hcservices/ ORDER T.S.SIVAGNANAM,J. The prayer in the writ petition is for issue of a writ of Certiorarified Mandamus to quash the order passed by the second respondent dated 30.05.2008 and for a consequential direction to the third respondent to continue the petitioner in employment. 2. The matter in issue relates to verification of the communal status of the petitioner and the proceedings of the District Level Vigilance Committee in that regard. 3. The case of the petitioner is that he belongs to a Hindu Adi Dravidar community and his parents lived and died as Hindus that he was born on 03.01.1970 in Ramancherry Village, Thiruvallur District, which is a Harijan colony, he had studied upto 8th standard and the certificate issued by the School authorities indicate that he belongs to Hindu Adi Dravidar community. During 1985, he applied for a community certificate to the Tahsildar, Purasaiwakkam, Perambur Taluk and after verification a community certificate was issued on 26.03.1985, stating that the petitioner belongs to a Hindu Adi Dravidar community, which is recognized as Scheduled Caste under the Constitution (Scheduled Caste order 1950). Even prior to obtaining the community certificate, the petitioner secured an employment with the third respondent bank as a temporary messenger on full time basis in leave vacancies. According to the petitioner, the employment secured by him was not based on his communal status. Subsequently, pursuant to a settlement entered into between the Bank and the Employees Union under Section 18(1) of the Industrial Disputes Act, the petitioner was absorbed in the post of messenger and an order of appointment dated 02.12.1994 was issued. It appears that the fourth respondent by proceedings dated 10.11.1998 requested the second respondent to conduct an enquiry about the communal status of the petitioner and the certificates produced by the petitioner dated 05.07.1989 and 28.05.1998 and copy of marriage invitation purported to be that of the petitioner were forwarded to the second respondent for verification. 4. Based on such request received from the fourth respondent, the Tahsildar was directed to conduct a discreet enquiry and a report of such enquiry had been submitted by the Tahsildar on 21.12.1999. This enquiry according to the petitioner is without notice to him and he was not informed of any such enquiry. Thereafter, a show cause notice was issued by the second respondent dated 27.07.2001, wherein it has been stated that a request has been made by the Bank for verification of the genuineness of the communal status of the petitioner and based on https://hcservices.ecourts.gov.in/hcservices/ which the Tahsildar has submitted a report on 21.12.1999, stating that the petitioner is a Christian and does not profess Hindu religion and that the copy of the wedding invitation card of the petitioner, which was forwarded by the fourth respondent, was taken up for verification and one of the members of the second respondent committee was deputed to ascertain the information from the TELC Luthern Bethel Church, Mangalapoori, Chennai-12, as to whether the petitioner was married in the said church as in the wedding invitation and on enquiry the church issued certificate of marriage, which is a true extract from the register of marriages kept by TELC church, Chennai – 12, which confirmed that the marriage was solemnized in the church. Based on these allegations, it was stated that it has come to light that the petitioner is not a Hindu Adi Dravidar and petitioner was called upon to submit his reply within a period of 15 days, failing which stated that the community certificate would be cancelled. The petitioner by reply dated 28.12.2001, submitted that the Marriage Registration Certificate referred to in the show cause notice does not relate to the petitioner and allegations have been made against him out of animosity and irrelevant marriage certificate has been sent and that the petitioner has been a Hindu ever since his birth. The petitioner also submitted certain other reasons to sustain his claim that he is a Hindu Adi Dravidar. The petitioner was afforded an opportunity of personal hearing on 29.10.2004 in which he had appeared and stated to have reiterated the contention raised by him earlier. Thereafter, the impugned order has been passed by the second respondent holding that the petitioner does not belong to Hindu religion and ordered for cancellation of the three community certificates dated 26.03.1985, 05.07.1989 and 28.05.1998 issued to the petitioner as Hindu Adi Dravidar, since he belongs to a Christian community. This order dated 30.05.2008 is impugned in the present writ petition. 5. Heard, Mr.R.Kamatchi Sundaresan, learned counsel appearing for the petitioner, Mr.M.Dhandapani, learned Special Government pleader appearing for the respondents 1 & 2 and Mr.P.D.Audikesavalu, learned counsel appearing for the respondents 3 & 4. 6. The learned counsel appearing for the petitioner would assail the correctness of the impugned order on the following grounds. (i)The impugned order is based on a report submitted by the Tahsildar dated 21.12.1999, which is a report submitted after conduct of enquiry and the copy of such report was not furnished to the petitioner and the petitioner was not given any notice prior to such inspection conducted by the https://hcservices.ecourts.gov.in/hcservices/ Tahsildar. Therefore, there is violation of the principle of natural justice and the impugned order is liable to be set aside. (ii)The photostat copy of the marriage invitation and marriage certificate have been relied upon in the impugned order and these document were not proved in the manner known to law and no officer of the church was examined to prove the contents of the certificate of marriage issued by the church and the petitioner having contended that the certificate does not relate to the petitioner, the onus is on the respondents to prove the certificate relates to the petitioner and having failed to do so the impugned order is not sustainable. (iii)The petitioner has not been furnished with the copy of the certificate, which is stated to have been issued by the TELC Luthern Bethel Church, Managalapoori, Chennai -12 and without furnishing copy of the said certificate, the second respondent was not justified in passing the impugned order. (iv)That the petitioner has several records such as transfer certificate is issued to his brother by the school authorities, mark statement of the petitioner's wife, community certificate issued to the petitioner's brother-in- law, certificate issued by the President, Mangalapoori Harijan Co-operative House Sites Society Limited, certificate issued by Adivasi Harijan Welfare Federation, certificate issued by Arulmigu Semathamman Temple, certificate of the Village Administrative Officer to establish his communal status and no documents were called for from the petitioner and therefore, the observation in the impugned order that the petitioner did not produce any documents is untenable. (v)That the District Adi Dravidar and Tribal Welfare Officer by proceedings dated 07.09.2004 stated that one Mr.Elumalai, who is the relative of the petitioner belongs to Hindu Adi Dravidar community as per the enquiry conducted by the Revenue Divisional Officer Thiruvallur and this report has not been considered and the reason for rejecting such report is perverse. (vi)The finding of the report submitted by the Tahsildar dated 21.12.1999 stating that in a surprise inspection made to the petitioner's house, there were no idols and photos of Hindu Gods and based on enquiry with the relatives revealed that the petitioner belongs to Christianity, is an absurd https://hcservices.ecourts.gov.in/hcservices/ finding. (vii)That the petitioner's employment with the bank was not based on his communal status and the appointment of the petitioner as messenger on 02.12.1994 is not based on any communal roster, but as a result of a settlement arrived at under Section 18(1) of the Industrial Disputes Act between the employees Union and the Bank and such appointment is solely based on the length of his temporary service. Therefore, even if the community certificate stands cancelled, it would not affect the petitioner's employment. 7. Per contra, the learned Special Government Pleader would contend that the report of the Tahsildar dated 21.12.1999 was submitted pursuant to a request made for a discreet enquiry on the petitioner's communal status in the locality and mere non-supply of such report would not vitiate the impugned order as such report was not the basis for passing the impugned order. Further, the petitioner did not seek for a copy of such report. 8. The show cause notice dated 27.07.2001 was served on the petitioner through his employer and it was clearly stated that based upon the copy of the wedding invitation, which was forwarded by the fourth respondent, the committee directed a one of its member to ascertain the truth of the information as to whether the petitioner's marriage was solemnized in the church on 12.02.1987 as stated in the wedding invitation, and that the church has issued an extract of the marriage registration, wherein it appears that the petitioner is a Christian and the petitioner was directed to show cause as to why the community certificate should not be cancelled. In the petitioner's reply dated 28.12.2001, the petitioner stated that he has no connection with the marriage certificate forwarded, it does not relate to him and that he is a Hindu by birth and continuous to be a Hindu. Therefore, the petitioner had been furnished all the relevant information and the wedding invitation was forwarded and the marriage certificate also was within the knowledge of the petitioner, but the stand taken by the petitioner is that, that marriage certificate does not relate to him. If that be the case the onus is on the petitioner to dislodge the presumption as to the correctness of such marriage certificate, which is presumed to be valid until set aside or nullified in the manner known to law. https://hcservices.ecourts.gov.in/hcservices/ 9. The school records produced by the petitioner are not admissible, since such records have been issued based on self- declaration, likewise, the certificates issued by certain societies, association, temples, village administrative officer are not valid proof of the petitioner's communal status and as such no weightage could be given to such certificates. 10. Admittedly, the enquiry proceedings commenced with a show cause notice on 27.07.2001 and proceedings were going on till 2008, nothing prevented the petitioner from producing any documents in support of his claim and it is not for the authorities to call for such documents, since the onus is on the petitioner to establish his communal status. 11. That perusal of the extract of the marriage certificate clearly establishes that the bride and groom mentioned therein are none other than the petitioner and his wife and the name of the petitioner's father as well as the name of his father-in-law have been correctly mentioned in the certificate and in the absence of any proof to show that the marriage record is not sustainable, there is no error in the impugned order and the petitioner having failed to discharge the burden cast upon him to prove his communal status is not entitled for any relief. 12. The learned counsel appearing for the respondent bank by relying upon the counter affidavit would submit that the petitioner was appointed in the post of messenger by order dated 02.12.1994 in a vacancy exclusively reserved for Scheduled Caste candidate and there is a specific endorsement in the appointment order that the appointment is provisional and subject to caste certificate being verified and if on verification, it is found to be false, his services will be terminated. It is incorrect to state that the petitioner was not appointed in a vacancy exclusively reserved for Scheduled Caste candidates and if the petitioner is appointed under a general category, the question of production of a community certificate does not arise and therefore, the claim of the petitioner is liable to be rejected. In support of this contention, the learned counsel relied upon the decision of the Hon'ble Supreme Court in Union of India Vs. S. Krishnan (2008) 3 SCC 177 followed by the Hon'ble Division Bench of this Court in W.P.No.23638/2008 dated 23.07.2009. 13. We have given our anxious consideration to the contention raised by the learned counsel for the parties and perused the materials on record. 14. Case on hand pertains to verification of the genuineness of the community certificate issued to the petitioner, claiming to https://hcservices.ecourts.gov.in/hcservices/ be a Hindu Adi Dravidar, a Scheduled Caste community. The Government of Tamil Nadu in G.O.(2D).No.18 dated 01.04.1997 following the direction issued by the Hon'ble Supreme Court in Kumari Mathuri Patil Vs. Additional Tribal Commissioner, AIR 1995 SCC 94 constituted District Level Vigilance Committee and State Level Scrutiny Committee to verify the genuineness of the community certificate issued to Scheduled Caste/Scheduled Tribe and issued guidelines as to how such committees should function. By G.O.Ms.No.111 dated 06.07.2005 orders have been issued for reconstitution of District Level Vigilance Committee with a view to protect the welfare of genuine Scheduled Caste/Scheduled Tribe people from the false claimants. The Government of Tamil Nadu by G.O.(2D).No.108 dated 12.09.2007 modified the constitution of the two committees, referred above, for the purpose of scrutinizing the genuineness of the community certificates issued to the Scheduled Caste and Scheduled Tribe. In the annexure to in the said Government order in G.O.(2D).No.108, certain guidelines have been issued as regards the procedure to be followed for verification for the purpose of this case. Clause 2 to 5 would be relevant, which reads as under:- "2. The District Level Vigilence Committee/State Level Scrutiny Committee concerned, on receipt of Petition/Application shall call for a report from the concerned local revenue authority by whom such Scheduled Caste/Scheduled Tribe certificate was issued. On receipt of the report the District Level Vigilance Committee/State Level Scrutiny Committee, if found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed/issued, the committee concerned should issue a show cause notice supplying a copy of the report of the verification authority to the candidate by a registered post with acknowledgment due or through the head of the concerned educational institution in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the committee on receipt of such representation reply shall convene the committee and the committee shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. If any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may https://hcservices.ecourts.gov.in/hcservices/ make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof. 3. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 2 be followed. 4. Notice contemplated in para 2 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 5. The enquiry should be completed as expeditiously as possible preferably by day to day proceedings within such period not exceeding two months. If after inquiry, the caste scrutiny committee finds the claim to be false or spurious, they should pass on order canceling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant." 15. As could be seen from the above guidelines, the second respondent is required to call for a report from the local Revenue Authority and on receipt of the report, if there is a doubt as regards genuinity of the social status of a claimant, show cause notice has to be issued to the candidate by registered post with acknowledgment due or through his employer. Opportunity to submit a reply should be afforded, and in case the candidates seeks for opportunity for hearing and claims an enquiry the committee shall give reasonable opportunity to the candidate to adduce all evidence in support of his claim. After giving such opportunity either in person or through counsel the committee is empowered to enquire as it deems expedient and pass appropriate orders with brief reasons in support thereof. 16. Though in the present case, action was initiated much prior to issuance of G.O.(2D)No.108, the procedure has been adhered to. It is seen that report has been called for from the local Revenue Authority and further based on a copy of the wedding invitation forwarded by the employer to the second respondent, one of the committee member of the District Level https://hcservices.ecourts.gov.in/hcservices/ Vigilance Committee was deputed to verify the genuineness as to whether the petitioner's marriage was solemnized in a church. On receipt a true extract of the certificate of marriage, a show cause notice came to be issued to the petitioner by the second respondent. The petitioner submitted his reply on 28.12.2001 stating that the copy of the marriage certificate which has been forwarded does not relate to him. The other portion of the explanation relates to his claim that he is a Hindu Adi Dravidar. Therefore, it could be seen the "lis" has commenced in the present case only after it came to the notice of the employer that the petitioner is a Christian and his marriage was stated to have been celebrated in a church on 12.02.1987. This was the starting point of the enquiry. The further fact being that the extract of the register of marriages kept by the church had been furnished and this was the basis for issuance of the show cause notice. 17. Admittedly, in the certificate of marriage, the name of the groom has been mentioned as Mr.E.Anbarasu (Petitioner's name is E.Arasu) and the name of the bride as Esther Navamani (Petitioner's wife's name is Navamani as per her school record), the father's name of the parties have been given as Mr.L.V.Ezekiel and Mr.P.Doss respectively. The case as projected in the show cause notice is that the parties, who were married as certified in the certificate of marriage are none other than the petitioner and his wife. While replying to such show cause notice, the petitioner does not dispute the receipt of such marriage certificate, but would contend that the person mentioned in the certificate is not the petitioner and his wife. Therefore furnishing a copy of such certificate did not arise, nor there was any demand to supply such copy. It has been stated that copy of the marriage invitation was given to the petitioner and the marriage certificate extract was shown to the petitioner. If that be the case, the onus is on the petitioner to establish that he is not the groom and his wife is not the bride as mentioned in the certificate of marriage issued by the church. However, it is seen that this fact has not been disproved by the petitioner by producing any oral or documentary evidence in the enquiry conducted by the second respondent. The repeated claims of the petitioner both in the respondents to the show cause notice and during the oral enquiry is that he is a born Hindu Adi Dravidar and continuous to be a Hindu. This claim/assertion, has been dislodged on account of the certificate issued by a competent person, who is entitled to maintain the register of marriages, when marriages are solemnized in the churches. Therefore, there is a presumption as to the validity of such certificates. The onus is on the person disputing the contents of the certificate to prove, with sufficient evidence, in the manner known to law, that the recording in the register maintained by the church does not reflect the true particulars and does not relate to the https://hcservices.ecourts.gov.in/hcservices/ petitioner. Despite being afforded due opportunity, the petitioner has failed to discharge the burden cast on him. The learned Special Government Pleader, pointed out that the school records of the petitioner's wife or his children or the petitioner's own school record, cannot establish the petitioner's communal status, as invariably such school records are based on declaration given by the parents, when the children are admitted into the school. The learned Special Government Pleader had placed the original file relating to the petitioner's communal status and the enquiry conducted thereon. It reveals that proceedings which commenced during 2001 culminated only in 2008 with the impugned order. During the pendency of the enquiry proceedings, which prolonged for 8 years, nothing prevented the petitioner from producing any valid document in support of his claim. Even during the personal enquiry conducted by the second respondent except for stating that the petitioner's mother's name is Mrs.Meenambal, his son's name is Mr.Selvaraj, the petitioner did not produce any records to prove that the mother was the Hindu. Further, the petitioner's claim that his marriage was conducted in a house at Perambur, has not been established by the petitioner. The learned counsel appearing for the petitioner has contended that the copy of the report submitted by the Tahsildar dated 21.12.1999, referred to by the second respondent has not been furnished and therefore, the petitioner's rights has been infringed and failure to furnish of the report is in violation of the principles of natural justice. In support of his contention, the learned counsel relied upon R.K.Sekar Vs. The District Collector Chengai MGR District, Kancheepuram and others, 1996 WRIT L.R. 484. It is seen that after the request was made by the fourth respondent for verification of the petitioner's communal status, a discreet report was invited from the Tahsildar, Purasaivakkam, Perambur Taluk. In such report, it has been stated that based on surprise inspection of the petitioner's residence there were idols or photos of Hindu Gods and from local enquiry, it came to light that the petitioner is a Christian. Though, this report of the Tahsildar is referred to in the impugned order, it is seen from the impugned order that this has not been the basis for passing the final orders canceling the petitioner's community certificate. The basis is the fact whether the petitioner's marriage was solemnized in the church as stated in the wedding invitation. Therefore, in our view, the petitioner has not been put to any prejudice on account of not furnishing the report of the Tahsildar and mere non-furnishing of such report would not vitiate the impugned decision as the report though referred in the impugned order