IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 WP(C).No. 17920 of 2009(H) -------------------------- PETITIONER(S): --------------- 1. SATHEESAN P.P., YADUKULAM, P.O.MUNDAYAM PARAMBA, KANNUR DISTRICT. 2. YADUPRIYA P.SATHEESH, YADUKULAM, P.O.MUNDAYAM PARAMBA, KANNUR DISTRICT, MINOR REP. BY GUARDIAN FATHER IST PETITIONER. BY ADV. SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL RESPONDENT(S): --------------- 1. COMMISSIONER FOR ENTRANCE EXAMINATIONS, GOVT. OF KERALA, 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. 2. SCRUTINY COMMITTEE, UNDER THE KERALA (SCHEDULED CASTE/TRIBES), REGULATION OF ISSUE OF COMMUNITY CERTIFICATES ACT, THIRUVANANTHAPURAM. 3. VIGILANCE DIRECTOR, DIRECTORATE OF KIRTADS, KOZHIKODE-17. 4. TAHSILDAR, THALASSERI, KANNUR DISTRICT. 5. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, SCHEDULED CASTE/TRIBE DEVELOPMENT (G-DEPARTMENT), GOVT. SECRETARIAT, THIRUVANANTHAPURAM. SPECIAL GOVT. PLEADER SHRI.P.SANTHOSHKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 17920/2009. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE CERTIFICATE DTD.21.6.99. P2. COPY OF THE SSLC CERTIFICATE OF P1. P3. COPY OF THE CASTE CERTIFICATE DTD.28.6.07 IN RESPECT OF P.S.YADULAL. P4. COPY OF THE CERTIFICATE DTD.9.6.04. P5. COPY OF THE CASTE CERTIFICATE. P6. COPY OF THE T.C. DTD.30.5.09 P7. COPY OF THE GAZETTE NOTIFICATION DTD.2.8.07. P8. COPY OF THE NOTICE DTD.1.6.09 BY R1. P9. COPY OF THE REPORT DTD.21.5.09. P10. COPY OF THE LETTER DTD.12.3.09 BY R1. P11. COPY OF THE STATEMENT DTD.11.6.09. P12. COPY OF THE RESULT OF P2. P13. COPY OF THE VOTERS' LIST FOR 2000. P14. COPY OF THE VOTERS' LIST FOR 2005. P15. COPY OF THE GOVT. ORDER DTD.20.11.08. P16. COPY OF THE CERTIFICATE DTD.16.6.09 BY C.P.SUDHARMA, WARD MEMBER. P17. COPY OF THE ORDER DTD.15.6.09 BY R1. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE APPLICATION BY P2. B. COPY OF THE REPORT BY THE VIGILANCE OFFICER, KIRTADS. C. COPY OF THE ORDER OF R1. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 17920 of 2009 ================== Dated this the 20th day of May, 2010 J U D G M E N T This writ petition relates to the caste status of the 2nd petitioner who applied for admission to professional degree course and appeared for the common entrance test conducted by the 1st respondent for the year 2009. The 1st petitioner is the father of the 2nd petitioner. The petitioners claim that they belong to Pulluvan community, which is accepted as a Scheduled Caste in the State of Kerala. The 2nd petitioner claimed benefit of reservation available to members of Scheduled Caste by producing Ext.P5 caste certificate issued by the 4th respondent showing the 2nd petitioner as belonging to Pulluvan community. The 1st respondent doubted the veracity of the caste status of the 2nd petitioner, apparently because the 2nd petitioner's mother belongs to Nair community, which is a forward caste. Therefore, the 1st respondent referred the matter to the authority under the Kerala Scheduled Castes and Scheduled Tribes Regulation of Issue of Community Certificate Act, 1996. The 3rd respondent conducted an enquiry and submitted Ext.P9 anthropological report, wherein he came to the conclusion that because the caste of the 2nd petitioner's mother is Nair and the 2nd petitioner was brought up in the socio-cultural background of her mother, she is not entitled to the caste status of Pulluvan. This report was placed before the 2nd w.p.c.17920/09 2 respondent-Scrutiny Committee under the above said Act, who, by Ext.P17, came to the conclusion that the 2nd petitioner is not entitled to the caste status of Pulluvan and that she is not, therefore, eligible for reservation as a Scheduled Caste for professional courses. The petitioners are challenging Exts.P9 and P17 in this writ petition. 2. A counter affidavit has been filed by the 1st respondent, wherein the stand taken by the 1st respondent is that as revealed by Ext.P9 anthropological report, although the 2nd petitioner's father and paternal grand parents belonged to Pulluvan community, the 2nd petitioner's mother and her parents, grand parents etc. belong to Nair community, the 2nd petitioner was brought up in the socio-cultural back ground of the Nair community of her mother and therefore, going by the decision of this Court in Indira v. State of Kerala reported in 2005 (4) KLT 119(FB) the 2nd petitioner is not entitled to the caste status of Pulluvan. 3. I have considered the rival contentions in detail. 4. Since the entire decision of the 1st respondent and 2nd respondent is based on Ext.P9 anthropological report of the KIRTADS, I deem it appropriate to extract the relevant portion of the same. The same reads thus; “GENEALOGICAL AND DOCUMENTARY EVIDENCES Paternal w.p.c.17920/09 3 The candidate's paternal grand father late Madhavan, Puthiyapurayil, Punnol, Thalassery, who belonged to Pulluvan community. He was married to Parvathi, Chappayil, Ayarakkandi, Kannur who also belongs to the same community. In this martial union they had six children viz., Dayaseela, Shylaja, Sreelatha, Satheeshan, Snehalatha and Sreeja. Of them, Satheeshan is the father of the candidate herein. Dayaseela is married to Andy a Retired Headmaster, Kolayad, Kannur who belongs to Pulluvan community. Shylaja is married to Bhaskaran, a taxi driver, Koodali, Kannur who also belongs to Pulluvan community. Sreelatha is married to Sathyanathan, Retired Peon from Post and Telegraph Department, Pallikunnu, Kannur who belongs to Pulluvan community. Snehalatha is married to Suresh, Anjarakandy, Kannur who belongs to Pulluvan community. Sreeja is married to Pavithran, Kannur who belongs to Pulluvan community. Document-2, which is a photostat copy of the statement produced by the candidate's father states that the candidate's grandparents belong to Hindu Pulluvan community. Thus, admittedly the candidate's father belongs to Pulluvan community of the State. Maternal The candidate's maternal grand father was Raman Nair, Edayodiyil, Palamallakara, Kottyam who belongs to Nair community. He was married to Karthyayani, Kottayam who belongs to Nair community. In this marital union they had six children were born, viz.; Bhanumathi, Sumathiamma, Leela, Sasidharan, Sunitha and Omana. Of them Omana is the mother of the candidate herein. Bhanumathi is married to Ramachandran, Pandalam, Kottayam who belongs to Nair community. Sumathiamma is married to Gangadharan Nambiar, Irikkoor, Kannur who belongs to Nambiyar/Nair community. Leela is married to late Manikandan, Adakkathode, Kannur, who belongs to Nair community. Sasidharan is married to Dakshani, Ulikkal, Kannur, who belongs to Nair community. Sunitha is married to Ramachandran, Kanichar, Peravoor, Kannur who belongs to Nair community. Document-2 states that the candidate's grandparents belong to Hindu Nair community. Thus admittedly the candidate's mother is a member of Hindu Nair community, which is a forward community of the State. Siblings: Out of the marital union between Satheesh and Omana. Two children were born viz; Yadulal and Yadupriya, the candidate here in. The candidate completed her High School education from St.Mary's Higher Secondary School, Edoor. Payam Post, and Document-3 is a photostat copy of her Secondary School Leaving Certificate (SSLC) wherein her community status is shown as Hindu Nair. w.p.c.17920/09 4 MERIT OF THE CASE The genealogical and documentary evidences reveal that the claim of the candidate for Sche. Caste Pulluvan status rests only on the community status of her father. The candidate's mother belongs to Nair community, which is a forward community of the state. The Government of the India has given certain guidelines regarding the issuance of Scheduled Caste and Scheduled Tribes community certificates. Where a person claims to be belonging to a Scheduled Caste or Scheduled Tribe by birth, it should be verified, among other things, that the persons and his parents actually belongs to the community claimed. The Hon'ble High Court of Kerala, while commenting on the caste status of the children born out of inter-castes married couple, in W.P.C No's. 2483, 7039, 17317 of 2005 and connected cases, in Indira V. State of Kerala reported as 2005 (4) KLT 119(F.B), has held among other things that: “Persons who claims the status of scheduled caste/scheduled tribe of his/her father or mother has to establish that on his/her birth, he/she is subjected to some social disabilities and also following the same customs and traditions and the community has accepted that person to its fold. The Government, vide order G.O(Ms). No.25/2005/SCSTDD, dated 20.06.2005 directed the competent authorities to issue SC/ST community certificates to the children born out of intercaste married couples as per the caste/community of the father subjected to the conditions of acceptance, customary traits and tenets stipulated in Punit Rai's case and Sobha Hymavathi Devi's case.” The Government in view of the above observations of the High Court of Kerala has issued GO(MS) 109/2008/SCSTDD, dated 20.11.2008 and a copy of the same is produced herewith as Document-4. 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-caste marriage, who claims the ST status, should prove among other things that he/she is subjected to the social disabilities of the community to which he/she claims to belong. w.p.c.17920/09 5 Here, in the present case, the genealogical analysis and documentary evidences (Documents - 2&3) shows that the candidate was born and brought up in the socio-cultural background of the Nair community of her mother, and she is away from the cultural background of Scheduled Caste Pulluvan community. The enquiry conducted as per Act 11 of 1996 also reveals that the candidate has not suffered the socio- cultural backwardness of being a member of the Scheduled Caste community. Today the family has been living in the milieu and circumstances of the candidate's mother's background, who belong to Nair community. Thus, the candidate's claimed SC Pulluvan status is against the facts as she has not been 'subject to the same social disabilities and also following the same customs and traditions' of the Pulluvan community.” This report has been completely accepted by the 2nd respondent by Ext.P7 to come to the conclusion that the 2nd petitioner is not entitled to the caste status of Pulluvan. The facts in Ext.P9 except the conclusion that the 2nd petitioner was born and brought up in the socio- cultural background of her mother is admitted. As is clear from Ext.P9, all persons in her paternal line, belong to Pulluvan community and all persons in the maternal line belong to Nair community. Therefore, what is to be decided in this case is as to under what circumstances, the 2nd petitioner was born and brought up. Except the blank statement in Ext.P9 that the genealogical and documentary evidences (Documents 2 and 3) shows that the candidate was born and brought up in the socio cultural back ground of the Nair community and she is away from the cultural back ground of scheduled caste Pulluvan community, there is absolutely no material available to support that conclusion. The Government pleader tries to support this conclusion based on the SSLC certificate of the 2nd petitioner, wherein her caste w.p.c.17920/09 6 has been shown as Nair. The 3rd respondent himself has quoted the relevant portion of the decision of this Court in Indira's case. It is interesting the note that in several cases which have come up before me on the subject, whenever the father is a forward caste and the mother a Scheduled Caste or OBC, the respondents take the stand that the caste of the offspring follows that of the father, relying on a Supreme Court decision, which they do not in this case. However, since the respondents themselves are relying on the Division Bench decision for their conclusion, they cannot object to deciding this case based on the principles laid down in that decision. Therefore, what the petitioners have to prove is that the 2nd petitioner, on her birth, was subjected to the same social disabilities of a member of a Scheduled Caste, is living following the customs and traditions and the community has accepted her to its fold. The 1st petitioner has given evidence before the 2nd and 3rd respondents. It is not disputed before me that in his evidence he has categorically stated that the 2nd petitioner has been born and brought up as a Pulluvan among the members of the Pulluvan community and therefore, the very same social disabilities attached to that community were attached to the 2nd petitioner also. The petitioner has also produced Ext.P4 certificate issued by the Akhila Kerala Pulluvan Samithi, which is a samithi formed for the purpose of safeguarding interests of Pulluvan community. That w.p.c.17920/09 7 certificate categorically states that the 2nd petitioner is being brought up by her father, the 1st petitioner, who is a member of Pulluvan community along with him, that the 2nd petitioner is being brought up in accordance with the customs of Pulluvan community and that therefore, the 2nd petitioner belongs to Pulluvan community. Therefore, the petitioners have prima facie proved that the 2nd petitioner is subjected to the same social disabilities attached to the members of the Pulluvan community following the same customs and traditions of that community and the Pulluvan community has accepted the 2nd petitioner to its fold. Thereupon, the onus shifts to respondents 2 and 3 to prove otherwise. The respondents could not satisfy me that there was any material before them to show otherwise to come to the conclusion that the 2nd petitioner was born and brought up in the socio- cultural background of Nair Community of her mother, except perhaps that in the SSLC book of the 2nd petitioner her caste status is shown as Nair. The learned Special Government Pleader would argue that the 2nd petitioner has never availed of any of the educational concessions available to a scheduled caste member, which would go to show that the 2nd petitioner was not brought up as a member of Pulluvan community. 5. I am unable to accept the contention of the learned Government Pleader. It is true that in the SSLC certificate the caste of w.p.c.17920/09 8 the 2nd petitioner is shown as Nair. But knowing the social stigma attached to the scheduled castes in the State, it would only be natural for a Nair mother who enrols her daughter in a school to try to avoid that stigme among other students by giving her caste instead of the caste of the father. Naturally, when the caste name is given as Nair, that student cannot apply for educational concessions applicable to scheduled caste. That itself is no proof to show that the 2nd petitioner was born and brought up in the socio-cultural background of Nair community. It is common knowledge as to what happens to a Nair girl who marries a scheduled caste in this State. Ordinarily for years, the family members of that girl would not even look at her face. There would not any inter-action between the members of the family of the mother and the members of the family of the father. The respondents have no case that the petitioners along with the mother of the 2nd petitioner are residing with the members of the mother's community. On the other hand, it is somewhat admitted that they are living as a separate family on their own. As such, I am of opinion that neither in Ext.P9 nor in Ext.P17 any material has been relied on which would even remotely suggest that the 2nd petitioner was born and brought up in the socio-cultural background of the community of her mother. On the other hand, the evidence adduced by the petitioners are more than sufficient to come to a conclusion to the contrary. As such, I do not w.p.c.17920/09 9 find any justification for either Ext.P9 order or Ext.P17. I am of opinion that the petitioners have been successful in conclusively proving that the 2nd petitioner was brought up by the father of the 2nd petitioner, viz., the 1st petitioner, along with him in his community suffering the same social disabilities and also following the same customs and traditions of Pulluvan community and that the community has accepted the 2nd petitioner to its fold, proving the case of the 2nd petitioner that the 2nd petitioner comes clearly within the four corners of the decision in Indira's case (supra). Therefore, the only conclusion possible in this case is that the 2nd petitioner belongs to Pulluvan community, which is recognized as a Scheduled Community in the State of Kerala. Therefore, Exts.P9 and P17 are quashed. It is declared that the 2nd petitioner belongs to Pulluvan community, which is recognised as a Scheduled Caste in the State of Kerala. Therefore, within two weeks from the date of receipt of a certified copy of this judgment, the certificates issued by the Revenue officers certifying the 2nd petitioner as belonging to Pulluvan community, a Scheduled Community, shall hold good for all purposes. Hereinafter also, as and when the 2nd petitioner applies for a community certificate, the concerned authority shall issue community certificate showing her as belonging to Pulluvan community, a scheduled caste. 6. It is submitted by the learned counsel for the petitioners w.p.c.17920/09 10 that in view of the pendency of the writ petition, the results of the 2nd petitioner for the common entrance examination written this year has been withheld. In view of the above findings, the 1st respondent is bound to declare the results of the 2nd petitioner for the entrance examination and to consider her for admission with the reservation benefits applicable to a scheduled caste member. There would be a direction to the 1st respondent to that effect. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge