IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 WP(C).No. 17546 of 2006(L) -------------------------- PETITIONER(S): --------------- DR.ASWATHY GOPINATH, GOKULAM, III/228, AVALOOKUNNU P.O., ALAPPUZHA. BY ADV. SMT.V.P.SEEMANDINI, SENIOR ADVOCATE SRI.M.R.ANISON SMT.T.B.REMANI SMT.LEKSHMY RAMANATHAN RESPONDENT(S): --------------- 1. THE SCREENING COMMITTEE OF VERIFICATION OF CASTE CERTIFICATE REP. BY ITS CHAIRMAN, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATION, HOUSING BOARD BUILDING, SANTHI NAGAR, TRIVANDRUM-1. 2. THE VIGILANCE CELL OF KIRTADS, REP.BY ITS VIGILANCE OFFICER, OFFICE OF THE KIRTADS, KOZHIKODE-17. GOVERNMENT PLEADER SHRI.P.SANTHOSH KUMAR FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 17546/06. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE ANTHROPOLOGICAL REPORT DTD.143.06. P2. COPY OF THE PETITION DTD.25.3.06. P3. COPY OF THE ORDER DTD.1.6.2006. P4. COPY OF THE ANTHROPOLOGICAL REPORT DTD.24.5.2006. P5. COPY OF THE DEATH CERTIFICATE OF THE PETITIONER'S GRANDMOTHER. P6. COPY OF THE CERTIFICATE DTD.14.8.06. P7 COPY OF THE LETTER DTD.24.11.2006. P8. COPY OF THE LETTER DTD.7.11.2006. P9. COPY OF THE LETTER DTD.9.1.2007 BY THE DY. DIRECTOR OF CENSUS. P10. COPY OF THE SCHOOL ADMISSION REGISTER OF THE PETITIONER'S FATHER. P11. COPY OF THE LETTER FROM THE KIRTADS DTD.13.2.07. P12. COPY OF THE LIST OF DOCUMENTS. RESPONDENT(S)'EXHIBITS R1A. COPY OF THE ANTHROPOLOGICAL REPORT DTD.14.3.06. B. COPY OF THE NOTICE DTD.16.3.06. C. COPY OF THE REVISED REPORT DTD.24.5.06. D. COPY OF THE ORDER DTD.1.6.06. sdk+ ///True copy/// P.A. to Judge S S.SIRI JAGAN, J. ================== W.P.(C).No. 17546 of 2006 ================== Dated this the 1st day of June, 2010 J U D G M E N T In this writ petition, the petitioner is challenging Exts.P1, P3 and P4 proceedings. Ext.P1 is the report of the Vigilance Officer of the KIRTADS, wherein, it was reported that the petitioner does not belong to a Scheduled Caste by name 'Kuravan' as claimed by the petitioner. Ext.P3 is the proceedings of the Commissioner for Entrance Examinations based on the said report and Ext.P4 report is the revised report of the Vigilance Officer of the KIRTADS confirming the conclusion in Ext.P1 stated to be with the help of some additional materials. 2. The petitioner's contention is that the petitioner is the off- spring of an inter-caste marriage, her father being a member of Kuravan community, which is a Scheduled Caste and her mother being a member of the Ezhava community. According to the petitioner, she was living with her parents in her father's house following the customs and usage prevailing among the Kuravan community. She would claim that she was treated as a member of Kuravan community and she also enjoyed the educational benefits as applicable to Scheduled Caste members. According to the petitioner, in the SSLC book of the petitioner's father and in the school admission register of her father, w.p.c.17546/06 2 caste of her father is shown as Kuravan, which is accepted as a Scheduled Caste in the State of Kerala. The petitioner's father also obtained a community certificate certifying that he belongs to Kuravan community which is a Scheduled Caste. The petitioner applied for P.G. Medical course. Along with her application, she produced a community certificate showing her caste as Kuravan for the Entrance Examination. The Commissioner of Entrance Examinations doubted the petitioner's caste status and referred the matter to the 2nd respondent-KIRTADS for a report on the caste status of the petitioner. The Vigilance Officer of the 2nd respondent visited the petitioner's residence. The petitioner's father appeared before the 2nd respondent and adduced evidence to prove the Scheduled Caste status of the petitioner and her father. The 2nd respondent prepared Ext.P1 report styling it as an anthropological report regarding the caste status of the petitioner concluding that the petitioner does not belong to a Scheduled Caste. The petitioner was served with a copy of Ext.P1 report along with a letter issued by the 1st respondent and she was asked to appear for a personal hearing before the 1st respondent on 25.3.2006. Along with her written explanation before the 1st respondent she submitted 19 documents explaining that she belongs to the Kuravan community. The results of petitioner's entrance examination were withheld. The petitioner filed W.P.(C). No.12319/2006 challenging Ext.P1 order seeking a direction to the 1st w.p.c.17546/06 3 respondent to pass orders regarding her caste status. On 12.5.2006 an interim order was passed in that writ petition directing the 1st respondent to intimate the decision if any, taken by the 1st respondent regarding the petitioner's caste status. The 1st respondent issued Ext.P3 order rejecting the petitioner's claim for reservation as a Scheduled Caste. Ext.P3 order relied on a report of the 2nd respondent dated 25.5.2006, which is Ext.P4. According to the petitioner, the petitioner was not served with a copy of the same. It was produced along with the counter affidavit in this writ petition. Thereafter, the petitioner has got the writ petition amended including a challenge against Ext.P4 also. 3. The petitioner would argue that although she is an offspring of an inter-caste marriage between her father belonging to Kuravan community and her mother who is a Thiyya, she was brought up in her father's house as a member of the Kuravan community and, therefore, she is entitled to reservation benefits applicable to Kuravan community. 4. Counter affidavits have been filed by the 1st respondent and the 2nd respondent seeking to controvert the contentions of the petitioner. They would mainly rely on Exts.P1 and P4 reports to sustain the impugned orders. According to them, the anthropological study conducted by the KIRTADS would show that the petitioner's father w.p.c.17546/06 4 belonged to the community by name, Velapanicken and not Kuravan. They would submit that it is the onus of the petitioner to prove that the caste by name Velapanikken is a Scheduled Caste. They would take an alternate contention also to the effect that the petitioner was actually brought up in the tradition of Thiyya community of her mother and, therefore, she had not suffered the disabilities of a member of a Scheduled Caste. According to them, going by the Full Bench decision of this Court, the petitioner is not entitled to the benefit of reservation. 5. I have considered the rival contentions in detail. 6. I am of opinion that the petitioner should succeed in this writ petition based on the so-called anthropological report prepared by the KIRTADS itself, which is relied on by the respondents to deny the benefit to the petitioner. In Ext.P1 report it is stated that the paternal grand father of the petitioner belonged to Hindu Velan community which is also known in the locality as Velapanicker or Kurapanicker. He was married to Janaki of Thiruvalla, who belonged to the same community. Out of the wedlock the petitioner's father was born. It is stated therein that the candidate's father's caste's name is known as Kurva and there is no community in the list of Scheduled Caste with this spelling. Of course at the maternal side admittedly the petitioner's mother belongs to Ezhava/Ezhuva community. But in the report, the analysis of data takes a different turn. The report would reveal that the w.p.c.17546/06 5 candidate's father is identified as a member of Velan or Velapanicker community in Mannanchery. They heavily rely on the SSLC book of the petitioner's father, wherein the community is shown as “Kurva”. It is further stated therein that the caste of the petitioner's father's relatives is entered as Kurappanicker, Velapanicker, Bharathiya Velapanicker etc. and they later styled themselves as Kuravan. The report cites the instance of admission register of candidate's father's brother's son, wherein the caste name is shown as Kurappanicken. Ultimately, in Ext.P1 they would say that even if the candidate's father belongs to a Scheduled Caste community, because of the affinity of the candidate to Ezhava community, the candidate will not be entitled for the benefits due to Scheduled Castes. In support of this conclusion, they would rely on the fact that the candidate was born at her mother's house and stayed there for the first 90 days after delivery. It is not disputed before me that both Kuravan and Velan are recognised as Scheduled Castes in the State of Kerala. The petitioner relies on an authoritative book of an author by name, E.Thurston, titled “Castes and Tribes of Southern India”, wherein there is elaborate discussion about the Velan community, which is a community accepted as a Scheduled Caste in the State of Kerala. That book shows that Velan community members are alternately known as Velapanikkan, Mannans, Perumannan and Manna Velan. It is specifically stated therein that w.p.c.17546/06 6 usual Panikkan is a title given to some Velans who are then known as Velapanicken, Kurapanicken etc. In Ext.P4 report, the respondents would rely on additional data in support their conclusion to the effect that in Ambalappuzha temple there is a ritual called “Pallipana” which is conducted once in 11 years. According to the respondents, this ritual is performed by Velapanickar community, which shows that Velapanickar community members have not suffered untouchability like other communities because the Ambalappuzha temple was controlled then by higher caste communities. But in Thurston's book it is specifically stated that Velans used to perform the ritual Pallippana in temples. That is why in the beginning I said that the petitioner is entitled to succeed based on the reports of the KIRTADS themselves. They would clearly show that the petitioner's father belongs to a Scheduled Caste community known either as Kuravan or Velan. The KIRTADS themselves found that the grand parents of the petitioner belong to Velan community, which is accepted as a Scheduled Caste in the State. Regarding the respondents' contention that the petitioner was brought up in her mother's house, the reason stated is that, after delivery the mother and the petitioner remained in the mother's house for 90 days. I am of opinion that, that is a usual custom in many communities in Kerala to have delivery in mother's house and to remain there for 90 days after delivery, which cannot be regarded as w.p.c.17546/06 7 evidence to show that the petitioner was brought up in the mother's house, following the customs of the petitioner's mother's community. Often in case of offsprings of inter caste marriages when the mother is the Scheduled Caste, following the Supreme Court decision on the subject, the respondents themselves contend that the child inherits the caste of the father. It is only when the father is a Scheduled Caste, the respondents revert to the Full Bench decision. I am of opinion that insofar as in the petitioner's case, the father is a Scheduled Caste, it is for the respondents to prove that the petitioner was brought up as a Thiyya, in which the respondents have sadly failed. Therefore, preponderance of probabilities of the case is in favour of the petitioner to hold that she belongs to a Scheduled Caste community. That being so, the impugned orders which conclude otherwise, are totally unsustainable. Accordingly, they are quashed. It is declared that the petitioner belongs to a Scheduled Caste community known as Kuravan alternately known as Velan. She will be entitled to all benefits arising out of her caste status as a Scheduled Caste. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.17546/06 8