IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 07-02-2006 CORAM THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM THE HONOURABLE MR.JUSTICE T.V.MASILAMANI AND THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU W.P.Nos.20765 TO 20767 OF 1998 W.P.No.20765 OF 1998 : P.Maragathamani .... Petitioner -vs- 1.General Manager (In-charge), Bharat Heavy Electricals Limited, Trichy Complex, Tiruchirapalli-14. 2.The Manager (S.C.) Valves, Bharat Heavy Electricals Ltd., Tiruchirapalli-14. 3.The Revenue Divisional Officer, Tiruchirapalli. 4.The Dy.General Manager (S.C.) Valves, Bharat Heavy Electricals Ltd., Tiruchirapalli-14. .... Respondents W.P.No.20766 OF 1998 : V.Ramasamy .... Petitioner -vs- 1.General Manager (In-charge), Bharat Heavy Electricals Limited, Trichy Complex, Tiruchirapalli-14. https://hcservices.ecourts.gov.in/hcservices/ 2.The Senior Manager, Valves Production, Bharat Heavy Electricals Ltd., Tiruchirapalli-14. 3.The Revenue Divisional Officer, Tiruchirapalli. 4.The Senior Dy.General Manager (Valves Production), Bharat Heavy Electricals Ltd., Tiruchirapalli-14. .... Respondents W.P.No.20767 OF 1998 : K.Thangavelu .... Petitioner -vs- 1.General Manager (In-charge), Bharat Heavy Electricals Limited, Trichy Complex, Tiruchirapalli-14. 2.The Senior Manager (M&S), Bharat Heavy Electricals Ltd., Tiruchirapalli-14. 3.The Revenue Divisional Officer, Tiruchirapalli. 4.The Dy.General Manager (M&S), Bharat Heavy Electricals Ltd., Tiruchirapalli-14. .... Respondents Petitions under Article 226 of the Constitution of India, praying for issuance of a writ of certiorari calling for the records relating to the orders made in BP:P2:2167417, BP:P2:2167034, PB:P2: 2166852 respectively on 26.09.1998 on the file of the 2nd respondent and confirmed by the order made in BP:P2 2167417, BP:P2:2167034 BP.P2:2166852 on 18.11.1998 and 19.11.98 respectively on the file of the fourth respondent and quash the same. For petitioners in W.P.Nos.20765 & 20767/2005 : Mr.S.Doraisamy, assisted by Mr.V.Elangovan. For petitioner in W.P.No.20766/2005 : Mr.M.Suresh Kumar For respondents 1,2 & 4 in all W.Ps.: Mr.B.T.Seshadri https://hcservices.ecourts.gov.in/hcservices/ For respondent 3 in all W.Ps.: Mr.D.Krishna Kumar, Spl.Govt.Pleader, assisted by Mr.E.Sampath Kumar. O R D E R M.KARPAGAVINAYAGAM,J. Whether the suit in Civil Court for declaration that a person belongs to a particular community and for mandatory injunction, directing the authorities to issue community certificate in pursuance of the said declaration and it is binding on the said authorities, is maintainable or not ? The above is the question, posed before this Full Bench. 2. The facts leading to the reference of the point in issue to this Full Bench for determination, in short, are as follows : "(i) Writ petitioners, claiming themselves to be belonging to Kattunaicken community, which is a Scheduled Tribe, on the basis of the community certificates obtained from the Tahsildar, applied for jobs in Bharat Heavy Electricals Limited, Trichy, and got the same. A few years later, the management, after receipt of some information, decided to verify the genuineness of the certificates and sent the said community certificates for verification to the District Collector. (ii) The District Collector verified the said community certificates through a discreet enquiry and sent a report to the management that the petitioners do not belong to Kattunaicken community, a Scheduled Tribe. Consequently, the management initiated disciplinary proceedings as against the petitioners. Without facing the disciplinary proceedings, the writ petitioners challenged the said proceedings in writ petitions before this Court. A Division Bench of this Court, on 18.08.1995, dismissed those writ petitions. (iii) In the meantime, the management, instead of pursuing the disciplinary proceedings, directed the petitioners to get fresh community certificates from the Revenue Divisional Officer, who is the competent authority. Accordingly, the writ petitioners made applications to the Revenue Divisional Officer, requesting for issuance of community certificates to the effect that they belong to Kattunaicken community. When the said applications were pending before the RDO, the petitioners filed civil suits before the District Munsif Court, Trichy, for a declaration that they belong to Kattunaicken community, a Scheduled Tribe, and for mandatory injunction, directing the RDO to issue community certificates to https://hcservices.ecourts.gov.in/hcservices/ that effect. Ultimately, the petitioners obtained ex parte decree on 10.06.1996. (iv) Thereupon, the petitioners filed writ petitions before this High Court, seeking for a direction to the RDO to issue community certificates in their favour, by disposing of the applications pending before him. The High Court, however, on 11.03.1999, declined to give such a direction and merely directed the RDO to dispose of the applications of the petitioners expeditiously on merits, in accordance with law. In pursuance of the said order, the RDO conducted an enquiry and concluded that the petitioners do not belong to Kattunaicken community and, consequently, rejected their applications. Following the same, the services of the writ petitioners were terminated by the management by the orders dated 26.09.1998 and confirmed in appeal by the higher authority on 18.11.1998. Aggrieved over the same, the present Writ Petitions have been filed, seeking for issuance of a writ of certiorari, for quashing the said orders of termination and confirmation. (v) The matters came up before a learned single Judge. The main argument advanced before the learned single Judge in these Writ Petitions was that the Civil Court had already passed an ex parte decree in favour of the petitioners, declaring that they belong to Kattunaicken community, a Scheduled Tribe, and issued mandatory injunction to the RDO, directing him to issue community certificates to the petitioners and since the said decree is binding on the RDO, the RDO ought to have issued community certificates in favour of the petitioners and, as such, the order of RDO, rejecting the applications of the petitioners, and, consequently, the orders impugned, being challenged, are liable to be set aside. (vi) However, during the course of argument, it was brought to the notice of the learned single Judge that there is a sharp contrast in the opinion relating to the maintainability of the suit on this issue. Hence, the learned single Judge, by an order dated 30.04.2003, directed the matter to be placed before the Hon'ble Chief Justice for obtaining orders for consideration of these Writ Petitions by a Larger Bench. Accordingly, the Hon'ble Chief Justice ordered the matters to be placed before this Larger Bench. That is how these matters have come up before this Full Bench." 3. The question put in issue was raised earlier on various occasions before different learned single Judges. Those learned single Judges, in their separate orders, expressing one view, held that civil suit is maintainable and the decree passed by the Civil Court is binding on the authorities. Following are the decisions : (i) 2000 (II) CTC 425 (State of Tamil Nadu v. Durairaj); (ii) 2000 (III) CTC 273 (State of Tamil Nadu v. K.Navamani); https://hcservices.ecourts.gov.in/hcservices/ (iii) 2001 Writ L.R.126 (Ayyappan v. District Collector, Tiruchirapalli) and (iv) 2003 (2) L.W.526 (K.Venugopal v. State of Tamil Nadu) : But, a contra view has been taken by a Division Bench of this Court, observing that the view expressed by the learned single Judges is totally wrong in view of the decisions of the Supreme Court in Gurusamy's case (1997 (3) SUPREME COURT CASES 542) and Kumari Madhuri Patil's case (1994 (6) SCC 241) and held that a civil suit for a decree of declaration and mandamus to the authorities to issue community certificate is not maintainable. This is reported in 2002 (3) CTC 411 (Union of India v. The Registrar, Central Administrative Tribunal, Chennai). 4. Let us first see the findings given by the learned single Judges on different occasions on this issue, with reference to the maintainability of the suit, holding that the suit is maintainable : (i) In 2000 (II) CTC 425 (State of Tamil Nadu v. Durairaj), a learned single Judge held as follows : "The Supreme Court, in Gurusamy's case, would bar the civil jurisdiction in regard to inclusion or exclusion of the communities from the list published by the President of India under Articles 341 and 342 of the Constitution of India and not with regard to whether a person belongs to a particular community or not. So, seeking for a declaration in the Civil Court that he belongs to a particular community is not barred." (ii) In 2000 (III) CTC 273 (State of Tamil Nadu v. K.Navamani), another learned single Judge held as follows : "There is no provision of law in any enactment or the government order prohibiting the cognizance of a case by a Civil Court with reference to the declaration of a person that he belongs to a particular community. The Supreme Court decision in Gurusamy's case would apply only where the relief is asked for with reference to inclusion or exclusion of a particular community in the list. Hence, the suit is maintainable." (iii) In 2001 Writ L.R.126 (Ayyappan v. District Collector, Tiruchirapalli), another learned single Judge held as follows : "In Kumari Madhuri Patil's case (1994 (6) SCC 241), the Supreme Court has laid down guidelines for issuance of Social Status Certificate. There is https://hcservices.ecourts.gov.in/hcservices/ nothing to indicate in the said judgment that the Civil Court's jurisdiction has been excluded. It is further held by the Supreme Court in Gurusamy's case that no suit is maintainable, challenging the declaration issued by the President with respect of lists of the Scheduled Castes and Scheduled Tribes. It is also held therein that a Suit for declaration that an individual belongs to a particular community is not barred nor there is anything in the said judgment to hold that the said suit is not maintainable nor barred by any statutory provision. As such, the Civil Court decree, though ex parte, has reached finality. Therefore, it is binding on the State of Tamil Nadu. Consequently, the State has no other alternative except to issue certificate and the civil decree is binding on them." 5. The crux of the observations made by the learned single Judges in the above judgments is that neither the Supreme Court either in Gurusamy's case or in Kumari Madhuri Patil's case nor any provision or Government order would indicate that there is a prohibition as against the cognizance of a case by a Civil Court with reference to the declaration of a person that he belongs to a particular community and, those Supreme Court decisions, barring civil jurisdiction, would apply only in regard to inclusion or exclusion from the list, challenging the declaration issued by the President in respect of lists of Scheduled Castes and Scheduled Tribes. 6. On the other hand, a Division Bench of this Court in 2002 (3) CTC 411 (Union of India v. The Registrar, Central Administrative Tribunal, Chennai), after referring to the judgments of the learned single Judges, would emphatically hold that the view of the learned single Judges is totally wrong and they should not have held like that, since it is against the ratio decided by the Supreme Court in Gurusamy's case (1997 (3) SUPREME COURT CASES 542) and Kumari Madhuri Patil's case (1994 (6) SCC 241). The observation made by the said Division Bench is as follows : "The view taken by ............., J. in State of Tamil Nadu v. Durairaj (2000 (II) CTC 425) is not correct. The jurisdiction of the Civil Court may be barred either expressly or impliedly. Such bar, by implication, has been held to be the consequence of Articles 341 and 342 of the Constitution by the judgment of the Supreme Court in the case of State of Tamil Nadu v. Gurusamy. When a judgment of the Supreme Court deals with the very question, which the High Court is required to consider, the High Court is bound to follow the law laid down by the Supreme Court and it is not open to the High Court to depart therefrom. The other decision relied upon the by ................, J. is https://hcservices.ecourts.gov.in/hcservices/ State of Tamil nadu v. Navamani (2000 (3) CTC 273). The said decision has been rendered without referring to the case of Gurusamy (Supreme Court). It has been clearly inconsistent with the law laid down by the Supreme Court. So, that decision must be regarded as per incuriam." The above observation made by the Division Bench would make it clear that the view expressed by the learned single Judges on this aspect is wrong and it has to be considered as per incuriam and it is against the verdict of the Supreme Court on the subject. 7. It is quite strange to note that despite the judgment of the Division Bench referred to above, another learned single Judge, in K.Venugopal v. State of Tamil Nadu, reported in 2003 (2) L.W.526, ignored the Division Bench judgment on the ground that the said Division Bench judgment was taken on appeal and though the SLP was ultimately dismissed, the Supreme Court left the question of law open and, therefore, he preferred the learned single Judges' view and held that the Civil Suit for such a declaration is maintainable. The observation is as follows : "In my opinion, the Civil Court's jurisdiction to grant a declaratory relief that the plaintiff belongs to Konda Reddy Community does not stand ousted at all. The Division Bench judgment reported in 2002 (3) CTC 411 was taken on appeal before the Apex Court in an appeal for special leave (Civil) 13503 to 13504 of 2001. The said matter was admitted and notice ordered. Subsequently, by a final order on 18.03.2002, SLPs were dismissed, leaving the question of law open." 8. Thus, the observations made in all the four cases by the learned single Judges would make it clear that the learned single Judges expressed the view clearly that the Supreme Court, in Gurusamy's case and Kumari Madhuri Patil's case, has not decided about the maintainability of the suit with regard to declaration that he belongs to a particular community and it would bar the civil jurisdiction only in regard to inclusion or exclusion from the list and, as such, seeking for a declaration in a Civil Court that a person belongs to a particular community is not barred. 9. On the other hand, the Division Bench, in 2002 (3) CTC 411, would emphatically hold that the Supreme Court decided the said question in Gurusamy's case and, as such, the view of the learned single Judges is wrong. But, as noted above, even thereafter, another learned single Judge held that he would not prefer to accept the view of the Division Bench and, on the contrary, he would prefer to agree to the view of the other learned single Judges, decided earlier. https://hcservices.ecourts.gov.in/hcservices/ 10. With great anguish, this Full Bench is constrained to disapprove the approach adopted by the learned single Judge in ignoring the decision of the Division Bench and preferring to agree to the view expressed by the learned single Judges. The proper course is that if he disagrees to the Division Bench judgment and merely wants to follow the single Judges view, he ought to have referred the matter to a Larger Bench. It is unfortunate that it was not done. Fortunately, when these Writ Petitions came up for final disposal before another learned single Judge, he rightly passed an order, referring the matter to a Larger Bench. 11. Now, the question is, whether the view expressed by the Division Bench in 2002 (3) CTC 411, in the light of the Supreme Court decision, is correct or not ? 12. If this Full Bench takes the view that the Supreme Court in Gurusamy's case and Kumari Madhuri Patil's case has already decided this question, naturally, we have to uphold the decision rendered by the Division Bench in 2002 (3) CTC 411. If it is otherwise, we have to hold contra. Hence, let us now look into Gurusamy's case as well as Kumari Madhuri Patil's case, dealt with by the Supreme Court, in order to find out whether the said question has already been decided by the Supreme Court, as pointed out by the Division Bench. 13. Let us first take Gurusamy's case. The facts are : The respondent obtained certificate from the RDO, recognizing him as belonging to Kattunaicken community, a Scheduled Tribe. Subsequently, he applied for permanent certificate. In the enquiry, it was found that the respondent was not a Scheduled Tribe. Then, the earlier certificate came to be cancelled. Challenging the said cancellation, the respondent filed a civil suit for a declaration that he belongs to Kattunaicken community, a Scheduled Tribe. The said declaration was granted by the trial Court and affirmed by the appellate Court. The High Court also dismissed the second appeal. Hence, an S.L.P.was filed by the Government of Tamil Nadu. In that context, the Supreme Court would make the following observation : "The only question is whether the suit is maintainable. By operation of Section 9 of CPC, a suit of civil nature, cognizance of which is expressly or by implication excluded, cannot be tried by any civil court. ........By necessary implication, the jurisdiction of the civil court to take cognizance of and give a declaration stands prohibited. The question then is whether the respondent has been given an opportunity to establish his case before the authorities cancelled his community certificate obtained by him? ...... The District Collector does not decide it like a suit. What he does is an enquiry complying with the principles of rational (sic natural) justice. He considered his stand, namely, one of the sale deeds https://hcservices.ecourts.gov.in/hcservices/ of 1962 in which his status was declared as Kattunaicken but the same was disbelieved by the District Collector before cancellation. It is a self-serving document. The authority had, therefore, given an opportunity to the respondent to establish his status and found that the certificate previously obtained was wrong and illegal. Accordingly, he cancelled the certificate given to the respondent on 23-1-1971........The guidelines are only to identify the persons and not to give a declaration as to which community comes under a particular entry of the Presidential Notification...... A person who plays fraud and obtains a false certificate cannot plead estoppel. The principle of estoppel arises only when a lawful promise was made and acted upon to his detriment...... The courts would not lend assistance to perpetrate fraud on the Constitution and he cannot be allowed to get the benefit of the fraudulent certificate obtained from the authorities. The declaration issued by the courts below is unconstitutional and without jurisdiction." 14. A complete reading of the above judgment of the Supreme Court in Gurusamy's case would indicate the following features : (i) Respondent (plaintiff) falsely obtained certificate from the RDO, recognizing him to be Kattunaicken community, a Scheduled Tribe ; (ii) When he applied for permanent certificate, an enquiry was conducted by the competent authority, who, in turn, found that the respondent was not a Scheduled Tribe. Accordingly, the certificate came to be cancelled ; (iii) Assailing the said cancellation, the respondent filed a suit for declaration that he belongs to Kattunaicken community, a Scheduled Tribe, and the Civil Court decreed the suit, granting the said declaration; and (iv) On the above facts, the Supreme Court found that by operation of Section 9 of CPC, a suit of civil nature, cognizance of which is expressly or by implication excluded, cannot be tried by any civil court and, by necessary implication, the jurisdiction of the civil court to take cognizance of and give a declaration stands prohibited. 15. Thus, in the light of the above facts, a clear finding has been given by the Supreme Court in Gurusamy's case that Civil Court's jurisdiction is ousted and, as such, the decree of https://hcservices.ecourts.gov.in/hcservices/ declaration that he belongs to a particular community, a Scheduled Caste or Scheduled Tribe, is unconstitutional and without jurisdiction. 16. Let us now see the facts of the case in hand : The writ petitioners earlier obtained certificates from the Tahsildar that they belong to Kattunaicken community. On the basis of such certificates, they obtained jobs in BHEL On verification, the Collector found that the certificates were false and the petitioners did not belong to Kattunaicken community. Therefore, the management directed the petitioners to get fresh community certificates from the RDO. Thereafter, the petitioners filed civil suits with the prayer to declare that they belong to Kattunaicken community and also for a mandatory injunction directing the defendants, namely, RDO to issue community certificates. 17. Thus, the facts in this case are identical to that of Gurusamy's case, which were considered by the Supreme Court. As such, it is clear that the Supreme Court already decided this issue and, consequently, it has to be held that the petitioners cannot approach the civil court for declaration and mandatory injunction, in the light of the decision of the Supreme Court. 18. Let us now look into Kumari Madhuri Patil's case reported in AIR 1995 SUPREME COURT 94. In this case, the Supreme Court, having felt that some unscrupulous persons come forward to obtain the benefit of reservations posing themselves as persons entitled to such social status while, in fact, disentitled to such status, thought it fit to prescribe the procedure to issue certificates to the persons entitled, having noticed that the genuine candidates are denied admission to educational institutions or appointments under a State for want of social status certificate and at the same time ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the enquiry. The Union of India and the State Governments have already prescribed the procedure and entrusted duty and responsibility to Revenue Officers of gazetted cadre to issue social status certificate, after due verification. The said endeavour of States to fulfil constitutional mandate of upliftment of Scheduled Castes and Scheduled Tribes by providing for reservation of seats in educational institutions and for reservation of posts and appointments are sought to be denied to them by unscrupulous persons by putting all sorts of hurdles in completion of the procedure for enquiry by the scrutiny committee. In that context, the Supreme Court felt that it is necessary that social status certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. To achieve that object, the Supreme Court gave the directions to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval. The said directions are as follows : https://hcservices.ecourts.gov.in/hcservices/ "1. The application for grant of social status certificate shall be made to the Revenue Sub- Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such Officer rather than at the Officer, Taluk, or Mandal level. 2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non- gazetted officer with particulars of castes and sub- castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the concerned Directorate. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be fixed at least six months in advance before seeking admission into educational institution or on appointment to a post. 4. All the State Governments shall consist a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian