1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.02.2011 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE R.SUBBIAH W.P.(MD).No.1469 of 2011 V.Kishore Emperumal @ E.V.Kishore, No.12, Vembadi Street, Cape Road, Kottar, Nagercoil, Kanyakumari District. : Petitioner Vs. 1.The Secretary to Government, Revenue Department, Government of Tamil Nadu, Fort.St.George, Chennai 600 009. 2.The Secretary to Government, Adi Dravidar & Tribal Welfare Department, Government of Tamil Nadu, Fort.St.George, Chennai 600 009. 3.The District Collector, Kanyakumari District, Office of the District Collector, Nagercoil. 4.Revenue Divisional Officer, Collectorate, Nagercoil, Kanyakumari District. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling upon the records relating to the impugned communication dated 29.12.2009 Ref.No.A6/5893/2006, issued by the fourth respondent and quash the same and consequently direct the respondent authorities to issue Hindu Kavara (SC) Community Certificate to the petitioner's second daughter K.Shruthy as per the petitioner's Community Certificate dated 11.07.1983, which has been affirmed by this Court in W.P.No.12205 of 1995 and also as per the Community Certificate issued to the first daughter of the petitioner dated 16.08.2003. For Petitioner : Mr.H.Thayumanaswamy For Mr.S.Thanka Sivan For Respondents : Mr.M.Rajarajan Government Advocate https://hcservices.ecourts.gov.in/hcservices/ 2 ORDER [Order of the Court was made BY N.PAUL VASANTHAKUMAR, J] This Writ Petition is filed challenging the order dated 29.12.2009 passed by the fourth respondent declining to issue Community Certificate to the petitioner's second daughter namely K.Shruthy and for a consequential direction to the respondents to issue Community Certificate to his second daughter as "Hindu Kavara (SC)" Community, based on the Community Certificate issued to the petitioner pursuant to the order of this Court dated 29.08.2001 made in W.P.No.12205 of 1995. 2. The case of the petitioner is that he belongs to Hindu Kavara Community, which is a Schedule Caste Community. In the year 1980, the Headquarters Deputy Tahsildar, Agasteeswaram Taluk at Nagercoil, Kanyakumari District, issued a Community Certificate bearing No.13079 of 1980, dated 24.12.1980 certifying that the petitioner belongs to Hindu Kavara (SC) Community. After completion of 10th Standard, the School Authorities directed the petitioner to produce a fresh Community Certificate. The petitioner also applied for the issuance of Community Certificate. The then Tahsildar, Agasteeswaram Tauk, issued a Community Certificate on 14.05.1981 to the effect that the petitioner belongs to Hindu Kavara (SC) Community. (a). In the year 1982, while the petitioner joining in Plus Two Course, the School Authorities again directed him to produce a fresh Community Certificate and the petitioner also produced a fresh Community Certificate dated 25.10.1982 from the Tahsildar, Agasteeswaram Taluk. (b). After completion of Plus Two, the petitioner applied for admission to M.B.B.S Course and at that time also, a fresh Community Certificate was asked for and the petitioner also obtained the same with Certificate No.8312 of 1983, dated 11.07.1983. Thus, according to the petitioner, he was issued with four Community Certificates from the years 1980 to 1983. The said Community Certificates were issued after thorough enquiry by the Revenue Inspector and the authorities concerned. (c). After the selection of the petitioner to M.B.B.S Course, the then District Collector, Kanyakumari District, conducted an enquiry regarding genuineness of the petitioner's community and by proceedings dated 17.09.1983, the District Collector sent a report to the Selection Committee stating that the petitioner belongs to Hindu Kavara (SC) Community, which was again confirmed on 03.03.1987 on a request made by the Director of Medical Education. (d). On 30.12.1988, the first respondent herein issued a notice stating that as to why the petitioner's Community Certificate should not be cancelled on the ground that he does not belong to Hindu Kavara (SC) Community. The first respondent, by order dated 21.03.1989, cancelled the Community Certificate issued by the Tahsildar, Agasteewaram Taluk, dated 11.07.1983. Challenging the said order of cancellation of the Community Certificate, the petitioner filed W.P.No.5128 of 1989 before the Principal Seat of this Court. This Court, by order dated 27.07.1993, allowed the said Writ Petition and quashed the order of cancellation of the Community Certificate and made it clear that if the respondents feel that it is worthwhile to go into the validity of the petitioner's claim once again, it is upto them to conduct a proper enquiry by giving an ample opportunity to the petitioner. (e). After a period of two years, the first respondent issued a notice on 22.06.1995 followed with another notice dated 14.08.1995 directing the https://hcservices.ecourts.gov.in/hcservices/ 3 petitioner to appear for an enquiry on the ground that the petitioner has not produced sufficient materials to show that he belongs to Hindu Kavara (SC) Community. The petitioner filed W.P.No.12205 of 1995 seeking to quash the said notice issued by the first respondent. This Court, by order dated 29.08.2001, allowed the said Writ Petition and quashed the said notice issued by the first respondent specifically holding that the Community Certificate issued in favour of the petitioner was proper and valid. (f). In the year 2002, the petitioner's first daughter namely K.Saranya Andal applied for Community Certificate. Since no action was taken, the petitioner filed W.P.No.39227 of 2002 seeking a Writ of Mandamus directing the respondents therein to issue Community Certificate to his first daughter namely K.Saranya Andal. This Court, by order dated 24.10.2002, directed the petitioner to approach the District Level Scrutiny Committee seeking to issue Community Certificate. (g). The petitioner filed Review Application No.3 of 2002 seeking to review the order of this Court dated 24.10.2002 made in W.P.No.39227 of 2002. This Court, by order dated 22.04.2003, reviewed the said order and directed the fourth respondent herein to issue Community Certificate to the petitioner's first daughter, based on the Community Certificate issued to the petitioner on 11.07.1983, which was upheld by this Court in W.P.No.12205 of 1995, dated 29.08.2001. The fourth respondent disobeyed the order of this Court, which compelled the petitioner to file Contempt Petition No.609 of 2003, and thereafter only, the petitioner's first daughter was issued with Community Certificate on 16.08.2003 certifying that she belongs to Hindu Kavara (SC) Community and she was admitted in the first year M.B.B.S Course Since the petitioner's first daughter was issued with Community Certificate on 16.08.2003, the said Contempt Petition was closed on 29.01.2004. (h). The petitioner's second daughter namely K.Shruthy is studying Plus Two, and therefore, the petitioner applied for Community Certificate in favour of his second daughter, based on the Community Certificates already issued to the petitioner and his first daughter. Since no action was taken, the petitioner filed W.P.(MD).No.3948 of 2010 seeking a Writ of Mandamus directing the respondents to issue Community Certificate to the petitioner's second daughter. The said Writ Petition was subsequently dismissed as withdrawn with liberty to the petitioner to challenge the order dated 29.12.2009 passed by the fourth respondent declining to issue Community Certificate. 3. Challenging the said order dated 29.12.2009 passed by the fourth respondent, the petitioner has come up with the present Writ Petition with the above said prayer contending that the authorities having issued Community Certificates to the petitioner and his first daughter certifying that they belong to Hindu Kavara (SC) Community and the same having been found to be valid by this Court, the respondents are bound by the said orders of this Court and they cannot deny Community Certificate to the petitioner's second daughter namely K.Shruthy. 4. The orders passed by this Court in the earlier Writ Petitions, viz., W.P.No.13079 of 1980, dated 24.12.1980, W.P.No.5128 of 1989, dated 27.07.1993, W.P.No.12205 of 1995, dated 29.08.2001, W.P.No.39227 of 2002, dated 24.10.2002, order passed in Review Application No.3 of 2002, dated 22.04.2003 and the Community Certificates issued to the petitioner and his first daughter have been filed in the typed set of papers. https://hcservices.ecourts.gov.in/hcservices/ 4 5. The learned counsel appearing for the petitioner argued that the matter in issue is covered by a Judgment of the Supreme Court in the case of R.Kandasamy v. Chief Engineer, Madras Port Trust, reported in (1997) 7 SCC 505. In the said Judgment, in Paragraph No.6, the Supreme Court held as follows:- "6. In our opinion, the Community Certificate issued to a Scheduled Tribe candidate by the Tahsildar prior to 11.11.1989 is a good and valid Community Certificate for all purposes so long as such a certificate is not cancelled. The authorities cannot decline to take that into consideration and insist upon a fresh Community Certificate from the Revenue Divisional Officer." 6. The learned counsel also submitted that a Division Bench of this Court in the case of C.V.Kalaivanan v. The Sub – Collector, Mettur Dam reported in 2010 (3) CTC 673, held that if parents and brother were issued with Community Certificates, the children of that person cannot be denied Community Certificate on any ground, unless and until the Community Certificate issued to the parent/relative is cancelled. 7. Heard the learned Government Advocate appearing for the respondents The learned Government Advocate submitted that since the petitioner and his first daughter having been issued with Community Certificates, which are not cancelled and being upheld by this Court, the issue involved in the Writ Petition is covered by the Judgments, cited supra. 8. We had also an occasion to consider similar issues in W.P.(MD) Nos.934 of 2011 and by order dated 01.02.2011, we have also passed similar orders directing the Competent Authorities to issue Community Certificate to the petitioner's wife and daughter therein based on the Community Certificate already issued to the sons and daughters of the person concerned 9. A Division Bench of this Court, while dealing with similar set of facts in the case of T.V.Dharmalingam Vs.The Head of Department (Spl.Exams) & others reported in 2010 W.L.R 1123 in Paragraph Nos.16 to 18 held as follows: "16.One of the documents relied on by the petitioner is the copy of the sale deed of the year 1958 bearing Document No.3318/1958 on the file of Sub-Registrar, Tirupattur, in which the purchaser Lingammal is shown as belonging to "Kurumans" community. The said Lingammal is the senior paternal uncle's wife of the petitioner. Similarly, there are other registered documents, like sale deed, etc., showing the community of the petitioner and his relatives as "kurumans". The petitioner was given a community Certificate stating that he belongs to "Hindu Kurumans" community. His elder brother and his children were also issued with Community certificate to the very same effect. Those documents have not been cancelled and are in force. We are of the considered view the primary documents relied on by the petitioner, which are of more evidentiary value and has rejected the claim of the petitioner on untenable grounds. The finding of the fourth respondent in the impugned order that the petitioner does not belong to "Hindu Kurumans" community is perverse and liable to be rejected. https://hcservices.ecourts.gov.in/hcservices/ 5 17.In the facts and circumstances of the case following the ratio of the decision of the earlier Division Bench of this Court, we are inclined to give a positive direction to the fourth respondent to issue Community Certificate to the children of the petitioner as belonging to "Hindu Kurumans" community. 18.In the result, the Writ Petition is allowed, the impugned order of the fourth respondent, dated 15.02.2010, is set aside and the fourth respondent is directed to issue Community Certificates to the children of the petitioner, namely, (1) D.Gowtham Raj, (2)D.Harish and (3)D.Sudha that they belong to "Hindu Kurumans" community, a notified Scheduled Tribe, within a period of four weeks from the date of receipt of a copy of this order. ". 10. The Supreme Court in the case of Sayanna v. State of Maharashtra reported in 2009 AIR SCW 6173 ; 2009 (10) SCC 268, held that the authorities are bound to consider the Community Certificate issued to near relatives of the claimant. In Paragraph No.10, the Supreme Court held as follows:- 16. In support of his claim that he belongs to Mannerwarlu Scheduled Tribe, the appellant had produced before the Scrutiny Committee four xerox copies of the caste certificate issued by Talathi of the village and caste certificate dated 25-11-2002 issued by CEO, Nagar Parishad. The perusal of the record shows that these documents were arbitrarily and lightly brushed aside by the Scrutiny Committee by observing that the documents were issued in a casual manner and that too on the personal knowledge without verifying the facts. It is an admitted position that none of the officers, who had issued the certificates concerned, was either summoned or examined by the Scrutiny Committee. The affidavit filed by Dr. L.N. Datte, the nephew of the appellant, and the caste certificate issued to the son of the appellant would indicate that near relatives of the appellant have been always treated by the authorities as belonging to Mannerwarlu Scheduled Tribe. The claim of the appellant that he belongs to Mannerwarlu Scheduled Tribe could not have been negatived on the ground that he had no basic knowledge of traits, characteristics, customs and culture, etc. of Mannerwarlu Scheduled Tribe or that he failed to prove his affinity and ethnic linkage to Mannerwarlu Scheduled Tribe.. On the facts and in the circumstances of the case this Court is of the opinion that the decision of the Scrutiny Committee to cancel and confiscate the caste certificate issued to the appellant is based on irrelevant considerations and suffers from the vice of non-consideration of relevant factors. Therefore, the said decision as well as the decision of the High Court, confirming the said decision, are liable to be set aside. 11. In the case of Rajeswari v. The District Collector, Nellai Kattabomman District, Tirunelveli reported in 2000 (I) MLJ 267, His Lordship P.Sathasivam [as he then was], considered the said issue and took the same view. In Paragraph No.16, it is held as follows:- "16. With reference to the existence of valid community certificate of the father of the delinquent and in the absence of any change of circumstance, S.S.Subramani, J, in S.Natarajan vs. District Collector, Tuticorin, AIR 1999 Mad 241, has held that, https://hcservices.ecourts.gov.in/hcservices/ 6 "24. In this case, there is no change of circumstances. The Community Certificate was found to be true and genuine by the District Collector in 1988 and that has become final. The only circumstances now is petitioner asked for Community Certificate for his children. That will not be a ground for questioning his community certificate. There is no change of circumstances as on date." In our case also, I have already stated that, father of the petitioner is having valid community certificate and he was employed in the Income – Tax Department based on the said Certificate. In such circumstance, while agreeing with the view expressed by S.S.Subramani, J., I hold that the first respondent is not justified in doubting the community of the petitioner." 12. The third respondent is a party in the earlier Writ Petitions filed by the petitioner and the said orders having been implemented, the respondents are not entitled to take a different stand now. 13. In view of the above undisputed facts as well as issuance of Community Certificates to the petitioner and his first daughter, in our considered view, the impugned order is unsustainable. 14. In the result, the Writ Petition is allowed and the impugned order dated 29.12.2009 passed by the fourth respondent is set aside with a direction to the fourth respondent to issue Community Certificate to the petitioner's second daughter namely K.Shruthy based on the Community Certificate already issued to the petitioner dated 11.07.1983 and his first daughter dated 16.08.2003 as well as the orders passed by this Court in W.P.No.12205 of 1995, dated 29.08.2001 and Review Application No.3 of 2002, dated 22.04.2003, within a period of four weeks from the date of receipt of a copy of this order. No costs. Sd/- Deputy Registrar(W) /TRUE COPY/ Assistant Registrar To 1.The Secretary to Government, Revenue Department,Government of Tamil Nadu, Fort.St.George, Chennai 600 009. 2.The Secretary to Government, Adi Dravidar & Tribal Welfare Department, Government of Tamil Nadu,Fort.St.George, Chennai 600 009. 3.The District Collector, Kanyakumari District,Office of the District Collector, Nagercoil. 4.Revenue Divisional Officer, Collectorate, Nagercoil,Kanyakumari District. +1cc to M/s.H.Thayumanaswamy,Advocate SR.No.8748 ORDER MADE IN W.P.(MD).No.1469 of 2011 14.02.2011 NB PA/22.02.2011/6P/6C(IT) https://hcservices.ecourts.gov.in/hcservices/