IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WP(C).No. 26958 of 2008(H) -------------------------------------- PETITIONER(S): --------------------- SIBI P.D., PUTHUPARAMBIL HOUSE, KAIPPILLY P.O., POONJAR SOUTH, PIN- 686 582. BY ADV. SMT.N.SANTHA MR.K.A.BALAN MR.PETER JOSE CHRISTO MR.S.A.ANAND RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, SCHEDULED CASTES AND SCHEDULED TRIBES DEVELOPMENT DEPARTMENT , SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001. 2. KERALA INSTITUTE FOR RESEARCH, TRAINING AND DEVELOPMENT STUDIES OF SCHEDULED CASTES AND SCHEDULED TRIBES (KIRTADS), REPRESENTED BY ITS DIRECTOR, CHEVAYUR P.O., KOZHIKODE PIN 673 017,. 3. SCRUTINY COMMITTEE FOR VERIFICATION OF SCHEDULED CASTES AND SCHEDULED TRIBES CLAIMS, REPRESENTED BY ITS CHAIRMN, THE PRINCIPAL SECRETARY TO GOVERNMENT, SCHEDULED CASTES AND SCHEDULED TRIBES DEVELOPMENT DEPARTMENTS, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 4. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM P.O., THIRUVANANTHAPURAM, PIN 695 004. WP(C) NO. 26958/2008-H 5. E.K. PRAKASH, ADDITIONAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, NOW WORKING AS DIRECTOR OF TREASURIES, DIRECTORATE OF TREASURIES, POWER HOUSE ROAD, EAST FORT, THIRUVANANTHAPURAM., PIN 695 036,. R1 TO R3 BY SPL. GOVERNMENT PLEADER MR.P. SANTHOSH KUMAR. R4 BY ADV. MR.ALEXANDER THOMAS,SC,KPSC R5 BY ADV. MR.P.GOPALAKRISHNAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 26958/2008-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMUNITY CERTIFICATE. EXT.P2: COPY OF THE PROVISIONAL CERTIFICATE. EXT.P3: COPY OF THE CERTIFICATE OF P.G.D.C.A. EXT.P4: COPY OF THE ANTHROPOLOGICAL ENQUIRY REPORT ON THE REAL CASTE STATUS OF SRI.E.K. PRAKASH. EXT.P5: COPY OF THE MINUTES OF THE SCRUITINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATE HELD ON 17/06/2006. EXT.P6: COPY OF THE JUDGMENT IN O.P. NO. 11925/98 OF THIS HONOURABLE COURT, DATED 27/05/2002. EXT.P7: COPY OF THE JUDGMENT IN W.A. NO. 121/2003 OF THIS HONOURABLE COURT. EXT.P8: COPY OF THE LETTER NO.11689/G3/98 SCSTDD DATED 19/06/2006. EXT.P9: COPY OF THE LETTER NO.11689/G3/98/SCSTDD DATED 03/08/2006. EXT.P10: COPY OF THE D.O. LETTER NO.11689/G3/98/SCST DATED 07/10/2006. EXT.P11: COPY OF THE D.O. REMINDER DATED 24/03/2007. EXT.P12: COPY OF THE D.O. REMINDER DATED 09/01/2008. EXT.P13: COPY OF THE LETTER NO.11689/G3/98/SCSTDD DATED 24/02/2003, ISSUED BY THE SECRETARY TO GOVERNMENT SC/ST DEVELOPMENT (G) DEPARTMENT TO SHRI K.C.JOSEPH, SPECIAL GOVERNMENT PLEADER, OFFICE OF THE ADVOCATE GENERL, ERNAKULAM. EXT.P14: COPY OF THE KERALA (SCHEDULED CASTES AND SCHEDULED TRIBES) REGULTION OF ISSUE OF COMMUNITY CERTFICATES (AMENDMENT) ACT 2008. RESPONDENT'S EXHIBITS: EXT.R5(a): COPY OF THE NOTIFICATION NO.SRII(4)2127/83/SW1 DATED 30/08/83 PUBLISHED IN THE KERALA GAZETTE DATED 10/04/84. //TRUE COPY// P.A. TO JUDGE rs. P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.26958 of 2008 -------------------------------------- Dated 11th June, 2009 JUDGMENT Heard Sri.K.A.Balan, the learned counsel appearing for the petitioner, Sri.P.Santhosh Kumar, the learned Government Pleader appearing for respondents 1 to 3, Sri.Alexander Thomas, the learned standing counsel appearing for the Kerala Public Service Commission and Sri.P.Gopalakrishnan Nair, the learned counsel appearing for the fifth respondent. 2. The fifth respondent was advised for appointment as Under Secretary to Government by the Kerala Public Service Commission on 29.4.1985. The fifth respondent was appointed as a candidate belonging to Scheduled Tribe under a special recruitment scheme. At that point of time, the petitioner herein was a minor aged eight years. In this writ petition, the petitioner contends that the fifth respondent had secured appointment as Under Secretary to Government claiming to be a member of a Scheduled Tribe by presenting a caste certificate fraudulently obtained by him. On this ground, relying on the decisions of the Apex Court in Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development ((1994) 6 SCC 241) and R.Viswanatha Pillai v. State of Kerala WP(C).No.26958/2008 2 ((2004) 2 SCC 105), the petitioner contends that the fifth respondent cannot continue in service and seeks a writ in the nature of mandamus commanding respondents 1 to 4 to oust the fifth respondent from service within a time limit to be fixed by this Court. 3. The pleadings disclose that the Scrutiny Committee constituted by the Government as per G.O.(P)No.16/1995/SCSTDD. dated 8.5.1995 had enquired into the caste status of the fifth respondent based on a report submitted by the Vigilance Officer of the KIRTADS to the effect that the fifth respondent is not a member of a Scheduled Tribe. The Scrutiny Committee rejected the claim of the fifth respondent that he belongs to the Uraly community, a Scheduled Tribe in the State of Kerala. The said order was challenged by the fifth respondent in O.P.No.11925 of 1998. It was heard along with O.P.No.16129 of 1999 filed by a person claiming to be the member of the Scheduled Tribe Community seeking implementation of the decision of the Scrutiny Committee. The writ petitions were heard together and a learned Single Judge of this Court after an elaborate analysis of the pleadings and the evidence and the law on the point held as follows: “15. In the case at hand, the petitioner has been admitted in Standard I by his parents in Kattachira Tribal School with his caste as Malay Uraly. The petitioner's parents were residing in the Tribal colony. Both of them underwent training in a Craft Training Centre for Tribals and they were admitted in the Centre as persons WP(C).No.26958/2008 3 belonging to Uraly (Scheduled Tribe) community. This will be evident from Ext.P9. So, the petitioner's parents even at their young age were claiming that they belong to Uraly (Scheduled Tribe) community. The petitioner was admitted by them in the school when he was a minor aged about 5 years. According to the official respondents, the petitioner's grandfather was a headman of Kuravas, locally known as `Uraly' and he started making the alleged false claim of being a member of the Uraly Scheduled Tribe. It is also alleged that he used his residence in the tribal settlement as a ground for putting forward his claim. The alleged sin dates back to the days of petitioner's grandfather. So, admittedly, the petitioner's claim was not something invented by him. The religion or caste of a child is what he is told by his parents. He has no free choice in that. Since his school records including the S.S.L.C. book showed that he is Malay Uraly, he applied for the post of Under Secretary as one belonging to the Scheduled Tribe. Since Malay Uraly was treated as Uraly, the competent authority (the Tahsildar) issued Ext.P22 certificate. A person like the petitioner who applies for a post in the public service cannot go to the KIRTADS and request them to make a genealogical study and tell him the correctness of his caste claim and thereafter submit an application for employment relying on such a certificate. The petitioner has done what any other candidate would do, i.e. he relied on the caste status mentioned in the school records and in the certificate issued by the competent authority. So, he cannot be accused of having done anything “fraudulently”. Ext.P52 Act, it appears, is not mean to deal with every mistaken claim of caste, especially made by a member of the SC/ST. 16. Anyway, I am not finally pronouncing on the jurisdiction of the Scrutiny Committee or the Government to take action under Act 11 of 1996 because so far the concerned authorities have not initiated any proceedings under the said Act. The petitioner has prayed for a declaration that respondents 2 to 4 have no authority or WP(C).No.26958/2008 4 jurisdiction to determine the caste status of the petitioner under Ext.P52 Act. The contentions of the petitioner in this regard are kept open and he may urge them, in case the Government or any other competent authority proceeds against him under Ext.P52. So it is not necessary to finally decide whether the provisions of the Act are attracted in the case of the petitioner. 17. The Original Petition is allowed quashing Ext.P50. It is declared that the findings in Ext.P7 will not bind the petitioner. But, this will not stand in the way of the Government using the materials contained in Ext.P7 in accordance with law to launch any fresh action against the petitioner, if the same is legally permissible under Ext.P52. The Government are restrained from taking any action against the petitioner based on Ext.P50 or Ext.P51.” 4. In view of the aforesaid findings O.P.No.16129 of 1999 was dismissed. What the petitioner herein seeks now is the reliefs which had been sought for in O.P.No.16129 of 1999. A reading of Ext.P6 judgment would show that this Court had in categorical terms found that neither the fifth respondent nor his parents were guilty of fraudulent conduct. The decision taken by the Scrutiny Committee was quashed on the ground that it was issued in violation of the principles of natural justice. However, while passing Ext.P6 judgment, this Court had reserved the right of the Government to proceed afresh, if it is legally permissible for the Government to proceed further with the matter. This Court also restrained the Government from taking any action against the fifth respondent based on the report submitted by the KIRTADS. In this writ petition, what the petitioner seeks is WP(C).No.26958/2008 5 essentially action pursuant to the report submitted by KIRTADS, which a learned Single Judge of this Court has quashed in Ext.P6 judgment. 5. The learned counsel appearing for the petitioner however submits that in view of Section 31 of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 as amended by Act 32 of 2008, Ext.P6 judgment cannot have any effect. In my opinion, the said contention is plainly untenable. By section 31 as amended by Act 32 of 2008, the Legislature has validated the action taken by the Scrutiny Committee constituted under the Government order dated 8.5.2005, where the action had been invalidated on the short ground that the Scrutiny Committee constituted under the Government order dated 8.5.2005 was not competent to take a decision in the matter. In the instant case, the action taken against the fifth respondent was not set aside by this Court on the ground that the Scrutiny Committee was not competent to take a decision. The decision of the Scrutiny Committee was set aside on the ground that the conduct of the petitioner and his parents were not fraudulent and that Scrutiny Committee acted in gross violation of the principles of natural justice. Therefore, in my considered opinion, the reliance placed by the petitioner on section 31 of the Act as amended by Act 32 of 2008 is plainly untenable. 6. Paragraph 17 of Ext.P6 judgment also restrains the Government from proceeding against the fifth respondent based on the WP(C).No.26958/2008 6 findings of the Scrutiny Committee. Ext.P6 judgment was upheld by a Division Bench of this Court and also by the Hon'ble the Supreme Court. I am bound by the findings and observations of this Court in Ext.P6 judgment. In the light of the authoritative pronouncement of this Court which binds the Government also, the petitioner cannot in my opinion seek any of the reliefs prayed for in this writ petition. Further, the petitioner was a minor when the fifth respondent was advised. Even if the fifth respondent is ousted from service, it would not enable the petitioner to secure employment. He will have to apply for appointment as and when Kerala Public Service Commission invites applications. He will have to undergo process of selection and must get selected before he could claim a right to be considered for appointment. In my opinion, in the light of the findings of this Court in Ext.P6 judgment which was rendered in 2002, this writ petition filed in 2008 with full knowledge of the findings and observations therein is nothing but an abuse of the process of the Court. The writ petition fails and is accordingly dismissed. No costs. P.N.RAVINDRAN Judge TKS