IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 12-09-2008 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAH W.P.No.11381 of 2006 and W.P.M.P.No.12955 of 2006 G. Venkatesan ... Petitioner Vs. 1. The District Collector Salem District, Salem 2. The Revenue Divisional Officer Mettur Dam, Salem District 3. The Tahsildar Mettur ... Respondents Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the entire records from the 2nd respondent in connection with the impugned order in Na.Ka.No.10649-2005(D) dated 23-03-2006 and quash the same and consequently direct the respondents to issue the community certificate to the petitioner certifying that he belongs to Konda Reddis Community. For petitioner :: Mr. M. Venkatachalapathy, Senior Counsel for Mr.M. Sriram For respondents:: Mr. M. Dhandapani, Spl. G.P. https://hcservices.ecourts.gov.in/hcservices/ ORDER (PRABHA SRIDEVAN, J.) The petitioner claims to belong to Konda Reddy community. At the time of filing the writ petition, he was undergoing his Ph.D. in Engineering at the National Institute of Technology, which is a part of Regional Engineering College, Tiruchy. He wanted to apply for a job and since for issuance of Community Certificate to ST (Konda Reddy is one), the authority is the Revenue Divisional Officer, he applied for issuance of the Certificate sometime in 2004. No enquiry was held and no certificate was issued. Therefore, he filed W.P.No.1840 of 2006 for a mandamus. By order dated 10-03-2006, this Court directed the second respondent, Revenue Divisional Officer to pass orders on the application for issuance of Community Certificate. Thereafter, on 23-03-2006, in Na.Ka.No.10649-2005(D), the impugned order was passed rejecting the claim of the petitioner for issuance of the Community Certificate. 2. The learned Senior Counsel appearing for the petitioner would submit that the petitioner had filed as many as 96 documents and the second respondent had proceeded to consider all those documents without giving an opportunity to the petitioner. The learned Senior Counsel submitted that if opportunity had given, the petitioner would have explained many of the doubts which might have needed clarification. The learned Senior Counsel submitted that the second respondent had referred to the various sale deeds executed by relatives of the petitioner where the Community name has been given, but had rejected all those sale deeds on the ground that the relationship between the petitioner and the parties to the sale deed have not been explained. The learned Senior Counsel submitted that only if opportunity had been given to the petitioner, could he have clarified these doubts. When the petitioner was not asked to appear the petitioner had no scope for explaining anything. The learned Senior Counsel submitted that such a discreet enquiry is not an enquiry in the eye of law and in 1996 WLR 482(Illamaran, D. V. Govt. of India), this Court had held that an order passed on the basis of a discreet enquiry wihtout giving opportunity to the person concerned infringes the principles of natural justice and remitted the matter for consideration afresh. Therefore, the learned Senior counsel for the petitioner submitted that the proper procedure would be to remit the matter to the Revenue Divisional Officer directing him to give an opportunity to the petitioner to issue a Community Certificate on the basis of the documents furnished by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 3. The learned Special Government Pleader on the other hand submitted that it is not the quantity of evidence that matters, but the quality and the Revenue Divisional Oficer had given a detailed order giving reasons as to why he was unable to accept the petitioner's case that he belonged to Konda Reddy. The learned Special Government Pleader referred to AIR 1995 SC 94 (Kumari Madhuri Patil V. Addl. Commissioner, Tribal Development) where the caste of a candidate registered in School admission register as Hindu Koli was subsequently changed to Mahadeo Koli, and the Supreme Court held that then such claimants cannot take the benefit of the reservation since their status cannot be said to have properly established. The learned Special Government Pleader pointed out to the various paragraphs in the impugned order which showed that the petitioner who was a Reddy subsequently, changed it to Konda Reddy to get the benefits of reservation. The learned Special Government Pleader would submit that the order does not deserve to be reviewed and the order is not susceptible to review and it should be confirmed. 4. We have considered the matter. It cannot be disputed that the petitioner was not given a hearing before the order was passed and as held in 1996 WLR 482(D. Illamaran V. Government of India) clearly such an enquiry is not accepted. 5. We, ofcourse have the option of sending the matter back to the Revenue Divisional Officer or the Collector for considering whether the petitioner belongs to the Konda Reddy Community. In a similar situation, in 2000 (IV) CTC 487 (V. Gurusamy V. The Collector of Madurai) the learned Single Judge of this Court observed that normally in such a situation, the matter would be remitted to the District Collector for fresh enquiry but since a District High Level Caste Scrutiny Committee has been constituted, the mattter was sent to the District High level Caste Scrutiny Community for consideration of the community of the petitioner. The following paragraph is relevant: "14. Therefore, in view of the above, the present enquiry will, therefore, be required to be conducted by the District High Level Caste Scrutiny Committee. In the circumstances, the impugned order is set aside and the matter is remitted back to the District High Level Caste Scrutiny committee, which shall issue fresh notice to the petitioner, furnish relevant documents pertaining to the aforesaid report in regard to the enquiry conducted by the Revenue Divisional Officer and afford him a reasonable opportunity of being heard and thereafter, decide the claim made by the petitioner, on merits and in accordance with law within six weeks from the date of receipt of a copy of this order, in the https://hcservices.ecourts.gov.in/hcservices/ event of coming to the conclusion that the petitioner does not belong to Kammarra Community, the said committee will be required to intimate the result of the enquiry to the second respondent also." 6. Now we will consider G.O.(2D) No.108 Adi Dravidar and Tribal Welfare Department, dated 12-09-2007 (hereinafter referred to as 'the G.O.'). The G.O. deals with the Constitution of of the District Level Vigilance Committee and the State Level Scrutiny Committee, former to scrutinise the genuineness of the community certificates issued as Scheduled Caste and the latter to scrutinise the genuineness of the community certificates issued as Scheduled Tribes. In the Annexure to the G.O., Paragraph No.1 reads as follows: "1. Petition / Application / Scrutinisation for verification of the caste certificate by the District Level Vigilance Committee/State Level Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post by the individual/parent concerned." (i) Before seeking admission to an educational institution or for an appointment to a post the candidate or his parents must produce the caste certificate for verification to the District Level Vigilance Committee or State Level Scrutiny Committee. This should be done by the said person or the parents, six months before seeking admission to an educational institution or an appointment to a post. This is in conformity with the judgment of the Supreme Court in Madhuri Patil's case (AIR 1995 SC 94 (Kumari Madhuri Patil Vs. Addl. Commissioner, Tribal Development)). The relevant paragraph reads as follows: "It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following: 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 Directorate concerned. https://hcservices.ecourts.gov.in/hcservices/ 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post." Now, the present petitioner before applying for the job had approached the Revenue Divisional Officer for his caste certificate. However, the Revenue Divisional Officer rejected his application for caste certificate and therefore, he has filed this writ petition. (ii) If a caste certificate had been issued in his favour even if the caste certificate was in force, it should be scrutinised by the District Level Vigilance Committee or the State Level Scrutiny Committee as the case may be and for this a petition/Application/ Scrutinisation for verification shall be made by the individual or the parents six months before he or she seeks admission to the School or College or applies for the job. (iii) So if after the matter is remitted to the Revenue Divisional Officer a community certificate is issued in favour of the petitioner again, before he applies for a job such a certificate should still be placed before the State Level Scrutiny Committee as per Paragraph No.1 of Annexure to the G.O.. Instead of doing that, we feel that the time consumed can be saved both for the petitioner and for the State by directing the second respondent herein to straight away forward the impugned order to the State Level Scrutiny Committee. (iv) Now we come to the other Paragraphs of the Annexure and the relevant parapraphs are extracted herein: "2. The District Level Vigilance Committee/ State Level Scrutiny Committee concerned, on receipt of Petition/Application shall call for a report from the concerned local revenue authority by whom such Scheduled Caste/ Scheduled Tribe certificate was issued. On receipt of the report the District Level Vigilance Committee/ State Level Scrutiny Committee, if found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed / issued, the committee concerned should issue a show cause notice supplying a copy of the report of the verification authority to the candidate by a registered post with acknowledgement due or through the head of the concerned educational institution in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any would be made within two weeks from the date of receipt of the notice and in no case on request not more than 30 days from the date of receipt of the notice. In case the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the committee on https://hcservices.ecourts.gov.in/hcservices/ receipt of such representation reply shall convene the committee and the committee shall give reasonable opportunity to the candidate/ parent/guardian to adduce all evidence in support of their claim. If any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it eems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof. 3. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fradulently obtained and in the latter event the same procedure as is envisaged in para 2 be followed." Paragraph No.4 deals with minor candidates and that does not apply in the present case. "5. The enquiry should be completed as expeditiously as possibly preferably by day to day proceedings within such period not exceeding two months. If after enquiry, the caste scrutiny commitee finds the claim to be false or spurious, they should pass an order canceling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant. 6. The committee should ensure that in case, the certificate obtained or social status claimed found to be false, the parent/guardian /the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or the Parliament. 7. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The principal etc. of the educational institution responsible for making the admission or the appointing authority should cancel the https://hcservices.ecourts.gov.in/hcservices/ admission/appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post. 8. The order passed by the committee shall be final and conclusive only subject to the proceedings under Art.226 of the Constitution. In case of the Writ Petition/MP/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Divisional bench but subject to Special Leave under Article 136. 9. No suit or other proceedings before any other authority shall lie." 7. In the present case, there is no employer concerned because the petitioner has not applied for the job and the educational institution where he studied till date has not objected to his claim. However the report from the local revenue authority is already there in the form of the impugned order. So the State Level Scrutiny Committee shall adopt the procedure laid down in Paragraph No.2 of the Annexure to the G.O. If the report shows that the claim is spurious and doubtful, the show cause notice, the opportunity should all be given as per Paragraph No.2 of the Annexure to the G.O. If the Committee accepts the claim it shall pass orders accordingly. This order will be the proof of his status. But if the order is adverse then the consequences will follow as per the subsequent paragraph. This Time Schedule as per Paragraph No.5 to the Annexure to the G.O., shall be adhered to by the State Level Scrutiny Committee. 8. The second respondent is directed to forward the impugned order dated 23-03-2006 along with the copy of this order within a period of two weeks from the date of receipt of a copy of this order to the State Level Scrutiny Committee and the State Level Scrutiny Committee though not a party to this writ petition shall comply with this order. The State Level Scrutiny Committee while giving an opportunity to the petitioner shall hear the matter without being in any way influenced by the discussions of the second respondent in the impugned order or any observations made by us in this order, but, shall independently consider the question of the petitioner's status. Another reason that weighs with us for not remitting the matter back to the Revenue Divisional Officer and sending it to the State Level Scrutiny Committee is that there is an anthropology expert in the Committee who is better equipped to consider and decide the claim of the petitioner and also to reject if the claim is spurious. https://hcservices.ecourts.gov.in/hcservices/ 9. The learned Special Government Pleader submitted that it will be useful both for the applicants and the State if paragraph No.1 of Annexure to G.O.Ms.No.108 is explained in this judgment. We have already dealt with the procedure to be adopted. However, we will repeat it. We have already extracted the judgment from Madhuri Patil's case. There the Supreme Court was concerned with genuine candidates belonging to Scheduled Caste, Scheduled Tribes or Other Backward Classes on whom the Constitution had conferred certain benefits being denied admission for want of a certificate and also with regard to the ineligible and spurious persons who had falsely gained entry and have played fraud on the basis of false certificates. Therefore, the Supreme Court felt it was necessary that the certificates issued are scrutinised at the earliest. There seems to be a misconception that only if the certificate is cancelled or rejected, the applicant should go before the State Level Scrutiny Committee or District Level Vigilance Committee. This does not seem to be the meaning of Paragraph No.1 of the Annexure to the G.O. The social status certificate are issued by the officers appointed for that purpose, the Tahsildar will issue the Scheduled Caste Certificate and the Revenue Divisional Officer will issue the Scheduled Tribe Certificate. But these certificates should be placed for veification before the appropriate Committee, though they have not been cancelled or questioned. This submission for verification should be made within six months before the applicants seek admissions into educational institutions or before they seek appointment to a post. Therefore, it is clear that even where the certificates which are in force and have not been cancelled and which have been issued by the appropriate Officer, they must be scrutinised by the Committee before the candidate is appointed on the basis of the social status or is admitted on the basis of the social status. This alone will be in conformity with the Supreme Court's judgment and the Government had also understood the judgment in letter and spirit of the judgment and that is why Paragraph No.1 of the Annexure to G.O.Ms.No.108 has been issued. (Emphasis supplied) 10. The writ petition is disposed of accordingly. No costs. The connected miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. glp https://hcservices.ecourts.gov.in/hcservices/ To 1. The District Collector Salem District, Salem 2. The Revenue Divisional Officer Mettur Dam, Salem District 3. The Tahsildar Mettur 1 CC TO Mr.M. Sriram, Advocate, SR. 52545 1 cc To The Government Pleader, SR.52297 W.P.No.11381 of 2006 NM (CO) kk 16/10 https://hcservices.ecourts.gov.in/hcservices/