IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.07.2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.P.No.17223 of 2006 Dr.P.Mohan .. Petitioner -vs- 1. The State Level Caste Scrutiny Committee rep.by its Secretary to Government Adidravidar and Tribal Welfare Department Chennai 600 009 2. The District Collector and Chairman District Level Vigilance Committee Tirunelveli District Tirunelveli .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records pertaining to the passing of the proceedings in No.11868/ADW II/2004 dated 27.04.2006 of the State Level Scrutiny Committee, Adidravida and Tribal Welfare Department, Chennai-9 and quash the same and direct the respondents to treat the community certificate issued to the petitioner in No.014229 in the year 2003 by the Revenue Divisional Officer, Cheranmahadevi as valid. For Petitioner :: Dr.A.E.Chelliah Senior Counsel for M/s C.Vasanthakumari Chelliah For Respondents :: Mr.K.Balasubramanian Special Government Pleader ORDER (Order of the Court was delivered by M.SATHYANARAYANAN, J.) The petitioner challenges the order dated 27.4.2006 passed by the first respondent, under which the first respondent has held that the petitioner has not proved his community status that he belongs to Kattunaicken Scheduled Tribe community by documentary evidence. 2. The affidavit filed in support of this writ petition would disclose that, according to the petitioner, he belongs to Kattunaicken Scheduled Tribe community and his close relatives also belong to the said community. The petitioner was issued with the community certificate dated 12.8.80 by the Headquarters Deputy https://hcservices.ecourts.gov.in/hcservices/ Tahsildar, Nanguneri and another community certificate dated 6.7.90 by the Tahsildar, Radhapuram stating that he belongs to Kattunaicken Scheduled Tribe community. The petitioner applied for the post of Veterinary Assistant Surgeon under Scheduled Tribe quota and he was selected by the Tamil Nadu Public Service Commission on 29.4.99. Thereafter, the petitioner applied to the jurisdictional Revenue Divisional Officer for issuance of community certificate stating that he belongs to Kattunaicken Scheduled Tribe community and the said application was rejected on 29.4.99 and in the said proceedings, the above said two certificates issued to the petitioner were also cancelled. The petitioner, aggrieved by the said order, preferred an appeal before the State Level Scrutiny Committee and since it was not disposed of, he was constrained to file W.P.No.3321 of 2003. This Court, vide order dated 14.8.2003, had issued a direction to the concerned authority to issue the community certificate within three weeks, but subject to the scrutiny by the State Level Committee. The State, aggrieved by the said order, preferred appeal in W.A.No.3424 of 2003 and a Division Bench of this Court has also confirmed the said order. 3. Subsequently, the State Level Scrutiny Committee has scrutinised the case of the petitioner and vide its order dated 22.3.2004, has given a finding that the petitioner does not belong to the said community. The said order was also once again challenged by the petitioner by filing W.P.No.12357 of 2004 and this Court vide order dated 24.6.2005 had allowed the writ petition and remanded the matter once again with a specific direction that the Anthropologist member should be replaced with another member and the State Level Scrutiny Committee should conduct enquiry afresh. 4. The petitioner, who was selected as Veterinary Assistant Surgeon, was not given appointment and therefore he approached the Central Administrative Tribunal by filing O.A.No.424 of 2004 seeking appropriate direction for issuance of the order of appointment and the Tribunal also passed an order to that effect on 11.4.2005. Since the said order was not complied with, the petitioner has also filed an application for contempt. The department also filed W.P.No.37150 of 2005 against the order passed by the said Tribunal and the department in the writ petition has conceded that they will issue the order of appointment and accordingly, the petitioner was issued with the order of appointment on 10.4.2006. 5. On a remand by this Court, the State Level Scrutiny Committee once again had taken up the matter for fresh consideration and vide order dated 27.4.2006, has again rejected the request made by the petitioner and held that the petitioner does not belong to Kattunaciken community. The petitioner, challenging the vires of the said order, has filed this writ petition. 6. We heard the submissions of Dr.A.E.Chelliah, learned senior counsel for the petitioner and Mr.K.Balasubramanian, learned Special Government Pleader for the respondents. 7. A perusal of the impugned order dated 27.4.2006 passed by the State Level Scrutiny Committee would reveal that one of the members is a Professor and Head of Department of Anthropology, University of https://hcservices.ecourts.gov.in/hcservices/ Madras and a careful reading of the order does not disclose either the filing of any report or his opinion as to whether the petitioner belongs to Scheduled Tribe community or not. The order further reveals that the petitioner has also appeared before the first respondent Committee on 12.12.2005 and also gave an oral statement stating that he belongs to Kattunaicken Scheduled Tribe community and during the course of enquiry, he has also produced documents. It is pertinent to note at this juncture that the earlier order of the State Level Scrutiny Committee dated 22.3.2004 was set aside by this Court with a specific direction for replacement of Anthropologist member and to hold fresh enquiry and in spite of the said direction, the present Committee had relied upon the proceedings passed by the earlier Committee on 22.3.2004. The order does not disclose whether the third member, who is an expert in Anthropology, has given any report and even assuming that such a report has been given, whether it is considered or not has not been stated in the impugned order. The order would only say that "Further, the cultural and anthropological features disclosed by Thiru P.Mohan also did not support his claim." 8. The present Committee has proceeded on the footing that the earlier decision of the State Level Scrutiny Committee dated 22.3.2004 was in order and held that there is no ground to interfere with the orders already passed. As already pointed out, the earlier report of the State Level Scrutiny Committee was the subject matter of challenge in W.P.No.12357 of 2004 and this Court vide order dated 24.6.2005 has set aside the order with a specific direction for replacement of the Anthropologist member and to hold fresh enquiry. The above direction of this Court passed in the said writ petition has not at all been taken into consideration by the first respondent and it has chosen to proceed merely on the earlier order passed by the State Level Scrutiny Committee. In our considered opinion, the said procedure adopted by the first respondent is unsustainable and therefore the said order is liable to be quashed. At this juncture, the learned Special Government Pleader would pray for remanding of the matter once again to the State Level Scrutiny Committee for fresh consideration as to the community status of the petitioner. 9. It is to be pointed out at this juncture that the petitioner has so far approached this Court by way of filing W.P.No.3321 of 2003 and W.P.No.12357 of 2004 and in all the proceedings, he was successful. Since the appointment order was not issued, he was constrained to approach the Central Administrative Tribunal by filing O.A.No.424 of 2004 and it was also allowed and as against the same, the department also filed W.P.No.37150 of 2005, wherein they have conceded that they will issue the order of appointment and ultimately the petitioner was also issued with the order of appointment and at present, he is functioning as Veterinary Assistant Surgeon in the services of Union Territory of Puducherry. 10. Since the petitioner already approached the judicial forums twice and in spite of the specific direction given by this Court in the order dated 24.6.2005 in W.P.No.12357 of 2004, the first respondent has chosen to merely confirm the earlier order of the State Level Scrutiny Committee dated 22.3.2004 without looking into the materials placed by the petitioner. It is also to be pointed out https://hcservices.ecourts.gov.in/hcservices/ that the impugned order does not disclose whether the third member/Anthropologist has submitted his report and whether it was also the subject matter of consideration before passing the order rejecting the request made by the petitioner for issuance of community certificate. Therefore, this Court is of the view that it will be an exercise in futility to remand the matter once again to the State Level Scrutiny Committee. Under similar circumstances, this Court in an earlier decision had directed the concerned authority to issue the community certificate. At this juncture, we may point out that it is not a general rule that while this Court exercises the power under Article 226 cannot issue a positive direction in a given case. There may be certain exceptions. The present case is an exception to the general rule. In support of the above, we may quote the judgment of the Apex Court in Al-Kareem Educational Trust and another v. State of Bihar and others, AIR 1996 SC 1469. 11. This Court, on consideration of the facts and circumstances of the case and the reasons stated above, is of the view that the impugned order on the face of it is unsustainable and liable to be quashed. In the result, the writ petition is allowed and the impugned order passed by the first respondent is quashed. Consequently, W.P.M.P.No.16238 of 2006 is closed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ss To 1. The Secretary to Government/ State Level Caste Scrutiny Committee Adidravidar and Tribal Welfare Department Chennai 600 009 2. The District Collector and Chairman District Level Vigilance Committee Tirunelveli District Tirunelveli 2 cc to M/s.C.Vasanthakumari Chelliah, Advocate, Sr.No.53415 1 cc to Government Pleader, Sr.No.53540 W.P.No.17223 of 2006 MRD {CO} TP/30.7.2010. https://hcservices.ecourts.gov.in/hcservices/