IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 OP.No. 18446 of 1997(U) ----------------------------------- PETITIONER: ------------------- DR.P.LEELAKUMARI, ASSISTANT PROFESSOR, MEDICAL COLLEGE HOSPITAL, KOZHIKODE. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.P.RAMACHANDRAN RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP.BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES CONSTITUTED UNDER THE KERALA (SCHEDULED CASTES AND SCHEDULED TRIBES) REGULATION OF ISSUE OF COMMUNITY CERTIFICATES ACT, 1996 REP.BY ITS CHAIRMAN, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF MEDICAL EDUCATION, ` THIRUVANANTHAPURAM. 4. THE PRINCIPAL MEDICAL COLLEGE HOSPITAL, KOZHIKODE. 5. THE TAHASILDAR, THIRUVANANTHAPURAM. 6. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, TRIVANDRUM, REP.BY ITS SECRETARY. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC SPL. GOVERNMENT PLEADER SRI.SANTHOSHKUMAR FOR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/09/2008, ALONG WITH OP NO. 8713 OF 1998 OP NO. 36678 OF 2002 AND OP.1464 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.18446/1997 ORDER ON CMP. NO.32989/1997 IN OP. 18446/1997 DISMISSED 17/09/2008 SD/- K.BALAKRISHNAN NAIR, JUDGE SD/- M.C.HARI RANI, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE RELEVANT EXTRACT OF ADMISSION REGISTER RELATING TO THE PETITIONER P.LEELAKUMARI-GOVERNMENT L.P.SCHOOL THENGELY, THIRUVALLA. EXT.P2:- COPY OF THE RELEVANT EXTRACT OF ADMISSION REGISTER RELATING TO P.LEELAKUMARI-TOWN MUSLIM U.P.S. HARIPAD. EXT.P3:- COPY OF THE RELEVANT EXTRACT OF ADMISSION REGISTER RELATING TO P.LEELAKUMARI-GOVT. U.P.SCHOOL AROOKKUTTY. EXT.P4:- COPY OF THE RELEVANT EXTRACT OF THE SCHOOL ADMISSION REGISTER RELATING TO P.PRASANNAKUMARI-GOVT. UPS AROOKUTTY. EXT.P5:- COPY OF THE G.O.(MS) 11/77/DD DT. 25.1.77 RELATING TO CONCESSIONS TO CHILDREN BORN OF INTER0CASTE MARRIAGE. EXT.P6:- COPY OF THE RELEVANT PAGE OF THE SSLC BOOK OF THE PETITIONER P.LEELAKUMARI. EXT.P7:- COPY OF THE COMMUNITY CERTIFICATE DT. 18.6.1970 ISSUED TO THE PETITIONER BY THE TAHSILDAR , VAIKOM. EXT.P8:- COPY OF THE RELEANT PAGE OF THE SSLC BOOK OF P.PRASANNAKUMARI. EXT.P9:- COPY OF THE RELEVANT EXTRACT OF THE SCHOOL ADMISSION REGISTER RELATING TO THE PETITIONER'S MOTHER K.PADMAVATHY UPS THIRUMOOLAVILASAM. EXT.P10:- COPY OF THE RELEATN EXTRACT OF THE SCHOOL ADMISSION REGISTER RELATING TO A.K.CHAKRAPANI. EXT.P11:- COPY OF THE RELEVANT EXTRACT OF THE SCHOOL ADMISSION REGISTER RELATING TO K.BHASKARAN 1937 AD) EXT.P12:- COPY OF THE COMMUNITY CERTIFICATE DT. 25.4.1955 ISSUED TO K.BHASKARAN BY THE TAHSILDAR, CHENGANASSERY. EXT.P13:- COPY OF THE COMMUNITY CERTIFICATE DT.12.12.1974 ISSUED TO K.BHASKARAN BY THE JUDICIAL MAGISTRATE OF THE 2ND CLASS, KANJIRAPALLY, AS PER THE SERVICE BOOK. OP. NO.18446/1997 EXT.P14:- COPY OF THE FIR IN CRIME NO.401/93 OF THE VAIKOM POLICE STATION, AGAINST K.BHAKSARAN ON A COMPLAINT LODGED BY THE SECRETARY TO THE STATE GOVERNMENT. EXT.P15:- COPY OF THE REFERENCE CHARGE SHEET IN CRIME NO.401/93 OF VAKKOM POLICE STATION, SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, VAIKKOM RELATED TO K.BHASKARAN. EXT.P16:- COPY OF THE PENSION PAYMENT ORDER OF THE LATE SRI.A.V.KUMARAN, GRAND FATHER OF THE PETITIONER. EXT.P17:- COPY OF THE JUDGMENT IN OS. 487/78, MUNSIFF COURT, THIRUVALLA DT. 4.2.1981 RELATED TO 41 PETITIONERS RELATIVES OF THE PRESENT PETITIONER. EXT.P18:- COPY OF THE JUDGMENT IN OP. NOS. 2401/82-A AND 1366/82-I, IN THE HIGH COURT OF KERALA, RELATED TO SOME OF THE PETITIONERS IN OS. 487/78, DT. 21.1.1985. EXT.P18(a):- COPY OF THE JUDGMENT DT. 12.11.87 IN OP. NO.9342/87-K. EXT.P19:- COPY OF THE ADVICE FOR APPOINTMENT BY THE PUBLIC SERVICE COMMISSION RELATED TO THE PETITIONER APPOINTMENT AS TUTOR IN MEDICINE DT. 23.7.85. EXT.P20:- COPY OF THE PROCEEDINGS OF THE DIRECTOR OF MEDICAL EDUCATION ORDER OF APPOINTMENT OF THE PETITIONER AS TUTOR IN MEDICINE DT. 8.8.85. EXT.P21:- COPY OF THE PROCEEDINGS OF THE DME REGULARISING THE APPOINTMENT OF THE PETITIONR AS TUTOR IN MEDICINE DT. 3.11.86. EXT.P22:- COPY OF THE GOVVT. ORDER G.O.NO.9RT) 1405/91/H&PWD DT. 4.5.91 OF THE APPOINTMENT ORDER RELATED TO THE PETITIONER'S APPOINTMENT AS ASSISTANT PROFESSOR IN MEDICINE. EXT.P23:- COPY OF THE DIRECTION OF THE DME REQUIRING THE PETITIONER TO PRODUCE REVISED COMMUNITY CERTIFICATE DT. 7.8.91. EXT.P24:- COPY OF THE COMMUNITY CERTIFICATE ISSUED TO THE PETITIONER BY THE TAHSILDAR, THIRUVANANTHAPURAM DT. 27.9.91. EXT.P25:- COPY OF THE GOVR. ORDER NO.7469/E2/93/SCST. EXT.P26:- COPY OF THE LETTER TO THE DEPUTY SECRETARY BY P.LEELAKUMARI. EXT.P27:- COPY OF THE LETTER TO THE DEPUTY SECRTARY BY P.LEELAKUMARI REQUESTING FOR A CHANCE TO PERUSE THE RECORDS. EXT.P28:- COPY OF THE G.O.NO.7469/E2/93/SCTDD REQUIRING THE PETITIONR TO PROVIDE DETAILS AND PROOF OF RESIDENCE. EXT.P29:- COPY OF THE REPLY OF THE PETITIONER TO EXT.P28. OP. NO.18446/1997 EXT.P30:- COPY OF THE ABSTRACT OF THE GOT. ORDER OF TRANSFER OF THE PETITIONER TO CALICUT MCH DT. 7.7.95. EXT.P31:- COPY OF THE SHOW CAUSE NOTICE ISSUED TO PETITIONER BY THE COMMISSIONER & SECRETARY 9SCSTDD) DT. 13.2.96. EXT.P32:- COPY OF THE REPLY BY THE PETITIONER TO EXT.P31 DT. 30.4.96. EXT.P33:- COPY OF THE NOTICE BY THE CHAIRMAN SCRUTINY COMMITTEE FOR VERIFICATION OF SC/ST CLAIM ISSUED TO THE PETITIONER DT. 7.11.96. EXT.P34:- COPY OF THE PROCEEDINGS OF THE SCRUTINY COMMITTEE FOR VERIFICATION, SC, ST CLAIOM, ISSUED TO THE PETITIONER DT. 30.11.96. EXT.P35:- COPY OF THE JUDGMENT IN OP. NO.1416/97 BY THE HONOURABLE HIGH COURT OF KERALA, RELATED TO THE DAUGHTER OF THE PETITIONER. EXT.P36:- COPY OF THE COMMUNITY CERTIFICATE ISSUED TO DHANYA RAJAN, DAUGHTER OF THE PETITIONER BY THE TAHSILDAR, THIRUVANANTHAPURAM DT. 3.4.97. EXT.P37:- COPY OF THE NOTICE OF THE CONTROLLER OF ENTRANCE EXAM, ISSUED TO DHANYA RAJAN, DT. 28.5.97. EXT.P38:- COPY OF THE DIRECTION OF THE CONTROLLER OF ENTRANCE EXAMINATIONS TO DHANYA RAJAN TO PRODUCE EVIDENCE DT. 23.8.97. EXT.P39:- COPY OF THE OBJECTIONS AND EXPLANATION FILED BEFORE THE CONTROLLER OF ENTRANCE EXAMINATIONS BY DHAN RAJAN. EXT.P40:- COPY OF THE GOT. ORDER NO.MS. NO.76/97/SCSTDD DT. 13.8.97. EXT.P41:- COPY OF THE NOTICE OF ENQUIRY ISSUED BY THE VIGILANCE OFFICER, IN THE DIRECTORATE OF KIRTADS DT. NIL. RESPONDENT'S EXHIBITS : NIL. /TRUE COPY/ P.S. TO JUDGE tss K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== O.P.NO. 18446 OF 1997 ============================ Dated this the 17th September 2008 JUDGMENT Balakrishnan Nair,J. The petitioner was an Assistant Professor in the Kerala Medical Education Service while filing this writ petition. She got employment under the State under the quota reserved for Scheduled Tribes on the strength of a caste certificate obtained by her showing that she belongs to a Scheduled Tribe Community. The said claim of the petitioner that she belongs to a scheduled tribe was the subject matter of the proceedings of the scrutiny committee constituted under G.O.(P) No. 16/95/SCSTDD dated 8-5-1995. The committee found that parents of the petitioner do not belong to Malai Arayan Scheduled Tribe Community, but they are members of Arayan community, which is only an O.B.C. in the State of Kerala. The petitioner seriously disputed the finding of the scrutiny O.P.NO.18446/1997 -2- committee that her mother does not belong to Malai Arayan community. But it is an admitted position that her father is not a member of the Malai Arayan community, he is only a member of Arayan community. Based on Ext.P4, the Government issued Ext.P40 order. As per that order, the Government, inter alia, directed the prosecution of the petitioner for making false claims as to caste status. 2. Since the father of the petitioner admittedly belongs to an O.B.C.community, the claim of the petitioner that she belongs to the Schedueld Tribe Malai Arayan is plainly untenable. So, it is unnecessary to consider whether the findings of the Government that her mother does not belong to Malai Arayan is correct or not. In view of the decision of the Apex Court in Punit Rai v. Dinesh Chaudhary, 2003(8)S.C.C.204 and other cases and also the decision of the Full Bench in Indira v. State of Kerala, 2005(4)K.L.T.119, the caste of the petitioner is normally that of her father. No materials are produced or pleaded in the writ petition to dislodge that presumption. In view of the above position, the challenge against Exts.P34 and O.P.NO.18446/1997 -3- P40 fails. The learned counsel for the petitioner submits that the direction to prosecute the petitioner at this distance of time for having done something in the remote past is unsustainable in law. She relies on the decision of this Court in Sreekumary v. State of Kerala, 2006(1)K.L.T.144 . We feel that if the State finally launches any prosecution against the petitioner, she can raise all the contentions available under law by way of defence in that prosecution. In other words, the decision of the Government to prosecute her and our refusal to interfere with the same will not affect the contentions of the petitioner concerning the validity of any prosecution launched against her based on Ext.P40. Subject to the above right, the original petition is dismissed. K. BALAKRISHNAN NAIR, JUDGE M.C. HARI RANI JUDGE ks. O.P.NO.18446/1997 -4- K.BALAKRISHNAN NAIR & M.C. HARI RANI, JJ. O.P. NO. 18446 OF 1997 JUDGMENT 17-9-2008 O.P.NO.18446/1997 -5- K.BALAKRISHNAN NAIR & M.C. HARI RANI, JJ. CRL.A.NO. 243 OF 2005 JUDGMENT 28-8-2008