Madras High Court
T.Gurusamy vs The District Collector on 29 September, 2008
Bench: Prabha Sridevan, V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.09.2008 CORAM THE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN and THE HON'BLE MR. JUSTICE V.PERIYA KARUPPIAH Writ Petition Nos.13557 and 13558 of 2004 T.Gurusamy ... Petitioner in the above W.Ps. vs 1.The District Collector, Coimbatore District. 2.The Assistant General Manager, (Appointing Authority), Region-1, Zonal Office, State Bank of India, P.B.No.3897, Coimbatore-641 018. 3.The Chairman, State Scrutiny Committee and Secretary to Government, Adi Dravidar & Tribal Welfare Department, Namakkal Kavinar Maligai, 3rd floor, Secretariat, Chennai-9. ... Respondents 1 to 3 in the above W.Ps. Prayer:- Writ petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records of the 3rd respondent vide Proceeding No.16334/ADW-II/2000 dated 22.03.2004 and the 2nd respondent dated 27.04.2004 quash the same and consequently direct the 2nd respondent to reinstate the petitioner forthwith in service with all attendant service benefits such as arrears of salary, leave salary, bonus, continuity in service and all other benefits accruing thereon. For Petitioner : Mr.S.Udayakumar For Respondents: Mr.M.Dhandapani, Spl. Govt. Pleader for R1 & R3 Mr.P.D.Adikesavan, AGP for R2 O R D E R
(Order of the Court was made by PRABHA SRIDEVAN,J.) The writ petitioner claims to belong to Konda Reddy Community. He was issued a certificate by the Deputy Tahsildar, Avinashi. Subsequently, by order dated 05.06.2000 in Ref. No.159906/96 L3 dated 05.06.2000, the Collector, Coimbatore District, the 1st respondent herein, found the said Certificate to be bogus and that it was cancelled by the District Vigilance Committee and therefore, the 2nd respondent was directed to initiate action for terminating the services of the petitioner without further notice.
2. Against the said order, the petitioner filed W.P.No.11286 of 2000 on the ground that even though he had filed an appeal before the State Level Committee against the order passed by the District Level Vigilance Committee, his termination of service must be set aside on the ground that the District Level Committee consisted of only two members and it had no jurisdiction to cancel the Community Certificate. For this, the petitioner relied on the decision reported in Kumari Madhuri Patil -vs- Additional Commissioner, Tribal Development and others (AIR 1995 SC 94). The petitioner's case was strengthened by the order passed by the Division Bench in Writ Appeal No.2969 of 2002 dated 25.03.2003 by which it was held that any cancellation of appointment pursuant to the findings of the District Vigilance Committee consisting of two officers cannot be upheld since such a Committee was not constituted in accordance with the directions of the Apex Court. Therefore, the learned Single Judge quashed the order of termination. While considering the question whether he should be reinstated with backwages, the respondent referred to a judgment in W.P.No.1825 of 2001 dated 27.06.2003 where it was held that the question of reinstatement would depend on the final decision rendered by the State Level Scrutiny Committee. Thereafter, W.P.No.11286 of 2007 was disposed of as follows:-
"9.Having regard to the facts and circumstances of the case, in the interest of justice, the following order is passed:
(i) The petitioner would be reinstated in service and would get his salary thereafter:
(ii) The matter relating to validity of the community certificate shall be considered by the State Level Scrutiny Committee in accordance with law by giving opportunity of hearing all the concerned parties, as expeditiously as possible preferably within a period of six months from the date of receipt of the records.
(iii) The first respondent is directed to forward all the relevant records to the State Level Scrutiny Committee within a period of four weeks from the date of receipt of the order.
(iv) If it is ultimately found that the petitioner belongs to Konda Reddy Community, the 2nd respondent Bank shall be obliged to pay all the arrear wages from the date of termination till the reinstatement pursuant to the present order.
(v) On the other hand, it it is found that the petitioner does not belong to Konda Reddy Community the 2nd respondent shall be obliged to issue fresh order of termination against the petitioner.
(vi) The order regarding reinstatement should be carried out within a period of one month from the date of communication of the order."
3. Against the said order, the 2nd respondent filed W.A.No.4033 of 2000. This writ appeal was dismissed. Therefore, the order directing consideration of the matter afresh by the State Level Scrutiny Committee became final.
4. Thereafter, the petitioner went before the Tamil Nadu State Scrutiny Committee and by proceedings No.16334/ADW II/2000 dated 22.03.2004, his community certificate was cancelled. Against that, the present petitions, viz., W.P.No.13557 of 2004 has been filed against the cancellation of the community certificate by the State Level Scrutiny Committee and W.P.No.13558 of 2004 has been filed for quashing the order of termination by the employer.
5. The learned counsel for the petitioner referred to the decisions reported in Indian Bank -vs- R.Rani and another {(2007) 12 Supreme court Cases 796} and K.Gurusamy -vs- Tamil Nadu State Scrutiny Committee Adi Dravidar and Tribal Welfare Department, Chennai and others {(2008) 6 MLJ 807}. In (2007) 12 SCC 796, the Supreme Court held that since the constitution of the District Level Committee "was in infarction of law laid down by this Court in Madhuri Patil's case, the defect could not have been cured by taking the matter in appeal to State-level committee. This being the position, we are of the view that the High Court was quite justified in quashing the orders passed by District-level committee, State-level committee and the orders of termination". Following this, in (2008) 6 MLJ 807, the Division Bench of this Court directed the State Level Committee to consider the matter afresh.
6. The learned Special Government Pleader submitted that neither the decision reported in (2007) 12 SCC 796 nor the decision reported in (2008) 6 MLJ 807 will apply to the present cases. In the present cases, though the State Level Committee has referred the petition as Appeal Petition, in actual fact, the District Level Committee's cancellation was quashed and this Court directed the State Level Committee to consider it afresh and the State Level Committee has considered it afresh pursuant to the order passed in W.P.No.11286 of 2000 and now since the State Level Committee is a three-member Committee, any error in the said order can be corrected only under Article 226 of the Constitution of India and it is not necessary for the matter to be remitted to the State Level Committee. The learned Special Government Pleader submitted that paragraph No.3 of G.O.(2D)No.108 clearly provides that where the matter is heard by the State Level Committee pursuant to the direction of this Court, then the said order is amenable to review only under Article 226 of the Constitution of India.
7.The learned counsel for the Bank referred to a decision reported in S.Nagarajan -vs- District Collector, Salem (AIR 1997 SC page 937), where it was noted that in the School Admission Register, the candidate's caste was originally shown as 'Hindu Reddi' and thereafter, by interpolation, it was altered to Konda Reddy and in that circumstance, it was held that the certificate was not genuine and that an incorrect document.
8. It is true that in this case, the State Level Committee has referred the petition before it as an Appeal Petition. But however, it is seen from the subject of the proceedings that they were aware that the District Vigilance Committee's order was cancelled. It is also seen from the said order that the State Level Committee had gone through all the documentary evidence and the depositions made before the State Level Scrutiny Committee. Therefore, it has not dealt with the matter as an appeal, but has considered the documentary evidence and the oral evidence produced before it as the original authority. Paragraph No.8 of the said order reads as follows:-
"The State Level Scrutiny Committee has gone through all the documentary evidences and and also the depositions made before the State Level Scrutiny Committee in detail. At the outset, the Committee considered the fact that all the names mentioned in the documents even prior to 1950 clearly shows that they are suffixing with the word "Reddy" which is not a customary practice of any Tribe and particularly their community names are mentioned as 'Reddy'. Secondly the School TC of G.Subbulaxmi has been obtained in the year 1980 wherein the community has been mentioned only as ST without any reference to the Sub Section. Similarly, the TC of one Thiru R.Kanagaraj, S/o.Rangasamy issued in the year 1985 shows that there is a deletion and correction as Kondareddy. However, against the column there is no mention about whether he belongs to SC or ST. Thiru Gurusamy, born on 4.4.60, and his school admission record sheet (Admission No.484) issued by the Headmaster, Panchayat Union Hr. Elementary School, P.Pudupalayam, shows that his religion is Hindu and the community is Reddiar. This document has not been contested by the appellant.
The sale deed document No.306 dated 13.09.67 clearly discloses the fact that the Vendor and the Purchaser are belonging to 'Reddy' community and not proved as Kondareddis ST community.
The appellant has assured before the State Level Scrutiny Committee on 24.02.2003 to produce his school certificate on or before 10.03.2003 and accordingly he has appeared before the Committee and produced his school certificate issued on 17.05.75, wherein his community has been recorded as 'Reddiar'.
The contention of the appellant that the word Reddy mentioned in all the documents including suffixing his father's name refers only the community Kondareddy and not the Reddiar community is unacceptable because there is no distinction made in any of the Government of India references.
It is also to be noted that the Reddy community prefixing with the Kanjam Reddy, etc. are classified under the BCs. The community Reddiar is a Forward Community and the more specified Kondareddis is classified under Scheduled Tribe as per the Government of India Notification. Therefore, the synonyms raised by the petitioner cannot be considered and decided when there is no such order of Notification by the President of India to the SC/ST Amendment Act 1976.
The tribal characteristics of Kondareddis has also been examined by the Anthropologist, Member of the Committee. The report of the Anthropologist discloses the fact that he is not familiar with the tribal characteristics of the Kondareddis ST community. He has also reported that the cultural traits mentioned by the appellant suits only to the 'Reddiar' community."
Therefore, from this, it is seen that in the documents produced prior to 1950, the community was shown as 'Reddi' and even with regard to the petitioner, who was born on 04.04.1960, the School Record shows that his community is Reddiar. This document was not contested by the petitioner herein. The State Level Committee has also referred to several sale deeds which show that the community referred to is Reddi. On 24.02.2003, the petitioner had appeared before the State Level Scrutiny Committee and produced his school certificate which also showed that his community was recorded as Reddiar. The contention of the appellant that the word Reddi only refers to Konda Reddy was rightly rejected by the State Level Committee holding that "the synonym raised by the petitioner cannot be considered and decided when there is no such order or notification by the President of India to the SC/ST Amendment Act 1976". This is in accordance with the judgment of the Supreme Court in State of Maharashtra Vs. Milind and others (2001 (1) SCC 4), wherein it has been held as follows:-
"The States have no power to amend Presidential Orders. Consequently, a party in power or the Government of the day in a State is relieved from the pressure or burden of tinkering with the Presidential Orders either to gain popularity or secure votes. ...Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste; a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342. Allowing the State Governments or courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the schedule of the Presidential Order, when it is not so specifically included, may lead to problems. In order to gain advantage of reservations for the purpose of Article 15(4) or 16(4) several persons have been coming forward claiming to be covered by Presidential Orders issued under Articles 341 and 342. This apart, when no other authority other than Parliament, that too by law alone can amend the Presidential Orders, neither the State Governments nor the courts nor Tribunals nor any authority can assume jurisdiction to hold inquiry and take evidence to declare that a caste or a tribe or part of or a group within a caste or tribe is included in Presidential Orders in one entry or the other, although they are not expressly and specifically included. Therefore, it has to be held that it is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950."
The Anthropologist Expert, who also examined the petitioner, found that he does not display the tribal characteristics of Konda Reddy. Therefore, the petitioner's case had been considered by the State Level Scrutiny Committee, which had passed an order on 22.03.2004. This is in accordance with the earlier writ petition, W.P.No.11286 of 2000, where this Court had directed the State Level Scrutiny Committee to consider the validity of the petitioner's community certificate after giving an opportunity to all the parties concerned and as expeditiously as possible.
9. In S. Nagarajan v. District Collector (AIR 1997 Supreme Court 935, the Supreme court has held as follows:-
"4.It would thus be seen that the documentary evidence was brought on record to prop up the retrograde status of Scheduled Tribe to snatch the constitutional benefits given to the Scheduled Tribes.
5. The Division Bench after considering these facts has held thus:
... About the documentary proof let in by the petitioner, the fathers case is the proper proof to know the caste of his son. In the school admission register, the caste of the writ petitioners father Thiru N. Siddareddi was originally noted as Hindu Reddi only. Subsequently, the word Konda has been written in it, in brackets and that too in different ink. The corrections have not been attested by the Headmaster. A certificate issued on 2-7-1953 by the Village Munsif of Kannamoochi has been pasted in the admission register which does not bear the initial or signature of the Headmaster for having accepted it. In the Transfer Certificate dated 16-6-1955 also, his caste has been originally noted as Hindu Reddiar and subsequently the word Konda has been added. Even accepting that the correction in the Admission Register had actually been made in the year 1953 itself on the strength of the Village Munsifs Certificate dated 2-7-1953, the caste in the T.C. would have been noted as Hindu Kondareddi in the first instance itself. Even in the Service Register of Siddareddi, it has been noted as Hindu/Reddi (Konda). Hence it is patently clear that the caste noted in the admission register was not corrected in the year 1953 but was corrected long after the entry of Thiru Siddareddi into government service. The other documents filed by the petitioner do not support the claim that the writ petitioner is a Kondareddi.
2. It is an established position of law that though jurisdiction under Article 226 of the Constitution is wide, but nevertheless it cannot be exercised as an appellate jurisdiction and it is not open to this Court to appreciate the evidence and come to its own conclusion as long as it is shown that the fact-finding authority has followed the provision of law correctly and appreciated the evidence in a reasonable manner. In other words, the approach of the fact-finding authority not being perverse and unreasonable and not being vitiated by non-consideration of the evidence on record, the fact that this Court can come to a different conclusion on the very same evidence would not be a ground for interference. Added to that, while considering a similar issue, the Supreme Court in Madhuri Patil v. Addl. Commr., Tribal Development1 has held as follows: (SCC p.257, para 15) The question then is whether the approach adopted by the High Court in not elaborately considering the case is vitiated by an error of law. High Court is not a court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when considers all the material facts and records a finding, though another view, as a court of appeal may be possible, it is not a ground to reverse the findings. The court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately record the finding. Each case must be considered in the backdrop of its own facts.
3. Further, in a case like this, the determining factor is the community to which the father of the writ petitioner belonged. In the instant case, the father of the writ petitioner never claimed that he was a Kondareddi, even though he was a government servant. Kondareddi is recognised as a Scheduled Tribe. Any person entering a government service, if he is entitled to such a benefit, would never fail to avail such a benefit. If the father of the writ petitioner was a Kondareddi, he would not have failed to take advantage of the fact that he belonged to Kondareddi, as such he was a Scheduled Tribe and entitled to all the benefits. He had not done so. The learned Single Judge, referring to the community of the father of the writ petitioner, in para 12 has observed as follows:
It is apparent that petitioners father was fully aware when he entered government service that he did not belong to any Scheduled Tribe. He has attempted to take advantage of the name Reddi being part of the name of Scheduled Tribe Kondareddi and had Konda added to his school records and declare that his sons community is Kondareddi so that the same may be entered in the petitioners school records. Such entries cannot confer the status of Scheduled Tribes. The claim made on the basis of such records is, in the words of Apex Court, in the case of Madhuri Patil1 is one of Pseudo status'.
6. ........
7. Shri Vaidyanathan, learned Senior Counsel appearing for the appellant, contends that the view expressed by the courts below is not correct and in view of the fact that the appellants grandfather had entered into an unregistered agreement wherein they claimed the status of Kondareddi, a Scheduled Tribe, prior to 1949, it is unlikely that the appellant would fabricate the records and claim the status of being a member of the Scheduled Tribe community. The High Court is not a court of appeal to appreciate the evidence. The Collector after detailed consideration of the evidence placed by the petitioner, has concluded that the appellant is not a member of Scheduled Tribe (Kondareddi). His father, N. Siddareddi had never claimed this status though in the ordinary course he would have claimed to be belonging to the Scheduled Tribe community to avail of the benefit of reservation available under State service. The learned Single Judge was right in concluding that the appellants father having been in government service would not have omitted to claim his status as belonging to Scheduled Tribe had he really been a member of Scheduled Tribe community (Kondareddi). On the other hand, his father was Reddy which is a forward caste and that therefore, the subsequent interpolation that he was Kondareddi (interpolation) is not genuine and an incorrect document was thus brought into existence to claim the status as Scheduled Tribe. It is obvious that the Constitution intended to give benefit of social and economic advancement and empowerment and social equality of status and dignity of person, by providing reservation in services of the State and in education by operation of Articles 15, 16 and 14 of the Constitution and that therefore, only the persons who are members of Scheduled Tribes and Scheduled Castes alone are entitled to the benefit. By interpolation of the documents, none can get a particular social status unless it is recognised as per the Presidential Notification/Order under Article 341 or 342, to avail of the benefit of reservation made in that behalf. The High Court was, therefore, correct in accepting the conclusion reached by the Collector that the appellant had not established his status as Scheduled Tribe.
10. The present cases are identical to the above. We have also seen that the order of the State Level Committee which is impugned herein, is well-considered. It is not affected by vice of arbitrariness or violation of principles of natural justice. The State Level Committee has acted in accordance with the directions of this Court which were accepted by the petitioner. We see no infirmity in the impugned order. Hence, both the writ petitions are dismissed. No costs.
bs/ To
1.The District Collector, Coimbatore District.
2.The Assistant General Manager, (Appointing Authority), Region-1, Zonal Office, State Bank of India, P.B.No.3897, Coimbatore-641 018.
3.The Chairman, State Scrutiny Committee and Secretary to Government, Adi Dravidar & Tribal Welfare Department, Namakkal Kavinar Maligai, 3rd floor, Secretariat, Chennai 9