Madras High Court
E.Mani vs The Revenue Divisional Officer on 25 November, 2013
Bench: R.Sudhakar, Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 25.11.2013 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR AND THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA W.P. NOS. 25963 & 25964 OF 2013 E.Mani .. Petitioner in WP 25963/13 E.Sampath .. Petitioner in WP 25964/13 - Vs - The Revenue Divisional Officer Tiruvannamalai. .. Respondent W.P. No.25963 of 2013 filed for the issuance of a writ of certiorarified mandamus calling for the records relating to the order of rejection passed in proceedings No.A2/7470/2013 dated 19.7.2013 quash the same and direct the respondent to issue community certificate to the petitioner and his children, viz., M.Sathish, M.Mahalakshmi and M.Balaji that they belong to Kurumans (ST) community based upon the community certificate already issued to their close relatives. W.P. No.25964 of 2013 filed for the issuance of a writ of certiorarified mandamus calling for the records relating to the order of rejection passed in proceedings No.A2/7470/2013 dated 19.7.2013 quash the same and direct the respondent to issue community certificate to the petitioner and his children, viz., S.Naveen and S.Prathiga that they belong to Kurumans (ST) community based upon the community certificate already issued to their close relatives. For Petitioners : Mr. S.Doraisamy For Respondents : Mr. S.P.Prabhakaran, AGP COMMON ORDER
(DELIVERED BY R.SUDHAKAR, J.) The petitioner in both the petition are brothers. They have filed the writ petitions challenging the order of the Revenue Divisional Officer, Tiruvannamalai, rejecting their request for issuance of 'Kurumans' Scheduled Tribe Community certificate.
2. The petitioner in W.P. No.25963/13, E.Mani, submitted application for issuance of community certificate to the District Collector for himself and his three children on 3.12.12. Since the said application was not considered, he gave a second application on 18.5.13. The said application was rejected on 20.5.13 and a detailed rejection order has been passed on 19.7.13, which is under challenge in this writ petition.
3. The petitioner in W.P. No.25964/13, E.Sampath, submitted application for issuance of community certificate for himself and his two children, which was forwarded to the respondents on 2.2.10 and the same was rejected online for want of documents. Second application was filed by the petitioner on 11.2.13 enclosing the community certificates of the close relatives and that was rejected by a detailed order dated 19.7.13, which is under challenge in this writ petition.
4. The relevant portion of the brief order passed by the respondent, rejecting both their claims, is extracted hereunder :
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5. In the case of the petitioner in WP No.25963/13 E.Mani, Scheduled Tribe community certificates bearing the name Kurumans was issued to the close relatives was submitted. The partition deed of the year 1988 was also submitted. The school certificate of the petitioner has been enclosed, where the name of the community is mentioned as Kurumans. The authority, however, rejected the same by first holding that the school certificate of the petitioner Mani shows as Kurumbar. However, we find that the school transfer certificate found at page-3 of the typed set, the community name is shown as Kurumans. It is also held by the authority, that the grandsons and grandchildren of the petitioner's paternal uncle, Kannan, S/o Ponnusamy, bears the community certificate dated 6.12.2010, wherein it is shown as Kurumbar (MBC). The authority also further held that the relatives of the petitioner in the village hold community certificate as Kurumbar (MBC). Further, the authority has also held that insofar as Chinniampet Village, no Kurumans Scheduled Tribe Community certificate has been issued and, therefore, the application of the petitioner was rejected. The above stand of the authority is assailed by the petitioner submitting that the authority has not given a finding on the certificate issued to the close relatives and the school certificate of the petitioner has not been properly considered. Nevertheless, the petitioner has also taken a plea that there is no community by name Kurumbar and to stress home the point, placed reliance on the order dated 11.2.11, passed in W.P. No.3233/11.
6. Similarly, in the case of the petitioner in W.P. No.25964/13 E.Sampath, the authority has held that school certificate shows that the petitioner belongs to Kurumbar community, but the petitioner has not annexed the said document to the writ petition and has not produced any school certificate stating to be either Kurumans or Kurumbar and, therefore, we are not concerned with the same. However, the other findings of the authority are on the same lines as that of the case of the petitioner in W.P. No.25963/13.
7. In this regard, it is to be noticed that this Court by order dated 22.11.13 has passed the following order, wherein reference has also been made to the previous order dated 4.11.2013, which is extracted hereunder :-
We have heard the learned Advocate General on the issue. It was brought to the attention of this Court that the Government of Tamil Nadu, in Letter No.3100 ADW-10/2004-1 dated 21.08.2006, addressed to the Secretary to the Government, Ministry of Social Justice and Empowerment, Government of India, Sastri Bhavan, which reads as under :-
The Government of Tamil Nadu have been examining the question of inclusion in the list of Scheduled Tribes the synonymous names to the Kurumans Scheduled Tribes community such as Kuruma, Kuruman, Kurumba, Kurumba Gounder, Kurumban and Kurumbar (as detailed in the enclosed study report) pertaining to Tamil Nadu and accordingly recommend to Government of India in this Government 's letter first cited for issue of necessary orders in the matter.
2. In its letter third cited, the Government of India have requested to make detailed ethnographic studies keeping in view the requisite criteria for inclusion in the list of Scheduled tribes and also to send the views/comments of this Government.
3. The Government would like to place the following before the Government of India, for their kind consideration and early orders :-
The Director, Tribal Research Centre, Ooty was entrusted with the task of taking up the ethnological study on the communities under recommendation.
Anthropological Ethnographic details about the specific community people, studied above, in the Districts of Dharmapuri, Vellore and Salem reveals the fact that they belong to Kurumba, Kurumbar or Kurumans. The study reveals that on the basis of social structure clan organization and the cycle rituals, all these names like KURUMBA, KURIMBAR AND KURUMANS are one and the same community. The KURUMBA, KURUMBAR AND KURUMANS are originally identical with the shepherd Kurumbans and their present habitat and traditional occupation reveals that they belong to same community. The present study Anthropological conclusions and the observations of earlier writers like Thurston, A.Aiyappan, K.S.Singh, etc., reveals that Kurumba, Kurumbar and Kurumans are synonyms to each other and they belong to same community. The study concludes that this community people are eligible to Scheduled Tribes status under the name KURUMANS. The community KURUMBAS (in the Nilgiris District) and Scheduled Tribes only in Nilgiris District but the studied people under the name KURUMANS can be identified as a Scheduled Tribes throughout Tamil Nadu. Again it is to be noted here that KURUMBA GOUNDER in the list of Backward Class throughout the State of Tamil Nadu and KURUMBA (in the list of Most Backward Class throughout the State of Tamil Nadu) and the KURUMANS are one and the same and it is concluded here that KURUMBA, KURUMBAR and KURUMANS can be identified as eligible to get Scheduled Tribes status under the name KURUMANS.
The study of the Director, Tribal Research Centre, Ooty further reveals that te communities like Kuruma, Kuruman, Kurumba, Kurumba Gounder, Kurumban and Kurumbar are identical to each other and these names are synonym names to the community of KURUMANS and therefore these communities KURUMA, KURUMAN, KURUMBA, KURUMBA GOWNDER, KURUMBAN and KURUMBAR may be brought under KURUMANS in the list of Scheduled Tribes.
A copy of the detailed study report in this regaqrd is enclosed.
4. I would therefor fervently request you to use your good offices and bestow your personal intervention to take appropriate steps for inclusion in the list of the Scheduled Tribes, the synonymous names of the KURUMANS SCHEDULED TRIBES SUCH AS KURUMA, KURUMAN, KURUMBA, KURUMBA GOUNDER, KURUMBAN AND KURUMBAR communities in the list of Scheduled Tribes in Tamil Nadu while moving consolidated amendment as envisaged under Article 341 (2), 342 (2) of the Constitution of India.
2. In reply to the above letter of the Government of Tamil Nadu, the Tribal Affairs Department of the Government of India, vide letter dated 8.4.09, rejected the request of the Government of Tamil Nadu, which is extracted hereunder :-
Sir, I am directed to refer to the proposal of the State Government of Tamil Nadu for inclusion of above communities in the ST list of Tamil Nadu and to say that the proposal have been processed as per modalities approved in June, 1999 by the Government for deciding claims for inclusion in, exclusion from and other modifications in the orders specifying list of Scheduled Castes and Scheduled Tribes (copy enclosed). The RGI vide their D.O. Letter No.8/1/2007-SS (Tamil Nadu) dated 22-3-07 supported the inclusion of Kuruman as synonym of Kurumans ST of Tamil Nadu; but did not support the inclusion of Kuruma, Kurumba, Kurumba Gounder, Kurumban and Kurumbar as synonyms of Kurumans ST of Tamil Nadu. The RGI has again reiterated its commends vide their D.O. Letter No.8/1/2007-SS (Tamil Nadu) dated 14-1-2009, copy enclosed. Hence, the proposal for inclusion of communities Kuruma, Kurumba, Kurumba Gounder, Kurumban and Kurumbar as synonyms of Kurumans ST of Tamil Nadu are rejected as per Para (P) of the above cited modalities.
Further, it is to inform the Tamil Nadu ST (Malayali) peravai (Chennai) has filed a Writ Petition No.44932 of 2006 before the Hon'ble High Court of Chennai against the recommendations of the State Government of Tamil Nadu for inclusion of above cited communities in ST list of Tamil Nadu furnished to the Government of India vide letter No.3100/ADW-10 of 2004-1 dated 21.8.06. The para wise comments of this Ministry on the above Writ Petition has been furnished to the State Government of Tamil Nadu with the request to file a Joint Counter Affidavit on behalf of Union of India and the State Government of Tamil Nadu in the matter before the Court, vide letter No.12016/09/08-C&LM-I dated 191-11-08 (copy enclosed). Report of action taken by the State Government of Tamil Nadu is awaited. The above case came up for hearing before the Hon'ble High Court, Chennai on 30.10.08, a copy of the order of the Hon'ble Court is enclosed for ready reference.
It is requested that the action taken/to be taken in the above Writ Petition along with the comments of the State Government regarding inclusion of Kuruman as synonym of Kurumans ST of Tamil Nadu, as supported by RGI may be furnished to this Ministry.
3. In the course of hearing, as has been referred to in our order dated 4.11.2013, we find that claims for issuance of Scheduled Tribe community certificate, more particularly KURUMANS has been rejected on the ground that the parents/relatives of the applicants have been issued with certificates bearing the name KURUMBAR, which, according to the Department, falls under the Most Backward Community. We have earlier stated in the order dated 4.11.2013 that there is no community by name KURUMBAR in the Presidential Notification and such a finding is also found in the earlier Bench decision of this Court in W.P. No.3233/2011 dated 11.2.2011. We have set out the reasons in more detail in our order dated 4.11.13, which is reproduced hereinbelow for reference :-
It has come to the knowledge of this Court that several claims for issuance of community certificates by persons belonging to 'Kurumba' or 'Kurumbans' community are being rejected by the Revenue Division Officer, the competent authority, on the premise that the applicants in each one of the cases belongs to 'Kurumbar' community, which is a Most Backward Community.
2. The learned Additional Government Pleader produced a list annexed to the Presidential Notification containing the details of communities falling under Scheduled Caste, Scheduled Tribe, Most Backward Class, etc., downloaded from the internet. On going through the list of Most Backward Class communities, Serial No.17 refers to 'Kurumba' community. There is no 'Kurumbar' community in Most Backward Class list.
3. A similar issue came up for consideration before a Division Bench headed by D.Murugesan,J., as His Lordship then was, in W.P.No.3233 of 2011, and in the order dated 11.2.2011, the Division Bench observed as under:
"4. As far as the second contention is concerned, we are of the considered view that the community known as Kurumbar is not the one notified under the Presidential Notification and therefore, the same cannot be a ground for rejecting the request for Community Certificate."
4. Similarly, in W.P.No.19885 of 2010, another Division Bench of this Court, by order dated 29.10.2010, recorded the submission made by the learned Special Government Pleader and opined as under:
"3. On the above submissions, we heard Mr.M.Dhandapani, learned Special Government Pleader appearing for the respondents and he would fairly submit that 'Kurumbar' community is not a community notified under the Government Order.
4. In our opinion, as it is not in dispute that 'Kurumbar' community is not one of the communities notified by the Government, for the purpose of identifying the status of an individual, that community cannot be taken into consideration. If that be so, the finding of the second respondent that the petitioner belongs to 'Kurumbar' community cannot be sustained and as a necessary corollary, the same cannot be the reason for rejecting the request of the petitioner for issuance of Kurumans community certificate."
4. It has come to the notice of this Court that community certificates are issued by the competent authority by showing the community name as 'Kurumbar'. If the said community is not specified under the Presidential Notification, we fail to understand as to how the competent authority can issue certificates showing the name as 'Kurumbar' and also rely upon such certificates said to have been issued in favour of one or other person, more particularly the relatives of the applicants, to deny the claim of issuance of community certificate under the category 'Kurumba' or 'Kurumbans' community.
5. If this fact is not disputed, there is a need to issue a specific direction to the Government to withdraw all the community certificates issued stating the community as 'Kurumbar' by a common order. The confusion that arises out of the name 'Kurumbar' community gives rise to series of litigations and that can be avoided.
6. It is pointed out by some of the counsel and it is not disputed by the learned Additional Government Pleaded that number of writ petitions are filed challenging the orders of the competent authority, who have refused to issue community certificates under 'Kurumba' or 'Kurumbans' category on the finding that the applicants in those cases belong to 'Kurumbar' community, which, in fact, is not a notified community under the Presidential Notification. Some of the connected cases are W.P.Nos.16828 of 2011, 31353 and 4941 of 2012, 1807, 2450, 16221 and 20204 of 2013. This anomaly requires to be corrected.
7. A response in this regard should come from the Government on this issue so that number of litigations that arise out of the misconception in the name of the community can be stopped once and for all. We, therefore, direct the learned Advocate General to assist the Court in this regard after getting proper instructions.
4. Further, the letter of the State Government requesting the Central Government to include the word KURUMBAR as one belonging to Scheduled Tribe community, the said request has been rejected by the Central Government. We find that there could be no basis for the certificate bearing the name KURUMBAR (MBC) being taken as a record for the purpose of declining the application, either for issuance of Scheduled Tribe Certificate or for Backward Class/Most Backward Class certificates, because, the Presidential Notification does not include in itself such a name and, therefore, it may not be proper for any authority to refer to the said name in the course of any proceedings. Since the rejection of the Scheduled Tribe Community certificate is primarily based on a finding that the parents or relatives have a KURUMBAR community certificate, it gives rise to filing of number of writ petitions challenging the findings of the original authority on the ground that they are referring to an invalid community, which doesn't find a place in the Presidential Notification and for that reason, the Courts have been repeatedly setting aside such impugned orders and remanding the matters back to the original authority.
5. Nevertheless, we find that this confusion continues to be present in the mind of the competent authorities and in one or other case, we find a plea being taken that the word KURUMBAR has been wrongly used by the authority, where in fact, the claimant belongs to Scheduled Tribe Community. This plea cannot be accepted from any quarters when there is no community bearing KURUMBAR, and, therefore, the question of issuing a certificate as KURUMBAR under any category, does not arise.
6. Learned Advocate General appeared and in response to the query on the above aspect, fairly conceded that there is no community as KURUMBAR finding place in the list of most backward class, backward class or scheduled caste/scheduled tribe community in the Presidential Notification.
7. In view of the above factual matrix, this Court directs the learned Advocate General to take up the matter with the Government for appropriate steps to correct the error that has occasioned by issuance of certificates bearing the name KURUMBAR (Most Backward Class). This exercise, if done, can avoid confusion and litigations at various levels. It will also ensure that the competent authorities do not adjudicate or refer to the community KURUMBAR in any proceedings. A circular can also be issued not to refer or rely upon the name KURUMBAR in any proceedings.
8. We leave it to the Government to decide the course of action to be taken to correct this error that has already crept in. The individuals, who are recipients of such certificates are at liberty to work our their remedies in accordance with law if aggrieved by any adverse action that may be taken on those certificates erroneously issued.
8. We find much force in the plea made by the petitioners that the competent authority has relied upon the community Kurumbar for rejecting the application for Scheduled Tribe community certificate and we once again reiterate that the competent authority is not entitled to refer to the name of Kurumbar (MBC) for the purpose of deciding the claim for issuance of Scheduled Tribe Community Certificate. Even assuming that there are certificates issued in favour of one or other persons bearing the name of Kurumbar with or without MBC tag, the authority shall independently verify the claim as to whether the petitioner falls under the Scheduled Tribe community on the basis of relevant materials that would be submitted by the petitioner in the relevant case and also shall follow the procedures prescribed in G.O. Ms. No.106 dated 15.10.2012. The Director of Adi Dravidar and Tribal Welfare Department is directed to inform all the competent authorities to cease and desist from referring to the name of the community as Kurumbar (allegedly said to be MBC) for the purpose of deciding any claim whatsoever.
9. In view of the fact that there is no such community as Kurumbar in the Presidential Notification under any category, more particularly under the Scheduled Tribe category or MBC category, the reference to the word Kurumbar is itself causing more confusion and series of litigation, which can be avoided if the authority is directed not to refer to this community at all. Any certificate bearing the name Kurumbar by any applicant or their relatives is to be eschewed as totally invalid in law. The authority is, however, directed to pass orders on merits in each one of the case, taking note of other relevant particulars, that may be presented and following the procedure as already mentioned above.
10. In the instant cases, the error in the order, as pointed out by the petitioners, is apparent on the face of the record, wherein the authority has come to the conclusion that many of the relatives of the petitioners in the village belongs to Kurumbar community, which word, does not find place in the Presidential Notification and, therefore, the order is erroneous and is liable to be set aside as contrary to law.
11. Accordingly, the impugned orders are set aside and the matter is remitted to the respondent for passing fresh orders on merits as indicated above within four weeks from the date of receipt of a copy of this order. Needless to state principles of natural justice has to be complied. However, there shall be no order as to costs.
(R.S.J.) (P.S.N.J.)
25.11.2013
Index : Yes/No
Internet : Yes/No
GLN
To
The Revenue Divisional Officer
Tiruvannamalai.
R.SUDHAKAR, J.
AND
PUSHPA SATHYANARAYANA, J.
GLN
W.P. NOS.25963 & 25964 OF 2013
25.11.2013