Kerala High Court
The Commissioner Of Entrance vs M.Mariyappan on 3 February, 2012
Author: S. Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA, 1933
WPC.No. 1176 of 2007 (M)
------------------------
PETITIONER(S):
------------------------
THE COMMISSIONER OF ENTRANCE
EXAMINATIONS, HOUSING BOARD BUILDING,
THIRUVANANTHAPURAM.
BY ADV. GOVERNMENT PLEADER SMT. P.SANTHAMMA
RESPONDENT(S):
----------------------------
1. M.MARIYAPPAN, PUNNAVILA VEEDU,
KIZHAKKUMKARA, KULATHOOR, THIRUVANANTHAPURAM.
2. THE KERALA LOK AYUKTA,
REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM.
R1 BY ADVS.SRI.L.MOHANAN
SMT.LIGEY ANTONY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
WPC.NO.1176/2007 M
APPENDIX
PETITIONER'S EXHIBITS:
P1: REPORT NO.VIG.8/2005/SC-23 DTD. 18/05/2005.
P2: ORDER NO.B3-880/2005/CEE DTD. 17/06/05.
P3: CERTIFIED COPY O ORDER DTD. 15/09/06 OF THE HON'BLE LOK
AYUKTHA IN COMPLAINT NO.1723/05.
RESPONDENT'S EXHIBITS: N I L
/TRUE COPY/
P.A.TO JUDGE
Kss
S. SIRI JAGAN, J.
- - - - - - - - - - - - - - - - - - - - - - -
W.P.(C)No.1176 of 2007
- - - - - - - - - - - - - - - - - - - - - - -
Dated this the 3rd day of February, 2012
J U D G M E N T
The petitioner in this writ petition is the Commissioner of Entrance Examinations, Thiruvananthapuram. He is aggrieved by Ext.P3 order of the Kerala Lok Ayukta which reads as follows:
"Petitioner approached this forum by filing this complaint on the allegation that the Commissioner for Entrance Examinations has denied the benefit of reservation to his daughter for admission to professional courses during the academic year 2005-06. His daughter was given the benefit as a member of the Scheduled Caste on account of certificates issued in 1981 and 1994. On the basis of those certificates petitioner's daughter got the benefit as a member of the Scheduled Caste upto 2004. Till 2004 petitioner was staying in his own land situated in Kerala. He disposed of that land for facilitating the studies of his daughter in 2003. When he applied for community certificates same was denied on the averment that he has no property of his own in Kerala. Hence this petition praying for direction to treat his daughter as a member of the Scheduled Caste community and to extend the benefit of reservation to her.
2. Counter affidavit sworn to by Dr.S.Rajoo Krishnan, Joint Commissioner (Academic) in the office of the Commissioner for Entrance Examinations was filed. In that counter affidavit dated 20.10.2005 the main contention raised is that petitioner's case was referred to KIRTADS and they reported that petitioner's daughter cannot be given the benefit of reservation as a member of the Scheduled Caste in view of the provision contained in GO(MS) 10/86/SCSTDD dated 12.2.1986. It is also averred that petitioner's daughter was allowed to take the entrance examination as a general candidate and that she did not appear for counselling. Therefore she could not be considered for admission to any of W.P.(C)No.1176 of 2007 -2- the professional courses.
3. In the affidavit filed by the Joint Commissioner it is conceded that petitioner's daughter got the benefit of reservation as a member of the Pallan community upto 2004. It is the case of the Commissioner that according to Clause 5.4.3 (C) of the prospectus for admission to Professional Degree Courses, 2005 the claim of reservation of SC / ST candidates will be subject to the verification and clearance by the screening committee constituted for the purpose by the Government as per GO (MS) 19/02/SCSTDD dated 20.4.2002. The screening committee on verification of the application submitted by the petitioner's ward referred the issue to KIRTADS. It was reported that petitioner was a migrant from Tamil Nadu, that he was born in 1957 that he is a member of the Pallan Community and that his status can be considered only as per the Migration Rules issued by the Government of India as detailed in GO(MS) 10/86/SCSTDD dated 12.2.1986.
4. Petitioner was born in 1957 as a member of the Pallan Community. Pallan is a Scheduled Caste both in Tamil Nadu and Kerala. He came over to Kerala in 1966. Ever since 1966 he is residing in Kerala and is eking his livelihood in Kerala. For a member of the Scheduled Caste community to get the status as a member of the Scheduled Caste Community he need not have property of his own in Kerala. As a member of the Pallan community he continues to be a member of that community which as per the Presidential Order is a Scheduled Caste in Kerala. He has been here in Kerala for nearly 4 decades. His child was giving the benefit as a member of the Scheduled Caste community for undertaking studies as per the certificates issued in 1981 and 1994. Tahsildar, Trivandrum issued community certificate No.A9/6978/05 dated 29.4.2005 stating that petitioner's daughter Lekshmi belongs to Hindu Pallan Caste which is recognised as Scheduled Caste under the Constitutions Scheduled Caste/Scheduled Tribe Act 1976. Ignoring this certificate KIRTADS denied the benefit on the basis of GO (MS) 10/86/SCSTDD dated 12.2.1986. Paragraph 3 of this GO was relied on to deny the benefit of reservation to the daughter of the petitioner. A reading of paragraph 3 clearly shows that it relates to migrants who come to the State of Kerala temporarily. Petitioner who is stayed in Kerala for more than 40 years cannot come within the purview of that paragraph. So reliance placed on the said GO is, to say the least, erroneous. On the basis of that GO neither the petitioner nor his daughter can be denied the benefit as a member of the Scheduled Caste community. It is more so because Pallan W.P.(C)No.1176 of 2007 -3- community in Kerala is a Scheduled Caste community as per the Presidential Order. For getting status as a member of the Scheduled Caste that person need not have ownership over land situated in Kerala.
5. Since the academic year for which admission was sought by the petitioner's daughter is already over and she cannot be directed to be admitted to any course of that academic year, petitioner cannot be given the benefit as sought for in the petition. So we direct the respondents not to rely on the opinion given by KIRTADS in this case as the petitioner coming under the purview of GO dated 12.2.1986. The opinion given by KIRTADS should not be the basis for denying her status as a member of Scheduled Caste in subsequent academic years in case she applies for admission. Ignoring the report of KIRTADS and on the basis of the certificate issued by the revenue authorities especially that issued by Tahsildar, Trivandrum on 29.4.2005 petitioner's daughter's status as a member of the Scheduled Caste should be accepted and her application should be processed accordingly. Copy of this order will be forwarded to the Commissioner of Entrance Examination for compliance. Petition is closed."
2. The main contention raised by the petitioner is that the Lok Ayukta could not have validly passed that order insofar as the Kerala Lok Ayukta Act does not confer jurisdiction to pass such orders on the Kerala Lok Ayukta.
It is submitted that the Lok Ayukta can consider only a grievance on the basis of mal-administration as defined under the Act. According to the learned Government Pleader, the complaint of the 1st respondent does not disclose any grievance or mal-administration as defined W.P.(C)No.1176 of 2007 -4- under the Kerala Lok Ayukta Act. Therefore, the order is passed without jurisdiction, is the contention raised.
3. I have heard the counsel for the 1st respondent also.
4. After going through Ext.P3 order, I cannot but agree with the petitioner. As per Section 7 of the Kerala Lok Ayukta Act, the Lok Ayukta can deal with a complaint involving a grievance or an allegation.
The word "allegation" is defined in Section 2 (b) as follows :' "(b) "allegation", in relation to a public servant, means any affirmation that such public servant.-
(i) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(ii) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives; or
(iii) is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant;"
The word "grievance" is defined in Section 2 (h) as follows:
"(h) "grievance" means a claim by a person that he sustained injustice or undue hardship in consequence of mal-
administration;"
The word "mal-administration" is defined in Section 2 (k) as W.P.(C)No.1176 of 2007 -5- follows:
(k) "mal-administration" means action taken or purporting to have been taken in the exercise of administrative functions in any case where,-
(i) such action or the administrative procedure or practice adopted in such action is unreasonable, unjust, oppressive or improperly discriminatory; or
(ii) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay;"
In this case, the question is in relation to the caste status of the daughter of the 1st respondent. Admittedly, in respect of the caste status of the 1st respondent's daughter, the matter was referred to the KIRTADS who had opined that the 1st respondent's daughter cannot be given the status of a scheduled caste, which has been accepted by the screening committee. That action cannot spell out any mal-
administration on the part of the petitioner as defined under Section 2 (k). As such, the allegation raised by the 1st respondent in his complaint could not have been enquired into by the Lok Ayukta. The 1st respondent could not have a grievance as defined under the Act and the allegation raised by him is not one coming within the W.P.(C)No.1176 of 2007 -6- definition of 'allegation' as quoted above. Therefore, I am satisfied that Ext.P3 order has been passed without jurisdiction. Accordingly Ext.P3 order is quashed.
Sd/-
S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/