Kerala High Court
Karthik M.R vs The State Of Kerala on 28 January, 2014
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936
WP(C).No. 15548 of 2014 (P)
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PETITIONER:
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KARTHIK M.R., S/O. RAMAN M.M.
MATTAPPILLYHOUSE, KUNNATHUNAD TALUK
PERUMBAVOOR, ERNAKULAM DISTRICT
BY ADVS.SRI.N.MANOJ KUMAR
SMT.JAYASREE MANOJ
RESPONDENTS:
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1. THE STATE OF KERALA, REPRESENTED BY
SECRETARY TO GOVERNMENT, SCHEDULED
CASTES/SCHEDULED TRIBES DEVELOPMENT
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001
2. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS
O/o. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS
HOUSING BOARD BUILDINGS, SANTHI NAGAR
THIRUVANANTHAPURAM - 695001
3. THE TAHASILDAR, TALUK OFFICE
KUNNATHUNAD, PERUMBAVOOR, PIN-683544
4. THE VIGILANCE OFFICER, VIGILANCE CELL
DIRECTORATE OF KIRTADS, KOZHIKODE-673017
BY Spl. GOVERNMENT PLEADER SMT. SANTHAMMA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 15548 of 2014 (P)
APPENDIX
PETITIONER'S EXHIBITS
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EXT.P1 COPY OF THE CERTIFICATE ISSUED BY THE COUNCIL FOR THE
INDIAN SCHOOL CERTIFICATE EXAMINATIONS, NEW DELHI.
EXT.P2 COPY OF THE CERTIFICATE ISSUED BY THE BOARD OF HIGHER
SECONDARY EXAMINATIONS,THIRUVANANTHAPURAM TO THE
PETITIONER.
EXT.P3 COPY OF THE APPLICATION NO.1100147 DATED 28.01.2014
SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P4 COPY OF THE COMMUNITY CERTIFICATE DATED 16/01/2014 ISSUED
BY THE TAHASILDAR, KUNNATHUNAD,PERUMBAVOOR.
EXT.P5 COPY OF INTER-CASTE MARRIAGE CARTIFICATE FOR SON OF INTER-
CASTE MARRIED COUPLES ISSUED TO THE 3RD RESPONDENT DATED
23.01.2014
EXT.P6 COPY OF THE ADMIT TICKET ISSUED BY THE 2ND RESPONDENT TO
THE PETITIONER WITH ROLL NO.159183.
EXT.P7 COPY OF THE LETTER NO. B 3.589/2014/CEE (322)DATED 03.03.2014
FROM THE 2ND RESPONDENT
EXT.P8 COPY OF THE STATEMENT GIVEN BY THE PETITIONER'S FATHER
DATED 24/04/2014
EXT.P9 COPY OF THE NOTICE NO.B3/589/14/CEE (134)DATED 27/05/2014 OF
THE 2ND RESPONDENT
EXT.P10 COPY OF THE ANTHROPOLOGICAL REPORT DATED 17/05/2014 OF THE
VIGILANCE OFFICER OF KIRTADS.
EXT.P11 COPY OF THE OBJECTION DATED NIL SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT ON 07/06/2014.
EXT.P12 COPY OF THE CERTIFICATE DATED 02/06/2014 ISSUED BY THE
SECRETARY,KERALA SAMBAVA SOCIETY(REG.NO.417/08)
KUNCHATTUKARA,MUTHIRAKKATTUMUKAL BRANCH, ALUVA TALUK.
EXT.P13 COPY OF THE CERTIFICATE DATED 03/06/2014 ISSUED BY THE
KERALA SAMBAVAR SOCIETY (K.S.S) KIZHAKKAMBALAM BRANCH
COMMITTEE
EXT.P14 COPY OF THE CERTIFICATE DAZTED 03.06.2014 ISSUED BY THE
PRESIDENT KIZHAKKAMBALAM GRAMA PANCHAYATH.
RESPONDENT(S)' EXHIBITS: NIL
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// TRUE COPY // P.A. TO JUDGE
SD
A.M.SHAFFIQUE, J
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W.P.C.No.15548 of 2014
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Dated this the 4th day of July 2014
J U D G M E N T
Petitioner is a candidate who has written the common entrance examination for medical courses in the year 2014. He claimed Scheduled Caste (SC) status as he belongs to Hindu-Parayan community. The Commissioner of Entrance Examination referred his application for enquiry by the Vigilance Officer of Kerala Institute for Research Training and Development Studies for Scheduled Castes and Scheduled Tribes (KIRTADS), Kozhikode. Petitioner was served with Ext.P9 dated 27/5/2014 enclosing Ext.P10 report of the Vigilance Officer calling upon him to show cause why he should not be considered for SC status. He was called upon to appear on 07/06/2014. Petitioner appeared on 07/06/2014 and explained that the report at Ext.P10 was not correct. His objection is Ext.P11. Along with the objection petitioner also produced certain documents as Exts.P12, P13 W.P.C.No.15548/2014 2 and P14. Petitioner was informed that he would be intimated about the outcome of the report within a few days. But he did not receive any intimation. Though the results were declared on 15/06/2014, petitioner's result was not declared. Hence the petitioner challenges Ext.P10 report and seeks a declaration that he belongs to SC community and also seeks a direction to 2nd respondent to declare his result in the medical entrance examination of 2014 and to give him admission treating him as a member of SC community. In the Vigilance report, Ext.P10, it is inter alia found that the candidate's paternal grand father belonged to Hindu-Paraya community whereas his paternal grand mother Mariya belonged to Christian community. Petitioner's father has married Daisy who belonged to Christian Syrian Catholic Community. Petitioner is therefore a person born to an offspring of inter-caste marriage.
2. It is contended by the petitioner that the finding in the report is absolutely wrong. There is no basis or material W.P.C.No.15548/2014 3 to indicate that the petitioner's paternal grand mother Maria belonged to Christian community and the said assumption has been made only based on her name which is common to members of Christian community. Ext.P4 is the community certificate issued to the petitioner showing his caste as Hindu Parayan. That apart, the materials produced before the Commissioner for entrance examination namely Exts.P12 to P14 clearly establishes the fact that the petitioner is brought up as a member of the scheduled caste community.
3. Statement is filed on behalf of the 2nd respondent inter alia supporting the stand taken in the KIRTADS report. It is contended that the candidate is born and brought up in the socio cultural background of non-scheduled caste Paraya community. The genealogical analysis and documentary evidence reveals that the candidate's paternal grand mother and maternal grand parents were following Christianity and do not belong to Paraya community. Petitioner's father is an W.P.C.No.15548/2014 4 offspring of an inter caste married couple of which mother is a member of Christian - Syrian catholic community. That apart, the candidate has not suffered any social discrimination or social disabilities of SC community.
4. The learned counsel for the petitioner places strong reliance on Exts.P12 to P14 to contend that evidence was adduced to show that the candidate was suffering from the social disabilities attached to a member of SC. Ext.P12 is the certificate dated 02/06/2014 issued by the Secretary of Kerala Sambava society stating that Dr.M.M.Raman, father of the candidate is born to Sri.M.M.Makkotha and Smt.Maria and that they belonged to Paraya community of Hindu religion. The candidate is the son of Dr.M.M.Raman. Ext.P13 is another certificate issued by the same society on 03/06/2014. It is stated that though Dr.M.M.Raman has married Smt.Daisy, they are living as members of SC and that they are members of the society. Ext.P14 is another certificate dated 03/06/2014 issued by Kizhakkambalam W.P.C.No.15548/2014 5 Grama Panchayath stating that Sri.Makkotha and Smt.Maria were belonging to Hindu-Paraya community which is a SC. It is therefore argued that the finding of KIRTADS that Smt.Maria, paternal grandmother of the petitioner is treated as Christian is absolutely baseless and controverted by the above documents. That apart, the certificate Ext.P13 clearly indicates that the candidate is suffering from the disabilities of a scheduled caste community.
5. On the other hand, the learned Special Government Pleader relied upon the judgment of the Supreme Court in Kumari Madhuri Patil and another v. Additional Commissioner, Tribal Development and Others [(1994) 6 SCC 241], Anjan Kumar v. Union of India [2006(1) KLT 805 (SC)], Indira v. State of Kerala [2005(4) KLT 119] and the judgment of a Division Bench of this Court dated 11/02/2013 in Writ Appeal No.1523 of 2011.
6. The legal position in this regard is clear from the Full Bench judgment of this Court in Indira's case (supra), W.P.C.No.15548/2014 6 wherein this Court held as under:
"18. Principles laid down in Punit Rai's case, Chandramohan's case, Sobha Hymavathi's case, Valsamma Paul's case etc. have to be applied in this case bearing in mind the facts that we are dealing with a separate class of persons i.e. children born to intercaste married couple of which either the father or mother belongs to a non scheduled caste/scheduled tribe category. For getting the benefit of Art.15(4), 16(4) and 16 (4A), the personal law of the couple as such may not be the criterion, but the question is whether their offsprings are subjected to the same disabilities attached to SC/ST being brought up either by the father or the mother of which one belongs to SC/ST. The basis of reservation unsder Art.15(4) and 16(4) is to provide additional protection to the members of Scheduled Castes and Tribes as a class of persons who have been suffering since considerable length of time due to social and educational backwardness. The protection is afforded to a homogeneous group, as held by the decision of Supreme Court in E.V.Chinnaiah v. W.P.C.No.15548/2014 7 State of A.P., 2005 (1) KLT (SC)(SN) 9 = (2005) 1 SCC 394. But the claimant has to prove that he has been brought up as scheduled caste/scheduled tribe either by the father or by the mother and thereby did not get the advantages in life as a non scheduled caste and is suffering all handicaps, disadvantages having been born as a member of scheduled caste/scheduled tribe. In Punit Rai's case, supra, the court held, placing reliance on S.106 of the Evidence Act, when any fact is especially within the knowledge of the person, the burden of proving the same is upon him. Authorities are not in a position to know under what circumstances inter caste married couple have brought up their children, a matter within the exclusive knowledge of children and parents. The burden is on the person who claims the benefit to establish that he/she is subjected to the same handicap and disadvantages having been born as a member of SC/ST.
19. Therefore, if father belongs to scheduled caste/scheduled tribe the child may inherit his caste from his father by operation of personal law. Even then, in order to get the benefit of Art.15(4), W.P.C.No.15548/2014 8 16(4) or 16(4A) read with Articles 341 and 342 of the Constitution, the person has to further establish that he still uses the caste of his father subject to same disabilities, disadvantages, sufferings etc. of that caste or tribe. Unless and until the person establishes those factors the mere fact that by virtue of the personal law he has inherited his caste status from his father or mother, as the case may be, by itself would not be sufficient to show that he is still subject to the same disadvantages. Even if father belongs to scheduled caste/scheduled tribe, child could be brought up in the company of the mother who belongs to forward caste without subjecting him to any sufferings, disadvantages, incapacity or ignonimity which would normally be suffered by the members of scheduled caste/scheduled tribe and vice versa, like mother belongs to scheduled caste and father belongs to non scheduled caste and the child is brought up by the father and would not be subjected to the disadvantages and sufferings as if he is a member of scheduled caste/scheduled tribe."
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W.P.C.No.15548/2014 9
"22. The Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996, is an Act enacted to provide for and to regulate the issue of community certificates to members of the scheduled castes and the scheduled tribes in the State of Kerala. Preamble to the Act states that in order to curb effectively the evil practices of securing such certificates by persons other than those belonging to scheduled castes and scheduled tribes for claiming the benefits of reservation and such other benefits meant for the scheduled castes and the scheduled tribes and to make provision for prescribing punishment therefor and to provide for matters connected therewith or incidental thereto the Act was enacted. S.4 of the Act deals with application from members of the scheduled castes and scheduled tribes for admission to the seats reserved for scheduled castes and scheduled tribes in educational institutions. In order to prove his claim that he belongs to scheduled caste or scheduled tribe as the case may be, he shall make an application in such form and in such manner, as may be stipulated for issue of community W.P.C.No.15548/2014 10 certificate. S.3 says that any person belonging to any of the scheduled castes or the scheduled tribes claiming any benefit, concession, protection, exemption or reservation provided to such castes or tribes either for any appointment in public services or for admission into educational institutions, exclusively intended for members of the scheduleled castes or the scheduled tribes, or for contesting for the seats reserved for them in any educational institution in the State or outside the State for the students of the State or local authority or co-operative institution, shall prove his claim by a certificate issued for the purpose under this Act by the competent authority in the prescribed manner. The Act has also constituted Screening Committee for verification of the community certificate. Screening Committee is authorised to conduct detailed enquiry through the expert agency to ascertain if the applicant actually belongs to the scheduled caste or the scheduled tribe, as the case may be. S.8 of the Act also authorises the Scrutiny Committee for verification of community certificates. Any person belonging to scheduled castes or scheduled tribes or any W.P.C.No.15548/2014 11 appointing authority or local body or heads of educational institutions may make an application in such form and in such manner as may be prescribed by the Scrutiny Committee for verification of Community Certificates. S.10 of the Act says that where an application is made to the competent authority under S.4 for the issue of a community certificate in respect of a scheduled caste or scheduled tribe or in any enquiry conducted by the Competent Authority, the Expert Agency, or the Scrutiny Committee or in any trial or offence under the Act, the burden of proving that he belongs to such caste or tribe shall be on the claimant. S.24 of the Act states that no Civil Court shall have jurisdiction in respect of any order passed by any officer or authority under the Act and no stay or injunction shall be granted by a court in respect of any action taken or to be taken by such officer or authority under the Act in pursuance of any power conferred by or under the Act. The Act also provides penalty provisions in case of false community certificate. The Act also provides for appeal and review."
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W.P.C.No.15548/2014 12
"We, in this jurisdiction, find no reason to take a different view from that of the report submitted by KIRTADS."
7. In Writ Appeal No.1523 of 2011 this Court had occasion to consider the provisions of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (hereinafter referred to as the SC & ST Act). It is held that the expert agency like Vigilance Cell (KIRTADS) is empowered to make an enquiry and any perversity in such assessment alone is subject to judicial review under Article 226 of the Constitution of India. For all practical purposes, the report of the expert agency is conclusive proof unless such opinion is the result of perversity. This Court therefore relied upon the report of KIRTADS and formed an opinion that the petitioner was not entitled for the benefit of scheduled caste status.
8. The benefit of SC status is normally to be given to persons who are the offspring of SC parents. When it W.P.C.No.15548/2014 13 comes to the question of intercaste marriage, a question would arise as to whether such person is continuing the social status of a member of SC and is suffering such social disabilities. When an enquiry is conducted by KIRTADS based on request by the Commissioner for Entrance Examinations, the report is an opinion after conducting a study of the entire matter and after notice to the parties involved. It is the argument of the learned counsel for the petitioner that KIRTADS committed serious error of law in considering Smt.Maria, paternal grandmother of the petitioner as a member of Christian community. It is true that sufficient materials are not available to indicate that Smt.Maria, belongs to Christian community. In fact, it is only one among the material facts by which KIRTADS has come to a conclusion in terms of Ext.P10 order. It is further found that the genealogical analysis and documentary evidence prove that the candidate is not born and brought up according to the custom and tradition of Scheduled Caste W.P.C.No.15548/2014 14 Paraya community. It is also opined that the investigation revealed that the candidate's community has no socio- cultural background of a Scheduled Caste - Hindu Paraya community. As held in Indira's case (supra) mere fact that by virtue of the personal law one person has inherited his caste status from his father or mother, by itself would not be sufficient to show that he is still subject to any sufferings, disadvantages, incapacity or ignonimity which would normally be suffered by the members of SC or ST. Therefore the burden is heavy on the offspring of an intercaste married couple to prove that he or she was subject to any sufferings, disadvantages, incapacity or ignonimity. The certificates relied upon by the petitioner are of recent origin and apparently obtained at the instance of the petitioner. When there is a clear finding by the KIRTADS that the candidate is not born and brought up according to the custom of SC- Paraya community, it becomes an opinion which cannot be brushed aside by this Court. If the decision of the W.P.C.No.15548/2014 15 Commissioner of Entrance Examination is against the petitioner despite submission of the objection at Ext.P11, the petitioner can approach the Scrutiny Committee or other statutory authorities, adduce evidence and obtain the caste certificate, if he is found to be eligible. As matters stand now, when there is an opinion expressed by KIRTADS, which cannot be termed as perverse at this point of time, this Court cannot interfere with such report.
In the result, this writ petition is dismissed. However, the result of the petitioner shall be declared or published forthwith to enable him to seek admission in other categories.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.15548/2014 16