Kerala High Court
Cincy Bibi vs State Of Kerala on 28 June, 1984
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 5TH DAY OF MARCH 2013/14TH PHALGUNA 1934
WP(C).No. 21446 of 2007 (C)
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PETITIONER(S):
--------------------------
CINCY BIBI, D/O.BIBI,
AGED 21, MELUKAVUMATTOM P.O.,
KOTTAYAM.
BY SRI.MATHAI M.PAIKEDAY, SENIOR ADVOCATE.
ADVS. SRI.AJAYA KUMAR. G.,
SRI.JOSE THOMAS.
RESPONDENT(S):
----------------------------
1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY, HIGHER EDUCATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. COMMISSIONER FOR ENTRANCE EXAMINATION,
OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATION,
V FLOOR, HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM-695 001.
3. VIGILANCE OFFICER,
DIRECTORATE OF KIRTADS,
KOZHIKODE-673 001.
BY GOVT. PLEADER SMT.P. SANTHAMMA.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-11-2012, ALONG WITH W.P.(C) NO.19421 OF 2009 AND
CONNECTED CASES, THE COURT ON 05-03-2013 DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 21446 of 2007 (C)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE CASTE CERTIFICATE DATED 28/06/1984, ISSUED
BY THE TAHSILDAR.
EXT.P2 COPY OF THE S.S.L.C. CERTIFICATE OF THE PETITIONER.
EXT.P3 COPY OF THE CERTIFICATE ISSUED BY C.S.I. CHRIST CATHEDRAL
MELUKAVU, KOTTAYAM DISTRICT.
EXT.P4 COPY OF THE CASTE CERTIFICATE DATED 26/06/1992 ISSUED
IN FAVOUR OF THE GRANDFATHER OF THE PETITIONER.
EXT.P5 COPY OF THE CASTE CERTIFICATE DATED 18/06/1984 OF THE
PETITIONER'S FATHER.
EXT.P6 COPY OF THE HIGHER SECONDARY EXAMINATION CERTIFICATE
IN THE YEAR 2006.
EXT.P7 COPY OF THE TRANSFER CERTIFICATE DATED 20/06/2007.
EXT.P8 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER
ALONG WITH THE COMMUNITY CERTIFICATE DATED 15/02/2007
ISSUED BY TAHSILDAR, MEENACHIL.
EXT.P9 COPY OF THE NOTICE DATED 02/04/2007 FOR ANTHROPOLOGICAL
ENQUIRY.
EXT.P10 COPY OF THE REPORT DATED 22/05/2007 REFUSING RESERVATION
UNDER ST.
EXT.P11 COPY OF THE ORDER DATED 30/06/2007 OF THE COMMISSIONER
FOR ENTRANCE EXAMINATION.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
A.M.SHAFFIQUE, J.
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W.P.(C) Nos. 21446 of 2007, 19421 of 2009,
19505 of 2009, 32771 of 2009 and 12481 0f 2012
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Dated this the 5th day of March, 2013
J U D G M E N T
Shaffique, J.
Since the subject matter of all these cases are similar they are decided together.
2. In W.P.(C) No. 21446 of 2007, petitioner inter alia challenges Ext.P10 and P11 and seeks a declaration that she is entitled for reservation against the quota alloted to scheduled tribe (hereinafter referred as 'ST'). The facts as disclosed would show that the petitioner all along was treated as ST namely Malai Arayan Christian. When the petitioner applied for the Kerala Entrance Examination in 2007 under ST quota,on the basis of certificate issued by the Thahsildar the Commissioner for Entrance examination directed an enquiry to be conducted through the the Vigilance officer of KIRTADS. It is found that the petitioner was not entitled for the reservation as ST. Ext P10 is the said report. The Commissioner for Entrance examination, by Ext.P11 informed the petitioner about the decision of the Screening Committee as per section W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 2 6 of the Kerala (Scheduled Caste and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (hereinafter referred as the Act). Petitioner was permitted to attend counseling for the SC/ST reservation quota by virtue of an interim order dated 16.07.2007 of this court. It is said that she was admitted to the course and she is pursuing her studies. In fact this court had observed in the said interim order that, actual admission in the SC/ST quota need be made only after getting orders from this court. No such permission is obtained.
3. In W.P.(C) No. 19421 of 2009, petitioner challenges Ext.P8 and seeks a declaration that she is entitled for reservation against the quota alloted to scheduled tribe. According to the petitioner she was all along was treated as a scheduled tribe namely Malai Arayan Christian. The petitioner applied for the Kerala Entrance Examination in 2009 under scheduled tribe quota, the Commissioner for Entrance examination directed an enquiry to be conducted and Ext.P8 is the report of the Vigilance officer of KIRTADS. It is found that the petitioner was not entitled for the reservation as a scheduled tribe and the result was withheld. By an interim W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 3 order dated 10.7.2009 this court directed provisional allotment to be made to the petitioner for BAMS course in ST category, subject to further orders. By another interim order dated 20.8.2009, this court directed that the petitioner be admitted to the BAMS course, subject to further orders.
4. In W.P.(C) No. 19505 of 2009, petitioner inter alia challenges Ext.P7 and seeks a declaration that she is entitled for reservation against the quota alloted to scheduled tribe. According to the petitioner she was all along was treated as a scheduled tribe namely Malai Arayan Christian. The petitioner applied for the Kerala Entrance Examination in 2009 under scheduled tribe quota, on the basis of caste certificate issued by the Thahsildar. The Commissioner for Entrance examination directed an enquiry to be conducted and Ext.P7 is the report of the Vigilance officer of KIRTADS. It is found that the petitioner was not entitled for the reservation as a scheduled tribe and the result was withheld. By an interim order dated 13.7.2009 this court directed provisional allotment to be made to the petitioner for Medical course in ST category, subject to further orders. She was allotted nursing course which was withheld. By another interim order W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 4 dated 20.8.2009, this court directed that the petitioner be admitted to the course, subject to further orders.
5. In W.P.(C) No. 32771 of 2009, petitioners inter alia challenges Ext.P7 and P9 and seeks a declaration that the 2nd petitioner is entitled for reservation against the quota alloted to scheduled tribe. The second petitioner is the daughter of the first petitioner. According to the petitioners, they were all along was treated as a scheduled tribe namely Malai Arayan Christian. The 2nd petitioner applied for the Kerala Entrance Examination in 2009 under scheduled tribe quota. The result was withheld and the Commissioner for Entrance examination directed an enquiry to be conducted and Ext.P7 is the report of the Vigilance officer of KIRTADS. It is found that the 2nd petitioner was not entitled for the reservation as a scheduled tribe. Pursuant to the same the 2nd respondent issued Ext.P9 order rejecting her claim as a ST candidate.
6. In W.P.(C) No. 12481 of 2012, the petitioner is the brother of the petitioner in W.P.(C) No. 19421 of 2009 who inter alia challenges Ext.P8, the same report which is in challenge in W.P.(C) No. 19421 of 2009 and seeks a declaration that he is entitled for reservation against the W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 5 quota alloted to scheduled tribe. According to the petitioner he was all along was treated as a scheduled tribe namely Malai Arayan Christian. After passing Secondary School Examination (CBSE) when he applied for a caste certificate for applying under ST quota for Higher Secondary course, the same was not given by the Thahsildar based on Ext.P8 report relating to his sister. By an interim order dated 30.5.2012 this court directed the 2nd respondent to permit the petitioner to submit application in the quota of ST, subject to further orders. By another interim order dated 19.6.2012, this court directed that the petitioner be admitted to the BAMS course, subject to further orders.
7. The main contention urged by the petitioners is that under section 6(1) of the Act, the screening committee has jurisdiction only to consider whether the certificates produced are genuine or not. In so far as the candidates have not committed any fraud in obtaining the caste certificate from the Thahsildar, the authorities under the Act should not have taken a contrary view. In fact all the candidates were all along treated as ST in their school records and they had suffered the disabilities of the tribe. Still further it is W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 6 contended that the enquiry by the KIRTADS and the screening committee is based on unsubstantiated materials. The petitioners and their family members were following the custom and traits of Malai Arayan Christian community and therefore entitled for the reservation of ST.
8. Counter affidavit is filed by official respondents inter alia contending that the candidates are not entitled to get any reservation as ST as according to Anthropological Enquiry report of KIRTADS the findings would show that they have derived their ST status from paternal grand father alone who belonged to Malai Arayan Christian community. Their paternal grand mother and mother were not scheduled tribes. The study conducted with reference to each of these cases would show that the candidates are from the second generation. According to KIRTADS there was nothing to show that they were subjected to the social disabilities of the community and the candidates never suffered the disabilities of a scheduled tribe.
9. Reliance is also placed on the full bench judgment of this court in Indira vs State of Kerala (2005(4)KLT 119 (FB)) to indicate that children born to intercaste couples will W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 7 get reservation only if they are subject to the same social disabilities and following the same customary traits and tenets. It is also contended that the second generation of intercaste couples will not get the status of a scheduled tribe. It is further contended that copy of KIRTADS report was forwarded to the candidates, after issuing notice to them, they were heard by the screening committee. After examining the matter in detail it was found that only the first generation is entitled for educational reservation and concession. All the candidates being a second generation claimant cannot have the status of scheduled tribe. In W.P.(C) No. 12481 of 2012, the very maintainability of the writ petition is questioned as the writ for certiorari is claimed in respect of a report prepared in W.P.(C) No. 19421 of 2009.
10. Heard the learned counsel appearing for the petitioners and the Special Government Pleaders Smt. Santhamma and Smt.Laly Vincent.
11. It is argued that once the candidate has obtained a valid community certificate from the competent authority under the Act, in the absence of a finding that the certificate is wrongfully obtained, there is no justification on the part of the W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 8 respondents to cancel the same. Reference is made to certificates obtained from the school authorities and the revenue authorities. It is also argued that proper opportunity was not given for adducing evidence and KIRTADS report is prepared without any evidence or material.
12. Sri.Matahai.M.Paikadey, learned Senior Counsel appearing on behalf of the petitioner in W.P.(C) No. 21446 of 2007 also relied upon the following judgments:
(i) B.M.Malini vs Commissioner of Income Tax and another (2008) 10 SCC 617) wherein the Supreme Court was considering the question as to what is genuine hardship with reference to section 220(2-A)(i) of the Income Tax Act.
(ii) S.P.Chengalvaraya Naidu vs Jagannath and others (AIR 1994 SC 853) wherein the Supreme Court held that fraud is an act of deception with the design of securing something by unfair advantage, it is taking advantage of another, it is a deception in order to gain by another's loss.
(iii) Ram Preeti Yadav vs U.P.Board of High School and intermediate Education and others (2003) 8 SCC 311) wherein the Supreme Court held that fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 9 letter.
(iv) Kumari Madhuri Patil and another vs Addl.Commissioner, Tribal Development and Others (1994) 6 SCC 241) is relied upon to contend the proposition that since the candidate had already completed her studies for final year MBBS, she may not be debarred from prosecuting the studies and appearing for the examination. The contention therefore is that even if it is found that the petitioner is not entitled for the status as a Scheduled Tribe in view of the fact that she had continued the study by virtue of interim order passed by this Court she should not be de-barred from pursuing her studies.
13. On the other hand the Special Government Pleader places strong reliance on the following judgments:-
(i) In Indira vs State of Kerala (2005(4)KLT 119 (FB)) the full bench 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 W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 10 father or the mother of which one belongs to SC/ST. The basis of reservation under 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. 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), 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.
20. Children born of inter caste marriage of which either of the parents belongs to scheduled caste/scheduled tribe should have a caste status either that of the mother or that of the father.
W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 11 Articles 15 (4), 16(4) and 16(4A) are intended to remove all handicaps and disadvantages suffered by members of scheduled caste/scheduled tribes. Suppose a neglected or deserted SC/ST woman brings up her child, with the same handicaps, suffering, disadvantages, attached to that caste/tribe, whose father belong to non SC/ST, it is too harsh to deny the benefit to that child on the mere reason that the child's father belongs to non scheduled caste/scheduled tribe caste. Person who claims the status of scheduled caste/scheduled tribe of his/her father or mother has to establish that on his/her birth, he/she is subjected to same social disabilities and also following the same customs and traditions and the community has accepted that person to its fold.
21. The Government, vide order G.O.(Ms) No. 25/2005/SCSTDD dated 20.6.2005 directed the competent authorities to issue SC/ST community certificates to the children born out of intercaste married couples as per the caste/community of the father subject to the conditions of acceptance, customary traits and tenets stipulated in Punit Rai's case and Sobha Hymavathi Devi's case. The above government order would also be applicable to the children born out of intercaste married couple if the mother belongs to SC/ST community. Subject to the above direction, rest of the directions contained in G.O.(Ms) No.11/05/ and G.O.(Ms) No.25/2005 would stand.
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 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 W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 12 for any appointment in public services or for admission into educational institutions, exclusively intended for members of the scheduled 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 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.
23. We find, so far as the petitioner in W.P.C. No 13479 of 2005 is concerned, Commissioner for Entrance Examination referred the matter to the Screening Committee for its decision to determine the status of the petitioner is concerned. Petitioner had applied for admission to Post-Graduate Medical Courses claiming reservation under scheduled caste/scheduled tribe quota. According to clause (i)(c) of the prospectus, claim for reservation under scheduled caste/scheduled tribe quota would be subject to verification and clearance by the Screening Committee constituted for the purpose by the Government as per G.O. (Ms) No 23/89/SC/ST/DD dated 22.05.1989 and as authorised by S.6 of Act 11 of 1996. Report submitted by KIRTADS would indicate that petitioner's father belongs to Dheevara community, which is other backward class in the State, and mother belongs to Malai W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 13 Arayan community, a scheduled tribe. Petitioner could not establish before the Committee that he belongs to Malai Arayan community which is his mother's caste. No acceptable materials were adduced by the petitioner. KIRTADS concluded as follows:
"The present study has revealed that the candidate has an advantageous start in life when compared to the members of Backward Tribal communities living in hilly areas that haven't produced a single doctor now like Aranadan, Eravallan, Koraga, Kattunayakan, Cholanaicken, Kurumba, Kadar, Paniyan, Mala Vettuvan, Malai Pandaram etc. In the instant case there is no evidence to show that the candidate has followed any customary mode of life cycle pattern of the Malai Arayan community. The candidate who has been brought up in the midst of Dheevara community, is devoid of affinity of conditions, milieu and circumstances, tribal traits etc. to be deemed as a member of scheduled tribe community."
We, in this jurisdiction, find no reason to take a different view from that of the report submitted by KIRTADS. Petitioner in W.P.C. No.13479 of 2005 also filed W.P.C. No 11087 of 2005 seeking a direction to respondents 1 to 4 to intimate the decision of the enquiry directed in Ext. P6 therein and also for other consequential reliefs. Learned single Judge did not grant any interim relief against which the petitioner filed W.A.No.910 of 2005. A Division Bench of this Court on 3.5.2005 directed the respondents to admit the petitioner provisionally at his risk and cost and liable to be removed in the event of dismissing the Writ Appeal. We have on law and on facts found that the petitioner has no claim to be admitted under the scheduled tribe quota. Consequently the order passed by the Division Bench on 3.5.2005 directing provisional admission would stand set aside."
(ii) S.Vijayalakshmi and others vs Tahsildar, Palakkad and others (AIR 2000 Ker 262) is relied upon for the proposition that the entries in the School Records cannot be treated as conclusive evidence to prove caste. The entries are made on the basis of declaration of parties and not on the basis of any verification by competent authorities. W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 14
(iii) Rameshbhai Dabhai Naika vs State of Gujarat and others (2012) 3 SCC 400) is relied upon, wherein the Supreme Court confirms the legal proposition as held in the Full Bench judgment of Indira's case (cited supra). The Supreme Court concludes that determination of the caste of a person born of an intercaste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of the attending facts of the case. That was a case where tribal certificate was taken away on the sole ground that the applicant was the son of a kshatriya father. The Supreme Court held that it is open for applicant to adduce evidence to show that he did not have the advantage of start in life and suffered the disabilities, dignities, humilities and handicaps like any other member of the community to which his Scheduled Tribe mother belonged.
14. On a consideration of the factual circumstances and law on the point it could be seen that the jurisdiction of the Screening Committee under Section 6 of the Act cannot be disputed. The Screening Committee is bound to scrutinise the applications from members of the SC and ST for admission to the seats reserved to them in Educational Institutions. As W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 15 provided under Section 6(2) they have caused an enquiry through the expert agency which is the Vigilance Cell of KIRTADS, the proper expert agency appointed in terms of 9 of the Act. They have in their P10 report found that the provisions of reservation to the intercaste case is limited only to the 1st generation namely the candidate's father. Since the father is married to a Non-Scheduled Tribe the child does not get the benefit of reservation which is earmarked for the constitutional category.
15. Apparently KIRTADS report proceeds on the basis that the 2nd generation of an intercaste married couple will not get the benefit of reservation. In Indira's case the Full Bench of this court was considering the question relating to a child of an intercaste marriage namely a Scheduled Tribe and a Non- Scheduled Tribe. If the KIRTADS is of opinion that petitioners father is entitled for benefit of reservation, it is not known as to how such a benefit cannot be extended to the son/daughter of such a Scheduled Tribe though he had married a Non- Scheduled Tribe. Even then the question to be considered would be whether the candidate was brought up as a Scheduled Tribe and suffers the same disabilities, W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 16 disadvantage and suffering of said Tribe. In fact as held by the Full Bench in Indira's case (supra) it is for the candidates to adduce evidence to show that they were subjected to such social disabilities. No such evidence is adduced. Therefore I am of the view that that as matters stand now, the report of KIRTADS cannot be treated as illegal. For that reason the consequent orders also cannot be challenged. Of course the petitioners do have a case that they were not given sufficient opportunity to adduce evidence.
16. The learned Counsel for the petitioners submit that they have not committed any fraud in the matter as the candidate's have only forwarded the application based on the entries in the School records. The candidate's have not made any misrepresentation to obtain the certificate. But going by the provisions of the Act especially Section 6 of the Act, it is clear that even though it is not a case involving fraud, it will be open for the Screeing Committee to consider whether the community certificate produced is genuine or not. Genuineness of the ceritificate has to be considered in the context of the provisions of the Act and false certifcates are liable to be cancelled. Section 6 is a Screening process W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 17 without prejudice to the action that may be taken under Sections 11, 15 or 16 of the Act. Therefore even in the absence of a finding of fraud it is open for the Screening Committee to consider the genuineness of the community ceritficate produced.
17. The further question that is to be considered is whether the petitioners are entitled for any releif in the writ petition. I have already indicated that no material was produced by the candidates before the KIRTADS to show that they have sufffered the disabilities of a Scheduled Tribe.
18. But as held by the Supreme court in Kumari Madhuri Patil's case (supra), the candidates have been admitted for various courses and had been undergoing studies so far by vitue of interim orders of this court in certain cases and therefore at this stage it will be unjustified to debar them from completing the said course.
19. Such being the situation, these writ petitions are disposed of as follows:
(i) In W.P.(C) No.21446 of 2007, petitioner has joined MBBS course at Kozhikode Medcal College under ST quota.
She is permitted to continue her course and complete the W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 18 same. It is made clear that hereafter she will not be entitled to any benefits of ST.
(ii) In W.P.(C) No. 19421 of 2009, petitioner is admitted to the BAMS course under ST quota. She is permitted to continue her course and complete the same. It is made clear that hereafter she will not be entitled to any benefits of ST.
(iii) In W.P.(C) No. 19505 of 2009, petitioner is admitted to nursing course. She is permitted to continue her course and complete the same. It is made clear that hereafter she will not be entitled to any benefits of ST.
(iv) In W.P.(C) No. 32771 of 2009 the 2nd petitioner is permitted to continue her course if she had joined in ST quota and complete the same. It is made clear that hereafter she will not be entitled to any benefits of ST.
(v) In W.P.(C) No. 12481 of 2012 the petitioner has joined Higher Secondary course as ST. He is permitted to continue his course and complete the same. It is made clear that hereafter he will not be entitled to any benefits of ST.
(vi) However disposal of these writ peitions shall not preclude the petitioners to approach the competent authority W.P.(C) Nos. 21446 of 2007, 19421 of 2009, 19505 of 2009, 32771 of 2009 and 12481 0f 2012 19 under Sec. 8 of the Act to claim the status of Scheduled Tribe by adducing such evidence as may be required in the matter.
Sd/-
A.M. SHAFFIQUE JUDGE DCS