Madras High Court
S.Sundararaju vs The Additional Director General Of ... on 8 March, 2019
Author: R.Subbiah
Bench: R.Subbiah, B.Pugalendhi
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Orders Reserved on : 24.01.2019
Orders pronounced on : 08.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
AND
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD).Nos.9686, 13534, 15661, 15806, 15779, 16619, 16620, 20953, 23124,
14647, 18017, 20503, 23854, 24124, 9240, 9241 and 24524 of 2018
and 309 and 310 of 2019
and
W.M.P.(MD).Nos.8933, 12335, 14058, 14163, 14132, 14704, 14705, 18724,
21016, 13222, 15902, 18250, 18251, 21586, 21821, 8540, 8541, 22234 and
22235 of 2018 and 253 and 254 of 2019
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S.Sundararaju .. Petitioner in W.P.(MD).No.9686 of 2018
Vs.
1. The Additional Director General of Police,
Social Justice and Human Rights Unit,
Chennai-600 004.
2. The Deputy Superintendent of Police,
SC/ST Vigilance Officer,
Social Justice and Human Rights Unit,
Office of the Commissioner of Police,
Karur District.
.. Respondents in W.P.(MD).No.9686 of 2018
Writ Petition (MD).No.9686 of 2018 filed under Article 226 of the
http://www.judis.nic.in
2
Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus
to call for the entire files leading to the impugned enquiry summon letter No.
82/DSP/SC/ST Vigilance Cell/KRR/2017, dated 19.02.2018 on the file of the
second respondent as illegal, without jurisdiction and quash the same and
consequently forbear the respondents to verify the community certificate of the
petitioner in the light of the orders passed by this Court in W.P.No.5400 of 1983,
dated 01.08.1984.
For Petitioner in W.P.(MD).No.9686 of 2018 : Mr.G.R.Sathish
For Respondents in W.P.(MD).No.9686 of 2018: Mr.V.R.Shanmuganathan,
Spl.G.P.
COMMON ORDER
R.SUBBIAH, J Since the issue involved in all these Writ Petitions, is one and the same, they are disposed of by this common order.
2. All these Writ Petitions have been filed challenging the enquiry summon letters issued by the respondent-Deputy Superintendent of Police, SC/ST Vigilance Officer/Assistant Commissioner of Police, Social Justice and Human Rights Unit, calling upon the petitioners to appear for the enquiry with regard to the social status of the petitioners.
3. Since the only issue involved in all these Writ Petitions is as to whether the amendment made in G.O.Ms.No.106, Adi Dravidar and Tribal Welfare (CV-I) Department, dated 15.10.2012, had been followed, in sending the enquiry http://www.judis.nic.in 3 summons by the District SC/ST Vigilance Cell/Social Justice and Human Rights Unit, we are not dealing with the factual aspects of each case in detail.
4. The grievance of the petitioners in all these Writ Petitions is that, immediately on receipt of the complaint by the employer of the writ petitioners with regard to the genuineness of the Community Certificate produced by them indicating the SC/ST community, the Secretary to Government, Adi Dravidar and Tribal Welfare Department, Secretariat, Chennai-600 009, mechanically directed the Vigilance Cell to make enquiry in respect of the petitioners' community status and send a report to the State Level Scrutiny Committee.
5. It is the case of the petitioners that in terms of G.O.Ms.No.106, Adi Dravidar and Tribal Welfare (CV-I) Department, dated 15.10.2012, the competent authority to make verification into the claims of the Scheduled Tribe is the State Level Scrutiny Committee. In the said G.O.Ms.No.106, it has been pointed out in paragraph 10(ii) (before amendment) and (iii) as follows:
"10. Functions of the Vigilance Cells:
.. ..
(ii) On receipt of the application from the employer/recruiting agency for verification of the genuineness of the Community Certificate of the individuals the District Level Vigilance Committee/State Level Scrutiny Committee to refer the case to the respective Vigilance Cell where the Community Certificate was issued to the individual by the competent authority for verification of the community status of the individual."
(iii) On receipt of the reference from District http://www.judis.nic.in 4 Level Vigilance Committee/State Level Scrutiny Committee, the Inspector of the Vigilance Cell would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The Vigilance Officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste, etc or such other persons who have knowledge of the social status of the candidate and then submit a report to the District Level Vigilance Committee/State Level Scrutiny Committee together with all particulars as envisaged in the proforma, in particular the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the concerned castes or tribes or tribal communities etc." Subsequently, paragraph 10(ii) of the said G.O. was amended by way of a letter dated 11.12.2012, addressed by the Secretary to Government, Adi Dravidar and Tribal Welfare Department, Secretariat, Chennai-600 009 in Letter No. 18922/CV-1/2012, which is to the following effect:
"(ii) On receipt of the application from the employer/recruiting agency for verification of the genuineness of the Community Certificate of the individual the District Level Vigilance Committee/State Level Scrutiny Committee shall call the individual for enquiry along with the original documents to substantiate his claim as required by http://www.judis.nic.in 5 the Committee for passing necessary orders. In case of doubtful cases, the Committee shall refer the cases to the respective Vigilance Cell, for verification of the community status of the individual."
6. Further, according to the learned counsel for the petitioners, the State Level Scrutiny Committee has to meet, call the individuals for enquiry and thereafter if it is not satisfied with the documents produced by the petitioners, it may refer the case for enquiry by the Vigilance Cell.
7. Thus, according to the learned counsel for the petitioners, reference to the Vigilance Cell has to be made only by the State Level Scrutiny Committee and not by any other agency or authority. In all these cases, the Additional Chief Secretary to Government/Secretary to Government, on receipt of the complaint from the employer, sent the communication to the respective District Vigilance Cell to conduct enquiry and send a report to the State Level Vigilance Committee, based on which the impugned notices/summons were sent by the Deputy Superintendent of Police, District SC/ST Vigilance Cell/Assistant Commissioner of Police, Social Justice and Human Rights Unit. Since the impugned letters/notices were not issued following the amendment in the said G.O.Ms.No.106 and they were sent to the petitioners in total violation of the amended G.O.Ms.No.106, amending paragraph 10(ii) therein, which specifically states that the State Level Scrutiny Committee has to meet and thereafter if necessary, refer the matter for http://www.judis.nic.in 6 enquiry by the Vigilance Cell, they are liable to be quashed.
8. Learned counsel for the petitioners, in sum and substance, submitted that the power of verification can be exercised only by the authority or Committee to whom it is vested and not by any other independent authority. Thus, the learned counsel for the petitioners submitted that a reference to the Vigilance Cell can only be made by the State Level Scrutiny Committee and the Vigilance Cell, unilaterally, of its own cannot summon the petitioners for enquiry.
9. It is the further submission of the learned counsel for the petitioners, by placing reliance on the decision of the Supreme Court reported in 2012 (1) SCC 333 (Dayaram Vs. Sudhir Batham) that the Community Certificate which was issued after due and proper enquiry, will not call for verification by the Scrutiny Committee. In this regard, he relied on paragraph 36 of the said decision of the Supreme Court:
"36. Having regard to the scheme for verification formulated by this Court in Madhuri Patil Vs. Commissioner, Tribal Development (1994 (6) SCC
241) the Scrutiny Committees carry out verification of caste certificates issued without prior enquiry, as for example, the caste certificates issued by Tahsildars or other officers of the departments of Revenue/Social Welfare/Tribal Welfare, without any enquiry or on the basis of self-affidavits about caste. If there were to be a legislation governing or regulating grant of caste certificates, and if caste certificates are issued after due and proper inquiry, such caste certificates will not call for verification by the Scrutiny Committees.
Madhurai Patil provides for verification only to avoid false and bogus claims. The said scheme and the directions therein have been satisfactorily functioning http://www.judis.nic.in 7 for the last one-and-a-half decades. If there are any shortcomings, the Government can always come up with an appropriate legislation to substitute the said scheme. We see no reason why the procedure laid down in Madhuri Patil should not continue in the absence of any legislation governing the matter."
10. Learned counsel for the petitioners also relied on a decision of the Supreme Court reported in 2013 (4) SCC 465 (Ayyaubkhan Noorkhan Pathan Vs. State of Maharashtra), and submitted that the employer or the State Level Caste Scrutiny Committee is not well within their rights to initiate enquiry by the Committee in the absence of any substantial materials available with them to the effect that the Community Certificates obtained already by the petitioners have been issued without proper enquiry.
11. Learned counsel for the petitioners in all these Writ Petitions, in unison, submitted that the employers took a stand that the enquiry commenced on the basis of third party complaints or petitions received in the name of SC/ST Associations (unrecognised) and it is a common factor that such complaints are given with a mala-fide intention, either due to animosity by the fellow employees or others. In fact, a Division Bench of this Court in W.P.No.10292 of 1989, by order dated 18.06.1996 held that the third parties have no role in the verification of the Community Certificates of the concerned candidates. To fortify their submissions, learned counsel for the petitioners also relied on a decision of this http://www.judis.nic.in 8 Court reported in 1999 (III) MLJ 88 (Gurusamy Vs. The District Collector, Coimbatore), wherein it was held that the respondents (authorities) are barred from commencing enquiries based on the third party's complaints. Hence, learned counsel for the petitioners submitted that as per amended G.O.Ms.No. 106, there should be some material for the Committee to come to a conclusion that the Community Certificate is not genuine and therefore the Committee has to meet and thereafter only if necessary, it can refer the matter for enquiry to the Vigilance Cell and the Committee, suo-motu cannot send for verification by the Vigilance Cell, which is in violation of G.O.Ms.No.106 as amended. Learned counsel for the petitioners also submitted that the respondents have commenced enquiry even as against the persons who have already retired after completion of more than three decades of service. Even in such cases, the respondents have not applied their mind as to whether there exists any adverse material warranting initiation of such enquiries, which is nothing but harassment and an attempt to strip their Constitutional rights. In support of their submissions, learned counsel for the petitioners also relied on a decision of the Supreme Court reported in 1997 (7) SCC 505 (R.Kandasamy Vs. Chief Engineer, Madras Port Trust), wherein it was held that the Community Certificate issued to a Scheduled Tribe candidate by the Tahsildar prior to 11.11.1989 is a good and valid Community Certificate for all purposes so long as such a Certificate is not cancelled and the authorities cannot decline to take that into consideration and http://www.judis.nic.in 9 insist upon a fresh Community Certificate from the Revenue Divisional Officer.
12. Learned counsel for the petitioners also submitted that the petitioners are challenging the communication issued by the Vigilance Cell on the ground of want of jurisdiction, wherein the Vigilance Cell called the petitioners to appear before them for an enquiry with respect to verification of the genuineness of the Community Certificates. According to the learned counsel for the petitioners, no enquiry was conducted by the State Level Scrutiny Committee before instructing the respective District Vigilance Cell to conduct enquiry as per the amended G.O.Ms.No.106. In such circumstances, the Deputy Superintendent of Police, SC/ST Vigilance Officer/Assistant Commissioner of Police, Social Justice and Human Rights Unit, are not competent authorities to send the impugned notices/summons, in the absence of any enquiry with respect to the verification of the genuineness of the Community Certificate by the State Level Scrutiny Committee before calling for the Vigilance Cell report, and hence, there is no legal sanctity in the issuance of the impugned notices/summons. Hence, for all the above reasons, learned counsel for the petitioners prayed to quash the impugned orders/letters and allow the Writ Petitions.
13. Countering the above submissions, the learned Special Government Pleader appearing for the respondents contended that the concept of formation of Committee for enquiry and Vigilance Cell for investigation into the Community Certificate matters, emanated from the judgment of the Supreme Court in the http://www.judis.nic.in 10 case of Madhuri Patil Vs. Additional Commissioner, Tribal Development (1994 (6) SCC 241 = AIR 1995 SC 94). There is no Legislation either by the Parliament or the State Legislature on this aspect and therefore, the said judgment of the Supreme Court in Madhuri Patil 's case occupies the field. As per the said judgment in the case of Madhuri Patil, reference to Vigilance Cell is mandatory. G.O.Ms.No.106, issued by the Government on 15.10.2012, as amended on 11.12.2012, is in full conformity with the judgment of the Supreme Court in the said case of Madhuri Patil. The petitioners rely on the above said amendment made to the said G.O.Ms.No.106 by way of the Letter of the Government. The said G.O. is issued under Article 162 of the Constitution of India, and therefore, the same cannot be amended by way of Executive Letter/Circular. In fact, G.O.Ms.No.106 was amended by another G.O. in G.O.Ms.No.38, Adi Dravidar and Tribal Welfare (CV.1) Department, dated 12.05.2017, and therefore, it is evident that a letter cannot amend a G.O. If the technical objections which are baseless, are permitted, it would defeat the very object of the enquiry and the purport of the judgment of the Supreme Court in the case of Madhurai Patil (cited supra). Hence, learned Special Government Pleader prayed for dismissal of the Writ Petitions.
14. Heard the submissions made on both sides and perused the materials available on record.
15. The only issue that has to be decided in all these Writ Petitions is as to http://www.judis.nic.in 11 whether the impugned Letters/summons issued by the Deputy Superintendent of Police, District SC/ST Vigilance Cell/Assistant Commissioner of Police, Social Justice and Human Rights Unit, individually calling for the writ petitioners to appear for the enquiry, are liable to be quashed, since the said summons/notices were sent based on the communication sent by the Secretary to Government/Additional Chief Secretary to Government and not by the State Level Scrutiny Committee as required under amended G.O.Ms.No.106.
16. The common submission of the learned counsel for the petitioners is that as per amended G.O.Ms.No.106 in sub-para (ii) of Paragraph 10, if a complaint is referred to by an employer/recruiting agency for verification of the genuineness of the Community Certificate of the individual, the State Level Scrutiny Committee is required to call the individuals for enquiry and if it is not satisfied with the documents produced by the individuals, it may refer the case to Vigilance Cell. In all these cases, no such procedure was adopted. On the other hand, the Deputy Superintendent of Police of the District Vigilance Cell/Assistant Commissioner of Police, Social Justice and Human Rights Unit, have sent the communication to the petitioners without making necessary enquiry by the State Level Vigilance Committee at their instance as per amended G.O.Ms.No.106. Therefore, the summons sent by the Deputy Superintendent of Police of the District Vigilance Cell/Assistant Commissioner of Police, Social Justice and Human Rights Unit, are in total violation of the amended G.O.Ms.No.106, and hence, http://www.judis.nic.in 12 they are liable to be quashed. But, we are of the opinion as contended by the learned Special Government Pleader that the concept of formation of a Committee for enquiry and Vigilance Cell, for investigation into the Community Certificate matters, emanated from the judgment of the Supreme Court reported in Madhuri Patil's case (cited supra). The relevant portion of the said judgment in Madhurai Patil is extracted hereunder:
"12. The admission wrongly gained or a appointment wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of a social status certificates, their scrutiny and their approval, which may be the following:
1. The application for grant of social status certificate shall be made to the Revenue-Sub-
Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such Officer rather than at the Officer, Taluk or Mandal level.
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2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-
gazetted officer with particulars of castes and subcastes, tribe, tribal community, parts of groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the concerned Directorate.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any office higher in rank of the Director of the concerned department, (II) the Director, Social Welfare / Tribal Welfare / Backward Class Welfare, as the case may, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars http://www.judis.nic.in 14 as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial and dead bodies etc. by the concerned castes or tribes or tribal communities etc. .. .. ... ... "
17. Therefore, in the above judgment of the Supreme Court, it is categorically held that there must be an enquiry by the Committee duly constituted within four walls in the form of a quasi-judicial enquiry and there must be an investigation by a cell on field and one is independent of the other and both must exist and both of them are mandatory and both cannot be decided independently. The State Level Scrutiny Committee cannot decide on its own without a vigilance report. The Vigilance Cell investigates on the field and files a report. The State Level Scrutiny Committee enquires into the report and the materials in support of the same and takes a decision. But the judgment of the Supreme Court in Madhuri Patil 's case does not mandate that there should be enquiry made by the Committee for prima-facie opinion to proceed or not. In fact, without the vigilance report, no material would be available before the State Level Scrutiny Committee to take a prima-facie decision about the genuineness of the Community Certificate. Merely based on the employer's letter and the Community Certificate, a prima-facie decision cannot be taken by the State Level http://www.judis.nic.in 15 Scrutiny Committee.
18. Learned counsel for the petitioners placed reliance on the amendment made to G.O.Ms.No.106. Originally, in pursuant to the decision rendered in Madhuri Patil's case (cited supra), the State Government has initially constituted a District Level Vigilance Committee to verify the genuineness of the Community Certificate during the year 1997 and later, the Government modified the constitution of the said Committee in G.O.(2D).No.108, Adi Dravidar and Tribal Welfare Department, dated 12.09.2007 constituting two Committees, namely the State Level Scrutiny Committee to scrutinise the genuineness of the Community Certificate issued as Scheduled Tribe and the District Level Vigilance Committee to scrutinise the genuineness of the Community Certificate issued as Scheduled Caste. Subsequently, the Government, vide G.O.Ms.No.106, Adi Dravidar and Tribal Welfare Department, dated 15.10.2012, issued clarification about the manner in which the enquiry regarding the Community verification should be entertained. Subsequently, the Government amended the abovesaid paragraph 10(ii) of the said G.O.Ms.No.106, vide Letter dated 11.12.2012, as per which, there should be a State Level Scrutiny Committee which has to meet and only thereafter, if necessary, the matter has to be referred for enquiry before the Vigilance Cell for verification of the Community status of the individual.
19. In all these Writ Petitions, no such meeting was held independently by the State Level Scrutiny Committee. In our considered opinion, as contended by http://www.judis.nic.in 16 the learned counsel for the petitioners, G.O.Ms.No.106 was issued under Article 162 of the Constitution of India and the same cannot be amended by the Executive Letter/Circular. The said Executive Letter, dated 11.12.2012 cannot over-ride G.O.Ms.No.106. In fact, G.O.Ms.No.106 was amended by another G.O. in G.O.Ms.No.38, dated 12.05.2017, by which, in sub-paragraph (iii) of paragraph 10, instead of the words "submit a report to the District Level Vigilance Committee/State Level Scrutiny Committee", the words "submit a report to the District Level Vigilance Committee / Director, Tribal Welfare", stood substituted, and in sub-paragraph (iv) therein, for the words "District Level Vigilance Committee/State Level Scrutiny Committee", the words "District Level Vigilance Committee/Director, Tribal Welfare" stood substituted and for the words "competent committee" in two places, where it occurs, the words "District Level Vigilance Committee/Director, Tribal Welfare" stood substituted.
20. In view of the above amendment made in G.O.Ms.No.106, the submissions made by the learned counsel for the petitioners have no force. Moreover, the Secretary to Government is the Chairman of the State Level Scrutiny Committee and so he is the competent person to make a reference to the Vigilance Cell and whether there is prior sanction of the Committee or not, is purely an internal affair of the Committee. If technical objections raised by the petitioners, are accepted, then it will defeat the very object of the dictum laid down by the Supreme Court in Madhuri Patil's case. The Secretary to http://www.judis.nic.in 17 Government being the Chairman of the State Level Scrutiny Committee, is entitled to make a reference with regard to the genuineness of the Community Certificate on being complained of by the employer. Furthermore, the petitioners will have an opportunity of adducing oral and documentary evidence in support of their claim before the Vigilance Cell Officer on receipt of the enquiry notice. Therefore, no prejudice is going to be caused to the petitioners, since the Chairman of the State Level Scrutiny Committee had made a reference to the Vigilance Cell on receipt of the complaint from the employers.
21. Thus, there are no merits in the submissions made by the learned counsel for the petitioners. The Writ Petitions are liable to be dismissed. Accordingly, the Writ Petitions are dismissed. No costs. Consequently, the Miscellaneous Petitions are closed.
(R.P.S.J) (B.P.J)
08.03.2019
Index: Yes
Internet: Yes
Speaking Order : Yes
cs/rsb
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R.SUBBIAH, J
and
B.PUGALENDHI, J
cs/rsb
Order
in
W.P.(MD).9686 of 2018 etc. batch
08.03.2019
http://www.judis.nic.in