Kerala High Court
Vimal Ghosh V. vs State Of Kerala And Ors. on 26 February, 1997
Equivalent citations: AIR1997KER237, AIR 1997 KERALA 237, ILR(KER) 1997 (2) KER 677
Author: B.N. Patnaik
Bench: B.N. Patnaik
JUDGMENT Balakrishnan, J.
1. The dispute that arises in both these Original Petitions relates to the caste status of the first petitioner in O.P. 963 of 1996 and the members of his family. Petitioners in O.P. 963 of 1996 challenge mainly Ext. P9 decision of the Scrutiny Committee appointed by the Government of Kerala. By Ext. P9, it was decided that the first petitioner in O.P. 963 of 1996 is not a member of the Scheduled Caste as he claimed to be. The 2nd petitioner therein is his son, who is an Engineering student.
2. O.P. No. 18774/95-1 was filed challenging Ext. P13 order passed by the Principal of the Calicut Regional Engineering College. By Ext. P13 order petitioner therein was removed from the rolls of the Engineering College on the ground that he was not a member of the Scheduled Caste the reason being that he had secured admission on that ground.
3. Both the Original Petitions were heard together and we propose to dispose of them by a common judgment. In O.P. 963 of 1996 it is alleged that the petitioners belong to "Kuravan" community, which is included in the list of Scheduled Caste issued by the President of India under the Constitution (Scheduled Caste) Order, 1950. It is alleged that in Act 108 of 1976, namely. "The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act 1976" the caste "Kuruvan" is included as Scheduled Caste by adding the same as Sl. No. 34 in the list.
4. First petitioner was born on 19-2-1950. He completed his graduation and got appointment as Assistant to the Legislative Assembly on 26-12-1973 in the Special Recruitment Quota. Thereafter he got selection to the post of Deputy Tahsildar in the year 1974 and as Tahsildar in 1976 and while he was thus working as Tahsildar he was selected to the post of Dy. S. P. in the Special Recruitment quota in the year 1977, After 10 years of Service as Dy. S.P. he was selected as Superintendent of Police and he was given entry into the IPS cadre in 1985. First petitioner married Smt. Jayanthi who is related to him both on maternal and paternal side. She is the daughter of Sadasivan Pillai, who is a retired Dy. S.P. In the select list published by the P.S.C. the caste name of Sadasivan Pillai is shown as "Kuravan". Petitioners allege that they and the members of their community were subjected to extreme sufferings of untouchability.
5. Petitioners further allege that "Kuravan" is a generic term and "Vettuvan" is an endogmous sub-group of "Kuravan" community. In the year 1969, the first petitioner was issued with Ext. P3 certificate from the Tahsildar as "Vettuvan". In 1978, there was a bogus complaint against the first petitioner and the Vigilance Wing of the Kerala Pubic Service Commission conducted an enquiry regarding the caste status of the first petitioner and-the above complaint was found to be baseless. In 1979 another enquiry was conducted under the supervision of the Director of Vigilance Investigation. Petitioners allege that on such enquiry also the complaint was found to be baseless. On 27-9-1991, the first petitioner received notice from the Director of Kerala Institute for Research, Training and Development Studies of Scheduled Castes and Scheduled Tribes ('KIRTADS' for short), which is an authority appointed by the Government of Kerala to conduct investigation regarding the caste status of persons whose identity of caste is disputed, directing him to participate in an enquiry regarding his caste status. Petitioner was not served with a copy of the complaint. According to the petitioners. KIRTADS submitted a report without conducting any enquiry. Pursuant to that report, the 2nd respondent, the Secretary to Government, SC/ST Development Department, passed Ext. P5 Order. Ext. P5 relates to irregular admission of the 2nd petitioner in the Regional Engineering College, Calicut. In Ext. P5 it was held that 2nd petitioner obtained admission in the Engineering College on the ground that he was a member of the Scheduled Caste and that the enquiry by the KIRTADS showed that he was not a member of the Scheduled Caste and hence his admission was cancelled. Petitioners alleged that this order was passed by Sri. M.G.K. Moorthy, the then Secretary and Commissioner, SC/ST Development Department. Petitioners also allege that the report of the KIRTADS was not given to the petitioners for more than one year.
6. Petitioners further allege that there is a concerned move by the membei of certain communities to monopolise the Constitutional protection exclusively to the members of that community and that is why the KIRTADS submitted such a report. The Supreme Court in Kumari Madhuri Patil v. Addl. Commr., (1994) 6 SCC 241 : (AIR 1995 SC 94) issued certain guidelines to streamline the procedure for issue of castes/social status certificate. One of the guidelines to the State Governments was to constitute a Scrutiny Committee consisting of three officers who were intimate in the verification issue of social status. After the said decision, Government of Kerala constituted a committee consisting of the Secretary and Commissioner, SC/ST Development Department, Director of SC Development Department and Director of ST Development Department. It was later clarified that if KIRTADS, had conducted any earlier investigation and filed report the Director of KIRTADS would not be a member of the Committee, The Committee constituted by the Government considered the caste status of the petitioners, and passed Ext. P9 order which, according to the petitioners, is not sustainable in the eye of law and Ext. P9 order suffers from serious procedural irregularities and it is issued in flagrant violation of the principles of natural justice. Petitioners allege that he had raised preliminary objection but these objections were not considered and various grounds have been urged in the original petition challenging the validity of Ext. P9.
7. In O.P. 963 of 1996 on behalf of respondents 1 to 6 a detailed counter-affidavit is filed. The counter-affidavit is sworn to by Deputy Secretary to Government, Scheduled Caste/Scheduled Tribe Development Department. It is contended that scrutiny committee was formed by the Government on the basis of the directions issued by the Supreme Court in Madhuri Patil's case (AIR 1995 SC 94) petitioners claimed that they were members of the "Vettuvan" community. Ext. P7 show cause notice was issued to the first petitioner. He sought extension of time and later submitted a detailed explanation. The Committee decided to hear the petitioner on 31-8-95. He sought extension of time and it was adjourned to 13-9-95. Later the first petitioner filed O.P. 14637/95 challenging the composition of the scrutiny committee. He contended that the Director of KIRTADS had enquired into his caste status and therefore he shall not be a member of the committee. Government reconstituted the scrutiny committee by excluding the Director of KIRTADS and the new committee issued notice to the petitioners but the petitioners sought postponment of the hearing of the scrutiny committee. The first petitioner got appointment in the public service alleging that he was a member of the "Vettuvan" (SC) and the 2nd petitioner got admission for B. Tech course in the Regional Engineering College, Calcicut as member of "Vettuvan" (SC) community. In July, 1993 first petitioner claimed that he was a member of the "Kuruvan" (SC) community. The petitioners now claim that they are members of the "Kuruvan" community. On 11-8-1992, the 2nd petitioner submitted application to the Tahsildar, Aluva for change of caste name in his S.S.L.C. book stating that since the caste name entered in his S.S.L.C. book is 'Vettuvan', he cannot claim caste name as 'Kuruvan. The enquiries revealed that the petitioner did not belong to any of the Scheduled Caste communities of Kerala.
8. The Scrutiny Committee, which considered the question of community of the petitioner, passed Ext. P 9 order and held that the petitioner R. Viswanatha Pillai is not a member of the Scheduled Caste as claimed by him and that he is not entitled to the rights and benefits admissible to members of the Scheduled Castes. The community certificate dated 14-10-69 issued by the Tahsildar, Ambalappuzha stating that the petitioner was a member of the "Vettuvan" community was declared to be not genuine and it was ordered to be cancelled. Before the Scrutiny Committee, petitioner produced as many as 117 documents and the Committee elaborately considered the question and came to a definite conclusion that the petitioner is not a member of the Scheduled Caste community.
9. Petitioner's counsel challenges the report of the Scrutiny Committee on various grounds. The first contention urged by the petitioner is that one of the members of the Committee Shri M.G.K. Murthy who was personally biased against the petitioner and, therefore, the report is vitiated. It may be noticed that originally the Committee con-, sisted of Chairman of the KIRTADS and two others including Shri M.G.K. Murthy. Petitioner filed an Original Petition before this Court contending that the Chairman of the KIRTADS was not entitled to be member of the Committee as he had conducted a preliminary enquiry in the matter. Later the Government removed the Chairman of the KIRTADS and re-organised the committee. It is pertinent to note that the petitioner had not raised any objection against Shri M.G.K. Murthy at that time. Now, the contention is that Shri M.G.K. Murthy has passed Ext. P. 5 order and, therefore, he is biased against the petitioner. Ext. P 5 is an order passed by the Government when the question of caste identity of petitioner's son Vimal Ghosh came as a dispute before the Government. Vimal Ghosh had obtained admission in the Regional Engineering College, Calicut by producing a certificate to the effect that he belongs to Scheduled Caste community. The Government on enquiry found that Vimal Ghosh was not a member of the Scheduled Caste community and that he produced a false certificate. The Government, by Ext. P 5 order, directed the principal, Regional Engineering College, Calicut to take action in respect of the question regarding admission of Vimal Ghosh to the Engineering course. Shri M.G.K. Murthy happened to be the Commissioner and Secretary to Government and it was he who signed Ext. P5 on behalf of the Government. We do not think that Shri M.G.K. Murthy was in any way biased against the petitioner and the plea raised by him is without any basis.
10. The main contention of the petitioner is that he belongs to "Kuravan" community and it is also known as "Vettuvan" and according to him many of his relations are even now being treated as members of the "Kuravan" community and the petitioner relying on certain literature and documents contended that the ancestors of the petitioner belong to "Manchi Kuravan" and it is a sub group of "Kuravan" and that Kuravan is a generic term and "Vettuvar" and "Veduvar" are sub-group or synonym of "Kuravan" and in that way the petitioner is a member of the Scheduled Caste. Reference was also made to certain old literature that the people of Nanchinadu area, which formed part of the erstwhile Travancore State and these Kuravans migrated to various parts of Kerala and that they were also known as "Vettuvan" and the petitioner's father while admitting the petitioner in the school gave his caste name as "Veduva Pillai" and this does not affect the caste identity of the petitioner. In short, the contention of the petitioner is that even though in the school records his caste name is recorded as "Veduvar Pillai" it is to be treated us "Vettuvan" or "Kuravan". The scrutiny committee came to the finding that the petitioner is a member of the "Veduvar Paillai" and he is not a member of either "Veltuvan" community or "Kuravan" community.
11. "Vettuvan" is Sl. No. 68 in the Constituion (Scheduled Castes) Order, 1950 as amended subsequently by Act 63 of 1956. The traditional occupation of "Vettuvan" caste is tree climbing for plucking coconuts. This caste Is spread over mostly in the former Cochin State. "Kurvan" caste is spread over in the places in erstwhile Travancore State. The members of this community generally work as collies and do agricultural works. "Kuravan" is also known as "Sidhanar". It is difficult to assume that "Kuravan" and "Vettuvun" could be one and the same caste. They are different castes and shown differently in the Constitution (Scheduled Castes) Order.
12. The scope of enquiry by this Court is very limited when a petitioner claims that by virtue of similarity in the caste name he belongs to a particular community. This was so held by a Constitution Bench of the Supreme Court in a decision reported in Bhaiya Lal v. Harikishan Singh. AIR 1965 SC 1557. That was a case wherein the appellant therein was duly elected to the Legislature and his selection was challenged on the ground that the appellant did not belong to Chamar caste as claimed by him. Respondent contended that he belonged to Dohar caste. The appellant therein contended that Dohar caste is a sub-caste of Chamar caste.
13. In an earlier decision reported in Basavalingappa v. Munichinnappa, AIR 1965 SC 1269 a question had arisen whether the first respondent therein, who was Voddar by caste, belonged to Scheduled Caste of Boxy mentioned in the order. The Court had elaborately referred to the special and unusual circumstances of that case and held that Voddar caste was the same as Bovy caste. But in Bhaiya Lal v. Harikishan Singh, (AIR 1965 SC 1557) the Supreme Court held that such an enquiry is not permissible. The Court held thus (at pp. 1559 and 1560 of AIR):
"It is clear from Article 341 (1) that in order to determine whether or not a particular caste is a Scheduled Caste within the meaning of Article 341, one has to look at the public notification issued by the President in that behalf where, therefore, any particular caste. the notification refers to Chamar, Jatav or Moche and in dealing with the question whether the candidate belongs to Scheduled Caste or not, the enquiry which the Election Tribunal can hold is whether or not the candidate is Chamar, Jata\ or Moche. The plea is that though he is not a Chamar as such, he can claim a same status by reason of the fact that he belongs to Dohar caste which is a sub caste of Chamar caste, cannot be accepted. An enquiry of this kind would not be permissible having regard to the provisions contained in Article 341".
14. In Srishkumar Choudhary v. State of Tripura, 1990 (Suppl.) SCC 220 : (AIR 1990 SC 991) the question arose where Dcshi Tripura could be treated as Scheduled Caste and in the Presidential Order Tripura Tripuri Tippers was included as entry No. 60. The Supreme Court held thus :
"The entries in the Presidential Order have to be taken us final and the scope of enquiry and admissibility of evidence is confined within its limitations. It is, however, not open to the court to make an addition or subtraction from the Presidential order. Enquiry is contemplated before the Presidential Order is made but any amendment to the Presidential order can only by legislation. The Court cannot assume jurisdiction and enter into an enquiry to determine whether three terms included in the Presidential Order viz. "Tripura Tripuri Tippera" in entry 15 includes Deshi Tripura, which according to the Government Circulars includes Laskar community".
15. In the instant case, petitioner Viswanatha Pillai is the son of Radhakrishna Pillai. Admittedly, Radhakrishna Piilai is a Nair by caste. He is the son of one Kuttan Pillai, Petitioner's mother's caste is described as 'Veduvar Pillai'. That is evident from her school records. One Thankappan Pillai is the maternal uncle of the petitioner. His caste name also is described as "Veduvar Pillai". It is evident from the documents produced by the petitioner himself. Petitioner's mother's sister's children were also members of "Veduvar" caste. Petitioner's mother's mother was also a member of Veduvar caste. But it is brought to our notice that some of the petitioner's relations have obtained certificates as members of "Kuravan" community. But that will not confer any right on the petitioner. The earliest document concerning the petitioner is the school records. Petitioner was admitted in standard VI in SDV High School, Alappuzha and his caste name was described as "Nanchi Pillai". In the S.S.L.C. book of the petitioner his caste name was shown as "Saiva Vallala". Petitioner's younger brother was admitted in standard V in the very same school and his caste name was described as "Pandipillai". Petitioner's younger sister Yamuna Bai was admitted in that school and her caste name was described as "Vellalar". Petitioner's another sister Pre-sanna Kumari was also a student of that school and her caste name was mentioned as "Saiva Vellala". It is the petitioner's case that his father gave all the forward caste name to his children in the school records to redeem them from the ignomy and humiliation arising out of untouchability and oppression. But this contention cannot be accepted as during the middle of 1960's there was no untouchability or oppression in this part of the State.
16. Petitioner in 1969 obtained a certificate from the Tahsildar, Ambatapuzha to the effect that he was a member of the "Vettuvan" community. But he did not make any attempt to correct the entries in his S.S.L.C. Book. Even now the entries in the school records arc as "Saiva Vellala". Petitioner was appointed as Assistant in the Legislature Department in 1972 and he became Deputy Tahsildar in 1971 and in 1977 petitioner was recruited as Deputy Superintendent of Police under the Special Recruitment Scheme and he claimed as member of the "Vettuvan" community. There was an enquiry by the Public Service Commission. When the complaints were received regarding the caste identity of the petitioner, he very much relied on the report of the enquiry officer. The enquiry report was produced by the Public Service Commission and marked as Annexure-A. The report itself shows that there was no proper enquiry by the then Vigilance officer of the Public Service Commission. The enquiry officer relied on the community certificate issued by the Tahsildar, Ambalapuzha. But that was contrary to the entries in the school records. The report shows that there was no proper enquiry regarding the caste identity of the petitioner. Whereas the scrutiny committee considered all relevant materials and came to the conclusion that the petitioner neither belongs to "Vettuvan" community nor "Kuravan" community. Most of the documents produced by the petitioner are irrelevant of the relate to persons who are distantly related to the petitioner. Petitioner has also taken different stand at different point of time. In 1962, he made a declaration that he was a member of the Vettuvan community for getting admission to his son for B. Tech course. On 25-7-92 he made another declaration that he belonged to "Kuravan" comnnmity. The declaration is to the following effect:
"I am fully convinced that I belong to Scheduled Caste 'Kuravan' community. I arrived at the conclusion on the basis of records and other valuable evidence collected from various sources related to my ancestors and close relatives. I have submitted the necessary documents and certificates to substantiate my claim as Scheduled Caste 'Kuravan'. Hence I humbly request that I may be authenticated as a person belonging to Scheduled Caste 'Kuravan' community."
Whereas, all the documents relating to his near relatives succinctly prove that they are members of 'Veduvar' community. It is true that some of his distant relatives, who are settled in Trichur, were able to obtain certificate to the effect that they are members of the 'Kuravan' community and that is a matter to be looked into by the authorities as to how they could obtain such certificates. Petitioner's near relatives are shown as members of the 'Veduvar' community. Some of the members, of the petitioner's relatives have obtained certificates to the effect that they are members of the 'Malai Veduvan' community to claim the benefit of Scheduled Tribes. Going by the caste identity of the petitioner's parents it can never be held that the petitioner belongs to Scheduled Caste community.
17. Petitioner also alleges that he has been treated as member of the Scheduled Caste community by others and he had married the daughter of one Sadasivan Pillai, who was a retired Superintendent of Police. There is no reliable evidence to show that Sadasivan Pillai was a member of the Scheduled Caste. Some documents have been produced to show that Sadasivan Pillai was an inmate of Harijan hostel, Trivandrum. But that by itself is not sufficient to hold that he was a member of the Scheduled Caste. Sadasivan Pillai was a student of the L.M.S. High School, Kollam and his school records show that he belongs to 'veduvan' caste. That is evident from Ext. R9 series produced in this case. Petitioner's mother was also related to Sadasivan Pillai and the mother's caste identity does not show that she was a member of the Scheduled Caste. So, in any view of the matter petitioner's claim that he belongs to 'Vettuvan' or 'Kuravan' community was rightly rejected by the Scrutiny Committee. Therefore, O.P. No. 963 of 1996M is without any merit.
18. O.P. No. 18774 of 1995 is filed by petitioner's son Vimal Ghosh to quash Ext. PI3 produced therein. By Ext. P13, petitioner's son has now been ordered to be removed from the rolls of the college as it was found that he obtained admission to the Regional Engineering College, Kozhikode on the basis of a false certificate. As it is now found that petitioner's son Vimal Ghosh is not a member of the Scheduled Caste it is clear that he obtained admission in the Regional Engineering College on the basis of a false certificate. Therefore, Ext. P13 order has been passed by the Principal in accordance with law. Hence, no interference is called for. Therefore, O.P. No. 18744 of 1995 without any merit.