Kerala High Court
Lavya.A. (Minor) vs Director Of Medical Education
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY,THE 7TH DAY OF NOVEMBER 2013/16TH KARTHIKA, 1935
W.P.(C).No.19867 of 2013 (G)
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PETITIONER:-
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LAVYA.A. (MINOR), D/O.ARINGALAYANMANOHARAN @ MANOJ,
'LAYA NIVAS', EDAKKAD HOUSE, KANNUR VILLAGE,
KANNUR TALUK, KANNUR DISTRICT,
REPRESENTED BY HER FATHER& NATURAL GUARDIAN
ARINGALAYAN MANOHARAN @ MANOJ.
BY ADVS.SRI.G.KRISHNAKUMAR
SRI.D.R.BALAKRISHNA PRABHU
SMT.P.M.NASEEMA
SRI.K.A.ANI JOSEPH
RESPONDENTS:-
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1. DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM - 695 001.
2. THE DIRECTOR, LBS CENTRE FOR SCIENCE & TECHNOLOGY,
EXTRA POLICE ROAD, NANDAVANAM, PALAYAM,
THIRUVANANTHAPURAM - 695 033.
3. CONVENOR, SCREENING COMMITTEE &
CONTROLLER OF ENTRANCE EXAMINATION,
5TH FLOOR, HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM - 695 001.
4. KERALA UNIVERSITY OF HEALTH SCIENCE,
REPRESENTED BY ITS REGISTRAR, THRISSUR - 680 584.
5. PRINCIPAL, MEDICAL TRUST COLLEGE OF PHYSIOTHERAPY,
MEDICAL TRUST HOSPITAL, ERANAKULAM - 682 011.
6. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
HEALTH & FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001.
W.P.(C).NO.19867 OF 2013
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* ADDITIONAL 7TH RESPONDENT IMPLEADED:
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ADDL.R7. THE VIGILANCE OFFICER,
VIGILANCE CELL, DIRECTORATE OF KIRTADS, KOZHIKODE-17.
(ADDITIONAL TH RESPONDENT IS IMPLEADED AS PER ORDER
DATED 23.08.2013 IN I.A.No.11475/2013)
R1, R3, R6 & R7 BY SPECIAL GOVERNMENT PLEADER SMT.LALYVINCENT.
R2 BY ADVS. SRI.P.B.SURESH KUMAR (SENIOR ADVOCATE)
SRI.LEO GEORGE
R4 BY STANDING COUNSEL SRI.P.SREEKUMAR.
R5 BY ADVS. SRI.R.S.KALKURA
SRI.M.S.KALESH
SMT.A.V.PRIYA
SRI.HARISH GOPINATH.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29/10/2013, THE COURT ON 07/11/2013 DELIVERED THE FOLLOWING:-
WP(C).No.19867 of 2013 (G)
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APPENDIX
PETITIONER'S EXHIBITS:-
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EXHIBIT P1: TRUE RELEVANT PAGES OF THE PROSPECTUS FOR ADMISSION
TO NURSING, PHARMACY AND PARAMEDICAL STREAMS 2013,
ISSUED BY 1ST RESPONDENT.
EXHIBIT P2: TRUE COPY OF THE RELEVANT PAGE OF SSLC CERTIFICATE OF
THE PETITIONER.
EXHIBIT P3: TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 31.01.2013
ISSUED BY THE THAHASILDAR, KANNUR TO THE PETITIONER.
EXHIBIT P4: TRUE COPY OF THE CASTE CERTIFICATE DATED 23.05.2003
ISSUED BY THE TAHASILDAR, KANNUR TO THE PETITIONER'S
FATHER.
EXHIBIT P5: TRUE COPY OF THE EXTRACT OF THE SCHOOL ADMISSION
REGISTER DATED 09.05.1984 OF THE PETITIONER'S FATHER
ISSUED FROM THE ST.ANTONY'S U.P.SCHOOL, KANNUR-3.
EXHIBIT P6: CERTIFICATE DATED 30.06.2009 ISSUED TO THE PETITIONER'S
FATHERBY THE THAHASILDAR, KANNUR.
EXHIBIT P7: TRUE COPY OF THE MARK LIST CUM FIRST ALLOTMENT PUBLISHED
ON 29.07.2013 IN THE WEBSITE OF THE 2ND RESPONDENT.
EXHIBIT P8: TRUE COPY OF THE COMMUNICATION DATED 18.06.2013 ISSUED
BY THE 3RD RESPONDENT.
EXHIBIT P9: TRUE COPY OF THE APPLICATION STATUS OF THE PETITIONER.
EXHIBIT P10: TRUE COPY OF THE COLLEGEWISE LIST OF ALLOTTED
CANDIDATE PUBLISHED ON 08.08.2013 OF THE 2ND RESPONDENT'S
WEBSITE.
EXHIBIT P11: TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA
MANORAMA DAILY DATED 11.08.2013.
EXHIBIT P12: TRUE COPY OF THE CERTIFICATE DATED 19.08.2013, ISSUED BY
THE PULAYA SAMUDHAYASMASHANA SAMRAKSHANA SAMITHI,
ORGANISATION OF PULAYACOMMITTEE IN THANA, KANNUR.
EXHIBIT P13: TRUE COPY OF THE STATEMENT FILED ON 03.10.2013 BY THE
PETITIONER BEFORE THE ADDITIONAL 7TH RESPONDENT.
WP(C).No.19867 of 2013 (G)
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EXHIBIT P14: TRUE COPY OF THE REPORT NO.V/15/13 REJ. SC-2 OF THE
ADDITIONAL 7TH RESPONDENT.
EXHIBIT P15: TRUE COPY OF THE P[ROCEEDINGS DATED 05.10.2013 OF
THE 2ND RESPONDENT.
EXHIBIT P16: TRUE COPY OF THE REPORT DATED 7.10.2013 OF THE
ADDITIONAL 7TH RESPONDENT.
EXHIBIT P17: TRUE COPY OF EXTRACT OF ADMISSION REGISTER ISSUED
BY THE DENUL ISLAM SABHA GIRLS HIGHER SECONDARY
SCHOOL, KANNUR.
RESPONDENTS' EXHIBITS:-
---------------------------------------
NIL.
( TRUE COPY )
K. Vinod Chandran, J.
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W.P.(C).No.19867 of 2013-G
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Dated this the 07th day of November, 2013
JUDGMENT
The petitioner challenges the withholding of her admission to the Bachelor of Physiotherapy course, in the Entrance Examination, the allotment of which is to be done by the 2nd respondent. Admittedly the petitioner was a candidate to the para-medical course, to which she applied in the academic year 2013-14 pursuant to Exhibit P1 Prospectus. She, on the basis of the Community Certificate (Exhibit P3) issued under the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 [hereinafter referred to as "Act 11 of 1996"] set up a claim of reservation as member of the Pulaya Community. However, the Commissioner for Entrance Examinations by Exhibit P8 informed the petitioner that her Community Certificate was scrutinized by the Screening Committee and that the same is sent for Anthropological investigation to the Vigilance Officer of the Kerala Institute for Research, Training and Development Studies (KIRTADS) for Scheduled Castes and Scheduled Tribes.
WP(C).19867 of 2013 - 2 -
2. The application status of the petitioner was withheld as per Exhibit P9, against which she approached this Court and obtained an interim order for keeping one vacancy reserved for Scheduled Caste category, vacant. The petitioner, then, sought for impleadment of the Vigilance Officer, Vigilance Cell, Directorate of KIRTADS, which application was allowed as per order dated 23.08.2013 and the said officer was impleaded as additional respondent No.7. When the matter came up before Court for hearing on 0.10.2013, while the learned counsel appearing for the petitioner asserted that the enquiry has not gone beyond what is indicated in the writ petition, the learned Special Government Pleader appearing for the official respondents contended that the Vigilance Officer, the additional 7th respondent, had already prepared and submitted an Anthropological Report dated 08.07.2013 to the concerned authority. On the contention being raised by the petitioner that the said report was prepared behind her back, on 01.10.2013 an order was passed directing the additional 7th respondent to consider the documents produced by the petitioner and file a report after verification of the said documents. The petitioner was also directed to appear before the Vigilance Officer on 03.10.2013. The Vigilance Officer, in purported WP(C).19867 of 2013 - 3 -
compliance of the said order, has prepared a subsequent report dated 07.10.2013. The petitioner, by way of amendment, produced the earlier Anthropological Report dated 08.07.2013 as Exhibit P14 and also challenged the same along with Exhibit P16 Anthropological Report dated 07.10.2013.
3. I have heard learned counsel Sri.G.Krishna Kumar, appearing for the petitioner and the Special Government Pleader Smt.Laly Vincent, appearing for the State.
4. The learned counsel for the petitioner would strenuously urge that it has been settled by a long line of decisions of the Supreme Court that the caste of an offspring of an inter-caste marriage is that of the father. The petitioner relies on Punit Rai v. Dinesh Chaudhary [(2003) 8 SCC 204], Dayaram v. Sudhir Batham and Others [(2012) 1 SCC 333], Rameshbhai Dabhai Naika v. State of Gujarat [(2012) 3 SCC 400] and Ayaaubkhan Noorkhan Pathan v. The State of Maharashtra & Others [(2013) 4 SCC 465]. To substantiate the caste status of the petitioner, reliance is placed on the Scheduled Caste status of her father and to establish her having been brought up in the said caste, reliance has been placed on school records and the Community Certificate issued under Act 11/1996.
WP(C).19867 of 2013 - 4 -
5. The petitioner has been shown as belonging to the Religion and Caste "Hindu, Pulaya" in her Secondary School Leaving Certificate (Exhibit P2), the extract of the Upper Primary School Admission Register (Exhibit P5) and the extract of the Admission Register of the High School (Exhibit P17). The caste status of the petitioner's father is evidenced by Exhibit P4 and on the basis of the said documents, the petitioner lays claim to be a member of the Scheduled Caste community "Pulaya"; which, according to her, stands concluded by Exhibit P3 certificate issued under Act 11/1996. Exhibit P3 having been issued by the Competent Authority as contemplated under Act 11/1996, it does not call for any re-verification and a cancellation of the authoritative certificate issued by a statutory authority can only be for reason of fraud being employed, is the contention. The genuineness of Exhibit P3, i.e., whether it was in fact issued by the Competent Authority under Act 11/1996, alone could be looked into and the caste status as declared in Exhibit P3 calls for no further verification, argues the learned counsel. The petitioner contends that the school records are authoritative documents in determination of caste status, as has been held in Kodikunnil Suresh v. N.S.Saji Kumar [(2011) 6 SCC 430]. The petitioner WP(C).19867 of 2013 - 5 -
again relies on Dayaram (supra) and Ayyaubkhan Noorkhan Pathan (supra) to buttress her contention that the Screening Committee ought not to have gone into the issue of community status of the petitioner as such, since Exhibit P3 Community Certificate is issued by a Competent Authority as provided under Act 11/1996.
6. The learned Special Government Pleader, however, would contend that, as has been consistently found by the Supreme Court the affirmative action of reservation cannot be wasted on persons who merely declare themselves to be backward, but has not, in fact, suffered the disabilities of the community in which he/she proclaims to be part of. The State immediately after the decision of Kumari Madhuri Patil v. Additional Commissioner, Tribal Development [(1994) 6 SCC 241] has brought out Act 11/1996, wherein comprehensive checks and balances have been provided, to avoid reservation being availed of by persons who have not suffered the disability as such and who does not in fact belong to a Scheduled Caste or Scheduled Tribe. Though Exhibit P3 has been issued by the Competent Authority under Act 11/1996, nothing was evident as to any fruitful enquiry having been made by the Competent Authority;
WP(C).19867 of 2013 - 6 -
the powers for which is conferred on the Competent Authority under Section 14 of Act 11/1996. In such circumstance and also in the circumstance of Section 6 of Act 11/1996 providing for a Screening Committee to be constituted for verification of the Community Certificate, the action taken by the Controller of Examinations, which has eventually resulted in the petitioner being found to be not a person entitled to reservation as a Scheduled Caste by Exhibit P14 and P16 Reports, cannot at all be faulted. In fact, though the Community Certificate has not been cancelled as such, the learned Special Government Pleader specifically refers to Section 6A and Section 11 of Act 11/1996 to point out that when the extreme measure of cancellation of a certificate issued by the Competent Authority is postulated under the enactment, there cannot be a conclusive nature conferred on the certificate issued by the Competent Authority. The learned Special Government Pleader would also point out Sections 8 and 8A to emphasise that the petitioner has an alternate remedy available under the enactment and the remedy sought for now under Article 226 of the Constitution is to be declined for reason only of the alternate efficacious remedy not having been availed of.
WP(C).19867 of 2013 - 7 -
7. Before looking at the facts of the case, the law on the subject has to be placed in the proper perspective. Dayaram (supra) examined whether the directions 1 to 15 in Madhuri Patil (supra) were legislative in nature and also whether the exclusion of the Civil Courts jurisdiction and the prohibition in entertaining an intra-Court appeal, also a part of the said directions, could be sustained. Comprehensively dilating on the pro-active role assumed by the Supreme Court and copiously quoting from landmark judgments of the Supreme Court the directions issued in Madhuri Patil were found to be "... towards furtherance of the constitutional rights of scheduled castes/scheduled tribes" (sic). While upholding the exclusion of civil remedies, the prohibition of intra-Court appeal before the High Courts was held to be in direct conflict with the express provisions of the statute. With respect to the actual implementation of the directions; the Court had this to say:
"Having regard to the scheme for verification formulated by this Court in Madhuri Patil, the scrutiny committees carry out verification of caste certificates issued without prior enquiry, as for example the caste certificates issued by Tehsildars or other officers of the departments of Revenue / Social Welfare / Tribal Welfare, without any WP(C).19867 of 2013 - 8 -
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. Madhuri Patil provides for verification only to avoid false and bogus claims. The said scheme and the directions therein have been satisfactorily functioning 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".
Act 11/1996 has been enacted in tune with the directions in Madhuri Patil.
8. The so-called well entrenched principle of caste of the father deciding the caste of an offspring of inter-caste marriage was analytically dealt with in Rameshbhai (supra). The Supreme Court considered its earlier decisions in Valsamma Paul v. Cochin University [(1996) 3 SCC 545], Sobha Hymavathi Devi v. Setti Gangadhara Swamy [(2005) 2 SCC 244], Punit Rai (supra) and Anjan Kumar v. Union of India [(2006) 3 SCC 257], which purportedly laid down the said proposition.
WP(C).19867 of 2013 - 9 -
(i) Valsamma (supra) was a case in which a forward caste Christian married a backward caste Christian and on that ground claimed appointment to a vacancy reserved for the backward caste, to which her husband belonged. The Supreme Court while holding that on marriage the woman becomes an integral part of the husband's marital home and gets transplanted to his caste; however, declined the benefit of reservation on the ground that acquisition of scheduled caste status by voluntary mobility would be a fraud on the Constitution and would frustrate the benign Constitutional policy under Articles 15(4) and 16(4).
(ii) Sobha Hymavathi Devi (supra) was a challenge against the returned candidate from a Scheduled Tribe Constituency. The candidate, Sobha, resisted the election petition with the conflicting contentions; of both her parents being members of Scheduled Tribe and in any event, she having been brought up by the mother; who undisputedly was a Scheduled Tribe. Her father was found to be from a forward community and her claim of being brought up as a Scheduled Tribe was negatived on facts. The contention raised on the basis of her marriage to a Tribal was repelled on the dictum laid down in Valsamma.
WP(C).19867 of 2013 - 10 -
(iii) Punit Rai (supra) again was an election petition wherein the election of a candidate from a Scheduled Caste Constituency was challenged. The defence was that though the candidate's father was from the forward caste and married to a woman of the same caste; the candidate himself was born to a second wife, who was a member of the Scheduled Caste. On facts two concurring judgments, negativing the claim of the elected candidate was handed down. The majority judgment of two Judges found the claim of second marriage to be not established on facts. In the concurring judgment of the third Judge, the claim was negatived, by applying the test of acceptance by the community, which was held to be not proved. The third Judge also held so:
"27. The caste system in India is ingrained in the Indian mind. A person, in the absence of any statutory law, would inherit his caste from his father and not his mother even in a case of inter-caste marriage".
This was found to be an incorrect proposition and was held to be not a binding precedent in Rameshbhai (supra).
(iv) Anjan Kumar (supra) also considered the status of a child born to a forward caste father and a Scheduled Tribe mother. The Schedule Tribe status was denied on the finding of fact that the offspring was brought up in the environment of the forward WP(C).19867 of 2013 - 11 -
caste community and did not suffer from any disability. After discussing the above referred judgments, Rameshbhai (supra) held so:
"It is, thus, clear that it is wrong and incorrect to read Valsamma, Punit Rai and Anjan Kumar as laying down the rule that in an inter-caste marriage or a marriage between a tribal and a non-tribal, the child must always be deemed to take his/her caste from the father regardless of the attending facts and circumstances of each case".
9. The proposition laid down in Valsamma (supra) regarding the woman taking the caste of her husband was differed from on two counts. For one, the reliance placed on the two Privy Council decisions rendered to safeguard the rights of Hindu widows was held to be in a totally different social and historical milieu which was contextually not applicable in the post-constitutional, independent India. The obvious incongruity in applying customary Hindu law to decide the status of a woman in an inter-caste marriage and on facts; in the case of a Christian woman marrying a backward Christian man, was also noticed. Without leaving any room for confusion, it was held so in Rameshbhai (supra):
WP(C).19867 of 2013 - 12 -
"In an inter-caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled Caste/Scheduled Tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated as a member of the community to which her mother belonged not only by that community but by the people outside the community as well".
10. Hence, going by the binding precedent, there cannot be any irrebuttable presumption that the child in all circumstances takes the caste of the father. Though it has to be acknowledged that such presumption would be stronger in the case of inter-caste marriages (Rameshbhai), even going by the declaration of the Supreme Court, by no means, such presumption is conclusive or irrebuttable. In fact, such a finding was entered in WP(C).19867 of 2013 - 13 -
the context of an inter-caste marriage between a tribal and a non-tribal, where the husband was from a forward caste. In such circumstance, even though the presumption of the offspring taking the forward caste of the father was recognized, the same was held to be a rebuttable presumption; entitling the offspring to prove and establish that in fact he/she was brought up by the mother, who belonged to the Scheduled Caste/Scheduled Tribe. The offspring could prove by way of evidence that despite being the son of a forward caste father, he had not benefited or enjoyed the advantages of such birth, but had on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged.
11. In the present case, this Court has to look into a contrary situation where the petitioner's father, admittedly, belongs to the Scheduled Caste community of "Pulaya". There, definitely, is a presumption but, however, rebuttable. A rebuttable presumption applies both ways and the entitlement to rebut is conferred on both parties. In the context of the applicability of reservation being the dispute, the parties to the dispute as also the lis are the person who claims reservation and the State which is duty bound to ensure reservation only to genuine persons; as is provided under WP(C).19867 of 2013 - 14 -
the Constitution of India. It is in this backdrop that the petitioner's individual case has to be examined.
12. The petitioner would contend that the genuineness of Exhibit P3 certificate can only be assailed on an allegation of fraud. Undisputedly there is no question of fraud having been committed by the petitioner or her father, asserts the learned counsel. Exhibit P3 also has been issued by the competent authority under Section 6 of Act 11/1996. Exhibit P3 does not have a conclusive nature as is contended by the petitioner. Going by the provisions of Act 11/1996, an application for Community Certificate is to be made under Section 4, which entitles any person belonging to any of the Scheduled Caste or Scheduled Tribe to make an application for issuance of Community Certificate in order to prove his claim of such membership in a Scheduled Caste or Scheduled Tribe. Section 5 authorises the issuance of a Community Certificate by the Competent Authority, who has been defined under clause (d) of Section 2 of Act 11/1996 as an officer or authority authorised by the Government by notification to perform such functions. S.R.O.No.310/2002 has been issued in exercise of the powers conferred under Section 27 of Act 11/1996, by which Rules have been framed for the issuance of Community WP(C).19867 of 2013 - 15 -
Certificates. The Screening Committee, for verification of the Community Certificates, and the Scrutiny Committee also have been constituted by the above Rules. The issuance of a Community Certificate is not in any manner conclusive proof of the community status of the beneficiary of the certificate, since Section 5 does not make it so conclusive and the Act, as per the preceding provisions, contemplate the constitution of a Screening Committee for verification of the Community Certificates so issued and also a Scrutiny Committee for further verification of the Community Certificates issued. This Court cannot confer any conclusiveness on Exhibit P3 Community Certificate over and above that has been conferred on it by the enactment under which the certificate has been issued.
13. The contention of the petitioner is that a Screening Committee cannot go behind Exhibit P3 order to make a roving enquiry of the caste status of the petitioner, as is declared in Dayaram and Ayaaubkhan Noorkhan Pathan (both supra). To further advance the contention of the petitioner, a challenge is also raised against sub-section (2) of Section 6. Dayaram (supra), as was noticed, considered the aftermath of the directions issued in Madhuri Patil (supra) and the sustenance of the same. As was WP(C).19867 of 2013 - 16 -
specifically noticed in paragraph 23, extracted herein above, the Court clearly distinguished a situation where there existed a legislation governing the field of issuance of caste certificates and found that in such cases where caste certificates are issued under a legislation after a due and proper enquiry, they would not stand for verification by the Scrutiny Committees. It is the Scrutiny Committees brought into effect as per the directions in Madhuri Patil (supra) that was referred to in Dayaram (supra).
14. Ayaaubkhan Noorkhan Pathan (supra) was a case in which a Community Certificate was issued by a Competent Authority and verified by the Scrutiny Committee, both constituted by an enactment of 2001 and the rules framed thereunder. The enactment, as is in the present case, was one brought in following the directions of Madhuri Patil. In a complaint made after about 9 years, the Scrutiny Committee refused to review the certificate, which order was set aside and remitted back to the Committee for fresh disposal. While the Civil Appeal was pending before the Hon'ble Supreme Court, on that Court's directions the Scrutiny Committee considered the issue and cancelled the certificate. Despite the Hon'ble Supreme Court finding that the complainant was not a bona fide person; all the same directed the Scrutiny WP(C).19867 of 2013 - 17 -
Committee to reconsider the matter afresh after affording ample opportunity to the certificate holder, including opportunity to cross-examine the witnesses. The reference to the Scrutiny Committee not having powers to re-examine a valid certificate issued under a valid legislation, is hence the Scrutiny Committee constituted as per the directions in Madhuri Patil, and not a Committee constituted under the legislation itself. The futility of examination, of a valid certificate issued by an authority constituted under a legislation after a proper enquiry; by the Scrutiny Committee appointed as per the Supreme Court directions alone was considered in both the said decisions.
15. Likewise, in State of Kerala also, Act 11/1996 and the Rules framed thereunder provided for issuance of and verification of Scheduled Caste & Tribe Certificates. While Section 5 of the Act provided for issuance of Community Certificate only by the 'Competent Authority'; it provided for the verification of the Community Certificate by the 'Screening Committee' (Section 6) and the Scrutiny Committee (Section 8). Section 7 specifically provided for such verification of certificates issued by the Competent Authority, under the Act and to that end contemplates an enquiry by an Expert Agency (Section 9). The "Expert Agency"
WP(C).19867 of 2013 - 18 -
has been defined in the Act itself as an officer or team of officers belonging to the Anthropological wing of KIRTADS. The report of the Expert Agency has also been conferred with the aura of 'conclusive proof' by sub-section (2) of Section 9.
16. A Division Bench of this Court in W.A.Nos.1523 of 2011 and 1783 of 2011 by judgment dated 11.2.2013, considered a more or less similar question, where the Commissioner for Entrance Examinations referred to KIRTADS, a candidate's claim to Vannan community. Therein, the claim was rejected on the basis of a report of the Vigilance Officer of the KIRTADS. The proposition that the woman takes the caste of her husband was found to be not of universal application and the presumption of the child taking the caste of father in inter-caste marriages was held to be a rebuttable presumption. The clinching factor in so far as a rebuttal, was held to be the establishment by the claimant that he/she suffered the deprivations, disabilities and handicaps of the community in which she claims to be a member to entitle her for the affirmative action of reservation which is intended at getting over the effect of such disabilities. On an examination of the provisions of Act 11/1996, especially the constitution of a Screening Committee (Section 6), the provision for verification of WP(C).19867 of 2013 - 19 -
Community Certificate (Section 7), the constitution of Scrutiny Committee (Section 8), the enquiry by an Expert Agency (Section
9) and Section 10 dealing with "burden of proof"; found the enactment to have brought in various checks to ensure reservation to genuine persons and to eliminate totally instances of fraud on the Constitution.
17. As was noticed above in Ayaaubkhan Noorkhan Pathan (supra) the Caste Certificate issued by the Scrutiny Committee was sought to be cancelled. It was held that when a decision is taken by the Scrutiny Committee in regular course and a certificate issued after due certification; "a very strong material/ evidence is required to rebut the presumption" (sic). The compliance of principles of natural justice in an enquiry for issuance or verification of Caste Certificate was also emphasized.
18. The principles that emerge from the foregoing discussion are the following:
(i) In the case of an offspring of an inter-caste marriage there is a strong presumption that the offspring takes the caste of the father, but, however, all the same a rebuttable presumption.
(ii) Act 11/1996 casts the burden of proof on the claimant and it is for the claimant to establish his/her claim of being WP(C).19867 of 2013 - 20 -
included as a member of the Scheduled Caste/Scheduled Tribe.
(iii) This burden cast on the claimant has to be harmonized with the presumption, stated above, which has been judicially recognized by binding decisions of the Hon'ble Supreme Court. Hence, if the father belongs to a forward community and the claim is based on the mother's caste status, then the claimant has to establish that the claimant was brought up by the mother, within the fold of the Scheduled Caste/Scheduled Tribe to which the mother belongs and prove that the claimant suffered the deprivations, indignities, humilities and handicaps like any other member of his mother's community. If the claimant relies on the caste of his father to substantiate his claim of belonging to a Scheduled Caste/Scheduled Tribe, then on establishing the caste of his father, the claimant discharges the burden cast on him and the presumption takes effect. This presumption, however, is rebuttable by the State or in the present case by the Expert Agency constituted under Art 11/1996.
(iv) The Caste Certificate issued by the Competent Authority is not conclusive as per the provisions of Act 11/1996 and is subject to verification by the Screening Committee and the Scrutiny Committee.
WP(C).19867 of 2013 - 21 -
(v) The report of the Expert Agency is conclusive proof, for or against the Scheduled Caste or Scheduled Tribe claim, unless the same is found contrary by the Scrutiny Committee.
(vi) Though not conclusive when the Competent Authority under the Act has issued a Community Certificate after due process, then to unsettle the claim there should be sufficient cogent material evidence to disprove the claim.
19. In the instant case, undisputedly the petitioner is the offspring of an inter-caste union and both the father and mother were also born in inter-caste marriages. The enquiry of the KIRTADS revealed that the petitioner's father was a Pulaya, having been born to a Pulaya father and a Thiyya mother. The presumption, hence, is applicable in the case of the petitioner, since the petitioner's father undoubtedly belongs to the Pulaya community, which is a scheduled caste. The petitioner's mother, as per the KIRTADS report, is a Thiyya, again born in an inter-caste marriage and it is the finding of the KIRTADS that "the candidate is living in the milieu and circumstances of her mother's community, i.e., Hindu Ezhava and hence is not subjected to the social disabilities of Scheduled Caste Pulayan community" (sic). What has to be essentially looked at is the evidence on record to rebut WP(C).19867 of 2013 - 22 -
the presumption.
20. The burden of proof cast on the claimant by Section 10 of Act 11/1996 does not at all mean that there is a burden on the claimant to establish before each of the authorities that the claimant belongs to a Scheduled Caste/Scheduled Tribe. The hierarchy of the authorities under Act 11/1996 is the "Competent Authority" at the lowest level and then the "Screening Committee" and the "Scrutiny Committee" at the highest level. If a claimant has established before one authority that the claimant belongs to a Scheduled Caste community, then to establish otherwise, the onus is on the State, acting through the Expert Agency. The petitioner before this Court is a person who has been issued Exhibit P3 certificate by the Competent Authority under Act 11/1996. Exhibit P4 establishes the caste of the petitioner's father as a Scheduled Caste, which is accepted by the report of the KIRTADS also. Exhibits P2, P5 and P17 establish that the petitioner and her parents had declared her to be a person brought up in the Pulaya community right from her school days. The petitioner or her parents; before the school authorities, as evidenced by the Admission Registers, declared her as a "Pulaya", the community to which her father belonged. Though the learned WP(C).19867 of 2013 - 23 -
Special Government Pleader relied on G.O.(MS).109/2008/ SCSTDD dated 20.11.2008, to contend that Exhibit P3 certificate was issued without compliance of the said circular, there is nothing on record to evidence that the Competent Authority has issued the certificate without due enquiry. The Expert Agency also has not looked into the aspect of issuance of the Community Certificate by the Competent Authority.
21. The argument raised on behalf of the State is that it was incumbent upon the Competent Authority as per the above referred Government Order to ensure that,
(i) each case shall be examined individually in the light of the existing facts and circumstances;
(ii) the claimant has suffered disabilities-socially, economically and educationally;
(iii) the society has accepted the claimant to their original fold as one among them and is living in the same social tenet".
This Court cannot merely assume that the Competent Authority has issued the certificate without any enquiry and without compliance of the stipulation in the above referred Order. The Caste Certificate issued to the father and the declarations made before the school authorities, disclose that the petitioner's father is WP(C).19867 of 2013 - 24 -
a member of the Pulaya community and the petitioner was also declared to have been brought up within the fold of the said community.
22. The issuance of a Community Certificate by the Competent Authority is not conclusive and the same is verifiable by the Screening Committee, which has to act upon the report of the Expert Agency. The procedure by which the Commissioner for Entrance Examinations referred the matter to the Screening Committee cannot, hence, be faulted. Having referred the matter to the Screening Committee, which in turn called for a report from the Expert Agency, what assumes significance is the report of the Expert Agency, which, by Act 11/1996, is conclusive on the face of it. The Anthropological Report prepared by the Expert Agency at the first instance is produced as Exhibit P14. It draws the paternal and maternal genealogy of the petitioner, which is referred to above. After reference to the genealogical evidence, the petitioner was found to be an offspring of an inter-caste married couple, where the father belonged to the Pulaya community and the mother to the Thiyya community. Having stated that the Government of India has given guidelines regarding the issuance of Scheduled Caste/Scheduled Tribe Community Certificates, it WP(C).19867 of 2013 - 25 -
was stated so in Exhibit P14:
"Admittedly genealogical and ethnographic facts, and field level information reveals that the claimant is away from the milieu and circumstances of Pulayan Community".
The judgment in Madhuri Patil (supra) as also the Government Order referred to above were cited and it was found that the petitioner cannot be treated as a member of the Scheduled Caste Pulaya community. Nothing is disclosed as to what are the ethnographic facts or the field level information which revealed that the claimant is away from the milieu and circumstances of the Pulaya community.
23. It is pertinent that this Court, on the submission of the petitioner that Exhibit P14 report was prepared behind the back of the petitioner, directed the petitioner to present herself before the 7th respondent, who, in turn, was directed to consider the evidence produced by the petitioner. Exhibit P16 was passed pursuant to the said orders. Exhibit P16 is a verbatim re-production of the findings in Exhibit P14. The Expert Agency has in Exhibit P16 quoted a number of judgments of the Supreme Court and this Court, as also the proceedings of the Scrutiny Committee in another case; to again find that the petitioner is not a WP(C).19867 of 2013 - 26 -
member of the Scheduled Caste Pulaya community. Again nothing is forthcoming as to the enquiry conducted by the Expert Agency or the evidence establishing the petitioner as having been brought up as a member of the Thiyya community. The Anthropological Report prepared by the Expert Agency cannot be reduced to a legal desertation, but should contain strong material evidence to unsettle the claim. There is no doubt that ineligible persons should not get the benefit of reservation. But, in conducting an Anthropological study on the caste to which a person belongs, necessarily the finding should be based on cogent material evidences, which can either be documentary or oral depositions of persons of the locality.
24. Absolutely no material is forthcoming either in Exhibit P14 or in Exhibit P16 to substantiate the finding of the Expert Agency that the petitioner has not been brought up as a member of the Scheduled Caste community. Mere assertion that she has been brought up "outside the milieu and circumstances of the Scheduled Caste community", without anything at all to substantiate the same, cannot be relied on to unsettle the claim of a candidate who was issued with a Community Certificate by the Competent Authority under Act 11/1996. The petitioner's father, WP(C).19867 of 2013 - 27 -
despite himself being the offspring of an inter-caste marriage, is found to be a person who is entitled to reservation as a Scheduled Caste "Pulaya". The petitioner's father being a member of a Scheduled Caste, necessarily the petitioner is entitled to the presumption that she also belongs to the community of her father. The petitioner, by way of the said presumption evident from the caste certificate of the father and by virtue of her own school records, had established before the Competent Authority that she is entitled to Exhibit P3 Community Certificate. Definitely the presumption is rebuttable. The Expert Agency to rebut the said presumption, ought to have unearthed sufficient material evidence in the enquiry conducted by itself and ought to have confronted the petitioner with such evidence before arriving at such a finding.
25. When a report was made behind the back of the petitioner, the petitioner was directed to appear before the 7th respondent on 03.10.2013 and Exhibit P16 report is issued on 07.10.2013. The report does not at all refer to any of the documents produced by the petitioner, being her school records or any enquiry having been conducted with respect to such records. In the context of there being absolutely no evidence relied on by the Expert Agency to rebut the presumption available to the WP(C).19867 of 2013 - 28 -
petitioner, this Court is of the opinion that the reports of the Expert Agency, Exhibits P14 and P16, are not liable to be sustained.
26. In the above circumstances, Exhibits P14 and P16 are set aside and as a consequence, the order of the 2nd respondent withholding the result of the petitioner is also liable to be set aside. The petitioner is declared to be eligible to the status of a Scheduled Caste candidate, entitled to reservation, as is evidenced by Exhibit P3 Community Certificate. The petitioner shall be, if she is ranked sufficiently high and found to be entitled to the seat reserved as per the interim orders of this Court, granted the allotment to the Bachelor of Physiotherapy course.
The writ petition is allowed. No costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
( true copy )