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O.P. No. 11925 of 1998

1. The petitioner who got employment under the Government as a member of the Scheduled Tribe is now told by the competent authority by Ext. P50 order that he is not a member of the Scheduled Tribe and therefore he should quit the post and refund the salary received by him. Aggrieved by the same, the petitioner has filed this Original Petition. The brief facts necessary for the disposal of the case are the following.

2. The Public Service Commission by Ext. P1 notification dated 30.8.1983 invited applications for appointment to the post of Under Secretary in the Finance Department in the Government Secretariat. It was a special recruitment for the members of the Scheduled Caste/Scheduled Tribe. The petitioner was duly qualified for appointment to the post and he applied for the post as a member of the Scheduled Tribe. He was selected and advised by the Public Service Commission as per Ext. P2 advice memo dated 29.3.1985 and the Government as per Ext. P3 order dated 29.4.1985 appointed him as Under Secretary in the Finance Department. Ext. P22 dated 11.4.1984 is the caste certificate issued by the Tahsildar, Ranni, certifying that the petitioner belongs to Hindu Uraly which is a Scheduled Tribe. At the relevant time the Tahsildar was one of the competent authorities authorised to issue community certificates. The petitioner completed his probation in the post of Under Secretary and in due course he has been further promoted, and from 1993 he is working as Additional Secretary in the Finance Department.

3. While so, in the year 1995, the petitioner was served with Ext. P4 notice dated 30.10.1995 by the Vigilance Officer of the KIRTADS, calling upon him to attend an enquiry on 15.11.1995. The enquiry related to the caste status of the petitioner. After one or two adjournments, the petitioner appeared for the enquiry held on 5.1.1996. He gave the information sought from him and also filled up and submitted Ext. P5 questionnaire. Later, the petitioner was served with Ext. P6 notice dated 31.1.1997 issued by the Chairman of the Scrutiny Committee for verification of SC/ST claims, constituted under Ext. P51 Government Order dated 8.5.1995. The allegation in Ext. P6 was that the petitioner has made false claim that he is a member of Uraly (Scheduled Tribe) community. The proposed action in the notice was to cancel the Scheduled Tribe certificate wrongfully secured, by the petitioner and to take consequential action. Along with Ext. P6 notice Ext. P7 report of the Vigilance Officer of the KIRTADS dated 11.9.1996 was also served on the petitioner.

4. The petitioner submitted Ext. P8 reply to the show-cause notice. He also submitted documents to substantiate his claim that he is a member of the Uraly (Scheduled Tribe) community. Thereafter, the Scrutiny Committee heard the petitioner. At the time of hearing he submitted Ext. P15 explanation and further documents to substantiate his claim. The petitioner was given the hearing on 14.10.1997. He appeared along with his counsel and explained his contentions. It was emphasised that Ext. P7 was prepared on the basis of hearsay and the same should not be relied upon without giving him a chance to challenge the statements of the persons relied on by the Vigilance Officer in Ext. P7.

15. In the case at hand, the petitioner has been admitted in Standard I by his parents in Kattachira Tribal School with his caste as Malay Uraly. The petitioners' parents were residing in the Tribal colony. Both of them underwent training in a Craft Training Centre for Tribals and they were admitted in the Centre as persons belonging to Uraly (Scheduled Tribe) community. This will be evident from Ext. P9. So, the petitioners' parents even at their young age were claiming that they belong to Uraly (Scheduled Tribe) community. The petitioner was admitted by them in the school when he was a minor aged about 5 years. According to the official respondents, the petitioner's grandfather was a headman of Kuravas, locally known as 'Uraly' and he started making the alleged false claim of being a member of the Uraly Scheduled Tribe. It is also alleged that he used his residence in the tribal settlement as a ground for putting forward his claim. The alleged sin dates back to the days of petitioner's grandfather. So, admittedly, the petitioner's claim was not something invented by him. The religion or caste of a child is what he is told by his parents. He has no free choice in that. Since his school records including the SSLC book showed that he is Malay Uraly, he applied for the post of Under Secretary as one belonging to the Scheduled Tribe. Since Malay Uraly was treated as Uraly, the competent authority (the Tahsildar) issued Ext. P22 certificate. A person like the petitioner who applies for a post in the public service cannot go to the KIRTADS and request them to make a genealogical study and tell him the correctness of his caste claim and thereafter submit an application for employment relying on such a certificate. The petitioner has done what any other candidate would do, ie., he relied on the caste status mentioned in the school records and in the certificate issued by the competent authority. So, he cannot be accused of having done anything "fraudulently". Ext. P52 Act, it appears, is not meant to deal with every mistaken claim of caste, especially made by a member of the SC/ST.