High Court of KeralaSingle JudgeWrit petitions allowed. Reports of the Vigilanc...

Adwaith G. v. State of Kerala and Others

Case / Petition Number:WP(C).No.18861 of 2019; WP(C).No.19079 of 2019

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Shaji P. Chaly
Judgment Date
2019-07-17
Court Decision / Holding
The writ petitions are allowed. The vigilance report of KIRTADS and the Screening Committee’s orders are quashed. The Commissioner of Entrance Examinations is directed to consider the petitioners’ applications in the ST category at the earliest possible time, in accordance with law. The judgment clarifies that the issue of challenging the KIRTADS report or Screening Committee order before the Scrutiny Committee remains open for consideration in an appropriately constituted case.
Final Disposition
Writ petitions allowed. Reports of the Vigilance Officer of KIRTADS and the Screening Committee are quashed. Directions issued to consider the applicants in ST category at the earliest, in accordance with law. The question of challenging KIRTADS report before Scrutiny Committee remains open for appropriately constituted cases.

Parties to the Case

Appellants / Petitioners

  • Adwaith G.

Respondents

  • State of Kerala
  • Kerala Institute for Research Training and Development Studies of Scheduled Castes and Scheduled Tribes (KIRTADS)
  • Commissioner for Entrance Examinations

Legal Representation & Advocates

Counsels for Petitioners

  • • Mathew A. Kuzhalanadan
  • • Aparna Sathianathan
  • • Kuriakose Varghese
  • • Sudeep Aravind Panicker

Counsels for Respondents

  • • K.V. Prakasaran (Special Government Pleader)

Case Synopsis & Summary

The captioned two connected writ petitions challenge the decision of the Screening Committee and the KIRTADS report denying the petitioner a Scheduled Tribe (ST) category seat for medical admission in Kerala. The petitioner, Adwaith G., claims membership of Hindu-Kanikkaran, an ST community, and relies on Ext.P1–P6 documents and school records suggesting ST affiliation, while KIRTADS’ Vigilance report (Ext.P4) concludes she is not ST on the ground that her mother belongs to Ezhava. The Screening Committee, under the Act 11/1996 and subsequent regulations, rejected the claim (Ext.P6). The petitioner alleges arbitrariness, lack of due process, and denial of copies of documents relied upon, contending natural justice was violated. The respondents argue that the evidence collected by KIRTADS, the expert agency under Act 11/1996, supports a conclusion that the petitioner was brought up in her mother’s non-ST lineage, and that the petitioner had opportunity to approach the Screening Committee and Scrutiny Committee per the Act and Rules. The court held that the KIRTADS report and Screening Committee order were arbitrary and deprived the petitioner of fair opportunity to rebut materials. It quashed those reports, directing the Commissioner of Entrance Examinations to consider the petitioner in the ST category expeditiously, while reserving leave to challenge the reports before the Scrutiny Committee in appropriate cases. The petitions are allowed.

Provisions of Law Cited

Kerala (Scheduled Castes & Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (Act 11/1996)G.O.(Ms.) No.109/2008/SCSTDD dated 20.11.2008Section 5 of Act 11/1996Section 6 of Act 11/1996Section 7 of Act 11/1996Section 8 of Act 11/1996Section 9 of Act 11/1996Section 10 of Act 11/1996

Legal Doctrines & Maxims

  • Presumption that offspring of an inter-caste marriage takes the caste of the father, which is rebuttable
  • Burden of proof on the claimant to establish inclusion in a Scheduled Caste/Scheduled Tribe under Act 11/1996
  • Caste certificates issued by the Competent Authority are not conclusive and are subject to verification by Screening and Scrutiny Committees
  • Expert Agency report under Act 11/1996 is conclusive proof unless rebutted by the Scrutiny Committee
  • Badge of natural justice: a claimant must be given reasonable opportunity and the materials relied upon must be confronted with the claimant
  • Madhuri Patil principles guiding scrutiny and verification of caste certificates; curricula for re-verification under statutory schemes

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that Ext.P4 report and Ext.P6 order are arbitrary and illegal, having been prepared behind the petitioner’s back and without affording a fair opportunity to rebut the materials. They argue that crucial documents (e.g., school admission records and family certificates) were not considered, and relevant materials were not furnished for scrutiny. They rely on Lavya A. and Madhuri Patil line of authorities to insist that natural justice requires fair hearing and disclosure of materials relied upon by KIRTADS and the Screening Committee. The petitioner submits that her father’s caste, as alleged, and the school records showing ST affiliation should govern, and that certificates were issued legitimately in her father’s lineage; hence, a proper application under the Act 11/1996 should be considered in the ST category.

Contentions of Respondents

The respondents contend that the evidence collected by KIRTADS shows the petitioner was brought up in her mother's non-ST community and that certificates issued to family members, along with official records, indicate non-ST status for the petitioner. They emphasize that the Act 11/1996 prescribes a verification regime (Sections 5–10) with an Expert Agency (KIRTADS) and Screening and Scrutiny Committees, and that the petitioner had avenues to challenge the process. They argue that the materials were properly used to determine eligibility, and the law requires verification before the ultimate certification decision. They rely on Lavya A. (supra) and Dayaram and Ayaaubkhan Pathan to justify the verification framework and the need for due process, while noting that the petitioner can reappear for consideration under the statutory scheme.”},

Cited Precedents (9)

Case NameCitationTreatmentExplanation
Lavya A. v. Director of Medical Education, Thiruvananthapuram and Others2014 (1) KHC 290Mentioned OnlyCited to illustrate principles related to caste verification and certificate credibility, as discussed in para 11.
Convenor, Screening Committee and Controller of Entrance Examinations v. Lavya2017 (1) KLT 171Mentioned OnlyAffirmation of Lavya's principles; referenced in context of screening and verification process.
Kodikunnil Suresh v. N. Saji Kumar2011 KHC 4498; 2011 (6) SCC 430; ILR 2011 (2) Ker. 515; 2011 (2) KLT 721PositiveSchool records and authoritative documents can inform caste status as part of the verification process.
DayaramDayaram (supra)DistinguishedCourt distinguished Dayaram’s approach given the statutory framework and enactments in issue.
Ayaaubkhan Noorkhan PathanAyaaubkhan Noorkhan Pathan (supra)Partly Overruled / LimitedDiscussed in context of certificate verification and the scope of Scrutiny Committee's powers under Madhuri Patil directions.
Madhuri Patil v. State of Maharashtra(Supra)PositiveEstablished framework for verification and the role of Scrutiny Committee under Madhuri Patil directions.
State of Kerala v. Amal Krishnan2019 (3) KLT 90PositiveAddressed lineage and parental/ maternal lineage considerations in caste status determinations.
WA Nos.1523 of 2011 and 1783 of 2011(WA Nos.1523/2011 and 1783/2011)PositiveDiscussed the approach to caste status and verification in similar contexts.
Kodikunnil Suresh v. N. Saji Kumar2011 KHC 4498; 2011 (6) SCC 430PositiveCited for the authority of school records in caste determinations.

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Extracted Judgment Text

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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** ## **WP(C).No.18861 of 2019** ## **PETITIONER/S:** **ADWAITHA G., AGED 19 YEARS D/O. GIREESH KUMAR G., KULANGAREDATHU HOUSE, RANDAR P.O., MOOVATTUPUZHA, ERNAKULAM - 686673.** **BY ADVS.** **SRI.MATHEW A KUZHALANADAN KUM.APARNA SATHIANATHAN SHRI.KURIAKOSE VARGHESE SRI.SUDEEP ARAVIND PANICKER** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM, KERALA - 695001.** - **2 THE KERALA INSTITUTE FOR RESEARCH TRAINING AND DEVELOPMENT STUDIES OF SCHEDULES CASTE AND SCHEDULED TRIBES (KIRTADS), REPRESENTED BY ITS DIRECTOR, CHEVAYUR, KOZHIKODE - 673017.** - **3 COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM, KERALA - 695001.** **BY SRI.K.V.PRAKASAN, SPECIAL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.07.2019, ALONG WITH W.P.(C) NO.19079/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.18861 & 19079 of 2019 2 ## **JUDGMENT** The captioned writ petitions are materially connected in respect of the reports submitted by the Kerala Institute for Research Training and Development Studies of Scheduled Castes & Scheduled Tribes (KIRTADS), and the consequential orders passed by the Screening Committee in the matter of Medical admission. Therefore, I heard them together and propose to deliver this common judgment. The facts and documents available in W.P.(C) No.19079 of 2019 are relied upon for the disposal of the writ petitions. 2. Brief material facts for the disposal of the writ petition are as follows: 3. In response to the Prospectus issued by the 2[nd] respondent i.e., the Commissioner for Entrance Examinations, petitioner applied for admission to Medical Courses in the Institutions in Kerala. Petitioner belongs to Hindu-Kanikkar community, which is a Scheduled Tribe community. Ext.P1 is the community certificate issued by the Tahsildar. However, on a reference made by the 3[rd] respondent, i.e., the Screening Committee attached to the Office of the Commissioner for Entrance Examinations constituted under the provisions of the Kerala (Scheduled Castes & W.P.(C) Nos.18861 & 19079 of 2019 3 Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (hereinafter called, 'the Act, 1996'), the 5[th] respondent, Vigilance Officer of KIRTADS submitted Ext.P4 report stating that the petitioner is not eligible for the benefit of reservation. In the report, it is stated that, petitioner's mother is a member of Ezhava community, and on the basis of Ext.P4 report, the Screening Committee passed Ext.P6 order rejecting the Scheduled Tribe claim raised by the petitioner. 4. The thrust of the contention advanced by the petitioner is that, Ext.P4 report and Ext.P6 order are arbitrary and illegal, since the report as well as the order are passed without taking into account any of the documents placed by the petitioner and without providing the copies of any documents secured by the Screening Committee and the KIRTADS during enquiry, and therefore, the report and the order are passed behind the back of the petitioner, and is absolutely in violation of the principles of natural justice. That apart, it is submitted that, the crucial documents like extract of School Admission Register, community certificate issued to the sister of the petitioner etc. are not at all taken into account. It is also the case W.P.(C) Nos.18861 & 19079 of 2019 4 of the petitioner that, petitioner's father is a member of the Hindu-Kanikkaran community, and his brothers are also members of Hindu-Kanikkaran, as could be seen from Exts.P9 and P10. In Exts.P11 and P12 School Admission Register of the petitioner and her sister, their community was shown as Hindu-Kanikkar. That apart, petitioner's sister was issued with Exts.P13 and P14 community certificates. 5. So also, Ext.P15 is the allotment memo for MBBS admission to the sister of the petitioner in Scheduled Tribe category. Therefore, the findings rendered in Ext.P4 report and Ext.P6 order that the petitioner is a member of Ezhava community are perverse and irrational. So also it is pointed out that, the materials relied upon by the Vigilance Cell of KIRTADS were not furnished to the petitioner and was not given a fair and reasonable opportunity to rebut the materials adverse to her. It is also the contention of the petitioner that, none of the findings rendered in the report as well as in the order are acceptable to the petitioner, since the petitioner was brought up in the community of her father and that community has accepted the petitioner as a member of the HinduKanikkar community. Therefore, according to the W.P.(C) Nos.18861 & 19079 of 2019 5 petitioner, interference is required in Ext.P4 report and Ext.P6 order passed by the Screening Committee. 6. Petitioner has also placed reliance on the judgment rendered by a learned Single Judge of this Court in ' _**Lavya A. v. Director of Medical Education, Thiruvananthapuram and Others**_ ' [2014 (1) KHC 290], which is affirmed by the Division Bench in ' _**Convenor,**_ _**Screening Committee and Controller of Entrance**_ _**Examinations v. Lavya**_ ' [2017 (1) KLT 171]. 7. Similar is the facts and circumstances contained in the connected writ petition, wherein, petitioner claims to be a member of 'Ulladan' community, which is a Scheduled Tribe. Therein also, the Vigilance Cell of KIRTADS has submitted Ext.P5 report and based on which, the Screening Committee has passed Ext.P15(a) order dated 04.07.2019, declining admission to the petitioner in the Scheduled Tribe quota. In the said writ petition also, it is submitted that, certificates are issued to the father of the petitioner as Hindu-Ulladan and in the School records also, her community is shown as 'Ulladan'. Certificates are issued by the revenue authorities to the members of the family of the father of the petitioner, showing their caste as 'Ulladan'. There W.P.(C) Nos.18861 & 19079 of 2019 6 also, it is contended that, the documents and the circumstances relied upon by the enquiry officer as well as the Screening Committee were not provided to the petitioner, enabling the petitioner to contest the proceedings in an efficient and required manner. 8. Separate statements are filed for and on behalf of the 3[rd] respondent, wherein the stand adopted by the enquiry officer and the Screening Committee is justified. According to the 3[rd] respondent, the evidence collected by KIRTADS as part of the investigation in the light of G.O.(MS) No.109/2008/SCSTDD dated 20.11.2008 shows that petitioners are brought up as members of the mother's community. It is also pointed out that, other members of the families are also belonging to other/different communities, which are not having the status of Scheduled Tribe. 9. It is also contended that, so far as the petitioner in W.P.(C) No.19079 of 2019 is concerned, she was brought up as a Hindu-Ezhava community member from her early childhood, since her mother belongs to the said community, and in the connected writ petition, the petitioner was brought up as a member of the 'Vala' community, to which her mother belongs. It is also W.P.(C) Nos.18861 & 19079 of 2019 7 pointed out that, it is the duty of the petitioners to prove that they are belonging to Scheduled Tribe community in accordance with the provisions of Act, 1996, and since the petitioners have not produced any enabling documents, the orders passed by the Screening Committee as well as the reports drawn by the KIRTADS are in accordance with law. That apart, it is pointed out that, petitioners are entitled to file suitable application before the Screening Committee in accordance with the provisions of Act, 1996 and the Rules, 2002. 10. I have heard Sri. T.B.Hood and Sri. Mathew A. Kuzhalanadan, learned counsel appearing for the petitioners and Sri. K.V. Prakasan, learned Special Government Pleader appearing for the respondents, and perused the pleadings and the documents on record. 11. The paramount contention advanced by learned counsel for the petitioners is relying upon the judgment in ' _**Lavya A.'**_ ( _supra_ ), wherein a typical issue was considered, and paragraph 5 of the said judgment is relevant to the context, which read thus: “ _**5** . The petitioner has been shown as belonging to the Religion and Caste "Hindu, Pulaya" in her Secondary School Leaving Certificate (Ext. P2), the extract of the Upper Primary School Admission Register (Ext. P5) and the extract of the Admission Register of the High_ W.P.(C) Nos.18861 & 19079 of 2019 8 _School (Ext. P17). The caste status of the petitioner's father is evidenced by Ext. 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 Ext. P3 certificate issued under Act 11/1996. Ext. 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 Ext. 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 Ext. 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 KHC 4498 : 2011 (6) SCC 430 : ILR 2011 (2)Ker. 515 : 2011 (2) KLT 721. The petitioner again relies on Dayaram (supra) and Ayaaubkhan 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 Ext. P3 Community Certificate is issued by a Competent Authority as provided under Act 11/1996”._ 12. After taking into account the principles of law laid down by the apex court in its various judgments, the learned Single Judge has rendered the findings in paragraphs 13 to 21, which read thus: _**13** . The contention of the petitioner is that a Screening Committee cannot go behind Ext. 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 S.6. Dayaram (supra), as was noticed, considered the aftermath of the directions issued in Madhuri Patil (supra) and_ W.P.(C) Nos.18861 & 19079 of 2019 9 _the sustenance of the same. As was 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 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 S.5 of the Act_ W.P.(C) Nos.18861 & 19079 of 2019 10 _provided for issuance of Community Certificate only by the 'Competent Authority'; it provided for the verification of the Community Certificate by the 'Screening Committee' (S.6) and the Scrutiny Committee (S.8). S.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 (S.9). The "Expert Agency" 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 S.9._ _**16** . A Division Bench of this Court in WA Nos. 1523 of 2011 and 1783 of 2011 by judgment dated 11/02/2013, 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 insofar 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 (S.6), the provision for verification of Community Certificate (S.7), the constitution of Scrutiny Committee (S.8), the enquiry by an Expert Agency (S.9) and S.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_ W.P.(C) Nos.18861 & 19079 of 2019 11 _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 emphasised._ _**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 included as a member of the Scheduled Caste / Scheduled Tribe._ _(iii) This burden cast on the claimant has to be harmonised with the presumption, stated above, which has been judicially recognised 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 Act 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._ _(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_ W.P.(C) Nos.18861 & 19079 of 2019 12 _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 the presumption._ _**20** . The burden of proof cast on the claimant by S.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 Ext. P3 certificate by the Competent Authority under Act 11/1996. Ext. P4 establishes the caste of the petitioner's father as a Scheduled Caste, which is accepted by the report of the KIRTADS also. Exts. 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_ W.P.(C) Nos.18861 & 19079 of 2019 13 _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 Special Government Pleader relied on GO (Ms.) 109/2008 / SCSTDD dated 20/11/2008, to contend that Ext. 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 a member of the Pulaya community and the petitioner was also declared to have been brought up within the fold of the said community”._ 13. After appreciating the said circumstances, it was noted by the learned Single Judge that the report was prepared behind the back of the petitioner and even though an opportunity was provided for appearance ## W.P.(C) Nos.18861 & 19079 of 2019 14 before the Screening Committee, none of the factual circumstances as well as documentary evidence collected, if any, by the Vigilance Officer of the KIRTADS or the Screening Committee was provided to the petitioners and, therefore, since the circumstances and the documents unearthed by the KIRTADS as well as the Screening Committee were not confronted with the petitioner, the findings rendered by the authorities cannot be sustained under law. 14. So also, in the judgment in ' _**State of Kerala**_ _**v. Amal Krishnan**_ ' [2019 (3) KLT 90], a Division Bench of this Court had occasion to consider the manner in which the lineage is to be followed, and held that, normally the lineage for a family member belonging to the Scheduled Caste/Scheduled Tribe will be through the father, and if he marries a woman of another caste/community, the woman usually embraces the caste/community of her husband and not _vice versa_ . The same is the situation in these cases also. The father's lineage is overlooked by the KIRTADS as well as the Screening Committee. Therefore, unless and until there is reliable evidence to hold otherwise, petitioners can only be treated as belonging to Scheduled Tribe. W.P.(C) Nos.18861 & 19079 of 2019 15 15. In my considered opinion, similar and typical is the situation arisen in these cases also. Petitioners have produced various documents issued by the revenue as well as the educational authorities showing the caste of the petitioners as Scheduled Tribe and the members of the family were also issued with such certificates and documents by the authorities. The manner in which the certificates are to be issued by the statutory authority, i.e., the Tahsildar is prescribed under Act, 1996, and when such certificates are issued to the respective parties, it can only be legally presumed that those certificates were issued after conducting due enquiries in contemplation of law. However, it is never reflected either in the report of KIRTADS or in the order of the Screening Committee, how the certificates issued by the revenue as well as educational authorities are illegal or otherwise bad. It is also clear from the documents produced by the petitioners that they were enjoying the status of Scheduled Tribe on the basis of the certificates issued, and therefore, unless and until clinching, appropriate and reliable evidences are available, it cannot be said that they are not entitled to the benefits of Scheduled Tribe. W.P.(C) Nos.18861 & 19079 of 2019 16 16. Even though learned Special Government Pleader submitted that, the enquiry and the order is dependent on various factual circumstances, and since petitioners have got a remedy to approach the Scrutiny Committee, I am of the considered opinion that, basically the report of KIRTADS and the order of the Screening Committee suffers from the vice of arbitrariness and illegality, having not provided with sufficient opportunity to the petitioners to contest the proceedings before the Vigilance Officer of KIRTADS as well as the Screening Committee. 17. In that view of the matter, the respective reports of the Vigilance Officer of KIRTADS and the orders of the Scrutiny Committee concerning the petitioners are quashed, and there will be a direction to the Commissioner of Entrance Examinations to consider the application submitted by the petitioners in the category of Scheduled Tribe, at the earliest possible time, and in accordance with law. However, I make it clear that the question as to whether the report of the KIRTADS as well as the order of the Screening Committee can be challenged before the Scrutiny Committee is left open to be considered in an appropriately constituted case. W.P.(C) Nos.18861 & 19079 of 2019 17 The writ petitions are allowed accordingly. **Sd/SHAJI P.CHALY JUDGE** St/19.07.2019 W.P.(C) Nos.18861 & 19079 of 2019 18 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SCORE CARD FOR NEET RELEASED ON 05.06.2019.** **EXHIBIT P2 TRUE COPY OF THE COMMUNITY CERTIFICATE ISSUED TO THE PETITIONER BY THE MUVATTUPUZHA TALUK OFFICE DATED 15.02.2018.** - **EXHIBIT P2 (a) TRUE COPY OF THE CERTIFICATE ISSUED BY THE HEAD MISTRESS OF THE PETITIONER'S SCHOOL.** - **EXHIBIT P3 TRUE COPY OF THE CONFIRMATION PAGE OF THE ONLINE APPLICATION FORM FOR ST CATEGORY OF THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE GO (MS) NO.25/2005/SCSTDD DATED 20.06.2005.** - **EXHIBIT P5 TRUE COPY OF THE ANTHROPOLOGICAL REPORT ISSUED BY THE 2ND RESPONDENT, DATED 28.06.2019.** - **EXHIBIT P6 TRUE COPY OF THE EXTRACT OF ADMISSION REGISTER OF MR. GIREESH KUMAR, BEARING ADMISSION NUMBER 6675.** - **EXHIBIT P7 TRUE COPY OF THE CERTIFICATE ISSUED BY ST. AUGUSTINE'S HIGH SCHOOL, KALLOORKAD, MUVATTUPUZHA IN THE NAME OF GOPALAKRISHANAN K.** - **EXHIBIT P8 TRUE COPY OF EXTRACT OF ADMISSION REGISTER OF ST. AUGUSTINE'S HIGHER SECONDARY SCHOOL IN THE NAME OF LEELA M.R.** - **EXHIBIT P9 TRUE COPY OF THE SCHOOL LEAVING CERTIFICATE ISSUED BY THE HEADMASTER, ENGLISH HIGH SCHOOL, POONJAR IN THE NAME OF KARTHIAYANI N.** - **EXHIBIT P10 TRUE COPY OF THE CASTE CERTIFICATE IN THE NAME OF RAMANKUTTY K.R. ISSUED BY TALUK OFFICE DATED 04.01.2002.** **EXHIBIT P10 (a) TRUE COPY OF CERTIFICATE ISSUED BY TALUK OFFICE DATED 24.12.2001, STATING THAT RAMAN IS AN ALIAS NAME OF RAMANKUTTY.** W.P.(C) Nos.18861 & 19079 of 2019 19 |**EXHIBIT P11**|**TRUE COPY OF THE SCHOOL ADMISSION**| |---|---| ||**CERTIFICATE OF THULASY K.R., DATED**| ||**30.03.1990.**| |**EXHIBIT P11(a)**|**TRUE COPY OF THE SSLC CERTIFICATE ISSUED TO**| ||**VIJAYAN K.K. BY THE K R B P SECONDARY**| ||**SCHOOL, ADIMALI, DATED 24.03.1983.**| |**EXHIBIT P12**|**TRUE COPY PHOTOGRAPH OF THE 'CHOORUNU'**| ||**CEREMONY OF THE PETITIONER.**| |**EXHIBIT P13**|**TRUE COPY OF THE AFFIDAVIT ISSUED BY THE**| ||**KERALA ULLADA MAHASABHA DATED 12.05.2019.**| |**EXHIBIT P13(a)**|**TRUE COPY OF THE AFFIDAVIT SWORN BY THE**| ||**PRESIDENT OF THE ULLADA MAHASABHA, P.A.**| ||**MOHANAN.**| |**EXHIBIT P14**|**TRUE COPY OF THE GO(MS) NO.109/SCSTDD**| ||**ISSUED BY THE SCHEDULED CASTE AND SCHEDULED**| ||**TRIBE DEVELOPMENT DEPARTMENT, DATED**| ||**20.11.2008.**| |**EXHIBIT P15**|**TRUE COPY OF THE LETTER FROM THE 3RD**| ||**RESPONDENT NUMBERED B3.1112/2019/CEE DATED**| ||**29.06.2019.**| |**EXHIBIT P15(a)**|**TRUE COPY OF THE ORDER NO.B3-1112/2019(63),**| ||**DATED 04.07.2019 ISSUED BY THE 3RD**| ||**RESPONDENT TO THE PETITIONER.**| |**EXHIBIT P16**|**A SCREEN SHOT OF THE OFFICIAL WEBSITE OF**| ||**3RD RESPONDENT INFORMING REJECTION OF THE**| ||**APPLICATION OF THE PETITIONER.**| |**EXHIBIT P17**|**TRUE COPY OF THE LETTER DATED 07.07.2019**| ||**FROM THE PETITIONER TO THE PRINCIPAL**| ||**SECRETARY, SC/ST DEVELOPMENT.**| ## **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P.S. TO JUDGE** **St/-**