Amal Krishnan C.V & Vivekanandan C.A. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY ,THE 17TH DAY OF JANUARY 2019 / 27TH POUSHA, 1940** ## **WP(C).No. 28199 of 2018** ## **PETITIONER/S:** **1 AMAL KRISHNAN C.V AGED 18, S/O. VIVEKANANDAN C.A., RESIDING AT ' SOUPARNIKA ', VELIYAMCODE GRAMAM POST, VIA VELIYAMCODE, PONANI TALUK, MALAPPURAM DISTRICT 679579** **2 VIVEKANANDAN C.A., AGED 52 YEARS S/O.ARUMUGHAN, RESIDING AT ' SOUPARNIKA ', VELIYAMCODE GRAMAM POST, VIA VELIYAMCODE, PONANI TALUK, MALAPPURAM DISTRICT, PIN- 679579** **BY ADVS. SRI.R.RAMADAS T. SIVADASAN** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, SCHEDULED CASTE/SCHEDULED TRIBE (G) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** - **2 THE CHAIRMAN SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES, SCHEDULED CASTE/SCHEDULED TRIBE (G) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001.** - **3 THE COMMISSIONER OF ENTRANCE EXAMINATION HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN- 695001.** - **4 THE CONVENER, SCREENING COMMITTEE, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATIONS, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN- 695001.** 2 _**WP(C).28199/18**_ - **5 THE DIRECTOR, KIRTADS, DIRECTORATE OF KIRTADS, KOZHIKODE-17.** - **6 THE DISTRICT COLLECTOR, MALAPPURAM, PIN- 676 505.** - **7 THE TAHSILDAR, PONNANI TALUK, MALAPPURAM DISTRICT, PIN- 679583** ## **OTHER PRESENT:** ## **SPL.GP R PRAKASHAN** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** - **7.1.2019, THE COURT ON 17.01.2019 DELIVERED THE FOLLOWING:** ## **ANU SIVARAMAN, J. -----------------------------------------------** ## **W.P(C).No. 28199 of 2018** ## **----------------------------------------------Dated this the 17[th] day of January, 2019** ## **JUDGMENT** The petitioner has approached this Court seeking the following reliefs: - _“i. call for the records of the case leading upto Exhibits P11, P12, P17, P19, the report dated 12.06.2018 referred to in Exhibit P19, Exhibit P22 and Exhibit P23, reports/orders passed by respondents 1 to 5 and to quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction._ - _ii. declare that the 1[st] petitioner is legally entitled to claim the benefit of scheduled caste Padanna community based on Exhibit P10 community certificate issued by the competent authority viz., the 7[th] respondent._ - _iii. issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 1 to 4 to treat the 1[st] petitioner as a member of Scheduled Caste Padanna community based on Exhibit P10 community certificate and Exhibit P14 affidavit of the 7[th] respondent and to afford him all consequential benefits in the matter of giving him admission to professional degree courses based on the result of the entrance examinations written by him in 2017-18 and 2018-19 respectively.”_ 2. Heard Sri.T.Sivadas, learned counsel for the petitioners and the learned Special Government Pleader Sri.K.V.Prakash. 3. The specific case of the petitioners is that the 1[st] petitioner, who is the son of the 2[nd] petitioner, has been certified to be a member of 4 _**WP(C).28199/18**_ Hindu Padanna community. However, on the ground that the 1[st] petitioner's father as well as his grand father had contracted intercaste marriages with members of Hindu-Thiyya community, the 1[st] petitioner has been denied the benefit of inclusion in the community by the impugned orders. Learned counsel for the petitioners would contend that the findings in Exhibits P11 report of the KIRTADS, P12, P19 and P22 reports/orders as also the resultant Exhibit P23 order are vitiated by errors apparent on the face of the record. Learned counsel for the petitioners submits that Exhibits P1 to P8 and P10 documents produced along with this writ petition would conclusively show that the caste of the 2[nd] petitioner was recorded as Hindu Padanna and the 1[st] petitioner had already been granted all the benefits of inclusion in the said community. Exhibit P1 certificate issued by the Kerala Padanna Maha Sabha, Ponnani Taluk Central Committee would show that the marriage of the 2[nd] petitioner with the 1[st] petitioner's mother had been celebrated following the rites of the Padanna community at the bride's residence at Eramangalam. Exhibit P2 would show that the petitioners are accepted by the community itself as members of Hindu Padanna community. Exhibit P3 would show that the 2[nd] petitioner's father was issued with the community certificate showing his community as Hindu Padanna. Exhibit P4 would show that the 2[nd] petitioner was also issued with the community certificate showing his community as Hindu Padanna. Exhibit P5 birth certificate, Exhibit P6 extract of the 5 _**WP(C).28199/18**_ admission register and Exhibits P7 and P8 certificates issued by the competent Boards record the 1[st] petitioner's caste as Hindu Padanna. Reliance is placed on Exhibit P9 Government order to contend that children of inter-caste marriages between the members of SC and ST communities with persons not belonging to such communities, are eligible for educational benefits, if the claimant is subjected to same social disabilities and following the same customs and traditions and the community has accepted that person to it's fold, as such. Learned counsel for the petitioners would place reliance on Exhibit P10 community certificate issued by the competent authority to show that the 1[st] petitioner was also treated as a member of the Padanna community. 4. Thereafter, when the 1[st] petitioner had sought admission under the SC community quota, Exhibit P11 report appears to have been generated by the KIRTADS. It is stated in Exhibit P11 as follows: ## “ _**Merit of the Case**_ _The genealogical and documentary evidences reveals that the candidate's father is an offspring of inter-caste married parents wherein his father belongs to Padanna Community and mother belongs to Thiyya Community and the candidate's mother belongs to Thiyya Community. The candidate's claim as scheduled caste rest only through his paternal grandfather. But her maternal grand parents and paternal grandmother belongs to Thiyya community which is included in the list of OBC communities of the state. The enquiry as per Act 11 of 1996 also reveals that the candidate's father itself is only a treated member of Scheduled caste Padanna Community, and he himself_ 6 _**WP(C).28199/18**_ _has moved away from Scheduled caste identity by marrying a non sc member and that too from his mother community viz., thiyya. Moreover the candidate's father married a Non-Scheduled caste member ie Thiyya OBC community. Thus admittedly the candidate is born and brought up as a member of his mother's community and he is totally away from the milieu and circumstances of scheduled caste Padanna community and for this reason he has not suffered the social disabilities of being a member of scheduled caste community. Further more the investigation has revealed that all the socialization process of the candidate were performed as per the ritual and custom of Hindu, Thiyya community, as he was brought up by his mother and paternal grandmother who belongs to Hindu Thiyya community who belongs to Hindu. Hence the candidate cannot be treated as a member of Scheduled castes Padanna Community.”_ Further, the KIRTADS in Exhibit P11 had further held as follows: _“Thus as per existing rules a child born out of the intercaste marriage who claims the SC Status should prove among other things that he/she is subjected to the social disabilities of the community to which he/she claims to belong. Here in this case the candidate has not suffered any social disability and is not following the customs and practices of Padanna Community. He is born and brought up as a member of Hindu Thiyya community in the milieu and circumstance of his mother's residence at Kannur. Thus he cannot be considered as a member of SC Padanna community.”_ 5. Accepting the said finding in the report, Exhibit P12 order was issued by the Commissioner for Entrance Examinations. Exhibit P12 re- produces the findings of the KIRTADS and contends that since the 1[st] petitioner is born and brought up as a member of the Hindu Thiyya in the milieu circumstances of his mother's residence at Kannur, he 7 _**WP(C).28199/18**_ cannot be considered as member of Hindu Padanna community. The 1[st] petitioner's application was thus rejected. 6. The 2[nd] petitioner preferred Exhibit P13 representation against Exhibit P11 anthropological report of the KIRTADS before the 5[th] respondent Director. He further submitted a representation before the Minister for SC and ST which was referred to the Scrutiny Committee. Exhibit P17 show cause notice was thereafter issued to the 1[st] petitioner. The 1[st] petitioner submitted all available documents including Exhibits P1 to P8 and P10 to show his community status and in support of his claim that the finding that he was born and brought up under the milieu of Thiyya community in Kannur, was completely erroneous and that he had no connection with Kannur. He contended that his mother also belongs to Eramangalam and has absolutely no connection with Kannur in any manner. However, orders were passed by the Scrutiny Committee regarding his claim. It is stated that sworn statement has been made available before the Scrutiny Committee by two elder members of the Padanna community and the 1[st] petitioner had specifically stated that his paternal grand father belonged to Kadavanad and the 1[st] petitioner had all along been born and brought up at Veliyamcode where the 1[st] petitioner is staying with his parents. It is stated that the 1[st] petitioner's mother belongs to Eramangalam and it was there that the 1[st] petitioner was born. It is stated that the finding that the 1[st] petitioner was born and brought up in Kannur under 8 _**WP(C).28199/18**_ the milieu of Thiyya community was factually incorrect and perverse and the documents produced by the petitioners would show that the petitioners were born and brought up as members of the Padanna community and subjected to all social disabilities of the said community. It is stated that even thereafter, orders have been passed by the Scrutiny Committee without referring to the extensive material produced by the petitioners. It is stated that in spite of repeated assertions of the petitioners as to the factual error committed in Exhibit P11 report, the said finding is being repeatedly relied upon to deny benefits to the 1[st] petitioner. 7. Learned counsel for the petitioner relied on a judgment of a Division Bench of this Court in _**Convenor, Screening Committee and Controller of Entrance Examinations v. Lavya A**_ [2016(5) KHC 860 (DB)] to contend that a finding that the claimant was not a member of the community entitled to reservation has to be entered into after considering all the relevant evidence produced, before a community certificate can be held to be not genuine. The decision in _**Bhanumathy v. Chairman, Scrutiny Committee**_ [2012(1) KLT 567] is also relied on to contend that oral and documentary evidence produced by the parties is to be considered by the Scrutiny Committee and the report of the KIRTADS cannot be blindly followed. The decision of the Apex Court in _**Kumari Madhuri Patil v. Addl.Commissioner, Tribal Development**_ [(1994)6 SCC 241] is also relied on. 9 _**WP(C).28199/18**_ 8. A detailed counter affidavit has been placed on record by the respondents, wherein it is stated that the 1[st] petitioner cannot claim the benefits available to the Padanna community in view of the fact that he never suffered the disabilities of the community. It is stated that the 1[st] petitioner's paternal grand father belonged to Padanna community and that he had married a Thiyya lady and that the 2[nd] petitioner was also only “treated member of the Scheduled Caste”. It is stated that the 1[st] petitioner's mother also belongs to Thiyya community and that therefore the 1[st] petitioner, who has not suffered the disabilities is not entitled to the benefit. 9. I have considered the contentions advanced. Apart from contending that the 1[st] petitioner is a child of an inter-caste married couple and that he had not suffered the disabilities of the community, no material whatsoever has been placed on record in the counter affidavit in support of the said contention. The petitioner has produced ample evidence to show that he had been accepted as member of Padanna community and had suffered all the disabilities in respect of the same. The impugned orders rely on the specific finding in Exhibit P11 to the effect that the 1[st] petitioner was born and brought up as a member of Thiyya community at Kannur. The petitioners' specific case is that the 1[st] petitioner has no connection whatsoever with Kannur. The documents produced would prove the assertion that the 1[st] petitioner's mother belongs to Eramangalam where her marriage with 10 _**WP(C).28199/18**_ the 2[nd] petitioner was solemnised. It is apparent from the materials produced by the petitioners that the 1[st] petitioner was born in Ponnani Taluk and brought up at Veliyamcode and Eramangalam which are in Ponnani Taluk. The 1[st] petitioner has no connection with Kannur. It is therefore clear that the findings in the impugned orders are vitiated by errors apparent on the face of record. In the absence of any material to prove that the 1[st] petitioner was not brought up as a member of Padanna community, I am of the opinion that the findings to the effect that he is not entitled to the benefits of Scheduled Caste status is unsustainable. ## 10. Exhibit P9 Government order specifically reads as follows: “ _In view of the above observations of the High Court of Kerala Government have examined the matter in detail and are pleased to order that the Competent Authority who has to issue Scheduled Caste/Scheduled Tribe Community Certificate to the children born out of inter caste married couple of which one of the parents is Scheduled Caste/Scheduled Tribe should ensure that the claimant is subjected to same social disabilities and also following the same customs and traditions and community has accepted that person to its fold as such. The Authority to issue the Caste Certificate should also 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.”_ 11. The respondents appear to be under the impression that the 11 _**WP(C).28199/18**_ fact that the 1[st] petitioner's mother belongs to Thiyya community would deprive the 1[st] petitioner of the educational benefits. The fact that the 2[nd] petitioner was also a product of inter-caste marriage is pleaded as a reason to deny the benefit to the 1[st] petitioner. Exhibit P9 Government order specifically provides that what is to be looked into is whether the child of an inter-caste marriage couple is born and brought up as a member of the Scheduled Caste community. In the instant case, the documents relied on by the petitioners would go to show that the 1[st] petitioner had been accepted as a member of Padanna community. The 2[nd] petitioner has been issued with community certificate accepting him to be a member of Padanna community, which is not under dispute. The 1[st] petitioner had also been issued with such certificates by competent authorities. To deny the 1[st] petitioner the benefit of reservation in matters of education, there has to be a specific finding that the 1[st] petitioner did not belong to the said community and that he was not born and brought up as a member thereof. The respondents cannot insist that the changing situations and circumstances will not be taken into account and that the 1[st] petitioner has to suffer all the disabilities, which his ancestors had suffered to make him eligible for the benefit. The Padanna community apparently has accepted the petitioners as members of their community. Therefore, what the 1[st] petitioner has suffered is the social disabilities which the members of the said community would 12 _**WP(C).28199/18**_ suffer at present, and not the indignity or untouchability which would have been prevalent in an earlier era. 12. In the above view of the matter, I am of the opinion that the assertion that the petitioners have lived as members of the community is to be given due credence to. For a finding to a contrary, there ought to have been proper materials, which are apparently absent in the instant case. In the absence of any such material and in view of the finding which is recorded on obviously erroneous facts, I am of the opinion that there is no sufficient material to hold that Exhibit P10 community certificate produced by the 1[st] petitioner was not genuine. The orders impugned are therefore unsustainable. In the result, the impugned orders/reports are quashed. The respondents are directed to act upon Exhibit P10 community certificate issued to the 1[st] petitioner. The writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** _vgs_ 13 _**WP(C).28199/18**_ ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT DATED 04.02.1999 IN THE MARRIAGE REGISTER MAINTAINED BY KERALA PADANNA MAHA SABHA, PONNAI TALUK CENTRAL COMMITTEE.** **EXHIBIT P2 TRUE COPY OF THE DECLARATION DATED 30.06.2017 ISSUED BY THE PRESIDENT, KERALA PADANNA MAHA SABHA, KADAVANAD WEST UNIT. EXHIBIT P3 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 23.06.2017 ISSUED TO SHRI.C.K.ARUMUGHAN, THE FATHER OF THE 2ND PETITIONER, BY THE TAHSILDAR, PONNAI TALUK. EXHIBIT P4 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 06.05.2017 ISSUED TO THE 2ND PETITIONER BY THE 6TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE BIRTH CERTIFICATE DATED 24.12.1999 ISSUED BY REGISTRAR OF BIRTHS AND DEATHS EXHIBIT P6 TRUE COPY OF THE EXTRACT FROM THE ADMISSION REGISTER OF VIJAYAMATHA E.M.H.S. PONNAI. EXHIBIT P7 TRUE COPY OF THE TECHNICAL HIGH SCHOOL LEAVING CERTIFICATE ISSUED TO THE 1ST PETITIONER IN MARCH, 2015 BY THE TECHNICAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA. EXHIBIT P8 TRUE COPY OF THE CERTIFICATE BEARING REGISTER NO.4198222 DATED 15.05.2017 ISSUED TO THE 1ST PETITIONER BY THE SECRETARY, BOARD OF HIGHER SECONDARY EXAMINATION, GOVERNMENT OF KERALA. EXHIBIT P9 TRUE COPY OF G.O(MS)NO.109/2008/SCSTDD DATED 20.11.2008 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P10 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 23.06.2017 ISSUED BY 7TH RESPONDENT TO THE 1ST PETITIONER. EXHIBIT P11 TRUE COPY OF THE ANTHROPOLOGICAL REPORT DATED 21.06.2017 PREPARED AND SUBMITTED BY THE VIGILANCE OFFICER IN THE OFFICE OF THE 5TH RESPONDENT.** 14 _**WP(C).28199/18**_ - **EXHIBIT P12 TRUE COPY OF THE ORDER NO.B3-766/17/CEE(20) DATED 24.06.2017 ISSUED BY 3RD RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 10..07.2017 BY THE 2ND PETITIONER TO THE 5TH RESPONDENT.** - **EXHIBIT P14 TRUE COPY OF THE AFFIDAVIT DATED 03.10.2017 SUBMITTED BY THE 7TH RESPONDENT BEFORE THE HON'BLE COMMISSION FOR SC/ST.** - **EXHIBIT P15 TRUE COPY OF THE ORDER DATED 10.10.2017 PASSED BY THE HON'BLE CHAIRMAN OF THE KSCSCST, THIRUVANANTHAPURAM.** - **EXHIBIT P16 TRUE COPY OF THE COMMUNICATION NO.216560/G2/2017/SCSTDD DATED 16.03.2018 FROM THE OFFICE OF THE 1ST RESPONDENT TO THE 2ND PETITIONER.** - **EXHIBIT P17 TRUE COPY OF SHOW CAUSE NOTICE NO.2016560/G2/2017/SCSTDD DATED 20.06.2018 ALONG WITH COPY OF ENQUIRY REPORT DATED 24.05.2018(WITHOUT ENCLOSURES).** - **EXHIBIT P18 TRUE COPY OF THE REPLY STATEMENT DATED 02.07.2018 SUBMITTED BY THE 1ST PETITIONER TO EXT.P17 SHOW CAUSE NOTICE** - **EXHIBIT P19 TRUE COPY OF THE ORDER NO.B3-70418/C/EE(26) DATED 25.06.2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P20 TRUE COPY OF APPEAL PETITION DATED 20.07.2018 FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P21 TRUE COPY OF JUDGMENT DATED 27.07.2018 IN W.P(C)NO.18305/2015 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P22 TRUE COPY OF ORDER NO.2016561/G2/2017/SCSTDD DATED 03.08.2018 PASSED BY THE 2ND RESPONDENT.**