C. Krishnakumar Councilor and C. Vijayan v. The State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 372 of 2009(T) ------------------------ PETITIONER(S): - --------------- 1. C.KRISHNAKUMAR COUNCILOR, CORPORATION OF THIRUVANANTHAPURAM RESIDING AT LAKSHMI VILASAM, VELLUNNI MEDICAL COLLEGE PO, ULLOOR, THIRUVANANTHAPURAM. 2. C.VIJAYAN - GALLERY PRESSMAN, GOVERNMENT CENTRAL PRESS THIRUVANANTHAPURAM, RESIDING AT LAKSHMI VILASAM, VELLUNNI MEDICAL COLLEGE PO, ULLOOR, THIRUVANANTHAPURAM. BY ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE SRI.P.K.MANOJKUMAR SMT.SUSHYA RAJAN RESPONDENT(S): - --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT S.C /S.T. DEVELOPMENT (G) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES REPRESENTED BY ITS CHAIRMAN/THE PRINCIPAL SECRETARY TO GOVERNMENT S.C./ST DEVELOPMENT. GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR, KIRTADS, DIRECTORATE OF KIRTADS, KOZHIKODE-17. 4. EDAVACODE ASOKAN, CHINNAVEEDU - T.C. 7/2129-A, SREEKARYAM, THIRUVANANTHAPURAM-17 5. P.V.MINI RESEARCH OFFICER, KIRTADS, KOZHIKODE. ADV. SRI.R.T.PRADEEP FOR R4 - SRI.V.VIJULAL MR.P.SANTHOSH KUMAR, SPL. GOVERNMENT PLEADER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.372/2009 APPENDIX ## PETITIONER'S EXHIBITS P1 : COPY OF OBJECTION DATED 04/08/2006 FILED BY 1ST PETITIONER BEFORE R2. P2 : COPY OF COMMUNICATION NO.20917/G2/05/SCSTDD DATED 26/05/2007 ISSUED BY R2 TO THE PETITIONERS. P3 : COPY OF LIST OF WITNESSES DATED 28/05/2007 SUBMITTED BY THE PETITIONERS BEFORE R2. P4 : COPY OF PETITION DATED 28/02/2007 SUBMITTED BY THE 1ST PETITIONER REQUESTING FOR THE SUMMONING OF THE FILE FROM THE TALUK OFFICE. P5 : COPY OF THE PETITION DATED 28/02/2007 FILED BY THE 1ST PETITIONER FOR ISSUING SUMMONS TO THE WITNESSES. P6 : COPY OF REPORT NO.V.20/2005 DATED 22/04/2006 SUBMITTED BY THE KIRTADS BEORE R2. P7 : COPY OF REPORT NO.20917/G2/05/SCSTDD DATED 24/12/2007 ISSUED BY THE SCRUTINY COMMITTEE. P8 : COPY OF ELECTION PETITION DATED 07/10/2005 O.P.(ELECTION) NO.1/2005 FILED BY R4 BEFORE THE HON'BLE MUNSIFF'S COURT, THIRUVANANTHAPURAM. P9 : COPY OF JUDGMENT DATED 19/02/2008 IN WP(C) NO.1171/2008 (M) PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. P10 : COPY OF JUDGMENT DATED 05/08/2008 IN W.A.NO.833/2008 PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. P11 : COPY OF ORDER G.O.(MS) NO.57/2008/SCSTDD DATED 17/05/2008 ISSUED BY THE GOVERNMENT. P12 : COPY OF ORDER DATED 12/11/2008 IN I.A.NO.893/2008 IN W.A.NO.833/2008 PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. P13 : COPY OF WITNESS SCHEDULE SUBMITTED BY THE PETITIONERS BEFORE THE SCRUTINY COMMITTEE NO.9345/G2/2008/SCSTDD DATED 18/09/2008. P14 : COPY OF ORDER NO.9345/G2/2008/SCST DATED 19/09/2008 ISSUED BY THE SCRUTINY COMMITTEE FOR VERIFICTION OF COMMUNITY CERTIFICATES. P15 : COPY OF APPLICATION SUBMITTED BY THE PETITIONERS NO.9345/G2/2008/SCST DATED 27/09/2008 BEFORE THE CHAIRMAN, SCRUTINY COMMITTEE VERIFICATION OF COMMUNITY CERTIFICATE. P16 : COPY OF REPORT NO.9345/02/08/SCSTDD DATED 03/12/2008 ISSUED BY THE CHAIRMAN, SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES. P17 : COPY OF THE GOVERNMENT ORDER G.O.(MS) NO.116/08/SCSTDD DATED 15/12/2008 ISSUED BY THE GOVERNMENT. WPC NO.372/2009 P18 : COPY OF THE DEPOSITION OF R5 EXAMINED AS CW6 DATED 05/11/2008, SMT.MINI.P.V., RESEARCH OFFICER, KIRTADS, KOZHIKODE. P19 : COPY OF ADMISSION REGISTER OF THE GOVERNMENT LP SCHOOL, PONGAMOODU SHOWING ADMISSION NO.335/67 P.MADHAVI AMMA. P20 : COPY OF CERTIFIED COPY OF THE EXTRACT OF THE ADMISSION REGISTER REFERRED TO AS DOCUMENT NO.24 IN EXT.P6 REPORT, ADMISSION NUMBER 46, P.JANARDHANAN CHERUVAYKAL AIDS SCHOOL. ## RESPONDENT'S EXHIBITS R-4a : COPY OF REORT OF TAHSILDAR DATED 07/10/2005. R-4b : COPY OF EXTRACT OF ADMISSION REGISTER PERTAINING TO THE MOTHER OF PETITIONERS. R-4c : COPY OF EXTRACT OF ADMISSION REGISTER DATED 15/03/2006 OF DAUGHTER OF 1ST PETTIONER. R-4d : COPY OF ORDER DATED 24/01/2007 IN O.P.(Ele) NO.1/05 BY THE COURT OF PRL.MUNSIFF, THIRUVANANTHAPURAM. R-4e : COPY OF MEMORANDUM OF APPEAL (Ele) 5/2007. R-4f : COPY OF I.A.NO.89/2008 DATED 10/01/2008. R-4g : COPY OF NOTICE DATED 08/09/2008. R-4h : COPY OF NOTICE DATED 19/09/2008. //TRUE COPY// PA TO JUDGE. jg ## ANTONY DOMINIC, J. ------------------------- ## W.P.(C.) No.372 of 2009 --------------------------------Dated, this the 6[th] day of April, 2010 ## J U D G M E N T The 1[st] petitioner is the Councilor of the Thiruvananthapuram Corporation elected from Edavacode constituency reserved for SC candidates. The 2[nd] petitioner, his brother, is employed as a Gallery Pressman in the Government Central Press, Thiruvananthapuram. Both the petitioners claim that they belong to Vannan, a Scheduled Caste community and are enjoying benefits on that basis. 2. The 1[st] petitioner was elected in September, 2005 and immediately thereafter, the 4[th] respondent, a defeated candidate, submitted a complaint disputing the caste status of the 1[st] petitioner. The complaint was originally made to the Minister, who forwarded it to the District Collector, who in turn forwarded the complaint to the Tahsildar. The matter ultimately reached the 3[rd] respondent, the KIRTADS, and the Vigilance Officer, KIRTADS, conducted an enquiry. Finally, notice was issued to the petitioners to appear before the KIRTADS on 19/04/2006, and both of them WP(C) No.372/2009 -2- appeared and submitted their explanations and documents. 3. Finally, the 3[rd] respondent submitted Ext.P6 report to the 2[nd] respondent concluding that the petitioners belong to Veluthedathu Nair, an OBC community, against their claim that they belong to Vannan, a SC community. The 2[nd] respondent accordingly issued notice to the petitioners, and Ext.P1 explanation was submitted by the 1[st] petitioner. Again in response to Ext.P2 notice, they submitted Ext.P3, a list of witnesses. This was followed by Ext.P4, where the 1[st] petitioner requested the 2[nd] respondent to summon the documents mentioned therein. Similarly Ext.P5 request was also filed for summoning witnesses included in the list of witnesses. The matter was posted before the 2[nd] respondent on various dates. 4. At that stage, the 4[th] respondent filed a writ petition before this Court as WP(C) No.4394/2007 complaining of delay in finalising the proceedings and for a direction to the 2[nd] respondent to expedite the proceedings, allowing him also to be heard in the matter. That writ petition was disposed of by this Court directing the 2[nd] respondent to expedite the proceedings and to hear the 4[th] WP(C) No.372/2009 -3- respondent also. Again complaining that the directions in the judgment were not complied with by the 2[nd] respondent, the 4[th] respondent filed COC No.1478/2007. That case was also closed directing the 2[nd] respondent to pass final orders in the matter. The proceedings before the 2[nd] respondent concluded by Ext.P7, where the 2[nd] respondent reported that the petitioners belonged to Veluthedathu Nair, an OBC community. 5. Ext.P7 was challenged before this Court by the petitioners in WP(C) No.1171/2008. That writ petition was dismissed by this Court by Ext.P9 judgment rendered on 19/02/2008. Ext.P9 judgment was challenged by filing W.A.No.833/2008. That writ appeal was disposed of by Ext.P10 judgment rendered on 05/08/2008 setting aside Ext.P7 proceedings and Ext.P9 judgment. The Scrutiny Committee was directed to pass fresh orders in the matter in accordance with law, at any rate, within two months from the date of receipt of a copy of the judgment. 6. According to the petitioners, the 2[nd] respondent received Ext.P10 judgment on 13/08/2008, and notice was issued to the WP(C) No.372/2009 -4- petitioners, and they submitted two lists containing names of 29 persons and other details of the witnesses, whom they wanted to examine. However, on the directions of the 2[nd] respondent, the list was reduced to 25, and summons were also issued. Summons issued to some of the witnesses returned unserved. Since final orders were not passed within the time allowed by the Division Bench, respondents filed I.A.No.893/2008, seeking extension of time to complete the proceedings allowing the petitioners to examine their witnesses. That I.A. was considered by the Division Bench and by Ext.P12 order dated 12/11/2008, the I.A. was dismissed. 7. In the meantime, five witnesses were examined. In view of Ext.P12 order, considering the evidence available and after hearing the parties, Ext.P16 order dated 03/12/2008 was passed by the 2[nd] respondent, the Scrutiny Committee, concluding that the petitioners do not belong to Vannan community as claimed by them and that they belonged to Veluthedathu Nair, an OBC community. Based on Ext.P16, the Government issued Ext.P17 order dated 15/12/2008 implementing the findings in Ext.P16. It was WP(C) No.372/2009 -5- thereupon that this writ petition has been filed challenging Exts.P6, P16 & P17. 8. The first contention raised by the learned counsel for the petitioners is that Ext.P16 order was passed by the 2[nd] respondent without permitting the petitioners to examine the witnesses cited by them in the list of witnesses submitted before the 2[nd] respondent. It is stated that in the reduced witness schedule, they had cited names of 25 witnesses and that they were permitted to examine only 5 of them. It is therefore contented that the 2[nd] respondent had violated the principles of natural justice by shutting out evidence and therefore, Exts.P16 & P17 call for interference. 9. However, the right of the petitioners to adduce evidence in support of their claim that they belong to Vannan community, a Scheduled Caste, has to be regulated by the directions of this Court as contained in Ext.P10 judgment in W.A.No.833/2008 and in Ext.P12 order passed by the Division Bench rejecting the application filed by the Government for extension of time to complete the proceedings. Relevant paragraphs of Ext.P10 judgment are paragraphs 29 to 34. In the judgment after referring to the WP(C) No.372/2009 -6- provisions contained in Section 11 of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 and the directions of the Apex Court in Kumari Madhuri Patil and another v. Addl. Commissioner, Tribal Development and Others (1994 (6) SCC 241) this Court held that the legislature while using the expression “making of representation” did not mean that an elaborate de novo enquiry should be conducted. It was pointed out that if such an elaborate de novo enquiry is resorted to, the person who intends to drag on the proceedings could delay the proceedings and that the whole purpose of the Act itself could be defeated. Paragraphs 32 & 33, being relevant, are extracted below for reference. “32. -----. We do not think that when the legislature used the expression “making of representation” to mean to hold an elaborate de novo enquiry. If this is resorted to at the instance of a person who intends to drag on the proceedings, the whole purpose of the Act could be defeated. Here we do confirm the view expressed by the learned Single Judge in the course of his order that the petitioners appears to be determined to adopt dilatory proceedings and delay as much as he can, the final disposal of the proceedings taken against them. 33. In the instant case, it is an admitted position even by the respondents 1 to 3, that no opportunity of hearing was WP(C) No.372/2009 -7- given to the petitioners and after going through the records made available by the learned Government Advocate, we are also of the same opinion, and therefore, we have no other alternative, but to set aside the order and direct the Scrutiny Committee to decide the case afresh as expeditiously as possible, after giving an opportunity of hearing to all the interested parties to the lis.” 10. On this basis, this Court set aside the order passed by the Scrutiny Committee on 24/12/2007 and directed the Scrutiny Committee to pass fresh orders in accordance with law, in the light of the observations made in that judgment. 11. I.A.No.893/2008, which resulted in Ext.P12 order dated 12/11/2008, was filed by the respondents seeking extension of time in order to enable them to permit the petitioners to adduce evidence of the witnesses they had cited. Taking note of this contention, in paragraph 2 of Ext.P12 order, the Division Bench of this Court held as follows :- “2. Now, an application is filed by the respondents inter alia seeking extension of time to comply with the directions issued by us on 5[th] August, 2008. In the application filed, it is stated that in order to facilitate the appellants in the writ appeal to examine their witnesses, the Scrutiny Committee has adjourned the matter from time to time. This is not the procedure which we had contemplated and which we had referred to in our order. If the Scrutiny Committee wants to have its own procedure other than WP(C) No.372/2009 -8- what we have already stated in our order, it will not be compliance with the orders and directions issued by this Court. Keeping this aspect of the matter in view, we are of the opinion that the request of the State Government to grant extension of time cannot be allowed. Accordingly, we reject this application.” 12. From Exts.P10 & P12, it is therefore evident that the Division Bench did not contemplate enquiry in the manner the petitioners wanted, and what was intended was that the petitioners should be extended an opportunity to make their representations in the matter. Both Exts.P10 & P12 have attained finality and none has questioned these orders. Once Exts.P10 & P12 have attained finality, the opportunity that the petitioners are entitled to get in the proceedings that followed Exts.P10 & P12, has to be governed by the directions issued by the Division Bench. From a reading of Exts.P10 & P12, it is obvious that the Division Bench did not intend that the petitioners should be afforded an opportunity to examine the witnesses. If that be the case, the fact that the petitioners were not permitted to examine the witnesses cited by them, will not vitiate the final order that has been passed by the respondents. 13. The learned counsel for the petitioners contended that the order passed by the Division Bench has to be understood in the WP(C) No.372/2009 -9- light of the judgment of the Supreme Court in Kumari Madhuri Patil's case (1994 (6) SCC 241) and also in the light of the directions of this Court in Prakash v. State of Kerala (2002(2) KLT 580). In my view, this contention is also unsustainable. As already noticed, in Ext.P12 order, the Division Bench while rejecting the application for enlargement of time specifically held that the enquiry contemplated in Ext.P10 judgment was not one with opportunity to the petitioners to adduce evidence of the witnesses cited by them. Therefore, once Exts.P10 & P12 have attained finality, the parties are bound by the directions therein. The directions in Exts.P10 & P12 did not admit of any ambiguity. If that be so, there is no substance in the contention of the petitioners that the directions in Exts.P10 & P12 should be understood in the light of the directions of the Apex Court in Kumari Madhuri Patil's case (1994 (6) SCC 241) or Prakash v. State of Kerala (2002(2) KLT 580). Therefore, this contention raised by the learned counsel for the petitioners is only to be rejected and I do so. 14. Now the surviving question is whether the findings in Ext.P16 order are perverse warranting interference in a proceedings WP(C) No.372/2009 -10- under Article 226 of the Constitution of India. The validity of Ext.P16 has to be judged in the light of the contents of this order itself. Both the learned counsel for the petitioners and the learned Government Pleader referred to the relevant portions of Ext.P16. A reading of this order shows that the 2[nd] respondent has adverted to entire materials available before it and has come to the factual findings that the petitioners, their relatives and their children are Veluthedathu Nairs and therefore, the petitioners are also belong to Veluthedathu Nair community and not Vannan community as claimed by them. 15. Having regard to the manner in which the issue has been dealt with in Ext.P16 order, and the evidence has been appreciated, by no stretch of imagination can this Court hold that the conclusions in Ext.P16 are perverse warranting interference in a proceedings under Article 226 of the Constitution of India. In that view of the matter, I do not find any merit in the challenge against Ext.P16. 16. At this juncture, the learned counsel for the petitioners contended that since there is no finding that the petitioners had WP(C) No.372/2009 **==> picture [21 x 9] intentionally omitted <==** acted fraudulently, Exts.P16 and P17 should operate only prospectively. Having gone through Exts.P16 & P17, I am inclined to agree with the learned counsel for the petitioners. So long as there is no finding that the petitioners had acted fraudulently in obtaining any certificate, as directed by this Court in Anila v. State of Kerala (2009(4) KLT 112), Exts.P16 & P17 should operate prospectively from the date of the orders. It is so declared. Therefore, subject to the declaration as above, in all other respects Exts.P16 & P17 will stand confirmed. This writ petition is dismissed. (ANTONY DOMINIC, JUDGE) jg