Hari Mohan and Vishnu Mohan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 15TH DAY OF MARCH 2021/24TH PHALGUNA, 1942** ## **WP(C).No.20367 OF 2019(U)** ## **PETITIONER:** **HARI MOHAN, AGED 20 YEARS, S/O.J.MOHANANAN, VISHNU BHAVAN, YEROOR P.O., YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT.** **BY ADVS. SRI.SUBHASH CYRIAC SMTSHEEBA JOSEPH SRI.S.SREEJITH** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM, KERALA- 695 001.** - **2 THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES, SC/ST(G) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001, REPRESENTED BY ITS CHAIRMAN.** - **3 THE COMMISSIONER OF ENTRANCE EXAMINATIONS KERALA, 5TH FLOOR, HOUSING BOARD, SHANTHI NAGAR, THIRUVANANTHAPURAM- 695 001.** - **4 KERALA INSTITUTE FOR RESEARCH, TRAINING AND DEVELOPMENT STUDIES FOR SCHEDULED CASTE AND SCHEDULED TRIBE, REPRESENTED BY ITS DIRECTOR, DIRECTORATE OF KIRTADS, CHEVAYUR, KOZHIKODE- 673 017.** **BY SPECIAL GOVERNMENT PLEADER SRI.K.V.PRAKASH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-03-2021, ALONG WITH WP(C).20787/2019(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.20367 & 20787 of 2019 : 2 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 15TH DAY OF MARCH 2021/24TH PHALGUNA, 1942** ## **WP(C).No.20787 OF 2019(W)** ## **PETITIONER:** **VISHNU MOHAN, AGED 22 YEARS, S/O. J.MOHANANAN, VISHNU BHAVAN, YEROOR P.O., YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT.** **BY ADVS. SRI.SUBHASH CYRIAC SMT.SHEEBA JOSEPH SRI.S.SREEJITH** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM, KERALA-695 001.** - **2 THE SCHEDULED CASTE SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **3 KERALA INSTITUTE FOR RESEARCH, TRAINING AND DEVELOPMENT STUDIES FOR SCHEDULED CASTE AND SCHEDULED TRIBE, REPRESENTED BY ITS DIRECTOR, DIRECTORATE OF KIRTADS, CHEVAYUR, KOZHIKODE-673 017.** ## **BY SPECIAL GOVERNMENT PLEADER SRI.K.V.PRAKASH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-03-2021, ALONG WITH WP(C).20367/2019(U), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.20367 & 20787 of 2019 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) Nos.20367 & 20787 of 2019 ````````````````````````````````````````````````````````````` _Dated this the 15[th] day of March, 2021_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ These writ petitions have been filed by siblings and relate to their Scheduled Caste status. The facts involved are common and interconnected and hence the writ petitions are heard together and disposed of by a common judgment. 2. W.P.(C) No.20367/2019 has been filed by the petitioner who has cleared the Kerala Engineering Architecture Medical Examination–2018 (KEAM–2018), seeking to quash Exts.P10 and P12 and to direct the 4[th] respondent to declare that the petitioner belongs to Scheduled Caste Velan Community and that he is eligible to W.P.(C) Nos.20367 & 20787 of 2019 : 4 : all benefits available to the Scheduled Caste Velan Community. W.P.(C) No.20787/2019 is filed by the petitioner, who is the brother of the petitioner in W.P.(C) No.20367/2019, seeking to set aside Exts.P9 and P10 and to direct the 2[nd] respondent to declare that the petitioner belongs to Schedule Caste Velan Community. 3. In W.P.(C)No.20367/2019, the petitioner stated that his mother O. Sasikumari belongs to Scheduled Caste Velan Community and his father J. Mohanan belongs to Nair Community. The petitioner was brought up in a Scheduled Caste background. The petitioner and the family have been residing in the house of his mother O.Sasikumari. The petitioner was admitted in School as a Scheduled Caste student. The petitioner follows the cultural background of Scheduled Caste Velan Community. The petitioner was subjected to social disabilities of a Scheduled Caste. The Tahsildar, Punalur Taluk has issued a Caste Certificate to the petitioner entitling him for all reservation benefits due to Scheduled Caste. W.P.(C) Nos.20367 & 20787 of 2019 : 5 : 4. The petitioner further contended that the Kerala Velan Service Society, Yeroor has issued Ext.P7 Community Certificate which would show that the Velan Community has accepted the petitioner as one among them. The petitioner was admitted for B.VSc. Course under Scheduled Caste Category. The petitioner appeared in KEAM–2017 as a member of Scheduled Caste Community. However, when the petitioner submitted an application seeking Scheduled Caste reservation for allotment in KEAM–2018, the 3[rd] respondent-Commissioner of Entrance Examination directed the Kerala Institute for Research, Training and Development Studies for Scheduled Caste and Scheduled Tribe (KIRTADS) to conduct an enquiry regarding the community of the petitioner. 5. The KIRTADS submitted Ext.P10 Anthropological Report stating that the claim of Scheduled Caste status of the petitioner is not tenable. The Scrutiny Committee for Verification of Community Certificates, confirmed the report of the KIRTADS and directed to cancel all Scheduled Caste W.P.(C) Nos.20367 & 20787 of 2019 : 6 : Certificates of the petitioner and the petitioner filed objections to the report of the KIRTADS. The Scrutiny Committee for Verification of Community Certificates, without properly appreciating the objections of the petitioner, rejected the Scheduled Caste (Velan) claim of the petitioner as per Ext.P10 and decided to cancel all the Scheduled Caste Certificates of the petitioner issued by Competent Authorities. It is aggrieved by Exts.P10 and P12 that the petitioner has approached this Court. 6. On the basis of the order rejecting the Scheduled Caste (Velan) claim of the petitioner’s brother, the 1[st] respondent issued to the petitioner in W.P.(C) No.20787/2019, Ext.P10 order holding that since his brother is found to be not belonging to Scheduled Caste (Velan) Community, the petitioner who is his sibling, will also not be eligible for any of the benefits intended for Scheduled Caste and hence all the Scheduled Caste Certificates issued to the petitioner are treated as cancelled. The petitioner challenges Ext.P10 proceedings. W.P.(C) Nos.20367 & 20787 of 2019 : 7 : 7. The learned counsel for the petitioners argued that the Competent Authority has issued Ext.P3 Community Certificate evidencing that the mother of the petitioner belongs to Hindu Velan Community, which is a Scheduled Caste. Ext.P4 extract of Admission Register would show that the petitioner in W.P.(C) No.20367/2019 was admitted in School, as one belonging to Hindu/Velan SC community. The Competent Authority under the Kerala (Scheduled Caste and Scheduled Tribes) Regulation of Issue of Community Certificate Rules, 2002 has issued Ext.P5 certifying that the petitioner belongs to Hindu Velan caste which is recognised as a Scheduled Caste. 8. The learned counsel for the petitioner further urged that the Tahsildar, Pathanapuram has also issued Ext.P6 Certificate after due enquiry, certifying that the petitioner belongs to Hindu Velan (Scheduled Caste) Community. Ext.P8 allotment memo is in proof of the fact that the brother of the petitioner Vishnu Mohan has been granted an allotment by the Commissioner for Entrance W.P.(C) Nos.20367 & 20787 of 2019 : 8 : Examinations to the College of Veterinary and Animal Sciences, Wayanad for B.VSc. Course, under the category Scheduled Castes. 9. The petitioners contended that all the afore documents would show that the petitioners belong to a Scheduled Caste Community. Ex.P7 certificate issued by the Kerala Velan Service Society, Kayamkulam would show that the petitioner has been accepted as one belonging to Scheduled Caste, by the Velan Community. The learned counsel for the petitioner further pointed out that the KIRTADS, as per Ext.P7 in W.P.(C) No.20787/2019, has given an Anthropological Report on the basis of a detailed anthropological investigation, to the effect that the petitioner's brother (the writ petitioner in W.P.(C) No.20787/2019) belongs to Scheduled Caste Velan Community. The respondents committed a grave error in concluding that the petitioner does not belong to Scheduled Caste Community, on the face of overwhelming factual and documentary evidence. W.P.(C) Nos.20367 & 20787 of 2019 : 9 : 10. The learned counsel for the petitioners relied on a Division Bench judgment of this Court in _**Vijayan P.S. and Others v. State of Kerala and Others** [2013 (2) KLT 488]_ , to contend that the Community Certificates issued to the petitioners cannot be cancelled on a mere finding that the person in whose favour the certificate was issued does not belong to Scheduled Caste and before cancelling the certificate, the Scrutiny Committee has to form an opinion that it was obtained fraudulently. 11. The learned Special Government Pleader (SC/ST) opposed the writ petitions. The learned Special Government Pleader stated that the paternal grandfather and grandmother of the petitioners admittedly belonged to ‘Nair’ Community which is not a SC or ST. The couple had five children, namely Rajan Pillai, Ramachandran Pillai, Ajayan Pillai, Radhamani and Madhavan Pillai. Madhavan Pillai is the father of the petitioners. In the School Admission Register of the said Madhavan Pillai, his Community was shown as Nair. Madhavan Pillai married Sasikumari, the W.P.(C) Nos.20367 & 20787 of 2019 : 10 : mother of the petitioners, who belonged to SC Velan Community. After the birth of the petitioners, the father of the petitioners changed his name Madhavan Pillai, as Mohanan by publishing a Gazette notification. The Gazette notification was intended to make it appear that he is not a Pillai and is a Scheduled Caste. 12. The maternal forefathers of the petitioners belonged to SC community. The G.O. No.109/2008 of the Government of Kerala, which dealt with the caste status of children belonging to inter caste couples mandated that in order to decide the caste status of children born out of such wedlock, each case should be examined individually. It should be determined whether the claimant suffered the social disability normally faced by persons belonging to Scheduled Caste. It is also to be found out whether the Scheduled Caste society to which father or mother belongs, has accepted the claimant as belonging to their community. 13. The learned Government Pleader pointed out that the KIRTADS, which is an expert body in the matter of W.P.(C) Nos.20367 & 20787 of 2019 : 11 : anthropological studies, has conducted an investigation in the matter and on the basis of various fact-finding enquiries, the KIRTADS found that the petitioner in W.P.(C) No.20367/2019 does not belong to Scheduled Caste Community. The Scrutiny Committee which considered the Anthropological Report concurred with the findings of KIRTADS and declared that the petitioner does not belong to Scheduled Caste and the order of the Scrutiny Committee is therefore perfectly legal and is not liable to be interfered with under Article 226 of the Constitution of India. 14. I have heard the learned counsel for the petitioners and learned Special Government Pleader representing the respondents. 15. It is not of serious dispute that the father of the petitioners belong to Nair Community and the mother of the petitioners belonged to Hindu Velan SC Community. In respect of the children born out of such inter caste wedlock in which one of the spouses belongs to Scheduled Caste/Scheduled Tribe, the crucial question to decide the W.P.(C) Nos.20367 & 20787 of 2019 : 12 : caste status of the children, would be whether the children were brought up in the social milieu of Scheduled Caste. As a corollary, questions would arise whether the Scheduled Caste Community to which one of the spouses belongs to, has accepted the children as part of their community and whether the children did suffer the social backwardness normally faced by persons belonging to Scheduled Caste/Scheduled Tribe Community. 16. The State of Kerala has enacted the Kerala Scheduled Castes and Scheduled Tribes (Regulation of Issue of Community Certificates) Act, 1996 providing for determination of caste status of persons claiming to be Scheduled Caste/Scheduled Tribe. As there is a statutory mechanism to decide the caste status, whenever there is a dispute as to the caste status, a claimant will have to establish before the Scrutiny Committee constituted under the Act 1996, that he/she belongs to Scheduled Caste/Scheduled Tribe. The Scrutiny Committee can avail the opinion of an expert agency to determine caste status. W.P.(C) Nos.20367 & 20787 of 2019 : 13 : 17. When a genuine dispute arises as to the caste status of an individual, the Caste Certificates issued by Government Officials earlier to him, cannot be the sole material to decide the issue. Though such certificates may be materials available to the Screening Committee to decide the issue, the issue itself will have to be decided on the basis of other reliable materials also. As far as the petitioners are concerned, apart from the Community Certificates issued to them by Authorities, School Admission Register and allotment memo issued by the Commissioner for Entrance Examinations based on the afore certificates, reliance is placed on Ext.P7 Certificate issued by the Kerala Velan Service Society and the fact that the petitioners were residing at the place of their mother, who is a Scheduled Caste. 18. Ext.P7 Certificate is seen issued by Kerala Velan Service Society having its Head Office at Kayamkulam. A Certificate issued by a Society by itself cannot be a conclusive proof of the fact that the Velan community has accepted the petitioners as belonging to Velan Community. W.P.(C) Nos.20367 & 20787 of 2019 : 14 : To ascertain as to the sustainability of the report of the expert agency, this Court required the Special Government Pleader to make available the files of Scrutiny Committee, relating to the petitioners. The Special Government Pleader accordingly made available the records. 19. The records produced by the Special Government Pleader would show that the expert agency has elaborately considered the genealogy of the petitioners. The expert agency also considered the brief anthropological report in respect of the petitioner in W.P.(C) No.20787/2019, submitted by the Vigilance Officer. The records would show that the petitioner in W.P.(C) No.20367/2019 has undergone primary and high school studies in Sabari Giri Central School, Anchal. The father of the petitioners is a businessman. The mother of the petitioners worked as Agriculture Officer in Pangode Agriculture College and has worked as a Doctor in Government Medical College, Trivandrum. These facts would show that the petitioners have not faced the social backwardness as normally faced W.P.(C) Nos.20367 & 20787 of 2019 : 15 : by members belonging to the Scheduled Caste community. 20. In the course of enquiries made by KIRTADS, the paternal grandfather of the petitioners gave a statement (document No.5) in which the grandfather has stated that the family of the petitioners are residing about 1 Km. far from his house. The family of the petitioners are residing in cooperation with the paternal grandfather. It has been further stated that they regularly take part in the rituals of the family temple of the paternal grandfather who is a Nair. Document No.10 relied on by the KIRTADS is a marriage certificate issued by the Assistant Devaswom Commissioner, Punalur Group which would show that the marriage of the petitioners' father and mother took place in Puthiyidam Sree Krishna Swamy Temple under Punalur Group. In view of the aforesaid facts, this Court is of the considered opinion that there are sufficient materials on record to establish that the petitioners followed the custom of their father's community. 21. The counsel for the petitioners argued that since the petitioners and their father are residing in the place of W.P.(C) Nos.20367 & 20787 of 2019 : 16 : their mother who is a Schedule Caste, they should be treated as belonging to the community of their mother. Such a proposition cannot be accepted. Place of residence alone will not be sufficient to presume that the family followed the custom of the community of the mother. 22. The learned counsel for the petitioners argued that the Vigilance Officer had given an Anthropological Report finding that the petitioner in W.P.(C) No.20787/2019 belongs to Scheduled Caste. Therefore, subsequently, the Vigilance Officer cannot come to a contrary conclusion and submit another report stating that the petitioners do not belong to Scheduled Caste. 23. It may be noted in this regard that Ext.P7 report was given by the Vigilance Officer on the basis of a reference made by the Screening Committee for the purpose of admission to Degree courses. The learned Government Pleader submitted that such enquiries are made for the purpose of a _prima facie_ finding as to the caste status. Such enquiries are made within the time constraints as a report W.P.(C) Nos.20367 & 20787 of 2019 : 17 : has to be submitted before the commencement of the admission process to educational institutions. That will not preclude KIRTADS from undertaking a detailed enquiry, at the instance of the Scrutiny Committee. 24. Going by the provisions of the Act, 1994, the Scrutiny Committee is the competent authority to conclusively determine the caste status of persons claiming to be SC/ST. The Scrutiny Committee has passed the impugned orders taking into consideration the reports of the KIRTADS and other materials available on record. The conclusion arrived at by the Scrutiny Committee cannot be found fault with for the mere reason that the KIRTADS had earlier given a contrary report. A caste certificate attains finality only when the claim of the individual who belong to a Scheduled Caste is verified by the Scrutiny Committee. 25. The reliance placed by the counsel for the petitioners on the judgment in _**Vijayan P.S. and others**_ (supra) would not be of any help to the petitioners. In the said judgment, a Division Bench of this Court held that a ## W.P.(C) Nos.20367 & 20787 of 2019 : 18 : community certificate cannot be cancelled on mere finding that the person in whose favour the certificate was issued, does not belong to Scheduled Caste or Scheduled Tribe community. To cancel a certificate, the Scrutiny Committee has to form an opinion that the community certificate was obtained fraudulently. The learned Government Pleader would contend that in the judgment in _**Chairman and Managing Director, Food Corporation of India and others v. Jagdish Balaram Bahira and others** [(2017) 8 SCC 670],_ the Hon'ble Apex Court has held that even in the absence of fraud, a community certificate can be cancelled, if it is found that the certificate was erroneous. In view of the facts and reasons stated above, this Court does not find any reason to interfere with the orders impugned in the writ petitions. The writ petitions are therefore dismissed. Sd/- **N. NAGARESH, JUDGE** aks/12.03.2021 W.P.(C) Nos.20367 & 20787 of 2019 : 19 : ## **APPENDIX OF WP(C) 20367/2019** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF SENIOR SCHOOL EXAMINATION, CBSE DATED 28.05.2017. EXHIBIT P2 TRUE COPY OF THE RESULT DATED 04.06.2018 PUBLISHED BY CBSE-NATIONAL ELIGIBILITY CUM ENTRANCE TEST (UG)-2018.** **EXHIBIT P3 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 20.08.2014 ISSUED BY TAHSILDAR, PUNALUR TALUK IN FAVOUR OF O.SASIKUMARI.** **EXHIBIT P4 TRUE COPY OF THE EXTRACT OF THE ADMISSION REGISTER OF SABARIGIRI SCHOOL, ANCHAL DATED 27.06.2017. EXHIBIT P5 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 03.02.2018 ISSUED BY TAHASILDAR, PUNALUR TALUK IN FAVOUR OF THE PETITIONER. EXHIBIT P6 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 15.03.2002 ISSUED BY TAHASILDAR, TALUK OFFICE PATHANAPURAM IN FAVOUR OF THE PETITIONER.** **EXHIBIT P7 TRUE COPY OF THE CERTIFICATE DATED 19.02.2017 ISSUED BY KERALA VELAN SERVICE SOCIETY, YEROOR.** **EXHIBIT P8 TRUE COPY OF THE ALLOTMENT MEMO DATED 09.09.2015 ISSUED BY 3RD RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE LETTER DATED 25.07.2018 ISSUED BY CONTROLLER OF ENTRANCE EXAMINATIONS.** **EXHIBIT P10 TRUE COPY OF THE ANTHROPOLOGICAL REPORT DATED 30.05.2017 ISSUED BY THE 4TH RESPONDENT.** W.P.(C) Nos.20367 & 20787 of 2019 : 20 : **EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 10.08.2019 IN W.P.(C)NO.22148/2018 BEFORE THE HONOURABLE HIGH COURT OF KERALA.** **EXHIBIT P12** **TRUE COPY OF THE ORDER NO.3235670/G2/2019/SCSTDD DATED 03.06.2019 ISSUED BY THE 2ND RESPONDENT SCRUTINY COMMITTEE, TO THE PETITIONER.** - **EXHIBIT P13 TRUE COPY OF THE ENVELOPE.** - **EXHIBIT P14 TRUE COPY OF THE NO.51/2019/SCSTDD ISSUED BY SC/ST DEPARTMENT DATED 15.7.2019** - **EXHIBIT P15 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 04.08.1977 ISSUED BY TAHASILDAR, PATHANAPURAM IN FAVOUR OF C.OMANA** - **EXHIBIT P16 TRUE COPY OF THE EXTRACT OF THE ADMISSION REGISTER ISSUED FROM GOVERNMENT HIGHER SECONDARY SCHOOL, YEROOR IN FAVOUR OF C.OMANA** - **EXHIBIT P17 TRUE COPY OF THE ANTHROPOLOGICAL REPORT DATED 23.04.2014 ISSUED BY KIRTADS** W.P.(C) Nos.20367 & 20787 of 2019 : 21 : ## **APPENDIX OF WP(C) 20787/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COY OF THE ADMISSION REGISTER DATED 19.3.2014 OF SABARIGIRI SCHOOL ANCHAL.** - **EXHIBIT P2 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 20.8.2014 ISSUED BY TAHSILDAR, PUNALUR TALUK IN FAVOUR OF O.SASIKUMARI.** - **EXHIBIT P3 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 6.6.2014 ISSUED BY TAHASILDAR, PUNALUR TALUK IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF COMMUNITY CERTIFICATE DATED 15.3.2002 ISSUED BY TAHASILDAR, TALUK OFFICE PATHANAPURAM (NOW PUNALUR TALUK).** - **EXHIBIT P5 TRUE COPY OF THE ALLOTMENT MEMO DATED 9.9.2015 ISSUED BY CONTROLLER OF EXAMINATION.** - **EXHIBIT P6 TRUE COPY OF THE IDENTITY CARD ISSUED TO THE PETITIONER FROM COLLEGE OF VETERINARY AND ANIMAL SCIENCES, MANNUTHY, THRISSUR.** - **EXHIBIT P7 TRUE COPY OF THE ANTHROPOLOGICAL REPORT DATED 23.4.2014 BY KIRTADS.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 10.8.2018 IN WPC NO.22148/2018 BEFORE THE HONOURABLE HIGH COURT OF KERALA.** **EXHIBIT P9 TRUE COPY OF THE ORDER NO.3235670/G2/2013/ SCSTDD DATED 3.6.2019 ISSUED BY THE SCRUTINY COMMITTEE.** W.P.(C) Nos.20367 & 20787 of 2019 : 22 : **EXHIBIT P10 TRUE COPY OF THE ORDER NO.51/2019/SCSTDD OF THE 2ND RESPONDENT DATED 15.7.2019.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R3 (a) TRUE COPY OF THE ANTHROPOLOGICAL ENUIRY REPORT NO.V.558/2017 DATED 30.05.2017** ncd