Jishnu J v State of Kerala, Commissioner of Entrance Examinations, KIRTADS Directorate

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937** ## **WP(C).No. 28519 of 2011 (L)** **--------------------------------------** **PETITIONER:** **-------------------JISHNU J, MOOZHIYIL VEEDU, NANNIYODE, PACHA P.O., PALODE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.BIJU BALAKRISHNAN** **RESPONDENTS:** - **-----------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM - 695 003.** **3. KERALA INSTITUTE FOR RESEARCH, TRAINING AND DEVELOPMENT STUDIES FOR SCHEDULED CASTE AND SCHEDULED TRIBES(KIRTADS) DIRECTORATE OF KIRTADS, KOZHIKODE, REPRESENTED BY ITS DIRECTOR - 673 017.** ## **BY GOVERNMENT PLEADER SRI. C. K. JAYAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 28519 of 2011 (L)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **------------------------------------** - **EXHIBIT P1 : PHOTOSTAT COPY OF EXTRACT OF HER SCHOOL ADMISSION REGISTER OF THE PETITIONER'S MOTHER** - **EXHIBIT P2 : PHOTOSTAT COPY OF THE RELEVANT PAGE OF SECONDARY SCHOOL LEAVING CERTIFICATE OF THE PETITIONER.** - **EXHIBIT P3 : PHOTOSTAT COPY OF THE SUDDHI CERTIFICATE DATED 03-12-2008 ISSUED BY THE ARYASAMAJ,TRIVANDRUM.** - **EXHIBIT P4 : PHOTOSTAT COPY OF THE PAGE NO.32, PART IV, DATED 13-01-2009 OF THE KERALA GAZETTE.** - **EXHIBIT P5 : PHOTOSTAT COPY OF THE SAID LETTER DATED 29-01-2010 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 : PHOTOSTAT COPY OF THE REPORT DATED 29-04-2010 OF THE 2ND RESPONDENT.** - **EXHIBIT P7 : PHOTOSTAT COPY OF THE ORDER DATED 26-05-2010 OF THE 2ND RESPONDENT.** - **EXHIBIT P8 : PHOTOSTAT COPY OF THE ORDER DATED 10-06-2011 OF THE 2ND RESPONDENT.** - **EXHIBIT P9 : PHOTOSTAT COPY OF G.O(MS) NO.109/2008/SCSTDD, DATED 20-11-2008 OF THE 1ST RESPONDENT.** - **EXHIBIT P10 : PHOTOSTAT COPY OF THE COMMUNITY CERTIFICATE, DATED 23-12-2009, ISSUED BY THE TAHSILDAR, NEDUMANGAD.** - **EXHIBIT P11 : PHOTOSTAT COPYOF THE SSLC BOOK OF THE PETITIONER'S FATHER'S SISTER OMANA.** - **EXHIBIT P12 : PHOTOSTAT COPY OF THE SSLC BOOK OF THE PETITIONER'S SISTER JEENA A.** **Contd.........2/-** **: 2 :** **EXHIBIT P13 : PHOTOSTAT COPY OF THE LETTER NO.A2-6958/2011, DATED 09-11-2011 OF THE SPECIAL GRADE SECRETARY, NANNIYODE GRAMA PANCHAYAT.** **RESPONDENTS' EXHIBITS : NIL** **--------------------------------------** **//TRUE COPY//** **P. A. TO JUDGE** **SKK** ## **K. HARILAL, J.** ## **= = = = = = = = = = = = = = = = = = W.P. (C) No.28519 of 2011** **- - - - - - - - - -- - - - - - - - - - -** Dated this the 24th day of February, 2016 ## **J U D G M E N T** The petitioner has passed Plus Two Course and applied for Entrance Examination conducted by the 2[nd] respondent, for the Professional Degree Course 2011, in the application prescribed for SC/ST quota, claiming reservation under the Scheduled Caste quota. The 3[rd] respondent conducted enquiry into the matter and passed Ext.P6 report, recommending that the petitioner is not eligible to get the Certificate, as a 'Scheduled Caste'. According to the petitioner, the 3[rd] respondent, while passing Ext.P6, overlooked the fact that the mother of the petitioner and her ancestors belonged to 'Hindu Cheramar' Community and the petitioner is also **W.P.(C) No. 28519 of 2011** ## **-: 2 :-** brought up as a 'Hindu'. Though, in Ext.P2, his Caste is mentioned as 'Christian Pulaya', he was following Hinduism for all social and personal purposes and the society has accepted him to their original fold of 'Hindu Cheramar' and he is living in the same social tenet. When he became major, he embraced Hinduism and for all official purpose, by Ext.P4 notification. Respondents 2 and 3 also have overlooked G.O.(Ms) No.109/2008/SCSTDD dated 20.11.2008, before passing Ext.P7 and Ext.P8. It is submitted that the finding in Ext.P6 is wrong and perverse. On the basis of Ext.P6, the 2[nd] respondent rejected the application of the petitioner for admission to Professional Degree Course, 2010, by Ext.P7. The petitioner has again applied before the 2[nd] respondent, for Entrance Examination for the Professional Degree Courses, 2011 in the application prescribed for SC/ST quota, claiming reservation ## **W.P.(C) No. 28519 of 2011** ## **-: 3 :-** under Scheduled Caste quota. The said application also has been rejected by the 2[nd] respondent, by Ext.P8. 2. According to the petitioner, the 2[nd] respondent has not applied his mind properly before passing Exts.P7 and Ext.P8. The finding in Ext.P6 that “ _the genealogical and documentary evidence mentioned above shows that the candidate and his parents were born and brought up in the sociocultural background of Christianity”_ is not correct. The finding of the 3[rd] respondent is without any basis. The 3[rd] respondent, while passing Ext.P6, overlooked the fact that the mother of the petitioner and her ancestors belonged to 'Hindu Cheramar' Community and the petitioner is also brought up as 'Hindu'. Though, in Ext.P2, his Caste is mentioned as 'Christian Pulaya', he was following Hinduism for all social and personal purposes. It is ## **W.P.(C) No. 28519 of 2011** ## **-: 4 :-** with this grievance this Writ Petition is filed with a prayer to issue a writ of certiorari, calling for the records leading to Exts.P6, Ext.P7 and Ext.P8 and quash the same and to issue a writ of mandamus, directing respondents 1 to 3, to issue Community Certificate under the Kerala Scheduled Caste/Scheduled Tribes Regulation of Issue of Community Certificates Act, 1996 ( _hereinafter referred to as 'the Act')_ , to the petitioner as he belongs to 'Hindu Cheramar'. 3. Heard the learned counsel for the petitioner and the learned Special Government Pleader appearing for the respondents. 4. The learned counsel for the petitioner advanced arguments in support of the grounds raised in this Writ Petition and the learned Special Government Pleader advanced arguments to justify the denial of Scheduled Caste status to the petitioner, ## **W.P.(C) No. 28519 of 2011** ## **-: 5 :-** by Ext.P8. 5. The main thrust of the arguments advanced by the learned counsel is that the 3[rd] respondent has not properly conducted the enquiry, as contemplated under the Act and while passing Ext.P6 overlooked the fact that the mother of the petitioner and her ancestors belonged to 'Hindu Cheramar' Community and the petitioner has brought up, as a Hindu, though, in Ext.P2, his Caste is mentioned as 'Christian Pulaya'. It is also contended that the entry with respect to the petitioner's Caste in Ext.P2 was mentioned without his knowledge or consent, though, he was born in a traditionally Scheduled Caste Community. When the petitioner has attained the age of majority, he realised the mistake committed by his parents and he embraced Hinduism, which is his original fold followed. 6. In view of the rival submissions made at ## **W.P.(C) No. 28519 of 2011** ## **-: 6 :-** the Bar, the point to be considered is, whether there is any reason or circumstance, warranting interference with Exts.P6, P7 and P8, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 7. Going by Exts.P7 and P8, it is seen that these orders have been passed, in exercise of jurisdiction and power conferred under the Act, on the basis of Ext.P6 enquiry report. Ext.P6 enquiry report was prepared by the expert agency, invoking power granted under Section 9 of the Act. The crux of the arguments is that the enquiry under Section 9 was not conducted properly. 8. The learned counsel for the petitioner advanced arguments, challenging the factual finding that the petitioner was born and brought up, as a 'Christian' and his parents also are 'Christians'. Thus the challenge in this Writ Petition is against ## **W.P.(C) No. 28519 of 2011** ## **-: 7 :-** the factual findings, which were arrived at, on the basis of the evidence collected by the enquiry Officer. This Court is of the view that such evidences collected by the enquiry officer under Section 9 of the Act, cannot be re-appreciated in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. At this juncture, this Court takes notice that an alternative and efficacious remedy is provided to the petitioner under Section 13 of the Act and the petitioner has not exhausted that remedy so far. 9. The scope and power of interference with appreciation of evidence on disputed facts, under Article 226 of the Constitution of India, relating to the matter, for which alternative remedy has been provided under the Statute, are very limited and it is a rule of self imposed limitation. Normally, High Court should not interfere, if there is **W.P.(C) No. 28519 of 2011** **-: 8 :-** alternative, adequate and efficacious remedy left open to the aggrieved party. When the matter in dispute involved in this Writ Petition is based on the disputed facts, which require re-appreciation of evidence this Court cannot interfere with the factual finding when an alternative and efficacious remedy is left open to the petitioner. This view is supported by the decision of the Apex Court in _**State of H.P. v. Gujarat Ambuja Cements Limited**_ [2005 (6) SCC 499]. 10. In the above view, the petitioner is relegated to the Government under Section 13 of the Act. Considering the pendency of this Writ Petition, challenging Ext.P6, P7 and P8 before this Court from 2011 onwards, the petitioner is allowed to file revision before the Government, within a period of one month from the date of receipt of a copy of this judgment and in case, such a revision is filed, **W.P.(C) No. 28519 of 2011** **-: 9 :-** within the aforesaid time, the Government shall accept the same, consider and pass orders, at the earliest, within a period of six months from the date of filing of the memorandum of revision, after affording an opportunity of being heard, to the petitioner. This writ petition is disposed of accordingly. Sd/- DST **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**