Paul Alex (Minor) represented by Guardian (Father) Alex Paul v. State of Kerala, Revenue Divisional Officer, Pala; Tahasildar, Meenachil Taluk; Vigilance Officer, Vigilance Cell Directorate of KIRTADS; Commissioner for Entrance Examinations

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933 WP(C).No. 5840 of 2009 (Y) -------------------------- PETITIONER: - ------------- PAUL ALEX (MINOR) REPRESENTED BY GUARDIAN (FATHER) ALEX PAUL, KUZHIKKA PILAKKAL KURUVANTHANAM, THIRUVANANTHAPURAM. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: -------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, SCHEDULED CASTE/ SCHEDULED TRIBES DEVELOPMENT DEPARTMENT GOVT.SECRETARIAT TRIVANDRUM. 2. REVENUE DIVISIONAL OFFICER, PALA. 3. TAHASILDAR, MEENACHIL TALUK. 4. VIGILANCE OFFICER, VIGILANCE CELL DIRECTORATE OF KIRTADS, KOZHIKODE-17. 5. COMMISSIONER FOR ENTRANCE EXAMINATIONS - HOUSING BOARD BUILDING, SANTHI NAGAR, TRIVANDRUM. GOVERNMENT PLEADER SMT.SANTHAMMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-032012, ALONG WITH WPC. 18542/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX TO W.P.C.NO.5840 OF 2009** ## **PETITIONER'S EXHIBITS:** EXT.P1: TRUE COPY OF THE CASTE CERTIFICATE DATED 05/12/2001. EXT.P2: TRUE COPY OF THE CASTE/TRIBE CERTIFICATE DATED 16/6/1986 ISSUED BY THE TAHSILDAR, MEENACHIL TO THE PETITIONER'S FATHER. EXT.P3: TRUE COPY OF THE CERTIFICATE ISSUED BY C.S.I.CHRIST CATHEDRAL MELUKKAVU P.O., KOTTAYAM. EXT.P4: TRUE COPY OF THE ORDER DATED 28/1/2008 PASSED BY THE TAHSILDAR, MEENACHIL. EXT.P5: TRUE COPY OF THE ORDER NO.V.II/07/REJ-ST-13 DATED 22/5/2007 PASSED BY THE VIGILANCE OFFICER, KIRTADS EXT.P6: TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT DT.16/7/2007 IN WPC NO.21446/07. EXT.P7: TRUE COPY OF THE G.O (MS)NO.109/2008/SC STDD DATED 20/11/2008. EXT.P8: TRUE COPY OF THE APPLICATION DATED 29/11/2008 SUBMITTED BEFORE THE VILLAGE OFFICER, MELUKAVU WITH REPORT OF THE VILLAGE OFFICER, ENDORSED THEREON. EXT.P9: TRUE COPY OF THE ORDER DATED 05/12/2008 PASSED BY THE TAHASILDAR MEENACHIL. EXT.P10: TRUE COPY OF THE JUDGMENT DATED 19/1/2009 PASSED IN WRIT PETITION NO.1877/2009. EXT.P11: TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE R.D.O., PALA DATED 29/1/2009. EXT.P12: TRUE COPY OF THE ORDER DATED 09/02/2009 PASSED BY THE R.D.O. ## **RESPONDENT'S EXHIBITS:** NIL // True Copy// PA to Judge ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.5840 of 2009 & 18542 of 2009 ---------------------------------------Dated this the 5[th] day of March 2012 ## **J U D G M E N T** W.P.C.No.5840 of 2009 is filed for a declaration that the petitioner, being a member of Malai Arayan Christian family converted to Christianity from Hindu Malai Arayan Community which is included in the list of Scheduled Tribes, is entitled to all benefits and educational concessions being a Scheduled Tribe. The petitioner also seeks to quash Exts.P4, P9 and P12. 2. Facts of the case discloses as follows: Ext.P1 is the caste certificate dated 05/12/2001 issued by the Tahsildar stating that the petitioner is a member of Malai Arayan Christian family converted to Christianity from Hindu Malai Arayan community which is included in the list of Scheduled Tribes. Ext.P6 is also a similar certificate issued to petitioner's father. At the time when the petitioner became eligible for appearing for the Entrance examination in the year 2009, he submitted an application to the Village Officer, Melukavu for a community certificate. After 2 W.P.C.No.5840/09 & 18542/09 conducting an enquiry, the 2[nd] respondent rejected the application on the ground that the second generation of intercaste married couple are not entitled to get the benefits of the Scheduled Caste/Scheduled Tribe quota. Ext.P4 is the said order. Ext.P5 is the report of the Vigilance Officer, KIRTADS which is the basis of Ext.P4. It is the contention of the petitioner that Ext.P5 relates to another person Cincy Bibi who filed W.P.C.No.21446/07. 3. Thereafter the Government issued G.O.(M.S.) No.109/2008/SCSTDD dated 20/11/2008 after considering the judgments of the Apex court and the High Court and in supersession of all Government orders thereby issuing directions to the competent authority who has issued the certificates to the children born out of inter-caste married couple of which one of the parents is scheduled Caste/Scheduled Tribe to ensure that the claimant is subjected to same social disabilities and also following the same customs and traditions, and the community has accepted that person to its fold as such. In pursuance of Ext.P7, the petitioner's father submitted another application and it is the complaint of the petitioner that without considering the W.P.C.No.5840/09 & 18542/09 3 report of the Village Officer or the Government Order, the 2[nd] respondent had rejected the application by Ext.P9 order. It is the case of the petitioner that sufficient opportunity was not given to substantiate the claim for the community certificate and when the petitioner challenged Exts.P4 and P9 before this Court by filing W.P.C.No.1877/2009 the petitioner was permitted to file an appeal and Ext.P12 is the appellate order, by which the claim was dismissed. It is the contention of the petitioner that Ext.P12 has been rejected only on the ground that the first generation of the children from an inter-caste marriage alone will be entitled for the benefits of the Government Order whereas the second generation like the petitioner will not be entitled for the said benefits. 4. W.P.C.No.18542/09 is filed by the same petitioner in W.P.C.No.5840/09. In this writ petition, he challenges Ext.P9 report of KIRTADS. He had to file this writ petition pursuant to an interim order passed by this Court in W.P.C.No.5840/09 by which there was a direction to the 3[rd] respondent to issue a certificate to the petitioner in the format as prescribed for the entrance examination for professional courses certifying that the W.P.C.No.5840/09 & 18542/09 4 petitioner is a Scheduled Tribe candidate provisionally and that the certificate is subjected to further orders in the writ petition. It is stated in this writ petition that in respect of the petitioner also KIRTADS had submitted a report on 21/5/2009 which is produced as Ext.P9. This writ petition was filed for obtaining an admission in the National Institute of Technology, Calicut. In this case also, the petitioner was granted an interim order provisionally and subject to the disposal of the writ petition. 5. Both the writ petitions substantially raise the same question. A counter affidavit has been filed by respondents 1 and 2 W.P.C.No.18542/2009 stating that since the 4[th] respondent has declined to issue a Scheduled Tribe certificate to the petitioner, he was not considered to be admitted into N.I.Ts Scheduled Tribe quota. The 4[th] respondent has filed a counter affidavit reiterating the stand taken by them in Ext.P9 report. It is stated that in the case of the petitioner, local enquiry revealed that the petitioner represents as a member of second generation of inter caste married couple. In Ext.P9 which is the anthropological report in relation to the petitioner, it is stated that the candidate has not suffered the disabilities of a W.P.C.No.5840/09 & 18542/09 5 Scheduled Tribe person and hence his claim as a member of Scheduled Tribe Malai Arayan cannot be conceded. 6. Heard the learned counsel appearing on either side. It is contended by the petitioner that KIRTADS, an agency which is entrusted for preparing the report, has not applied its mind in considering the anthropological history of the petitioner. It is his contention that even at the time of his paternal great grandfather, the family of the petitioner adopted the custom and practice of Malai Arayan Christian community and were also subjected to the same disabilities, hardships and sufferings of the said community and therefore there was no reason for KIRTADS to prepare a report which is totally against the spirit of grant of such benefits to Scheduled Tribe community. 7. On the other hand, the learned Government Pleader appearing on behalf of respondents 1 to 4 in W.P.C.No.5840/09 and respondents 3 and 4 in W.P.C.No.18542/09 inter alia contended that as per the Full Bench judgment of this Court in **Indira v. State of Kerala [2005(4) KLT 119]** what was considered was the eligibility of the first generation of an intercaste marriage with a Scheduled Tribe or Scheduled Caste to get W.P.C.No.5840/09 & 18542/09 6 the benefits of the same community, whereas what is now sought for is a community certificate for a person who is in the second generation. The petitioner was denied community certificate as is evident from Ext.P9 in W.P.C.No.5840/09 by the Tahsildar stating that petitioner's father Alex Paul is a Christian Malai Arayan community whereas mother Annamma Alex is Christian Jacobite community. The petitioner's grandfather Poulose is a Christian Malai Arayan and mother Rachel Poulose is a Christian Marthomma community and since KIRTADS reiterated that the second generation cannot be given the benefit, the same is denied. Ext.P12 also proceeds on the same basis. Apparently the orders were passed based only on the fact that the petitioner is a second generation person of inter-caste marriage with Scheduled Tribe. However, it is not evident from the Government order Ext.P7 produced in W.P.C.No.5840/09 that the second generation can be completely avoided. The clear indication in Ext.P7 is that 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 the same social disabilities and also following the W.P.C.No.5840/09 & 18542/09 7 same customs and traditions and the community has accepted that person to its fold as such. Therefore going by Ext.P9, there is no distinction between the first generation or the second generation whereas the only incident to be verified is whether they are subjected to the same social disabilities and whether they are following the same custom and whether the community has accepted the person to its fold. This apparently is the line of enquiry which is required to be made in the matter. 8. In KIRTADS report produced as Ext.P9 in W.P.C.No.18542/09 it is evident that no such enquiry is done by the said agency. The said agency had only found that the petitioner's claim raised through his paternal grandfather and that he has not suffered the disabilities of a Scheduled Tribe person. What is the basis of such a finding is not clear. Apart from that, it proceeds on the basis that in a proceedings of the Scrutiny Committee in a caste determination case, the Committee observed that only the first generation is entitled for educational concession and since the said finding had been confirmed by the Government, the provisions of reservation of inter-caste case is only limited to the first generation. W.P.C.No.5840/09 & 18542/09 8 9. Therefore, apparently the basis for the decision is only on the fact that the petitioner is a second generation person and therefore not entitled to a community certificate as claimed. This finding, apparently, is wrong and it is not the intention of the Government to deny the benefits of the community certificate merely because he or she had entered into an inter-caste marriage. If it could be said that the first generation of intercaste marriage is entitled to get a community certificate as Scheduled Tribe if they are subjected to the same social disabilities and also following the same customs and traditions and the community has accepted that person to its fold it is not known as to how the second generation who is subjected to such disabilities can be termed as a person not entitled for the same benefits. 10. In the above circumstances, the authorities concerned will have to verify whether the petitioner is entitled for the community certificate as claimed without reference to the only fact that he is the second generation person. It has to be considered whether he is otherwise entitled to get the benefits of W.P.C.No.5840/09 & 18542/09 9 the community and an enquiry in that regard has to be carried out taking into consideration the social background of the petitioner in the light of the recommendation made in Ext.P7, and after giving an opportunity to the petitioner to produce necessary materials in that regard. 11. Hence the writ petitions are disposed of and the following orders are passed: i) That Exts.P4, P9 and P12 in W.P.C.No.5840/09 are set aside. ii) Ext.P9 in W.P.C.No.18542/09 is set aside. iii) 3[rd] respondent in W.P.C.No.5840/09 shall reconsider the application of the petitioner dated 29/11/2008 and make necessary enquiries with reference to Ext.P7 Government Order and as per the observations made in the above judgment and pass appropriate orders in accordance with law within a period of two months from the date of receipt of a copy of this judgment. ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.5840/09 & 18542/09 10 W.P.C.No.5840/09 & 18542/09 11 W.P.C.No.5840/09 & 18542/09 12 ## **THOMAS.P.JOSEPH,J.** Crl.M.C.No. of 200 ORDER 19/01/2011