Smt. S.V.Seetha Devi v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **TUESDAY, THE 12TH DAY OF MARCH 2013/21ST PHALGUNA 1934** ## **WP(C).No. 19487 of 2011 (I)** **----------------------------** ## **PETITIONER :** **--------------------** **SMT. S.V.SEETHA DEVI CONFIDENTIAL ASSISTANT GRADE-II, COLLECTORATE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE** **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY,** **SCHEDULED CASTES/SCHEDULED TRIBES DEV. (G) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **2. SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATE, SC/ST DEVELOPMENT(G) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN-695 001.** **3. THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM-695 001.** **R1 TO R3 BY SPL. GOVT. PLEADER SMT. LALY VINCENT** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/11/2012, THE COURT ON 12-03-2013 DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 19487 of 2011 (I)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF FIRST PAGE OF THE SSLC BOOK OF THE PETITIONER. EXT.P2 COPY OF FIRST PAGE OF THE SSLC BOOK OF SMT. SEENA V.S., THE SISTER OF THE PETITIONER. EXT.P3 COPY OF RELEVANT PAGE OF ADMISSION RGISTER OF GOVT. HIGH SCHOOL, TRIVANDRUM SHOWING THE ADMISSION PARTICULARS OF SMT. CHITRA S.V. EXT.P4 COPY OF 3RD PAGE OF KARTHIKAKUTTY THE AUNT OF THE PETITIONER. EXT.P5 COPY OF COMMUNITY CERTIFICATE DATED 10.8.1989 ISSUED TO THE PETITIONER BY THE TAHSILDAR, TRIVANDRUM.** **EXT.P6 COPY OF COMMUNITY CERTIFICATE DATED 30.1.1992 ISSUED TO SHRI.V. VANAJAN, THE FATHER OF THE PETITIONER. EXT.P7 COPY OF COMMUNITY CERTIFICATE DATED 29.2.1992 ISSUED TO SMT.S. V.SEENA, THE SISTR OF THE PETITIONER.** **EXT.P8 COPY OF COMPLAINT DATED 29.10.1991 FILED BY SHRI. BALAKRISHNA PANICKER AGAINST THE PETITIONER. EXT.P9 COPY OF JUDGMENT DATED 16.1.2007 IN O.P. NO. 17296 OF 1998. EXT.P10 COPY OF ORDER DATED 11.4.2011 ISSUED BY THE 2ND RESPONDENT. EXT.P11 COPY OF G.O.(MS) NO. 65/2011/SCSTDD DATED 4.7.2011 ISSUED BY THE 1ST RESPONDENT. EXT.P12 COPY OF CERTIFICATE DATED 23.5.1985 ISSUED BY THE VILLAGE ADMINISTRATIVE OFFICER, ALOOR VILLAGE TO SHOW THAT THE GRAND FATHER OF THE PETITIONER IS A VANNAN.** **(Contd...)** ## **WP(C).No. 19487 of 2011 (I)** **EXT.P13 COPY OF ORDER DATED 16.7.2011 ISSUED BY THE 3RD RESPONDENT. EXT.P14 COPY OF COMMUNICATION DATED 19.8.2008 ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENT'S EXHIBITS :** **EXT.R1(a) : COPY OF THE ENQUIRY REPORT OF THE KIRTADS. EXT.R1(b) & R1(c) COPY OF THE REPRESENTATIONS DATED 28.1.2003 AND 11.2.2003 FILED BY THE PETITIONER BEFORE THE SCRUTINY COMMITTEE. EXT.R1(d) COPY OF THE REPLY TO THE SHOW CAUSE NOTICE WAS FURNISHED BY THE INCUMBENT ON 12.3.03 THROUGH THE COMMISSIONER, LAND REVENUE. EXT.R1(e) COPY OF THE DOCUMENT NO. 14. EXT.R1(f) COPY OF THE DOCUMENT NO. 9 //TRUE COPY// P.S. TO JUDGE** ## **Mn** A.M.SHAFFIQUE, J. ---------------------------------------------------- W.P.(C) No. 19487 of 2011 - I --------------------------------------------------Dated this the 12[th] March, 2013 ## **J U D G M E N T** This writ petition is filed challenging Exts.P10, P11 and P13 and for a direction to restrain the respondents from terminating the service of the petitioner. 2. The facts would disclose that the petitioner claimed to be a member of Scheduled Caste coming under Vannan Community. She is working as Confidential Assistant Gr.II in the Collectorate at Thiruvananthapuram. As per the school records of the petitioner as well as her father and sister, their caste is shown as 'Vannan' entitled for the benefits of the Scheduled Caste reservation. The petitioner obtained a certificate from the Tahsildar for the purpose of getting appointment as per the recruitment Rules of the Kerala Public Service Commission (K.P.S.C). The petitioner joined service on 4.5.1991. Based on a complaint by one Balakrishna Panicker, the Vigilance Cell of K.P.S.C. conducted an enquiry into the Caste status of the petitioner. The petitioner was served with a notice dated 22.2.1992 to show cause why her advice should not W.P.(C) No. 19487 of 2011 - I 2 be cancelled, in exercise of the power under Rule 3(c) of the General Rules of 1958. She submitted an explanation but by proceedings dated 19.5.1992, K.P.S.C. cancelled the advise. She challenged the said order by filing O.P.No. 3984/1992. The said petition was disposed of directing the K.P.S.C. to consider the representation of the petitioner and pass orders on merits. It was also observed that until such time status quo shall be continued. The petitioner was, in fact, continuing her service. K.P.S.C. again rejected the representation of the petitioner and she filed O.P. No. 17296/1998 challenging the order passed by K.P.S.C. During the pendency of the Original Petition, the Vigilance Cell of KIRTADS conducted an enquiry and submitted a report dated 4.1.2001. The petitioner was served with a show cause notice dated 23.12.2006 to explain why the claim as a member of Vannan Community should not be cancelled by the Scrutiny Committee under the Kerala (Scheduled Caste and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (hereinafter referred as the Act). According to the petitioner though a reply was given, there was no further action. O.P. No. 17296/1998 was disposed on 16.1.2007 W.P.(C) No. 19487 of 2011 - I 3 quashing the proceedings of K.P.S.C. and permitting the authorities to conduct appropriate investigation into the Caste status of the petitioner. She was also permitted to continue in employment. Ext.P9 is the said judgment. 3. The petitioner was given notice for personal hearing. She appeared and submitted an argument note on 28.8.2008. The matter was adjourned to 27.9.2008 on her request. On that day there was no sitting. The matter was taken up on 4.8.2009. The petitioner sought an adjournment. The 2[nd] respondent declined the said request. It is said that thereafter nothing was done and after two years, Ext.P10 order dated 11.4.2011 was issued rejecting the petitioner's claim as a Scheduled Caste. Ext.P11 is the consequential order issued by the 1[st] respondent. The writ petition was subsequently amended by contending that petitioner was served with order dated 15.7.2011 terminating her service as Ext.P13, which is also impugned. 4. The contention of the petitioner is that she had not committed any fraud in obtaining the Caste Certificate. For that reason itself, she cannot be thrown out of employment. Action can be taken under the Act, only if a false Community Certificate W.P.(C) No. 19487 of 2011 - I 4 is produced. In so far as the petitioner has not produced any false community certificate there was no scope for an enquiry by the Scrutiny Committee. Still further it is contended that the petitioner's paternal grand father belongs to Hindu Vannan Community and the paternal grand-mother belongs to Veluthedathu Nair Community. Both these Communities are traditionally engaged in the profession of washerman. The father of the petitioner also belongs to Hindu Vannan Community and is a member of the Scheduled Caste. Consequently, the petitioner also belongs to the said Community and petitioner's father was the President of “Alakku Thozhilali Sangham”. Therefore, according to the petitioner, KIRTADS has not considered the genealogy of the petitioner properly and for that reason Ext.P10 cannot be taken into consideration. Ext.P11 is only a consequential order passed by the Government on the basis of the Scrutiny Committee report. However, it is held that she belongs to Veluthedathu Nair (OBC Community). 5. Counter affidavit is filed on behalf of the 2[nd] respondent inter alia relying upon the report of the Vigilance Cell of W.P.(C) No. 19487 of 2011 - I 5 KIRTADS supporting the stand taken in the Scrutiny Committee report. In the counter affidavit, it is observed that as per the enquiry report of KIRTADS produced as Ext.R1(a), it is found that the petitioner's parents' Caste was undoubtedly Veluthedathu Nair. The Scrutiny Committee had given sufficient opportunity for the petitioner. They have verified the report of KIRTADS in the case and conducted an enquiry and it was revealed that she belongs to OBC category. 6. That apart it is contended that the petitioner did not object to the report of KIRTADS as provided under S.13 of the Act, and therefore the report has become final. According to the respondents appropriate enquiry had been conducted in the matter. They also relied upon the judgment of the Supreme Court in **Regional Manager, Central Bank of India** v. **Madhulika Guruprasad Dahir** wherein the Supreme Court held that employment with a false certificate is invalid. It is further contended that the Tahsildar has issued caste certificate without conducting proper investigation. Since the petitioner did not adduce any evidence to indicate that she belonged to Vannan Community, a Scheduled Caste included in the list, a W.P.(C) No. 19487 of 2011 - I 6 different view cannot be taken by the authorities. 7. Heard the learned counsel for the petitioner and the learned Special Government Pleader appearing on behalf of the respondents. 8. Ext.P10 is the proceedings of the Scrutiny Committee relying upon the report of KIRTADS, Ext.R1(a). The report of KIRTADS would show that an enquiry was conducted after notice to the petitioner as well as her sister Smt. S.V.Seema. They have admitted that their mother belongs to Veluthedathu Nair Community, whereas according to them, their father belongs to Vannan Community, which is a Scheduled Caste. He was also heard in the matter. According to KIRTADS they have conducted a field investigation and the finding is that the petitioner's father belongs to Veluthedathu Nair Community. He is a Journalist working in a private press. His school admission register shows his caste as Veluthedathu Nair. He has two siblings Vijayan and Lathika. Vijayan is unmarried and Lathika is married to Muralidheeran belonging to Veluthedathu Nair Community. The petitioner's father's father late Velayudhan belonged to Veluthedathu Nair community and he was a W.P.(C) No. 19487 of 2011 - I 7 washerman serving the Tamil Brahmin families of the locality. The petitioner's father's mother Devaki also belongs to Veluthedathu Nair Community. 9. After an extensive enquiry it was also found that the maternal parents of the petitioner were also of Veluthedathu Nair Community. It is also found that on account of certain similarities of traditional occupation a few members belonging to Veluthedathu Nair Community have infiltrated into the fold of Scheduled Caste Vannan/Mannan Community for which they have employed various fraudulent methods. It is also indicated that there has been an organized move by the members belonging to Veluthedathu Nair Community to style themselves that S.C. Vannan Community. Therefore according to the report the petitioner and her sister were wrongly admitted as Scheduled Caste Vannan in School Records and therefore Community Certificates issued on the basis of such entries in the school records are false and requires to be set right. 10. This report is accepted by the Scrutiny Committee after giving an opportunity for hearing to the petitioner. No evidence is seen adduced by the petitioner to her caste status as W.P.(C) No. 19487 of 2011 - I 8 Vannan. 11. Having found so it may not be possible for this Court to enter into a different finding as held by a Full Bench of this Court in **Indira vs State of Kerala (2005(4)KLT 119 (FB)).** 12. However, the learned counsel for the petitioner relied upon **Prakash** v. **State of Kerala** (2002(2) KLT 580) to highlight the fact that the religion or caste of a child is told by his parents. He has no choice in that and therefore he cannot be accused of having done anything fraudulently. **Kavita Solunke vs State of Maharashtra and others (2012) 8 SCC 430)** is also relied upon wherein the Supreme Court held as under: “Applying the above to the case at hand we do not see any reason to hold that the appellant had fabricated or falsified the particulars of being a Scheduled Tribe only with a view to obtain an undeserved benefit in the matter of appointment as a teacher. There is, therefore, no reason why the benefit of protection against ouster should not be extended to her subject to the usual condition that the appellant shall not be ousted from service and shall be reinstated if already ousted, but she would not be entitled to any further benefit on the basis of the certificate which she has obtained and which was 10 years after its issue W.P.(C) No. 19487 of 2011 - I 9 ## cancelled by the Scrutiny Committee.” 13. The Special Government Pleader relied upon the following judgments to support the stand taken by the respondents. (i) **Usha Devi** v. **Union of India** [2007(4) KLT 755 (SC)] This judgment is relied upon to highlight the power of the Scrutiny Committee to consider the matters with reference to the procedure prescribed under S.11 of the Act in which the Supreme Court has held that when a competent statutory authority invokes its jurisdiction, the parties have to submit themselves to the said jurisdiction. ## (ii) **State of Maharashtra** v **Ravi Prakash Babulalsing** **Parmar** [(2007) 1 SCC 80]. This judgment refers to the power of the Scrutiny Committee wherein the Supreme Court held that it has been set up for a specific purpose. It serves social and constitutional purposes. It is constituted to prevent fraud on the Constitution. It may not be bound by the provisions of the Indian Evidence Act, but it would not be correct for the superior courts to issue directions as to how it should appreciate W.P.(C) No. 19487 of 2011 - I 10 evidence. (iii) **Central Bank of India** V. **Madhulika Guruprasad Dahir** [(2008) 13 SCC 170] in which the Supreme Court held as under: **“14.** Similarly, the plea regarding rendering of services for a long period has been considered and rejected in a series of decisions of this Court and we deem it unnecessary to launch an exhaustive dissertation on principles in this context. It would suffice to state that except in a few decisions, where the admission/appointment was not cancelled because of peculiar factual matrix obtaining therein, the consensus of judicial opinion is that equity, sympathy or generosity has no place where the original appointment rests on a false caste certificate. A person who enters the service by producing a false caste certificate and obtains appointment to the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine candidate falling in either of the said categories, of appointment to that post, and does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. **15.** An act of deliberate deception with a design to secure something, which is otherwise not due, tantamounts to fraud. Fraud is a conduct either by letter or words, which W.P.(C) No. 19487 of 2011 - I 11 induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. (See _R. Vishwanatha Pillai_ v. _State of Kerala_ , _Bank of India_ , _BHEL_ , _Derry_ v. _Peek_ , _Ram Preeti Yadav_ v. _U.P. Board of High School and Intermediate Education_ and _Bhaurao Dagdu Paralkar_ v. _State of Maharashtra_ .) **16.** In _Ram Chandra Singh_ v. _Savitri Devi_ this Court had observed that fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine”. **17.** Recently, in _State of Maharashtra_ v. _Ravi Prakash Babulalsing Parmar_ dealing with a similar situation, this Court has observed thus: (SCC p. 89, para 23) “ _23_ . The makers of the Constitution laid emphasis on equality amongst citizens. The Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, W.P.(C) No. 19487 of 2011 - I 12 he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter.” **18.** Having considered the matter in the light of the aforestated legal position, in our judgment, the decision of the High Court is untenable. As noted supra, the employee having accepted the finding of the Scrutiny Committee, holding that the caste certificate furnished by the employee was false, the very foundation of her appointment vanished and her appointment was rendered illegal. Her conduct renders her unfit to be continued in service and must necessarily entail termination of her service. Under these circumstances, there is absolutely no justification for her claim in respect of the post merely on the ground that she had worked on the post for over twenty years. The post was meant for a reserved candidate but she usurped the same by misrepresentation and deception. In our opinion, the fact that caste certificate was referred to the Scrutiny Committee for verification after ten years of her joining the service and a long time was taken by the Scrutiny Committee to verify the same is of no consequence inasmuch as delay on both the counts does not validate the caste certificate and the consequent illegal appointment. W.P.(C) No. 19487 of 2011 - I 13 **19.** We are also unable to persuade ourselves to agree with learned counsel for the employee that in the absence of any finding of fraud having been played by the employee, the order of the High Court is equitable and should not be interfered with. As noted above, the selection of the employee was conceived in deceit and, therefore, could not be saved by equitable considerations.” ## (iv) **G.Sundarasan** v. **Union of India** [(1995) 4 SCC 644 ] in which the Supreme Court held as under: **“1.** The petitioner was admittedly appointed in the quota of Scheduled Castes in the Income Tax Department and ultimately he rose to the status of Income Tax Inspector. Three years prior to retirement, he was called upon to prove that he is a Scheduled Caste and departmental enquiry was held. He was given opportunity and it was found, relying upon the entries in service book, SSLC Register and other documentary evidence, that he is not a member of the Scheduled Caste and as such he is not eligible to enjoy the status as a Scheduled Caste in the government service. On that premise, they imposed, under Rule 14 of CCS (CCA) Rules, punishment of forfeiting his pension. Calling in question that order dated 9-12-1987, the petitioner filed an OA in the Tribunal. The Tribunal, after elaborately considering the evidence on record, W.P.(C) No. 19487 of 2011 - I 14 confirmed the finding of the disciplinary authority that the petitioner had wrongfully gained appointment against the post reserved for Scheduled Castes, and imposition of penalty of forfeiture of pension was legal. **2.** We have gone through the reasoning of the Tribunal. We find that the same are perfectly justified. It is vehemently contended by the learned counsel for the petitioner, Shri Srinivasan, that a certificate was issued in 1956 by the competent authority stating that the petitioner belonged to the community recognised as a Scheduled Caste and the petitioner's grandfather belonged to Thotti Naicken community and he continued in office for a period of 30 years. At this belated stage, it cannot be held that he is not a Scheduled Caste and cannot be called upon to prove it once over. **3.** We cannot appreciate this stand taken by the petitioner. It is for the petitioner to prove that he belongs to the Scheduled Caste specified in the Presidential Notification in relation to the State to which he belongs and was born. In SSLC Register, the petitioner did not claim his status as a Scheduled Caste. On the other hand, his father's name was mentioned as Ganga Naidu and he claimed to be a Hindu. In those circumstances the certificate obtained from the Revenue Authorities in the year 1956 is obviously a false certificate. W.P.(C) No. 19487 of 2011 - I 15 **4.** Under these circumstances the penalty of forfeiture of pension cannot be said to be unwarranted. The petition is accordingly dismissed.” 14. Having regard to the factual circumstances involved in the above case, I cannot, but agree with the view expressed by the KIRTADS and Scrutiny Committee. The petitioner did not opt to give any evidence other than what they have stated in the writ petition. This is not a case wherein the petitioner can be said to have submitted a fraud, in availing the status of SC while in School. But the fact remains that petitioner's father or parents were involved in a fraud by making an entry in the school register regarding the community which is entitled for Scheduled Caste status and substantial benefits had been derived by the petitioner as a Scheduled Caste for a long period of time, even during her educational career. The facts remains that at least, at some point of time petitioner was aware of the fact that she was not a Scheduled Caste but she was labelled as one, and her father and mother were Veluthedathu Nairs. Such being the situation when she obtained the certificate of caste based on an incorrect entry in the S.S.L.C. certificate W.P.(C) No. 19487 of 2011 - I 16 which is apparently false, the fraud and deceit is made out. 15. True that by virtue of various orders passed by this Court, the petitioner is continuing in service. But that does not enable the petitioner to continue in service after a clear finding by KIRTADS and the Scrutiny Committee under the provisions of the Act. The judgment in **Kavita Solunke** (supra) will not render any assistance to the petitioner as the factual circumstance in that case was totally different, which is clear from the following paragraph: “ **16.** If “Halba-Koshti” has been treated as “Halba” even before the appellant joined service as a teacher and if the only reason for her ouster is the law declared by this Court in _Milind case_ , there is no reason why the protection against ouster given by this Court to appointees whose applications had become final should not be extended to the appellant also. The Constitution Bench had in _Milind case_ noticed the background in which the confusion had prevailed for many years and the fact that appointments and admissions were made for a long time treating “Koshti” as a Scheduled Tribe and directed that such admissions and appointments wherever the same had attained finality will not be affected by the decision taken by this Court.” W.P.(C) No. 19487 of 2011 - I 17 Therefore that was a case in which there was a confusion as to whether Koshti was a scheduled tribe or not and it was settled only in **State of Maharashtra vs Milind (2001) 1 SCC 4).** In the case on hand there was no such issue. Veluthedathe Nair's were not treated as SC at any point of time. Hence the judgment in **Central Bank of India** V. **Madhulika Guruprasad Dahir** [(2008) 13 SCC 170] clearly applies. In such circumstances, I do not think that this Court will be justified in interfering with Exts.P10, P11 and P13. 16. The petitioner has a case that she was not given ample opportunity to adduce evidence. The Scrutiny Committee's report would show that sufficient opportunity was indeed given, but they were seeking adjournments. 17. Still further it is pointed out by the learned Special Government Pleader that no prejudice is caused to the petitioner on account of her not being heard. As per the law laid down by the Apex Court as well as the Full Bench of this court in the aforementioned cases, it is for the claimants to adduce evidence to prove the caste status in the light of KIRTADS report. Even before this Court there is no material to come to a W.P.(C) No. 19487 of 2011 - I 18 different conclusion. Therefore, even assuming for the sake of argument that the petitioner did not get an opportunity to adduce evidence, in the absence of any material to indicate that prejudice is caused to the petitioner by not giving such an opportunity, I do not intend to interfere with the impugned orders. Hence the writ petition is dismissed. Sd/- **A.M.SHAFFIQUE, JUDGE.** rka /true copy/