In the High Court of Judicature at Madras
Date : 12..09..2008
Coram :
The Hon'ble Mrs. Justice Prabha Sridevan
and
The Hon'ble Mr. Justice V. Periyakaruppiah
Writ Petition No: 1339 of 2005
D. Thenmozhi,
Vettaikaran Street,
Banavaram Village,
Arakonam Taluk,
Vellore District. ... Petitioner
-vs-
1. The State of Tamil Nadu,
rep. by its Secretary to Government,
Adi Dravidar Tribal Welfare Dept.
Secretariat,
Fort St. George,
Chennai 600 009.
2. The District Collector,
Vellore District.
3. The Revenue Divisional Officer,
Ranipet, Wallajah Taluk,
Vellore District. ... Respondents
Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus calling for the records pertaining to the proceedings of the 3rd respondent under Na.Ka. No: A7/10693/2004 dated 18.11.2004 and quash the same as unjust, unlawful and arbitrary and direct the 3rd respondent to issue Caste Community Certificate to the petitioner mentioning Irular-Shikri (Vettaikkaran) recognized as Scheduled Tribe.
For petitioner : Mr. D. Rajagopal
For respondents : Mr. M. Dhandapani,
Special Government Pleader
.. .. ..
O R D E R
( Order of the Court was made
by Prabha Sridevan, J. )
The petitioner claims that,
” I belong to Irular, Shikari also referred to as Vettaikaran, which belongs to Scheduled Tribes Community. ”
According to the petitioner, The Presidential Order issued under Article 341 (1) of the Constitution of India would show that “Irular” also known as “Vettaikkaran” is notified as Scheduled Tribes Community and that in some place “Vettaikkaran” is also known as “Kattunayakan” which is a Schedule Tribe Community througout the State. According to her, there are several documents which show that her forefather belong to Vettaikaran which is a Schedule Tribe Community. In her transfer certificate while showing her community initially it was mentioned as “Kattunayakan” but, subsequently, it was struck off and mentioned as “Vettaikarar”. Petitioner’s father gave a letter for correction in the transfer certificate. In the meantime, petitioner received an interview letter and in that she was asked to furnish community certificate. Therefore, she applied to the Headmaster, Government Higher Secondary School, Banavaram, requesting him to issue a transfer certificate mentioning her community as “Hindu Vettaikaran instead of Kattunayakan / Vettaikaran (ST).” Her father also applied to the Revenue Divisional Officer, Ranipet, Vellore District, to issue community certificate mentioning their community as “Hindu Irular Shikari also known as Vettaikaran which is a Schedule Tribe Community”. It appears, in the meanwhile a community certificate was issued to her by the Deputy Tahsildar, Arakkonam, mentioning that the petitioner belong to Hindu-Vettaikarar Community which is recognised as a Most Backward Class as per G.O. ( M.S.) No: 1566, Social Welfare Department dated 30th July, 1985 vide sl. No: 182.
2. The 3rd respondent, under his proceedings dated 25.09.2003 rejected the petitioner’s request on the allegation that on enquiry it was found that she does not belong to Scheduled Tribe community and pursuant to the enquiry, the 2nd respondent rejected her claim holding that the petitioner does not belong to Hindu-Irular Shikar (Vettaikkaran) ( ST ) Community. Thereafter, petitioner filed W.P. No: 24135 of 2005 challenging the order of the 2nd respondent. This Court allowed the writ petition directing the authorities to consider petitioner’s claim. It is thereafter that the rejection order has been passed by the 3rd respondent which is challenged in the present writ petition.
3. The learned Special Government Pleader submitted that the writ petition deserves to be dismissed outright because the petitioner has claimed that she belongs to Vettaikaran which is sub caste of Kattunaicker community which is also known as Irular, Eriar, Poosari or Shikari and that the community mentioned by the petitioner did not find a place in the Presidential Order. The learned Special Government Pleader also submitted that this Court can decide only according to the Constitutional parameters, and no party claiming to belong to any sub caste or caste which does not find a place in the Presidential order is entitled to the benefit of reservation. For this purpose he relied on the decision reported in 2001 (1) S.C.C. 4 [State of Maharashtra vs. Milind and others].
4. We have considered the rival submissions. In the present case, the petitioner herself is not clear as to which caste she belongs to. At one place, she calls herself as belonging to “Vettaikkaran’ community also known as “Irular” and in other places she says she belongs to “Vettaikkaran” also known as “Kattunayakkan”. She has requested for a transfer certificate showing her as “Hindu Vettaikaran instead of Kattunayakan / Vettaikaran (ST).” At some other places, she has asked to mention her caste as “Hindu Irular Shikari also known as Vettaikaran”. Above all, we find that in her transfer certificate she is shown as “Vettaikarar” community and the community specified namely “Vettaikarar” belongs to Most Backward Class. The learned counsel for the petitioner strenuously urged that the enquiries were held behind the back of the petitioner without furnishing the report and hence, it deserves to be quashed and another enquiry must be held afresh. We are afraid this is not possible in view of the decision reported in (2001) 1 SCC 4 [State of Maharashtra vs. Milind and others] the Supreme Court held that,
” The States have no power to amend Presidential Orders. ……. ….. ….. Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste; a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342 particularly so when in clause (2) of the said article, it is expressly stated that the said Orders cannot be amended or varied except by law made by Parliament. ”
Further, in paragraph 28, the 5 Judge Bench held that no enquiry is permissible and no evidence can be let in to decide if any tribe or tribal community is included within the scope and meaning of the entry in the Presidential Order. Paragraph 28 reads thus,
” Being in respectful agreement, we reaffirm the ratio of the two Constitution Bench judgments aforementioned and state in clear terms that no inquiry at all is permissible and no evidence can be let in, to find out and decide that if any tribe or tribal community or part of or group within any tribe or tribal community is included within the scope and meaning of
the entry concerned in the Presidential Order when it is not so expressly or specifically included. Hence, we answer Question 1 in the negative.”
In that case, the question was whether the Tribe Halba Kosthi can be treated as Sub tribe of Halba/Halbi, and the fact finding authority had come to the conclusion that,
” …… the respondent 1 belonged to “Koshti” caste and has no identity with “Halba/Halbi” which is the Scheduled Tribe under Entry 19 of the Presidential Order, relating to the State of Maharashtra, and that the High Court cannot upset the finding of fact in exercise of its writ jurisdiction.”
We are bound by this decision and, therefore, we cannot direct a fresh enquiry by remanding the matter back to the respondents since on the face of it the tribe to which the petitioner claims to belong does not find a place in the Presidential Order and in fact the petitioner himself is undecided about the tribe she belongs to. On the face of it, her claim lacks merit. The writ petition is dismissed. Connected miscellaneous petition is also dismissed. No costs.
Index : Yes / No ( P.S.D.J. ) ( V.P.K.J. )
Website : Yes / No 12..09..2008
gp
To
1. The State of Tamil Nadu,
rep. by its Secretary to Government,
Adi Dravidar Tribal Welfare Dept.
Secretariat,
Fort St. George,
Chennai 600 009.
2. The District Collector,
Vellore District.
3. The Revenue Divisional Officer,
Ranipet, Wallajah Taluk,
Vellore District.
Prabha Sridevan, J.
and
V. Periyakaruppiah, J.
gp
W.P. No: 1339 of 2005
12..09..2008