In the High Court of Judicature at Madras
Dated: 29.01.2002.
Coram:
The Hon'ble Mr.Justice P.K.MISRA
Writ Petition No.6118 of 1997
and
W.M.P.Nos.10115/97 and 31494/2001
M.Avudaiappan ..Petitioner
vs.
1.The District Collector,
Tirunelveli Kattabomman
District,
Tirunelveli.
2.The Sub Collector,
Tenkasi,
Tirunelveli Kattabomman Dist.
3.The District Adi Dravidar
Welfare Officer,
Tirunelveli,
Tirunelveli Kattabomman Dist. ..Respondents
Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of Certiorari, as stated therein.
For Petitioner : Mr.V.Kannadasan
For Respondents : Mrs.N.G.Kalaiselvi,
Spl. Govt. Pleader
----
: O R D E R
Heard the learned counsel appearing for the petitioner and the
learned Special Government Pleader for the respondents.
2. Though the matter is listed for consideration of
miscellaneous petitions, in view of the fact that the question involved in the
miscellaneous petitions is same in the writ petition, on consent of the
counsels appearing, the writ petition itself is taken up for disposal along
with the miscellaneous petitions.
3. The petitioner entered into service prior to 1970, on
merit and not on the basis of any reservation. On the basis of
G.O.Ms.No.1564, Social Welfare Department, dated 30.7.1985, including OPS
Vellalar Community as Backward Class, the petitioner furnished community
certificate. Subsequently, the said community certificate has been cancelled.
This cancellation is being challenged in the present writ petition.
4. The petitioner has contended inter alia that while
cancelling the community certificate, the authority has relied upon the report
made by the Sub Collector even though copy of such report had not been
furnished to the petitioner. It is further submitted that the Sub Collector
had also taken the statement of several persons behind the back of the
petitioner without giving any notice. The petitioner has relied upon the
Division Bench decision of this Court, reported in 199 6 Writ L.R.480
(D.ILLAMARAN vs. GOVERNMENT OF INDIA).
5. Though a counter has been filed, the basic fact that
statements had been recorded behind the back of the petitioner and the report
of the Sub Collector had not been furnished to the petitioner, have not been
denied.
6. In the aforesaid Division Bench decision, it was stated as
follows:-
“Whenever such question arises, as to whether a person belongs
to a particular community recognised as the Scheduled Tribe or Scheduled
Caste, decision has to be taken by the Collector of the District, after
holding due enquiry or such case, he may himself hold an enquiry or direct the
Revenue Divisional Officer to hold an enquiry and submit a report. In the
event the Collector adopts the latter course, he has to make available a copy
of the report submitted by the Revenue Divisional Officer to the concerned
person and give him an opportunity to file his objections and adduce evidence,
if any and then decide the matter after hearing the aggrieved person, in the
instant case the petitioner. This we have been reiterating in several cases
and in spite of that the Collectors are committing the same mistakes. In view
of the fact that no opportunity whatsoever has been given to the petitioner to
prove his case, it is necessary to issue an appropriate direction to the
Collector as well as to respondents 1 and 2.
7. In view of the aforesaid decision, the cancellation of the
community certificate cannot be held to be legal and the matter has to be
reconsidered by the appropriate authority by giving adequate opportunity of
haring to the petitioner after furnishing the copy of the report of the Sub
Collector. It is made clear that if any statement made by any person is to be
relied upon, opportunity should be given to the petitioner to cross examine
such person.
8. The learned counsel appearing for the petitioner stated
that the petitioner has retired from service in the mean time, but, the
retirement benefits have not been given to the petitioner because of the
cancellation of the community certificate. It has been further stated that
even though the petitioner had been employed on the basis of selection as a
general candidate and subsequently, he had furnished community certificate,
but, on the basis of the said community certificate, no particular benefit has
been conferred on the petitioner. It is submitted that since the petitioner
had worked and retired in the meantime, his retiral benefits should not be
withheld on account of the cancellation of the community certificate.
9. It is obvious that the question of cancellation of
community certificate is required to be re-determined for the purpose of
benefit of his children and not for the benefit of the petitioner in service.
There is no dispute that no particular benefit had been availed by the
petitioner in his service career on the basis of so called community
certificate and therefore, it would not be appropriate to withhold the
pensionary benefits. Moreover, the petitioner has already worked and retired
and therefore, even assuming that the community certificate was not correct,
that would not be a ground to deny the retiral benefits to the petitioner at
this point of time.
P.K.
MISRA,J.
ATR
Therefore, it is made clear that the question of grant of retiral benefits to
the petitioner is not dependent upon the enquiry now to be conducted for the
purpose of consideration of the community certificate.
10. Subject to the aforesaid clarification, the writ petition
is disposed of. Consequently, W.M.P.Nos.10115/97 and 31494/2001 are closed.
There will no orders as to costs.
29.01.2002.
Index: Yes
ATR
sd/.
Assistant Registrar
/true copy/
Sub Assistant
Registrar
To,
1.The District Collector,
Tirunelveli Kattabomman
District,
Tirunelveli.
2.The Sub Collector,
Tenkasi,
Tirunelveli Kattabomman Dist.
3.The District Adi Dravidar
Welfare Officer,
Tirunelveli,
Tirunelveli Kattabomman Dist.
W.P.No.6118 of 1997