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R. Arunkumar vs The Tahsildar on 18 October, 2010

Madras High Court
R. Arunkumar vs The Tahsildar on 18 October, 2010
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 18.10.2010

CORAM:

THE HONOURABLE Mr. JUSTICE D. MURUGESAN
and
THE HONOURABLE Mr. JUSTICE M. JEYAPAUL

Writ Petition No.20604 of 2010


R. ARUNKUMAR                            PETITIONER  
     
          Vs

1    THE TAHSILDAR                           
     POLUR TK 
     POLUR  
     TIRUVANNAMALAI DT			RESPONDENT  

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Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to call for the records relating to the rejection order in Na. Ka. G1/18091/2009 dated 18.1.2010 on the file of the respondent, quash the same and direct the respondent to issue community certificate to the petitioner that he belongs to Hindu Adi Dravidar Community.
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	For petitioner :  Mr.S.Doraisamy

      	For respondent :  Mr.M.Dhandapani,  Special Govt. Pleader.
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O R D E R

( Made by D. MURUGESAN, J. )
The prayer in this writ petition is for the issuance of a Community Certificate. The petitioner’s father belongs to the Adi Dravida community and his mother belongs to Christianity. The date of birth of the petitioner is 31.5.1992, as reflected from his school records. While he was a minor, the petitioner filed an application on 27.6.2009 before the authority concerned for issuance of a community certificate to the effect that he belongs to Adi Dravida Christian Community and such a certificate was also issued by the authority concerned. However, when such application was made, no declaration was given by his parents as to which religion the petitioner professes. Later on, after coming to know that his father professes Hinduism and his mother, though belonging to Christianity, also professes Hinduism, the petitioner made another application to the respondent on 2.12.2009 for grant of community certificate, which was rejected solely on the ground that the petitioner was earlier issued with a community certificate certifying him to be a Adi Dravida converted Christian, which is a Backward Class. The said order is put in issue in this writ petition on the ground that the core question relating to the religion which the petitioner actually practiced and professed by adopting Hinduism through his father has not been considered.

2. We have heard Mr. S. Doraisamy, learned counsel appearing for the petitioner and Mr. M. Dhandapani, learned Special Government Pleader appearing for the respondent.

3. There is no dispute as far as the religion of the petitioner’s parents is concerned, viz., the father and mother of the petitioner professing Hinduism and Christianity respectively from the time of their marriage. Equally, there is no dispute that the petitioner himself made an application on 27.6.2009 together with a declaration that he belongs to Adi Dravida Christian Community, on the basis of which he was issued with such a certificate. It is also not in dispute that when the said application was made, no declaration was filed by his parents as to which religion the petitioner has been professing. With this background in mind, the writ petition has to be decided.

4. Considering the claims of children born out of inter-caste marriages, the Government of Tamil Nadu issued G.O. Ms. No.477, Social Welfare Department, dated 27.6.1975, which reads as follows:-

“The Government have been extending certain concessions to the members of Scheduled Tribes, Scheduled Caste and Backward Classes from time to time. A question has arisen about the determination of the community of the children born of inter-caste marriages.

2. The Government after carefully examining the question, direct that the children born of inter-caste marriages, that is marriages,

(i)between a person of a Scheduled Tribe and another of a Scheduled Caste or Backward Class or Forward Classes;

(ii) between a person of a Scheduled Caste and another of a Backward Class or Forward Classes; and

(iii) between a person of a Backward Class and of a Forward Class,
shall be considered to belong to either the community of the father or the community of the mother according to the declaration of the parents regarding the way of life in which the children are brought up and that the declaration in respect of one child will apply to all children.”

5. By the aforesaid Government Order, a child born out of an inter-caste marriage shall be considered to belong to the community of the father or that of the mother and the request for issuance of a community certificate in respect of such a child shall be considered in the light of the above. However, such consideration can also be on the basis of a declaration of the parents regarding the way of life in which their children are brought up.

6. As far as the community certificate dated 27.6.2009 is concerned, the same was issued on an application made by the petitioner himself together with a declaration at the time when he was a minor. Such a declaration cannot be put against the petitioner by the respondent, as such a certificate issued on an application made by the minor himself cannot be legally sustained. That apart, even when the subsequent application was filed on 2.12.2009, the petitioner was a minor. In the normal course, the respondent ought not to have considered that application on merits and should have rejected it outright, as an application made by a minor requires no consideration. However, as of today, the petitioner is a major, on and from 4.3.2010. In these circumstances, we are inclined to consider the grievance of the petitioner on merits, on the following lines.

7. In terms of G.O. Ms. No.477, Social Welfare Department, dated 27.6.1975, the petitioner is entitled to apply for a community certificate claiming himself to be belonging to a religion professed either by his father or his mother. The petitioner’s father belongs to Adi Dravida community. It is the contention of the petitioner that his mother is also now professing Hinduism. Nevertheless, in terms of G.O. Ms. No.477, Social Welfare Department, dated 27.6.1975, an application has to be made to the authority concerned for issuance of a community certificate together with a declaration made by the parents regarding the way of life in which the applicant has been brought up. No such application together with declaration has been made in this case. That apart, certain modification was also issued in respect of the above G.O. Ms. No.477 dated 27.6.1975 by the Government in the subsequent G.O. (2D):17, dated 16.8.1994, wherein, in paragraph No.3, it has been modified as follows:

“3. In modification of the orders issued in G.O. Ms. No.477, Social Welfare Department, dated 27.6.1975, the Government directed that Scheduled Caste/Scheduled Tribe Certificates to the off-springs of inter-caste married couple, where one of the spouses is a member of Scheduled Caste/Scheduled Tribe community, will be issued after verification of the acceptance given by the members of Scheduled Caste/Scheduled Tribe community living in that area.”

In view of the above modification, the authority concerned should also verify the acceptance given by the members of the Scheduled Caste/Scheduled Tribe community living in the area in which the petitioner resides. As a necessary corollary, there are two contingencies for an applicant to get a certificate, viz., that at the time when an application is made, a declaration from the applicant’s father in terms of G.O. Ms. No.477 dated 27.6.1975 must also be filed and on receipt of such application together with the declaration, the authority concerned should carry out a verification in that area in terms of the said declaration.

8. Seen from the perspective of the aforesaid Government Orders, the impugned order suffers from the following defects:-

First of all, the order has been passed on an application made by the petitioner when he was a minor and therefore, it cannot be sustained. Secondly, the reason adduced to reject the certificate issued to the petitioner earlier, viz. that the petitioner had earlier made a declaration and obtained a certificate that he belongs to Adi Dravida converted Christian, cannot be said to be a valid reason, since at the time when the declaration was made, the petitioner was a minor, and therefore, it cannot be the basis for rejecting the earlier community certificate. Even assuming that the application of the petitioner could be considered, it should have been considered in the light of G.O. Ms. No.477, dated 27.6.1975, which was subsequently modified in G.O. (2D):17, dated 16.8.1994.

9. In the absence of the above, the impugned order cannot be sustained. Accordingly, the impugned order is set aside. The petitioner is at liberty to make a fresh application strictly in terms of G.O. Ms. No.477, dated 27.6.1975 together with the declaration form as required. If and when such an application is made, the Officer concerned, viz., the Tahsildar, Polur Taluk, shall cause verification as to the genuineness of that declaration in the locality where the petitioner and his parents reside, and pass appropriate orders. Such an order shall be passed within a period of three months from the date of receipt of such application from the petitioner. For this purpose, the petitioner is also permitted to furnish a copy of this order to the said authority.

10. With the above directions, this writ petition is allowed. No costs.

gs

To

THE TAHSILDAR, POLUR TK, POLUR,
TIRUVANNAMALAI DT.

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