IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26958 of 2008(H)
1. SIBI P.O., PUTHUPARAMBIL HOUSE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. KERALA INSTITUTE FOR RESEARCH,
3. SCRUTINY COMMITTEE FOR VERIFICATION OF
4. THE KERALA PUBLIC SERVICE COMMISSION,
5. E.K. PRAKASH, ADDITIONAL SECRETARY TO
For Petitioner :SMT.N.SANTHA
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :11/06/2009
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C)No.26958 of 2008
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Dated 11th June, 2009
JUDGMENT
Heard Sri.K.A.Balan, the learned counsel appearing for the
petitioner, Sri.P.Santhosh Kumar, the learned Government Pleader
appearing for respondents 1 to 3, Sri.Alexander Thomas, the learned
standing counsel appearing for the Kerala Public Service Commission
and Sri.P.Gopalakrishnan Nair, the learned counsel appearing for the
fifth respondent.
2. The fifth respondent was advised for appointment as
Under Secretary to Government by the Kerala Public Service
Commission on 29.4.1985. The fifth respondent was appointed as a
candidate belonging to Scheduled Tribe under a special recruitment
scheme. At that point of time, the petitioner herein was a minor aged
eight years. In this writ petition, the petitioner contends that the fifth
respondent had secured appointment as Under Secretary to
Government claiming to be a member of a Scheduled Tribe by
presenting a caste certificate fraudulently obtained by him. On this
ground, relying on the decisions of the Apex Court in Kumari
Madhuri Patil v. Addl. Commissioner, Tribal Development
((1994) 6 SCC 241) and R.Viswanatha Pillai v. State of Kerala
WP(C).No.26958/2008 2
((2004) 2 SCC 105), the petitioner contends that the fifth respondent
cannot continue in service and seeks a writ in the nature of mandamus
commanding respondents 1 to 4 to oust the fifth respondent from
service within a time limit to be fixed by this Court.
3. The pleadings disclose that the Scrutiny Committee
constituted by the Government as per G.O.(P)No.16/1995/SCSTDD.
dated 8.5.1995 had enquired into the caste status of the fifth
respondent based on a report submitted by the Vigilance Officer of the
KIRTADS to the effect that the fifth respondent is not a member of a
Scheduled Tribe. The Scrutiny Committee rejected the claim of the
fifth respondent that he belongs to the Uraly community, a Scheduled
Tribe in the State of Kerala. The said order was challenged by the fifth
respondent in O.P.No.11925 of 1998. It was heard along with
O.P.No.16129 of 1999 filed by a person claiming to be the member of
the Scheduled Tribe Community seeking implementation of the
decision of the Scrutiny Committee. The writ petitions were heard
together and a learned Single Judge of this Court after an elaborate
analysis of the pleadings and the evidence and the law on the point
held as follows:
“15. In the case at hand, the petitioner has
been admitted in Standard I by his parents in
Kattachira Tribal School with his caste as Malay
Uraly. The petitioner’s parents were residing in
the Tribal colony. Both of them underwent
training in a Craft Training Centre for Tribals and
they were admitted in the Centre as personsWP(C).No.26958/2008 3
belonging to Uraly (Scheduled Tribe) community.
This will be evident from Ext.P9. So, the
petitioner’s parents even at their young age were
claiming that they belong to Uraly (Scheduled
Tribe) community. The petitioner was admitted
by them in the school when he was a minor aged
about 5 years. According to the official
respondents, the petitioner’s grandfather was a
headman of Kuravas, locally known as `Uraly’ and
he started making the alleged false claim of being
a member of the Uraly Scheduled Tribe. It is also
alleged that he used his residence in the tribal
settlement as a ground for putting forward his
claim. The alleged sin dates back to the days of
petitioner’s grandfather. So, admittedly, the
petitioner’s claim was not something invented by
him. The religion or caste of a child is what he is
told by his parents. He has no free choice in that.
Since his school records including the S.S.L.C.
book showed that he is Malay Uraly, he applied for
the post of Under Secretary as one belonging to
the Scheduled Tribe. Since Malay Uraly was
treated as Uraly, the competent authority (the
Tahsildar) issued Ext.P22 certificate. A person like
the petitioner who applies for a post in the public
service cannot go to the KIRTADS and request
them to make a genealogical study and tell him
the correctness of his caste claim and thereafter
submit an application for employment relying on
such a certificate. The petitioner has done what
any other candidate would do, i.e. he relied on the
caste status mentioned in the school records and
in the certificate issued by the competent
authority. So, he cannot be accused of having
done anything “fraudulently”. Ext.P52 Act, it
appears, is not mean to deal with every mistaken
claim of caste, especially made by a member of
the SC/ST.
16. Anyway, I am not finally pronouncing on
the jurisdiction of the Scrutiny Committee or the
Government to take action under Act 11 of 1996
because so far the concerned authorities have not
initiated any proceedings under the said Act. The
petitioner has prayed for a declaration that
respondents 2 to 4 have no authority orWP(C).No.26958/2008 4
jurisdiction to determine the caste status of the
petitioner under Ext.P52 Act. The contentions of
the petitioner in this regard are kept open and he
may urge them, in case the Government or any
other competent authority proceeds against him
under Ext.P52. So it is not necessary to finally
decide whether the provisions of the Act are
attracted in the case of the petitioner.
17. The Original Petition is allowed quashing
Ext.P50. It is declared that the findings in Ext.P7
will not bind the petitioner. But, this will not stand
in the way of the Government using the materials
contained in Ext.P7 in accordance with law to
launch any fresh action against the petitioner, if
the same is legally permissible under Ext.P52.
The Government are restrained from taking any
action against the petitioner based on Ext.P50 or
Ext.P51.”
4. In view of the aforesaid findings O.P.No.16129 of 1999
was dismissed. What the petitioner herein seeks now is the reliefs
which had been sought for in O.P.No.16129 of 1999. A reading of
Ext.P6 judgment would show that this Court had in categorical terms
found that neither the fifth respondent nor his parents were guilty of
fraudulent conduct. The decision taken by the Scrutiny Committee
was quashed on the ground that it was issued in violation of the
principles of natural justice. However, while passing Ext.P6 judgment,
this Court had reserved the right of the Government to proceed afresh,
if it is legally permissible for the Government to proceed further with
the matter. This Court also restrained the Government from taking
any action against the fifth respondent based on the report submitted
by the KIRTADS. In this writ petition, what the petitioner seeks is
WP(C).No.26958/2008 5
essentially action pursuant to the report submitted by KIRTADS, which
a learned Single Judge of this Court has quashed in Ext.P6 judgment.
5. The learned counsel appearing for the petitioner
however submits that in view of Section 31 of the Kerala (Scheduled
Castes and Scheduled Tribes) Regulation of Issue of Community
Certificates Act, 1996 as amended by Act 32 of 2008, Ext.P6 judgment
cannot have any effect. In my opinion, the said contention is plainly
untenable. By section 31 as amended by Act 32 of 2008, the
Legislature has validated the action taken by the Scrutiny Committee
constituted under the Government order dated 8.5.2005, where the
action had been invalidated on the short ground that the Scrutiny
Committee constituted under the Government order dated 8.5.2005
was not competent to take a decision in the matter. In the instant
case, the action taken against the fifth respondent was not set aside
by this Court on the ground that the Scrutiny Committee was not
competent to take a decision. The decision of the Scrutiny Committee
was set aside on the ground that the conduct of the petitioner and his
parents were not fraudulent and that Scrutiny Committee acted in
gross violation of the principles of natural justice. Therefore, in my
considered opinion, the reliance placed by the petitioner on section 31
of the Act as amended by Act 32 of 2008 is plainly untenable.
6. Paragraph 17 of Ext.P6 judgment also restrains the
Government from proceeding against the fifth respondent based on the
WP(C).No.26958/2008 6
findings of the Scrutiny Committee. Ext.P6 judgment was upheld by a
Division Bench of this Court and also by the Hon’ble the Supreme
Court. I am bound by the findings and observations of this Court in
Ext.P6 judgment. In the light of the authoritative pronouncement of
this Court which binds the Government also, the petitioner cannot in
my opinion seek any of the reliefs prayed for in this writ petition.
Further, the petitioner was a minor when the fifth respondent was
advised. Even if the fifth respondent is ousted from service, it would
not enable the petitioner to secure employment. He will have to apply
for appointment as and when Kerala Public Service Commission invites
applications. He will have to undergo process of selection and must
get selected before he could claim a right to be considered for
appointment. In my opinion, in the light of the findings of this Court in
Ext.P6 judgment which was rendered in 2002, this writ petition filed in
2008 with full knowledge of the findings and observations therein is
nothing but an abuse of the process of the Court.
The writ petition fails and is accordingly dismissed. No
costs.
P.N.RAVINDRAN
Judge
TKS