IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12/8/2010 C O R A M THE HONOURABLE Mr. JUSTICE C. NAGAPPAN and THE HONOURABLE Mr. JUSTICE P.R.SHIVAKUMAR Writ Petition No. 14110 of 2010 T.V.Dharmalingam ... Petitioner Vs 1. The Head of Department (Spl.Exams) Central Board of Secondary Education New Delhi. 2. The Chairman Central Counselling Board Visweshvariah National Institute of Technology, Nagpur Maharashtra State. 3. The Chairman Central Counselling Board National Institute of Technology Tiruchirappalli, Tamilnadu State. 4. The Sub-Collector Tirupathur Division, Vellore district. ... Respondents. Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein. For Petitioner ... Mr. K.Prabakaran for W.M.Abdul Majeed For R1 ... Mr. Nagarajan For R4 ... Mr. K.Balasubramanian, Spl.G.P. O R D E R
(The Order of the Court was made by C.NAGAPPAN, J.)
The petitioner has sought for issuance of a writ of Certiorarified Mandamus to quash the impugned order, dated 15.2.2010, passed by the fourth respondent in Na.Ka.A1/5477/07 and consequently, direct the fourth respondent to issue community certificate to the petitioner’s children, namely, (1) D.Gowtham Raj, (2) D.Harish and (3) D.Sudha stating that they belong to Hindu ‘Kurumans’ community, which is a Scheduled Tribe as per the Presidential Notification.
2. The facts leading to filing of the petition is as follows:
The petitioner applied for issuance of Community Certificate to his children, namely, (1) D.Gowtham Raj, (2) D.Harish and (3) D.Sudha to the effect that they belong to Hindu ‘Kurumans’ community, which is a Scheduled Tribe, by application dated 11.6.2007. The said application was rejected by the Sub-Collector, Tirupattur, by Order dated 30.5.2009. Challenging the same, the petitioner filed writ petition in W.P.No.12661 of 2009 seeking for issuance of a writ of Certiorarified Mandamus to quash the said Order, dated 30.5.2009, and to direct the second respondent, who is the Sub-Collector, Tirupattur, to issue Hindu ‘Kurumans’ permanent Community Certificate to the petitioner’s children. This Court by Order dated 6.8.2009 allowed the writ petition and set aside the impugned order and remitted the matter to the Sub-Collector for fresh consideration. The fourth respondent, namely, the Sub-Collector, Tirupattur, conducted enquiry on 1.10.2009 by examining the petitioner and again, rejected the claim of the petitioner and held that the petitioner does not belong to Hindu ‘Kurumans’ community, a Scheduled Tribe, and he is not entitled for issuance of Community Certificate as applied for. Challenging the said order, the present writ petition is filed.
3. The fourth respondent, namely, the Sub-Collector, Tirupattur, has filed detailed counter affidavit. During arguments, the learned Special Government Pleader produced the file relating to the impugned order.
4. Mr. V.Nagaraj, Central Government Standing Counsel, took notice for the first respondent and nobody appeared for respondents 2 and 3.
5. We heard the submissions of Mr. S.Prabakaran, learned counsel appearing for the petitioner, and Mr. K.Balasubramanian, learned Special Government Pleader, appearing for the fourth respondent and we perused the entire materials produced on both sides.
6. The claim of the petitioner is that he belongs to Hindu ‘Kurumans’ community and he himself was issued with a Community Certificate in Sl.No.2824/77, dated 16.7.1977, by the Tahsildar, Tirupattur; that in the year 1980 when he again applied for fresh Certificate to be issued in a format, he was asked to hand-over the original certificate and he did so and that the said certificate has not been returned to him till date. However, the petitioner, who is working as Postal Assistant in Post & Telegraph Department, has produced copy of the first page of the Service Book in which it is stated that the petitioner T.V.Dharmalingam is a member of Scheduled Tribe. In the typed set filed by the petitioner in support of his claim, a copy of the application dated 6.12.1980 addressed to the Tahsildar, Tirupattur, seeking for issuance of a fresh Community Certificate for him by enclosing the earlier Community Certificate issued to him, is found. On the backside of the said application there is an endorsement of the Revenue Inspector, Tirupattur and it reads as follows:
“Submitted:
As per the certificate (enclosed) issued by the Tahsildar, Tirupattur, Sl.No.2824/77 dt.16.7.77, Thiru T.V.Dharmalingam, S/o. T.L.Veerabadran of Matrapalli village belongs to Kurumans. He has not produced any other documents regarding this matter. Action may be taken according to the discretion of the Tahsildar in this matter.
Sd/-
Revenue Inspector,
……
Tirupattur, N.A.
To
The Tahsildar,
Tirupattur, N.A.”
The above document clearly shows that the petitioner was issued with a Community Certificate stating that he belongs to Hindu ‘Kurumans’ community in Sl.No.2824/77 dated 16.7.1977 and he had submitted the same along with the letter dated 6.12.1980 to the Tahsildar, Tirupattur. The said Community Certificate dated 16.7.1977 was not returned to the petitioner. This is evident from the averment found in page 3 of the counter affidavit filed by the fourth respondent, which reads thus –
“Regarding Para 3 of the affidavit it is submitted that all the certificates issued as “Hindu Kurumans” have been cancelled in G.O.Ms.748 dated:27.10.77. Hence the certificate dated : 16.7.77 deemed to have been cancelled and need not be given back to the petitioner.”
7. The petitioner made an application dated 11.6.2007 to the fourth respondent, namely, the Sub-Collector, Tirupattur, seeking for issuance of Community Certificate to his children, namely, (1) D.Gowtham Raj, (2) D.Harish and (3) D.Sudha, stating that they belong to “Hindu Kurumans” community. The petitioner along with his application enclosed 15 documents in support of his claim. That application came to be rejected by the fourth respondent by Order dated 30.5.2009. The same was challenged and this Court set aside the said order on the ground of non-consideration of all the documents relied on by the petitioner and the matter was remitted back to the fourth respondent to dispose of the petitioner’s application within a time frame by properly considering the evidence adduced by him. Thereafter, the petitioner sent further representation dated 19.8.2009 seeking for issuance of Community Certificate to his children by enclosing 18 documents. The petitioner was examined on 1.10.2009 by the fourth respondent. Thereafter, the fourth respondent passed the impugned order dated 15.2.2010 once again rejecting the claim of the petitioner. In the impugned
order, the fourth respondent has referred to only four documents as having been produced by the petitioner during the enquiry and has dealt with the same. Regarding the other documents enclosed by the petitioner along with his application, the fourth respondent has only stated that those documents were not produced by the petitioner during the enquiry.
8. The learned counsel for the petitioner strenuously contends that the observation of the fourth respondent in the impugned order that the petitioner has not produced any other document other than the four referred to, is baseless and on the other hand, at every stage, the petitioner along with his representation has enclosed the copies of the documents relied on by him and if really there was no such enclosures, the fourth respondent would have immediately either returned the application or would have intimated the petitioner about the absence of the enclosures. However, the learned Special Government Pleader repudiates the said contention.
9. It is pertinent to point out that on our perusal of the file, we find, copies of all the documents relied on by the petitioner are found in the Enquiry File of the fourth respondent itself. The documents which were mainly relied on by the petitioner are as follows:
(1) Copy of the first page of the Service Register of the petitioner.
(2) Copy of the Community Certificate, dated 6.10.1989 issued to G.Kalaiselvi, D/o. Gangadharan. (3) Copy of the Community Certificate, dated 27.6.1995, issued to G.Jayanthi, D/o. Gangadharan. (4) Copy of the Community Certificate of Gangadharan. (5) Community Certificate, dated 11.7.1985 issued to Padmasini, D/o. Ranganathan. (6) Community Certificate, dated 1.8.1997, issued to Sekar, Husband of Jayanthi. (7) School records of children of the petitioner and his elder brother Gangadharan. (8) The sale deed dated 9.8.1958, bearing Document No.3318/1958, executed in favour of Lingammal, who is the senior paternal uncle's wife of the petitioner. (9) Guarantee Deed dt.11.7.1978 executed by the petitioner and his brother Gangadharan in favour of Sri Vinayaga Commercial Finance Corporation. (10) Other sale deeds and partition deed of the years 1982, 1983, 1987, 1997 and 2005, and (11) First page of Service Book of G.Ranganathan, who is the petitioner's father's brother's son.
10. The fourth respondent in the impugned order has referred to Sl.No.1, the first page of the Service Register of the petitioner, and has observed that there was an entry to the effect that the petitioner is a member of Scheduled Tribe, but the name of the community is not mentioned therein. The fourth respondent has also considered the document in Sl.No.11, namely, the first page of Service Book of Ranganathan and has observed that all the entries therein including the entry that he is a member of Scheduled Tribe are made in one hand-writing and the entry “(KURUMANS CASTE)” is in a different hand-writing and hence, the document is suspicious and cannot be relied on. Except the above two documents, the fourth respondent has not considered any other document relied on by the petitioner referred to above. On the other hand, the fourth respondent refers to the following documents in the impugned order in support of his conclusion –
(1) Extract of Admission Register of Vadakkupattu Panchayat Union Elementary School in which the petitioner studied.
(2) The Sale deed dated 14.11.1966 executed by Veerabadran and Salammal, parents of the petitioner, selling the property to one Rengasamy, and
(3) An entry regarding death of Salammal in the Death Register of the year 1974 of Matrapalli village.
The fourth respondent has observed that in the first document, namely, Elementary School record, it is mentioned that the petitioner belongs to “FWkh;” (KURUMAR) community; in the second document, the vendors were described as belonging to “FUk;gh;”; and in the third document, Salammal, mother of the petitioner, is mentioned as belonging to “,e;J FUk;gh;” and the particulars were said to have been given by Gangadaran, elder brother of the petitioner.
11. The learned Special Government Pleader also produced the original Death Register of the year 1974 and we noticed the presence of signature of Gangadharan as against the entries pertaining to Salammal. Based on the above three documents, the
fourth respondent has concluded that the petitioner belongs to “,e;J FUk;gh;;” community, which is a Most Backward Class and he does not belong to “,e;J FUkd;!;” community, a Scheduled Tribe. Copy of the second document, referred above, namely, the sale deed dated 14.11.1966 is not available in the file. Therefore, there is no proof to show that the said document contains such an entry as referred to in the impugned order. In the first document, namely, the Elementary School Record of Vadakkupattu Panchayat Union, the entry pertaining to the petitioner is that he belongs to “FUkh;” community. The submission of the learned counsel for the petitioner is that “FUkd;” and “FUkh;” are one and the same. The explanation offered by him is that the plural for “FUkd;” in Tamil is “FUkh;” and the plural for ‘Kuruman’ in English is ‘Kurumans’ and hence the Tamil expression “FUkh;” should be treated as plural of “FUkd;”. The learned counsel for the petitioner also points out that there is no entry as “FUkh;” in the list of B.C. or M.B.C. On the other hand, the entry in MBC is “Kurumba”. It is no doubt true that in the third document, namely, the Death Register, Salammal, mother of the petitioner is referred to as belonging to “FUk;gh;”. Even if the Register is to be attached with some evidentiary value, when there are overwhelming evidence to the contrary, the said entry alone cannot be the basis for determination of the issue.
12. Though the documents relied on by the petitioner have been referred to in the earlier writ petition as well as in the earlier and subsequent representations of the petitioner, the fourth respondent has not properly considered them in the impugned order. In the counter affidavit filed in the writ petition, the fourth respondent has referred to the Community Certificates of Jayanthi, Sekar and Padmasini and observed that the first two certificates were issued by the Revenue Divisional Officer, Dharmapuri, and the third one was issued by the Tahsildar, Erode and hence, the genuineness of the certificates could not be ascertained since they were issued in other districts. Such an averment is made only in the counter affidavit and even such an averment is untenable, when the said documents were relied on by the petitioners, it is incumbent on the part of the fourth respondent to consider the same and he cannot shirk his responsibility by merely stating that they were issued in other districts. In the same way, the fourth respondent in the counter affidavit has referred to the Service Register of the petitioner and observed that the entry shows merely that he is a member of Scheduled Tribe and there is no mention of the name of the community. When such an entry is explicit on record it is for the fourth respondent to find out the basis on which such an entry was made in the Service Register and no steps have been taken by him in this regard and hence, the entry cannot be disbelieved. The fourth respondent himself in the counter affidavit has stated that the original community certificate of the petitioner need not be given back to him, which shows clear admission that the original Community Certificate of the petitioner is with the revenue authorities. When the petitioner himself was issued with a Community Certificate stating that he belongs to Hindu Kurumans community, a Scheduled Tribe, without cancelling the same in a manner known to law, the entry in the Service Register regarding the Community of the petitioner cannot be doubted.
13. Admittedly, Gangadharan is the elder brother of the petitioner and G.Kalaiselvi is his elder daughter. The Tahsildar, Tirupattur, has issued Community Certificate, dated 6.10.1989 to her sating that she belongs to Hindu Kurumans community, which is a Scheduled Tribe. Copy of the Certificate is found in page 21 of the typed set. It is also available in the file produced by the learned Special Government Pleader. It is relevant to point out that the Tahsildar was the competent authority to issue Community Certificate on the date of issue. In the same way, Jayanthi is another daughter of Gangadharan and the Revenue Divisional Officer, Dharmapuri, has issued Community Certificate dated 27.6.1995 to her stating that she belongs Kurumans community, a Scheduled Tribe. Copy of the same is also found in the typed set and the file. Both the above Community Certificates are in force.
14. G.Ranganathan is said to be the father’s brother’s son of the petitioner. A copy of the first page of his Service Book has been produced by the petitioner in which it is recited that he belongs to Scheduled Tribe “(Kurumans Caste)”. The said document is doubted by the fourth respondent in the counter affidavit filed by him in the case. Such a doubt is baseless in the light of the fact that the file contains a copy of the Community Certificate issued to G.Ranganathan stating that he belongs to “Kurumans” community of Scheduled Tribe. The said certificate was issued in the year 1957 itself.
15. Though the Community Certificate, dated 1.8.1997, issued to K.Sekar, son-in-law of the brother of the petitioner, is also produced by the petitioner, it is not of much relevance to the claim. Even then, in the absence of any plea of inter-caste marriage, the said document cannot be rejected as totally irrelevant.
16. One of the documents relied on by the petitioner is the copy of the sale deed of the year 1958 bearing Document No.3318/1958 on the file of Sub-Registrar, Tirupattur, in which the purchaser Lingammal is shown as belonging to “Kurumans” community. The said Lingammal is the senior paternal uncle’s wife of the petitioner. Similarly, there are other registered documents like sale deed, etc., showing the community of the petitioner and his relatives as “Kurumans”. The petitioner was given a Community Certificate stating that he belongs to “Hindu Kurumans” community. His elder brother and his children were also issued with Community Certificate to the very same effect. Those documents have not been cancelled and are in force. We are of the considered view that the fourth respondent has not considered the primary documents relied on by the petitioner, which are of more evidentiary value and has rejected the claim of the petitioner on untenable grounds. The finding of the fourth respondent in the impugned order that the petitioner does not belong to “Hindu Kurumans” community is perverse and liable to be rejected.
17. In the facts and circumstances of the case following the ratio of the decision of the earlier Division Bench of this Court, we are inclined to give a positive direction to the fourth respondent to issue to issue Community Certificate to the children of the petitioner as belonging to “Hindu Kurumans” community.
18. In the result, the writ petition is allowed, the impugned order of the fourth respondent, dated 15.2.2010, is set aside and the fourth respondent is directed to issue Community Certificates to the children of the petitioner, namely, (1) D.Gowtham Raj, (2) D.Harish and (3) D.Sudha that they belong to “Hindu Kurumans” community, a notified Scheduled Tribe, within a period of four weeks from the date of receipt of a copy of this order. There shall be no order as to costs. Consequently, MP No.2 of 2010 is closed.
pb
To
1. The Head of Department (Spl.Exams)
Central Board of Secondary Education
New Delhi.
2. The Chairman
Central Counselling Board
Visweshvariah National Institute of
Technology, Nagpur
Maharashtra State.
3. The Chairman
Central Counselling Board
National Institute of Technology
Tiruchirappalli, Tamilnadu State.
4. The Sub-Collector
Tirupathur Division,
Vellore district
