Remanded

R.Kalyani v. The State Level Scrutiny Committee

Madras HC19 Sept 2019WP/8850/2019

Case brief

AI extract

What is this about?

The High Court set aside an order confiscating a petitioner's Scheduled Tribe certificate based on anthropological cultural assessment. The court remanded the matter, directing the respondent to verify the petitioner's ancestral community status in her state of origin before determining the certificate's validity and proceeding with further action.

What did the court decide?

The impugned order confiscating the community certificate was set aside, and the case was remanded to the 1st respondent to pass a speaking order within six months, including obtaining a report on the

R.Kalyani Vs The State Level Scrutiny Committee — Caste Atrocities | Madras HC (2019)

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IN HIGH COURT OF JUDICATURE AT MADRAS

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Reserved On 28.08.2019 Pronounced On 19.09.2019

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CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH

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AND

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THE HONOURABLE MR.JUSTICE C.SARAVANAN

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W.P.No.8850 of 2019

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and W.M.P.Nos.9407 & 9409 of 2019

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R.Kalyani ...Petitioner

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1.The State Level Scrutiny Committee, rep. by its Chairman and Secretary, to the Government, Adi Dravidar

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and Tribal Welfare Department Fort St.George, Chennai 600 009.

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2.The Food Corporation of India, No.8, Mayor Sathyamoorthy Road, Chetpet, Chennai 600 031. ...Respondents

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Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari to call for the records bearing proceedings No.22790/CV-4 (1)/2008-8 dated 08.03.2019 of the first respondent and quash the orders passed therein.

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For Petitioner : Mr.S.Prabhakaran, Senior Counsel

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for Mr.W.M.Abdul Majeed

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For R1 : Mr.V.Shanmuga Sundar Special Government Pleader For R2 : Mr.R.M.Muthukumar

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O R D E R

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C.SARAVANAN,J.

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The petitioner has filed the present writ petition to call for the records of the order dated 08.03.2009 passed by the 1^st respondent bearing reference Proceeding No. 22790/CV-4 (1)/2008-8 and to quash the same.

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2.By the impugned order, the 1^st respondent has directed confiscation of the “Hindu-Kurumans” Schedule Tribe Community Certificate dated 13.07.1984 issued by Tahsildar, Perumbur-Purusawalkam Taluk and has recommended the 2^nd respondent to take stringent action against the petitioner for obtaining bogus certificate.

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3.The petitioner was appointed by the 2^nd respondent as a Messenger (Class IV) in the year 1997 against the post reserved for Scheduled Tribe community. At the time of appointment, the petitioner produced the aforesaid “Hindu Kurumans” Scheduled Tribe community certificate.

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4.Complaints were received by the 2^nd respondent questioning the community status of the petitioner as “Hindu-Kurumans” alleging that the petitioner had wrongly claimed appointment against post reserved for persons belonging to the aforesaid community.

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5.Under these circumstances enquiry was ordered in the year 2004. By an order dated 16.12.2004 bearing proceedings No.o4/67003/2001, the District Level Vigilance Committee cancelled the aforesaid community certificate of the petitioner.

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6.The petitioner thereafter approached this court in W.P.No.39569 of 2004 against the cancellation of the community certificate. By an order dated 26.07.2005, the writ petition was allowed on the ground that the District Level Vigilance Committee which passed the said order had only two members and therefore did not have the authority to pass the said order. Accordingly, the cancellation was set aside without prejudice to any action that may be taken by the respondents.

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7.The petitioner was thereafter called to appear before the three-member committee of District Level Vigilance Committee on 11.04.2007. At that stage, the petitioner filed another writ petition vide W.P.No.15120 of 2007. By an order dated 01.04.2008, the court directed the 1^st respondent to consider the genuineness of the community certificate of the petitioner after collecting the papers from the District Level Vigilance Committee.

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8.The petitioner was asked to appear for an enquiry on 22.09.2011 and again on 13.11.2013. However, the petitioner failed to appear. Thereafter the petitioner was called for an enquiry again on 03.11.2015 when she produced the documents in support of her claim.

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9.After scrutinizing the documents and considering the questions posed and the answers elicited, the respondent has come to conclusion that the petitioner has obtained a bogus community certificate from Tahsildar, Perumbur-Purusawalkam Taluk.

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10.We have perused the impugned order and the submissions of the learned counsel for the petitioner and the respondents. The community certificate of the petitioner has been directed to be confiscated and the 2^nd respondent has been asked to take appropriate against the petitioner.

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11.The claim of the petitioner that she belongs to the aforesaid community has been held to be spurious in view of the contradictory reply given by the petitioner to same set of questions on two occasions on 03.11.2015 and on 24.01.2019 before the 1^st respondent State Level Scrutiny Committee. The relevant questions and the answers of the petitioner are as follows:-

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Sl.N	Question of	Deposition of the	Deposition of
o	the Committee	petitioner during the SLSC-I enquiry held on 03.11.2015	the petitioner during the SLSC- II enquiry held on 24.01.2019
1	Your Mother Tongue?	My Mother Tongue is Tamil	Tamil, Telungu
	cq;fs; jha;nkhop vd;d?	vd;Dila jha;nkhop jkpo;	jkpo;> njYq;F
2	Your Community?	My Community is Adhitharan.	Don't know
	cq;fs; Fyk; vd;d?	vd;Dila Fyk; Mjpj;jud; Fyk;.	njupahJ
3	Your family deity?	My family deities are Kalliamman, Gangaiamman, Maariyamman	Veerapathiran
	cq;fs; Fy nja;tk; vd;d?	vd;Dila Fy nja;tk; fhspak;kd;> fq;ifak;kd;> khupak;kd;.	tPug;gj;jpud;
4	Your special ritual manner?	Our community festival is ritualistic observance of fasting on February Month.	We did Pooja in Kalliamman temple on Aadipathinettu, Sivarathiri special, Lamp of Thiruvannamalai.
	cq;fs; rpwg;G topghl;L Kiw vd;d?	vd;Dila rKjhaj;Jf;fhd jpUtpoh gpg;utup khjk; Nehd;G itj;J topgLtJ.	Mbg;gjpndl;L fhspak;kd; Nfhtpypy; g+i[ nra;Nthk;. Rptd;uhj;jphp Fk;gpLNthk;> jpUtz;zhkiy jPgk;.

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Sl.N o	Question of the Committee	Deposition of the petitioner during the SLSC-I enquiry held on 03.11.2015	Deposition of the petitioner during the SLSC- II enquiry held on 24.01.2019
5	What is your occupation handed down in a family?	My family occupation (occupation handed down in a family) is cattle rearing, catching of snakes.	Cattle rearing
	cq;fsJ Fyj; njhopy; vd;d?	vq;fsJ Fyj;njhopy; ML> khL Nka;j;jy;> ghk;G gpbj;jy;.	ML Nka;j;jy;> khL Nka;j;jy;.
6	How do you call the Village President?	Sir, Master	Deity, Ancestor
	fpuhk jiytiu vt;thW miog;gPh;fs;?	ma;ah> FU vd;W miog;ghh;fs;.	nghpahz;lth;> nghpath;.
7	Whether the people belonging to your caste married to persons belonging to other castes?	We used to marry only the persons belonging to our caste.	We used to marry the persons belong to other castes.
	cq;fs; rhjpapdh; kw;w rhjpapdUld; jpUkzk; nra;thh;fsh?	jpUkzk; vq;fsJ rhjpapdUld kl;LNk nra;tJ tof;fk;.	NtW rhjpapdiu jpUkzk; nra;Ak; gof;fk; cs;sJ.

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12.Therefore, it has been concluded that the claim of the petitioner that she belongs to Hindu-Kurumans” Schedule Tribe Community Certificate was spurious.

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13.In the impugned order, reference has been made to report dated 29.06.2018 of the Deputy Superintendent of Police, Social Justice/Human Rights Wing and SC/ST Vigilance Cell Chennai-4. Though copy of the said report is not available in the impugned order, it has been mentioned that the claim of the petitioner was genuine and that the certificate issued to the petitioner was a genuine one.

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14.Paragraph 14 of the impugned order reads as under:-

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“The Director, Tribal Welfare, Chennai has forwarded the Deputy Superintendent of Police, Social Justice/Human Rights wing and SC/ST Vigilance Cell, Chennai-4 report to the State Level Scrutiny Committee vide Letter Na.Ka.TD/B2/424/2016, dated 16.08.2018. The Deputy Superintendent of Police, Social Justice/Human Rights wing and SC/ST Vigilance Cell, Chennai-4 in its report dated 29.06.2018 has stated that, based on the deposition of the witnesses and collected documents the “HinduKurumans” Scheduled Tribes Community Certificate issued to the individual is a genuine one.”

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15.The 1^st respondent has given weightage to a report of the anthropologist/member of the committee. The order refers to the cultural traits of the petitioner as observed by the anthropologist/member of 1^st respondent and it has been concluded as follows:-

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18.During the State Level Scrutiny CommitteeII enquiry, the anthropologist/Member of the Committee verified the individual’s unique customs and cultural traits and has given his report as follows:-

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“Tmt. R. Kalyani D/o. Thiru N.Ramaiah revealed cultural aspects of her community such as family, marriage, kinship and lifecycle ceremonies, which does not match with any Anthropological traits of the “Kurumans” community which the individual claim. Considering the above points into consideration the individual Tmt. R. Kalyani, D/o. Thiru N.

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Ramaiah could not substantiate her claim as “Hindu-Kurumans” Scheduled Tribe of Tamil Nadu and found it is “Not Genuine”.

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16.This Court in R Renganathan vs Tamil Nadu State Level Scrutiny Committee, Adi Dravider and tribal welfare Department in W.P.No.19076 of 2015 dated 27.08.2015, has held that as per the decision of the Hon'ble Supreme Court in Kumari Madhuri Patil and Another vs Additional Commissioner, Tribal Development and Others 1994 SCC (6) 241, if the claim of the applicant for social status is found not genuine doubtful or spurious or falsely or wrongly claimed, the applicant is entitled to a show cause notice along with a copy of the report of the vigilance officer calling upon the person concerned to file as explanation.

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17.Therefore, the Director, Vigilance Cell was required to follow the procedures contained in clause 13 (6) of the decision of the Hon'ble Supreme Court in the above case. Under these circumstances, the order was set aside and case was remanded back to the 1^st respondent consider the case denovo.

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18.The 1^st respondent has filed a detailed counter wherein it is stated that the order has been passed based on material evidence, oral statements elicited from the petitioner and the opinion of various anthropologist and therefore the impugned order passed by the respondent cannot be questioned.

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19.The report of the Deputy Superintendent of Police, Social Justice/Human Rights Wing and SC/ST Vigilance Cell dated 29.06.2018 Chennai which concludes that the petitioner’s Hindu-Kurumans” Schedule Tribe Community Certificate dated 13.7.1984 issued by Tahsildar, Perumbur-Purusawalkam Taluk but was genuine has not been discussed in the impugned order. It should have been considered by the 1^st respondent while passing the impugned order.

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20.Though not discussed in the impugned order, in the counter it has been also stated that petitioner’s father in a statement before the Vigilance Cell has deposed that he migrated from Shimoga District, Badhravathi, Harabilicherry , Karnataka during 1960 but has not produced any document to substantiate the same.

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21.If that be so, it goes without saying that unless the “Hindu-Kurumans” community is also recognised as a Scheduled Tribe Community in Karnataka, the petitioner was not entitled to a community certificate from the Tahsildar, Perumbur-Purusawalkam Taluk.

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22.As per the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and as inserted by Act 39 of 1991 the Hindu-Kurumans” Schedule Tribe Community in a Karnataka as well.

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23.Therefore, prima facie the “Hindu-Kurumans” Scheduled Tribe Community Certificate dated 13.07.1984 issued by Tahsildar, Perumbur-Purusawalkam Taluk to the petitioner appears to be valid on that court and its cancellation merely based on the interpretation given by the Anthropologist cannot be the sole criteria.

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24.In Marri Chandran Shekhar Rao vs Deen, Seth G.S.Medical College and others, (1990) 3 SCC 130, it was contended that the only way in which the fundamental rights of the petitioner under Articles 14, 19(1)( d), 19 (1)(e) and 19(1)(f) could be given effect to is by construing Article 342 in a manner by which a member of a Scheduled Tribe gets the benefit of that status for the purposes of the Constitution throughout the territory of India.

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25.The Hon’ble Supreme Court held as follows:-

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23.Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribe in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary ( sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education.

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Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration.

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26.In M.Panchatcharam vs Union of India and Another, 2017 SCC OnLine 28977, this Court held as follows:-

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In view of the aforesaid legal position set out supra, the Writ Petition is disposed holding that persons who have been born and brought up in the Union Territory of Pondicherry whose caste have been notified as Scheduled Caste in the Constitution (Pondicherry) Scheduled Castes Order, 1964, would be entitled to obtain the Scheduled Caste Certificate from the prescribed authority of Union Territory of Pondicherry in terms of Letter No.BC-16014/1/82-SC & BCD-I, dated 22.02.1985 of the Government of India and that if their ancestors and forefathers had migrated to the Union Territory of Pondicherry only after 05.03.1964, they will be deemed to be a Scheduled Caste of the State of their origin and will be

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entitled to derive benefits from the State of their origin and not from the Union Territory of Pondicherry. No costs.

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27.If the petitioner’s family had indeed migrated from Shimoga District, Badhravathi, Harabilicherry, Karnataka in the year 1960, question to be answered on facts is whether the petitioner's ancestors from the said place belong to 'Hindu-Kurumans' Scheduled Tribe Community.

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28.In our view, therefore, a report from the Tahsildar from the Shimoga District, Badhravathi, Harabilicherry, Karnataka should be obtained confirming whether the petitioner's family indeed belongs to “Hindu-Kurumans” Scheduled Tribe Community in Karnataka. If such a report is given in favour of the petitioner, the said Community Certificate granted to the petitioner can be treated as having given validly.

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29.We are therefore of the view that the impugned order passed by the 1^st respondent merely based on the cultural traits of the petitioner as observed by the anthropologist by itself was not sufficient and is therefore liable to be set aside.

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30.We therefore set aside the impugned order and remit the case back to the 1^st respondent to pass an speaking order considering the above observations. The 1^st respondent shall pass an order within a period of six months from date of receipt of a copy of this order. Needless to state, in case the 1^st respondent is inclined to cancel the aforesaid community certificate of the petitioner, notice shall be issue to the petitioner before passing order. The petitioner will be entitled to make legal submissions that are available to her.

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31.Writ petition stands disposed with the above observation. No costs. Consequently, connect Miscellaneous Petitions are closed.

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Sd/-

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Assistant Registrar(Cj conf)

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//True Copy//

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Sub Assistant Registrar

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jen

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1.The Chairman and Secretary to the Government, State Level Scrutiny Committee, Adi Dravidar and Tribal Welfare Department Fort St.George, Chennai 600 009.

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2.The Food Corporation of India, No.8, Mayor Sathyamoorthy Road,

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Chetpet, Chennai 600 031.

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+2ccs to Mr.W.M.Abdul Majeed , Advocate SR.No. 80688 +1cc to Mr.R.M.Muthukumar , Advocate SR.No. 80811 +1 cc to Government Pleader Sr.No. 81561

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W.P.No.8850 of 2019 and W.M.P.Nos.9407 & 9409 of 2019

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A.SK(30/10/2019)

R.Kalyani v. The State Level Scrutiny Committee

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What is this about?

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R.Kalyani v. The State Level Scrutiny Committee

Case brief

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