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Judgment
P. Shanmugam, J.—All these writ petitions relate to the community certificates. Community certificates issued by the issuing authority were verified by the District Scrutiny Committee and were found to be erroneous and that the Petitioners did not be long to the respective communities for which the certificates were obtained. Those orders cancelling the community certificates are now under challenge.
In some writ petitions, the Government order constituting a District Scrutiny Committee has been challenged.
Government of Tamil Nadu has passed two orders in reference to the scrutiny, verification of the community certificates. They are as follows:
(1) G.O.M.S. No. 2D No. 18(2), dt. 1.4.1997.
(2) G.O.Ms. No. 91, dated 31.8.1998. These Government Orders were intended for constitution of District level and State level committees to verify the community certificates issued. G.O.Ms. No. 91 dated 31.8.1998 is issued in reference to the Backward and Most Backward Community, whereas G.O.Ms. No. 18 is issued in reference to the Scheduled Castes and Scheduled Tribes Community. The District level committees consists of District Collector as President and the District Adhidravidar Welfare Officer as a Member Secretary. The State level Committee consists of Secretary, Adhidravidar and Scheduled Tribe Welfare Department as President and Director, Adhidravidar and Scheduled Tribe Department as Member Secretary and the Director, Scheduled Tribe Research Centre as Member.
The contentions raised by the Petitioners in all these writ petitions can be summarised as follows:
(1) The constitution of the Committees especially the District level committee is not in accordance with the directions contained by the Supreme Court in Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, .
(2) The orders passed by the Committee which was not properly constituted are not sustainable in law.
(3) On merits the orders of the committee cannot be substantiated.
On behalf of the Respondent, the learned Advocate General had made the following submissions:
(1) The question is no longer res integra and points raised by the Petitioners are already covered by the judgment of the Division Bench of this Court.
(2) If the order of the District level Committee is shocking to the conscience of this Court, the matter may be referred to the State level Committee to consider the matter as an appeal.
(3) The issuing authority are the head of the department have a right to cancel the orders issued based on the general principle of Sections 16 and 2 of the General Clauses Act. So far as there is no challenge as to the State level Committee and therefore, there can be no objection for the continuance of the State Level Committee.
I have heard the Learned Counsel for the Petitioners and the learned Advocate General.
Though no counter affidavit has been filed in these matters in the light of the legal submissions made by the Learned Counsel and the questions that I am going to decide, there is no necessity to controvert the factual aspects.
The community certificates issued by the Tahsildar or the Revenue Divisional Officer as the case may be at the instance of the claimants are subject to verification and scrutiny. The community certificates are issued on the claims made by the claimants and on that premises the officers act and therefore, if there is any doubt on the premises made, it is open to the authorities to scrutinise, verify and if necessary, cancel the same. The Government in their orders have constituted a District level as well as State level Committee. The questions therefore that arise for consideration are:
(1) Whether the Committees are constituted properly ?
(2) Whether the orders issued by the Committees are final ?
(3) Whether there is scope of interference with these orders of the Committees ?
All the counsel strenuously pleaded that the constitution of the District level Committee is contrary to the directions issued by the Supreme Court in Mathuri Patil s Case. After carefully going through the judgment of the Honourable Supreme Court. I find the Supreme Court thought it necessary to streamline the procedure for issuance of a social status: certificate, their scrutiny and their approval. The purpose for such procedure is according to the Supreme Court the admissions wrongly gained or appointments wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine SC/ST or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. The applicants may play fraud claiming false status certificates. It is therefore necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude.
The first report of the Backward Classes Commission of the year 1970 has also considered the production of false community certificates under the heading Abuse of Scholarship Concession in Volume I at page 157 in para 346 as follows:
As we have stated elsewhere some forward or socially higher castes have sometimes a Sub-section whose caste name is more or less similar or identical with a name found in the list of Backward Classes. Without compunction such loopholes are freely made use of. It is commonly said that Vellalas who are not in the list of Backward Classes in some areas declare themselves as Thuluva Vellalas or as Virakodi Vellalas and obtain scholarships. The abuse goes further, and far-sighted parents make such entries in school records even at the commencement of the children''s education. Otherwise, it is inconceivable that Virakodi Vellalas, a small group confined to a few Vellalas near Pudukkottai appear even in the southern-most district of Tirunelveli. The use of Thuluva Vellala is fairly widespread in all the northern districts. The large number of scholarships and admissions especially amongst the Virakodi Vellalas can be attributed only to the misuse of this obscure caste name.
The next group where this abuse takes place covers Vadugan and Kavarai in the list. Other branches of Telugu speaking people especially those who are entitled to describe themselves as Naidus or Naickers though they belong to different castes unhesitatingly describe themselves as Vadugans or Kavarais. We have dealt with these possibilities in our notes of these castes in Volume II. Similarly the entry. Ganjam Reddi is availed of by Reddis who are not really Ganjam Reddies. A similar situation arises in the abuse of the term, Nagaram. In Tamil Nadu at present there are no people who can be described as genuine Nagaram or Ganjam Reddies.
We have an entry for Sadhu Chetties including 24 Manai Telugu Chetties. It is alleged that Arya Vysia Chetties and other small sections of Chetties or Vysias who are not in the Backward Classes list sometimes describe themselves as Sadhu Chetties. This may be a reason for the figures under Sadhu Chetties under employment, education and scholarship, being very high.
348(a). There is an abuse also of the term, Labbai by some Muslims who ordinarily in normal social life will not describe themselves as Labbais. Whatever might have been the original meaning of the word Labbai, as we have pointed out in Chapter I itself, the term has been in practice extended to cover Tamil speaking Muslims. There is a distinction between Labbai, Rowther and Maracair in some districts even though all of them talk Tamil. It has been argued before us that this term is intended to cover all Muslims of Dravidian origin and that all the Tamil Muslims are entitled to describe themselves as Labbais. We have, however, ascertained that boys whose mother-tongue is Urdu, Arabic or Persian are also declaring themselves as Labbais. The term Labbai is used as synonymous with Muslims of Tamil Nadu.
348(b). We have dealt with the complications arising out of the misuses of caste names in our caste notes in Volume II. Administrative measures should be taken to stop such abuses as public opinion by itself is not strong enough in this respect.
The brochure on Reservation for Scheduled Castes and Scheduled Tribes in Services in Chapter XIV provides for verification of the correctness of caste certificates, if deemed necessary. Thus, taking advantage of the slight variations in the description of caste names like Kuruman-Kurumbar, Cholagar-Cholaga, Konda Reddy-Reddy. Kattunayakkan-Nayakkar, etc., it is not uncommon that community certificates are obtained so as to claim the reservation and other educational benefits made available to the backward, most backward classes, scheduled caste and scheduled tribe communities. In the light of the continuous abuse of these benefits on the basis of incorrect claims and certificates, the Supreme Court directed the method of issuing and scrutinising all the certificates.
Clause (1) of the direction relates to the application made for social status certificate before the Revenue Divisional Officer and Deputy Collector and the certificate shall be issued by such officer. Clause (2) speaks about issue of the certificate, the parents or candidate have to file an affidavit and other particulars as may be prescribed by the concerned directorate. Clause (3) speaks of verification of the castes certificate by Scrutiny Committee on application made at least six months in advance before seeking admission to educational institution or an appointment to a post. Procedure for constitution of such Committee is referred to under clauses 5 and 6. Clause 9 says that if after enquiry the Caste Scrutiny Committee finds the claim to be false or spurious they should pass an order canceling the certificate issued and confiscate the same. The order passed by the Committee shall be final and there will be only one remedy before the High Court under Article 226 of the Indian Constitution without any appeal.
A careful reading of the directions contained in the judgment of the Honourable Supreme Court reveals that the direction is in reference to the community certificates obtained by the candidates. The candidates themselves are required to submit their affidavits and other particulars as may be prescribed by the Directorate and applications have to be made for verification before the Scrutiny Committee. In other words no community certificate should go without being scrutinized by the specially constituted Committee. In all the cases before me Petitioners have already obtained community certificates and there is no application for verification by the candidates nor they filed affidavits and particulars as contemplated. In the cases before me, the District level Committee, after verification of the certificate, found that the candidates did not belong to the community to which the certificates relates or refers. The District level Committee is not the committee that is contemplated by the Honourable Supreme Court. The State Government is competent to issue orders in reference to the issue of community certificate and its verification. The Honourable Supreme Court has not taken away the power of the issuing authority or the District level Committee to verify or scrutinise the certificates issued previously. Therefore, the arguments of the counsel for the Petitioner that the District level committee is not constituted properly cannot be accepted.
Section 15 of the Madras General Clauses Act, 1891 provides for revocation and alteration of rules, by-laws and orders. Though this provision specifically speaks of an act, the general principle that has to be applied is that the authority who is empowered to issue an order has the same power to re-issue, rescind or revoke the order, if the original order has been obtained on an erroneous claim. The officer who had issued the initial order continues to be the issuing authority for the community certificate and therefore, he is entitled to issue a fresh order.
A Division Bench of our High Court in W.A. 1731 of 2000 dated 3.1.2001 considered the question whether the guidelines prescribed by the Supreme Court were followed by the State Government in the formation of the District Vigilance Committee. Their Lordships held that the State level caste scrutiny committee is in perfect consonance with the directions given by the Apex Court in Mathuri Patil ''s case. In addition to the State level committee, the Government also formulated District level Vigilance Committee with the task of reviewing the community certificate issued by the Tahsildar or by the Revenue Divisional Officer. Both the District level as well as State level committee would naturally operate in different fields. The Division Bench also held that whether there was a committee or not, once a community certificate is issued, the concerned officers or as a case may be, the State Government could always go in to the genuineness of the community certificate. The Division Bench has approved the view taken by the learned Single Judge in W.P. No. 14714 of 2000 dated 30.8.2000. Before the learned single Judge almost similar contentions were raised namely that there are only two members and that there is no expert in the committee and that there is no reference to OBC community and member belonging to the OBC community is not in the committee. The learned single Judge rejected all these contentions. Besides it is held that the District level committee is constituted independently by the Government for the purpose of verification and it is open to the District level committee to formulate its own procedure for verifying the community certificate.
In Sakthi Devi v. Collector of Salem 1984 Writ LR 535 it was held that a community certificate issued shall be valid till it is cancelled. The Division Bench has held in that judgment that it is open to the employer or department to ask the issuing authority or District Collector as the case may be to verify whether the certificate as issued could still be valid on materials which have since come before the knowledge that appear to the verification enquiry and place the material.
In causing verification, the Collector is bound to follow the procedure as laid down. In the same judgment their Lordships, referring to the General Clauses Act, held that a power to make an order includes the power to rescind it. Hence it empowers the authority who has brought into existence a lawful and valid certificate or his higher authority to cancel the caste certificate. It was further held the Government of Tamil Nadu in their letter dated 7.7.1983 had stated that the Collector can cancel the community certificate issued by a subordinate officer when it is found to be false. As to what he has to do under the circumstances clear cut directions have been issued regarding Agency or bodies/ institutions etc., will have to look to the Collector regarding the genuineness or otherwise of the certificate. The procedure followed by him having been specifically stated and the consequences which would fall not only on the acknowledgment but also on the issuing authority if the caste certificate is proved to be false, there is absolutely no scope to accept the contention that empowered authority would act in an irresponsible manner.
Reliance of the judgment of the Supreme Court in Baswant v. State of Maharashtra JT 2000 (10) SC 280 will not be of any assistance to the Petitioners to contend that District level Committee is not properly constituted. In that case the Respondents themselves have constituted a State level new Committee consisting of three members in the place of two member committee. As pointed out earlier the District level Committee, now constituted, is not a committee as contemplated by the Honourable Supreme Court for scrutinising of the certificates. It is only a committee for the purpose of verifying whether the certificate issued was still true on the materials which have since come to the knowledge of the issuing authority. It is also on the basis that the power to issue would include the power to rescind by the empowered authority or the higher authority. There is no bar in having a committee at the District level. The said committee is constituted under the executive authority of the State on the subject, and power of the District Collector of superintendence over the orders passed by subordinate officer. The District level committee has to be construed in that manner.
In Director of Tribal Welfare Vs. Laveti Giri and others, the Supreme Court while approving Andhra Pradesh SC ST and Backward Classes Regulation of Issue of Community Certificate Act held that rules can be framed in accordance with law and guidelines issued by the Supreme Court so as to suit the conditions of eacb State. The Andhra Pradesh Scheduled Castes. Scheduled Tribes and Backward Classes (Regulation of Issue of Community Certificates) Act, 1993 provides for the constitution of a District Level Committee. Though the Supreme Court noted that there is some variation in the matter of constitution of the committees, it upheld the Act holding that it substantially conforms to the directions issued by the Supreme Court.
The judgment in Dr. Vijay Laxmi Sadho v. Jagdish 2000 (1) Supreme 41 was referred in support of the contention that the matter must be referred to a Bench in the light of the order in W.P. No. 8573 of 2001 dated 26.4.2001 by another learned Judge. In W.P. 8573 of 2001, without going into merits of the contentions raised by the Petitioners, a direction was issued in terms of the Supreme Court judgment to constitute a proper committee. The learned Government Pleader did not bring to the notice of the learned Judge, the judgment of the Division Bench in W.A. 1731 of 2000 upholding the constitution of two member District Level Committee. Further the learned Judge did not go into the constitution of the committee. The direction or disposal of a case is not a binding precedent.
In State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, the Supreme Court held that a decision which is not expressed and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi any declaration or conclusion arrived without application of mind or proceeded without any reason cannot be deemed to be a declaration of law of authority of a general nature binding as a precedent.
In Prakash Amichand Shah Vs. State of Gujarat and Others, , the Constitution Bench of the Supreme Court held that a decision ordinarily is a decision on the case before the court while the principle underlying the decision will be binding as a precedent in a case which comes up for a decision subsequently. I find that the order in W.P. 8573 of 2001 did not decide the question involved and no reasons have been stated for the said view taken by the learned Judge. Further, the learned Judge had no opportunity of going through the judgment of the Division Bench.
The learned Advocate General submitted that the Petitioners, having submitted to the enquiry of the District Level Committee, are estopped from raising the competency after getting an adverse order. In this context, he referred to a decision in Pannalal Binjraj v. Union of India 1957 SC 397. It was held that when the Petitioners have submitted to the jurisdiction without raising any objection, they are not entitled to question the same after the decision. Petitioners have conceded and acquiesced themselves to the authority to decide the validity of the community certificate. Finding that the decision has gone against them, they have chosen to question the very jurisdiction of the authority and therefore, on this point also, Petitioners are not entitled to question the constitution of the committee.
It is seen that the question that a person belongs to a particular caste or community or religion is basically a factual determination. The burden of establishing a social status is always on the person claiming such a status. The Supreme Court, in Director of Tribunal Welfare, Government of Andhra Pradesh Vs. Laveti Giri and another, , in clear terns, held as follows:
The High Court wrongly cast the burden of proof on the Department when it squarely rested upon the candidate to prove his caste/ tribe according to the procedure prescribed under the rules. It is the duty of the certificate issuing authority to satisfy himself after due verification whether the candidates belong to Scheduled Caste or Scheduled Tribe, satisfies the criteria prescribed by the Government. Though the father managed to gain falsely social status as Tribe and wrongfully and unconstitutionally is in enjoyment of the benefit of employment as a tribe, it is not conclusive. It is not uncommon to corner such benefits because of connivance of officers and it is a known fact that the tribe of such officers has grown over years because the social crimes committed by them is either ignored by the superiors of their class or because they have a protective umbrella from their higher ups.
In order to establish whether a particular candidate belongs to any of the Scheduled Tribe/group diverse ethnic or cultural identities were mentioned. In Annexure I of the G.O. the candidates are required to furnish the particulars prescribed therein. The competent officer was to verify and satisfy himself of the true social status of the candidate before issuing the social status certificate.
We agree with the Learned Counsel for the Appellant that the High Court adopted a traditional approach of placing burden of proof of social status founded on the entries in Government record etc. and called upon the State to rebut it on the touch-stone of Evidence Act. We are unable to appreciate the view taken by the Division Bench. Burden of proof of social status is always on the person who propounds it to seek constitutional socioeconomic advantages. It is no part of the duty of the State to disprove or otherwise. The criteria to obtain caste certificate from Nativity Tahsildar/Mandar Revenue Officer/Revenue Divisional Officer is relevant for the reason that Scheduled Tribes generally live in forest areas, mountainous regions and specified pockets and will be known to local officers or easily accessible for verification.
(emphasis added).
Each social status claim has to be independently considered. Simply because the father had been issued with certificates, it does not automatically entail his other relatives to get the certificates. As has been noticed by the Backward Class Commission and the Supreme Court, there are large-scale fake claims and many go unnoticed without verification. Time has come to evolve a better system even at the initial stage of issue of certificates with the assistance of a team of officials, followed by verification. It is high time that the Government of Tamil Nadu has the matter examined and bring about a legislation with necessary guidelines and rules for identification, examination, verification and the consequence of bogus claims. In the words of their Lordships in the case referred to above Sic "so that the menace of fabricating the false records and to gain unconstitutional advantages by plain/spurious persons could be prevented. Lest they would defeat the Constitutional objective of rendering socioeconomic justice envisaged under Article 46 in the Preamble of the Constitution under Articles 14, 15, 16, 38 and 39."
Normally, the High Court will not interfere with the orders under Article 226 on factual findings as an appellate authority. The Government Order provides for an appeal to the State Level Committee. Hence, the Petitioners are to be given liberty to move the appellate authority.
On merits, it is also seen that in W.P. 1255 of 2001, the District level committee found that the Petitioner does not belong to Chozhaga community and it is found that he belongs to Chozhagar alias Thondaman community by detailed and considered order. In W.P. 2605 of 2001, the District level committee on verification of the genuineness of the Petitioners community certificates found that the Petitioner does not belong to Thulava Vellala Backward Class community, but gave a reservation to file an appeal to the State level scrutiny committee if aggrieved by the order. In W.P. No. 5363 of 2001, Petitioner has challenged the Government Order appointing the District Level Committee and the notice issued for an enquiry to verify the community certificate. In W.P. No. 5165 of 2001, the constitution of the District Level Committee and the order passed by the Committee dated 8.2.2000 is under challenge. In W.P. No. 12637 of 2001, the order passed by the District Level Vigilance Committee is under challenge. In W.P. No. 2276 of 2001, Petitioner has challenged the order of the District Level Committee holding that the Petitioner does not belong to Kuruman''s Community and canceling the earlier certificate issued by the Tahsildar. In this case, the Petitioner had filed an appeal before the State level committee and the same is said to be pending. In W.P. No. 446 of 2001, Petitioner has challenged the proceedings of the District Level Committee. In W.P. No. 2401 of 2001, Petitioner has questioned the order of the District Level Committee holding that the Petitioner does not belong to Kattunayakkan Community and giving liberty to the Petitioner to file an appeal to the State Level Committee. In W.P. No. 5554 of 2001, Petitioner has questioned the order of the District Level Committee holding that the Petitioner has cheated the Government by obtaining community certificate describing himself as Hindu Malaikuravan ; but as he did not belong to the said community, the said certificate was cancelled by order dated 23.1.1995. The said order also says that the Petitioner is at liberty to move the appeal within 30 days from the date of the order to the State Level Committee. In W.P. No. 913 of 2001, Petitioner challenges the order of the District Vigilance Committee holding that he does not belong to the Scheduled Caste Cholaga community and the he belongs to the Cholaga community, which is a Most Backward Class community.
In all these orders of the District Level Committees, the claims of the Petitioners have been considered on merits and decided against them. No grounds are made out before this Court to set aside these orders. The State Level Committee is also empowered to review the orders passed by the District Level Committee, including the orders passed by the District Collector. Therefore, there is a further remedy to the Petitioners against the orders impugned in these writ petitions. The Petitioners shall have further opportunity to establish their case and all the objections are left open to be considered by the State Level Committee. Petitioners are given liberty to submit their appeals to the State Level Committee and the time taken by them to pursue their relief before the court will be excluded if there is any time limit for preferring the appeal.
Petitioners are given two weeks time from today to file their appeals. It is open to the Petitioners to move interim applications for stay before the State Level Committee.
For all the above reasons, the relief sought for in the writ petitions cannot be granted. The writ petitions therefore fail and are accordingly dismissed. No costs. Consequently, the connected W.M. Ps. are closed.