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Judgment
Sathadev, J.—Petitioner, after passing M.B.B.S., applied for the post of Assistant Surgeon in the Tamil Nadu Medical Service, on 10th
May 1978. He claimed that he is a Scheduled Tribe belonging to Konda Reddi community. He received the Memo, dated 4th November 1978
from first Respondent stating that, as his claim, that he belongs to Konda Reddi community was doubtful, Collector of Tiruchirapalli, after causing
necessary enquiries, had reported that no such community exists in any part of Tiruchirapalli District and that the claim of the Petitioner is not
correct, and therefore a false claim having been made, his application was rejected. He was called upon to show cause as to why he should not be
debarred from appearing for any of the examination or selections to be conducted by the Commission in future for the false statement made by
him. Aggrieved with this Memo, he has filed this writ petition.
In the counter-affidavit, it is stated that, on receipt of the report of the Collector, who had made enquiries through District Harijan Welfare
Officer, the application was lightly rejected, as the Petitioner failed to adduce any evidence that he belongs to Konda Reddi Community. When a
valid enquiry was conducted and the Petitioner was given an opportunity to-adduce evidence, it cannot be said that there was no reasonable
opportunity extended to him to establish/that he belongs to Konda Reddi Community. The application was rejected not because no person
belonging to the said community, resides in Tiruchi district as stated by the Collector, but because the Petitioner was not able to prove that he
belongs to Konda Reddi Community, when an enquiry was conducted in which the Petitioner, his father and village officers were also examined.
Mr. M. Velusamy, learned Counsel for the Petitioner, contended that the first error committed by the second Respondent referred a
communication that there are on Konda Reddy community existing in Tiruchirapalli district, which is contrary to existing Presidential Notification
made by the President of India under Article 342 of the Constitution of India. In the counter-affidavit it is admitted:
I submit that it is true that the Konda Reddi Community is included in the list of Scheduled Tribes throughout the state of Tamil Nadu except in
Kanyakumari district and Shencottah taluk of Kanyakumari district.
Therefore on this point there need be no further discussion.
The next point is that, in spite of such a Notification being in force, was not the second Respondent, the Collector of Tiruchirappalli is error in
informing authorities that there is no community called Konda Reddi in any part of the Tiruchirappalli district, and that therefore the claim of such
persons is not a bona fide one? It is not only in this petition, but in other writ petitions also, this aspect has been dealt with, holding that the
Collector has acted illegally and knowingly contravened the Presidential Notification.
Realising the error committed by the Collector, which had caused considerable damages to Scheduled Tribes, in letter dated 1st August 1980,
Government had addressed the Collector as follows:
Therefore till the area restriction is imposed, the general order instructing the Tahsildar not to issue community certificate even to genuine cases
belonging to Konda Reddi would appear to contravene the Government of India instructions on this subject.
In it''s letter dated 6th December 1979, Government of India had pointed out that any area, restriction in respect of Konda Reddi Community
could be taken, only when it is decided to undertake a comprehensive legislation on the revision of the list of Schedule Castes and Schedule Tribes
after the new Lok Sabha is constituted, and therefore issue of certificate, to those, who belonged to the community, has to be made. Hence the
Circular issued by Collector on 29th November 1978 directing that no certificate be issued by Tahsildars to any Konda Reddi is the gravest action
taken by him to deprive Schedule Tribes to avail of the constitutional protection conferred oh them in no unmistakable terms. If a bogus claim is
rejected on merits, it is of no consequence, but to issue a blanket Circular on 29th November 1978, is against Presidential Notification. Based on
his Circular, the Taluk Office had in turn issued a circular on 30th December 1978 stating that Village Officers, who issue such certificates will be
liable for civil and criminal actions: It is by issue of such circulars that the eligibility to secure benefits under the Presidential Notification had been
deprived. It cannot be claimed by the second Respondent that he was not fully apprised of the Presidential Notification; but being fully aware of it,
he had gone to the extent of holding that as no Konda Reddi Community exists in Tiruchirappalli District at the time when he had made enquiries,
and hence the Presidential Notification had come to an end. This line of reasoning is wholly unacceptable and appears to have been arrived at to
prevent any person claiming to be Konda Reddi to avail of the benefits under the said Notification. When Government itself had already pointed
out the illegality of the order of the Collector, it is no longer still open to the second Respondent to contend in this Court, that the stand taken by
him is justifiable. Still counter affidavit filed by both the Respondents concluded as follows:
Regarding the averments in para 10(c), I submit that the Collector of Tiruchirappalli after having made an enquiry through the District Harijan
Welfare Officer, Tiruchirappalli reported that there was no community called Konda Reddi in any part of Tiruchirappalli District.
The next point to be considered is of the manner in which the claim made by Petitioner was dealt with. In paragraph 8 of the counter affidavit, it
is stated that:
The Petitioner''s application was rejected not because no person belonging to the said community resides in Tiruchy District as stated by the
Collector, but because the Petitioner was not able to prove that he belongs to Konda Reddi community when an enquiry was made, in which the
Petitioner, his lather and villages officers were also examined.
It may be noted that in the report sent by the Collector, in the concluding paragraph, he has stated that there is no community called Konda Reddi
in any part of Trichy District. The claim of the candidate that he belongs to Konda Reddi, is not a bona fide one. Hence the factor of non-existence
was taken into account.
To find out as to what sort of an enquiry was conducted and the nature of evidence that had been taken into account to conclude that the
Petitioner is net a Konda Reddi, it will be in-interesting to read the evidence that was recorded. In no sense it can be treated as an enquiry, in
which positive evidence had been let in by the authorities to show that the valid certificate-issued earlier, is not a genuine one. It is not disputable
that the certificate already issued was given by a person who was competent to issue it. If thereafter the genuineness or the correctness of such a
certificate is to be gone into, it is not for the recipient of the certificate to establish that it was not issued correctly. The onus is on the authorities to
show that the certificate issued earlier, was not correct or that it was brought out by practice of fraud or misrepresentation or that the Officer, who
issued the certificate was not the competent authority. Alter a valid certificate is issued, if it has to be cancelled the onus is on the authorities to
establish that the certificate was erroneous.
Even otherwise, if it is to be taken that the Petitioner can be called upon to again establish that the certificate issued it correct, in the instant
matter, the evidence recorded is wholly unsatisfactory. In the file produced before Court, there are two statements claimed to have been made by
the Petitioner on 28th July 1978, i.e., (I) his deposition and (2) a written statement.
The Petitioner had deposed that he is aware that the enquiry is made regarding the community certificate issued, and that he is producing
S.S.L.C. Back and the Officer had seen it and received a copy of the extract of the first page from him. In column, No. 2 (iii), there is no reference
to community, and only No is mentioned therein. The Officer had also seen the Community certificate''s copy kept in the S.S.L.C. Book. Even
though in the S.S.L.C. Book, community is not mentioned, Village Munsiff had stated in the certificate on 7th August 1977 that he belongs to
Konda Reddi and the Tansildar has counter-signed it on 20th August 1977.
This sort of evidence recorded, only goes to show that the Petitioner had certified of what the Officer did on 28th July 1978 and what all he
had seen. No question was put to him as to how he claims to be a Konda Reddi and what evidence he has got in support of such a claim.
Statements to the effect that in the course of the enquiry, the Officer has seen certain things, cannot, in any event, be treated as relevant evidence
recorded to determine the community of a person.
It has not been put to him that a false certificate had been secured. It is only when correct particulars are rot already incorporated in S.S.L.C.
Certificate, a community certificate is secured and affixes to it. Hence his statement, that the Officer has seen, what was not mentioned in the Book
is found in certificate dated 20th August 1977, is net an admission of a wrong certificate having been secured, out at best a certificate by him of
what the officer has done in his presence.
The ex-Karnam had also stated that his sol Gurumurthy is now the acting karnam since 5th July 1978, and that no certificate had been issued
by him. Nothing else had been elicited from him.
The next witness examined has stated that, be had functioned as Village Munsiff since 9th August 1977 and he has witnessed the Petitioner
being examined at the Panchayat Office, His predecessor in Office, Thiru Pachaimutha had issued a community certificate and he has known of it.
In the S.S.L.C Book, no such entry is found.
This witness also had not been asked any other question-relevant for the purpose of the enquiry. If entry is found in the Book, there would be
no need for a certificate. Absence of entry or even erroneous entry would not disentitle a person to claim that he is.
The ex-village Munsiff, by name Pachaimutha who gave the certificate, had stated that he gave the certificate on 7th August 1977, and that he
had mentioned therein that the Petitioner belongs to Konda Reddi. He has seen the Petitioner handing over the copy of the said certificate to the
Officer. Even though in the S.S.L.C. Book, there was no mention of Konda Reddi, be has given the community certificate.
Nothing has been elicited to show that he has issued a false certificate. Not single question on false certificate having been issued or that
Petitioner does not belong to Konda Reddi Community, was put to him. In fact, no action had been taken against him for having issued a false
certificate by instituting the so called criminal action which was threatened to be taken against Village Officers, who propose to issue certificate to
any one claiming to be a Konda Reddi.
The other written statement presented by the Petitioner on the same date, is no differently placed. Hence, the evidence recorded in the enquiry
only goes to show that the witnesses who had appeared before the Officer, had spoken as to what the Enquiry Officer had done during the course
of the enquiry. If this was the type of enquiry conducted, it had certainly deprived the Petitioner of the valuable right guaranteed under the
constitution.
The Collector, having gone through the evidence recorded in the enquiry, has sent the communication dated 29th July 1978 to first
Respondent, stating that the Village Munsiff, who gave the certificate is not in service and the present village headman had not issued the certificate
and the candidate is not able to substantiate his claim that he belongs to Konda Reddi Community with any records. He has admitted that there is
no mention about his community in the S.S.L.C. Book. His father has signed a declaration in the front page of the S.S.L.C. Book on 10th June
1966, admitting that his son is not a person belonging to Schedule Caste or Scheduled Tribes. He has also admitted that his mother tongue is Tamil
and copies of statements are forwarded.
As already pointed out, no question was put to ex-village Munsiff that he had issued a false certificate. Petitioner had not been called upon to
adduce any other evidence, oral or documentary. No evidence had been chosen to be recorded to show that the certificate had been issued either
due to fraud or misrepresentation practiced by the Petitioner. It is incorrect to claim that the father of the Petitioner has signed in the front page of
the S.S.L.C. Book admitting that his son is not a person belonging to Schedule Caste or Schedule Tribe. No such signature is found in the Book at
all. It is claimed by the Petitioner that his father had never signed, because he was not an educated person and he could not have furnished any
other particulars to school authorities, and the entries came to be filled up by the school authorities themselves, with the available details. When no
signature is found in the S.S.L.C. Book, the Collector had committed a serious error in reporting to the first Respondent, that such an admission
had been made by the father of the Petitioner.
There are two major errors committed by the Collector in the report, they being about the so called signature of the father v. of the Petitioner
found in the S.S.L.C. Book and of his claim that no community exists in Tiruchy District, and hence the Petitioner cannot be a Konda Reddi. It is
by relying upon such an erroneous report the impugned memo having been issued, it deserves to be set side.
Not stopping with this, in the counter-affidavit, it is stated
An enquiry was made by the District Harijan Welfare Officer, Tiruchirappalli in the presence of the candidate as well as his father and other Village
Officers. Statements were recorded from them.
Records produced do not anywhere disclose that the father of the Petitioner was examined in the enquiry. It is surprising to note that while
swearing to the counter-affidavit, such false claims are made about non-existing factors. The Respondents went to the extent of claiming that the
Petitioner had made false statements but responsible authorities have not chosen to go in for precision and truthfulness. Before counter-affidavits
are filed, approval is given at several levels, and if such wrong claims made, had found approval, it only goes to show that knowing that such an
admission had not been made by the fatter of the pietistic Ler, still the authorities go to the extent to claiming that the father of the Petitioner has
signed the S.S.L.C. Book admitting that his son is not a Schedule Tribe and that his statement was recorded.
State, which withholds notes-file now come forward to rally upon it, for claiming that father was examined. If so, why eke other witnesses, his
statement was not recorded and his signature or thumb impression not secured is not explained. In the notes-file a noting is found to the effect that
mother tongue-Tamil says his father, dated 28th July 1978 i.e., the day on which enquiry was held. A self-servicing noting cannot be put against a
person, whose evidence was not recorded. Hence the claim made in counter affidavit that statements were recorded from them is false. This
aspect of admission by the father having been taken as one of the grounds in the report of Collector, the impugned proceedings suffer from yet
another serious infirmity.
Furthermore, it is not unknown to the Collector that community certificates are issued, based on independent enquire irrespective of whatever
may be found in the S.S.L.C. Book. Learned Counsel for the Petitioner refers to the proceedings of the Director of School Education dated 19th
September 1966. wherein it has been clearly made out that after s student had completed the school course and left the institution, if he desires for
any change, it cannot be done by the Department, in such cases community certificate issued by the Competent Authority of the Revenue
Department may be kept along with the S.S.L.C. Book. Equally a Gazette notification in which the change of name had been published, may be
kept with it and would serve the purpose. When such is the instruction issued and community certificates were being issued by the authorities by
making local enquiries unless it be established that the certificate already issued was not correct, to put a question to ex-village Munsiff that such an
entry is not found in the S.S.L.C. Book and still he gave a certificate, would not mean that the certificate is incorrect. He ought to have been asked
that though no material was available for him to issue the certificate and yet he has issued it wrongly.
It is not as if, the community of a person can be established only by documentary evidence. In fact, being fully aware of the handicaps suffered
by Schedule Castes and Schedule Tribes, the Government has stated that there should be no insistence for production of documentary evidence
regarding their community. On 29th July 1978, the Government had issued a memo to the effect that it has been brought to the notice of the
Government that Tahsildars refuse to issue community certificates and demand documentary evidence, and this has resulted in refusal of certificates
or delay in the issue of such certificates, thereby causing necessary hardship and inconvenience to public, and hence Government considers:
It is not necessary to call for documentary evidence from the applicants themselves regarding their community. Tahsildars should rely entirely on the
certificates issued by Village Officers and Revenue Inspectors under them and should not demand evidence from the applicants.
When such is the approach made by Government second Respondent had conducted this sort of enquiry, which could in no circumstances be
termed as a properly held enquiry, in which any relevant materials had been elicited, except to show that the persons, who had assembled on the
date of the enquiry had witnessed what the Officer did on that day. The conclusion of the Collector in paragraph 2 of his letter dated 29th July
1978 to the effect the candidate is not able to substantiate his claim as Konda Reddi with any records cannot be put against the Petitioner. In the
light of these firm instructions issued by the Government, once a certificate is issued, it is the burden of the authorities to first show that it was issued
wrongly. It is by local enquiries made by the Village Officers and Revenue Inspectors that community certificates are issued, without any insistence
for production of the records. There-fore for all reasons above stated, the communication sent by the Collector is beset with several errors,
illegalities and contrary to specific directions issued by the Government. Hence the claim made by Respondents that the Petitioner had failed to
establish that he belongs to Konda Reddi Community, has to be rejected. He is the holder of a community certificate issued by a Competent
Authority, and unless and until, it is validly set, aside, he has the right to rely upon the same. Nothing precludes the Respondents to adduce relevant
evidence to show that the certificate is a false one, and until then, the certificate already issued has to be acted upon and such is the intention of the
Government, has been clearly Spelt out in the communications referred to above.
Before conducing, it is necessary to refer to what is found in the original S.S.L.C. Book in the front page. The date is 1st August 1966.
Declaration by the parent, has net been signed at all. On the back side of the front cover, Community Certificate dated 20th August 1977 had
been pasted. This has been partly removed in Court hail, to find out as to whether any endorsement has been made at the back portion of this
cover.
The printed form used for recording the undertaking from the Parent, that the date of birth given is correct, is pasted. Father of the Petitioner
had signed it. There is no column in the said certificate regarding the Caste or Community of the candidate. It is a sworn statement which pertains
only to date of birth. The columns of place and the date, remain unfilled.
In the light of what has been thus made out, in the original book and in the files of the second Respondent and the nature and the manner in
which the counter-affidavit had been prepared and filed into Court with wrong statements; it was felt that it would be necessary to take action for
perjury u/s 191, Indian Penal Code. At that stage, the learned Advocate-General appeared and submitted that first Respondent had to act upon
the information given by the second Respondent, and though the counter-affidavit had been filed on behalf of both the Respondents, the errors, if
any, could not be ascribed to the first Respondent. As for the second Respondent, he relies upon the notings made in the Notes file, to state that
the father of the Petitioner also had been examinee, and therefore, there would be no need to initiate action for perjury.
Thereafter, the writ petition was further adjourned to find out from the second Respondent, as to why the errors above pointed cut had
occasioned, and why a statement from the father was not recorded as in the case of others and also about the manner in which the inquiry had
been conducted without eliciting as to how far the Certificate is a false one. It is since reported by learned Advocate-General that, what has taken
place had been done bona fide, and the authority felt that it would suffice if what the father had stated to him is noted in the Notes file, instead of
recording any statement from him.
Taking into account the fervent plea made by the Learned Advocate-General this Court considers that instead of taking action for perjury for
the manner in which the counter-affidavit had been filed without any care taken to scrutinize the records properly awarding of exemplary costs
would be adequate, since he says that authorities would be careful in future before filing counter affidavits.
In swearing to counter-affidavits, an authority has to scrupulously faithful to record and there could be no error whatsoever committed in
stating the facts. Most of the writ petitions are disposed of based on affidavits. In fact, thousands them are disposed of, based only on what is
claimed on the counter-affidavit, trusting that public authorities have sworn, only to correct facts. When such is the onerous responsibility with
which counter-affidavits are to be sworn to, in the instant case, the following statements found in the counter-affidavit are not reflected in records.
In paragraph 5, it is stated that;
an enquiry was made by the District Harijan Welfare Officer, Tiruchirappalli in the presence of the candidate as well as his father and other Village
Officers. Statements were recorded from them.
Apart from deponent of the affidavit, other authorities also approved it. They too ought to have taken care to see whether any statement made in
affidavit is correct or not. No deposition by father of Petitioner was ever recorded in the enquiry and his signature obtained. Therefore, this is an
error which ought to have been avoided, because it is not one, which could be treated as an innocuous one, because in paragraph 3 of the letter of
the Collector, dated 29th July 1978, he has stated that.
he also admitted that his mother tongue is Tamil. Copy of statements recorded from the candidate, Ex-Village Munsiff Karnam and the present
Village Munsiff are enclosed for perusal.
His admission having been relied upon to hold that they do not belong to Konda Reddi Community, there should have been a statement recorded
from him to that effect. Hence, when an admission is relied upon by stating that state merits were recorded, it should find a place in the file, with his
signature or thumb impression.
Again in paragraph 8, it is claimed by the first Respondent that:
the Petitioner''s application was rejected not because no person belonging to the Konda Reddi Community resides in Tiruchirappalli district as
stated by the Collector, but because the Petitioner was not able to prove that he belongs to Konda Reddi community when an enquiry was made
by the District Harijan Welfare Officer in which the Petitioner, his father and Village Officers were also examined.
Collector has forwarded along with his letter, dated 29th July 1978, copies of the statements of the candidate, ex-village Munisif, Karnad and the
present Village Munsiff. The first Respondent received them. It also sent copies of them to the Petitioner. Therefore it cannot swear to a counter-
Affidavit to the effect, that a statement, has been recorded from the father of the Petitioner when it was not one of the enclosures sent to it. Hence
the first Respondent cannot plead that it relied upon the report of the Collector, when it had occasion to look into and verify as to who all gave
statements Notes file of Collector was not sent to it. Hence not finding the statement of father, therein, first Respondent ought to have immediately
addressed the Collector to clarify as to how far his statement is correct, and secured the necessary clarifications. When counter-affidavits are
approved, the records, relied upon have to be checked, and ever at that stage, no effort bad been taker to find out as to why the statement of the
father is relied upon, when his deposition had not been recorded. Therefore first Respondent has also failed to properly scruitinise the papers,
when they receive the letter of Collector with enclosures.
At the time of filing counter-affidavit, nothing precludes an authority to state therein the correct position, irrespective whatever might have been
the stand taken earlier or of what omissions had been committed at different stages in the hierarchy of offices. Therefore, the claim that the father of
the Petitioner had been examined, could have been checked up by the first Respondent, before swearing to the counter-affidavit.
Yet another aspect is, though in paragraph 8, it is claimed that the Petitioner''s application was rejected not because no person belonging to this
community, resides in the District, but because he was not able to prove that he belongs to a particular community whereas in paragraph 9, it is
stated that the Collector, after making an enquiry through the District Harijan Welfare Officer, has reported that there was no community called.
Konda Reddi in any part of Tiruchirappalli District. Further, in paragraph 6, it is stated that, when the Collector was again asked on this aspect, en
Petitioner raising objections, he has again stated by letter, dated 24tb July, on 1979, that a detailed enquiry was already conducted whether or not
the Konda Reddi Community existed in Tiruchirapalli District and on the basis of his report, proposals had been sent to Government for deleting
Konda Reddi in the Notification and that the orders of Government are still awaited in the matter. This portion of the conclusion of the Collector
has been also extracted in the impugned communication, dated 4th November 1978. Hence when the impugned order relies upon this factor, as
having been considered as relevant to state in paragraph 8 that it was only on the other ground of lack of proof, it was rejected, is contrary to what
the first Respondent did.
A common counter affidavit has been filed on behalf of both the Respondents, and hence the Collector also assumes responsibility for the
statements contained therein. Nothing preluded him from stating the true fact in the counter-affidavit, even though he might have committed an error
in the communication dated 29th July 1978, stating that the front page of the S.S.L.C. Book contains the signature of the father of the Petitioner
and signed by him on 10th June, 1966. A true copy of it is available in his file. It is not the passing of a wrong order which would be treated as a
false statement before Court. But even after passing a wrong order, if the factual position is to be placed before Court, the Respondents must first
state what had been stated in the order and then they should also state that the records show different state of affairs. Event though the Petitioner
has come forward with a specific claim that the school authorities never obtained any declaration from him, nor got his signature, no care had been
taken to state the true position, but they persist in relying upon non-existing factors. Keeping back from Court the correct particulars, cannot be
lightly looked upon.
The next aspect is, Collector being aware of the communications received from Government, finding fault with what he had done, the said
communications produced by Petitioner and referred to above, ought to have been placed before Court by him, so that a Schedule Tribe may
secure the relief, to which he is entitled to. Therefore, when proper care had not been taken in the presentation of the counter-affidavit, this is a fit
case for awarding exemplary costs. If costs awarded is to come out of public funds i.e. tax payers'' money, it will be a penalty imposed on the
general public, who have made a Constitution, wherein they have conferred benefits on Schedule Castes and Schedule Tribes, but still suffer loss in
spite of their good intentions.
This Court takes a serious view of the manner in which, the concerned Collector had dealt with Schedule Castes and Schedule Tribes, after
taking note of the disgraceful conditions to Which they had been reduced, only due to ancient tenets of Hinduism and its practices. Till Presidential
notification is revoked or modified, he cannot issue a blanket circular preventing issue of Certificates to notified communities. His suggestion to
delete a community may be accepted later on. But until then he cannot issue such a circular. An individual may falsely claim to be a Konda Reddi,
which will have to be rejected on merits of the claim. How far, this Petitioner is correct or not, is not the one for which his action is deprecated. It
is rested mainly on circular a issued and the consequent disadvantages suffered by Schedule Tribes, which are taken note of by Court.
Petitioner herein has Studied Medicine and is seeking for employment. He has been deprived of his opportunity to earn as a Doctor, by what
has been done by second Respondent. But for this Court ordering interim stay, he could have lost his prospects. Inspite of instructions having been
issued by Government of India and Government of Tamil Nadu; while filing the Counter-affidavit, the same stand taken by them earlier when
orders were passed, is persisted and the claim in the writ petition is opposed: instead of realising what has been done. When political parties
without exception all over the Country and no Government in this Country ever thinks of depriving Schedule Castes and Schedule Tribes of the
benefits to which they are entitled to under the Constitution of India, it is unfortunate to find that some bureaucrats are not even inclined to admit
the error committed, but still persist that the order passed is correct. No wonder, in desperation, such people loose confidence in Hinduism and
renounce it. Taking note of all these factors, the writ petition is allowed with costs.