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2001 DIGILAW 692 (KER)

Principal R. E. C Calicut v. C. B. Suresh Babu

2001-11-28

K.A.ABDUL GAFOOR, N.KRISHNAN NAIR

body2001
Judgment :- Krishnan Nair, J. The Writ Appeals No.752, 753,840 & 879/95 are filed by the State of Kerala against the common judgment dated 18th April, 1995of the learned single Judgment in O.P. Nos. 6223 & 2475/89,17258/92 and 16958/93 respectively. O.P.No. 11887/95 was referred to the Division Bench by the learned single Judge since the orders similar to the one challenged in the Original Petition are pending in appeal before the Division Bench. O.P. No.5498/90 was also referred to the Division Bench since it is connected with O.P. No.11887/95. 2. The petitioner in O.P. No. 6223/89 prays for the relief of a writ of mandamus directing the respondents to admit him in the Regional Engineering College in the reserved vacancy for Scheduled Caste candidates from Kerala. The petitioner belongs to Kavara community. He was an applicant for admission to the Engineering Colleges. He appeared for the entrance examination conducted by the Commissioner for Entrance Examination. Government of Kerala on 3-6-1989. After the examination, an intimation was given to the petitioner informing him that he was eligible to be admitted to the Regional Engineering College. The selection was to the seat reserved for Scheduled Caste. The petitioner appeared for interview held on 19-7-1989 and the petitioner was asked to join Regional Engineering College, Trichy. But the petitioner was informed by the Principal that the Commissioner for Entrance Examination had asked him not to give admission to the petitioner as the claim for the petitioner as Scheduled Caste was said to be examined by the Government. Accordingly the Professor-in-charge and the Principal expressed their inability to receive the admission fee and give the necessary records allotting him to the Trichy Regional Engineering Colleges. According to the petitioner, he is a member of the Scheduled Caste and he is entitled to the benefits extended to the Scheduled Caste. 3. The writ petitioner in O.P. No.2475/89 was a student of the Maharaja's College, Ernakulam, and she was admitted in the college indicating her caste as Kavara which is a Scheduled Caste. She completed her studies in the college and passed the B.Sc. examination. But her transfer certificate was not issued on the ground that she belongs to the forward community and, therefore, she had to pay the fees and other payments. She completed her studies in the college and passed the B.Sc. examination. But her transfer certificate was not issued on the ground that she belongs to the forward community and, therefore, she had to pay the fees and other payments. Therefore, she sought for the relief of a writ of mandamus directing the Principal of the college to issue the transfer certificate as per her application dated29-6-1988. 4. 4 The petitioners in O.P.N.17258/92 pray for a writ of certiorari to quash Exts.P11,P15,P16 and P22,is the proceedings of the Tahsildar, Kanayannur Taluk, Ernakulam District stating that the 1st petitioner and his family do not belong to the Scheduled Caste and his family do not belong to Gavara Naidu community. Ext.P15 is the report given by the Director of KIRTADS concluding that the petitioner and his family belong to Gavara Naidu community. Ext.P16 is the memo issued by the Commissioner for Entrance Examinations.Ext.P22 is the G.O. (RT) No. 10093/SCSTDD dated 11-2-1993 which declared that C.B. Suresh Babu, who is studying in the Regional Engineering College, Thiruchirappally and his members of family belong to Gavara community and they do not belong to the Scheduled Caste. 5. In O.P. No. 16958/93 the petitioners challenged the order issued by the Government as G.O. (Rt).No. 567/93/SCSTDD dated 12-11-1993 declaring that members of the family of the father of the petitioners do not belong to Kavara community which is scheduled Caste in the State of Kerala, but they belong to Balija Gavara(Naidu) community. As per the order, the Government also directed the concerned authorities to take disciplinary action against the petitioners for making false claim that they are members of a Scheduled Caste for securing appointments. The petitioners wanted to quash the Government Order declaring that the petitioners and their family members belong to Balija Gavara (Naidu) community and also prayed that action should not be taken by the concerned authorities against the petitioners. They also seek a writ of mandamus or any other writ, order or direction declaring that they are members of Kavara community, a Scheduled Caste and they are entitled to all the benefits available to the Scheduled Caste candidates. 6. The petitioner in O.P. No. 5498/90 belongs to Hindu Kavara community. He was appointed as a Junior Draughtsman under the service of the Cochin Port Trust. 6. The petitioner in O.P. No. 5498/90 belongs to Hindu Kavara community. He was appointed as a Junior Draughtsman under the service of the Cochin Port Trust. While the petitioner was working as a Mechanical Foreman, he was not given his due promotion and his juniors were promoted. When he made representations against the denial of promotion, he was told that his promotion to the next grade will be considered only after verification of the caste Status. The petitioner is a member of the Scheduled Caste and he was selected and appointed under the Scheduled Caste and he was selected and appointed under the Scheduled Caste quota. The petitioner prays for the relief of a writ of mandamus or any other appropriate writ, order of direction commanding the respondents to consider the petitioner's legitimate claim for promotion to the higher post and to promote him in accordance with the seniority and fitness. The petitioner also prays for a direction to promote him from the date of the promotion of his immediate with all service benefits and also to quash Ext.P10 notice dated 16-1-1995. 7. The petitioners in O.P. No. 1187/95 belong to Kavara community . Since there was no entry relating to the caste in the 1st petitioner's S.S.L.C. book, the question was raised before the Commissioner of Government Examinations with a certificate of the Tahasildar, Kanayannur. The commissioner of Government Examinations after persuing the certificate had ordered to attach the certificate along with the S.S.L.C. Book. The petitioner was subsequently selected as Junior draughtsman in the Cochin Port Trust as a Scheduled Caste candidate. The Governement passed an order on 27-6- 1995 to the effect that the petitioners and their family members are members of the Balija Gavarai community which is popularily known as Naidus and accordingly necessary action was sought to be taken by the concerned authorities. It was futher ordered that the appointments given to the petitioners as members of the Scheduled Caste should be accordingly dealt with. Ext.P9 is the true copy of the order. The petitioner pray for the issue of a writ of certiorari or any other approapriate order to quash Ext.P9 order and also for a declaration that the petitioners are members of Kavara community, a Scheduled Caste as declared by the Government and that they are entitled to all the benefits available to the Scheduled Castes. 8. The petitioner pray for the issue of a writ of certiorari or any other approapriate order to quash Ext.P9 order and also for a declaration that the petitioners are members of Kavara community, a Scheduled Caste as declared by the Government and that they are entitled to all the benefits available to the Scheduled Castes. 8. All the petitioners are resisted by the respondents raising the following contentions: The writ petitioners are not members of the Scheduled Caste and therefore they are not entitled to the benefits available to the Scheduled Tribe and candidates. The petitioners belong to the Hindu Naidu community which is a forward caste community. The KIRTADS has conducted anthropological and genealogical study and categorically found that the petitioners do not belong to the Scheduled Caste. Since the ancestors of the Petitioners migrated from Tamil Nadu to Kerala after, 1950, they are all to be treated as not belonging to the Scheduled Caste. The question regarding the Scheduled Case status is a question of fact and the High Court under Article 226 of the Constitution is not competent to interfere with the findings of the verification Committee in Scheduled Caste/ Scheduled Tribe Cases. The petitioners are not entitled to get any of the reliefs prayed for in the petitions. On these contentions the respondents wanted the petitions to be dismissed. 9. The learned Single Judge heard O.P. Nos. 2475 & 6223/89 and OP. No, 16958/93 along with O.P. No. 17258/92 and they were disposed of by the impugned common Judgment. The learned Single Judge found that the petitioners belong either to Kavara community or Gavara Community and since as per the Scheduled Castes and Scheduled Tribes (Amendment) Order, 1976, Kavara and Gavara are treated as Scheduled Castes thoughout the State of Kerala, the petitioners are entitled to the benefits available to the Scheduled Castes and Scheduled Tribes community. As stated earlier O.P. Nos.11887/ 95 and 5498 / 90 were referred to the Division Bench since orders similar to the one challenged in these Original Petitions are pending before the Division Bench. 10. The learned Governemnt Pleader strongly contended that the learned single Judge seriously erred is finding that the petitioners are members of the Scheduled Castes and they are entitled to the benefits of Scheduled Casts and Scheduled Tribe candidates. 10. The learned Governemnt Pleader strongly contended that the learned single Judge seriously erred is finding that the petitioners are members of the Scheduled Castes and they are entitled to the benefits of Scheduled Casts and Scheduled Tribe candidates. Accordingly to him, the learned Judge should not have discarded the report of KIRTADS and the Judge ought to have found that the report was filed after conducting in anthropological and genealogical study. He further contended that the reasons given by the learned Single Judge for discarding the report of KIRTADS are no reasons at all. The Government Pleader also contended that the petitioners in O.P. Nos.5498/90 and 11887/95 are also not members of the Scheduled Castes and therefore the petitions are laible to be dismissed. On the other hand the learned counsel appearing for the petitioners supported the common judgment of the learned Single Judge and urged that there is no ground for interference. 11. The common questionarising for consideration is whether the petitionerrs are to be treated as members of the Scheduled Castes and if so, whether they are entitled to the benefits available to the Scheduled Caste and Scheduled Tribe candidates. The petitioners claim to be the members of either Kavara community or Gavara community. They claimed the benefits available to the Scheduled Caste and Scheduled Tribe candites mainly on the ground that by the 1976 Schedled Castes and Scheduled Tribes (Amendment) Order, throughout the State of Kerala Kavara as well as Gavara are treated as Scheduled Caste. No doubt, if the petitioners belong either to Kavara or Gavara community, they are entitled to be treated as members of Scheduled Castes and they are entitled to the benefits avaible to the Scheudled Caste and Scheduled Tribe candidates. 12. Article 366 (24) of the Consitution defines the expression " Scheduled Castes" to mean " such castes. Races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Casts. Article 341 reads as follows: " 341(1). 12. Article 366 (24) of the Consitution defines the expression " Scheduled Castes" to mean " such castes. Races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Casts. Article 341 reads as follows: " 341(1). The President may with respect to any State or Union Territory, and where it is a state after conscltation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be . (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification." 13. The President of India promlglated the Constitution (Scheduled Castes) Order, 1956, modified the Scheduled Castes Order. The Scheduled Castes and Scheduled Tribes ( Amendment) order, 1976, came into force on 27th July, 1977. 14. It can be seen from the list of Scheduled Castes Order, 1950 that in Travancore State, Kavara was a Scheduled Caste. In the erstwhile State of Madras, Gavara ( including Gavara Naidu of Coimbatore District) was being treated as a backward class. As per the Scheduled Castes and Scheduled Castes and Scheduled Tribes (Amendment) order, 1956, Gavera was included in the Scheduled Castes in Malabar Distict of Madras State. After the formation of the Kerala State, a list of Scheduled Castes as amended by Act 63/56 was published and it can be seen from the list that Kavara was treated as Scheduled Caste throughout the State except in Malabar District. Gavara was a scheduled Caste in the Malabar District excluding in Kasargod District. Thereafter the Scheduled Castes and Scheduled Tribes (Amendment) Order, 1976 was passed and as per the Amendment both Kavara and Gavara are shown distinctively as two castes entitled to calim all the benefits of Scheduled Casts. 15. Gavara was a scheduled Caste in the Malabar District excluding in Kasargod District. Thereafter the Scheduled Castes and Scheduled Tribes (Amendment) Order, 1976 was passed and as per the Amendment both Kavara and Gavara are shown distinctively as two castes entitled to calim all the benefits of Scheduled Casts. 15. According to the learned counsel for the petitioners, since the petitioners belong either to Kavara or Gavara community and as per the Scheduled Castes and Scheduled Tribes (Amendment) Order, the Kavara and Gavara are shown as two castes,entitled to claim all the benefit of the scheduled castes no action to modify the plain effect of the Scheduled Castes order, except as contemplated under Article 341, is valid. He placed much reliance on the decision of the Supreme Court in Palghat J.T.S.S. Samithi v. State of Kerala (1994 (1) KLT 118). No doubt, it is settled position that the Scheduled caste Order has to be applied as it stands and no enquiry can be held or evidence let in to determine whether or not some partiular community falls within it or outside it. If there is reliable material on record to show that the petitioners belong either to Kavera or Gavera community , they are entitlted to claim the benefits of the Scheduled Castes. But the report of KIRTADS would show that the petitioners do not belong to the Scheduled Castes and they belong to Naidu community. The report was filed after conducting anthropological and genealogical study. It appears that the learned single Judge discarded the report of KIRTADS mainly on the ground that the report proceeds on the assumption that Kavara and Gavara are one and the same community. It is true that in Malabar area Gavara was being treated as Scheduled Castes while Kavara was included in the list of other Castes during the same period. According to the learned single Judge, since Gavara and Kavara were shown distinctively as two different castes, it cannot be said that both the communities are one and the same. In our view, merely because the report of KIRTADS proceeds on the assumption that Kavara and Gavara are one and the same community, the report cannot be thrown out. According to the learned single Judge, since Gavara and Kavara were shown distinctively as two different castes, it cannot be said that both the communities are one and the same. In our view, merely because the report of KIRTADS proceeds on the assumption that Kavara and Gavara are one and the same community, the report cannot be thrown out. On going though the report of the KIRTADS we find that the KIRTADS prepreard the report of the KIRTADS prepared the report after considering all material aspects if the conclusion reached by KIRTHAS are possible on the basis of the materials on record this court cannot interfere with the findings in exercise of its extra ordinaly jurisdiction under Article 226 of the Consititution. In this connection it is relevant to note the following observations of the Supreme court in Madhuri Patil v. Addl. Commr. Tribal Development (1994) 6 S.C.C. 241): " The Committee which is empowered to evaluate the evidence place before it when records a fidning of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact, The Committee when considers all the material facts and record a finding, though another view, as a Court of Appeal may be possible, it is not a ground to reverse the findings, The Court has to see whether the committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately recorded the finding." In this connection it is relevant to note the decision of the Supreme Court in Ganesh v. State of Maharshtra (A. I. R. 1997 S.C. 2333) . In that case the appellant belonging to Thakur community claimed the status of a Scheduled Tribe and made an application to the authorties for the issuance of the caste certificate. In Maharashtra, "Ma Thakur" or " Ka Thakur" are described as Scheduled Tribes. After conducting an enquiry, the scrutiny committee negatived the claim of the appellant. The appellant filed a writ petition in the High Court. The High Court dismissed the petition holding that it, it cannot examine the material on record as an appellate authority. In an appeal by Special before the Supreme Court, the Supreme Court was not inclined to interfere with the order of the High Court. The appellant filed a writ petition in the High Court. The High Court dismissed the petition holding that it, it cannot examine the material on record as an appellate authority. In an appeal by Special before the Supreme Court, the Supreme Court was not inclined to interfere with the order of the High Court. It is advantageous to refer to the following observations of the Supreme court in the case: "There are catena decisions of this Court holding that the Court cannot examine to find out the Caste of the party, the basis of the certificate issued. The limited area the Court can survey is whether the caste mentioned in the presidential Notification would be applicable to the claimant or not." 16.It is alleged that the report of the KIRTADS has been prepared behind the back of the petitioners and they had never got any opportunity to challenge the vercity of the evidence tendered either by cross examination or by objection to the materials that were relied on by the KIRTADS. This allegation is baseless. This allegation is baseless. It is seen that the registered notices were sent to the petitioners by KIRTADS before conducting the enquiry. It is also seen that the objections were alo filed before the Government by some of the petitioners. Therefore, there is no force in the contention of the petitioners that the KIRTADS has conducted the enquiry without notice and without giving any opportunity to the affected parties. The learned counsel for the petitioners contended that the documents produced by the petitioners would show that they belong either to Kavera or Gavera community. No reliance would be placed on the certificates produced by the petitioners in view of the report of the KIRTADS. The Kavara/Gavara Scheduled Caste community of Kerala presents a totally different picture from the community popularly knowns as Naidus. In his famous work on " Tribes and Castes of Cochin" Professor L. K. Ananthakrishna Iyer had given an ethnographic account on the Scheduled Caste Kavara community. Regarding their occupation and social status he write they make wicker work of all kinds. The man bring the bamboo and make everything ready for their women to make wicker-work and they eat the food of Brahmins and the high class Nayars, but do not eat at the hands of other caste men. Regarding their occupation and social status he write they make wicker work of all kinds. The man bring the bamboo and make everything ready for their women to make wicker-work and they eat the food of Brahmins and the high class Nayars, but do not eat at the hands of other caste men. These people pollute by touch the Kakklans but are polluted by the touch the Kakklans but are polluted by the tourh of Pannas, Pulayans, Cherumans and other low caste men ( at a distance).They are their own barbers and washermen. They are clothed very scantily and the males very seldom shave their hands. Petitioners have no case that either themselves or their ancestors ever followed such a way of life. 17. It is gatherable from the report of the KIRTADS that in both the States of Tamil Nadu and Kerala the members of the petitioner'families or their near relatives are treated as caste Naidus. Educationally and economically Naidu community is an advanced community. Telgu is the mother tongue of Naidus. But the Kavara/ Gavara community which is a recognized Scheduled Caste of Kerala were treated as untouchables. They are even now socially, economically and educationally backward. They subsist mainly on wearing of reed mates and bamboo basketry popularly known as " Kavarapani". Under these circumstances the petitioners cannot be heard to say that they belong to either Kavara or Gavara community which is a Scheduled Caste of Kerala. 18. We cannot also agree with the learned single Judge that Naidu is a title and it is a genetic term used by various non-Brahmin communities. It is seen that the learned Judge has made referenceo to the book " Castes and Tribes of Sourthern India" by Edgar Thurston. No doubt, it is gatherable from the said book that Naid is a title, returned at the time of census by many Telugu classes, viz. Balija, Bestha, Boy, Ekari, Gavara, Golla, Kalingi, Muracha and Velama. But in the very same book it is also mentioned that Naidus is the general name of the caste. Even if is assumed that Naidu is a genetic term used by many communities admittedly some are backward classes and some belong to the forward communities. 19. The learned single Judge was also not correct in observing that the Government admitted that the petitioners belong to Scheduled Castes. Even if is assumed that Naidu is a genetic term used by many communities admittedly some are backward classes and some belong to the forward communities. 19. The learned single Judge was also not correct in observing that the Government admitted that the petitioners belong to Scheduled Castes. Nowhere in the counter affidavit filed by the State it is stated also relevant to note that the petitioners themselves have declared their caste as Naidu for educational purposes. 20.Even if it is assumed that the petitioners belong either to the Kavara or Gavara community, there is no material on record to show that both Kavara and Gavara were treated as Scheduled Castes in the erstwhile Madras State. Therefore, the petitioner whose ancestors migrated from Tamil Nadu to Kerala cannot be heard to say that they belong to the Scheduled Castes status cannot bechanged by the process of migration from one State to another cannot be accepted in view of the decision of the Supreme Court reported in Action Committee v. union of India ({ 1994} 5 S.C.C. 244). It has been held in that a person beloning to the Scheduled Caste/ Scheduled Tribe in relation to his original State of which he is permanent or ordinary resident cannot be deed to be so in relation to any other State on his migration to that State for the purpose of employment, education etc. It has been held that considerations for specifying a partiular Caste or tribe or classes in a given State would depend upon the nature and extent of disadvanges and social hardships suffered by that caste, tribe or class in that State which may be toally non est in another State to which person beloning there to may migrate. The petitioners herein have no case that they had several social disadvantages and they were denied facilities for development and growth in the migrated state. The petitioners herein have no case that they had several social disadvantages and they were denied facilities for development and growth in the migrated state. In this connecton it is relevant to note the following observations of the Suprme Court in Action committee v. Union of India ((1994) 5 S.C.C. 241) " We may that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/ Scheduled Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which may be totally non est in another State to which persons belonging there to may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvanges of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given case is specified in State A as a Scheduled Caste does not necessarily mena that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State"for the purposes of this Consititution." 21.In this connection it is also relevant to note that as per the interim order passed by this Court in O.P. No,2475/89 the petitioner in the O.P. is entitled to enjoy the concessions and benefits available to Scheduled Castes till it is established by the Government or by the appropriate authority after due enquiry with opportunity to the petitioner is not a member of the Scheduled Caste. As already stated the report of the KIRTADS would show that the petitioners do not belong to the Scheduled Castes and they belong to Naidu community. In view of the report of the KIRTADS, no reliance could be placed on the certificates produced by the petitioners to show that they belong either to Kavara or Gavara community. As already stated the report of the KIRTADS would show that the petitioners do not belong to the Scheduled Castes and they belong to Naidu community. In view of the report of the KIRTADS, no reliance could be placed on the certificates produced by the petitioners to show that they belong either to Kavara or Gavara community. It follows that the findings of the learned single Judge that the petitioners in O.P. Nos.6223 & 2475/89, 17258/92 and 16958/93 are members of the Scheduled Castes and they are entitled to the benefits available to the scheduled Caste and Scheduled Tribe candidates is liable to be set aside. 22.For the reasons stated we also find that the petitioners in O.P. Nos.5498/90 and 1187/95 are not members pf the Scheduled Caste and they are not entitled to the benefits available to Scheduled Caste and Scheduled Tribe candidates. 23. In the result we set aside the common judgment dated 18-4-1995 of the single Judge in O.P. Nos.2475 & 6223/89, 17258/92 and 16958/93 and dismiss the Original Petitions. O.P. Nos. 54/90 and 11887/95 are also dismissed. W.A. Nos. 752,753, 840 & 879/95 are allowed. However, we make no order as to costs.