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2002 DIGILAW 1089 (MAD)

N. Thayanandar v. State of Tamil Nadu and Others

2002-09-20

P.K.MISRA

body2002
Judgment :- In course of hearing of the contempt application, one of the questions raised was relating to proper implementation of the order of this Court dated 19.6.002 in WPMP.No.18629 OF 2002 and the order dated 26.7.2002 in Cont.Appln.No.407 of 2002. The learned counsel for the respondents had submitted that the main writ petition itself may be taken up so that if any further direction is given, the same may be implemented and it may not be necessary to pursue the contempt petition. Keeping in view such submission, on consent of the counsels, both the matters were listed together and were heard together. This common judgment shall govern the writ petition as well as the contempt petition. 2. In the writ petition, which has been filed in the month of April, 2002, the petitioner has prayed for a direction to the third respondent to consider the petitioner as a candidate belonging to Scheduled Caste and to grant admission to PG Degree / Diploma Courses for the year 2002-2003 Session. 3. The father of the petitioner originally belonged to Chakkiliyan community, which is notified as Scheduled Caste in the Presidential Order under the Constitution. Subsequently the father of the petitioner converted himself to Christian religion in the year 1966. The petitioner was born in April 1977, obviously as a Christian. Subsequently the parents, other four elder brothers of the petitioner and the petitioner himself converted to Hinduism through Ariya Samajam, Kumbakonam in Thanjavur District on 28.7.1991 and many of them changed their names after such conversion. At the time of conversion to Hinduism in 1991, the petitioner was aged about 14 years and he was a student of 9th standard. Community Certificate dated 9.9.1992 was issued by the competent authority, namely the Tahsildar, Tiruchirapalli showing that the petitioner is a member of Scheduled Caste, as per the Presidential Notification. In due course, the petitioner has completed his schooling and after passing Plus-2 examination in 1994, he applied for admission to MBBS course as Scheduled Caste candidate. He had produced his community certificate along with the application. He was selected to MBBS course as belonging to Scheduled Caste and duly completed his MBBS course in the year 2001. Subsequently, he applied for Post Graduate Medical Entrance Examination which was held on 7.4.2002 wherein he had applied as a Scheduled Caste candidate. He had produced his community certificate along with the application. He was selected to MBBS course as belonging to Scheduled Caste and duly completed his MBBS course in the year 2001. Subsequently, he applied for Post Graduate Medical Entrance Examination which was held on 7.4.2002 wherein he had applied as a Scheduled Caste candidate. However, in the selection list, the community of the petitioner was shown as B.C., that is to say Backward Class. In other words, at the time of the selection, the respondents treated the petitioner as a member of Backward Class and not as a member of Scheduled Caste inspite of the community certificate which had earlier been granted. At that stage, the petitioner filed the writ petition which was admitted and notice was issued. Thereafter at the time of counselling, the petitioner was treated as Backward Class and was called upon to exercise his option as a member of Backward Class and not as a member belonging to Scheduled Caste. The petitioner had raised protest at that stage and had given the option of joining D.L.O. course obviously on the basis of availability of seats for Backward Class. Thereafter the petitioner had moved application WPMP.No.18629 of 2002 for an interim order in the pending writ petition. On 19.6.2002, after hearing the learned counsel for the petitioner and the learned counsel for the State, the following order was passed :- “ . . . It appears prima facie that the community certificate had been issued in favour of the petitioner showing him as a member of the scheduled caste and the petitioner has pursued his education including the M.B.B.S. Degree as belonging to scheduled caste. At the time of selection to the Post Graduate Degree and Diploma Courses, the authorities have treated him as a member of backward classes. Prima facie, there is no justification for the above action of the respondents. It is not disputed that if the petitioner would have been treated as a member of scheduled caste, he would have been selected. In such view of the matter, without prejudice to the contentions of both parties, in the interest of justice, it is directed that the petitioner may be provisionally admitted to the appropriate Post Graduate Course. This may be done within a period of five days from the date of communication of this interim order. . .” (Emphasis now added) 4. In such view of the matter, without prejudice to the contentions of both parties, in the interest of justice, it is directed that the petitioner may be provisionally admitted to the appropriate Post Graduate Course. This may be done within a period of five days from the date of communication of this interim order. . .” (Emphasis now added) 4. After the aforesaid order was passed, without calling the petitioner for further counselling, the respondent No.3 issued a communication dated 10.7.2002 to the petitioner to take admission in D.L.O. course. The petitioner wrote a letter dated 16.7.2002 wherein it was indicated “ . . . Knowing fully well about the crucial facts and developments of the case you have categorised me as a B.C. candidate, which is the subject matter of the above Writ Petition. Therefore, I request you to consider and offer me a course to which I would be entitled as per rank and mark in the entrance examination and after considering me as a S.C Candidate. . . .” 5. Since the petitioner had been called upon to report to the Head of the Institution, Government Medical College, Chennai on or before 17.7.2002, he reported before such authority on 17.7.2002. In the joining report, he has submitted that he is submitting his joining report without prejudice. It is obvious that while offering the petitioner to join D.L.O. course, he was treated as belonging to Backward Class and not Scheduled Caste. 6. Before all these developments, the petitioner had filed Contempt Application No.407 of 2002 on 27.6.2002 which was registered on 1.7.2002. In the said contempt petition, it was alleged that “ . . . inspite of a direction of this Hon’ble court, I have not admitted to the college to the appropriate course to which I would be entitled to as per my mark and rank . . .” Notice was directed to be issued in the aforesaid contempt application on 2.7.2002 and though the matter was directed to be posted on 16.7.2002, it was actually listed on 19.7.2002. In the meantime as already indicated, the petitioner had taken admission on 17.7.2002 without prejudice to his case. The contempt application which was listed on 19.7.20-02, was posted for orders on 24.7.2002 and subsequently on 26.7.2002, the following order was passed :- “ . . . Heard counsel for the parties. In the meantime as already indicated, the petitioner had taken admission on 17.7.2002 without prejudice to his case. The contempt application which was listed on 19.7.20-02, was posted for orders on 24.7.2002 and subsequently on 26.7.2002, the following order was passed :- “ . . . Heard counsel for the parties. It is submitted by the applicant that the applicant has been admitted to D.L.O. course treating him as belonging to Backward class which is contrary to the order of this Court. Learned counsel further submits that the applicant is interested in joining D.M.R.D. course. Learned counsel for the State states that he shall obtain instructions in the meantime and may take steps for admitting the applicant in D.M.R.D. course, subject to the other conditions indicated in the interim order dated 19.6.2002. . . . “ (emphasis added) 7. Thereafter there has been no further development. However, a counter affidavit has been filed in the writ petition and show cause has been filed in the Contempt Application. 8. In the counter affidavit filed in the writ petition, the respondents have tried to justify their action in treating the petitioner as a member of Backward Class. It has been indicated in the counter affidavit that since parents of the petitioner had converted themselves to Christianity and the petitioner was born as a Christian, on further conversion to Hinduism, the petitioner cannot be treated as a member of Scheduled Caste, unless it is shown that he has been accepted by the caste and community and in the absence of any such proof, the petitioner had rightly been treated as belonging to Backward Class. 9. In the reply to the contempt application, it has been stated that during the counselling, the petitioner himself had given option for D.L.O. and on the basis of such option the petitioner had been offered the seat in D.L.O. In the course of hearing, it has been submitted that the petitioner had joined D.L.O. course and at that stage, the petitioner had never raised any objection that he should be given admission in any other course and since there was no vacancy in D.M.R.D. course, there was no scope for complying with the subsequent order dated 26.7.2002. 10. 10. Coming first to the question as to whether the action of the respondents in considering the petitioner as a member of Backward Class instead of Scheduled Caste is justified or not, it is apparent that the community certificate issued by the competent authority is still in force and no steps have been taken for cancellation of such community certificate before the appropriate authority. In view of such admitted position, I hardly see any justification in the action of the respondents in not treating the petitioner as a member of the Scheduled Caste for the purpose of admission to the post graduate courses. 11. It is not disputed that the community certificate had been issued by the Tahsildar, who is the competent authority to issue such certificate. Law is well settled that until such community certificate issued by the competent authority is cancelled in accordance with law, such community certificate is to be acted upon and it is not open to be ignored in any collateral proceeding or by any authority including the State. Moreover, the petitioner himself was selected for MBBS course as belonging to Scheduled Caste on the basis of the very same community certificate. Neither the State Government nor the respondent No,.3 while considering the question of selection to Post Graduate courses had any authority in law to ignore the community certificate which was still holding the field at that time and continues to be valid even now. 12. Learned counsel appearing for the respondents has submitted that unless sufficient material is produced by the petitioner to show that he has been accepted back by his community as a member of the community, the community certificate issued by the Tahsildar is of no consequence, as such the certificate did not indicate that the petitioner has been accepted back as a member of the community. Such an ingenious submission is only to be stated to be rejected. Since the Tahsildar is the person authorised to issue community certificate, there is a presumption attached to the official act of the Tahsildar and the certificate issued by the Tahsildar is not open to be questioned by authorities such as Secretary of the Selection Committee or even the State, unless the community certificate is validly cancelled by the appropriate authority in accordance with law. Whether the community certificate issued by the Tahsildar was proper or improper can be decided only in appropriate proceedings for cancellation of the certificate and cannot be ignored by any authority merely because some doubt is raised by some person. This position is very much clear in view of the recent Division Bench decision of this Court in 2002(2) CTC 257 (N.S. ZIAUDDEEN vs S. ASHOK KUMAR, PRINCIPAL SESSIONS JUDGE, AND 3 OTHERS). It was observed as follows :- “ There is no scope for enquiry in this writ petition and as rightly pointed out by the learned senior counsel for the first respondent, this writ petition for quo warranto does not have such scope for enquiry. We are also accepting the arguments of Mr.G. Masilamani that so long as the social status of the first respondent, as depicted by the caste certificate issued by the authorities, stands, there is a statutory presumption under Section 114 of Indian Evidence Act that the first respondent is a Scheduled Caste and he cannot be called a usurper of the office. In fact, his caste certificates have not so far been questioned by anybody and as such, there was no occasion for any enquiry.” What was observed by the Division Bench in Quo Warranto proceedings in the High Court is in fact applicable with more vigour in respect of other proceedings such as matters relating to admission or appointment. Therefore, there cannot be any doubt that the respondents have committed grave illegality in treating the petitioner as a member of the backward class at the time of considering the application for the admission to post graduate courses. The petitioner should have been treated as a member of the scheduled caste. The very fact that the petitioner had also completed his MBBS degree after being treated as a member of the Scheduled Caste could not have been also ignored. 13. If at all there was any doubt, at the time of selection atleast the mistake should have been rectified when an order was passed by the High Court after hearing both the parties. The order dated 19.6.2002 made it clear that the petitioner should be admitted to “an appropriate course”. 13. If at all there was any doubt, at the time of selection atleast the mistake should have been rectified when an order was passed by the High Court after hearing both the parties. The order dated 19.6.2002 made it clear that the petitioner should be admitted to “an appropriate course”. It is obvious that the petitioner at that time should have been treated as a member of Scheduled Caste and should have been given provisional admission, subject to the result of the writ petition to the appropriate course, of course without prejudice to the contentions of the parties. The direction at that stage was to give admission within a period of five days. For reasons best known to the respondent No.3, she dilly-dallied over the matter for a considerable length of time and only after a contempt application was filed wherein notice was directed to be issued on 2.7.2002, the respondent No.3 appears to have woke up from her slumber and without calling the petitioner for fresh counselling passed an order for admitting the petitioner to D.L.O course apparently on the basis of some clarification from the Government, but without bothering to call the petitioner for counselling nor bothering to seek for any clarification from the High Court itself. Ultimately, a further chance was available to the respondent No.3 to rectify the mistake when a specific direction was given in the presence of both the parties on 26.7.2002 for the purpose of admission to D.M.R.D. course. Thereafter instead of gracefully complying with the direction, the respondent No.3 has pursued the collision course. 14. In the course of hearing, it has been submitted that since the petitioner himself had given option for admitting himself to D.L.O course, there is no further necessity for any further counselling and the petitioner has been admitted to the course. This submission is again based on thorough misconception. It has to be remembered that option was given by the petitioner at a stage when he was being treated as a member of Backward Class and therefore, the petitioner could not have given any option for any other course as seats had already been filled up by other candidates. This submission is again based on thorough misconception. It has to be remembered that option was given by the petitioner at a stage when he was being treated as a member of Backward Class and therefore, the petitioner could not have given any option for any other course as seats had already been filled up by other candidates. If the petitioner would have been treated as a member of Scheduled Caste, there is no dispute that he would have been eligible for being admitted to D.M.R.D. course as the learned counsel for the respondents has fairly conceded that the seat reserved for D.M.R.D course has been allotted to a Scheduled Caste candidate who has secured less mark than the petitioner. The option given by the petitioner willy-nilly at the stage of initial counselling because he was treated as a member of backward class, cannot be held against the petitioner. Moreover, even at the time of initial counselling the petitioner had made it very clear that he was attending the counselling without prejudice to his right as a Scheduled Caste candidate. Even before the provisional admission, the petitioner has made it very clear that he is taking admission without prejudice and the petitioner had already written a letter that he should have been treated a member of Scheduled Caste. The course of conduct of the respondent No.3 reflects that she was not prepared to accept the petitioner as a Scheduled Caste candidate notwithstanding the orders of the High Court. She has tried to take refuge under such technical pleas. The clear intention appears to be to overreach the order of the court. There was no justification for the respondent No.3 to sit over the matter for a considerable length of time even though direction was to give admission within five days and even thereafter the matter has been compounded treating the petitioner as a member of scheduled caste and not as a member of backward class, subsequent order dated 26.7.2002 has been ignored. 15. In the course of hearing, the learned counsel appearing for the respondents has submitted that since all the seats have been filled up it is not possible to adjust the petitioner against D.M.R.D. course. This submission is again without any justification. 15. In the course of hearing, the learned counsel appearing for the respondents has submitted that since all the seats have been filled up it is not possible to adjust the petitioner against D.M.R.D. course. This submission is again without any justification. It is not disputed that seats even in D.L.O. course had been filled up by the time of compliance of the interim order of this court and the respondents had admitted the petitioner by creating an extra seat. There is no reason as to why such a course should have been adopted for D.M.R.D. course. 16. For the aforesaid reasons, I allow the writ petition and direct that the petitioner should be admitted to D.M.R.D. course by creating an additional seat. 17. So far as the Contempt Application is concerned, the narration of events leaves no room for doubt that the respondent No,.3 has tried to over-reach the order of this Court on some pretext or the other. In course of hearing the learned counsel for the respondents had submitted that since there was no express direction regarding fresh counselling, the respondents under a bonafide belief had taken steps to admit the petitioner in D.L.O. course as per the original option, but there was no intention to flout the orders of this Court. It was further submitted that if any fresh direction is given, the same shall be implemented. Having regad to all these aspects, I do not think that any useful purpose would be achieved by pursuing further the contempt petition. However, it is expected that the respondents and particularly respondent No.3, who is present in court, would be more careful in future. The basic fact that the orders of this Court are to be implemented in letter as well as in spirit and no party including the State is expected to over-reach the orders of the Court or to play hide and seek with the orders of the court by seeking refuge under some technicalities or by playing with the words. 18. In the result, the writ petition is allowed and the contempt application is disposed of. Direction regarding allotment of seat should be complied within a period of ten days from the date of communication of the order. Consequently, the WPMP.No.18629 of 2002 is closed and Sub Appln.No.265 of 2002 filed in contempt application is rejected. No costs.