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2015 DIGILAW 830 (MAD)

K. Kalaiveni @ Kamala v. District Vigilance Committee-cum-District Collector, Madurai District, Madurai

2015-02-11

V.DHANAPALAN, V.M.VELUMANI

body2015
Judgment V.M. Velumani, J. This writ petition has been filed seeking issuance of a Writ of Certiorari, calling for the records relating to the order made in Ni.Mu.No.Adi8/89396/02, dated 06.08.2004, on the file of the first respondent and quash the same. 2. The petitioner was working as a Senior Telephone Supervisor (Operations) in Telecom Department, Madurai. According to the petitioner, she belongs to 'Kadar' Tribe, which is recognised as Scheduled Tribe, by the Government of Tamil Nadu, Kerala and the Government of India. She is a native of Kuriyarkutti, a Tribal Village under Muthalamada I, Revenue Village, Chitoor Taluk, Palghat District, Kerala State. Her father was working in Railways. Her father married one Pappammal, who belongs to Agamudaiyar Community, which has been notified as a Backward Class in the State of Tamil Nadu. After the death of her father, the petitioner married one Natarajan, a distant relative of her mother, in the year 1978. In the year 1974, the petitioner was provisionally appointed in the services on the basis of the community certificate issued by the Madurai Collectorate. On the date of joining of the petitioner, she was instructed to obtain a community certificate from her native place i.e., from the authorities of Kerala. She obtained a community certificate issued by the Authority in Kerala. After submission of the said certificate, her service was regularised. The petitioner completed 29 years of unblemished service against the Scheduled Tribe vacancy. 3. While so, the Revenue Divisional Officer, Madurai, had directed her to appear before him along with her documents for community certificate enquiry on 17.03.2003, 25.04.2003, 04.08.2003 and 30.10.2003, to find out the genuineness of the community certificate produced by her. She appeared for all the enquiries, except on 25.04.2003 and she informed her inability to appear for the enquiry on the said date, due to her ill-health. In the meanwhile, the District Collector, by his letter, dated 06.08.2004, signed on 30.08.2004, cancelled the community certificate of the petitioner, without even giving her an opportunity of hearing. 4. The petitioner has challenged the said order of cancellation on the following grounds: (a) The petitioner had produced the community certificate issued in the year 1974 by the competent authority of Madurai Collectorate, and also by the competent authority of her native place and the affidavits of her relatives from Kuriyarkutti. 4. The petitioner has challenged the said order of cancellation on the following grounds: (a) The petitioner had produced the community certificate issued in the year 1974 by the competent authority of Madurai Collectorate, and also by the competent authority of her native place and the affidavits of her relatives from Kuriyarkutti. (b) In spite of a number of confirmation of the genuineness of the community certificate of the petitioner's elder brother and family members, by the Tahsildar and the Revenue Divisional Officer, after personal enquiries, proper verification and affidavits of the relatives including the petitioner and the family members of the petitioner, the then District Collector already cancelled the community certificate of the petitioner and her family members, by his letter in Na.Ka.No.5288/94-1(adi-8), dated 06.09.1994. The said cancellation was challenged by her. A Division Bench of this Court, by the order, dated 06.04.1998, passed in W.A.No.240 of 1998, quashed the cancellation order of the District Collector, dated 06.09.1994. Therefore, the present cancellation is hit by principles of res judicata. (c) As per Chapter 13.3 of the Brochure on "Reservation for SC/ST in services" issued by the Government of India, only the Appointing Authority has the right to verify the community certificate, if necessary. In the instant case, the appointing authority is the Chief General Manager, Chennai. The Chief General Manager, did not seek verification of the genuineness of the petitioner's community certificate. On the other hand, only the third respondent has sought for verification. (d) The first respondent did not conduct enquiry and opportunity was not given to the petitioner to prove the genuineness of the community certificate and no show cause notice was issued to the petitioner. (e) The first respondent is not the competent authority to verify the genuineness of her community certificate. Only Palakkad Collectorate is the competent authority to verify the genuineness of the certificate. (f) The guidelines set out by the Hon'ble Supreme Court in Kumari Madhuri Patil and another Vs. Additional Commissioner, Tribal Development and others reported in 1994 (6) SCC 241 , are not followed by the first respondent. (g) No Vigilance Committee was set up to check and verify the genuineness of the petitioner's community certificate, as held by the Hon'ble Supreme Court. (h) The first respondent's committee consisted only two members instead of three members as held by the Hon'ble Supreme Court. (g) No Vigilance Committee was set up to check and verify the genuineness of the petitioner's community certificate, as held by the Hon'ble Supreme Court. (h) The first respondent's committee consisted only two members instead of three members as held by the Hon'ble Supreme Court. (i) As per Article 100 of the Limitation Act, the first respondent has no power to verify the community certificate of the petitioner after 29 years. 5. In support of his submissions, learned counsel for the petitioner relied on a judgment of a Division Bench of this Court in the case of K. Gurusamy Vs. Tamil Nadu State Scrutiny Committee, Adi Dravidar and Tribal Welfare Department, Chennai and others [ 2008 (6) MLJ 807 ], wherein at paragraph 10, it has been held as under: "10. Thus, while setting aside the orders passed by the respondents 1 and 2, cancelling the community certificate issued in respect of the petitioner, we direct that such matter relating to validity of the community certificate shall be decided by the appropriate committee. Since the matter is very old, the said Committee is expected to resolve the question as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. It goes without saying that the Committee shall give a reasonable opportunity of hearing including liberty of personal hearing to the petitioner before taking any decision. ....." 6. Per contra, the first respondent in his counter affidavit has stated that an opportunity was given to the petitioner to appear before the committee to substantiate her case. But, she did not co-operate with the enquiry and refused to give any statement during the enquiry. Only after notice being served through her employer, she appeared before the Committee and she did not produce any sufficient material to substantiate her case that she belongs to Scheduled Tribe Community. It is his contention that Article 100 of Limitation Act is not applicable to the facts of the present case. 7. Learned counsel appearing for the third respondent also contended that though an appeal to State Level Scrutiny Committee is available, the petitioner did not avail effective appellate remedy and therefore, the writ petition is not maintainable. 8. Learned counsel for the petitioner as also the respondents relied on two Government Orders, viz. 7. Learned counsel appearing for the third respondent also contended that though an appeal to State Level Scrutiny Committee is available, the petitioner did not avail effective appellate remedy and therefore, the writ petition is not maintainable. 8. Learned counsel for the petitioner as also the respondents relied on two Government Orders, viz. G.O.(2D) No.108, Adi Dravidar and Tribal Welfare (CV-I) Department, dated 12.09.2007 and G.O.(Ms)No.106, Adi Dravidar and Tribal Welfare (CV-I) Department, dated 15.10.2012. 9. Heard Mr. G. Prabhu Rajadurai, learned counsel appearing for Mr. T. Muruganantham, learned counsel for the petitioner and Mr. N. Manohar, learned Special Government Pleader appearing for respondents 1 and 2 and Mr. M. Govindarajan, learned Standing Counsel appearing for the third respondent. 10. We have given careful consideration to the submissions made by the learned counsel on either side and the materials available on record. 11. On a perusal of the judgment of the Hon'ble Supreme Court in Kumari Madhuri Patil's case, it is seen that a committee to verify the genuineness of Scheduled Tribe Community Certificate must consist of three members. A Vigilance Committee also must be formed to make full verification and file a report. If the report is adverse to the individual, then, an opportunity must be given to the individual to substantiate the claim that he/she belongs to Scheduled Tribe and the certificate produced is genuine. In the present case, admittedly, only a two member Committee verified the genuineness of the community certificate produced by the petitioner. There was no vigilance enquiry as per G.O.(Ms)No.106, Adi Dravidar and Tribal Welfare (CV-I) Department, dated 15.10.2012. By G.O.(2D) No.108, Adi Dravidar and Tribal Welfare (CV-I) Department, dated 12.09.2007, the second respondent has stated that a State Level Scrutiny Committee was formed consisting of three members with Secretary to the Government, Adi Dravidar Tribal Welfare Department as Chairman. By G.O.(Ms)No.106, Adi Dravidar and Tribal Welfare (CV-I) Department, dated 15.10.2012, a Vigilance Committee was formed for various Regions including Madurai Region to verify the community status of persons belonging to Scheduled Caste and Scheduled Tribe and to submit a report to the District Level Vigilance Committee/State Level Scrutiny Committee. The said Government Orders were passed subsequent to the impugned order of cancellation. The impugned order is liable to be set aside, as the first respondent did not follow the guidelines framed by the Hon'ble Supreme Court in Kumari Madhuri Patil's case. 12. The said Government Orders were passed subsequent to the impugned order of cancellation. The impugned order is liable to be set aside, as the first respondent did not follow the guidelines framed by the Hon'ble Supreme Court in Kumari Madhuri Patil's case. 12. The contention of the respondents that the petitioner has appellate remedy to challenge the impugned order, is untenable, as the issue was considered by a Division Bench of this Court in K.Gurusamy Vs. Tamil Nadu State Scrutiny Committe, Adi Dravidar and Tribal Welfare Department, Chennai and others (supra), wherein in paragraph 10, it has been held that the order of cancellation passed by the District Level Committee consisting of two members are invalid and therefore, confirmation of cancellation by three members State Level Scrutiny Committee is also invalid. The impugned order was passed only by a two member committee and therefore, the said order is set aside. 13. In view of G.O.(2D) No.108, Adi Dravidar and Tribal Welfare (CV-I) Department, dated 12.09.2007,the matter is referred to three Member State Level Scrutiny Committee for verification as to the genuineness of the community certificate produced by the petitioner. As per G.O.(Ms)No.106, Adi Dravidar and Tribal Welfare (CV-I) Department, dated 15.10.2012,the Vigilance Committee of Madurai Region must make a spot verification and file a report to the State Level Scrutiny Committee. If the report is adverse to the petitioner, the said report must be furnished to the petitioner and an opportunity of hearing must be given to her to submit her explanation. After giving personal hearing to the petitioner, the State Level Scrutiny Committee is directed to pass appropriate orders on merits and in accordance with law. The entire process must be completed within a period of six months from the date of receipt of a copy of this order, as the matter is pending from the year 2004. In the result, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.