@JUDGMENTTAG-ORDER
R. Sudhakar, J.@mdashThis writ petition is filed seeking issuance of a writ of Certiorarified Mandamus to call for the records relating to the order of rejection passed in proceedings in Ni.Mu. 7692/2012/A4, dated 20.12.2012 on the file of the respondent, to quash the same and to direct the respondent to issue community certificates to the petitioner''s children, namely (i) S. Dhinusha; and (ii) S. Gowri Sankar, certifying that they belong to ''Kurumans'' (Scheduled Tribe) community based upon the community certificates already issued to the parents.
1.1. The brief facts of the case are as follows: The petitioner in this case claims that he belongs to Hindu ''Kurumans'' Community, which is classified as Scheduled Tribe community. On 1.7.1996, the wife of the petitioner by name K. Lakshmi was issued a community certificate by the respondent certifying that she belongs to ''Kurumans'' (Scheduled Tribe) Community. On 26.7.1996, the petitioner also obtained a community certificate from the respondent stating that he belongs to ''Kurumans'' (Scheduled Tribe) Community.
1.2. The petitioner preferred an application to the respondent on 9.1.2013 for issuance of community certificates to his minor children, namely (i) S. Dhinusha; and (ii) S. Gowri Sankar, stating that they belong to ''Kurumans'' (Scheduled Tribe) Community. As no order was passed by the respondent, the petitioner filed W.P. No. 26489 of 2012, which came to be disposed of on 15.10.2012 directing the respondent to dispose of the petitioner''s application within a period of eight weeks.
1.3. Thereafter, the respondent has passed the order dated 20.12.2012 refusing to grant community certificate to the minor children of the petitioner, primarily based on the report of the Tahsildar, which document is referred to as Serial No. 3 in the impugned proceedings. The reason given by the respondent is that on verification of the birth registers and the records produced by the petitioner, more particularly the culture, customs, distinguishing qualities and characteristics, and habits of the residents of K. Agharagaram Village, the authority is satisfied that the people belonging to ''Kurumans'' (Scheduled Tribe) Community are not living in that village. It is also stated that the petitioner is seeking community certificate for his minor children in order to claim the benefits granted to persons belonging to Scheduled Tribe Community by the Government for educational and other purposes. Aggrieved by the said order, the present writ petition is filed for the relief stated supra.
2.1. Mr. S. Doraisamy, learned counsel for the petitioner pleaded that the community certificates of the petitioner and his wife, referred to above, are valid documents which should be considered for issuance of community certificates for their children and those documents have not been considered by the respondent and have been disregarded by stating that no document prior to the year 1950 has been produced.
2.2. It is further pleaded that there is no statement that the community certificates issued to the petitioner and his wife are invalid. Once the certificates issued to the petitioner and his wife hold good, they have to be accepted and the minor children cannot be denied the benefit of the communal status of ''Kurumans'' (Scheduled Tribe) Community, for which reliance is placed on the following decisions:
(a) State of Bihar v. Sumit Anand, (2005) 12 SCC 248;
(b) C.V. Kakaivanan v. Sub Collector, Mettur, 2010 (3) CTC 673;
(c) A. Madhusamy v. RDO, Dharmapuri, W.P. No. 1837 of 2013, dated 15.4.2013;
(d) C. Ravanan v. RDO, Vellore, W.P. No. 14519 of 2012, dated 12.12.2012; and
(e) Alligounder v. RDO, Dharmapuri, W.P. No. 17154 of 2012, dated 2.8.2012.
2.3. The learned counsel for the petitioner referred to the report of the Tahsildar, which document is referred to as Serial No. 3 in the impugned proceedings, wherein it is stated that the Record of Births shows that only people belonging to ''Kurumbar'' community are resident in K. Agharagaram Village and there is no record to show the birth of people belonging to ''Kurumans'' (Scheduled Tribe) Community and pleaded that this observation of the Tahsildar is patently erroneous, as the Presidential Notification listing out the various Scheduled Tribe, Scheduled Caste, Backward Class, Most Backward Class, etc. communities does not include the community named ''Kurumbar''. If no such nomenclature is prescribed in the Presidential Notification, it does not lie in the mouth of the Tahsildar to state that there are records to show that there are people belonging to ''Kurumbar'' Community in that village. It is the further plea of the learned counsel for the petitioner that the verification report of the Tahsildar is per se bad, as he is not competent to make the verification.
2.4. To counter the report of the Tahsildar, who stated that only people belonging to ''Kurumbar'' Community are found in the said Village, reliance is placed on the letter issued by the Revenue Divisional Officer dated 5.7.2012 in response to a query under the Right to Information Act, wherein the Revenue Divisional Officer has clearly stated that ''Kurumans'' Pazhangudiyanaar (Scheduled Tribe) community people are resident in the village of K. Agharagaram.
2.5. Lastly, the learned counsel for the petitioner pleaded that a positive direction should be given to the respondent to issue community certificate and in this regard, he placed reliance on the following decisions:
(a) A. Madhusamy v. RDO, Dharmapuri, W.P. No. 1837 of 2013, dated 15.4.2013;
(b) C. Ravanan v. RDO, Vellore, W.P. No. 14519 of 2012, dated 12.12.2012;
(c) C.V. Kakaivanan v. Sub Collector, Mettur, 2010 (3) CTC 673;
(d) D. Deivakumar v. RDO, Dharmapuri, W.P. No. 22666 of 2009, dated 29.4.2010; and
(e) Kavitha and another v. RDO, Dharmapuri, W.P. Nos. 21535 and 25415 of 2011, dated 23.3.2012.
3. Per contra, the learned Additional Government Pleader appearing for the respondent placed reliance on the counter affidavit filed in support of the impugned proceedings. In the counter affidavit, it is specifically pleaded as under:
A. The order of the respondent is not arbitrary, improper and against the probabilities of the case as contended by the writ petitioner.
B. It is submitted that though the petitioner is having such ST certificates issued by the formed Revenue Divisional Officer, Dharmapuri on 26.7.1996 and for his wife K. Lakshmi on 1.7.1996, not it has came to light that such Scheduled Tribe community certificate might have been obtained by producing false evidences etc.
C. It is fact that as laid down by the Hon''ble Supreme Court no children are entitled for the ST community certificate when the parent''s are actually belonging to Kurumbar. Therefore the children are entitled to get BC (or) MBC community certificates only. Hence the rejection order of the respondent is liable to be confirmed.
D. It is submitted that the findings of the respondent that the petitioner and his fore father are belonged to Kurumbar community only and that such community is not find a place in the list of ST communities is rightly maintainable.
E. It is submitted that the respondent has held that most of the relatives of the petitioner are residing in the village are not belonged to ST community. Though the respondent himself in a reply to the question under the RTI Act had stated on 5.7.2012 that Kurumans community people resides in K. Agraharam Village, the petitioner is not at all entitled to get such ST community certificate for his family members since he belongs to BC community only.
F. It is submitted that the petitioner is having alternative remedy to file an appeal to the Chairman cum Secretary to Government, Adi-Dravidar & Tribal Welfare Department, Chennai (i.e.) State Level Scrutiny Committee at Chennai before ever approaching the Hon''ble High Court at Madras. Therefore the Writ Petition is liable for dismissed. It is very pertinent to submit here that according to birth entries. The petitioners family and relatives/forefather are all belonged to Kurumbar community only and not at all ST community as claimed by the writ petitioner.
4. We have considered the rival submissions and the issue involved in this case.
5. At the outset, it is to be noticed that the community certificates issued to the petitioner and his wife stating that they belong to ''Kurumans'' (Scheduled Tribe) Community are valid and have not been cancelled in the manner known to law. If such valid community certificates are produced before the authority, the same should be taken into consideration for all purposes, even for granting community certificates to the children.
6. In State of Bihar v. Sumit Anand, (2005) 12 SCC 248, the Supreme Court upheld the order of the High Court directing the revenue authorities to issue community certificate to the children based on the certificates already issued to their father, grandfather, mother, and maternal uncle. The Supreme Court observed as under:
6. We have perused the findings recorded by the Division Bench as well as the Single Judge of the High Court. In view of the fact that the respondents father, grandfather, mother and maternal uncle had all been granted the certificate certifying that they belong to the Gond community, we see no reason to come to a conclusion other than the one arrived at by the High Court to the effect that the respondent was entitled to issuance of the caste certificate.
7. In yet another decision in
5. In our opinion the Community Certificate issued to a Scheduled Tribe candidate by the Tehsildar prior to 11.11.1989 is a good and valid Community Certificate for all purposes so long as such a certificate is not cancelled. The authorities cannot decline to take that into consideration and insist upon a fresh Community Certificate from the Revenue Divisional Officer.
8. We find that the respondent has not given any reason as to why the community certificates of the parents of the minor children should not be considered or in what way they are invalid for the purpose of considering the claim of granting community certificates to the minor children. The stand taken by the respondent is a far cry from the law laid down by the Supreme Court in the above said decisions.
9. In this case, we also notice that there is a reference made by the authorities to a community said to be ''Kurumbar'', as in large number of writ petitions which have been filed and are pending before this Court. We fail to understand as to how it can be recorded that a community by name ''Kurumbar'' is shown to be existent in the State when the Presidential Notification does not contain the community by name ''Kurumbar'' either in Scheduled Tribe, Scheduled Caste, Backward Class or Most Backward Class, etc. lists. The Government has not been able to show that there, in fact, is a community by name ''Kurumbar''. No authority can confer upon a citizen a communal status when it is not shown in the Presidential Notification.
10. In fact, a Division Bench of this Court, by order dated 29.10.2010 made in W.P. No. 19885 of 2010, recorded the submission made by the learned Special Government Pleader and opined as under:
3. On the above submissions, we heard Mr. M. Dhandapani, learned Special Government Pleader appearing for the respondents and he would fairly submit that ''Kurumbar'' community is not a community notified under the Government Order.
4. In our opinion, as it is not in dispute that ''Kurumbar'' community is not one of the communities notified by the Government, for the purpose of identifying the status of an individual, that community cannot be taken into consideration. If that be so, the finding of the second respondent that the petitioner belongs to ''Kurumbar'' community cannot be sustained and as a necessary corollary, the same cannot be the reason for rejecting the request of the petitioner for issuance of Kurumans community certificate.
11. We have called upon the learned Advocate General to address the Court in similar cases to state as to how and on what basis the revenue authorities are issuing certificates showing the communal status as ''Kurumbar'', when there is no such community notified anywhere in the Presidential Notification. This confusion in the minds of the authorities of the State is giving rise to number of litigations and we are inclined to resolve the issue in another batch of cases.
12. In the case on hand, since the parents of the minor children have community certificates clearly stating that they belong to ''Kurumans'' (Scheduled Tribe) Community and in view of the catena of decisions, referred to above, we have no hesitation to hold that the claim of the petitioner for grant of community certificate to the minor children is justified and accordingly, a mandamus is issued to the respondent to issue community certificates. This view of ours is fortified by the decisions in (a) A. Madhusamy v. RDO, Dharmapuri, W.P. No. 1837 of 2013, dated 15.4.2013; (b) C. Ravanan v. RDO, Vellore, W.P. No. 14519 of 2012, dated 12.12.2012; (c) C.V. Kakaivanan v. Sub Collector, Mettur, 2010 (3) CTC 673; (d) D. Deivakumar v. RDO, Dharmapuri, W.P. No. 22666 of 2009, dated 29.4.2010; and (e) Kavitha and another v. RDO, Dharmapuri, W.P. Nos. 21535 and 25415 of 2011, dated 23.3.2012, wherein a positive direction was given to the revenue authorities to issue community certificates.
13. It is not as if the law does not have a remedy against a wrongful claim of communal status. After a series of decisions of this Court, as has been pointed out by the learned Additional Government Pleader, the Government has issued G.O. (Ms.) No. 106, Adi Dravidar and Tribal Welfare (CV.I) Department, dated 15.10.2012, prescribing the procedure as to how a community certificate issued to persons belonging to Scheduled Tribes/Scheduled Castes can be tested and errors can be rectified. However, we feel that some more has to be done to make it foolproof. But, we now rest with the direction that any doubt that may arise in the minds of the authorities can be resolved in terms of G.O. (Ms.) No. 106, Adi Dravidar and Tribal Welfare (CV.I) Department, dated 15.10.2012.
14. Insofar as the counter affidavit is concerned, we noticed that in paragraph 8(D), the respondent concludes that the forefathers of the petitioner belong to ''Kurumbar'' community, which we find is an erroneous statement, not supported by material records. Paragraph 8(B) of the counter affidavit speaks about the false evidence, namely the community certificates issued to the petitioner and his wife. But that is not what is stated in the impugned proceedings. As to how the counter has been filed stating something new, which is not stated in the impugned proceedings, is not known. In paragraphs 7 and 8(F) of the counter, it is stated that an appeal could be filed to the State Level Scrutiny Committee by the petitioner on rejection of his claim. This plea of the respondent is a misconception of the relevant government orders already issued based on the directions of the Apex Court and this Court. It is to be informed to the authorities that proper care should be taken before counter affidavit is filed. The legal position has to be looked into before filing the counter affidavit, which, in this case, is palpably erroneous.
For the foregoing reasons, this writ petition is allowed and the impugned order is set aside with a direction to the respondent to grant community certificates to the minor children, namely (i) S. Dhinusha; and (ii) S. Gowri Sankar, as already indicated above, forthwith. No costs.
