S. Manikumar, J@mdashChallenge in this Writ Petition, is to the Order made in Roc. No. A2/15387/2015 dated 28.5.2015 passed by the Tahsildar, Kalkulam Taluk, Thuckalay Post, Kanyakumari District, the 3rd Respondent herein, rejecting the request of the Petitioner for issuance of Community Certificate. The impugned Order dated 28.5.2015 is reproduced hereunder:
Translated version of the impugned Order dated 28.5.2015 into English, is extracted hereunder:
Na.Ka.A2/15387/2015
Tahsildar Office
Kalkulam
Dated 28.5.2015
Intimation
Sub: Requisition for issuance of Community Certificate to Thiru. S. Sathasivan, D3, BSNL Officer Quarters, Kailas Nagar, Kesavadhasapuram, Tiruvananthapuram - Regarding.
Ref: 1. Application of Thiru. S. Sathasivan.
2. Report of the Regional Deputy Tahsildar - I dated 26.5.2015.
In your Application under reference 1st cited above you have applied for issuance of Community Certificate to the Applicant''s daughter Varsha Sathasivan. As the Applicant for whom the Community Certificate is sought for, was born in Tiruvananthapuram of Kerala State and is residing at Tiruvananthapuram in Kerala State along with her father and it is ascertained through an enquiry made in the village that the father of the person, who seeks for Community Certificate had migrated from Kalkulam of Kanyakumari District prior to 20 years itself, it is informed that, the Community Certificate cannot be issued to Selvi. Varsha Sathasivan in this circle.
Sd/-
28.5.2015
Tahsildar
Kalkulam
To
Thiru S. Sathasivan,
D3, BSNL Officers Quarters,
Kailas Nagar,
Kesavadhasapuram, Trivananthapuram,
Kerala State.
2. Assailing the correctness of the same, on behalf of the Petitioner, Minor Varsha Sadasivan, her father Mr. S. Sadasivan, who has sworn to the Affidavit, filed in support of the Writ Petition, has contended that the Petitioner has passed HSC Examination in March, 2015 and secured high marks. The Petitioner has applied for admission to MBBS/BDS course, in the State of Tamil Nadu. She belongs to Hindu, "Yogeeswarar" Community, which is a Most Backward Class Community, as per Entry No. 180, in the List of Communities notified by the Government of Tamil Nadu.
3. According to S. Sadasivan, father of the Petitioner, his wife also belongs to the same Community, and she is a relative. In order to claim admission, against the seats earmarked for MBC, the Petitioner has to produce the required Community Certificate. Therefore, father of the Petitioner, has submitted an Application, on 18.05.2015, to the Tahsildar, Kalkulam Taluk, Thuckalay Post, Kanyakumari District, the 3rd Respondent herein. Along with the Application, he has enclosed his Community Certificate, dated 08.05.1995, issued by the Headquarters Deputy Tahsildar, Kalkulam, wherein, the Community has been mentioned as Hindu Yogeeswarar, recognized as a Most Backward Class, as per the Government Orders (Manuscript Series) No. 1566, Social Welfare Department, dated 30.07.1985. At that time, when his daughter applied for MBBS/BDS course in Tamil Nadu, she could not produce the Community Certificate. However, Nativity Certificate, dated 15.05.2015, has been issued by the Tahsildar, Kalkulam, stating that father of the Petitioner is native of Tamil Nadu. According to the deponent/father of the Petitioner, he was born and brought up in Tamil Nadu and after completion of post graduation, got a job in Department of Telecom (now BSNL), and posted in various places. In 2011, he was transferred from Mumbai to Kerala Telecom Circle Trivandrum, and at present, working in the said place. The Petitioner was born in Government Hospital, Peroorkada, Trivandrum, Kerala.
4. Assailing the reason for rejection of the Community Certificate, on the ground that the Petitioner''s father had migrated to Kerala, about 20 years ago from Kanyakumari District, and therefore, not entitled to be issued with a Community Certificate. Mr. Sree Kumaran Nair, learned Counsel for the Petitioner submitted that if a Central Government employee, belonging to State of Tamil Nadu, is residing outside the State of Tamil Nadu, and during the course of his employment, if a child is born in the place, where he is working, the same would not change the nativity and Community of the child.
5. According to the Petitioner, they can be denied only a Ration Card, within the State of Tamil Nadu. Reliance has also been made on the decision of this Court in
6. When the matter came up on 12.06.2015, we directed Mr. N. Manoharan, learned Special Government Pleader to get instructions.
7. On the basis of the Counter Affidavit filed by the Tahsildar, Kalkulam Taluk, learned Special Government Pleader submitted that Yogeeswarar Community is classified as Most Backward Class, in the State of Tamil Nadu and the same is classified as Other Backward Class, in the neighboring State of Kerala. Mr. S. Sadasivan, father of the Petitioner, was a native of Ponmalai, Kanyakumari District. He is a permanent resident of Kerala State. His wife Tmt. Rajani Sadasivan, is native of Kerala. The Petitioner has no permanent residence in Kanyakumari District. The Petitioner has not produced copy of Community Certificate of her mother. The elder sister of the Petitioner was not issued with any Community Certificate in Kanyakumari District. The address given in the Application for issuance of Community Certificate is the residential address of one Thiru. Kumar S/o. Subbiah, who has let out the same on lease, to one Tmt. Maheswari W/o. Sree Kumar. Community Certificate was not issued on the ground that the Petitioner''s father had migrated to Kerala, about 20 years ago.
8. Inviting the attention of this Court, to the Secondary School Leaving Certificate, issued by the Secretary, General Education Department, Government of Kerala, learned Special Government Pleader, further contended that in the State of Kerala, the Petitioner was issued with a Community Certificate as OBC. Her religion and caste have been mentioned as Hindu, Yogeeswarar. It is also his submission that as the Petitioner was born in Kerala and permanently settled in Kerala, she is not eligible to get Community Certificate in Tamil Nadu. He also submitted that Nativity Certificate to be obtained by the Petitioner, should be in the format as provided for, in the prospectus to the candidates, who seek for admission for MBBS/BDS courses. For the above said reasons, the learned State Counsel prayed for dismissal of the Writ Petition.
Heard the learned Counsel for the parties and perused the materials available on record.
9. As per the general instructions to the candidates, seeking admission to MBBS/BDS course, candidates seeking admission against the seats earmarked for reservation, have to submit the required Community Certificates. 20% of the seats are reserved for candidates belonging to MBC.
10. Material on record discloses that in the Secondary School Cumulative record, dated 15.03.1980, issued by the Head of the Secondary School, to the Petitioner''s father S. Sadasivan, as against Column 4(c), it has been mentioned as Hindu, Yogeeswarar.
11. Community Certificate dated 08.05.1995 has been issued by the Headquarters Deputy Tahsildar, Kalkulam to the Petitioner''s father, specifying the Community as Hindu Yogeeswarar, recognized as Most Backward Class, as per the Government Orders (Manuscript Series) No. 1566, Social Welfare Department, dated 30.07.1985, vide Serial No. 39.
12. From the above particulars, it could be deduced that Yogeeswarar Community has been included in the List of Backward Classes, as per the above said Government Order. Tax and other Revenue records, enclosed in the typed set of papers, shows that the Petitioner''s father has properties in Kulasekaram, Vendalicode, Kanyakumari District.
13. School Leaving Certificate of the Petitioner/minor, dated 28.04.2011 issued by the Headmistress, Vidya Niketan Marg, a Government recognized body, shows that the caste of the Petitioner/Varsha Sadasivan/Rajani is Hindu Yogeeswarar. Columns 1 & 2 of the said Certificate are extracted hereunder:
14. Entries in the Secondary School Leaving Certificate of the Petitioner/minor, issued by the Secretary, General Education Department, Government of Kerala, shows that Varsha Sadasivan/Writ Petitioner had studied in Christ Nagar English Higher Secondary School. As against Column 7, in the said Certificate, viz., Religion and Caste, it is mentioned as Hindu, Yogeeswarar. As against Column 8, whether SC/ST/OEC/OBC/GL, it is mentioned as OBC.
15. The Tahsildar, Kalkulam, has issued a Certificate of Nativity dated 15.05.2015, stating that her father is a native of Tamil Nadu. For brevity, the above said Certificate is extracted hereunder:
A4/S/R/No. 132/15
ANNEXURE XIII (B)
CERTIFICATE OF NATIVITY IN TAMIL NADU
Name: Varsha Sadasivan
Application No. 414337
Certified that Varsha Sadasivan, D/o. S. Sadasivan now residing at D-3, BSNL Officers Quarters, Kailas Nagar, Kesavadasapuram, Trivandrum-695004 an Applicant seeking admission to MBBS/BDS Course in Government/Self-Financing Colleges in Tamil Nadu. Her Father is a native of Tamil Nadu.
Tahsildar
Kalkulam
16. On 18.05.2015, the Petitioner''s father, Sadasivan has submitted an Application to the Tahsildar, Kalkulam Taluk, Thuckalay, Kanyakumari District, for issuance of Community Certificate to his daughter Varsha Sadasivan, as Hindu Yogeeswarar, a Most Backward Class Community, as per Entry No. 180 in the List of Communities notified by the Government of Tamil Nadu. Along with the Application, the Petitioner''s father has submitted the SSLC Certificate and the School Leaving Certificate of the Petitioner. Community Certificate dated 08.05.1995 issued to the Petitioner''s father has also been enclosed. Thereafter, as Community Certificate could not be produced, along with her Application to the Directorate of Medical Education, the Petitioner Varsha Sadasivan is stated to have written a Letter dated 27.05.2015 to the Selection Committee, Directorate of Medical Education, Chennai, stating that she is native of Tamil Nadu. However, the request for issuance of Community Certificate has been rejected, by the Tahsildar, on the ground that the Petitioner was residing with her father at Thiruvananthapuram, Kerala and that on enquiry, it was learnt that her father had migrated from Kalkulam Taluk, Kanyakumari District, about 20 years ago.
17. From the material on record, it could be deduced that the Headquarters Deputy Tahsildar, Kalkulam, Kanyakumari District, has issued a Certificate to the Petitioner''s father recognizing him, as belonging to Hindu Yogeeswarar Community, which is a Most Backward Class Community, as per the Entry No. 180 in the List of Communities notified by the Government of Tamil Nadu as per the Government Orders (Manuscript Series) No. 1566, Social Welfare Department, dated 30.07.1985, vide Serial No. 39. In the said Certificate, the Deputy Tahsildar has also certified that Sadasivan and her daughter/Petitioner, ordinarily resides at Ponmalai, Kalkulam Taluk, Kanyakumari District, Tamil Nadu.
18. As stated supra, Tax and Property Receipts enclosed, prove that the Petitioner''s father has got properties in Tamil Nadu at Ponmalai, Kalkulam Taluk, Kanyakumari District. As extracted supra, in the School Leaving Certificate of the Petitioner dated 28.04.2011, issued by the Headmistress, Vidya Niketan Marg, a Government recognized body, Community of the Petitioner has been mentioned as Hindu, Yogeeswarar. Even in the Secondary School Leaving Certificate of the Petitioner, issued in March 2013 by the Secretary, General Education Department, Government of Kerala, Community of the Petitioner has been mentioned as Hindu, Yogeeswarar. Though the learned Special Government Pleader submitted that the Petitioner is following the Community of her mother, this Court is not inclined to countenance the said submission, for the reason that there is an averment at Paragraph 2 of the supporting Affidavit that the Petitioner''s mother also belongs to Hindu Yogeeswarar Community.
19. At this juncture, we wish to state that in India, Community is derived by birth and not acquired. Admittedly, father of the Petitioner/deponent of the supporting Affidavit belongs to Hindu Yogeeswarar, which is a Most Backward Class Community and accordingly, Community Certificate has been issued by the Headquarters Deputy Tahsildar, Kalkulam, Kanyakumari District. Recently, a Nativity Certificate dated 15.05.2015, has also been issued by the Tahsildar, Kalkulam stating that the Petitioner''s father is a native of Tamil Nadu. Having recognized the Petitioner''s father, as native of Tamil Nadu, and also issued a Community Certificate, holding that he belongs to Hindu Yogeeswarar Community, which is a Most Backward Class Community, as per Entry No. 180 in the List of Communities notified by the Government of Tamil Nadu, it is not appropriate to reject the request for issuance of Community Certificate, to the minor Petitioner on the ground that her father had migrated to Kerala, about 20 years ago. That is the only reason assigned in the impugned Rejection Order and therefore, we are not inclined to accept the other reasons stated in the Counter Affidavit. It is well settled that an Order has to fall or succeed for the reasons contained therein and it cannot be improved by introducing additional facts in the form of a Counter Affidavit filed to a Writ Petition, challenging the said Order. Reference can be made to few decisions on this aspect:
(i) In
"8. The second equally relevant matter is that when a statutory functionary makes an Order based on certain grounds, it validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of Affidavit or otherwise. Otherwise, an Order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in
"Public Orders, publicly made, in exercise of a Statutory Authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public Orders made by Public Authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
(ii) The above position of law has been restated in
"When an Order is passed by a Statutory Authority, the same must be supported either on the reasons stated therein or on the grounds available therefore in the record. A Statutory Authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit de hors the Order or for that matter de hors the records."
20. In
"The parent of candidate will not lose the permanent residence merely because he is employed outside the State. If the parents are of Tamil Nadu origin, and residing in other State, they can be allowed to admit their children on obtaining Permanent Residence Certificate. If Petitioner''s father is a permanent resident or native of Tamil Nadu and if for the purpose of his employment he is residing in the Union Territory of Pondicherry, or outside the State, it will not disentitle the Petitioner candidate from claiming the benefit of permanent resident in Tamil Nadu."
21. In the migrated State, Petitioner may not be recognized as belonging to Most Backward Class, but in the native State, such recognition cannot be denied, as the Petitioner''s father had already been recognized as a Member belonging to the said Community.
22. At this juncture, we also deem it fit to consider the decision in
23. It is also relevant to consider a decision in
"3. On a plain reading of Clause (1) of Articles 341 & 342 it is manifest that the power of the President is limited to specifying the castes or tribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State of a Union Territory, as the case may be. Once a Notification is issued under Clause (1) of Articles 341 & 342 of the Constitution, Parliament can by law include in or exclude from the List of Scheduled Castes or Scheduled Tribes, specified in the Notification, any caste or tribe but save for that limited purpose the Notification issued under Clause (1), shall not be varied by any subsequent Notification. What is important to notice is that the castes or tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified. These are the relevant provisions with which we shall be concerned while dealing with the grievance made in this Petition.
16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the List of Scheduled Castes/Schedule 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 persons belonging thereto 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 disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the fights, privileges and benefits admissible to a Member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 & 342 of the Constitution."
24. There is no dispute that Hindu Yogeeswarar Community is recognized as one of the Most Backward Class communities in Tamil Nadu. From the materials on record, it could not deduced as to whether State of Kerala has a separate List of Communities, under the head ''Most Backward Class''. But from the School Leaving Certificate of the Petitioner, it is abundantly clear that Hindu Yogeeswarar Community is included under the head OBC. Even assuming that the above said Community has not been included under the head, "Most Backward Class", in the State of Kerala, certainly, mobility to another State, on account of employment, Community status of the Petitioner, would not change, and she would continue to be Hindu Yogeeswarar. Classification may depend upon the region within the State, or outside the State. If there was no such classification as Most Backward Class in the State of Kerala, certainly, the Authorities therein would recognize the Community of the Petitioner only as Hindu Yogeeswarar, belonging to OBC.
25. Kith and Kin of a native of Tamil Nadu, and in the case on hand, Sadasivan, father of the Petitioner, whose nativity is also recognized Tamil Nadu, cannot be denied Community Certificate of her father, solely on the ground that he had migrated to Kerala, about 20 years ago, for employment. Migration is different from nativity.
26. For the reasons stated supra, the impugned Order dated 28.05.2015 passed by the Tahsildar, Kalkulam Taluk, Thuckalay Post, Kanyakumari District, the 3rd Respondent herein, is set aside. The 3rd Respondent is directed to consider the Community Certificate dated 08.05.1995 issued to the Petitioner''s father, Nativity Certificate dated 15.05.2015 School Leaving Certificate of the Petitioner and such other documents to be produced by the Petitioner and consequently issue a Community Certificate to the Petitioner, mentioning the caste, as Hindu Yogeeswarar, the Most Backward Community under the Government of Tamil Nadu Notification, entry at 180 of the List of Communities, within one week from the date of receipt of a copy of this Order. The Writ Petition is allowed accordingly. No costs. Consequently, M.P.(MD) Nos. 1 & 2 of 2015 are closed.
