K.Gurusamy v. The Tamil Nadu State Scrutiny Committee

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.7.2008CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRA ANDTHE HONOURABLE MR. JUSTICE K.K. SASIDHARANW.P.Nos.2542 of 2003 & 20837 of 2003K.Gurusamy..Petitioner in both W.Ps.-Vs.-1. The Tamil Nadu State Scrutiny Committee Adi Dravidar and Tribal Welfare Department Namakkal Kavignar Maligai 3rd Floor, Secretariat Chennai-600 009.2. The Virudhunagar District Vigilance Committtee Virudhunagar Collectorate Virudhunagar...Respondents 1 & 2 in W.P.No.2542/20031. State of Tamil Nadu rep.by its Secretary to Government Home (SC Department) Fort St. George Chennai-600 009.2. Central Administrative Tribunal Rep.by its Registrar, Chennai-600 104. ..Respondents 1 & 2 in W.P.No.20837/2003 Prayer in W.P.No.2542 of 2003:-Writ Petition filed under Article226 of the Constitution of India praying for the issuance of aCertiorari calling for the records of the order of the secondrespondent in Roc. No.AJ-01/30558/2000 dated 21.9.2000 confirmed bythe order of the first respondent in proceedings No.30879/ADW-II/2000 https://hcservices.ecourts.gov.in/hcservices/ dated 4.3.2002 received by the petitioner on 2.1`2.2002 and quash thesame. Prayer in W.P.No.20837 of 2003:-Writ Petition filed under Article226 of the Constitution of India praying for the issuance of aCertiorari calling for the records of the order of the secondrespondent in O.A.No.1101/2002 dated 25.2.2003, quash the same andconsequently forbear the first respondent from proceeding furtherwith a charge memorandum issued in Proceedings No.SC/809-53/2000dated 11.11.2002.For Petitioner : Mr.Vijay Narayan, SC for Mr.R.PathibanFor Respondents1 & 2 in W.P.No. 2542 of 2003 & R.1 in W.P.No.20837/2003 : Mr. K.Elango, Spl.G.PFor R.2 in W.P.No.20837 of 2003: Tribunal.

O R D E R( Order of the Court was made by P.K. MISRA, J) Heard Mr. Vijay Narayan, learned Senior counsel for thepetitioner and Mr.K.Elango, learned Special Government Pleader forrespondents.2. The petitioner entered into service as a reserved categorybelonging to Scheduled Tribe. While he was in service, a doubt aroseregarding his community status and the matter was decided on21.9.2000 by a two member District Level Committee, which found thatthe certificate was incorrect and accordingly cancelled thecertificate. The appeal filed by the petitioner was rejected by the State Level Committee consisting of three members by an order dated4.3.2002. In the meantime while all these controversies were goingon, the petitioner had reached the age of superannuation and hadretired with effect from 28.2.1997. After the dismissal of theappeal by the State Level Committee, a charge memo was issued by the Government for the purpose of considering as to whether pensionshould be withheld or not on the allegation that the petitioner hadentered into service on the basis of a false certificate regardinghis community status. https://hcservices.ecourts.gov.in/hcservices/

The petitioner filed Original Application No.1101 of 2002before the Central Administrative Tribunal challenging such chargememo. The said case having been dismissed, the petitioner has filedW.P.No.20838 of 2003. The petitioner also filed W.P.No.2542 of 2003challenging the cancellation of the community certificate by the District Level committee and confirmed by the State Level Committee.

So far as the writ petition (W.P.No.2542 of 2003) challengingorder passed by the District Level Committee and the State LevelCommittee is concerned, the matter is no longer res integra. InMaduri Patel v. Additional Commissioner, Tribal Development reportedin 1995 Supreme Court 94, the Supreme Court had laid down the Law aswell as the procedure relating to consideration of the question ofvalidity of a certificate relating to a person claiming to beScheduled Tribe and had directed for establishment of a three membercommittee to enquire into such matters.

In the present case, the community certificate was cancelledby the District Level Committee consisting of two members whereas theaforesaid decision of the Supreme Court categorically contemplatedthat such Committee to consider the question of validity of otherwiseof the community certificate of a person allegedly belonging to Schedule Tribe should consist of three members. It is no doubt truethat such order of the two member District level committee wassubsequently affirmed by the State Level Scrutiny Committeeconsisting of three members, which had been apparently given thepower of hearing the appeals against such orders passed by the District Level Committee.

There was divergences of opinions in the Madras High Courtas to whether the order passed by the District Level Committeecancelling the community certificate of a person can be considered tobe legal, if it is ultimately affirmed by the State Level Committee. One line of decision laid down that since the decision of the twoMember District Level Committee was void as being contrary to theopinion of the Supreme Court, there was a parallel line of thinkingto the effect that since the State Level Committee consisting ofthree members had confirmed such order of District Level Committee in Maduri Patel's case , such order could be considered as valid and thecancellation of the community certificate could be upheld.

Ultimately in a very recent decision reported in 2008(1) MLJ125 SC (G.M., INDIAN BANK v. R. RANI),the Supreme Court hasapparently approved of the first line of thinking and has upheld onesuch decision by observing as follows:- https://hcservices.ecourts.gov.in/hcservices/ "

So far as the second submission isconcerned, we are of the view that as theconstitution of the District LevelCommittee was in infarction of law laiddown by this Court in the case of KumariMadhuri Patil and another v.Addl. Commr. Tribal Development, Thane andothers (supra), the defect could not havebeen cured by taking the matter in appealto State Level Committee. This being theposition, we are of the view that the HighCourt was quite justified in quashing theorder passed by the District LevelCommittee, State Level Committee and theorders of termination. "8. In view of such authoritative pronouncement of the SupremeCourt, there is no escape from the conclusion that the cancellationof the community certificate by the two Member Committee was of noavail and confirmed in appeal.

It is not in dispute that in the meantime the StateGovernment has constituted an appropriate three Member Committee togo into the question of validity or otherwise of the communitycertificate of a person allegedly belonging to Scheduled Tribe. Thishas been done vide G.O.(2D).No.108 dated 12th September, 2007. Sincethe cancellation of the community certificate is now found to beinvalid and yet the dispute relating to the community status ispersisting, obviously the matter is now required to be decided by anappropriate committee as constituted G.O.(2D).No.108 dated 12thSeptember, 2007.

Thus, while setting aside the orders passed by respondents1 and 2, cancelling the community certificate issued in respect ofthe petitioner, we direct that such matter relating to validity ofthe community certificate shall be decided by the appropriatecommittee. Since the matter is very old, the said Committee isexpected to resolve the question as expeditiously as possible, preferably within a period of six months from the date of receipt ofa copy of this order. It goes without saying that the Committee shallgive a reasonable opportunity of hearing including liberty ofpersonal hearing to the petitioner before taking any decision. It isalso made clear that any observation made in the earlier round ofproceedings before the District Level Committee or the State LevelCommittee or in the present order should not be construed asexpressing any opinion in the matter and the said matter has to be https://hcservices.ecourts.gov.in/hcservices/ decided in accordance with law on the basis of materials to beproduced before the Committee. In order to avoid any further delay inthe matter, we direct the petitioner to appear before the State LevelCommittee on 4.8.2008 without waiting for any further notice from thesaid Committee. On the said date, the Committee shall fix anappropriate date for holding enquiry thereafter.

So far as W.P.No.20837 of 2003 is concerned, now that thequestion of community status has to be decided afresh, obviously, theconclusion already rendered cannot hold good and such matter has todepend upon the result of the enquiry to be conducted by the StateLevel Committee. Therefore while setting aside the order of the Tribunal, we observe that such charge memo would be considered inaccordance with law after the matter is finalised by the State LevelScrutiny Committee.

Accordingly W.P.Nos.2542 of 2003 and 20837 of 2003 areallowed to the extent indicated above. No costs.sd/-Asst. Registrar/true copy/Sub Asst. RegistrarTr/To1. The Tamil Nadu State Scrutiny Committee Adi Dravidar and Tribal Welfare Department Namakkal Kavignar Maligai 3rd Floor, Secretariat Chennai-600 009.2. The Vigilance Committtee Virudhunagar Collectorate Virudhunagar, Virudhunagar District https://hcservices.ecourts.gov.in/hcservices/

3. The Secretary State of Tamil Nadu Home (SC Department) Fort St. George Chennai-600 009.4. The Registrar, Central Administrative Tribunal Chennai-600 104.+2 ccs To Mr.R.Pathiban, Advocate, SR.391211 cc To The Government Pleader, SR.39178W.P.Nos.2542 and20837 of 2003 mg [co]gkg/25.7