NANDU DEV V.R v. THE STATE OF KERALA

BY ADVS. SMT. LATHA THANKAPPAN (SPL GP FOR SC/ST) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.27381/2015 -:3:- J U D G M E N T The petitioner has approached this Court challenging the denial of benefits available to the members of the Scheduled Castes to the petitioner and seeking to quash Exts.P4 and P7 proceedings, through which it was determined that the petitioner does not belong to the Hindu -Ayyanavar Community (SC). Ext.P4 is the proceedings of the KIRTADS and Ext.P7 is the order of the Government rejecting a revision petition against Ext.P4 proceedings.

2. The main contention taken in the writ petition is that the petitioner is the son of an inter caste couple and that, while the father of the petitioner belongs to the Hindu- Ayyanavar Community (SC), his mother belongs to the Hindu -Naidu Community. It is the case of the petitioner that, children of inter-caste couples are entitled to the benefits extended to members of the Scheduled Caste Community if one among the parents belongs to a Scheduled Caste Community. It is submitted that in the case of the brother of the petitioner this Court through Ext.P8 judgment dated 03-09-2015 had found that the brother of the petitioner is entitled to the benefits of the W.P.(C) No.27381/2015 -:4:- Scheduled Caste Community and therefore there is no reason whatsoever to deny the similar benefits to the petitioner.

3. The learned Special Government Pleader would submit that, Ext.P8 judgment, in the case of the brother of the petitioner, had been challenged by the State by filing W.A.No.962 of 2016. It is submitted that, since the brother of the petitioner had also sought the benefit of the Scheduled Caste Community for the purposes of admission to a medical college, the Division Bench did not go into the merits of the matter and disposed of the W.A.No.962 of 2016, after noting that the brother of the petitioner had completed the MBBS Course. Therefore it is submitted that Ext.P8 judgment by itself cannot be a ground to extend the benefit of the Scheduled Caste Community to the petitioner.

4. Having heard the learned counsel for the petitioner and the learned Special Government Pleader, I am of the view that the matter requires reconsideration at the hands of the 2 nd respondent. The provisions of Section 9(2) of the The Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996, indicate that the report of the 2nd respondent regarding the claim of a person to be included as W.P.(C) No.27381/2015 -:5:- a member of the Scheduled Castes/Scheduled Tribes shall be conclusive. This Court had already found in Ext.P8 that the brother of the petitioner is entitled to the benefits of the Scheduled Castes Community, as the father of the petitioner (also father of the petitioner in Ext.P8 judgment in WP(C) No.25993 of 2015) belongs to a Scheduled Caste Community. In WP(C) No.25993 of 2015 it was held as follows: “8. On the other hand, all the materials placed before the Court and before the authorities would indicate that the petitioner was living along with his father. The Government order clearly indicates that each case has to be examined individually based on the existing facts. Therefore, the scope of such enquiry is limited as to whether the petitioner suffer the same disability or social infirmity, of the community to which his father belongs. When facts otherwise disclose that petitioner was brought up with his father necessarily, presumption goes with that the petitioner living in the community in which his father belongs. In such circumstances, it is for the State to show otherwise the petitioner was not living with his father but living with his mother who belongs to other community.

9. A child cannot live in an isolation. He lives in a family and the family lives in a society which governed by social norms and practices of the communities of the family which compose the society. In Ext.P3 certificate issued by the Kerala Ayyanavar Service Society also affirms the above fact. This Court need not disbelieve the W.P.(C) No.27381/2015 -:6:- above certificate considering the fact that the petitioner was living along with his father. Ext.P2 certificate would also show that petitioner was living withing jurisdiction of the Village Officer in Malappuram. Those circumstances clearly indicates that the petitioner was living along with his father that would suffice to hold that the petitioner is following the community of the father.

10. This court in Lavya A. Vs. Director of Medical Education, Thiruvananthapuram [2014 i KHC 290] discussed the principles which relating to the caste status of an offspring of the intercaste marriage. “The principles that emerge from the foregoing discussion are the following: i.In the case of an offspring of an inter-caste marriage there is a strong presumption that the offspring takes the caste of the father, but, however, all the same a rebuttable presumption ii.Act 11/1996 casts the burden of proof on the claimant and it is for the claimant to establish his/her claim of being included as a member of the Scheduled Caste/Scheduled Tribe. iii. This burden cast on the claimant has to be harmonized with the presumption, stated above, which has been judicially recognized by binding decisions of the Hon’ble Supreme Court. Hence, if the father belongs to a forward community and the claim is based on the mother’s caste status, then the claimant has to establish that the claimant was brought up by the mother, within the fold of the Scheduled Caste/Scheduled tribe to which the mother belongs and prove that the claimant suffered W.P.(C) No.27381/2015 -:7:- the deprivation,s indignities, humilities and handicaps like any other member of the mother’s community. If the claimant relies on the caste of his father to substantiate his claim of belonging to a Scheduled Caste/Scheduled tribe, then on establishing the cast of his father, the claimant discharges the burden cast on him ajn the presumption takes effect. This presumption, however, is rebuttable by the State or in the present case by the Expert Agency constituted under Art. iv. The Cast Certificate issued by the Competent Authority is not conclusive as per the provisions of Act 11/1996 and is subject to verification by the Screening Committee and the Scrutiny Committee. v. The report of the Expert agency is conclusive proof, for or agains the Scheduled caste or Scheduled Tribe claim, unless the same is found contrary by the Scrutiny committee. vi.Though not conclusive when the competent Authority under the Act has issued a Community Certificate after due process, then to unsettle the claim there should be sufficient cogent material evidence to disprove the claim.” I am of the view that the matter requires reconsideration at the hands of the 2nd respondent taking note of the observations of this Court in Ext.P8 judgment. Though, Ext.P8 judgment was challenged by filing a writ appeal, the Division Bench of this W.P.(C) No.27381/2015 -:8:- Court had not interfered with Ext.P8 judgment. To enable reconsideration of the matter by the 2nd respondent, Exts.P4 and P7 will stand set aside. The 2nd respondent shall reconsider the matter as directed above within a period of six months from the date of receipt of a certified copy of this judgment, after affording to the petitioner an opportunity of hearing. Writ petition is allowed in the manner indicated above. Sd/- GOPINATH P. JUDGE W.P.(C) No.27381/2015 -:9:- APPENDIX OF WP(C) 27381/2015 PETITIONER EXHIBITS EXT.P1. EXT.P2. EXT.P3. EXT.P4. EXT.P5. EXT.P6. EXT.P7. EXT.P8. EXT.P9 EXT.P10 TRUE COPY OF THE CASTE CERTIFICATE ISSUED BY THE TAHSILDAR, TIRUR TALUK. TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, ANAVOOR DATED 25/1/2014. TRUE COPY OF THE CERTIFICATE ISSUED BY THE KERALA AYYANAVAR SERVICE SOCIETY DATED 3/6/2014. TRUE COPY OF THE REPORT DATED 5/5/2014 OF THE 3RD RESPONDENT TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER'S FATHER. TRUE COPY OF THE JUDGMENT DATED 9/4/2015 IN WPC NO.11871/2015 OF THIS HONOURABLE COURT. TRUE COPY OF THE ORDER DATED 22/8/2015 OF THE 1ST RESPONDENT TRUE COPY OF THE JUDGMENT DATED 3/9/2015 IN WPC NO.25993/2015 OF THIS HNOURABLE COURT A TRUE COPY OF GO(MS) NO.28/05/SCSTDD DATED 02.07.2005 A TRUE COPY OF GO(P) NO.50/2009/SCSTDD DATED 02.07.2009