M. Sanjeeva Moorthy vs The Revenue Divisional Officer ... on 3 September, 1997.Equivalent citations: (1998) 2 MLJ 46
Citedby 1 docs
ORDER
Sathasivam, J.
1. The petitioner has approached this Court to issue a writ of certiorarified mandamus calling for the records relating to the first respondent in his proceeding Na.Ka.No. 9755/93/A3, dated 28.1.1994 quash the same and consequently direct the third respondent to regularise the service of the petitioner with effect from 3.1.1994 with all monetary benefits.
2. The case of the petitioner is briefly stated hereunder. According to the petitioner, his ancestors, his father were permanently residing at Echanahalli village from time immemorial and by birth belonged to 'Kurichchan' community which is a Schedule Tribe class under the Tamilnadu Educational Rules and as per the Gazette Notification published by the Government of Tamilnadu. In the year 1985, he completed Higher Secondary Course. Thereafter, he made an application on 12.6.1985 for issuance of transfer certificate. In the transfer certificate issued in favour of the petitioner serial No. 224/85-86, dated 12.6.1985, in column No. 4 it was stated 'Indian, Hindu, Kurichchan' community. It is further contended that subsequently on 17.6.1985, he registered his name at the Employment Exchange to obtain suitable job. In the year 1988, he obtained conductor licence as per Motor Vehicles Act, 1988. Thereafter, again he registered at the Employment Exchange in the year 1988 and renewed it in the year 1991. In pursuance of the said registration, third respondent sent a communication for the interview to be held on 20.7.1993. In the said communication, he was asked to produce original community certificate and the educational qualification certificate. It is further contended that after interview by the third respondent, he was selected temporarily for the post of conductor and as per the proceedings dated 27.12.1993, he was asked to undergo training from 3.1.1994. On seeing the community certificate dated 20.6.1980, the third respondent refused to accept the same and insisted the petitioner to produce a fresh community certificate issued by Revenue Divisional Officer concerned since he is the . only competent authority for issuing Schedule Tribe community certificate.
3. At this juncture, he filed a Writ Petition No. 1959 of 1994 before this Court and as per the direction in the interim application, this Court has permitted the petitioner to undergo training. In spite of the direction by this Court, according to the petitioner the third respondent did not permit him to join duty stating that the Corporation had cancelled the very selection order on 7.2.1994 itself. In the meanwhile, the petitioner received the impugned order dated 28.1.1994 from the first respondent, the order of the first respondent is an arbitrary order and the same has been passed without affording any opportunity to the petitioner, more particularly at the time of conducting discreet enquiry and at the time of obtaining statements form the elderly persons/senior citizens in the village concerned. In such circumstances, the petitioner has approached this Court by way of the present writ petition as stated above.
3-A. All the three respondents were duly served notice from this Court even on 24.1.1996. However, they have not chosen to file counter-affidavit disputing the averments made by the petitioner.
4. The learned Counsel for the petitioner submitted that inasmuch as the competent authority namely the Tahsildar has issued a certificate dated 20.6.1980 holding that the petitioner belongs to 'Kurichchan' community, which is a schedule tribe class under the Tamil Nadu Educational Rule, the impugned order passed by the Revenue Divisional Officer cannot be sustained. He further submitted that the said certificate issued by the Tahsildar is prior to the G.O.Ms.No. 2137, dated 11.11.1989 and in view of the two clarifications sent by the Government, there is no need to pass the impugned order by the first respondent. In any event, he contended that the first respondent has not given adequate opportunity to the petitioner before passing the impugned order. In support of the above contentions, the learned Counsel has very much relied on decision of this Court reported in Suresh Babu v. The State of Tamil Nadu (1996) 1 M.L.J. 538. On the other hand, the learned Government Advocate appearing for respondents 1 and 2 submitted that even on the basis of two Governments letters, it is open to the first respondent to verify and ascertain the genuineness of the certificate issued by the Tahsildar on 20.6.1980. In other words, according to him, in spite of Government Order G.O.Ms.No. 2137, AD&TW Dept., dated 11.11.1989, it is open to the first respondent to enquire into the genuineness of the certificate issued by the Tahisildar. He also submitted that the impugned order clearly shows that petitioner was given adequate opportunity to put forth his case and prayed for dismissal of the writ petition.
5. I have carefully considered the rival submissions.
6. In order to appreciate the contention of the petitioner, it is better to refer to the impugned order of the first respondent dated 21.8.1994 and the same is reads as follows:
7. There is no dispute that the Deputy Tahsildar, Dharmapuri on 20.6.1980 has issued a Community Certificate in favour of the petitioner holding that he belongs to 'Kurichchan' community, which is a Schedule Tribe class order the Tamil Nadu Educational Rules. Certainly, the said certificate was issued prior to G.O.Ms.No. 2137, dated 11.11.1989. Apart from the said certificate, the petitioner has also possessed transfer certificate wherein it is mentioned in column No. 4, Indian, Hindu, Kurichchan Community, which is a Schedule Tribe class.
8. Only in and by the G.O.Ms.No. 2137, Adidravidar and Tribal Welfare Department, dated 11.11.1989, the Government of Tamilnadu after getting the concurrence of the Government of India has authorised Revenue Divisional Officers to issue community certificate in respect of all communities included in the list of Schedule Tribe in order to avoid misuse of concessions by obtaining false certificate. Since number of persons have obtained community certificates from the Tahsildar concerned prior to 11.11.1989, the Government have issued two letter dated 9.4.1991 and 16.1.1991 clarifying that the community certificates issued to the Schedule Tribes by Tahsildars up to 11.11.1989 are valid. No doubt the learned Government Advocate relying on the very same letters submitted that in order to confirm the genuineness of the certificates issued by the Tahsildar, it is open to the Revenue Divisional Officer to conduct an enquiry and issue appropriate certificate.
9. With reference to the two letters referred above as well as the Government Order No. 2137, AD&TW Department, dated 11.11.1989, the learned Counsel for the petitioner brought to my notice the judgment of Shivaraj Patil, J., reported in Suresh Bdbu v. State of Tamil Nadu (1996) 1 M.L.J. 538.
10. The learned Judge has considered the issue in detail by referring the Government Order, subsequent letters as well as the Division Bench decision of this Court regarding the certificate issued by the Tahsildars prior to 11.11.1989. Since the said decision answers the issue involved in the present writ petition, I propose to refer some of the conclusions arrived by the learned Judge in that decision, thus:
11. In my view, having regard to the very Government order G.O.Ms.No. 2137, Adi Dravidar and Tribal Welfare Department, dated 11.11.1989, it is clear that the power to issue community certificates is vested in Revenue Divisional officers in regard to the certificates to be issued after 11.11.1989 as can be seen from paragraph 4 or the said order extracted below. "The Government direct that the community certificates in respect of all communities included in the list of Scheduled Tribes for the purpose of appointments in public services under Central and State Governments, public sector undertakings, quasi-Government Institutions, Boards etc., shall hereafter, be issued only by the Revenue Divisional Officers.
12. Further the two letters issued by Secretary to Government to Tamilnadu dated 3.4.1991 and 16.9.1991 referred to above confirm that the community certificate issued to Schedule Tribes by Tahsildars upto 11.11.1989 are valid. In the letter dated 3.4.1991 it is stated thus:
I am directed to refer to your letter cited and to confirm your presumption that the permanent community certificate issued to Scheduled Tribe by Tahsildars upto 11.11.1989 is valid.
13. It is useful to extract paragraphs 2 and 3 of the letter dated 16.9.1991 of the Secretary to Government, Adi Dravidar and Tribal Welfare Department, Government of Tamil Nadu addressed to all Collectors, which read:
2. The Government have examined the request in detail in consultation with Special Commissioner and Commissioner of Revenue Administration and confirmed that the community certificate issued to the Scheduled Tribe Community by Tahsildars prior to 11.11.1989 will be valid. I am to enclose a copy of G.O.Ms.No. 2137, Adi-Dravidar and Tribal Welfare Department, dated 11.11.1989 for guidance.
3. I am to request you to validate the community certificates issued to Scheduled Tribe Communities by Tahsildars prior to 11.11.1989. In doubtful cases, I am to request that they may be issued as per Government Orders in force.
14. In the right of the G.O.Ms.No. 2137, dated 11.11.1989 and the letters of the Secretaries to Government dated 3.4.1991 and 16.9.1991, it would not be correct and proper to insist the candidates to obtain or produce fresh community certificates from Revenue Divisional Officers every time seeking either admission or appointment in institutions or services as the case may be, so long as the community certificate issued by Tahsildar, the competent authority prior to 11.11.1989 is in force, and in other words it is not cancelled. In spite of the fact that a valid community certificate issued by the Tahsildar prior to 11.11.1989. is in force, insisting for production of a fresh community certificate after 11.11.1989 would certainly run contrary to the G.O.Ms.No. 2137, dated 11.11.1989 itself.
15. Even the letters dated 3.4.1991 and 16.9.1991 also support the view that fresh community certificates need not be insisted in such situation, where community certificated issued by the Tahsildars prior to 11.11.1989 are operative. Insistence for fresh certificates from Revenue Divisional officers in such cases would lead to hardship, inconvenience and even waste of public time, besides there are instances where the candidates have lost the opportunities of joining educational institutions for studies, or losing opportunities in public services for want of production of fresh community certificate issued by Revenue Divisional Officers in time.
16. My Learned brother Raju, J., in the case of Dr. G. Elango v. Madras Port Trust and Anr. 1991 Writ L.R. 856, has held that the certificate issued by the Tahsildar who was the competent authority at the relevant point of time was sufficient enough and the authorities could not insist for production of a community certificate from a different authority contrary to law and in excess of the jurisdiction.
17. The Division Bench of this Court in the case of S.P. Sakthi Devi v. The Collector of Salem and Ors. 98 L.W. 105, dealing with the validity of the caste certificate issued by an empowered public authority, in paragraph 10 of the said order, has held that,
1. A caste/community certificate issued by an empowered public authority under seal continues to be a valid document till it is cancelled by the said authority or by his superior authority.
2. Their contents are to be treated as correct and every public authority, undertakings, bodies, institution, etc., which are bound by instructions relating to such certificates, are bound to act upon them, so long as they are not cancelled.
3. In no disciplinary proceedings, their genuineness or correctness of their contents can be gone into. It is open to the department or employer or organisation, to ask the issuing authority or District Collector as the case may be, to verify whether the certificate as issued could be still valid, on materials which have since come to their knowledge. They can appear in the verification enquiry and place the materials.
4. If the certificate is cancelled, then disciplinary proceedings can be initiated for having furnished false information.
5. Appointing authorities have the right to verify the genuineness of the certificate by approaching the District Magistrate-Collector of the District or such other constituted authority and once the" report is received that the certificate is genuine, thereafter the certificate holder cannot be further harassed to prove his caste/community in any other manner.
6. In causing verification, the collector is bound to follow the procedure laid down in letter dated 7th July, 1983 of Government of Tamilnadu.
7. In view of what is stated in chapter 14 of brochure on Reservation for Scheduled Castes and Scheduled Tribe in services, 6th Edition (1982), the instruction issued by the Central Government from time to time relating to Scheduled Castes and Scheduled Tribes, pertaining to issue of caste certificate are binding upon public sector undertaking, statutory and semi-Government bodies and voluntary agencies receiving grant-in-aid from the Central Government as provided therein.
18. I also had an occasion to refer and deal with the said G.O.Ms.No. 2137, dated 11.11.1989 in Writ Petition No. 11803 of 1995 disposed of on 4.1.1996. I have taken the view in the said writ petition that G.O.Ms.No. 2137, dated 11.11.1989 is prospective in its operation looking to paragraph 4 of the said Government order.
19. In the light of what is stated above, I have no hesitation to hold and conclude that the community certificates issued to candidates by Tahsildar prior to 11.11.1989 are good enough for all the concerned authorities to take them into consideration, be it a case of admission in educational institution or appointment in a public service, so long as such certificates are in force and they are not cancelled, subject to the guideline given in paragraph 10 of the Division bench Judgment in the case of S.P. Sakthi Devi v. The Collector of Salem 98 L.W. 105, aforementioned. It is open to the competent authorities to enquire into and cancel community certificates issued to candidates if the community certificates obtained were not genuine or valid or cease to be valid due to change of circumstances such as conversion etc.
20. In view of what is stated above, I am in entire agreement with the contention raised by the learned Counsel for the petitioner. Likewise, with regard to the objection raised by the learned Government Advocate, the same has been explained in the above referred decision, hence, I am not repeating the same once again.
21. In the result, for the reasons stated, I pass the following order. The impugned order of the first respondent dated 28.1.1994 is quashed. As far as for the purpose of seeking employment I hold the certificate issued by Tahsildar, Dharmapuri, dated 20.6.1980 is valid. It is made clear that if still the competent authority has any doubt with regard to the genuineness of the certificate issued by the Tahsildar, Dharmapuri, dated 20.6.1980, it is open to them to verify in the light of the Division Bench decision of this Court in S.P. Sakthi Devi v. The Collector of Salem 98 L.W. 105. With these observations, the writ petition relating to the order of the first respondent dated 28.1.1994 is allowed. No costs.
22. Regarding the direction sought for against third respondent, in view of what is stated above as and when any vacancy arises and the petitioner makes an application and if he is otherwise suitable, he may be considered in accordance with law.
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