Union of India owning Southern vs The Tamil Nadu State Level

The Union of India owning Southern Railway has come up with this Writ Petition challenging the order passed by the Tamil Nadu State Level

Scrutiny Committee, Adi Dravidar and Development Welfare Department, Chennai, on the ground that string of documents produced to

demonstrate that the second respondent is not a member of Schedule Tribe Community and that he is a member of backward community, as per

the service records of his father and school records of his children, the Committee placing reliance on the certificate of a relative of the second

respondent, declared his Schedule Tribe community status. In short, failure to consider the voluminous documents produced by the Railways,

before the statutory Committee for deciding the community status of the second respondent made the employer to challenge the order declaring his

status as a schedule tribe. The facts:-

The second respondent while joining the service of Railways, produced a Schedule Tribe community certificate dated 7 April 1979 issued by

the Tahsildar, Sri Kalahasthi, Andhra Pradesh. The second respondent produced another community certificate dated 14 December 1982 issued

by the Tahsildar, Arakkonam, indicating that he belongs to Kammara Community, which is a notified schedule tribe. Subsequently, the Railways

found that Sri.R.Duraisamy Achari, father of the petitioner worked as a Kalasi and he claimed that he belongs to Achari community, which is not a

Schedule Tribe Community. The Railways verified the community status of the two children of the second respondent who were then studying at

the Cambridge Matriculation Higher Secondary School. The school authorities informed the Railways that as per the available records, the children

belong to Achari community, which is a backward community. The Railways therefore sent the community certificate produced by the second

respondent for verification, to the District Collector. The initiation of scrutiny proceedings by the District Level Committee was challenged by the

second respondent before the High Court in W.P.No.4126 of 2005 on the ground that two member Committee was not competent to verify the

genuineness of the community certificate of schedule tribes. The High Court by order dated 30 October 2009 directed the Chairperson, District

Level Vigilance Committee to forward the papers to the State Level Scrutiny Committee for verification. The State Level Committee by order

dated 20 March 2015, upheld the claim made by the second respondent that he belongs to schedule tribe. The petitioner approached the State

Level Scrutiny Committee to review its order. The petitioner was informed that the remedy is only to file a Writ Petition. Feeling aggrieved by the

order passed by the State Level Scrutiny Committee, the Railways is before this Court. Rival submissions:-

The learned Senior counsel for the Railways by placing reliance on the documents available on record submitted that father of the petitioner

declared that he belongs to Achari community, which is a backward community. Even the second respondent declared the community status of his

children as Achari. Even though Railways produced several documents indicating that the petitioner does not belong to Schedule Tribe, none of

those materials were considered by the State Level Scrutiny Committee. According to the learned Senior counsel, the State Level Scrutiny

Committee confirmed the community status only on the basis of the educational certificate of Tmt.G.Punitha, who is stated to be the cousin of the

second respondent. The learned Senior counsel contended that the Railways should not be treated as a thirty party to the scrutiny proceedings.

According to the learned Senior counsel, in case the order passed by the State Level Scrutiny Committee dated 20 March 2015 is not subjected

to judicial review, public interest would suffer inasmuch as even the children of the second respondent henceforth would claim Schedule Tribe

status. It was further contended that the Railways has no other interest in the subject matter except to cite the attention of this Court with respect to

the non consideration of materials by the State Level Scrutiny Committee. It is for this Court to satisfy as to whether relevant materials were

considered by the Statutory Committee.

The learned counsel for the second respondent challenged the maintainability of the Writ Petition at the instance of the employer. According to

the learned counsel, the State Level Scrutiny Committee considered all the materials, including the report submitted by the Vigilance Cell.

Therefore, it cannot be said that there are no materials before the State Level Scrutiny Committee to arrive at a decision with regard to the

community status claimed by the second respondent. The learned counsel contended that the father of the second respondent also belongs to

Schedule Tribe and a request was made earlier to verify his community status. The argument advanced on the side of the petitioner that even

today, the children of the second respondent are described as belonging to Achari Community, is countered by the learned counsel on the ground

that the second respondent was not interested to cause trouble to his children and that was the reason for declaring that they do not belong to

Scheduled Tribe. The learned counsel contended that in case Writ Petition of this nature is entertained, it would open floodgates of litigation.

Analysis:-

The second respondent claimed that he belongs to Kammara Community, which is notified as a Schedule Tribe. The second respondent

produced a community status certificate before the Railways to prove his community status. According to the Railways, vigilance wing conducted

verification process with regard to the community status of the officials working in the office of Chief Personnel Officer and at the office of the

Deputy Chief Engineer, Engineering Workshop, Arakkonam. The vigilance wing suspected the genuineness of the community certificate produced

by the second respondent on a comparison of the service certificate issued by the Deputy Chief Engineer Arakkonam, that his father

Thiru.R.Veluchami Achari belongs to Achari community which is a backward community. The Railways, as part of the ongoing verification

proceedings, conducted verification of the school records relating to the two children of the second respondent. The school authorities informed

that the children were described as belonging to Achari community.

The petitioner, with a view to verify the genuineness of the community certificates produced by the second respondent, took up the issue with

the jurisdictional District Collector. The two member committee at the District level finally cancelled the certificate. The second respondent

challenged the order cancelling his community certificate before the High Court in W.P.No.4126 of 2005. Since two member committee at the

District Level was not competent to verify the genuineness of the community certificate issued to the members of schedule tribe, the order was set

aside and the matter was transferred to the State Level Scrutiny Committee. It was only thereafter, the State Level Scrutiny Committee took up the

verification process.

The petitioner produced several documents before the State Level Scrutiny Committee so as to enable the statutory committee to take a

decision on merits.

The order passed by the State Level Scrutiny Committee does not contain any reference about the documents produced by the petitioner.

There was no consideration of the community status of the father of the second respondent as indicated in his service records. Similarly, there was

no consideration about the certificates produced by the petitioner before the school authorities to prove that the children of the petitioner belong to

Achari community. The State Level Scrutiny Committee placed reliance on the school transfer certificate and the secondary school cumulative

record of Tmt.G.Punitha, who is stated to be the cousin of the second respondent to confirm his community status.

The petitioner on receipt of a copy of the order dated 20 March 2015, on the file of Tamil Nadu State Level Scrutiny Committee, requested the

committee to review its decision by considering the documents produced earlier. The State Level Scrutiny Committee declined to entertain the

review petition on the ground that the remedy is only to file a Writ Petition before the High Court under Article 226 of the Constitution of India. It

was only thereafter, the Southern Railway filed this Writ Petition. The issue:-

The core question that arises for consideration is whether the Writ Petition challenging the proceedings of the State Level Scrutiny Committee

confirming the community status of the second respondent is maintainable at the instance of the employer.

The second respondent claimed that he belongs to Kammara Community, which is a notified schedule tribe. The second respondent wanted to

enjoy the benefits of reservation. The service records of Thiru.R.Duraisami, father of the second respondent shows that he belongs to backward

community. The certificates relating to the children of the second respondent also shows that they are from a backward community.

The State Level Scrutiny Committee entrusted with the task of deciding the community status of a person must analyze all the materials

available on record, irrespective of the fact as to whether it was produced by the concerned person, his employer or third parties.

The State Level Scrutiny Committee was constituted pursuant to the direction of the Hon''ble Supreme Court in Kumari Maduri Patil and

another vs. Additional Commissioner, Tribal Development and others, 1994(6) SCC 241. The Supreme Court in Kumari Madhuri Patil found that

father of the appellant has failed to satisfy the crucial affinity test which is relevant and germane one. The Supreme Court further found that the

entires in school and college registers indicating that the appellant belongs to Hindu Koli, disproved his claim and social status as a Schedule tribe.

Even though there are similar features in the subject case, the State Level Committee failed to address the issue and declared the community

status of the second respondent in a very casual manner.

The State Level Scrutiny Committee failed to consider any of the documents produced by the petitioner before confirming the community

status claimed by the second respondent. The status was declared solely on the strength of the school certificates of his cousin Mrs.G.Punitha. In

fact, there was no evidence produced to show the relationship with Mrs.G.Punitha.

The order passed by the State Level Scrutiny Committee, if not subjected to review would become final. In the present case, if the order is not

challenged, the second respondent would change the community status of his children from backward community to Schedule Tribe. This process

would continue and the next generation will also claim the schedule tribe community status. In case, the second respondent is only a backward

class and his claim is false, it would be a fraud on the constitution. The benefits earmarked for the downtrodden communities like Schedule Caste

and Schedule Tribes should reach the genuine candidates of that community.

The appointments secured on the basis of false community certificates would deprive the genuine schedule tribes of the benefits conferred on

them by our constitution. Therefore, in a matter of this nature, the Court should not apply the acid test of maintainability.

The Railways in the subject case acted as an informant, citing the attention of the Court that the State Level Scrutiny Committee abruptly

decided the claim made by the second respondent with regard to his community status without looking into the materials produced to negative the

claim.

The Hon''ble Supreme Court in Kumari Madhuri Patil very clearly held that the order passed by the committee shall be final and conclusive,

subject to the proceeding under Article 226 of the Constitution of India.

The Supreme Court in Dayaram vs. Sudhir Batham and others, 2011(11) Scale 448, indicated the rationale behind the directions issued in

Kumari Madhuri Patil in the following words:- ""12. The directions issued in Madhuri Patil were towards furtherance of the constitutional rights of

scheduled castes/scheduled tribes. As the rights in favour of the scheduled castes and scheduled tribes are a part of legitimate and constitutionally

accepted affirmative action, the directions given by this Court to ensure that only genuine members of the scheduled castes or scheduled tribes

were afforded or extended the benefits

While negativing the contention that the denial of the right to approach the civil court and restricting the remedy to only writ proceedings by the

Supreme Court in Kumari Madhuri Patil would cause severe miscarriage of justice, the Hon''ble Supreme Court in Dayaram (cited supra),

indicated the scope of judicial review in matters relating to community status. The Supreme Court said :-

... It was submitted that not only the decision of the scrutiny committee is given finality on questions of fact, but even the power of judicial

review is sought to be curtailed by the aforesaid observation in Madhuri Patil. It is pointed out that if the scrutiny committee wrongly holds a

genuine caste certificate is to be a false certificate, and the certificate holder is prevented from approaching the civil court, such erroneous findings

of fact by the committee which is a non-judicial body would attain finality, without any remedy to the certificate holder. It was therefore submitted

that denial of the right to approach the civil court and restricting the remedy to only writ proceedings, in the anxiety to provide speedy remedy, has

the potential of causing severe miscarriage of justice.

The assumption that para 15 of Madhuri Patil extracted above curtails the power of judicial review under Article 226 is not correct. It is

inconceivable to even think that this Court, by a judicial order would curtail or regulate the writ jurisdiction of the High Court under Article 226.All

that para 15 of Madhuri Patil does is to draw attention to the settled parameters of judicial review and nothing more. We make it clear that nothing

in para 15 of the decision in Madhuri Patil shall be construed as placing any fetters upon the High Court in dealing with writ petitions relating to

caste certificates.

... Like any other decisions of administrative authorities, the orders of the scrutiny committee are also open to challenge in proceedings under

Article 226 of the Constitution.

The order to be made final and conclusive should be subjected to judicial review. Since the status claimed is one granted by the constitution,

the Courts should be very vigilant. This is not an adversarial litigation. The petitioner only wanted this Court to verify and satisfy as to whether the

Tribunal was correct in its decision making process. When there are prima facie materials produced by the petitioner to show that documents

indicating a different community status were not considered by the State Level Scrutiny Committee, the Court cannot be a silent spectator. The

Courts must discharge its constitutional function. The Writ Petition of this nature is not liable to be dismissed solely on the ground of maintainability.

The Court should exercise its constitutional function notwithstanding the fact that the Writ Petition was at the instance of the employer. The

employer in a case of this nature is like a petitioner in a contempt petition, citing the attention of the Court with regard to the contempt committed

by the opposite party. Thereafter, the issue of contempt would be between the Court and the contemnor. The present Writ Petition filed by

Railways should be considered only in the said line. It is for this Court to consider the materials and arrive at a decision as to whether the State

Level Scrutiny Committee was correct in upholding the community status claim of the second respondent, notwithstanding the contra materials

produced by the Railways.

The documents available on record clearly show that the service records of the father of the second respondent and the certificates issued by

the school authorities, relating to his children were very much available with the Scrutiny Committee. The Scrutiny Committee was expected to

scan those materials to arrive at a finding as to whether the status claimed by the second respondent was genuine. However, no such attempt was

made by the State Level Scrutiny Committee. The matter was decided in a summary manner by accepting the school certificate of the alleged

cousin of the second respondent. It is worth mentioning here that there was no community certificate produced by the second respondent to show

that Mrs.Punitha, his cousin, obtained a community certificate indicating that she belongs to Kammara Community. The self serving statement made

in the transfer certificate on the basis of the declaration given by the candidate was taken as the basic material to decide the community status of

the second respondent. The State Level Scrutiny Committee failed to exercise its statutory function in the light of the guidelines issued by the

Hon''ble Supreme Court in Kumari Madhuri Patil and reiterated in Dayaram. We are therefore of the view that the impugned order is liable to be

set aside.

In the result, the order dated 20 March 2015 is set aside. The matter is remitted to the Tamil Nadu State Level Scrutiny Committee for fresh

consideration. The committee is directed to issue notice to the Railways and the second respondent and consider all the materials, including the

service certificates of Thiru.R.Duraisami and the school records of the children of the second respondent, and arrive at an independent decision

with regard to the community status claimed by the second respondent. Such exercise shall be completed within a period of three months from the

date of receipt of a copy of this order.

In the upshot, we allow the Writ Petition. No costs.