WP/945/1998 of M.KALIMUTHU Vs THE COLLECTOR, on 11 December 2001

: O R D E R

Petitioner seeks to quash the order of the DistrictCollector dated 31.12.1997 cancelling the communitycertificate obtained by him.2. Petitioner had obtained a community certificatefrom the Tahsildar dated 23.8.1973 showing that he belongsto 'Puthirai Vannan' community, which is one of thecommunities coming under the category of Scheduled Castes.On the basis of certain complaints that the petitioner hadobtained the community certificate on misrepresentation,petitioner was called upon the appear for an enquiry and wasserved with a show cause notice dated 10.1.1995 and heappeared before the District Collector on 7.2.1995 anddeposed before him. The District Collector also conducted apersonal enquiry on 22.12.1997. After considering thereport and after considering the materials placed in theenquiry held by him, he found that the petitioner has notproduced any document whatsoever to establish that hebelongs to Puthirai Vannan community and consequently foundthat the petitioner had obtained the certificates dated 24.8.1973, 26.3.1980 and 5.8.1980 by misrepresentation forgetting the concessions given by the Government to ScheduledCaste persons and therefore, cancelled all thosecertificates. The writ petition is against this order.

3. According to the learned counsel for the petitioner, the said order was passed by relying on a secretenquiry and without furnishing a copy of the report to thepetitioner and therefore, the order of the DistrictCollector is liable to be quashed. He further submits thatthe community certificate having been issued in the year1973 and in the 1980's, it is not open to the DistrictCollector to verify the same at this distant point of time,hold an enquiry and obtain a report behind the back of thepetitioner and decide that the community certificate is tobe cancelled. He further submits that the DistrictCollector has no authority or jurisdiction to verify thecommunity certificate after the constitution of the DistrictLevel Committee and therefore, the impugned order is liableto be set aside.

4. Learned Government Advocate, relying on the counter affidavit filed by the respondent, submitted thatthe enquiry was conducted only for obtaining a preliminaryreport as to the genuineness of the community certificateand thereafter, the petitioner was issued with a show causenotice and was given an opportunity to appear for a properenquiry on the community status of the petitioner and onlyafter affording full opportunity and after the petitionerhaving failed to produce any records to substantiate hiscontention that he belongs to Puthirai Vannan commnity, theDistrict Collector has passed the impugned order. Thecontention that the report was obtained behind the back ofthe petitioner cannot be sustained because it is only on thebasis of a report that a preliminary enquiry was conductedand only on being satisfied with the same, the DistrictCollector gave the petitioner an opportunity. In thepreliminary enquiry, if there was nothing against thepetitioner, then no final enquiry would have been conducted.Therefore, it cannot be stated that an enquiry was conductedbehind the back of the petitioner. The said enquiry wasonly for the purpose of satisfying whether an enquiry shouldbe conducted with regard to the genuineness of the communitycertificate. Since the petitioner's parents were admittedlybelonging to Dhobi profession and even in the S.S.L.C., thepetitioner was shown as Vannan and in the absence of anyother document to substantiate the claim of the petitioner,I am of the view that the order of the District Collector isvalid.

5. I have heard the counsel for the petitioner andthe learned Government Advocate and considered the mattercarefully.

6. It has been laid down by a series of decisions by the Supreme Court that the burden of proving thecommunity status of the person is on the person who claimssuch a status.7. It is seen that the question that a personbelongs to a partciular caste or community or religon isbasically a factual determination. The burden ofestablishing a social status is always on the personclaiming such a status. The Supreme Court, in DIRECTOR OFTRIBUNAL WELFARE, GOVT. OF ANDHRA PRADESH VS. LAVETI GIRI(A.I.R. 1995 S.C. 1506), in clear terms, held as follows :"The High Court wrongly caused theburden of proof on the Department when itsquarely rested upon the candidate to prove hiscaste/tribe according to the procedureprescribed under the rules. It is the duty ofthe certificate issuing authority to satisfyhimself after due verification whether thecandidates belong to Scheduled Caste orScheduled Tribe, satisfies the criteriaprescribed by the Government. Though thefather managed to gain falsely social status asTribe and wrongfully and unconstitutionally isin enjoyment of the benefit of employment as atribe, it is not conclusive. It is notuncommon to corner such benefits because ofconnivance of officers and it is a known factthat the tribe of such officers has grown overyears because the social crimes committed bythem is either ignored by the superiors oftheir class or because they have a protectiveumbrella from their higher ups."

"In order to establish whether aparticular candidate belong to any of theScheduled Tribe/group diverse ethnic orcultural identities were mentioned. InAnnexure I of the G.O. the candidates arerequired to furnish the particulars prescribedtherein. The competent officer was to verifyand satisfy himself of the true social statusof the candidate before issuing the socialstatus certificate."

"We agree with the learned counsel forthe appellant that the High Court adopted atraditional approach of placing burden of proofof social status founded on the entries inGovernment record etc. and called upon theState to rebut it on the touch-stone ofEvidence Act. We are unable to appreciate theview taken by the Division Bench. Burden ofproof of social status is always on the person

who propounds it to seek constitutionalsocio-economic advantages. It is no part ofthe duty of the State to disprove or otherwise.The criteria to obtain caste certificate fromNativit Tahsildar/Mandar RevenueOfficer/Revenue Divisional Officer is relevantfor the reason that Scheduled Tribes generallylive in forest areas, mountainous regions andspecified pockets and will be known to localofficers or easily accessible forverification." (emphasis added)Each social status claim has to be independently considered.Simply because the father had been issued with certificates,it does not automatically entail his other relatives to getthe certificates. As has been noticed by the Backward ClassCommission and the Supreme Court, there are large scale fakeclaims and many go unnoticed without verification. Time hascome to evolve a better system even at the initial stage ofissue of certificates with the assistance of a team ofofficials, followed by verification. It is high time thatthe Government of Tamil Nadu has the matter examined andbring about a legislation with necessary guidelines andrules for identification, examination, verification and theconsequence of bogus claims. In the words of theirlordships in the case referred to above,"so that the menace of fabricating thefalse records and to gain unconstitutionaladvantages by plain/spurious persons could beprevented. Lest they would defeat theConstitutional objective of renderingsocio-economic justice envisaged under Article46 in the Preamble of the Constitution underArticles 14, 15, 16, 38 and 39."Normally, the High Court will not interfere with the ordersunder Article 226 on factual findngs as an appellateauthorty. The Government Order provides for an appeal tothe State Level Committee. Hence, the petitioners are to begiiven liberty to move the appellate authority.8. Therefore, simply because a certificate isissued by the Tahsildar, it does not mean that he isentitled to rely upon it as a conclusive proof of hiscommunity. It is open to the authorities who have issuedthe certificate, especially the higher authorities of theperson who has issued the certificate as Head of theDepartment of Revenue, to verify the genuineness of thecertificate. In this case, it is seen that though thepetitioner was granted a community certificate showing himas Puthirai Vannan, which is one of the Scheduled Castecommunities, only on the basis of a complaint given by thepetitioner's own uncle, an enquiry has been called for. Apreliminary report was obtained from the Revenue Divisional

Officer as to the genuineness of the petitioner's communityand after being satisfied that a full enquiry has to beconducted on the community status of the petitioner, a showcause notice was issued to the petitioner dated 10.1.1995.On the basis of the show cause notice, the petitioner hadappeared before the District Collector and gave a statement.In that statement, he has stated that he is living with hisfather and mother along with his sister. He further saysthat since his parents were uneducated and illiterates, inthe S.S.L.C. of the petitioner, they have given hiscommunity as Vannan which is their family profession('Kulathozhil'). Thereafter, there was another personalenquiry before the District Collector on 22.12.1997. It isnot in dispute that on that date, the petitioner had notproduced any document to substantiate his claim that hebelongs to Puthirai Vannan, excepting his statement thatsome of his other relatives have been given communitycertificates as Puthirai Vannan. No such document is markedin the impugned order.

9. In the absence of any materials or records or evidence to show that the petitioner belongs to PuthiraiVannan community and in the light of the admitted fact thatthe petitioner was described as Vannan in his S.S.L.C. andhis own statement before the District Collector on 7.2.1995that his parents are doing the family profession of dhobi,it is clear that the petitioner's family belongs only to thewashermen community which is known as Vannan. There is alot of difference between the washermen community, i.e.Vannan and Puthirai Vannan community. Puthirai Vannan is aa Scheduled Caste community, which will imply that theysuffer a disability equal to that of untouchables. Whereas,the washermen community people, i.e. Vannans do not sufferany such disability. Therefore, when the petitioner'sparents were having dhobi business as their familyprofession, it is unexplained as to how the petitioner hadcharacterised himself as Puthirai Vannan. Petitioner is notin a position to explain the difference between Vannan andPuthirai Vannan community. He is under the impression thatPuthirai Vannan is a sub-sect of Vannan community. But,that cannot be the case, because both are entirely differentclass of communities in themselves.

10. The Report of the Backward Classes Commission,Tamil Nadu of the year 1970, on the status of Vannan(Washermen) is revealing. The claim of the petitioner thathe belongs to Scheduled Caste community, in this context,can be looked into in the light of the said report. Anextract of their study of Vannan (Washermen) is as follows :"Vannan (Washermen) :

(Item No.144 in the list of BackwardClases of the Tamil Nadu Public ServiceCommission.)

(Item No.150 [Vannan (Agasa, Madivala,Ekali, Rajakula, Veluthadan, Rajaka] in thelist of Backward Classes, Notification issuedby the Department of Backward Classes and ItemNo.56 in the list of Backward Classes of theDepartment of Backward Classes.)This is one of the communities fromwhich massive representation was received bythe Commission. Almost at every place wevisited whether district headquarters or aninterior village there was always a deputationfrom this community. In addition to numerousreplies to the questionnaire, some of whichwere printed oral evidences were also tenderedby many. Among written representationsmention should be made of the following :-(1) The Secretary, Tamil Nadu SalavaiThozhilalar Sangam, Madurai District.(2) Desiya Thozhilalar Sangam, WashermenFederation of Arkonam.(3) Coimbatore District SalavaiThozhilalar Sangam.(4) Salem Washermen's Federation andConjeevaram Town Washermen's Association.Their is not a single village without one ortwo families of wahshermen and every small townwill have about 50 to 100 houses, andpopulation in the cities can be reckoned inthousands. There are statewide sangams as wellas local sangams, to look after the interest ofthese people and there is a fortnightlyjournal, 'Salavai Sangam' brought out toeducate and unite the washermen. Excellentoral evidences were tendered by theirrepresentatives at Madras, Conjeevaram,Madurai, Vellore and Coimbatore.During our district tours we alsovisited certain areas of their chiefconcentration of which particular mentionshould be made of Vaigai bank in Madurai townand Mayaru in Mettupalayam town. In Maduraimore than 1,000 families live in a cluster ofhuts on the river side where the sanitaryconditions are very poor. During heavy rains,they complained that the whole area would beinundated. Construction of housing coloniesfor washermen in such places must receiveattention without delay.There are various branches or sub-castesamong them and it cannot be said that there iscomplete intermixing. But, to whatever sub-caste they belong, their main occupation iswashing clothes. The sub-division amongst themis sometimes based on the castes to whom theyare supposed to serve or not to serve. Therepresentation received at Madurai givessub-caste as Irunguga , PandiTelungar , Muhamadiar .

This of course does not include the washermenwho serve habitually the Harijan class.Another representation gives the sub-divisionas Maruthanattu VannanJetty Vannan , Pandya Vannan, Panikka Vannanand Puthirai Vannan

Some of the representations put theirpopulation as anything between 10 to 12 lakhs.According to the 1921 Census, it was 2,49,502and projected, the present population can beestimated as 4,61,239. In the rural areas theywere always treated as a community servingcaste, obliged to serve all the people in thevillage. Very often wages even now are paid inkind once or twice a year, according to a ratefixed perhaps generations ago. The maingrievance of the Dhobis in rural areas is thatthese traditional wages are low and that theyare compelled to perform certain duties whichare considered to be very mean. It wasrepresented that even to-day the Dhobies aresubjected to social discrmination. They areexpected to wash polluted and disease infectedclothes and have to perform several ritualduties of a socially degrading nature. Anothergrievance which was repeatedly emphasised inmany places was that poramboke and villagesites by the side of rivers and tanks whichthey used to occupy for washing and dryingclothes are being encroached upon by others.This is a matter to be enquired into, andaction taken to restore such sites back tothem. They like to be emancipated from thesedisabilities imposed on them by feudal society.On the economic side many of them complain thatthey have no house to live and there are nofacilities to carry on their avocations. Inview of the scattered population there is verylittle capacity in them for uniting againstsocial oppression and for demanding betterwages.

Even in Madras City and towns indistricts, their living conditions and earning capacity have not improved appreciably. Onegreat help provided by the Government in recentyears for them is the construction of DhobiKhanas with assured supply of water and builtin facilities. But the number of such DhobiKhanas is totally inadequate and there is scopefor opening up a number of them in variousplaces -- in fact in every manjor Panchayat andTownship. Educationing, they complain thatthey are very backward. It is stated that onlyless than one per cent of them would havestudied upto S.S.L.C. and their childrenpursuing higher education is rare on account ofpoor economic conditions and social inhibition.Their request everywhere has been thatthey should be regarded as Scheduled Castes.The Commission made a reference to other Statesand the replies received show that in Assam,Uttar Pradesh, Bihar, West Bengal, Orissa andKerala they are treated as Scheduled Castes. Inother States they are treated as a BackwardClass only. It does not look as if there is avery good case for going to the CentralGovernment now for including this caste in theSchedule. However, they are in the list ofMost Backward Classes and deserve to be givenconcessions and facilities on a par with theScheduled Castes.The main requests made on their behalfare summarised below :(1) Loan facilities from theNationalised Banks on liberal terms to enablethem to start laundries,(2) Dhobi Khanas with facilities forwater supply drying grounds, etc. should beprovided for their benefit by all Panchayatsand Municipalities,(3) Assignment of house sites andfacilities for building houses both in ruralareas and in towns,(4) Right to collect the special earthused by washermen in rural areas withoutobstruction and hindrance by the localauthorities, and(5) Application of the Removal orUntouchability Offences Act of 1955 towashermen community also to prevent them fromsocial oppressions.It is gratifying to note that theGovernment is contemplating to start a diplomacourse in Laundry Technology and the commission fully endorses the idea."

fully endorses the idea."

11. In order to support the claim of the petitionerthat he belongs to Puthirai Vannan, no documentary, oral orany other material evidence had been placed and therefore,it is clear that the petitioner had obtained a communitycertificate by misrepresenting that he belongs to PuthiraiVannan community. In the light of the Backward ClassesCommission's Report, petitioner cannot be treated as belongto Puthirai Vannan community, which is one of the enlistedScheduled Caste communities as per the Constitution(Scheduled Castes) Order of 1950.

12. The contention of the petitioner that enquiryshould be conducted only by the District Level Committee andnot by the District Collector also cannot be accepted. TheDistrict Level Committee is also one among the authoritiesconstituted for the purpose of verifying the communitycertificate as per the judgment of the Supreme Court inMADHURI PATIL VS. ADDITIONAL COMMISSIONER, TRIBALDEVELOPMENT (A.I.R. 1995 S.C. 94). The said committee isintended to go into such a community certificate issued bythe authorities. At the same time, the District Collectoris not deprived of his authority of control over hissubordinates to verify whether a certificate was obtained bymisrepresentation. As the Head of the Revenue Department,he is also entitled to look into the veracity of thecertificate issued by his subordinate, namely the Tahsildar.13. In SAKTHI DEVI VERSUS COLLECTOR OF SALEM (1984W.L.R. 535) it was held that a community certificate issuedshall be valid till it is cancelled. The Division Bench hasheld in that judgment that it is open to the employer ordepartment to ask the issuing authority or DistrictCollector as the case may be to verify whether thecertificate as issued could still valid on materials whichhave since come before the knowledge that appear to theverification enquiry and place the material. In causingverification, the Collector is bound to follow the procedureas laid down. In the same judgment their Lordships,referring to the General Clauses Act, held that a power tomake an order includes the power to rescind it. Hence itempowers the authority who has brought into existence alawful and valid certificate or his higher authority tocancel the caste certificate. It was further held theGovernment of Tamil Nadu in their letter dated 7.7.1983 hadstated that the Collector can cancel the communitycertificate issued by a subordinate officer when it is fondto be false. As what he has to do under the circumstancesbodies/institutions etc., will have to look into theCollector regarding the genuineness or otherwise of thecertificate. The procedure followed by him having beenspecifically stated and the consequences which would fallnot only on the acknowledgment but also on the issuing authority if the caste certificate is proved to be false,there is absolutely no scope to accept the contention thatempowered authority would act in an irresponsible manner.

14. It is clear that though the petitioner'sparents belong to Vannan community, i.e. washermencommunity, petitioner had obtained a community describinghimself as belonging to Puthirai Vannan community for thepurpose of getting the benefits of reservation intended forScheduled Caste persons and on that basis, he has alsoentered in service. The power to scrutinise the communitycertificates is different from the power to cancel thecommunity certificate obtained by wrong representation. Thehead of the department is empowered to cancel thecertificate issued on wrong premises or by misuse of thepower to issue the community certificate. The Brochure on'Reservation for Scheduled Castes and Scheduled Tribes inServices' has found that taking advantage of the slightvariations in the descriptions of caste names likeKuruman-Kurumbar, Cholagar-Cholaga, Konda Reddy-Reddy,Kattunayakkan-Nayakkar, etc., it is not uncommon thatcommunity certificates are obtained so as to claim thereservation and other educational benefits. In the light ofthe continuous abuse of these benefits, the Supreme Court,in Madhurai Patil's case, referred to above, directed thescrutiny of all the community certificates. The saidprocess is undertaken by the District Level and State LevelCommittees. De hors this regular verification, in specificcases where it is brought to the notice of the authoritiesthat a particular certificate has been obtained by wrongrepresentation, it is always open to the authorities tocancel the certificate after giving notice and holdingenquiry. It is pointed out in Director of Tribunal WelfareVs. Laveti Giri, referred to above, that it is not uncommonto corner benefits of Scheduled Caste community certificatesbecause of the connivance of officers and it is a known factthat the tribe of such offiers has grown over years becausethe social crimes committed by them are either ignored bythe superiors of their class or because they have aprotective umbrella from their higher ups. The SupremeCourt refused to accept the traditional approach of placingthe burden of proof of social status and directed that it ison the person who propounds to seek constitutional,socio-economic advantages. It is no part of the duty of theState to disprove or otherwise. In order to dealing withthe menace of fabricating false records and to gainunconstitutional advantages by plain/spurious persons and todefeat the constitutional objectives of renderingsocio-economic justice, it is imperative that the hypertechnical approach of procedures and formalitities have tobe dispensed with. The person who gains an advantage on the basis of community certificate must be ever ready to establish his claim. Neither the petitioner nor his counselhave established the difference between Puthirai Vannan andVannan communities and that there is a marked differencebetween these two communities. One is a Scheduled Castecommunity and the other one is not. The petitioner hasmiserably failed to establish his status inspite of sufficient opportunity.15. For all the above reasons, I do not find anyground warranting intereference with the order passed by theDistrict Collector. The writ petition therefore fails andit is accordingly dismissed. No costs. Consequently, W.M.P. No.1376 of 1998 is closed.

11.12.2001ab

P. SHANMUGAM, J.

W.P. No.945 of 1998