Director
of Tribal Welfare, Government of Andhra Pradesh Vs. Laveti Giri & Anr
[1995] INSC 223 (18
April 1995)
Ramaswamy,
K. Ramaswamy, K. Venkatachala N. (J) K. Ramaswamy, J.:
CITATION:
1995 AIR 1506 1995 SCC (4) 32 JT 1995 (3) 684 1995 SCALE (2)815
ACT:
HEAD NOTE:
1.Leave
granted.
2.This
appeal by special leave arises from the judgment and order of the High Court of
Andhra Pradesh dated January
16, 1984 made in Writ
Appeal No. 1040 of 1983. This is a second case after Madhuri's case in which
this Court noticed fraud upon the Constitution played by the plainman to wear
the mask of false social status to comer the Constitutional benefits of
reservation of admission into professional course under Art. 15(4), an integral
scheme of socio- economic justice conferred on the disadvantage Scheduled
Tribes. The Government of Andhra Pradesh stated in G.O.Ms. Nos. 245 dated June
30, 1977 and reiterated in G.O. No.289 dated November 28, 1986 of the Social
Welfare Department of the Andhra Pradesh Government, that it is notorious to
secure false caste/community certificates that "a very numerous
applications are received from spurious candidates claiming and projecting
privileges exclusively provided to Scheduled Tribes candidates with the help of
false certificates relying in not only dilution but also denial of benefits to
Scheduled Tribes candidates." It would be thus an undeniable fact that to
secure false social status as a Scheduled Tribes or Scheduled Castes, the plainman
play fraud on the Constitution to secure admission in the professional courses
or appointment to a post or office under the State or its instrumentalities.
The Division Bench put a premium on fraud on the Constitution by its
traditional treatment to the burning malady.
3. The
respondent is son of one L. Hanumantha Rao, a Government servant in Engineering
Department of State Gov- ernment. The admitted facts are that their nativity
though initially was Amadalavalas in Srikamulam Dist. settled down in Satyavedu
in Eluru Taluk of West Godavari District. By appointment and transfer the
respondent's father, while working in Hyderabad was stating in Malakpot within the jurisdiction of the Tehsildar Musheerabad,
Hyderabad District. For admission into Engineering course, he ob- tained caste
certificate from Tehsildar Vallabhnagar, Ranga Reddy Dist. that he belongs to Kondakapu
community a noti- fied Scheduled Tribe. While provisionally admitting the
respondent into first year course of B.E., the Principal, Osmania University, Engineering College referred the matter to the Director, Tribal Welfare for
confirmation of the social status of the respondent. On receipt thereof the
latter issued notice to the respondent to appear before him with all necessary
certificates along with an adult male member who would answer the questions.
Though the appellant had appeared with photostat copies of the certificates
before the Director on July
21,1983, the adult
member, in other words, is father L. Hanumantha Rao had not appeared.
In
spite of giving time for his appearance, the Director having found that the
respondent's father did not appear, considered the certificates produced by the
respondent and concluded that since Tehsildar Vallabhnagar was not competent to
issue the social status certificate, it was found to be without jurisdiction.
In the school certificate of the father of the respondent, it was recorded that
he was "Kapu" which would mean that respondent and his father do not
belong to Kondakapu community, Scheduled Tribe. Calling in question of the
order of the Director dated August 20, 1993,
the respon- 691 dent filed Writ Petition No. 7134/83. The learned Single Judge
by his order dated October
22, 1983 dismissed the
Writ Petition. On appeal the Division Bench reversed the order of the Single
Judge primarily on three grounds, firstly, that the admission brochure of the Osmania University indicates that a Tehsildar is competent to issue the
certificate. Since Tehsildar Vallabhnagar is a competent officer and the
certificate issued by him was valid in law.
It was
also held that the father of the respondent was in service of State Government
and his service records and the educational certificates established him to be
a Scheduled Tribe. Therefore, the respondent is entitled to enter the status as
Scheduled Tribe The Director rejected the claim of the respondent on
assumptions and surmises.
4.It
is contended by Sri Prabhakar, learned counsel for the appellants that the High
Court was not right in relying on the documents produced by the respondent
without any proof The father did not appear to explain the circumstances under
which he had the status of Scheduled Tribe. The certificate from Tehsildar of
the nativity criteria is discernible from the brochure of the University.
University is required to call upon the candidate to produce the required
social status certificate, when a candidate's claim is founded upon such a
social status. Relevant rules or orders issued by the Government in Social
Welfare Department prescribed the procedure in that behalf The High Court in
its traditional would wrongly caused the burden of proof on the Department when
it squarely rests upon the candidate to prove his caste/tribe according to the
procedure prescribed under the rules, It is the duty of the certificate issuing
authority to satisfy himself after due verification whether the candidates
belong to Scheduled Caste or Scheduled Tribe, satisfies the criteria prescribed
by the Government. Though the father managed to gain falsely social status as
Tribe and wrongfully and unconstitutionally is in enjoyment of the benefit of
employment as a tribe, it is not conclusive. It is not uncommon to comer such
benefits with connivance of officers and it is known facts that a strong
bureaucrat lobby successfully prevent either proof of falsity or its
suppression. The learned Single Judge has rightly taken the relevant factors
into consideration to dismiss the Writ petition. We find force in the
contention. Shri Y. Prabhakar Rao, the learned counsel for the respondent
vehemently contended that the view of the Division Bench of the High Court is
quite legal and justifiable on the facts.
The
candidate does not know from which officer he has to obtain the social status
certificate. The brochure indicates that the certificate from a Tehslidar is
sufficient. It does not show that the Tehsildar of the nativity was required to
issue the certificate. The father of the respondent having already in enjoyment
of the status as Kondakapu in Government Service, it is a great material
conclusive fact to decide the issue. The Director, therefore, was not correct
in rejecting the social status.
The
Single Judge had committed error in relying upon the report of the Director.
Having given our anxious consideration, we are of the view that the Division
Bench has put premium on fraud played by the respondent and his father to
secure false social status as Kondakapu while they are Kapus by caste, a
forward caste in Andhra Pradesh,
5. The
Presidential notification clearly mentions that Konda Kapus and Konda 692 Reddies
are Scheduled Tribes in Andhra Pradesh. Kapus and Reddies are plain People who
arc forward caste from the main stream of the society and are of upper social
strata. The endemic characteristic of Scheduled Tribes and plain people are
distinct, different and never in common. Konda Kapu and Konda Reddies live in
tribal areas of forest, mountainous tracks and shifting cultivation and
gathering minor forest produced are their main avocation. The Totamics clearly
differentiate and demarcates them from the plain people of Kapus and Reddies.
Their customs, marriages are different.
The
Government in G.O.Ms. No. 147 dated April 27, 1977 of Social Welfare Department
clearly mentioned that the Tehsildar or Revenue Divisional Officer or Assistant
Collector or Sub Collector of the Taluk or Divisional Districts in respect of
which the members claims nativity are competent to issue social status
certificate. In the same G.O. Kapus and Reddies have been enumerated to be a
Scheduled Tribes. In G.O.Ms. No. 245 dated June 30, 1977 Social Welfare Department
enumerated the distinct groups of tribes different from plains. Kapus and Reddies
do not have any similarity in their habits culture. There was no common social
or economic patterns. In order to establish whether a particular candidate
belong to any of the Scheduled Tribe/group diverse ethnic or cultural
identities were mentioned. In Annexure 1 of the G.O. the candidates are
required to furnish the particulars prescribed therein. The competent officer
was to verify and satisfy himself of the true social status, of the candidate
before issuing the social status certificate. The same was further enumerated
and elaborated in G.O.Ms. No. 289 dated November 26, 1986, after the dispute in this case had
arisen with which we are not concerned in this appeal. The orders also
specifically say that who ever was given or taken false caste certificate are
liable to be prosecuted. The officer be penalised in Departmental proceedings
for dereliction the duty including dismissal from service when found that
officer deliberately issued false certificate.
6.The
learned Single Judge has pointed out that in Writ Petition No. 9071/ 82 filed
by the sister of the respondent, the father of the respondent and his sister
were called upon to produce the social status certificate from the native Tehsildar
or the Revenue Divisional Officer but they failed to produce the same. It was
also noted that Vasudeva Rao brother of Hanumantha Rao has a son by name Ravi
Kumar. He also claimed social status as a Konda Kapu for admission into
M.B.B.S. Course. His Writ Petition No.6637/79 was disposed of on November 3, 1979 finding that L. Ravi Kumar's claim
for social status as Konda Kapu was doubted. The mat- ter was referred to the
Director wherein it was held that Ravi Kumar was not Konda Kapu. We agree with
the learned counsel for the appellant that the High Court adopted its
traditional approach of placing burden of proof of social status founded on the
entries in Government record etc. and called upon the State to rebut it on the
touch-stone of Evidence Act. We are unable to appreciate the view taken by the
Division Bench. Burden of proof of social status is always on the person who
profound it to seek constitutional socioeconomic advantages. It is no part of
the duty of the State to disprove or its reverse. The criteria to obtain caste
certificate from Native Tahsildar/Mandal Revenue Officer/ Revenue Divisional
Officer is relevant for 693 the reason that Scheduled Tribes generally live in
forest areas, mountainous regions and specified ;pockets and will be known to
local officers or easily accessible for verification. The respondent is not as
innocent as the Division Bench appears to have proceeded. It is seen that the
father of the respondent deliberately abstained to appear before the Director.
The social status to the daughter was required to be produced from the Tahsildar
of the native jurisdiction but failed. Though he lived in Malakpet within the
jurisdiction of Musheerabad Tahsildar, he produced the certificate from Tehsildar,
Vallabhnagar in Ranga Reddy District who had no jurisdiction to issue it.
Yet he
had chosen to obtain from him and the officer was a willing and accommodating
one to issue false certificate.
When
the Principal doubted its correctness and referred the matter to the Director
of Tribal Welfare, the father ad- mittedly did not appear to establish the
social status.
Though
respondent, minor appeared before the Director, his statement cannot be used as
evidence. His father is a Government servant. He knows the consequences and so
he deliberately absented from being present before Director.
Instead
he chose to send his son with records. The Director considered the record and
concluded that the respondent is not a Scheduled Tribe but he is a "Kapu"
by caste as evidenced by the school certificate of his father declared to be a Kapu.
It bears evidentiary value and relevant material evidence. The subsequent
record manufactured by his father and his continuance in service on that basis,
even If it is accepted by the Department, is not conclusive and cannot be
implicitly relied as gospel truth.
The totamic
characteristic are required to be satisfied as noted in detail in the Annexure
1 f the G.O. referred herein before. They had not satisfied the Director by
furnishing those characteristic for verification and to take a decision
thereon. The Division Bench had totally omitted to consider all these aspects
and characterised the finding of the Director to be based on conjectures and
surmises. It is an accepted position that the Director, Tribal Department
established a research wing and made scientific study of the, endemic
characteristic, cultural moorings habits, their modes of marriages customs etc.
of different particular tribal community. The questionnaire was prepared as per
the Annexure in the G.O. obviously. Knowing that he cannot satisfy the required
features the father of respondent deliberately abstained to appear before the
Director, Tribal Welfare. Instead he got filed the writ petition in the High
Court put the burden of proof on the State that the Court relieved the father
of proving the status of his son's claim to be not a Scheduled Tribe. This
Court while considering the similar claims and school register of the father of
Madhuri and Saritha in Kumari Madhuri Patil & Anr. v. Addl. Commissioner,
Tribal Development and Ors., (1994) 6 SCC 24 1, held that the entry in the
school certificate of the caste of the father bears relevance and would prove
to be false claim as Scheduled Tribe. This Court has laid guidelines how the
matter required to be dealt with and stated in paragraph 13 thereof.
7.The
admission wrongly gained or appointment wrongly obtained on the basis of false
social status certificate necessarily has the effect of depriving the genuine
Scheduled Castes or Scheduled Tribes or OBC candidates envisaged of the
benefits conferred on them by the Constitu- tion. By reason thereof the genuine
candi- 694 dates would be denied admission to professional courses etc.
or
appointments to office or posts under a State instrumen- talities. More often
they arc denied social status certificates while ineligible or spurious persons
easily would secure them. After falsely gaining entry, resort to dilatory
tactics and create hurdles in completion of the inquiries by the Scrutiny
Committee. It is the parent or the guardian who may play fraud claiming false
status certificate to his child. It is, therefore, necessary that the
certificates issued are scrutinised at the earliest and with utmost expedition
and promptitude. For that purpose, it is necessary to streamline the procedure
for the issuance of social status certificates, their scrutiny and their
approval, which may be the following:- 1.The application for grant of social
status certificate shall be made to the Revenue Sub-Divisional Officer and
Deputy Collector or Deputy Commissioner and the certificate shall be issued by
such officer rather than by the Officer like Taluk or Mandal level.
2.The
parent, guardian or the candidate, as the case may be, shall file an affidavit
duly sworn and attested by a competent gazetted officer or non-gazetted officer
with particulars of castes and sub castes, tribe, tribal community, parts or
groups of tribes or tribal communities, the place from which he originally hails
from and other particulars as may be prescribed by the Directorate concerned.
3.Application
for verification of the caste certificate by the Scrutiny Committee shall be
filed at least six months in advance before seeking admission into educational
institution or an appointment to a post.
4.All
the State Governments shall constitute a Committee of three officers, namely,
(1) an Additional or Joint Secretary or any officer higher in rank of the
Director of the department concerned, (11) the Director, Social Welfare/Tribal
Welfare/Backward Class Welfare, as the case may be, and (111) in the case of
Scheduled Castes another officer who has intimate knowledge in the verification
and issuance of the social status certificates. In the case of the Scheduled Tribes,
the Research Officer who has intimate knowledge in identifying the tribes,
tribal communities, parts of or groups of tribes or tribal communities.
5.Each
Directorate should constitute a vigilance cell consisting of Senior Deputy
Superintendent of Police in overall charge and such number of Police Inspectors
to investigate into the social status claims, The Inspector would go to the
local place of residence and original place from which the candidate hails and
usually resides or in case of migration to the town or city, the place from
which he originally hailed from. The vigilance officer should personally verify
and collect all the fats of the social status claimed by the candidate or the
parent or guardian, as the case may be. He should also examine the school
records, birth registration, if any., He should also examine the parent,
guardian or the candidate in relation to their caste etc. or such other persons
who have knowledge of the social status of the candidate and then submit a
report to the Directorate together with all particulars as envisaged in the proforma,
in particular, of the Scheduled Tribes relating to their peculiar
anthropological and ethnological 695 traits, deity, rituals, customs, mode of
marriage, death ceremonies method of burial of dead bodies etc. by the castes
or tribes or tribal communities concerned etc.
6.The
Director concerned, on receipt of the report from the vigilance officer if he
found the claim for social status to be "not genuine" or 'doubtful'
or spurious or falsely or wrongly claimed, the Director concerned should issue
show- cause notice supplying a copy of the report of the vigilance officer to
the candidate by a registered post with acknowledgement due or through the head
of the educational institution concerned in which the candidate is studying or
employed. The notice should indicate that the representation or reply, if any,
would be made within two weeks from the date of the receipt of the notice and
in no case on request not more than 30 days from the date of the receipt of the
notice. In case, the candidate seeks for an opportunity of hearing and claims
an inquiry to be made in that behalf, the Director on receipt of such
representation/reply shall convene the committee and the Joint/Additional
Secretary as Chairperson who shall give reasonable opportunity to the
candidate/parent/ guardian to adduce all evidence in support of their claim. A
public notice by beat of drum or any other convenient made may be published in
the village or locality and if any person or association opposes such a claim,
an opportunity to adduce evidence may be given to him/it. After giving such
opportunity either in person or through counsel, the Committee may make such
inquiry as it deems expedient and consider the claims vis-a-vis the objections
raised by the candidate or opponent and pass an appropriate order with brief
reasons in support thereof 7.In case the report is in favour of the candidate
and found to be genuine and true, no further action need be taken ex- cept
where the report or the particulars given are procured or found to be false or
fraudulently obtained and in the latter event the same procedure as is
envisaged in para 6 be followed.
8.Notice
contemplated in para 6 should be issued to the parents/guardian also in case
candidate is minor to appear before the Committee with all evidence in his or
their support of the claim for the social status certificates.
9.The
inquiry should be completed as expeditiously as possible preferably by
day-to-day proceedings within such period not exceeding two months. If after
inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious,
they should pass an order cancelling the certifi- cate issued and confiscate
the same. It should communicate within one month from the date of the
conclusion of the pro- ceedings the result of enquiry to the parent/guardian
and the applicant.
10. In
case of any delay in finalising the proceedings, and the meanwhile the last
date for admission into an educational institution or appointment to an officer
post, is getting expired, the candidate be admitted by the Principal or such
other authority competent in that behalf or appointed on the basis of the
social status certificate already issued or an affidavit duly sworn by the
parent/guardian/candidate before the competent officer or nonofficial and such
admission or appointment should be only provisional, subject to the result of
the inquiry by the Scrutiny Committee.
696
11.The order passed by the Committee shall be final and conclusive only subject
to the proceedings under Article 226 of the Constitution.
12.No
suit or other proceedings before any other authority should lie.
13.The
High Court would dispose of these cases as expeditiously as possible within a
period of three months.
In case,
as per its procedure, the writ petition/mis- cellaneous petition/matter is
disposed of by a Single Judge, then no further appeal would lie against that
order to the Division Bench but subject to special leave under Article 136.
14.In
case, the certificate obtained or social status claimed is found to be false,
the parent/guardian/the candidate should be prosecuted for making claim. If the
prosecution ends in a conviction and sentence of the accused, it could be
regarded as an offence involving moral turpitude, disqualification for elective
posts or offices under the State or the Union
or elections to any local body, legislature or Parliament.
15.As
soon as the finding is recorded by the Scrutiny Committee holding that the
certificate obtained was false, on its cancellation and confiscation
simultaneously, it should be communicated to the educational institution
concerned or he appointing authority by registered post with acknowledgement
due with a request to cancel the admission of the appointment. The Principal
etc. of the educational institution responsible for making the admission or the
appointing authority, should cancel the admission/appointment without any
further notice to the candidate and debar the candidate from further study or
con- tinue in office in a post.
8.
While reiterating the above guidelines to be workable principles, it is high
time that the Government of India would have the matter examined in greater
detail and bring about a uniform legislation with necessary guidelines and rules
prescribing penal consequences on persons who flout the Constitution and comer
the benefits reserved for the real tribals etc. etc., so that the menace of
fabricating the false records and to gain unconstitutional advantages by
plain/spurious persons could be prevented. Lest they would defeat the
Constitutional objective of rendering socio- economic justice envisaged under
Article 46 in the Preamble of the Constitution under Articles 14, 15, 16, 38
and 39.
9.By
orders of the High Court the respondent had already completed his engineering
course, though he played fraud on the Constitution depriving the real tribal of
the benefit of the education as an engineer. He was minor at the relevant time.
So nothing can be done except declaring that he is not a tribe and that he is
not entitled to any employment or any other advantage on the basis of his false
status as Scheduled Tribe, namely, Kondakapu. His father did not appear before
the Director and he is not before this Court to direct the Govt. to lay
prosecution. Accordingly the appeal is allowed with costs quantified at Rs.25,000/-
to defray the amount spent on the respondent.
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