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2019 Supreme(Ker) 877
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. ASHA, J.
K.Rameshan 'Aswathi' – Appellant
Versus
State of Kerala – Respondent
WP(C).No.36135 of 2009(J)
Decided on : 28-10-2019
Advocate Appeared:
For the Appellant : SRI.M.RAMESH CHANDER (SR.), SMT.K.A.SANJEETHA
For the Respondent: SRI.K.V.PRAKASHAN
IMPORTANT POINTS
The role of the court must be as an institution which abides by constitutional principle, enforces the rule of law and reaffirms the belief that claims based upon fraud, expediency and subterfuge will not be recognised. Once these parameters are established with a clear judicial formulation, individual cases should pose no problem.
Headnote:
Constitution of India- Article 142 - The Kerala (Scheduled castes and Scheduled Tribes) Regulation of issue of Community Certificates Act (Act 11 of 1996) are in pari materia. Provisions contained in Section 10 of the Maharashtra Act are more or less similar to the provisions contained in Section 16 of the Kerala Act-Where an appointment to a post or admission to an educational institution is made against a vacancy which is reserved for a Scheduled Caste or Tribe or a socially and educationally backward class, the invalidation of the claim of the candidate would result in the appointment or, as the case may be, the admission being void and non est.
Statement of facts:
The petitioner joined the Kerala Police Department as a Police Constable in the year 1972 through special recruitment for Scheduled caste/Scheduled Tribe and retired from service on 31.03.2004. In the SSLC Book of the petitioner his community was shown as Chakkiliyan, which is a Scheduled Caste Community. It is stated that the Tahsildar had issued a community certificate to the effect that he belongs to Chakkiliyan community. He got employment producing the said certificate in the reservation quota for Scheduled Caste community. The petitioner claims that his father was a cobbler hailing from the border of Madras State and that he came to Kannur in search of job; his father and father's brother belonged to Chakkiliyan community; the children of his father's brother also enjoyed the benefits available to the Scheduled Caste community based on similar certificates issued by the Tahsildars. The KIRTADS had conducted an enquiry and submitted a report 10.06.1993 that the petitioner's father Kunhiraman and mother Narayani belonged to Tholkollan alias Perumkollan community.
Finding of the court:
The judgments rendered by this Court in Prakashan's case or Anila's case or in the judgment dated 28.01.2019 in W.P.(c).No.22501 of 2009 cannot have any force and the contentions relying on those judgments are only to be discarded. The contention that the finding can have only prospective effect and that there should be finding as to fraudulent intention is unsustainable and such a construction would be contrary to the legislative intent-The petitioner is not entitled to any relief.
Result: Dismissed.
JUDGMENT :
Ext.P13 proceedings of the Scrutiny committee for verification of community certificate as well as Ext.P14 order passed by the 1st respondent consequent to the same are under challenge in this Writ Petition.
2. The petitioner joined the Kerala Police Department as a Police Constable in the year 1972 through special recruitment for Scheduled caste/Scheduled Tribe and retired from service on 31.03.2004. In the SSLC Book of the petitioner his community was shown as Chakkiliyan, which is a Scheduled Caste Community. It is stated that the Tahsildar had issued a community certificate to the effect that he belongs to Chakkiliyan community. He got employment producing the said certificate in the reservation quota for Scheduled Caste community. The petitioner claims that his father was a cobbler hailing from the border of Madras State and that he came to Kannur in search of job; his father and father's brother belonged to Chakkiliyan community; the children of his father's brother also enjoyed the benefits available to the Scheduled Caste community based on similar certificates issued by the Tahsildars. The KIRTADS had conducted an enquiry and submitted a report 10.06.1993 that the petitioner's father Kunhiraman and mother Narayani belonged to Tholkollan alias Perumkollan community. It was found that the petitioner and his siblings were admitted in the School between 1951 and 1957 entering the name community as Perumkollan. On the basis of the report of KIRTADS the Government issued Ext.P2 order on 29.11.1993 to take steps against the petitioner, who was then working as Head Constable as he got employment as Police Constable against a vacancy reserved for a member of Scheduled caste. It was also directed that the community certificates issued to the members of his family shall be corrected substituting their community as OBC as they actually belonged to Perumkollan community. On the basis of the Government Order, the Superintendent of Police, initiated action against him and issued order dated 03.04.1994 removing him from service. The petitioner challenged the proceedings based on Ext.P2 order in O.P.No.1716/1994 which was disposed of as per Ext.P3 judgment directing the Government to consider the review petition filed by him. Seeing that the order of removal was passed without following the procedure prescribed under the Kerala Police Department Enquiry Punishment and Appeal Rules, 1958 the Government set aside the order of removal remitting the matter to the disciplinary authority for de- novo action. Thereafter, Ext.P5 memo of charge was issued to him alleging that he secured employment as Police Constable under the special recruitment for SC/ST submitting false community certificate as to Scheduled caste status when he actually belonged to Paricha Perumkollan community. He submitted his explanation Ext.P6 and thereafter approached this Court in O.P.No.7768/1995. This Court found that the community certificate which was issued by the competent authority before the commencement of Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act 1996 ('Act 11 of 1996') was not cancelled in accordance with the provisions contained in the Act, for which the competent authority was scrutiny committee constituted under Section 11 of the Act. The Writ Petition was therefore disposed of as per Ext.P7 judgment, leaving it open to the respondents to take action in accordance with the provisions contained in Act 11/1996. Even though a time limit was fixed and it was directed to pay the retirement benefits of the petitioner, the said direction was modified by Ext.P9 order in R.P.No.529/09 directing completion of the proceedings. The Vigilance Officer of the Directorate of KIRTADS after taking evidence submitted a report before the scrutiny committee with the finding that the petitioner does not belong to Chakkiliyan(SC) community and that he belongs to Perumkollan OBC and recommending action to cancel th
