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PETITIONER: DIRECTOR OF TRIBAL WELFARE, GOVERNMENT OF ANDHRA PRADESH

       Vs.

RESPONDENT: LAVETI GIRI AND ANOTHER

DATE OF JUDGMENT18/04/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J)

CITATION:  1995 AIR 1506            1995 SCC  (4)  32  JT 1995 (3)   684        1995 SCALE  (2)815

ACT:

HEADNOTE:

JUDGMENT: K.   RAMASWAMY, J.: 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

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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

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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

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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

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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

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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-

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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

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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. 584