Karnataka High Court
Sri Veerapandi A vs State Of Karnataka on 18 February, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 1793 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2025 R
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.1793 OF 2019 (DEC/INJ)
BETWEEN: BETWEEN:
1. SRI VEERAPANDI A.,
AGED ABOUT 40 YEARS,
S/O. APPADORAI.
2. SMT. MEENAKSHI,
AGED ABOUT 33 YEARS,
W/O. VEERAPANDI A.
3. KUM. SIMRAN V.,
MINOR,
4. MASTER HARSHIT PANDI V.,
MINOR,
NO.3 AND 4 ARE REPRESENTED
BY FATHER AND NATURAL GUARDIAN,
SRI VEERAPANDI A.
Digitally signed
by PAVITHRA B NO.1-4 R/A NO.16, I CROSS,
Location: HIGH KEMPEGOWDA GARDEN,
COURT OF
KARNATAKA NEAR LAKSHMI TEMPLE,
ABBIGERE, BENGALURU-560090.
...APPELLANTS
(BY SRI MADHUSUDHAN ADIGA B., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF PRIMARY EDUCATION,
VIKASA SOUDHA, BENGALURU-560001.
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RFA No. 1793 of 2019
2. DEPARTMENT OF PUBLIC INSTRUCTION,
K.R. CIRCLE, BENGALURU-560001.
REP. BY ITS D.D.P.I.
3. THE BLOCK EDUCATION OFFICER,
[KSHETRA SHIKSHANDHIKARI]
DEPARTMENT OF PUBLIC INSTRUCTION,
BENGALURU NORTH ZONE-4,
YELHANKHA, BENGALURU-560064.
4. THE HEAD MASTER,
GOVT. MODEL PRIMARY SCHOOL,
ABBIGERE, CHIKKABANAVARA POST,
BENGALURU NORTH ZONE-4,
BENGALURU-560090.
...RESPONDENTS
(BY SRI SANTOSH S.GOGI, AAG A/W
SRI RAJENDRA K., ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
ORDER XLI RULE 1 AND 2 OF THE CPC., PRAYING TO, A) SETTING
ASIDE JUDGMENT AND DECREE DATED 03.07.2019 IN O.S.
NO.7457/2018 PASSED BY THE XIX ADDL. CITY CIVIL AND
SESSIONS JUDGE, CCCH-18, BENGALURU; B) RESTORE O.S.
NO.7457/2018 BY ANSWERING THE ABOVE SAID PRELIMINARY
ISSUE IN AFFIRMATIVE; C) AND REMAND BACK THE SUIT TO THE
LOWER COURT FOR RECORDING OF EVIDENCE AND ETC.,
THIS REGULAR FIRST APPEAL, HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 1793 of 2019
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
CAV JUDGMENT
This Regular First Appeal is filed by the plaintiffs
challenging the judgment and decree passed in
O.S.No.7457/2018 dated 03.07.2019 by the Court of XIX
Addl. City Civil and Sessions Judge at Bangalore City,
thereby, the suit filed by the plaintiffs is dismissed as the
Civil Court has no jurisdiction to declare the caste of the
plaintiff. Accordingly, the plaint is rejected.
2. For the purpose of convenience and easy
reference, rank of the parties is referred to as per their
status before the trial Court.
3. Brief facts of the case of the plaintiffs.
The 1st plaintiff is Hindu by birth and his name was
Veerapandi A., and he solemnized marriage with the 2nd
plaintiff who was a Muslim by religion and after the
marriage, the 1st plaintiff embraced Islam religion by
changing his name as Vasim Khan. The 3rd and 4th
plaintiffs are two children of plaintiff Nos.1 and 2. The 3rd
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plaintiff born on 11.05.2007 and 4th plaintiff born on
04.01.2009.
4. The plaintiff wanted to revert back to their
mother religion and accordingly, it is stated that all the
plaintiffs underwent Shuddhi ceremony at Arya Samaj,
Bengaluru on 24.04.2015 and embraced Hinduism. After
reconverting to Hinduism, the old name of 1st plaintiff was
regained as Veerapandi A. from Vasim Khan. The 2nd
plaintiff's name was changed as Meenakshi from Asma.
The name of 3rd plaintiff was not changed and retained the
same as Kumari. Simran. The 4th plaintiff's name was
changed to Harshit Pandi.V from Hussain.
5. It is further case of the plaintiffs that the 3rd
and 4th plaintiffs are studying at primary school in the 4th
defendant's school. At the time of admission to the school
with the 4th respondent, the names of 3rd and 4th
respondents were given as Simran and Hussain and
parents name as Vasim and Asma and their religion as
Muslim. After undergoing Shuddhi ceremony and once
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again embracing Hindu religion, the 1st plaintiff being
father of 3rd and 4th plaintiffs has given representations to
the defendants No.3 and 4 to change in the school
records, the names of plaintiff No.4 from Hussain to
Harshit Pandi.V and changed parents name Veerapandi A.,
and Meenakshi respectively and also sought for change of
religion from Muslim to Hindu. But the defendants have
not taken any steps to honour the request made by the
plaintiffs. Therefore, the plaintiff has filed the suit in
O.S.No.3311/2016 before the Civil Court and the Civil
Court has decreed the suit on 21.10.2016, but defendants
have not honoured the decree passed in
O.S.No.3311/2016. Therefore, the plaintiffs have filed
Ex.P.No.2974/2017. The defendants are stating that there
is no mentioning of the caste of the plaintiff and the
mother tongue in the decree in O.S.No.3311/2016.
Therefore, the said decree is not implemented/executed.
6. The plaintiffs submitted that due to
inadvertence, they have omitted to mention their caste as
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Thevar caste and mother tongue as Tamil in the prayer of
O.S.No.3311/2016. Therefore, the plaintiffs with an
intention to file suit have sent statutory notice under
Section 80 of Code of Civil Procedure, 1908 (hereinafter
referred to as the 'CPC') and stating that the cause of
action arouse on 02.01.2017, when the defendants
refused to implement the Court decree, filed the suit for
declaration to declare the following reliefs:
i. Declaring the caste of the plaintiff as Thevar
caste and their mother tongue as Tamil.
ii. Of mandatory injunction directing the
defendants for entering the caste and mother
tongue of 3rd and 4th plaintiffs as Thevar caste
and Tamil language in all school records and for
other reliefs.
iii. Other reliefs.
Written Statement by defendants
7. Defendant No.3 has filed the written statement.
Defendant Nos.1, 2 and 4 have adopted the written
statement filed by defendant No.3. Defendant No.3, in the
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written statement has contended that as per the circular
issued by the Commissioner of the Education department,
there is no provision for change of name, caste and
religion. On this ground also the suit is liable to be
dismissed. It if further contended that plaintiffs can
approach the District Caste Verification Committee for
change of caste/religion and the Civil Court has no
jurisdiction to declare caste/religion. Therefore, prayed for
dismissal of the suit.
8. Based on the pleadings, the Trial Court has
framed preliminary issue to consider the suit with regard
to jurisdiction of the Civil Court, which reads as follows:
"Whether the civil court has jurisdiction to
declare the caste of the plaintiffs?"
9. The trial Court after considering various
judgments of Hon'ble Courts, this Court and of other High
Courts, has answered the preliminary issue as negative by
rejecting the plaint and dismissed the suit of the plaintiffs
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by holding that the Civil Court has no jurisdiction to
declare the caste of the plaintiffs.
10. Being aggrieved the plaintiffs have filed the
instant appeal.
Grounds raised in the Appeal:
11. The plaintiffs have preferred the above Regular
First Appeal on the grounds that this Court in the case of
State of Karnataka V/s Varadashankar Chinnappa
Javalgi1 that the civil court has jurisdiction to declare the
caste of any person. Hence, the trial Court has committed
error in dismissing the suit.
12. Further raised the ground that the trial Court on
which placed reliance on the judgment of Hon'ble Apex
Court and this Court are on a different set of facts and
circumstances and are not applicable in the present case.
Therefore, has erroneously dismissed the suit. Further,
even the Karnataka Scheduled Castes and Scheduled
ILR 1996 KAR 3693
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Tribes and other Backward classes (Reservation in
Appointment etc.) Act, 1990 (hereinafter referred to
'The Act of 1990' for short) and amendment made to it do
not oust jurisdiction of the Civil Court and the said Act
does not say that Civil Court has no jurisdiction to declare
the caste of the person. Besides, the declaration given by
Civil Court will not amount to certificate, but at the most,
it is piece of evidence to be considered by the District
Caste Verification/Scrutiny Committee in issuing
certificate. Therefore, the power and jurisdiction of Civil
Court is not ousted by the above said enactment.
Therefore, on these grounds, prayed to set aside the
judgment and decree passed by the trial Court and
remand the case to the trial Court to consider the suit
afresh on merits after receiving evidence.
13. Upon issuance of notice to the respondents,
learned Additional Advocate General represented the
respondents.
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14. Heard the argument from both sides and
perused the materials on record.
Submission of counsel for appellants/plaintiffs:
15. Learned counsel for the appellants/plaintiffs
submitted that originally the plaintiff is belonging to
Thevar caste and the mother tongue is Tamil. Just because
they converted into another religion of Muslim, that cannot
defeat the right of the plaintiffs to make claim of their
original caste and their mother tongue after reconversion
to Hinduism.
16. Further submitted that, in the present case, the
plaintiffs are not claiming any caste benefits but they want
to identify themselves belonging to a Thevar
caste/community and to retain their mother tongue as
Tamil. Therefore, identity of a person what if he is on birth
and mother tongue is his fundamental right and therefore,
after reconversion to Hinduism, the plaintiffs have
exercised their legitimate right of being identified with
their community and mother tongue as Tamil. Therefore,
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when their eclipse after conversion to another religion, till
the date of reconversion to Hinduism, that is only a
shadow created on the right of the plaintiffs but soon after
reconverting to Hinduism, then it is their right to be
identified with his original community and with mother
tongue and this civil right of the plaintiffs cannot be taken
away by any other statute or rules. Therefore, the suit is
very much maintainable as per Section 9 of CPC. But the
trial Court has wrongly dismissed the suit as not
maintainable is not correct. Therefore, prays to allow the
appeal.
17. The learned counsel for the appellants places
reliance on the following judgments of Hon'ble Apex Court
and of this Court and fairly submitted that in all the
decisions, it is held with regard to the fact that when
plaintiffs are claiming benefit under the reservation and
therefore, in those contexts it was held that the suit filed
in this regard is not maintainable. But in the present case,
the facts and circumstances are different that the plaintiffs
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are exercising their civil rights of making identification with
their community and a mother tongue. Therefore, made
distinguishment of the following relied judgments with the
facts and circumstances in the case of plaintiffs in this suit.
The following are the judgments:
i. STATE OF KARNATAKA V/S VARADASHANKAR
CHINNAPPA JAVALGI- ILR 1996 KAR 3693.
(Varadashankar Chinnappa Case)
ii. STATE OF T.N. AND OTHERS V/S A. GURUSAMY-
(1997) 3 SCC 542. (A. Gurusamy case)
iii. SRISH KUMAR CHOUDHURY V/S STATE OF
TRIPURA AND OTHERS- AIR 1990 SC 991. (Srish
Kumar case)
iv. S.SWVIGARADOSS V/S ZONAL MANAGER, F.C.I.-
AIR 1996 SC 1182. (S. Swvigaradoss Case)
v. THE GOVERNMENT OF KARNATAKA, REP., BY
DEPUTY COMMISSIONER AND OTHERS V/S
KUMARI SHILPA SHRISHAIL BARAGADAGI AND
ANOTHER- ILR 2014 KAR 5389. (Kumari Shilpa
Case)
vi. KUMARI MADHURI PATIL AND ANOTHER V/S
ADDL. COMMISSIONER, TRIBAL DEVELOPMENT
AND OTHERS- (1994) 6 SCC 241. (Kumari
Madhuri Patil Case)
vii. DAYARAM V/S SUDHIR BATHAM AND OTHERS-
(2012) 1 SCC 333. (Dayaram Case)
viii. K.P. MANU V/S CHAIRMAN, SCRUTINY
COMMITTEE FOR VERIFICATION OF COMMUNITY
CERTIFICATE- (2015) 4 SCC 1. (K.P. Manu Case)
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ix. HARENDRA CHANDRA NATH AND OTHERS V/S
BIJOY KRISHNA NATH AND OTHERS- AIR 1993
GAUHATI 52. (Harendra Chandra Case)
18. Therefore, the learned counsel for
plaintiffs/appellants prays to allow the appeal by holding
that the suit is maintainable and prays to remand the case
to trial Court for trying the suit.
Submission of Additional Advocate General:
19. On the other hand, the learned Additional
Advocate General Sri. Santhosh S. Gogi vehemently
submitted that the very relief of plaintiff in the suit is for
declaration to declare that the plaintiff belongs to Thevar
caste. Therefore, the suit is not maintainable as it is
expressively barred by the Act of 1990 and also as
amended by the Karnataka Act No.42/2024.
20. It is further argument by the learned Additional
Advocate General that for declaration of caste power is
vested with the District Caste Verification/Scrutiny
Committee as per provisions of the Act of 1990 and the
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power vested only with the Verification Committee headed
by the Deputy Commissioner. Therefore, the powers of the
Civil Court are expressly taken out and hence, the suit is
not maintainable in view of Section 9 of CPC. He also
places reliance on the above said judgments, as placed on
by the counsel for the appellants/plaintiffs. Therefore, it is
submitted that the suit of the plaintiffs is not maintainable
and it is correctly held by the trial Court. Hence, prays to
dismiss the appeal.
21. Having heard arguments by both sides, the
points that arise for consideration is as follows:
i. Whether, under the facts and circumstances
involved in the case, the suit filed by the
plaintiffs for declaration simplicitor that they
belong to particular community/caste
without claiming benefit of reservation of
caste in the suit and also to declare his
mother tongue as Tamil language is
maintainable?
ii. Whether the order passed by the trial Court
requires any interference by this Court?
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Reasonings - Analyses:
22. In the present suit, the plaintiffs have pleaded
in the plaint that 1st plaintiff is a Hindu by birth and his
name was Veerapandi A., and he had married plaintiff
No.2 who was a Mulsim by religion by name Asma. After
marriage, plaintiff No.1 embraced Islam religion by
changing his name to Vasim Khan. In the wedlock
between plaintiff Nos.1 and 2, they are blessed with
children/plaintiff Nos.3 and 4 namely Simran and Hussain.
After some time, the 1st plaintiff thought that for his better
future prospects he wanted to revert back to his mother
religion and accordingly after undergoing Shuddhi
ceremony, all the plaintiffs have reconverted and
embraced Hinduism. After reconversion to Hinduism, 1st
plaintiff has reclaimed his name as Veerapandi A., and 2nd
plaintiff changed her name as Smt.Meenakshi. Plaintiff
No.3 continued the same, but the plaintiff No.4 was
changed his name as Harshit Pandi V. Both the plaintiff
Nos.3 and 4 are minors.
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23. After reconverting to Hinduism, the plaintiff
Nos.1 and 2 approached the school authorities to change
their names children plaintiffs No.3 and 4 and their mother
tongue as Tamil and also to mention their caste as Thevar
in the school records, but defendant Nos.2 to 4/school
authorities have not changed as per request made by the
plaintiffs. Therefore, the plaintiffs have filed suit in
O.S.No.3311/2016 and the said suit came to be decreed
on 21.10.2016. Defendant Nos.3 and 4 have not complied
decree passed in O.S.No.3311/2016. Therefore, the
plaintiffs filed Execution Petition which is numbered as
E.P.No.2974/2017, but the said execution petition is not
enforced as there is no mention of the caste and mother
tongue of the plaintiff in the judgment and decree passed
in O.S.No.3311/2016. Therefore, decree in
O.S.No.3311/2016 is not complied with. Hence, the
plaintiffs have filed present suit seeking declaration that to
include the caste of the plaintiffs as Thevar and mother
tongue as Tamil and issue mandatory injunction to
mention their caste as Thevar and mother tongue as Tamil
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of the plaintiff Nos.3 and 4 in all school records just to
identify themselves by Thevar community and mother
tongue Tamil.
24. Based on the pleadings of the parties, the Trial
Court has framed the following issue:
"Whether the civil court has jurisdiction to
declare the caste of the plaintiffs?"
25. The Trial Court has answered the said issue in
the negative holding that the Civil Court has no jurisdiction
to declare the caste of the plaintiffs. Accordingly, the plaint
is rejected. Therefore, the present appeal is filed.
26. Here, the entire claim of the plaintiffs is to
include their caste as Thevar and mother tongue as Tamil
in the school records. The plaintiffs have not asked for
declaration to declare that they are belonging to Schedule
Castes or Schedule Tribes or Other Backward Classes
(hereinafter referred to 'SC or ST or OBC' for short).
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27. It is the case of the plaintiffs that they
belonging to Tamilnadu State and for livelihood purpose
they came to Karnataka and changed their religion from
Hinduism to Islam and then thereafter they have
reconverted to Hinduism. In this way, learned counsel for
the appellants submitted that in India every person is
recognized by birth with some particular caste/community
and religion. Therefore, the plaintiffs who are born in
Tamilnadu State, their mother tongue is Tamil. Just
because they were converted to Islam that does not
diminish original identity as Thevar caste and mother
tongue as Tamil and therefore, after reconversion quite
naturally he regained the position as belonging to the
same caste and the mother tongue is Tamil and that is
what the plaintiffs want to get the particulars to be
changed in the school records. Therefore, submitted that it
is not the case of the plaintiffs that they want declaration
that their caste is coming under SC or ST or OBC, but
simply their prayer is for declaration that they belong to
Thevar caste as they originally belonged to. Therefore, in
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this regard, when defendant Nos.3 and 4 have refused to
enter their caste and mother tongue as Tamil in the school
records that creates havoc, hampering future prospects of
plaintiff Nos.3 and 4, therefore, for exercising this civil
right, they approached the Civil Court by filing suit, which
is maintainable as per Section 9 of CPC.
28. Learned counsel for the appellants argued that
the above cited judgments are pertaining to the issue
regarding declaration of caste belonging to SC or ST or
OBC. But in the present case, the plaintiff is not claiming
relief that his caste belongs to particular SC or ST or OBC
category. Therefore, difference in the factual matrix in the
above cited cases and in the present case, the Civil Court
has jurisdiction to entertain the suit. Therefore, prays to
set aside the order passed by the Trial Court.
29. On the other hand, learned Additional Advocate
General for the defendants/respondents State submitted
that the Civil Court has no jurisdiction for declaring that a
particular person belonged to SC or ST or OBC. As per the
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Act of 1990, for declaration of caste, suit is not
maintainable and this is rightly considered by the Trial
Court. Therefore, he places reliance on the above cited
judgments which held that filing of suit in this regard is
expressly barred under Section 9 of CPC. Therefore, he
justified the order passed by the Trial Court.
30. Upon considering the plaint averments, there is
no pleading or mentioning that the plaintiffs are claiming
benefit under the SC or ST or OBC. But case of the
plaintiffs is that originally they belong to Thevar
community and their mother tongue is Tamil and
therefore, after reconverting to Hinduism their original
status of particular community and mother tongue be
regained and therefore, filed suit for entering these
particulars in the school records. In the plaint the plaintiffs
have not pleaded that they are belonging to SC or ST or
OBC categories. Therefore, in this regard, the judgments
cited by both the sides are to be considered.
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31. The Hon'ble Supreme Court in the case of
A. GURUSWAMY's2 case (supra) at paragraph No.3 has
held as follows:
"3. The only question is whether the suit is
maintainable. By operation of Section 9 of CPC,
a suit of civil nature cognizance of which is
expressly or by implication excluded, cannot be
tried by any civil court. The declaration of the
President of India, under Articles 341 and 342 of
the Constitution, with respect of lists of the
Scheduled Castes and Scheduled Tribes in
relation to a State, that a particular caste or
tribe as defined in Article 366(24) or (25)
respectively, is conclusive subject to an
amendment by Parliament under Articles 341(2)
and 342(2) of the Constitution. By necessary
implication, the jurisdiction of the civil court to
take cognizance of and give a declaration stands
prohibited. The question then is whether the
respondent has been given an opportunity to
establish his case before the authorities
cancelled his community certificate obtained by
him? The order of the District Collector dated 2-
12-1991 clearly mentions that an opportunity
was given to the respondent and he himself had
examined him. The District Collector does not
decide it like a suit. What he does is an enquiry
complying with the principles of rational
(sic natural) justice. He considered his stand,
namely, one of the sale deeds of 1962 in which
his status was declared as Kattunaicken but the
(1997) 3 SCC 542
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same was disbelieved by the District Collector
before cancellation. It is a self-serving
document. The authority had, therefore, given
an opportunity to the respondent to establish his
status and found that the certificate previously
obtained was wrong and illegal. Accordingly, he
cancelled the certificate given to the respondent
on 23-1-1971. It is then contended by the
learned counsel for the respondent that the
guidelines had been given by the Collector in the
manner in which the enquiry is to be conducted
and the synonyms are to be taken and in
pursuance thereof, the Revenue Division Officer
granted him the certificate. We find that the
stand taken is not correct. The guidelines are
only to identify the persons and not to give a
declaration as to which community comes under
a particular entry of the Presidential Notification.
It is then contended that the respondent has
been given the right to enjoy the status right
from 1971 and, therefore, the principle of
estoppel applies to him. We find that it has no
force. It is a fraud played on the Constitution. A
person who plays fraud and obtains a false
certificate cannot plead estoppel. The principle
of estoppel arises only when a lawful promise
was made and acted upon to his detriment; the
party making promise is estopped to resile from
the promise. In this case, the principle of
estoppel is inapplicable because there is no
promise made by the State that the State would
protect perpetration of fraud defeating the
constitutional objective; no promise was made
that his false certificate will be respected and
accepted by the State. On the other hand, he is
liable for prosecution. The courts would not lend
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assistance to perpetrate fraud on the
Constitution and he cannot be allowed to get the
benefit of the fraudulent certificate obtained
from the authorities. The declaration issued by
the courts below is unconstitutional and without
jurisdiction."
32. The facts in cited case are that the respondent
was studying in the school, he was described as a member
of "Totti" community. The Presidential Notification issued
under Article 341(1) of the Constitution of India read with
Article 366(24) of the Constitution notifies "Thotti" to be a
Scheduled Caste as Item No.67 of the Presidential
Notification. Subsequently, in 1970, the respondent had
obtained a certificate from the Revenue Divisional Officer
indicating him to be "Kattunaicken" as Item No.9 of the list
of the Scheduled Tribes in the State of Tamilnadu issued
by the President under Article 342(1) read with Article
366(25) of the Constitution. Subsequently, the respondent
had applied for permanent certificate; on that basis an
enquiry was conducted and it was found that the
respondent was not a Scheduled Tribe but is a Scheduled
caste. Accordingly, the certificate came to be cancelled.
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Impugning the said cancellation, the respondent filed a
civil suit for declaration that he is "Kattunaicken" as a
Scheduled Tribe. In this regard the suit filed by the
respondent is decreed and affirmed by the High Court of
Madras. In these factual matrixes, the Hon'ble Supreme
Court held that the suit is not maintainable as per Section
9 of CPC. But in the present case, the plaintiffs are not
claiming change of caste and questioning any order of
District Caste Verification/Scrutiny Committee or any
order. Therefore, due to difference in factual matrix in the
above stated case and in the present case, the said
judgment is not applicable in the present case.
33. Further, the Hon'ble Supreme Court in SRISH
KUMAR's3 case (supra) at paragraph Nos.15, 16, 17, 21
and 22 has held follows:
"15. Bhaiya Ram's case (AIR 1971 SC 2533),
the tribe specified in the Scheduled Tribes Order
was Munda. The respondent was a Patar but he
maintained that it was included in the notified
tribe. The Bench was of the view that evidence
AIR 1990 SC 991
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was admissible for the purpose of showing what
an entry in the Presidential Order was intended
to mean though evidence could not be accepted
for modifying the Order by including a new tribe.
Since the respondents' case was that Patars
were Mundas, evidence could be given to show
that the entry 'Munda' included 'Patar'.
16. These authorities clearly indicate,
therefore, that the entries in the Presidential
Order have to be taken as final and the scope of
enquiry and admissibility of evidence is confined
within the limitations indicated. It is, however,
not open to the court to make any addition or
subtraction from the Presidential Order.
17. The evidence in this case on which reliance
has been placed in support of the claim
that Laskars are included in the tribe described
as 'Tripura/Tripuri/Tippera' mainly consists of
two circulars of the erstwhile State of Tripura.
Circular No.9 is of December 1930. There is a
narration therein to the following effect:
"In this State Tripura Sampradaya means the
following five communities:
1. Puratan Tripura
2. Deshi Tripura (related to Laskar class)
3. Noatia
4. Jamatia
5. Riang."
18. xxxx
19. xxxx
20. xxxx
21. Reservation has become important in view
of the increasing competition in society and that
probably had led to the anxiety of the appellant
and the people in his community to claim
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reservation. As pointed out by the Constitution
Bench judgments which we have referred to
above, the basis on which inclusion into or
exclusion from the enumerated list made under
Art. 342 is contemplated is the changing
economic, educational and other situations of
the members of any particular tribe. Keeping
that in view the State Government may initiate
appropriate proposals for modification in case it
is satisfied and after appropriate enquiry if the
authorities are satisfied that the claim is genuine
and tenable, amendment may be undertaken as
provided by the Constitution.
22. This Court has indicated in some of the
judgments referred to above that as a result of
the detailed enquiry made as to the economic
status, the level of education and the necessity
of protection, inclusion into or exclusion from
the Order is made. The material relating to the
Laskar tribe in 1930 or 1941 may not have been
considered sufficient before the respective
Orders were made for including the Laskars,
said to have been covered by the description of
Deshi Tripura. Therefore, even if historically this
tribe was covered by the general description of
Tripura, that by itself may not justify its
inclusion in the Order as a scheduled tribe. That
is an additional feature which has weighed with
us in taking our decision not to interfere in the
matter."
34. The facts in the cited case are that the
appellant is a resident of Tripura State and claims to
belong to the Laskar Community, which is recognized as a
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Scheduled Tribe in the erstwhile State of Tripura. Members
of the Laskar Community freely enjoyed all the benefits
available to members of the Scheduled Tribes until in
1976. When the State Government decided to treat
members of that community as not belonging to the
Scheduled Tribes and issued instructions to the State
Authorities to implement this decision. Therefore, the
appellant filed writ petition before the Guwahati High
Court, requesting to be recognized as belonging to
Scheduled Tribe Community since he is a member of
Laskar community. The contention of the State
Government was that Laskar Community was not a
Scheduled Tribe, in this friction the dispute went up to the
Hon'ble Supreme Court. Therefore, there was no issue
regarding maintainability of the suit in the aforementioned
judgment. Thus, given the distinguishable features of the
facts in the present case, the above decision is not
applicable in the present case.
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35. Further, the Hon'ble Supreme Court in S.
SWVIGARADOSS's4 case (supra) at paragraph No.8 has
held as follows:
"8. The Courts, therefore, have no power
except President. It is settled law that the Court
would look into the public notification under
Article 341(1) or Article 342(1) for a limited
purpose. The notification issued by the
President and the Act of Parliament under
Scheduled Castes and Scheduled Tribes Order
(Amendment) Act, 1976 and the Schedules
appended thereto can be looked into for the
purpose to find whether the castes, races or
tribes are parts of or groups within castes, races
or tribes shall be Scheduled Castes for the
purposes of the Constitution. Under the
Amendment Act, 1976, again Parliament has
included or excluded from schedules appended
to the Constitution which are now conclusive.
Schedule I relates to Scheduled Castes and
Schedule II relates to Scheduled Tribes.
Christian is not a Scheduled Caste under the
notification issued by the President. In view of
the admitted position that the petitioner was
born of Christian parents and his parents also
were converted prior to his birth and no longer
remained to be Adi-Dravida, a Scheduled Caste
for the purpose of Tirunelvedi District in Tamil
Nadu as notified by the President, petitioner
cannot claim to be a Scheduled Caste. In the
light of the constitutional scheme civil court has
no jurisdiction under Section 9 of CPC to
entertain the suit. The suit, therefore, is not
maintainable. The High Court, therefore, was
AIR 1996 SC 1182
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right in dismissing the suit as not maintainable
and also not giving any declaration sought for."
36. The facts in the cited case are that the
petitioner's parents were got converted to Christian
religion prior to his birth. The petitioner was born in the
Christian religion, but later, for the purpose of claiming
reservations, he stated that he belonged to Adi-Dravida
community. Also, the petitioner married a Christian girl.
By claiming the status as Adi-Dravida, he got employment
in the Government. Therefore, the Government issued a
notice for initiation of proceedings, then the petitioner has
filed suit. The Hon'ble Apex Court held that the suit, in this
context, was not maintainable under Section 9 of CPC.
Therefore, since the petitioner was a Christian born to
Christian parents and claimed his caste as Adi-Dravida,
therefore, his prayer was turned down as the suit is not
maintainable. In view of this difference in factual matrix
between the cited case and in the present case, the above
cited decision is not applicable. In the present case the
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plaintiffs are not claiming that they belong to SC or ST or
OBC. What simply the prayer of the petitioner is that they
belong to Thevar caste. Whether they belong to Thevar
caste or not is the subject matter for adjudication in the
suit. The plaintiffs may be able or may not be able to
prove their caste as Thevar and this disputed fact is purely
matter of adjudication before the Civil Court. The plaintiffs
in the present suit have not claimed their caste belong to
SC or ST or OBC. Therefore, this difference in the factual
matrix makes the above said judgment is not applicable in
the present case.
37. Further, this Court in KUMARI SHILPA's5 case
(supra) has discussed that respondent claimed that she
belong to Hindu Hatagar a backward community, but
wrongly entered in the school records as Hingu Lingayat
which is a forward caste; therefore, filed suit; hence it was
held that the suit is not maintainable. Therefore, the facts
in the cited case are that in the school records the caste is
ILR 2014 KAR 5389
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wrongly mentioned as Hindu Lingayat, but she was
claiming belong to Hindu Hatagar community. Under these
circumstances it was held that the suit is not maintainable
in view of Section 9 of the CPC.
38. Here in the present case, the plaintiffs have not
claimed that they are belonging to SC or ST or OBC. It is
simple prayer in the suit to enter in school records as they
belong to Thevar Caste based on reconversion to
Hinduism. Here in the present case, there is no change of
caste claimed by the plaintiffs therefore, difference in the
factual matrix in the above cited case and in the present
case therefore, the above said judgment is not applicable
to the present set of facts and circumstances.
39. Further the Hon'ble Apex Court in KUMARI
MADHURI PATIL's6 case (supra), were pleased to issue
guidelines at paragraph No.13, which is held as follows:
"13. The admission wrongly gained or
appointment wrongly obtained on the basis of
false social status certificate necessarily has the
(1994) 6 SCC 241
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effect of depriving the genuine Scheduled Castes
or Scheduled Tribes or OBC candidates as
enjoined in the Constitution of the benefits
conferred on them by the Constitution. The
genuine candidates are also denied admission to
educational institutions or appointments to office
or posts under a State for want of social status
certificate. The ineligible or spurious persons who
falsely gained entry resort to dilatory tactics and
create hurdles in completion of the inquiries by
the Scrutiny Committee. It is true that the
applications for admission to educational
institutions are generally made by a parent, since
on that date many a time the student may be a
minor. It is the parent or the guardian who may
play fraud claiming false status certificate. 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 at the Officer, 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
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seeking admission into educational institution or
an appointment to a post.
4. All the State Governments shall
constitute a Committee of three officers, namely,
(I) an Additional or Joint Secretary or any officer
high-er in rank of the Director of the department
concerned, (II) the Director, Social Welfare/Tribal
Welfare/Backward Class Welfare, as the case may
be, and (III) 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 over-all 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 facts 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 pro forma, in particular, of the
Scheduled Tribes relating to their peculiar
anthropological and ethnological 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.
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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 mode 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-à-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 except 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.
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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
certificate issued and confiscate the same. It
should communicate within one month from the
date of the conclusion of the proceedings the
result of enquiry to the parent/guardian and the
applicant.
10. In case of any delay in finalising the
proceedings, and in 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 non-official and such
admission or appointment should be only
provisional, subject to the result of the inquiry by
the Scrutiny Committee.
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/miscellaneous petition/matter is
disposed of by a Single Judge, then no further
appeal would lie against that order to the Division
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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 false 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 the appointing authority by
registered post with acknowledgement due with a
request to cancel the admission or 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 continue in office in a post."
40. In this cited case, the facts are that the
appellant had fraudulently obtained Schedule Tribe
certificate by approaching proper authority. Later on
during her fag end of academic carrier in completion of her
medical course, it was found that the said obtaining of
certificate is by way of fraudulent means and was about to
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complete her medical course and to appear in the
examination. But her younger sister was not given the said
benefit. It was held that the appellant to which caste she
claimed to be belong to 'Koli' is coming within the category
as Other Backward Classes but not Scheduled Tribe as per
Constitution (Scheduled Tribe) Order, 1950. Therefore, in
the cited case, it was the subject matter that the appellant
had fraudulently obtained certificate claiming to belonging
to Scheduled Tribe category but virtually she belongs to
Other Backward Classes and obtained seat in medical
course.
41. In this context, the Hon'ble Apex Court has
issued guidelines as above cited. But in the present case
as above discussed, the facts and circumstances are
entirely different from this cited case. Here, the plaintiff is
not claiming any certificate that the Thevar caste belongs
to either SC or ST or OBC. The prayer in the plaint is
different. Therefore, having difference in factual matrix,
the above cited judgment is not applicable on behalf of
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contention taken by the defendant-State and Educational
Department.
42. Further, the Hon'ble Apex Court in the
DAYARAM's7 case (supra), by following the directions
issued in KUMARI MADHURI PATIL's 6 case (supra), it
was held that scheme laid down in KUMARI MADHURI
PATIL's6 case (supra) to continue in force till replaced by
suitable legislature. The Hon'ble Apex Court in the above
said judgment, in the context of subject matter of claiming
reservation on a particular caste, laid down principle of law
but in the present case on hand, the question is exercising
the civil right of plaintiff after reconversion to Hinduism,
once again claiming to be belonging to Thevar caste.
43. In the present case on hand, the plaintiffs are
not claiming benefit of either SC or ST or OBC. The
Hon'ble Apex Court in DAYARAM's7 case (supra) held for
declaration of particular caste belongs to SC or ST or OBC,
the suit is not maintainable. Therefore, this makes
(2012) 1 SCC 333
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difference in the factual matrix in the above cited case and
in the present case. Therefore, the above said judgment is
not applicable in the facts and circumstances and grounds
raised in this appeal. It was laid down in KUMARI
MADHURI PATIL's6 case (supra) and in DAYARAM's7
case (supra)against the order passed by the District Caste
Verification/Scrutiny Committee of caste, a civil suit is not
maintainable as per Section 9 of the CPC. Here, in the
present case, there is no order of District Caste
Verification/Scrutiny Committee against the plaintiffs.
Therefore, this judgment is not applicable in the present
case to say that the suit filed is not maintainable as per
Section 9 of CPC.
44. The Hon'ble Apex Court in K.P. MANU's8 case
(supra), while dealing with the case that while a person
being a Hindu converted to another religion and on
reconversion to Hindu religion, then, during the eclipse of
original Hindu caste on conversion to another religion,
(2015) 4 SCC 1
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what are the principles applicable are stated at paragraph
Nos.47, 48, 49, 50 and 51 by issuing guidelines as follows:
"47. The two principles that have been stated in the
aforesaid paragraph are : (i) that a court can look
into the notification by the President and the Act of
Parliament under the Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1976
and the Schedule appended thereto for the limited
purpose to find out whether the castes, races or
tribes are parts or groups within the castes, races or
tribes, especially Scheduled Castes for the purpose
of Constitution, and it is because what has been
included or excluded therein are conclusive; and (ii)
that a person born to Christian parents, who initially
belonged to the Scheduled Caste, even after his
reconversion cannot claim to be a Scheduled Caste.
As far as first proposition of law is concerned, there
can be no cavil over the same and we respectfully
concur. As far as the second principle is concerned, it
is essential to note that the authorities of larger
Bench in Y. Mohan Rao, Kailash Sonkar and
S. Anbalagan were not brought to the notice of the
Court in Swvigaradoss case. Irrefragably, the second
principle runs contrary to the proposition laid down
in the Constitution Bench in Y. Mohan Rao and the
decisions rendered by the three-Judge Bench.
48. When a binding precedent is not taken note of
and the judgment is rendered in ignorance or
forgetfulness of the binding authority, the concept of
per incuria comes into play. In A.R. Antulay v. R.S.
Nayak, Sabyasachi Mukherji, J. (as His Lordship then
was) observed that: (SCC p. 652, para 42)
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"42. ... 'Per incuriam' are those decisions given
in ignorance or forgetfulness of some inconsistent
statutory provision or of some authority binding on
the court concerned, so that in such cases some part
of the decision or some step in the reasoning on
which it is based, is found, on that account to be
demonstrably wrong."
At a subsequent stage of the said authority, it has
been held that: (A.R. Antulay case, SCC p. 654, para
47)
"47. ... It is a settled rule that if a decision has
been given per incuriam the court can ignore it."
49. In Union of India v. R.P. Singh, the Court
observed thus: (SCC p. 348, para 19)
"19. In Siddharam Satlingappa Mhetre v. State
of Maharashtra, while dealing with the issue of 'per
incuriam', a two-Judge Bench, after referring to the
dictum in Young v. Bristol Aeroplane Co. Ltd. and
certain passages from Halsbury's Laws of
England and Union of India v. Raghubir Singh, had
ruled thus: (Siddharam Satlingappa Mhetre case29,
SCC p. 743, para 138)
'138. The analysis of English and Indian law
clearly leads to the irresistible conclusion that not
only the judgment of a larger strength is binding on
a judgment of smaller strength but the judgment of
a coequal strength is also binding on a Bench of
Judges of coequal strength. In the instant case,
judgments mentioned in paras 124 and 125 are by
two or three Judges of this Court. These judgments
have clearly ignored a Constitution Bench judgment
of this Court in Sibbia case which has
comprehensively dealt with all the facets of
anticipatory bail enumerated under Section 438
CrPC. Consequently, the judgments mentioned in
paras 124 and 125 of this judgment are per
incuriam."
50. Tested on the aforesaid principles, it can safely
be concluded that the judgment in S. Swvigaradoss,
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as far as the second principle is concerned, is per
incuriam.
51. In the instant case, the appellant got married to
a Christian lady and that has been held against him.
It has also been opined that he could not produce
any evidence to show that he has been accepted by
the community for leading the life of a Hindu. As far
as the marriage and leading of Hindu life are
concerned, we are of the convinced opinion that, in
the instant case, it really cannot be allowed to make
any difference. The community which is a recognised
organisation by the State Government has granted
the certificate in categorical terms in favour of the
appellant. It is the community which has the final
say as far as acceptance is concerned, for it accepts
the person, on reconversion, and takes him within its
fold. Therefore, we are inclined to hold that the
appellant after reconversion had come within the fold
of the community and thereby became a member of
the Scheduled Caste. Had the community expelled
him the matter would have been different. The
acceptance is in continuum. Ergo, the reasonings
ascribed by the Scrutiny Committee which have been
concurred with by the High Court are wholly
unsustainable."
45. The facts in the cited case are that the
appellant's great grandfather belongs to 'Hindu Pulaya'
community. His son Chothi embraced Christianity and
accepted a new name, i.e., Varghese who married Mariam
who originally belonged to 'Hindu Ezhava' and later on
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converted to Christianity. From the wedlock, three sons
namely, Varghese, Yohannan and Paulose were born.
Paulose is father of the appellant, got married to
Kunjamma who was a Christian. The appellant was born
on 03.01.1960. Sometime in the year 1984, at the age of
24 converted himself to Hindu religion and changed his
name that of K.P. Manu. On the basis of the conversion,
he applied for a caste certificate to Akhila Bharata
Ayyappa Seva Sangham. After conversion, the appellant
had obtained certificate from the community concerned on
05.02.1984. Then, the Tahasildar who was authorised to
issue the caste certificate, had issued the necessary caste
certificate. Then, one Sri. Kumar Menon invoked
jurisdiction of the Scrutiny Committee challenging the
grant of caste certificate to the appellant. The Scrutiny
Committee had cancelled the said caste certificate.
Therefore, on the basis of the report of Scrutiny
Committee, the State Government took action and
directed the employer of the appellant to remove him from
service and recover a sum of Rs.15,00,000/- towards
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salary paid to him. Then, the case went to High Court and
High Court has upheld the report of the Scrutiny
Committee and decision taken for removal of the appellant
from service. In this facts and circumstances, the Hon'ble
Apex Court had issued directions as above stated.
46. This Court has read over all the judgments and
considered principle of law laid down by the Hon'ble Apex
Court and this Court. In the case on hand, the question is
whether the suit filed by the plaintiff for seeking
declaration that to declare the caste as Thevar caste and
mother tongue as Tamil is maintainable in the suit, is to be
considered. In the present case, the plaintiffs have not
sought for any benefits of belonging to SC or ST or OBC. It
is not a prayer of the plaintiffs that to declare his caste
belongs to SC or ST or OBC. What the plaintiffs simply
filed a suit that he originally belong to Hindu religion
recognized by caste of Thevar and later on, converted to
Islam religion and changed his name. Thereafter, the
plaintiffs have once again got reconverted to Hinduism
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after undergoing procedure of Shuddhi ceremony as it is
prevailed under the Hindu religion. Therefore, what
endeavour the plaintiff is making that by claiming that
originally he was belonging to Thevar community and
therefore, for identification purpose with the community,
he desires to enter the name of caste in school records as
Thevar in respect of his children i.e., plaintiffs No.3 and 4
and recognize their mother tongue as Tamil.
47. Learned Additional Advocate General with
reference to the Act 1990 argued that it is District Caste
Verification Committee only to pass order with regard to
caste or religion but not by the Civil Court. The argument of
learned Additional Advocate General cannot be accepted that
the Civil Court does not have jurisdiction for the reasons of
perusing the object and reasons and preamble of the Act,
1990.
48. The object and reasons of the Act, 1990 is as
follows:
"An Act to provide for the reservation of
appointments or posts in favour of the members
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of the Scheduled Castes, Scheduled Tribes and
other Backward Classes in the State Civil
Services and establishments in the Public sector
and in admission to Universities and to the
Educational Institutions established or
maintained or aided by the State Government.
Whereas, the members of the Schedule
Castes, Scheduled Tribes and other Backward
Classes of citizens are not adequately
represented in the services or posts in the State
Civil Services and establishments in Public sector
and among the students admitted to the
Universities and to Educational Institutions
established or maintained or aided by the State
Government;
And whereas, it is expedient to provide in
favour of them such reservation;"
49. As per the preamble, object and reasons of the
Act, 1990, it is fundamental for providing reservation to the
appointments on admission or posts in favour of the
members of SC, ST and OBC in the State Civil Services and
establishments in Public sector and admission to the
Universities and to the Educational Institutions. Further, the
reasons for enacting the Act, 1990 is that the members of
SC, ST and OBCs' are not adequately represented in the
services or posts in the State Civil Services and
establishments in public sector and among other students
admitted to the universities and to the educational
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institutions. Therefore, for giving effective representations to
SC, ST and OBC as per aspirations of Constitution of India
for providing reservation, this Act, 1990 is enacted.
Therefore, the sum and substance of enacting the Act, 1990
is to provide reservations to SC, ST and OBCs. Therefore,
under this Act, 1990, the Commissioner has issued circulars.
50. But, in the present case, the plaintiffs are not
claiming any reservations or benefits for claiming
reservations or admission in any universities etc.,. Simply
what the plaintiffs are seeking is declaration that they belong
to Thevar caste and their mother tongue is Tamil. Therefore,
to include in the school records, while admitting plaintiffs
Nos.3 and 4 as their caste is Thevar and mother tongue is
Tamil. Except for this purpose, there is no pleading or prayer
in the suit. Therefore, in this regard, the defendants have
failed to understand the whole scheme of suit framed by the
plaintiffs. Even, still the District Caste Verification Committee
will have power to make verification and scrutiny of the caste
of the plaintiffs in case if plaintiffs make claim reservations
on their caste. What the prayer in the suit is to recognition of
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plaintiffs with their community/caste as Thevar and mother
tongue is Tamil. In future if plaintiffs No.3 and 4 make claim
of any reservation on the basis of their caste, then the
District Caste Verification Committee shall have power in this
regard, but at this stage itself scuttling the civil right of the
plaintiffs declining the prayer of the plaintiffs at threshold is
violation of fundamental right of the plaintiffs not only civil
rights. The plaintiffs have filed suit for exercising their civil
right to make identification of themselves with their
caste/community in which community they are born. It is not
at the hands of the plaintiffs to choose their
caste/community by birth, but it is right of plaintiffs to
recognize themselves to a particular caste/community
according to their birth. Therefore, in this regard, the Trial
Court has misconceived itself in rejecting the plaint and
dismissing the suit. It is still duty cast on the plaintiffs to
prove that they belong to Thevar caste/community and their
mother tongue is Tamil, but before that rejecting the plaint
and dismissing the suit, is violation of right of the plaintiffs.
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51. In India, every person born to parents belongs
to certain caste or community as per their patents
caste/community and the recognition is by birth, thus,
choosing caste/community is not at the hands of the
person who is born. Therefore, when the plaintiffs claiming
to be his parents were belonging to Thevar community,
therefore, after reconversion to Hinduism, they desired to
be recognized as belonging to Thevar community and
mother tongue is Tamil. This is only simple prayer made
by the plaintiffs. When in this country, recognition of
particular person is with caste/community, then to
continue to be recognized with that particular caste or
community is also his fundamental right. Therefore, for
exercising this right, in order to recognize plaintiffs
themselves belonging to Thevar caste has filed the suit to
include their caste as Thevar caste in school records.
Accordingly, sought for relief of declaration by filing the
suit. The plaintiffs are not claiming in the suit in the prayer
in the suit that the Thevar caste belongs to SC or ST or
OBC. Whether the Thevar caste belongs to SC or ST or
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OBC that is different domain to be examined by the
District Caste Verification/Scrutiny Committee as per
provision of the Act of 1990 and its allied rules. The
Scrutiny Committee/Verification Committee decides the
question whether the particular caste is coming within the
Schedule Castes or Schedule Tribes or Other Backward
Classes based on the materials/evidence to be place
before it.
52. In our country, no person shall be remained in
a neutral, independent of any caste or community, unless,
it is choice by that person to remain neutral. Therefore, in
this reality in life and legal position, the defendants are
mis-conceived of the fact and misinterpreting the law in
this regard have erroneously contended that the suit is not
maintainable. The defendants are correct if the plaintiffs
are claiming the benefit of caste and are attempting to
take any admission or employment on the basis of the
caste. But it is the case of the plaintiffs that after
reconverting to Hindu religion, by pleading that they
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originally belong to Thevar caste and include the caste
name as Thevar in the school records and the mother
tongue as Tamil is the only prayer in the suit filed by the
plaintiffs. Thus, in this way, the suit filed is very well
maintainable as per Section 9 of the CPC. In KUMARI
MADHURI PATIL's6 case (supra) and in DAYARAM's7
case (supra), what is held by Hon'ble Apex Court
regarding ouster of jurisdiction of Civil Court as per
Section 9 of CPC is against the order passed by the
Scrutiny Committee/Verification Committee, the suit is not
maintainable and also for claiming relief in the suit that
such particular caste is coming within the category of SC
or ST or OBC, the suit is not maintainable. But in the
present case, the plaintiffs are claiming in the suit that
they belong to Thevar caste by birth and their status as
they belong to Thevar caste was eclipsed for the
interregnum period after conversion to Islam religion and
till reconverting to Hindu religion and after reconverting to
Hindu religion, the said eclipse was removed. Hence,
attained the original recognition of Thevar caste by birth.
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This is the only prayer made in the suit. Therefore, in this
regard the trial Court has misconstrued the factual matrix
and reality involved in the present case and in the cited
case but has erroneously held that the suit is not
maintainable. Therefore, the suit filed by the plaintiffs
according to the facts pleaded and prayer made therein is
very well maintainable.
53. In the suit, it is burden on the plaintiffs to prove
whether they belong to Thevar caste/community or not by
producing evidence before the Civil Court in the suit. But
at threshold, rejecting the plaint before deciding the suit
whether they belong to Thevar caste or not is scuttling the
civil rights of the plaintiffs, which is illegal. Therefore, the
plaintiffs are here still to establish the fact that they
belong to Thevar community and the Civil Court is yet to
receive the evidence and decide the case on its merit. But
before that, scuttling the civil rights of the plaintiffs is not
correct by rejecting the plaint. Therefore, the order passed
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by the trial Court is liable to be set aside. Accordingly, I
answer point Nos.1 and 2 in the affirmative.
54. The duty of the District Caste
Scrutiny/Verification Committee constituted under the
provisions of the Act of 1990 comes into picture only when
the plaintiffs No.3 and 4 are making claim that they belong
to either SC or ST or OBC. Then it is for the Scrutiny
Committee/Verification Committee to make enquiry and to
decide in accordance with law as per principle of law laid
down by the Apex Court and as per the Act of 1990. But
before that, inclusion of caste as Thevar in the school
records is yet to be decided in the suit. It is burden on the
plaintiffs to prove that they belong to Thevar caste and
their mother tongue is Tamil.
55. Therefore, for the above discussed reasons the
order passed by the trial Court is liable to be set aside and
remanded to the trial Court for considering the case on its
merits as per law. Hence I answer point No.2 in the
affirmative.
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56. Hence, I proceed to pass the following:
ORDER
i. The appeal is allowed.
ii. The order dated 03.07.2019 passed in
O.S. No.7457/2018 on the file of XIX
Additional City Civil and Sessions Judge,
Bangalore City, is hereby set aside.
iii. The matter is remanded to the trial
Court for fresh consideration in
accordance with law after receiving
evidence by both the parties according
to the pleadings made and relief claimed
in the suit.
iv. No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
RKM: para 1 to 19 & 37 to end.
SRA: para 7, 20 to 36 and 46 to 48.
