Madras High Court
C.Sathyavathy vs The District Collector on 28 June, 2022
W.P.No.15429 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE K.KUMARESH BABU
W.P.No.15429 of 2022 and
W.M.P. No.14577 of 2022
C.Sathyavathy .. Petitioner
-vs-
1.The District Collector,
Union Territory of Puducherry,
Puducherry.
2.The Deputy Collector (Revenue) North,
Department of Revenue & Disaster Management,
Puducherry.
3.The Tahsildar cum Executive Magistrate,
Taluk Office, Puducherry. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorarified Mandamus
calling for the records of the second respondent in Proceeding
No.1266/DC(R)N/A2/2022/ 1208 dated 09.05.2022 and quash the
same as illegal and consequently direct the second respondent to
issue caste certificate of Puducherry origin.
1/16
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W.P.No.15429 of 2022
For Petitioner :: Mr.V.Vasanthakumar
For Respondents :: Mr.Balamurugan,
Government Pleader
Pondicherry for R1 to 3
assisted by
Mr.J.Kumaran,
Additional Government Pleader
ORDER
(Order of the Court was made by T.RAJA, J.)
Mrs.C.Sathyavathy, the petitioner herein has filed this writ
petition, challenging the Proceedings No.1266/DC(R)N/A2/2022/1208
dated 09.05.2022 issued by the Deputy Collector (Revenue) North,
Department of Revenue & Disaster Management, Puducherry, the
second respondent herein and seeking a direction to the second
respondent to issue caste certificate of Puducherry origin.
2.Learned counsel appearing for the petitioner, assailing the
impugned order, submitted that the petitioner, who belongs to Hindu
Adi Dravida Caste, which comes under the Scheduled Caste, was born
and bought up at Union Territory of Puducherry and has been working
as a Staff Nurse at the General Hospital, Puducherry. While so, she
married to one Mr.Kesavan, who was employed as a Doctor at
General Hospital at Cuddalore District and belonged to Thiruvarur
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W.P.No.15429 of 2022
District, Tamil Nadu, on 21.03.2003 and after their marriage, they
were stayed at petitioner's parents home at Puducherry and out of
their wedlock, they were blessed with a girl child on 26.06.2004,
namely K.Namitha. Learned counsel for the petitioner further
submitted that the petitioner, after coming to know that her husband
Kesavan was already married, filed a petition in M.O.P. No.458 of
2001 for dissolution of marriage on the ground of cruelty and
desertion before the Family Court, Puducherry and by judgment and
decree dated 18.12.2021, the Family Court, Puducherry allowed her
petition by dissolving the marriage, held between the petitioner and
her husband and now the petitioner has been staying along with her
daughter.
3.Learned counsel appearing for the petitioner further
submitted that when the petitioner applied for issuance of community
certificate for her daughter K.Namitha to pursue her higher studies,
the Tahsildar cum Executive Magistrate, Taluk Office, Puducherry, the
third respondent herein issued a community certificate of Hindu-
Pallan, migrated from the State of Tamil Nadu quoting the reference
of the community certificate of her estranged husband on
15.11.2021. When the petitioner's domicile was Union Territory of
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W.P.No.15429 of 2022
Puducherry, her daughter, who was also born at Puducherry, pursued
all her academic education from Kinder-garden to Higher Secondary
at Puducherry and the marriage between the petitioner and her
husband was legally dissolved by the competent Court viz. Family
Court, Puducherry by judgment and decree dated 18.12.2021 in
M.O.P. No.458 of 2021, the third respondent ought not to have issued
the community certificate to her daughter certifying that the
petitioner belongs to Hindu-Pallan, migrated from the State of Tamil
Nadu because neither the petitioner nor her daughter, at any point of
time, stayed at her husband/ father's resident respectively, namely at
Thiruvarur or Tamil Nadu, except for few occasions on account of
family functions. Since there was no relationship between the
petitioner and her husband, the origin and community status of the
petitioner should be taken into account and the origin of the
petitioner's husband cannot be taken into account, which is not
legally permissible.
4.Adding further learned counsel for the petitioner submitted
that in a similar and identical situation, a Division Bench of this Court
in the case of P.Udhayanilavan vs. The Secretary, Government of
Puducherry, Puducherry and two others vide order dated 21.10.2019
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W.P.No.15429 of 2022
passed in W.P. No.15630 of 2019, observing whether the petitioner's
father therein migrated before or after on 05.03.1964 is of no
significance as 'Hindu Adi Dravidar' Community is a Scheduled Caste
Community both under the Constitution (Pondicherry) Scheduled
Caste Order 1964 and under the Constitution (Scheduled Caste) 1950
and considering the community and domicile status of the petitioner
therein, has directed the concerned authority to issue the community
certificate as 'Hindu Adi Dravidar' Scheduled Caste Community. Since
the case on hand is squarely covered to the above case, following the
above order passed by this Court on 21.10.2019 in W.P. No.15630 of
2019, this writ petition may be allowed.
5.Mr.Balamurugan, learned Government Pleader, assisted by
Mr.J.Kumaran, learned Additional Government Pleader, appearing for
R1 to R3, urging this Court to dismiss this writ petition, submitted
that the reliance placed by the learned counsel for the petitioner on
the order dated 21.10.2019 passed by the Division Bench of this
Court in W.P. No.15630 of 2019 cannot be relied upon, since the
Hon'ble Apex Court has granted an order of stay dated 04.01.2020 in
S.L.P.
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W.P.No.15429 of 2022
No.8105 of 2020, preferred by the Government of Puducherry against
the said order.
6.Learned Government Pleader also submitted that it is an
admitted case that after the marriage was solemnised between the
petitioner and her husband Kesavan on 21.03.2003, a female child
namely, K.Namitha was born on 26.06.2004 and the petitioner's
daughter and her husband were also frequently visited Thiruvarur,
whenever any family function held in the said place, but, only after
the year 2021, the marriage solemnised between the petitioner and
her husband was dissolved by virtue of the decree and judgment
dated 18.12.2021 passed by the Family Court, Puducherry in M.O.P.
No.458 of 2021. Although the relationship between the petitioner and
her husband has come to an end by obtaining decree for divorce from
the competent Family Court, Puducherry, the relationship between
the daughter and her father has not come to an end and the same
still continues as the daughter Namitha is having legal right to inherit
the ancestral property of his father Kesavan. It is an admitted case of
both parties that their daughter was born out of their wedlock of
Kesavan and the petitioner. Learned Government Pleader, drawing
our notice to the impugned order dated 09.05.2022, passed by the
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W.P.No.15429 of 2022
third respondent, submitted that the Department of Revenue and
Disaster Management vide Memorandum No.9565/C2/Rev/2000 dated
10.11.2000 have instructed the Certificate issuing Authorities to
follow only the guidelines prescribed in G.O. Ms. No.28 dated
02.02.1977 of Government of Puducherry, while deciding the
migrant/origin status in respect of Scheduled Caste Certificates and
caste should be decided based only on the residential status of
applicant's father on the crucial date i.e. 05.03.1964 i.e. the date of
Notification of the Providential Notification and not on the residential
status of mother. Since the above G.O. Ms. No.28 dated 02.02.1977
has not been questioned or set aside or modified till date by any
Court of law, based on the same, the present impugned order has
been issued holding clearly that the petitioner is not entitled to get
community certificate based on her community status, although her
origin is Puducherry. Learned Government Pleader further contended
that when the Government of Puducherry has passed the above G.O.
making it clear that wherever the husband migrates from outside
Puducherry and contracts marriage with a woman, domiciled at
Puducherry, the community status of the
woman will not be taken into account and only the community status
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W.P.No.15429 of 2022
of the father or husband alone will be taken into account.
7.We also find merits on the submissions made by the learned
Government Pleader. It is an admitted case that the petitioner and
her husband belong to Puducherry and Thiruvarur at Tamil Nadu
respectively and out of their wedlock, on 21.03.2003, a female child
namely, K.Namitha was born on 26.06.2004 and the daughter and
father were also frequently visiting Thiruvarur, whenever any family
function held in the said place, but, only after the year 2021, the
marriage solemnised between the petitioner and her husband was
dissolved by virtue of the decree and judgment dated 18.12.2021
passed by the Family Court, Puducherry in M.O.P. No.458 of 2021.
After dissolution of marriage, the petitioner approached the
respondents seeking community certificate for her daughter to pursue
her higher studies. Since the third respondent on 15.11.2021 issued
the community certificate of Hindu-Pallan, migrated from the State of
Tamil Nadu quoting the reference of the community certificate of her
estranged husband, she filed an appeal before the second
respondent, challenging the said order and for issuance of caste
certificate of Puducherry origin. As the appeal was dismissed by
impugned order dated 09.05.2022, she is before this Court with the
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W.P.No.15429 of 2022
above prayer.
8.Considering the similar issue, one of us (T.R.J.) has held in
W.P. No.8813 of 2022 dated 21.06.2022 as under:
9. Admittedly, the fact remains that the
petitioner's father was initially issued with a Community
Certificate of Pondicherry based on which he got
appointment as Technical Assistant in 1988 in Pondicherry
Housing Board. Thereafter, it appears that the
Community Certificate issued to the petitioner's father
was cancelled by the revenue authorities during the year
1992 with a direction to his father to produce evidence to
show that he is a native of Puducherry for which the
petitioner's father could not produce any evidence
because the petitioner's grandfather and his predecessors
were residing in poromboke land. The petitioner's father
Mr.P.I.Ashokaraamasekar filed W.P.No.16315/2018
challenging the order dated 13.06.2018 passed by the
Chariman-cum-District Magistrate, Collectorate, Revenue
Department, Puducherry and the same came to be
dismissed by a Division Bench of this Court by order dated
02.11.2018. Further, as relied on by the learned
Government Pleader (Pondicherry) for the respondents 1
and 2 herein, in paragraph 22 of the said order, when the
address of the petitioner's father was shown at Vanur,
unless it is established by direct documentary evidence
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W.P.No.15429 of 2022
that the petitioner's grandfather came from Vanur to
Puducherry and as such, he is residing at Puducherry on
05.03.1964 being the date on when the Constitution
(Pondicherry) Scheduled Caste Order came into force, the
petitioner's father cannot succeed in that writ petition. It
goes without saying that the petitioner is only a migrant
from Tamil Nadu to Puducherry. Therefore, they are not
entitled to get the benefit of the reservation given to
origin of Scheduled Caste as they are entitled to get the
benefit of Scheduled Caste migrant. In this regard, it is
relevant to extract paragraph No.22 of the order passed in
W.P.No.16315/2018 here under:
''22. Moreover, learned Government Pleader (Puducherry)
also produced documents of the year 1949 and 1977 on
the file of Sub-Registrar, Vanur, which shows that the
petitioner's father has purchased a property in 1949 at
Poothurai in Tamil Nadu and in the sale deed, the address
of the petitioner's father was shown at Vanur. Likewise, in
the settlement deed executed in favour of the mother of
the petitioner in the year 1977, the address of the mother
was shown as Poothurai. Thus, it is admitted that prior to
1964, the petitioner has no direct documentary evidence.
Unless it is established by direct document evidence that
the petitioner's father came from Vanur to Puducherry,
and as such, he is a resident of Puducherry as on
05.03.1964 being the date when the Constitution
(Pondicherry) Scheduled Castes Order came into force,
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W.P.No.15429 of 2022
the petitioner cannot succeed in this Writ Petition. In fact,
all the documents produced on the side of the
respondents, show that the petitioner and his family
members were only natives of Vanur Village of Tamil
Nadu.''
10. Further, in this regard, it would be appropriate
to refer Articles 341 and 342 of the Constitution of India,
which reads as follows:
"Article 341: (1) The President may with respect to any
State or Union territory, and where it is a State, after
consultation with the Governor thereof, by public
notification, specify the castes, races or tribes or parts of
or groups within castes, races or tribes which shall for the
purposes of this Constitution be deemed to be Scheduled
Castes in relation to that State or Union territory, as the
case may be.
(2) Parliament may by law include in or exclude
from the list of Scheduled Castes specified in a notification
issued under clause (1) any caste, race or tribe or part of
or group within any caste, race or tribe, but save as
aforesaid a notification issued under the said clause shall
not be varied by any subsequent notification.
Article 342: (1) The President may with respect to any
State or Union territory, and where it is a State, after
consultation with the Governor thereof, by public
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W.P.No.15429 of 2022
notification, specify the tribes or tribal communities or
part of or groups within tribes or tribal communities which
shall for the purposes of this Constitution be deemed to
be Scheduled Tribes in relation to that State or Union
territory, as the case may be.
(2) Parliament may by law include in or exclude from
the list of Scheduled Tribes specified in a notification
issued under clause (1) any tribe or tribal community or
part of or group within any tribe or tribal community, but
save as aforesaid a notification issued under the said
clause shall not be varied by any subsequent notification."
A perusal of the Article 342 (1) and (2) clearly
shows that the Parliament may by law include in or
exclude from the list of Scheduled Tribes specified in the
Notification issued under clause (1) any caste, race or
tribe or part of or group within any caste, race or tribe.
Therefore, it is not open to the Tahsildar-cum-Executive
Magistrate, Villianur to make any change in the
Presidential Order. Once the Presidential Order issued in
the Union Territory of Puducherry specifies that the
Scheduled Castes residing in Puducherry as on 1964 are
entitled to get the benefit thereof, moreover, the order
dated 02.11.2018 passed in W.P.No.16315/2018 having
said that any Government Order or Notification cannot
alter or change any of the Presidential Notification dated
05.03.1964 and that since the petitioner's father has
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W.P.No.15429 of 2022
failed to establish that his father is a resident of
Puducherry, this Court had held that the impugned order
of cancellation of the Community Certificate given to the
petitioner's father by the Chairman-cum-District
Magistrate cannot be found fault with. Therefore, it
clearly shows that when the petitioner's father failed to
get any Community Certificate from the Government of
Puducherry, unless the Parliament issues a Notification
including the petitioner's caste as Scheduled Caste, this
Court cannot direct the 1st respondent to issue a
Community Certificate to the petitioner herein. Hence, we
cannot find fault with the impugned order of the 1st
respondent.
9.A perusal of the above order shows that the petitioner therein
is only a migrant from Tamil Nadu to Puducherry and he is not
entitled to get the benefit of the reservation given to origin of
Scheduled Caste as he is entitled to get the benefit of Scheduled
Caste migrant. The order further states that when the petitioner's
father failed to get any Community Certificate from the Government
of Puducherry, unless the Parliament issues a Notification including
the petitioner's caste as Scheduled Caste, this Court cannot direct the
1st respondent to issue a Community Certificate to the petitioner
therein.
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W.P.No.15429 of 2022
10.In the light of the above, although the wife, who got divorce
from her husband, is the origin of Puducherry and her husband is the
origin of Tamil Nadu, the community status of the mother will not be
taken into account and only the community status of the father or
husband alone will be taken into account. Whenever any request is
made for grant of community certificate to child or children of the
father and mother, if the husband/ father is a migrant from outside
the Puducherry, his community status alone will be taken into
account, although the mother's origin is Puducherry.
11.In this regard, the Government of Puducherry has issued a
Government Order in G.O. Ms. No.28 dated 02.02.1977 to follow the
guidelines prescribed in the above G.O., while deciding the migrant/
origin status in respect of Scheduled Caste Certificates. On the basis
of the above said G.O., the impugned order has been issued to the
petitioner dismissing the appeal filed by the petitioner. It is useful to
refer para 8 of the impugned order as under:
8.AND WHEREAS, the Department of Revenue and
Disaster Management vide Memorandum
No.9565/C2/Rev/2000 dated 10.11.2000 have instructed
the Certificate issuing Authorities to follow only the
guidelines prescribed in G.O. Ms. No.28 dated 02.02.1977
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W.P.No.15429 of 2022
of Government of Puducherry, while deciding the
migrant/origin status in respect of Scheduled Caste
Certificates and caste should be decided based only on the
residential status of applicant's father on the crucial date
i.e. 05.03.1964 i.e. the date of Notification of the
Providential Notification and not on the residential status
of mother.'
12.Since the above G.O. Ms. No.28 dated 02.02.1977 has not
been questioned or set aside or modified till date, the impugned
order passed by the second respondent cannot be found fault with.
Therefore, we do not find any merit in this writ petition. Accordingly,
this writ petition stands dismissed. However, there is no order as to
costs. Consequently, W.M.P. No.14577 of 2022 stands closed.
(T.R.,J.) (K.B.,J.)
28.06.2022
vga
Note: Issue order copy on 30.06.2022
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W.P.No.15429 of 2022
T.RAJA, J.
and
K.KUMARESH BABU,J.
vga
To
1.The District Collector,
Union Territory of Puducherry,
Puducherry.
2.The Deputy Collector (Revenue) North,
Department of Revenue & Disaster Management,
Puducherry.
3.The Tahsildar cum Executive Magistrate,
Taluk Office, Puducherry.
W.P.No.15429 of 2022 and
W.M.P. No.14577 of 2022
28.06.2022
https://www.mhc.tn.gov.in/judis
