Madras High Court
Union Of India vs D.Vidjeacoumary on 19 July, 2023
W.A.No.2241 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.07.2023
CORAM :
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MR.JUSTICE P. B.BALAJI
W.A.No.2241 of 2010 and
M.P.No.1 of 2018
1. Union of India, rep. by Secretary (Revenue),
Government of Puducherry.
2. The Tahsildar, Taluk Office, Oulgaret,
Puducherry. ... Appellants
//vs/
D.Vidjeacoumary ...
Respondent
Prayer: Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order passed by this Court in W.P.No.9771/2007 dated 02.09.2010.
For Appellants : Mr.A.Tamilvanan, Addl.Govt.Pleader
Puducherry
For Respondent : No appearance
Page 1 of 9
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W.A.No.2241 of 2010
JUDGEMENT
(Judgment of the Court was delivered by D.KRISHNAKUMAR, J.)
This Intra Court Appeal has been filed by the Puducherry
Government, challenging the order passed by this Court in
W.P.No.9771/2007 dated 02.09.2010, by which, the order passed by the
appellant dated 19.02.2007, rejecting the claim of the writ petitioner to
issue Schedule Caste (Origin) certificate to her daughter, stating that it
can be issued only based on the residential status of the father, more
specifically, who is resident in Puducherry before the crucial date i.e.
05.03.1964, not on the residential status of mother, was set aside.
2. According to the appellant/Department, the Writ Court has passed
the order, following the decision of the Division Bench of this Court in
W.A.No.1326/2005 dated 30.03.2010. Further, the order passed in the
above said writ appeal was challenged before the Hon'ble Supreme Court in
Civil Appeal No.9082/2014, and by judgment dated 19.04.2023, the Hon'ble
Supreme Court has confirmed the order passed by the Division Bench,
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W.A.No.2241 of 2010
however, granted liberty to the Department that the question of law is open
to the appellant to decide the issue in appropriate cases. Based on the above
decision of the Hon'ble Supeme court, the learned Additional Government
Pleader would submit that the judgment of the Division Bench in
W.A.No.1326/2005 has not become final and hence, the order passed by the
Writ Court in the present matter requires for reconsideration.
3. Further, to support his contentions, the learned Additional
Government Pleader, has relied upon the decision of a Division Bench of
this Court in W.P.No.2865/2022 dated 22.06.2022, wherein, accepting the
contentions of the appellant, the writ petition was dismissed. He also invited
our attention to the paragraph No.10 of the above said decision, wherein, it
is held as follows.
10. The decision of the Apex Court in PUNIT RAI Vs. DINESH CHAUDHARY
(cited supra) lends support to the arguments of respondents. The Apex Court in
para 41 of judgment observes as follows.
Determination of caste of a person is governed by the customary
laws. A person under the customary Hindu Law would be inheriting
his caste from his father. In this case, it is not denied or disputed
that the respondent's father belonged to a Kurmi caste. He was,
therefore, not a member of Scheduled Caste. The caste of the father,
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W.A.No.2241 of 2010
therefore, will be the determinative factor in absence of any law.
Hence, in the light of the above decisions, it is clear as per customary Hindu law,
a person would be inheriting his caste from his father. The petitioner has not
produced any law or notification having force of law to say the petitioner is
entitled to inherit the caste of his mother. Admittedly in the caste certificate
issued to father of the petitioner, his father was treated as " migrant OBC
Vanniyar". The instruction issued by Government in memorandum
9565/C2/Rev/2000 dated 10.11.2000 for the purpose of deciding migrant/origin
status of the Schedule Caste candidates supports the arguments of respondent
that applicant's residential status shall be decided based on residential status of
father".
Therefore, he submitted that in the light of latest judgments passed by this
Court, the order passed by the Writ Court warrants reconsideration.
However, the learned Additional Government Pleader submitted before this
Court that the daughter of respondent has subsequently joined in the
Medical College under management quota and hence, the respondent is not
interested in contesting the present appeal. As such, there is no
representation on behalf of the respondent.
4. Considering the submission made by the learned Additional
Government Pleader that the respondent/ writ petitioner's daughter was
joined in the medical college under management quota, we are not inclined
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W.A.No.2241 of 2010
to decide the issue on merits, however, the same will be considered in
appropriate cases.
5. Before parting the order, it is necessary to discuss that, the
Government has passed G.O.Ms.No.28, Revenue Department, dated
02.02.1977, wherein, at Claus b(ii), it is stated as follows.
b) Cases of migration:-
i) ---
ii) Where a person migrates from one State to another, he can claim
to belong to a Scheduled Caste or a scheduled Tribe only in relation to the State
to which he originally belonged and not in respect of the State to which he has
migrated.
6. Subsequently, by way of a memorandum dated 10.11.2000, the
Government of Puducherry, Revenue Department, had issued instructions,
as extracted hereunder.
" In supersession of this Department's memorandum 2nd cited, the
certificate issuing authorities are hereby directed to follow only the guidelines
prescribed in G.O.Ms.No.28 dated 02.02.1977 while deciding the migrant/origin
status in respect of Scheduled Caste Certificates. It is informed that the
origin/migrant status of applicants for Schedules Caste certificates should be
decided based on only the residential status of applicants' 'father' on the crucial
dated 05.03.1964, and not on the residential status of the " mother".
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W.A.No.2241 of 2010
In this connection, complaints are received often that the certificate
issuing authorities have been demanding documentary evidence from the
applicants in respect of their fathers' residential status as on the crucial date and
refusing issue of certificates on the failure on the part of the applicants to
produce the same. It is hereby directed that in the event of the applicant's
genuine inability to furnish documentary evidence as discussed above, the
certificate issuing authorities should institute a formal enquiry to establish his or
his father's residential status and decide the case accordingly by drawing up
necessary proceedings. Admittedly, this will be a time-consuming step and
would put an enormous burden on the certificate issuing authority; yet, in the
interest of the public they should endeavor to undertake this task in an efficient
and transparent manner."
7. According to us, even though, the Division Bench of this Court in
its order dated 22.06.2022 in W.P.No.2865/2022, accepting the contentions
of the Puducherry Government and relying upon the above circular, has
decided the matter in favour of the appellant, (in which the father of the
applicant was a migrant OBC belonging to Vanniyar Caste, but, herein in
this case, the father as well as the mother of the girl belonged to Scheduled
Caste), it is not made clear by the appellant that whether the above clause
b(ii) of G.O.Ms No.28, Revenue Department dated 02.02.1977 is over
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W.A.No.2241 of 2010
ruled by the said Circular dated 10.11.2000 or not. Therefore, it requires
to revisit the above G.O.Ms.No.28 for examining the issue, in the light of
earlier and subsequent orders passed by this Court and to issue a Fresh
Guidelines to decide the migrant/ origin status in respect of Scheduled
Caste and Scheduled Tribes certificates based on the residential status
of applicants' "father" or "mother" or " applicants".
8. Accordingly, the appellant is directed to revisit the G.O.Ms.No.28
dated 02.02.1977 and to issue Fresh Guidelines. With the above direction,
this writ appeal is disposed of. No costs. Consequently, connected
miscellaneous petition is closed.
9. For reporting compliance, post the matter after six months.
(D.K.K.J.) (P.B.B.J.)
19.07.2023
Internet: Yes/No
Index : Yes/No
mst
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W.A.No.2241 of 2010
To
1. Union of India, rep. by Secretary (Revenue),
Government of Puducherry.
2. The Tahsildar, Taluk Office, Oulgaret,
Puducherry.
D.KRISHNAKUMAR, J.
and
P. B.BALAJI, J.
mst
W.A.No.2241 of 2010
https://www.mhc.tn.gov.in/judis
W.A.No.2241 of 2010
19.07.2023
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