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K. Viswanathan Vs. the Govt. of Tamil Nadu and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtChennai High Court
Decided On
Judge
Reported inAIR1985Mad139
ActsConstitution of India - Articles 14, 15, 150, 154, 335 and 342
AppellantK. Viswanathan
RespondentThe Govt. of Tamil Nadu and ors.
Appellant AdvocateS. Govind Swaminathan, Adv. for N. Kannadasan and ;G. Ramaswamy, Advs. for M. Veluswamy, Adv.
Respondent AdvocateAdv. General for the Govt. Pleader and ;T.S. Subramanyan, Adv. ;for K. Elango and ;S. Jayakumar
Cases ReferredBoss v. K. P. Krishnan Nair
Excerpt:
constitution - validity - articles 14, 15, 150, 154, 335 and 342 of constitution of india - appeal questioning constitutional validity of government order - by said order power to issue community certificate to members of particular schedule tribe community was vested only in revenue divisional officer instead of tahsildar - appellant contended that impugned order violative of articles 14, 15 and 29 (2) - purposes for which impugned order passed was to prevent issue of wrong community certificate and to ensure that certificate issued to persons requiring certificate as belonging to that particular schedule community - article 15 (4) enables state government to make special provision for advancement of any socially and educationally backward classes of citizen - held, fundamental rights.....orders:according to the existing instructions of the government of india (ministry of home affairs), new delhi, among others, in the list of authorities empowered to issue community certificate in respect of scheduled castes and scheduled tribes, revenue officers not below the rank of tahsildar, besides sub divisional officers of the area where the candidate and/or his family normally resides are competent to issue such certificates.2. with a view to prevent the issue of wrong community certificates, government after careful consideration, direct that, in order to ensure that the issue of community certificates to persons requiring certificates as belonging to konda reddi scheduled tribe community is clone with care and caution, the powers for the issue of community certificates to the.....
Judgment:
ORDER

S:

According to the existing instructions of the Government of India (Ministry of Home Affairs), New Delhi, among others, in the list of authorities empowered to issue community certificate in respect of Scheduled Castes and Scheduled Tribes, Revenue Officers not below the rank of Tahsildar, besides sub Divisional Officers of the area where the candidate and/or his family normally resides are competent to issue such certificates.

2. With a view to prevent the issue of wrong community certificates, Government after careful consideration, direct that, in order to ensure that the issue of community certificates to persons requiring certificates as belonging to Konda Reddi Scheduled Tribe community is clone with care and caution, the powers for the issue of community certificates to the above persons shall be vested only with the Revenue Divisional Officers hereafter, instead of Tahsildars who shall observe the following criteria as proof of belonging to the said community.

(i) Production of sale deep s, other documents, where evidence is available that he/she belongs to the Konda Reddi community.

(ii) Relatives of those who have produced evidence mentioned in item 0) above.

3. Further Government Order that Officers issuing false community certificates will be liable for disciplinary action.

(By Order of the Governor)T. Anjani DayanandCommissioner and Secretary to Government....

6. It is this order which has been impugned by the appellants in their writ petitions which were disposed of by the learned Judge. The attack on this order, which has been challenged before the learned Judge as well as before us, is substantially two-fold. The first ground is that the order is clearly discriminatory in character, inasmuch as, while members of other scheduled tribes are entitled to have certificates issued by the Tahsildar, members of the scheduled tribe of Konda Reddi Community have alone been singled out for being required to obtain certificates from a superior revenue officer, namely, Revenue Divisional Officer, for which there is no basis and that therefore the order is clearly violative of the equality clause in Art. 14 of the Constitution of India. The second ground is that, when the Government of India had nominated different officers, including the Tahsildar, by the communication dated 5th Aug. 1975, the State Government did not have the power to depart from the communication of the Government of India and any departure from this letter dated 5th Aug. 1975, would be wholly illegal and unjustified.

7. Before the learned Judge the main ground on which the impugned Government Order was sought to be supported was that, after the Scheduled Tribes Order came to be amended by Central Act 108 of 1976, which came into force on 27-7-1977, the Reddiars, especially Oluvu Reddiars, had made attempts to get themselves classified as Konda Reddiars, just to avail themselves of the benefits which were available to scheduled tribes, such as admission to professional colleges or higher education and reservation in appointments, and this was sought to be done by producing community certificates showing that these Oluvu Reddiars were Konda Reddis, and these certificates were procured from the Tahsildars. It is also the stand of the State Government that as a result of similar attempts made by some students of the Reddiar community in Kerala they had succeeded in gaining entry in medical colleges by producing false certificates as belonging to Konda Reddis. The State Government relied on a report of the Director of Harijan and Tribal Welfare, who, on the basis of a study of Konda Reddis and Reddiars in Tamil Nadu, submitted a report to the Government in April, 1980, in which, among others, he reached the following conclusions:

1. It is a fact that Reddiars belonging to most affluent community have been grossly misusing successfully the privileges which should normally and rightly to go Kondareddis.

2. Already many Reddiars have got various benefits, i.e., jobs and admission to professional courses against Konda Reddis and punitive action should be taken against them, after calling for reports of Heads of Departments and other appointing authorities, if deemed fit.

3. Based on the instructions of the Government of India that competent authorities should be instructed to issue certificate only to those belonging to Kondareddis keeping in view their instructions in the matter, suitable instructions may be issued authorising an officer of the Revenue Department not lower in rank than a Deputy Collector to issue certificates after very careful and detailed enquiry.

8. It is the stand of the Government that, -when the impugned Government Order was issued, there was no intention on the part of the State Government to discriminate against or mete out any hostile treatment to Konda Reddis, but that the whole object of the impugned Government Order was to safeguard the interests of Konda Reddis which was in jeopardy, because members of the Reddiar community were obtaining false community certificates which would prejudice the interests of -Persons who genuinely belong to the scheduled tribe of Konda Reddis. The report of the Director of Harijan and Tribal Welfare has been relied upon, because the Director had suggested that the authority to issue community certificates should be vested only with Deputy Collectors. According to the State Government, there was no other community in which such large-scale misrepresentation had been made and false certificates issued, with the result that action in the nature of nominating a superior revenue officer was found necessary only in the case of Konda Reddi community.

9. While dealing with the Central Government's communication dated 5th Aug. 1975, and the challenge to the impugned Government Order, namely, that the State Government was not entitled to make any departure from what has been done by the Central Government, though the stand originally taken in the counter affidavit was that the other Revenue Officers, who were nominated in the communication of 5th Aug. 1975, were not prevented from issuing certificates, the learned Advocate-General has now stated before us that the effect of the impugned Government Order is that the Revenue Divisional Officer is the only officer who is entitled to issue community certificates to the members of the Kendal Reddi community. In other words, according to the learned Advocate-General, the other authorities who are mentioned in the Central Government's communication dated 5th Aug. 1975, will not now be entitled to issue community certificates, but that the community certificate will be issued only by one authority namely, the Revenue Divisional Officer.

10. In a further affidavit filed on behalf of the writ petitioners, the stand taken by the State Government, that members of the Reddiar community were obtaining false certificates from Tahsildars, was disputed, and it was alleged that there is not even one instance shown where such false certificates were issued and it was followed up by the Government by taking any action against the erring official or against the person who got the certificate.

11. The learned Judge accepted the stand of the State Government that there were cases where members of the Ruddier community had obtained false certificates to which they were not entitled, and, according to the learned Judge, he was not called upon to ascertain the veracity of the reports or material which had weighed with the State Government. The learned Judge took the view:

'This is not a case of complete dearth of materials or the State acting on a whimsical or arbitrary basis without any rationale or objective to back it.'

The judgment of the learned Judge shows that the learned Advocate-General produced before him the relevant files, and on a perusal of those files, the learned Judge observed:

'From them I find that the State Government did receive reports and complaints about*persons falsely claiming themselves as belonging to Konda Reddi community and there has been a considerable anxiety and apprehension expressed by representations of individuals and body of individuals in this regard.'

The issuance of the impugned Government Order was found by the learned Judge as being in the nature of a preventive measure. According to the learned Judge, the wisdom of entrusting the power to issue community certificates with Revenue Divisional Officers need not be belittled, and when it was urged before the learned Judge that it is quite possible that even Revenue Divisional Officers would be misguided, the learned Judge took the view that, 'The higher in the listed hierarchy is definitely better than the lowest therein. When it was argued before the learned Judge that it was possible that Revenue Divisional Officers may be unapproachable, causing undue hardship to those who seek those certificates, the learned Judge observed:

If instances of Revenue Divisional Officers unwarrantedly making themselves scarce and unapproachable or refusing and declining to issue the community certificates on untenable or inadequate basis are to be found and if such instances are justifiable, definitely the persons concerned will not be denied the right to set in motion the due process of law to vindicate their rights.'

On a review of the circumstances of the case the learned Judge found that the assigning of the duty of issuing community certificates in respect of the Konda Reddi community to Revenue Divisional Officers could not, on the facts placed before him, be characterized as unreasonable and lacking in intelligible differentia and the nexus between the classification and the object to be achieved.

12. One of the grievances made before the learned Judge was with regard to the impugned Government Order requiring the production of sale deeds and other documents, where evidence was available that the applicant belonged to the Konda Reddi community, which, according, to the appellants, was a very onerous condition. At that stage the learned Advocate-General made a statement, on instructions from the State Government, that the Stat~ Government will not insist 'on the criteria of proof set out in para 2 of the impugned Government Order.' Acting on this statement made before this Court, the State Government has now issued an Order, G. 0. Ms. No. 9 dated 3-1-1983, by which the State Government clarified the position by stating

'The Government also direct that the production of documentary evidence such as sale deeds referred to in sub-paras (i) and (ii) of para 2 of the Government Order 1139 dated 23-3-1982 read above need not be insisted upon and that the community certificate may be issued after due local enquiry to the satisfaction of the enquiring officer that the claim of the applicant that he/she belongs to Konda Reddi Community is correct.

In view of this Government Order, the grievance, which was made before the learned Judge now does not survive.

13. Since the learned Judge negatived the challenge to the impugned Government Order, these two writ appeals were filed by the respective appellants.

14. The argument founded on Art. 14 of the Constitution has been put in different forms by three different counsel appearing before us. Mr. Govind Swarninathan appearing for the appellant in W. A. No. 783 of 1982, wanted to read the impugned Government Order not as being intended to see that corrupt officials did not deal with the matter of issuing community certificates, and, according to the learned counsel, while members of all other scheduled tribes were treated alike in the matter of having the facility of obtaining the certificate from the Tahsildar, the scheduled tribe of Konda Reddi community alone had been taken out from that category, not because there was anything special about Konda Reddis as such, but merely because the officials of the State Government had issued certificates to wrong persons. It was argued that members of the Konda Reddi community cannot be treated as a class by themselves, if the class consists of all scheduled tribes, because Konda Reddis still continues to be a scheduled tribe.

15. Mr. Subramaniam, appearing on behalf of the intervener the Tamil Nadu Konda Reddis Sangam of Bhavani Taluk in Periyar district, wanted to trace the genesis of the impugned Government Order, to a report

made by the Collector of.1nichy, in which the said collector had observed that there was no member of the Kendal Reddi community in Trichy district. This report, according to the learned counsel, has been quashed in several decisions, some of which have been rendered by one of us (Sathiadev, J), and, according to the learned counsel, the very foundation on, which the impugned Government Order was based, having ceased to subsist, the order impugned in the writ petition was liable to be quashed. While adopting the arguments of Mr. Swain Nathan, it was further contended by Mr. Subrainaniam. that there is no evidence anywhere on record to show that the Government really pursued the matter relating to the issue of false certificates, inasmuch as no action has been taken against any Tahsildar, who was guilty of issuing false community certificates and no particular instance of issuance of false certificate has been shown. The effect of the impugned Government Order, according to Mr. Subramaniarn, is that Konda Reddis have come to suffer because they have now to approach a superior revenue officer, who is inaccessible to a large number of members of the scheduled tribe of Konda Reddis, who are essentially illiterate and backward. According to the learned counsel, the impugned Government Order does not serve the purpose of advancement of the scheduled tribes, but it is actually to their detriment. The learned counsel contended that there is no basis for the classification of Konda Reddis into one group and picking them out from the list of other scheduled tribes and being asked to obtain the certificate from the higher revenue officer.

16. Mr. G. Ramaswami, the learned counsel appearing on behalf of the appellant in W. A. No. 344 of 1983, while challenging the impugned Government Order on the ground of violation of Art. 14 of the Constitution, contended that, if the object of discrimination was to prevent some persons posing themselves as Konda Reddis and getting community certificates, that was no ground for requiring a genuine Konda Reddi to go to a revenue Divisional Officer and that this had no nexus with the object with which the impugned Government Order was issued.

17. Substantially the challenge is very simple. The challenge is that each member of a scheduled tribe included in the Scheduled Tribes Order has a right to be treated alike in the matter of obtaining proof of their status as a scheduled tribe in the same manner as is prescribed for the member of any other scheduled tribe. Undoubtedly, the requirement of obtaining a community certificate from the Revenue Divisional Officer is made by the Impugned Government Order only in respect of Konda Reddis. It has to be stated here that nowhere in the petition have any mala fides been alleged on the part of the State Government for picking out Konda Reddis for this different treatment. It must also be said in fairness to the learned counsel that no male fides on the part of the Government have been canvassed before us and the arguments have turned mainly on the violation of guarantee of equality Linder Art. 14 of the Constitution of India.

18. So far as Art. 14 of the Constitution of India is concerned, it is too late in the day to dwell again on the basic requirements of Art. 14, because the basic nature of the guarantee of equality has been discussed in several decisions of the Supreme Court. We need not therefore refer to the catena of cases commencing from Dalmia's case : [1959]1SCR279 , and we think it is enough if we refer to the latest decisions of the Supreme Court in In re Special Courts Bills, 1978, : [1979]2SCR476 and D. S. Nakara v. Union of India : (1983)ILLJ104SC , both of which have been relied upon by Mr. Subramaniam.

19. The two tests which have now become classic to determine whether a classification is permissible, having regard to Art. 14 of the Constitution of India are (i) the classification must be founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group; and (ii) such differentia must have a rational relationship with the object sought to be achieved by the law. It is now well established that, when the question of classification and the validity thereof comes before the Court, the Court has to bear in mind the facts and circumstances of the case in judging the validity of the classification. Vide - State of Jammu and Kashmir v. Triloki Nath Khosa : (1974)ILLJ121SC .

20. The principles which govern the determination of the question as to whether Art. 14 of the Constitution has been violated or not, have therefore to be applied, having regard to the facts of a particular case. Regard must be had to the exigencies which had to be met by the impugned action. By the process of classification, therefore, the State has the power of determining who should be regarded as a class for purposes of legislation on the impugned measure and in relation to a law enacted on a particular subject and it is obvious that such classification is, in some degree, likely to produce some inequality. In in re Special Courts Bill, 1978, : [1979]2SCR476 , in para 73, one of the propositions (proposition No. 6) laid down by the Supreme Court is as follows:

'The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognize even degree of evil, but the classification should never be arbitrary, artificial or evasive,'

21. These principles were once again reiterated in D. S. Nakara v. Union of India : (1983)ILLJ104SC cited supra, and the relevant propositions in in re Special Courts Bill, 1978. : [1979]2SCR476 including proposition No. 6, extracted earlier, were reproduced verbatim in para 12 of the decision. The earliest and classic decision in Dalmia's case : [1959]1SCR279 , which laid down the two basic tests was also referred to in para II of the judgment. Therefore the principles which should be borne in mind while determining the question whether an impugned action or provision violates the guarantee of equality under Art. 14 of the Constitution of India are now well established. Each case has to be considered in the light of those principles. The real question in each case is thus whether, having regard to these well-established principles, on the facts of the case before the Court, the challenge to an order or provision of law stands substantiated or not. Such a question cannot be decided on academic considerations and no decision on the question relating to the violation of Art. 14 can be reached without ascertaining the facts of the particular case, which alone will enable the Court to ascertain what was the object of the impugned measure taken by the public authority or the State Government. This will give an indication as to whether the classification is based on any intelligible differentia and whether that differentia has a rational relation with the object to be achieved by the impugned action. The Scheduled Tribes Order of 1950 contains the names of several tribes and Konda Reddis are one such tribe. For the purpose of employment in posts under the Central Government, a certificate from the Tahsildar in proof of the fact that the person concerned belonged to a particular scheduled tribe was sufficient, according to the letter of the Central Government dated 5-8-1975. The question, however, is whether it is not open to the State Government to take notice of the fact that a large number of persons, who did not belong to the scheduled tribe were making attempts to obtain such certificates from the Tahsildars, who had also granted such certificates, and this had ultimately resulted in the members of the Konda Reddi tribe being denied the benefits conferred on them and to which they alone were entitled as members of a scheduled tribe. The question is, the State Government to be blind to the fact that there is a class of people who claim to belong to the tribe of Konda Reddis, when they are not and those claims are made on the basis of certificates issued by the Tahsildar. The very fact that the State Government has thought it fit to issue the impugned Government Order taking away the power to issue such certificates from the Tahsildar clearly indicates that the State Government had clearly taken notice of the fact that persons who belonged to the Reddiar community had been claiming the same benefits as the Konda Reddi community and they could easily obtain such certificates from the Tahsildars, when they are legally not entitled to those certificates. In other words, the State Government has taken notice of the fact that Tahsildars cannot be trusted with issuing such certificates, because it is possible that Reddiars found it easy to persuade the Tahsildars to give them certificates evidencing that they belonged to Konda Reddi community. It is not possible for us to accept the contention that merely because the State Government has not taken any action against the erring Tahsildars, the State Government could not take away the power of the Tahsildar and vest it with some superior officer. We are not entitled to go into the sufficiency of the materials on which the State Government took the decision to vest the power to issue the community certificate in a higher Revenue i Officer. The learned Judge was right when he said that a scrutiny of the materials, in the form of complaints, could not be made by him. In any case, we have a very glaring example of the mischief which such a certificate is capable of, if it is issued to a wrong person, such as a person belonging to the Reddiar community, when the election of a candidate to the State Assembly had to be set aside by the Supreme Court. Apart from the report of the director of Harijan and Tribal Welfare, which the State Government had taken note of, and we have no reason to doubt the correctness of his conclusions, the -learned 1udge was right when he pointed out that, on the basis of such false certificate issued by after Tahsildar, a Hindu Reddiar has contested a seat to the State Assembly from a constituency which was reserved for the Scheduled Tribe. He has referred to the decision of the Supreme Court in R. Palanimuthu v. Returning Officer : [1984]3SCR10 , in which the elected candidate did not in fact belong to Konda Reddi community, but, as the judgment points out belonged to the 'Hindu Reddiar community' but was enabled to contest the election only on the basis of the certificate of the Tahsildar issued to show that the said elected person was a Konda Reddi, when he was in fact not one. That election, though it was upheld by this Court, had to be set aside by the Supreme Court That decision has been relied upon by the learned Advocate-General before us also. The judgment in that case contains observations, which, in our view, are enough to justify the impugned Government Order, though, undoubtedly, the Government Order was issued long before the judgment. Those observations are of special significance, because they are made by a learned Judge who has special knowledge of the problems of this particular part. Those observations are as

Follows (P. 910):

'If attempts are made by persons not belonging to any of these communities at securing the special benefits to which these backward classes, scheduled castes and scheduled tribes students and candidates are entitled under the rules in force in that State, and there is no proper scrutiny of the claim of such persons that they belong to these classes, the benefits which are intended by the State to go to these classes will be taken away by those to whom they are not really intended.

Therefore, so long as these benefits are continued for the aforesaid classes, strict scrutiny has to be made by the State Government machinery and the fraud which may be committed on the State and those classes of people for whom these benefits are really intended by those for whom those benefits are not meant by producing false community certificates has to be stopped by the Government taking appropriate steps. At the same time, it must be ensured that it is not made difficult for persons really belonging to these classes obtaining the necessary community certificates from those authorized to issue the same. A copy of the judgment shall be forwarded to the Chief Secretary to the Government of Tamil Nadu.' Mr. Subramaniam. has contended that the other two learned Judges have not concurred with those observations and have expressly refrained from expressing any opinion on those observations quoted above, by adding a separate paragraph in the Judgment. We are referring to those observations, not as laying down any law, but to show that the learned Judge has also suggested that steps need to be taken in order to prevent persons making false claims as members of a scheduled tribe community, when they do not really belong to that community or scheduled tribe.

22. The question which naturally must arise is, even after it was pointed out to the State Government by the report of the Director of Harijan and Tribal Welfare and by the complaints which were received by the Government and which were produced before the learned Judge, who decided the writ petitions, that members of the Reddiar community were trying to infiltrate into the community of Konda Reddis via the certificates of the Tahsildar, only for availing of the benefits given to the scheduled tribe of Konda Reddis, would the State Government be justified in ignoring all those facts of life and perpetuating the fraud that was being perpetrated to the prejudice of those who genuinely belonged to the Konda Community? It does not require much to see that admission gained to a professional college or appointment to a service in the State obtained on the basis of such a certificate by a person who is not entitled to it, because he does not belong to the scheduled tribe, has the effect of some other person who was legitimately entitled to a seat in an educational institution on the basis of reservation or to a public employment on the basis of reservation being deprived of that opportunity. It was therefore clearly necessary to safeguard the interests of the Konda Reddy Community by providing for the issue of community certificates by an officer of higher rank. We are therefore unable to appreciate the arguments which have been vehemently pressed before us that what has been done by the State Government by issuing the impugned Government Order is to the detriment of the community of Konda Reddis. We do not think that there is any other way of looking at this Government Order than that it is intended to safeguard the interests of the genuine Konda Reddis and to protect them' from being deprived of their opportunities by virtue of reservation by imposters trying to snatch away those opportunities.

23. If, on these facts, we apply the twin tests referred to earlier, we fail to see what challenge under Art. 14 can ever be made to this Government Order. Undoubtedly Konda Reddi community has been picked out from a large number of other scheduled tribes in the Scheduled Tribes Order, but it had to be picked out because there was another competing forward community which wanted to take advantage of the privilege, which was intended for the scheduled tribe of Konda Reddis. The object of this Government Order clearly is to protect Kendal Reddish. There was therefore a rational basis for picking out Kendal Reddis for being treated differently. It is also clear that the object of safeguarding the interests of Konda Reddis could be achieved, only by taking away the power of the Tahsildar to issue the certificate. There is, in our view, nothing in Art. 14 of the Constitution which prohibits such a course. Indeed, the authority could be anybody else, but all that the State Government was apparently interested in, was i that it should not be the Tahsildar.

24. The fact that no Tahsildar has been prosecuted or dismissed because of the alleged misconduct of issuing false certificates, does not affect the fact that there were complaints that certificates were being wrongly issued. Protecting genuine Konda Reddis from the attempts of some other community depriving them of their legitimate rights and taking punitive action against the defaulting Tahsildar or the person who has obtained a certificate wrongly are two different things. These are two different jurisdictions of the State Government. One jurisdiction is to punish the employee who is guilty of misconduct the other jurisdiction is a constitutional jurisdiction of safeguarding the interests of scheduled tribes. The two are not dependent upon each other, and each one can be exercised independently by itself.

25. The argument that the Revenue Divisional Officer is inaccessible, and therefore it will work hardship is an argument which is foreign to Art. 14. So far as Art. 14 is concerned, the only question is, whether such an action is permissible or not. We do not see why, if occasion demands and circumstances require, an entirely different authority, such as the Revenue Divisional Officer, or any other officer, should not be entrusted with the task of issuing the community certificate. These certificates have a special value. They are passports to many fields, which are otherwise accessible with great difficulty; and if such certificates are to be issued by higher authorities, it is difficult to see how a person, who claims it, can make any grievance that it is difficult for him to obtain it. The remedy to redress such a grievance, if it is true, may be something else, but surely not a challenge under Art. 14. If the State Government has entrusted these duties to the Revenue Divisional Officers, we must assume that the State Government has issued instructions to those officers that they must be accessible to the persons who seek the certificates and they should not be harassed or should not find it difficult to obtain such certificates. We have no doubt that, if the State Government have not issued any such instructions, they will take necessary steps to see that the Revenue Divisional Officers Are available and accessible to the persons who seek such certificates.

26. A large number of authorities have been cited before us in support of the challenge on the ground of violation of Art. 14 of the Constitution. Having regard to the settled principle on the scope of Art. 14, as we have stated, we do not think it necessary to deal with each one of those authorities. But in fairness to the learned counsel for the appellants and intervener, we may briefly notice those authorities. Mr. Goovinda Swarninathan has referred to the decision of the Supreme Court in Sanjeev Coke . : [1983]1SCR1000 , in which the Supreme Court has observed (in para 26) that the validity of legislation is not to be, judged merely by affidavits filed on behalf of the State, but all the relevant circumstances which the Court may ultimately find, and more especially by what may be gathered from what the legislature has itself said. Relying on the decision of the Supreme Court in Laxman Siddappa Naik v. Kattimani Chandappa Jampanna : [1968]2SCR805 . Mr. Subramaniarn wanted to contend that the Collector of Trichy was not right in making the statement in his report that there is no member of the scheduled tribe of Konda Reddi in Trichy District; and, on the basis of this decision, Mr. Subramaniam wanted to contend that, even if there is one Konda Reddi anywhere in the State, he would be entitled to the benefit of the Scheduled Tribe Order. On this there is no dispute. We have not gone into the question whether it was, the report of the Collector of Trichy which was responsible for this order, because we find that there is enough material in the affidavit, which was discussed by the learned Judge, on which the action taken was more than justified.

27. Reference was made to the decision of the Supreme Court in S. L. Sachdev v. Union of India AIR 1981 SC 411. It was a case of some onerous conditions being laid down in the matter of promotion of persons who originally belonged to a different cadre, but bad merged themselves into one cadre. The Supreme Court held that this was not permissible and was violative of Art. 14 of the Constitution. The decision, in our view, is not very relevant for the purpose of this case.

28. The decision in Om Prakash v. State of Jammu And Kashmir : [1981]2SCR841 was cited, It was a case of application of Art, 14 of the Constitution, on the facts of that, case. We were referred to the decision in Ramakrishna Singh Ram Singh v. State of Mysore AIR 1960 Mys 338, where the action of the Mysore Government in 'making a classification in 1959 based on the 1941 census, was held to be arbitrary.

29. Now, in the instant case, -the learned Advocate-General has invited our attention to what, according to him, was a sudden spurt in the families of Konda Reddis between the census of 1961 and the census of 1971. But we do not think that it was a very relevant circumstance on which we could judge the validity of the impugned Government Order. It is possible that it might have led the State Government to suspect that some people were claiming themselves to be Konda Reddis, But that by itself would not be very relevant, because the action can be substantiated and justified on more reliable and relevant materials in the form of complaints relating to the issue of wrong certificates.

30. Reference was made to the decision of the Supreme court in Lakshman v. State of Madhya Pradesh : [1983]3SCR124 , where again the decision turned on the facts, and the question was, whether cattle belonging to people from Madhya Pradesh could be treated differently from the cattle belonging to areas outside Madhya Pradesh, and such a classification was held to be arbitrary.

31. An argument was advanced that no other community has been deprived of its right to obtain a certificate from the Tahsildar and that should be enough to create an infirmity in the impugned order. We have, however, the affidavit of the State Government in which it has been clearly stated that there is no other community in which large-scale misrepresentation and issue of false community certificates have been brought to the notice of the Government, except in the case of Konda Reddis. In the face of this statement, it is difficult for us to see how the fact that no other communities have been deprived of the right to obtain certificates from the Tahsildar can be of any relevance.

32. Having considered these arguments advanced before us, we are not satisfied that there is any infraction of Art. 14 of the Constitution by the impugned Government Order.

33. The Next challenge which is required to be considered is, the challenge on the ground that the Central Government having specified several officers in the letter dated 5th Aug. 1975, it was not open to State Government to make any change in that list of officers. Now, before we consider that argument which is sought to be supported with reference to the provisions of Arts. 339(2), 342, Entry 97 of List I of the Seventh Schedule, and Arts. 256 and 257 of the Constitution, it will be convenient to ascertain the nature and scope of the communication dated 5th Aug, 1975 and the impugned Government Order, in the context of the relevant constitutional provisions. In the Constitution we have part XVI which deals with special provisions relating to certain classes. Arts. 330 to 334 deal with reservation of seats in the Lok Sabha and State Legislature. Art. 335 deal with claims of scheduled castes and scheduled tribes to services and posts. That Article provides that the claims of the members of the scheduled castes and scheduled tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. Arts. 336 and 337 which deal with the Anglo Indian Community are relevant for our purpose. Art. 338 deals with special officer for scheduled castes and scheduled tribes to be appointed by the President. Art. 331) deals with the control of the Union over the administration of scheduled areas and the welfare of the scheduled tribes. It requires the President to appoint a Commission to report on the administration of the scheduled areas and the welfare of the scheduled tribes in the States, at the expiration of ten years from the commencement of the Constitution. He can also do so before the expiration of the ten years. Art. 339(2) reads as follows: -

'The executive power of the Union shall extend to the giving of directions to a State as to the drawing up and execution of schemes specified in the direction to be essential for the welfare of the scheduled tribes in the State.'

We shall deal with this Article a little later. The Presidential Order dealing with scheduled tribes is issued under Art. 342, and it contains a list of tribal communities, and admittedly Konda Reddis are included in that list. Art. 335 is the specific Article which provides for the claims of members of the scheduled castes and scheduled tribes to be considered in making appointments to services and posts in connection with the affairs of the Union or of a State-. Now two other articles need to be mentioned. So far as appointments to public offices are concerned, there is a specific provision in Art. 16(4), which provides that nothing in that Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. The other relevant article is Art. 15(4), which provides that nothing in that Article or in Cl. (2) of Art. 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. art. 29(2) refers to admission to any educational institution maintained by the State or which is receiving aid out of State funds. This Article provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. So far as scheduled tribes are concerned, facilities to them can be made available not only under Art. 335 so far as services and posts under the Union or the State are concerned; facilities can also be made available to them under Art. 15(4) which, it cannot now be disputed, is considered as a proviso or exception to Art. 15(l) (See : AIR1963SC649 ).

34. Now the communication issued by the Central Government on 5-8-1975 is only in respect of persons seeking employment to posts and services under the Central Government. Those persons must belong to scheduled castes and scheduled tribes. Therefore the Communication dated 5th Aug, 1975 is of a very limited application. As we read it, it has the effect of declaring that so far as posts and services under the Central Government are concerned, if a member of a scheduled caste or scheduled tribe wants to seek employment to those posts or services under the Central Government, he can obtain certificate from any one of the category of officers mentioned at items 1 to 5 in the list of authorities. In accordance with this circular, a certificate issued by a Tahsildar is enough for the Central Government, and, having regard to the terms of the letter dated 5th Aug. 1975, for the purpose of seeking employment to posts or services under the Central Government, a candidate need not necessarily have a certificate from a higher Revenue Officer. It is not in dispute that the State Government has forwarded these instructions to the appropriate authorities, who are specified in the communication dated 5th Aug. 1975. Even according to the State Government, these instructions were adopted, followed and implemented, for the propose for which they were issued. The impugned Government Order does not refer to any particular purpose for which these certificates are to be issued. Though it has now been argued before us by the learned Advocate-General that, -after the issue of the impugned Government Order, no person below the rank of a Revenue Divisional Officer is authorised to issue the certificate, it was not possible for the learned Advocate General to show to us as to how and under what authority the State Government could either amend or supersede the communication dated 5th Aug, 1975. For the purpose of employment under the State for propose of taking advantage of the additional facilities which may be provided for the scheduled tribes, it may be permissible for the State Government to specify the authorities, whose certificates alone the State Government will accept. But the State Government cannot impose on the Central Government an obligation to accept only the certificate of the Revenue Divisional Officer, when the communication dated 5th Aug, 1975 is still in force, and it permits certificates, inter alia, of a Revenue Officer not below the rank of a Tahsildar. Nothing has been shown to us as to how, in so far as employment to posts and services under the Central Government is concerned, the State Government can specify that the Revenue Divisional Officer alone will issue the certificate. The scope of - the Certificates issued by the Officers named in the communication dated 5th Aug. 1975, and by the Revenue Divisional Officer acting in pursuance of the Government Order dated 23rd Mar, 19K must therefore be exclusive of each other. In other words, if the State Government can prescribe the authority only for the limited purpose of the certificate which the State Government will deem it proper to treat as sufficient proof of the community of the person obtaining the certificate, so far as the Central Government is concerned, so long as the communication dated 5th Aug, 1975, stands, the Officers named therein will be bound to issue the certificates, unless the State Government is in a position to persuade the Central Government to amend the list of authorities to issue the certificates by the communication dated 5th Aug, 1975. *The communication dated 5th Aug, 1975, and the impugned Government Order must therefore operate in different fields: the impugned Government order will operate only in the State field, and the communication dated 5th Aug, 1975, will operate only in respect of posts and services under the Central Government. The Government of India has issued a Brochure on 'Reservation for Scheduled castes and scheduled Tribes in Services' which is a compilation of the several directives and orders made from time to time with regard to reservation for Scheduled Castes and Scheduled Tribes. In Chapter 19 of the Brochure the Central Government has clearly directed that 'the Public Sector Undertakings, Statutory and Semi-Government Bodies, etc., under the control of the Government, have also been asked to make reservation for Scheduled Castes and Scheduled Tribes in their services on the lines of the reservations in services under Government by separate instructions, as mentioned in the following paragraphs'. In that chapter, separate instructions with regard to Public Sector Undertakings, Statutory and Semi Government Bodies have been specified. It is, therefore, clear that the authorities specified by the Central Government in their letter dated 5-8-1975 will also be entitled to issue the community-certificate for employment under the Public Sector Undertakings, Statutory and Semi-Government Bodies and Voluntary Agencies receiving grants-in-aid from the Government. In the same brochure detailed instructions have been issued as to the verification of claims of Scheduled Castes and Scheduled Tribes in Chapter 14. In this Chapter, paragraph 14.3 reads as follows:

'An appointing authority may, if it considers necessary for any reason, verify the claim of a candidate through the District Magistrate of -the places where the candidate and/or his family ordinarily resides. If after appointment in any particular case, the verification reveals that the candidate's claim was false, his services may be terminated in accordance with the relevant rules/order.'

35. It. this is the true nature and scope of these two documents, then we fail to see any justification for the contention of the learned Advocate General that, even if a person wants to apply for posts or services under the Central Government, the only Revenue Officer who will issue the certificate is the Revenue Divisional Officer. Any Officer, not below the rank of a Tahsildar, will, so long as the Communication dated 5th Aug, 1975, stands, is bound to issue the certificate, if it is demanded on the footing that the person wants to apply for or seek employment to posts or services under the Central Government. Conversely, the State Government may decline to treat the Tahsildar's certificate valid, if it is intended to be used for the purposes which are exclusively within the control and power of the State Government. In this we do not find any incongruity, because the two authorities are constitutionally different. Their fields of activity are different, and if each one of them wants to specify the kind of proof necessary for the purpose of their respective fields of activity, there is nothing in law which prevents them from doing this. We must therefore reject the contention of the learned Advocate General that, even if a person wants to apply for a post or service under the Central Government, he must still obtain a certificate from the Revenue Divisional Officer. Having regard to the true nature of these two documents and the time which we have taken the argument which has been very vehemently advanced before us on behalf of the appellants that the document dated 5th Aug., 1975, is a law, which cannot be interfered with or amended or changed by the State Government does not seem to be of much substance. The reliance placed upon Art. 339(2) of the -Constitution both by Mr. Subramaniam and by Mr. Ramaswami appear to us to be totally misconceived. Art. 339(2) undoubtedly stated that the executive power of the Union shall extend to the giving of directions to a State as to the drawing up and execution of schemes specified in the direction to be essential for the welfare of the scheduled tribes in the State. Now the executive power of the Union under Art. 73, by its very terms, extends to matters with respect to which Parliament has power to make laws. Art. 339(2) is a further enabling provision which specifically deals with the exercise of the executive power of the Union for the purpose of the welfare of the scheduled tribes in the State. The manner in which this power is to be exercised is regulated by the terms of Art. 339(2) itself. This power to give directions is restricted to the drawing up and execution of schemes. The Scheduled tribes referred to in Art. 339(2) are the scheduled tribes which are enumerated in the Order issued under Art. 342, but the essential requirement for ascertaining whether a particular action of the Union of India is one which falls within Art. 339(2) is to find out whether it relates to the drawing up and execution of schmu&4&itthe; welfare of the scheduled Tribe~ in'the7State. One difficulty, which is in the way of the present appellants in canvassing the nature of the document dated 5th Aug, 1975, is that, the Union Government, which is the author of the document, is not a party to the writ proceedings. Determining the nature of a document of the Union Government behind its back is not warranted. If the union of India was before us, then it would have made its submission as to what is the nature of the document dated 5th Aug, 1975. Undoubtedly during the tendency of the writ petition a telex message was issued to the State Government, which has been reproduced by the learned Judge, which states that the document dated 5th Aug., 1975, is in the nature of administrative instructions. It is admittedly not a document which complies with the requirement of Art. 77(l), because it is not an action which is expressed to be taken in the name of the President. Though it is well established that, even though, on the face of it, the document does not show that action is taken in the name of the President, it is possible to ascertain, with reference to other evidence, whether a particular document is issued in the exercise of the executive power under Art. 77. There is no such material before us, nor has the document been put in issue in that form. It is not therefore possible for us to proceed on the footing that this is a document, which purports to have been issued under. Art. 73 read with Art. 77(l), read further with Art. 339(2) of the Constitution.

36. The Second difficulty is, there is nothing to show as to what the scheme is with regard to which, if at all, this document has been issued, Mr. Subramaniam has contended that it is quite possible that the document dated 5th Aug., 1975, which merely indicates to the State Government the number of authorities who will be entitled to issue the community certificate, must be relating to some scheme. Now we cannot proceed on any hypothetical consideration; the existence of a scheme has first to be established; then that scheme has to be in relation to the welfare of the scheduled tribes, and then alone it may be possible to refer the making of the direction with regard to such scheme to Art. 339(2) read with Art. 342. The same argument was advanced by Mr. Ramaswami, that the document must be read as being made in the exercise of the power under Art. 339(2). However, apart from the fact that we are not inclined to accept this contention, in our view, this does not become relevant at all, because so far as the State Government is concerned, the operation of the impugned Government Order must be restricted only to offices or facilities, which are under the control of the State Government.

37. The second argument of Mr. Ramaswami was that, if Art. 339(2) does not apply, then the impugned Government Order is hit by Art. 15(l). To this the answer of the learned Advocate General is that the impugned Government Order was issued in exercise of the power under Art. 15(4), and, therefore, according to the learned Advocate-General, the question of the impugned Government Order being in violation of Art. 15(l) does not arise. Mr. Ramaswarni has contended that Konda Reddis are being discriminated against only because of their caste as Konda Reddis, and that, therefore, Art. 15(l) which provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, has been violated. We have earlier dealt with at length with the nature and purport of the impugned Government Order, and though a special treatment has been given only to those who belonged to the scheduled tribe of Konda Reddis, it is difficult to see how, on the facts of this case, it can be contended that the discrimination was made merely on the ground of race or caste. We have pointed out the evil that was sought to be remedied or the evil that was sought to be. prevented, and if this evil affected only one of the many scheduled tribes that called for a remedy and in such a case it would be futile to contend that there is a violation of Art. 15(l). As a matter of fact, there is intrinsic evidence in the impugned Government Order itself in the form of recitals which spell out the purpose for which the impugned Government Order was passed. The object is 'to prevent the issue of wrong community certificates' and further to ensure that community certificates are issued to persons requiring certificates as belonging to Konda Reddi scheduled tribe community. If this is the purpose, then there is no question of this community being discriminated against merely on the ground of caste. The words of Art. 150) are that 'the State shall 'not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.' It is only where a race or caste is 'discriminated against' by being subjected to a separate hostile treatment that Art. 15(l) will be attracted. Here the treatment is not hostile at all. It is for the benefit of the Konda Reddi Community. Art. 15(4) clearly enables the State Government to make special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes. As already pointed out, once circumstances are established which require a special treatment, the only power of the State Government is to be found in Art. 15(4), and where a caste is covered by Art. 15(4), it will necessarily fall out of Art. 15(1). It is perfectly open to the State Government, in the exercise of its executive power, to issue administrative directions for the purposes mentioned in Art. 15(4). As pointed out by the Supreme Court in M. R.Balaji v. State of Mysore : AIR1963SC649 , when Art. 15(4) provides that the State Government can make a special provision contemplated there under, the special provision can be made by an executive order and legislation for that purpose is not necessary. In the same case it has also been held that Art. 15(4) have to be read as a proviso or exception to Arts. 15(1) and 29(2), and once the order is justified by the provisions of Art. 15(1). its validity cannot be impeached on the ground it violates Art. 15(1) or Art. 29(2). In the same case it was further pointed out that the fundamental rights guaranteed by the two provisions, Art. 15(1) and 29(2), do not affect the validity of the special provision which it is permissible to make under Art. 15(4).

38. The challenge therefore on the ground of violation of Art. 15(1) must also be negatived.

39. The decision in Kathi Raning v. State of Saurashtra : 1952CriLJ805 on which reliance was placed by Mr. Ramaswami in support of his contention that the impugned Government Order violates Art. 15(1), is not of much assistance to the learned Counsel, because in that decision itself it has been held that, if the action is saved by one or the other of the provisions to Art. 15, or Art. 16, then Art. 15(1) is not attracted.

40. Mr. Ramaswami referred to Entry 97 in List I of the Seventh Schedule, which is a residuary entry, in support of the contention that, if the document dated 5th Aug., 197-5, is not covered by Art. 339(2), then we must assume that the case is covered by the residuary Entry 97, which would enable the Parliament to legislate on a subject not covered by List 11 or List 111, and, therefore, according to the learned counsel, this document could not be interfered with by the State Government. Now, as already pointed out, the scope of the document dated5th Aug., 1975, and the scope of the impugned Government Order must be treated as being exclusive of each other. Once I hat is the view which we have taken, then the question whether that was made in exercise of the executive power which was, co-extensive with the legislative power under Entry 971 need not be considered, apart from the fact, as already observed, that there is nothing on record before us to show whether this document can really be treated as one under Art. 73 read with Art. 77.

41. Mr. Subratnaniam has referred us to a decision of Kerala High Court in R. S Boss v. K. P. Krishnan Nair AIR 1084 Ker 115, in which the learned Judge of the Kerala High Court has held that, once persons are classified as socially and educationally backward, the Government cannot pick and choose some among those classified as socially and educationally backward for the conferment of benefits of reservation in educational institutions or in Government service. It is difficult for us to see how this decision is relevant to the case before LIS. It is not the case of the appellants that members of other scheduled tribes are given any additional benefits of reservation in educational institutions or in Government service than the scheduled tribe of Konda Reddis or that some benefits of reservation are field back from the tribe of Konda Reddis. Really speaking, the impugned Government Order relates to a stage prior to the establishment of entitlement to the benefits of reservation. It is only for determining whether a person is entitled to the benefits or not that a procedural modality is laid down which is different from the process which is to be resorted to by members of other scheduled tribes. This has been done with the specific object of protecting the interests of Konda Reddis, as pointed out above, which we have found is not amenable to any attack on the ground of N violation of either Art. 14 or Art. 15.

42. The effect of this decision, therefore, is (i) that the circular dated 5th Aug., 1975, is wholly unaffected by the impugned Government Order, in so far as the authorities are specified therein for issuing community certificates to persons belonging to scheduled castes and scheduled tribes seeking employment to posts/services under the Central Government~ as well as in the services under the Public Sector undertakings, Statutory and Seri-Government Bodies under the control of the Central Government; 00 that, so far as employment in the services under the State Government are concerned. the State Government has the right to nominate and prescribe the appropriate authority or Officer for the Konda Reddi community, who will issue the community certificate; and (iii) that a certificate issued by the Tahsildar may not be accepted by the State Government, but, at the same time, the State Government cannot decline to authorise the Tahsildar to issue community certificates as required by the communication dated 5th Aug., 1975.

43. Substantially we find that the order of the learned Judge is correct, and, subject to what we have stated earlier, it does not need to be interfered with. Consequently, subject to the above observations, both the appeals are dismissed. There will be no order as to costs.

44. In both the appeals learned counsel made an oral request for leave to appeal to the Supreme Court. We do not think that this is a matter in which leave should be granted.

45. Leave refused.


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