TaxTMI 
TaxTMI 
2012 (8) TMI 1216
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....r alleging that the appellant is born to a couple of inter-caste marriage. Apparently, the mother of the appellant is the child of a Christian parents as her name was Jalaja P. Martin. Admittedly, she converted to Hindu--Sambavar by conversion in the year 1988. When the first respondent Tahsildar refused the Caste Certificate, the mother of the appellant approached Lok Ayukta and Lok Ayukta passed an order dated 29-8-2005 directing to issue a Scheduled Caste Certificate to the appellant's mother. After the same was rejected by Government Order, again the mother of the appellant applied for a certificate for her daughter. It was also rejected by order dated 20-6-2005. When the appellant's mother approached Lok Ayukta and got an order for issuing certificate indicating that they belong to Scheduled Caste Sambava Community, W.P. (C) Nos. 14956 of 2007 and 13930 of 2008 came to be filed before this Court by the State. 3. During the pendency of the Writ Petitions, a new Government Order dated 20-11-2008 came to be passed modifying the earlier order dated 20-6-2005. The two Writ Petitions came to be withdrawn by the Tahsildar on the ground that as per the new Government Order, a....
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.... conduct any examination by himself. According to the appellant's counter-affidavit filed in W.P. (C) No. 28730 of 2011, mother of the appellant had embraced Hinduism and thereby she had revived her Scheduled Caste status. According to her, after such conversion, appellant's mother was accepted back to the fold of the Sambavar Scheduled Caste Community. Her caste was not disputed or questioned before any forum. On earlier occasion, after a report from the Revenue Inspector, after investigation, the competent authority had certified that the appellant was living, following the customs and practice of Hindu--Sambavar Community. 1999 Circular of the Government alone has to be followed. There is no requirement for the authority to call for report from KIRTADS. No affidavit came to be obtained by the first respondent from the appellant's mother. The proceedings conducted by the first respondent Tahsildar was with undue haste having profane intention of the appellant, was the contention before the learned Single Judge. 6. According to them, having withdrawn W.P. (C) Nos. 14956 of 2007 and 13930 of 2008, the issue cannot be reopened. Therefore, the contention of the authority....
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....the first respondent authority, the appellant's mother and her sister had to approach the Lok Ayukta several times from 2004 onwards. Annexures A-2 to A-5, orders issued in 2004 by Lok Ayukta, indicate that they belong to Hindu--Sambavar, a Scheduled Caste. Similar orders came to be issued in 2007. Those orders were challenged before this Court by filing Writ Petitions, but the Writ Petitions were withdrawn without reserving liberty to approach the Court. Therefore, principles of constructive res judicata come into play. As there was high handedness and arbitrariness on the part of the first respondent, they had to approach Lok Ayukta. On the basis of the allegations contained in the complaint and the grievance of maladministration stated therein, the Lok Ayukta was competent to proceed with the matter, therefore, there was no justification in the observation of the learned Single Judge. With these averments they have sought for setting aside of the judgment of the learned Single Judge holding that the abuse of position as a public servant by the first respondent being complained, the Writ jurisdiction under Article 226 of the Constitution of India could not have been invoked b....
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....f which either of the parents belongs to scheduled caste/scheduled tribe should have a caste status either that of the mother or that of the father. Articles 15(4), 16(4) and 16(4A) are intended to remove all handicaps and disadvantages suffered by members of Scheduled Caste/Scheduled Tribes. Suppose a neglected or deserted SC/ST woman brings up her child, with the same handicaps, suffering, disadvantages, attached to that caste/tribe, whose father belong to non SC/ST, it is too harsh to deny the benefit to that child on the mere reason that the child's father belongs to non Scheduled Caste/Scheduled Tribe Caste. Person who claims the status of Scheduled Caste/Scheduled Tribe of his/her father or mother has to establish that on his/her birth, he she is subjected to same social disabilities and also following the same customs and traditions and the community has accepted that person to its fold. 21. The Government, vide order G.O. (Ms.) No. 25/2005/SCSTDD dated 20-6-2005 directed the competent authorities to issue SC/ST Community Certificates to the children born out of inter-caste married couples as per the caste community of the father subject to the conditions of acceptance....
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....there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same proceedings. If we refer to Order XLVII of the Code (Explanation to Rule 1) review is not permissible on the ground that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment'. 32. Since the appellant never claimed exemption outside the ceiling area on the ground of cardamom pla....
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....fore the Full Bench of the Kerala High Court. 51. The High Court considered the decisions of this Court in a number of cases including Valsamma, Sobha Hymavathi Devi and Punit Rai and in para 21 of the judgment came to hold as follows: (M.C. Vasala's case, AIR P. 10) 21. The Government, vide order G.O. (Ms.) No. 25/2005/SCSTDD dated 20-6-2005 directed the competent authorities to issue SC/ST Community Certificates to the children born out of inter-caste married couples as per the caste/community of the father subject to the conditions of acceptance, customary traits and tenets stipulated in Punit Rai's case and Sobha Hymavathi Devi's case. The above Government Order would also be applicable to the children born out of inter-caste married couple if the mother belongs to SC/ST Community. Subject to the above direction, rest of the directions contained in G.O. (Ms.) No. 11/05 and G.O. (Ms.) No. 25/2005 would stand. We are in agreement with the view taken by the Kerala High Court. *** 54. In view of the analysis of the earlier decisions and the discussion made above, the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a....
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....aste certificate. In 1992 it was granted and later in 2004 and 2005 it was rejected. Therefore, she had to approach this Court. 13. It is not in dispute that the first respondent Tahsildar is the competent authority to issue community certificate. Though the learned Single Judge observes, there was no complaint as such, leading to passing of orders at Exhibit P-4, factually it is incorrect, as the appellant herein did approach Lok Ayukta in complaint No. 1928 of 2010. Based on this complaint, Exhibit P-4 was passed by Lok Ayukta. It is also not in dispute that from time to time, Government Orders are issued how community certificates have to be issued. It is also not in dispute, under the special enactment as already stated above, enquiry, appeal and revision to the Government are provided. In other words, if anyone is aggrieved by the orders of the competent authority, they can approach the appellate authority under Section 12 of the Act. The Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 is a special Statute governing issuance of community certificate and Government Orders as stated above are issued from time to time giving....