Kerala High Court
P.Madhavan vs State Of Kerala on 28 May, 2008
Author: Koshy
Bench: J.B.Koshy, P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 195 of 2005(D)
1. P.MADHAVAN, PADINHAREKARA HOUSE,
... Petitioner
2. GEETHAKUMARI P., PADINHAREKARA HOUSE,
3. PANKAJAKSHY.P., PADINHAREKARA HOUSE,
4. RAGHAVAN.P., PADINHAREKARA HOUSE,
5. LEKHA.P., D/O.RAGHAVAN.P.,
Vs
1. STATE OF KERALA, REP. BY ITS
... Respondent
2. THE SCRUTINY COMMITTEE FOR
3. KIRTADS, REP. BY ITS DIRECTOR,
4. THE VIGILANCE CELL OF KIRTADS REP.
For Petitioner :SMT.V.P.SEEMANDINI (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :28/05/2008
O R D E R
J.B.KOSHY & P.N.RAVINDRAN, JJ.
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O.P.NO.14444 OF 2003
&
M.F.A.NO.195 OF 2005 (E)
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Dated this the 28th day of May, 2008
J U D G M E N T
KOSHY,J.
Both writ petition and appeal are filed by the five appellants. Appellants 1 to 4 are brothers and sisters and 5th appellant is the daughter of the 4th appellant. According to them, they belonged to Thandan community, which is recognised as Scheduled Caste. First appellant contested for Panchayat election in the year 1988 in a reserved constituency for Scheduled caste and he was elected as a Panchayat member. It is also submitted that earlier an enquiry was conducted and on the basis of which it was held that they are Thandans. But a Scrutiny Committee constituted under the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (Act 11 of 1996) held that they are not Thandans but Hindu OBC Ezhavas/Thiyyas and they cannot claim reservation benefits available to SC Community. Hence they filed this appeal.
O.P.NO.14444 OF 2003 & M.F.A.NO.195 OF 2005 (E) 2
2. Fifth appellant also filed writ petition, O.P.No.14444/03, when her admission was not considered in the M.B.B.S. Course for SC candidates. As per the interim order of this Court, she got admission and she is studying in the final semester of M.B.B.S. course. The whole question to be considered is whether appellants 1 to 5 are entitled to get Scheduled caste status as Thandans ? Earlier Thandan community was not included in the Scheduled caste category in the Malabar area but Thandan community was recognised as Scheduled caste in Travancore - Cochin area. This position continued upto 1976. The Scheduled Caste and Scheduled Tribes Amendment Act, 1976 came into force on 27th July 1976, which specifies 'Thandan' community as item No.61. The nature of amendment is to recognise the particular community as Schedule caste for the entire State of Kerala. It is contended by various associations that a Section of Ezhavas/Thiyyas in certain districts of Malabar area are not entitled to be considered as Thandans and Scheduled caste O.P.NO.14444 OF 2003 & M.F.A.NO.195 OF 2005 (E) 3 community status cannot be given to them even though they are known as Thandans. State accepted the above view. The matter was finally settled by the Supreme Court in Palghat Jilla Thandan Samudhaya Samrakshana Samithi and another v. State of Kerala (1994 (1) KLT 118 (SC)). The Supreme Court directed the State Government to grant to all members of the Thandan community, including those belonging to the erstwhile Malabar District and the Palghat District, the benefits due to a Scheduled Caste included in the Schedule to the Constitution Scheduled Castes Order as amended upto date and to issue to them community certificates accordingly. The Supreme Court also categorically held that it is not open to the State government or the Supreme Court to embark upon an enquiry to determine whether a section of Ezhavas/Thiyyas which was called Thandan in the Malabar area is excluded from the benefits of the Schedules Castes Order. Paragraphs 15 to 19 of the above judgment are as follows:
O.P.NO.14444 OF 2003 & M.F.A.NO.195 OF 2005 (E) 4 "15. We now proceed upon the basis that the State Government is right when it says that there is a section of the Ezhavas/Thiyyas community which is called Thandan in the Malabar area of the State.
16. Article 341 empowers the President to specify not only castes, races or tribes which shall be deemed to be Scheduled Castes in relation to a State but also "parts of or groups within castes, races or tribes" which shall be deemed to be Scheduled Castes in relation to a State. By reason of Article 341 a part or group or section of a caste, race or tribe, which, as a whole, is not specified as a Scheduled Caste, may be specified as a Scheduled Caste. Assuming, therefore, that there is a section of the Ezhavas/Thiyyas community (which is not specified as a Scheduled Caste) which is called Thandan in some parts of Malabar area, that section is also entitled to be treated as a Scheduled Caste, for Thandans throughout the State are deemed to be a Scheduled Caste by reasonof the provisions of the Schedules Castes Order as it now stands. Once Thandans throughout the State are entitled to be treated as a Scheduled Caste by reason of the Scheduled Castes Order as it now stands, it is not open to the State Government to say otherwise, as it has purported to do in the 1987 order.
17. We may usefully draw attention to the judgment of a Bench of three learned O.P.NO.14444 OF 2003 & M.F.A.NO.195 OF 2005 (E) 5 Judges of this Court in Srish Kumar Choudhary v. State of Tripura and others, 1990 (Supp) SCC 220). This judgment considered Constitution Bench judgments in B.Basavalingappa v. D.Munichinnappa, 1965-1 SCR 316, and Bhaiyalal v. Harikishan Singh and others ((1965) 2 SCR 877, and certain other judgments. It held that the two Constitution Bench judgments indicated that any amendment to the Presidential Orders could only be by legislation. The Court could not assume jurisdiction and order an enquiry to determine whether the terms of the Presidetial Order included a particular community. A State Governmet was entitled to initiate appropriate proposals for modification in cases where it was satisfied that modifications were necessary and, if after appropriate enquiry, the authorities were satisfied that a modification was required, an amendment could be undertaken as provided by the Constitution.
18. These judgments leave no doubt that the Scheduled Castes Order has to be applied as it stands and no enquiry can be held or evidence let into determine whether or not some particular community falls within it or outside it. No action to modify the plain effect of the Scheduled Castes Order, except as contemplated by Article 341, is valid.
19. The Thandan community in the instant case having been listed in the Scheduled Castes Order as it now stands, it is not open to the State Government or, indeed, O.P.NO.14444 OF 2003 & M.F.A.NO.195 OF 2005 (E) 6 to this Court to embark upon an enquiry to determine whether a section of Ezhavas/Thiyyas which was called Thandan in the Malabar area of the State was excluded from the benefits of the Scheduled Castes Order."
The Supreme court also gave permission to the State Government to take appropriate direction for modification of the order. Accordingly, by Constitution (Schedules Castes) Order (Amendment) Act, 2007 dated 29th August, 2007 item 61 was modified as follows:
"61. thandan (excluding Ezhavas and Thiyyas who are known as Thandan in the erstwhile Cochin and Malabar areas) and (Carpenters who are known as Thandan, in the erstwhile Cochin and Travancore State)";
3. Now we will consider the factual aspects in this case. A detailed enquiry was conducted by the Scrutiny committee and documents were produced by both sides. The genealogy of the grand father and grand mother and their relatives O.P.NO.14444 OF 2003 & M.F.A.NO.195 OF 2005 (E) 7 shows that in earlier documents of Annexure A31 dated 15.1.1936, Annexure A32 dated 11.2.1932 and Annexure A85 etc. they were described as Thandans. Exts.P1, P2 and P3 produced in respect of the 4th appellant also shows that in School admission certificates it was described the caste as 'Thandan'. Ext.P1 is dated 25.5.1960. Various admission registers also shows that caste was described as 'Thandan' earlier but in document Nos.33 and 34 in respect of the 1st appellant, document Nos.81 and 82 in respect of the 2nd appellant and document Nos.40, 41 and 42 in respect of the 3rd appellant, they were mentioned as Hindu Thiyyas or Ezhavas. The explanation of the appellant is that after 1976, till the Supreme Court decision came, due to Government direction, the officers were refused to describe them as Thandans and they were categorised as Ezhavas and Thiyyas as they are living in Malabar area and they were helpless. Before 1976, Thandan community of Malabar area was not included in the category of Scheduled Caste community. But after the Supreme Court decision, they requested for amendment and O.P.NO.14444 OF 2003 & M.F.A.NO.195 OF 2005 (E) 8 further obtaining proper certificate, their caste status was amended after due enquiry as can be seen from Annexure A1. It is also submitted that Director of Harijans Welfare Department has also accepted the above. As far as document Nos.24 and 25 are concerned, they are also certificates to 4th respondent who got employment not as a Scheduled caste at a time when Government was not considering the Thandans of Malabar as Scheduled caste community. It is submitted by the learned Government pleader that document Nos.99, 101, 111 with respect to mother of the 5th appellant also shows that they were essentially Ezhavas. But pre-independent documents described their predecessors as Thandans and that also cannot be ignored by the Scrutiny Committee as held by the Apex Court in Kumari Madhuri Patil and another v. Addl. Commissioner, Tribal Development and others (AIR 1995 SC 94). The petitioner has produced 15 affidavits of the local people to show that in locality, they were known as Thandans and as members of the Thandan community. It is submitted that Scrutiny committee did not accept those O.P.NO.14444 OF 2003 & M.F.A.NO.195 OF 2005 (E) 9 affidavits after refusing to examine those persons who gave affidavits on the ground that the advocates who attested the affidavits were not appearing before the Committee. The learned counsel for the appellant also points out the decision in Gayatrilaxmi Bapurao Nagpure v. State of Maharashtra and others (AIR 1996 SC 1338) that the committee has to take views of the local people while granting caste certificate.
4. We have gone through the documents. It can be seen that the petitioners were referred as Thandans originally. Thereafter they were referred as Hindu Thiyyas and Hindu Ezhavas after 1976 in view of the Government stand and after the Supreme Court decision in 1994, in some of the cases they were referred as Thandans again. Going through the affidavits of local people and going through the entire evidence, we are of the opinion that and they are called Thandans and they were holding title as Thandans. They belong to Thandan community in Palghat District which is essentially equal to Ezhava O.P.NO.14444 OF 2003 & M.F.A.NO.195 OF 2005 (E) 10 community. It is different from Thandans in Travancore area. In view of the Palghat Jilla Thandan Samudhaya Samrakshana Samithi's case (supra), they are entitled to the benefits of Scheduled Castes till 2007, till the schedule is amended. We make it clear that thereafter they cannot claim the benefit of Scheduled caste as Thandans and as eventhough they are title holders of 'Thandans' they essentially belongs to Ezhava/Thiyyas (O.B.C). But all persons known as Thandans are entitled to Scheduled Caste status inview of the inclusion of 'Thandan' in the caste status schedule till the above was amended in 2007. So any benefit obtained by them before the amendment of the Schedule cannot be taken away but after the amendment of the Schedule, they are not entitled to claim any benefits as Scheduled Tribes. The admission of the 5th appellant (petitioner in O.P.No.14444/03) was obtained before the amendment of the Schedule, and therefore, her admission cannot be set aside. But she also cannot claim employment in future claiming to be a member of the Scheduled Caste and from the date of amendment, she has to pay fees and she is O.P.NO.14444 OF 2003 & M.F.A.NO.195 OF 2005 (E) 11 entitled to get free concession as a Scheduled caste only till the date of amendment of the Schedule (28.8.2007). Second and third appellants got employment as Scheduled Castes before amendment of the Schedule and their employment also cannot be terminated as initial appointment was correct and they are entitled to get salary and pension till their date of superannuation and their employment was not obtained by fraud. But they will not get any future promotion from August 2007 on the basis that they belong to Scheduled Caste community. Their offsprings also will not be entitled to any benefit of Scheduled Caste community after 29th August 2007. But admissions or appointment obtained by them before the amendment of the Schedule are valid. Both writ petition and appeal are disposed of accordingly.
J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ.
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M.F.A.NO. OF 2006 ()
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J U D G M E N T
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26th May, 2008