Principal Secretary To Government vs T.K. Surendran on 9 October, 2013

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Kerala High Court

Principal Secretary To Government vs T.K. Surendran on 9 October, 2013

Writ Appeal No.1689/2014 preferred by the State Government and O.P.(CAT)No.71/2016 preferred by the Department of Customs (by virtue of their status as an employer of the person concerned) arise from a common cause of action, which springs up from the declaration of caste status of the concerned respondent, who got appointment and such other benefits including pension, projecting themselves as members of Scheduled Tribe (ST); which ultimately turned to be against them, by virtue of the statutory exercise pursued in terms of the relevant provisions of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of issue of Community Certificates Act, 1996 (1 of 1996).

2. The case has got a long history. For the purpose of convenience, W.A.No.1689/2014 filed by the State Government is taken as the lead case.

W.A.No.1689/14 & OP(CAT) No.71/16 -2-

3. Heard Sri K.C.Vincent, the learned Senior Government Pleader appearing on behalf of the appellants, Ms.Krishna, appearing on behalf of the petitioners in OP(CAT) No.71/2016 and Mr.Sujin appearing on behalf of the concerned respondents in both the cases.

4. The sequence of events reveals that the respondents had projected themselves as members belonging to Scheduled Tribe ('Mala Araya'), who pursued and completed their studies and thereafter, based on their caste status, some of them got employment as well in the State or Central Government service and were continuing as above. Pursuant to some complaints, the caste status of the respondents came to be enquired into and some adverse orders were passed against them to the effect that they were not members of the 'Mala Araya' community which was enlisted as a Scheduled Tribe; but were belonging to 'OBC' (Other Backward Classes). On pursuing further proceedings, the competent authority under the relevant Statute was directed to consider the matter; who considered the same and after collecting the requisite data and after affording an opportunity of W.A.No.1689/14 & OP(CAT) No.71/16 -3- hearing, it was held that the respondents did not belong to Scheduled Tribe Community, but were belonging to 'Araya' community, which is an OBC, as per the State list. Several litigations were pursued in the meanwhile and ultimately, the matter came up for consideration before this Court by way of M.F.A.No.1379/2002. The appellants therein are the respondents 1 to 3 and 5 to 8 in this appeal.

5. After hearing both the sides, the Bench as per Ext.P3 judgment dated 22.2.2008 held that the claim of the appellants that they were members of 'Mala Araya' (Scheduled Tribe) was not liable to be sustained. Based on the pleadings and materials on record, a clear finding was rendered to the effect that the proceedings had been finalised by the statutory authorities based on the relevant materials, to the effect that the parties concerned did not belong to the 'Mala Araya' community - Scheduled Tribe. Reliance was also placed on the verdict passed by a Division Bench of this Court in similar circumstance (M.F.A.No.1007/1999 filed by three persons hailing from the place, Thiruvalla, where the above appellants were also residing). After making the W.A.No.1689/14 & OP(CAT) No.71/16 -4- declaration that the said appellants were not members of the Scheduled Tribe and that they were not entitled to get any benefit flowing from the declaration of caste status as certified earlier by the competent authorities, the Bench however made it clear that, no instance of fraud or fraudulent act was made out and that no contribution of the appellants was there in procuring or obtaining the certificates issued by the competent authorities at the relevant point of time (which were produced before the authorities for studying or for getting employment). In the said circumstances, the Bench declared that the appellants shall not be prosecuted and the benefits already given shall not be taken away and further that the Government or the authorities or the Employers were free to take action on the basis of the impugned order with prospective effect. It was further made clear that, the action can be taken only with 'prospective effect' as the appellants therein had earlier got the benefits on the basis of the certificates issued by the competent authorities and as such, monetary benefits given to them cannot be recovered from them. In the case of the 7th appellant therein, (the person by name W.A.No.1689/14 & OP(CAT) No.71/16 -5- T.K.Surendran), it was observed by the Bench that there was already an inter parte judgment reported in Surendran v. Postmaster General (1976 KLT 10) in connection with his appointment as Postmaster General. The said decision stood in favour of him and since no appeal was filed against the said verdict, it had become final. So, with regard to the service of Mr.Surendran, he was excluded from further course of action to be pursued and it was accordingly held that, in respect of the others, the authorities would be free to take 'any action' with prospective effect reiterating that, since the appellants had not committed any offence, the benefits already given to them shall not be recovered and no prosecution proceedings shall be taken for the past act.

6. It is pointed out by the learned Senior Government Pleader that the above verdict was sought to be challenged by the respondents by approaching the Apex Court by way of Civil Appeal No.15705/2008, wherein interference was declined and the SLP came to be dismissed as per order dated 18.7.2008. Thus, the matter has become final and the question is only with W.A.No.1689/14 & OP(CAT) No.71/16 -6- regard to the further course of action to the extent it has been permitted by the Division Bench of this Court vide Ext.P3.

7. Pursuant to Ext.P3, the matter was considered by the Government in detail. After hearing, the Government passed Ext.P4 G.O.(MS)No.63/2008/SCSTT DD, dated 4.6.2008 limiting the further course of action only prospectively and thus causing termination of service of the persons concerned, who had obtained employment and were continuing based on their wrong caste status as a member of Scheduled Tribe. The operative portion as contained in paragraph 2 of the said order reads as follows:

"2. The Scheduled Tribe (Mala Arayan) claim of Shri T.K.Somasekharan,Smt.T.K.Gomathy,Smt.T.K. Ponnamma, Smt.T.K.Bhadramma, Shri T.K.Haridasan, Smt.T.K.Mini Bai and Shri T.K. Surendran, Padinjare Thundiyil House, Eruvelipra Muri, Thirumoolapuram P.O., Thiruvalla, Pathanamthitta and their family, has been disproved under the process and pursuantly Government Order as follows in the matter.

(i) It is declared that Shri T.K.Somasekharan, Smt.T.K.Gomathy, Smt.T.K.Ponnamma, Smt.T.K.Bhadramma, shri T.K.Haridasan, Smt.T.K.Mini Bai and Shri T.K.Surendran, Padinjare Thundiyil House, Eruvelipra Muri, Thirumoolapuram P.O., Thiruvalla, Thanamthitta and members of their family do not belong to Mala Arayan Community, which is a Scheduled W.A.No.1689/14 & OP(CAT) No.71/16 -7- Tribe, but belong to Araya Community included in the list of OBC/OEC community.

(ii) None of the members of their family shall be eligible for any of the benefits exclusively intended for members of the Scheduled Tribes. If any of the members of the family of Shri T.K.Somasekharan, Shri T.K.Haridasan, Smt.T.K.Mini Bai and Shri T.K.Surendran, Padinjara Thundiyil House, Eruvelipra Muri, Thirumoolapuram P.O., Thiruvalla, Pathanamthitta, have availed of any of the benefits meant for members of the Scheduled Tribe all such benefits shall be stopped forthwith.

(iii) If the caste entry in respect of any of the members of their family as recorded in their academic records is Mala Arayan (Schedule Tribe) it shall be got corrected as Arayan (OBC).

(iv) Scheduled Tribe certificates shall not be issued to any of the members of their family hereafter. All the Scheduled Tribe Certificates secured by them as members of the Scheduled Tribe Community shall be treated as cancelled.

(v) On completion of the actions as per the proceedings read above, the services of the claimants who are still in service shall be terminated forthwith and a member of Scheduled Tribe Community shall be appointed against the post to which the claimant were appointed, if his/her appointment was on consideration as member of Scheduled Tribe."

8. The above G.O. was sought to be challenged by filing W.P.(C)No.26121/2008 by three persons who had filed M.F.A.No.1379/2002 before this Court, which has culminated in Ext.P3 judgment. The other three persons who were parties to W.A.No.1689/14 & OP(CAT) No.71/16 -8- M.F.A.No.1379/2002, virtually do not have any grievance with regard to Ext.P4 and as such, the matter has become final in so far as they are concerned. The contention raised before the learned Single Judge by the petitioners in W.P.(C)No.26121/2008 was that, the Division Bench, as per Ext.P3 judgment, had already declared that, further course of action was only to be with 'prospective effect' and that the benefit already given to them could not be taken away. In other words, the contention was that, since the writ petitioners had obtained appointment based on the certificates issued by the concerned authorities decades back, the subsequent declaration as to the caste status treating them as non-members of the Scheduled Tribe cannot lead to any termination from the service, which otherwise will only be taking away the benefit already accrued. The matter was considered by a learned Judge of this Court and after extracting the relevant paragraph of Ext.P3 judgment, it was found that the matter had become final by virtue of Ext.P3 verdict. However, based on the fact that no fraudulent exercise was there on the part of the writ petitioners in getting the caste certificates and in W.A.No.1689/14 & OP(CAT) No.71/16 -9- obtaining employment earlier, the benefit of appointment given to them earlier could not be taken away. The verdict passed by the Division Bench vide Ext.P3 was sought to be interpreted in such a manner, in turn, setting aside Ext.P4. This is under challenge, at the instance of the State in W.A.No.1689/2014.

9. Coming to OP(CAT)No.71/2016, the respondent herein (who was appellant No.5 in Ext.P3 verdict passed by the Division Bench in M.F.A.No.1379/2002) was sought to be proceeded against by the Department, by way of disciplinary proceedings for having obtained appointment as a member of the Scheduled Tribe, despite the fact that he was actually not a member of any Schedule Tribe. The respondent herein finally retired from the service on 31.10.2014. The service benefits were however not released. The claim put forth in this regard by way of a representation was not considered and hence the respondent approached the Tribunal by filing O.A.No.180/00082/2015, which was disposed of directing the Department to have it considered as specified, within a specified time. Pursuant to this, the matter was considered and the claim was rejected as per Annexure A6, W.A.No.1689/14 & OP(CAT) No.71/16 -10- which was under challenge in O.A.No.180/00447/2015. The claim was resisted from the part of the Department stating that no retirement benefits could be released when disciplinary proceedings were pending. Reliance was also sought to be placed on Rule 9(1) and Rule 69 of the CCS (Pension) Rules. It was also pointed out that Ext.P4 order dated 4.6.2008 passed by the Government, pursuant to Ext.P3 verdict passed by the Division Bench in M.F.A.No.1379/2002, had already been taken up by the State by way of W.A.No.1689/2014. But observing that the said appeal was not admitted so far, the OA was virtually allowed directing the Department to release the entire retirement benefits, which made them to approach this Court challenging the said verdict (produced as Ext.P3) by way of O.P.(CAT) No.71/2016.

10. After hearing both the sides, this Court finds that there cannot be any further dispute with regard to the caste status of the respondents, who do not belong to any Scheduled Tribe category. The proceedings finalised by the statutory authorities have been upheld and a declaration has been made by this Court W.A.No.1689/14 & OP(CAT) No.71/16 -11- as per Ext.P3 passed by a Division Bench of this Court. At the same time, the Division Bench as per Ext.P3, permitted the Government/Employers/such other authorities to proceed with further steps, making it clear that the same shall only be 'prospective', by alerting them that there could be no prosecution proceedings or any steps for recovery in respect of the benefit already accrued or obtained by the respondents. In other words, the scope of the said verdict is the only point of dispute. The learned Government Pleader submits that it was open for the Government/Employers to pass appropriate proceedings with prospective effect, the order passed by way of Ext.P4 terminating the service forthwith is not assailable under any circumstance.

11. According to the learned counsel appearing for the respondents, since there is a declaration in Ext.P3 to the effect that further action shall only be 'prospective', termination cannot be imposed on the respondents, they having been obtained the benefit of appointment by virtue of the certificates produced earlier, which were issued by the competent authorities at that point of time and more so when, no fraudulent act was pursued W.A.No.1689/14 & OP(CAT) No.71/16 -12- by them. The learned counsel for the respondents sought to rely on the verdict passed by the Apex Court reported in R.Unnikrishnan v. V.K.Mahanudevan (2014 (4) SCC 434), contending that the subsequent declaration that the said respondents do not belong to any Scheduled Tribe cannot take away the vested right already obtained, based on the certificates issued by the competent authorities earlier.

12. We have gone through the above verdict. The factual position involved in the said case stands entirely on a different pedestal. The issue was in relation to caste status of the Thandan Community in Kerala, i.e., whether it belongs to 'SC' or was it only an 'OBC'. The question had to be considered in the light of several judgments rendered by this Court including that of the Full Bench in Kerala Pattika Jathi Samrakshana Samithi v. State of Kerala (ILR 1995 (3) Kerala 1) and that of the Apex Court in Palghat Jilla Thandan Samudaya Samrakshana Samithi and another v. State of Kerala and another (1994 (1) SCC 359). The effect of the Constitution (Scheduled Caste) Order Amendment Act, 2007 was also considered by the Apex W.A.No.1689/14 & OP(CAT) No.71/16 -13- Court and it was accordingly held that the benefits granted to the respondent as a Scheduled Caste candidate till 30.8.2007 shall remain undisturbed and that any advantage granted after the said date, solely on the basis of the respondent being treated as a Scheduled Caste candidate may, if so advised, be withdrawn by the competent authority. Paragraphs 29 to 32 deal with different cases considered by the Apex Court earlier and the circumstance under which relief has been moulded to the permissible extent. The observation made in Paragraph 34 reads thus:

"34. In the result these appeals fail and are, hereby, dismissed. We, however, make it clear that while the benefit granted to the respondent V.K. Mahanudevan as a Scheduled Caste candidate till 30th August, 2007 shall remain undisturbed, any advantage in terms of promotion or otherwise which the respondent may have been granted after the said date solely on the basis of his being treated as a Scheduled Caste candidate may if so advised be withdrawn by the Competent Authority. It is axiomatic that the respondent-V.K. Mahanudevan shall not be entitled to claim any benefit in the future as a scheduled caste candidate but no benefit admissible to him as an OBC candidate shall be denied. Parties are directed to bear their own costs."

W.A.No.1689/14 & OP(CAT) No.71/16 -14- We are of the view that the said judgment does not support the respondents in any manner, to have any wider benefit than that is specifically conferred by virtue of the inter-party judgment as discussed already.

13. After evaluating the facts and circumstances and relevant provisions of law and considering the scope of Ext.P3, this Court finds that the declaration is to the effect that the respondents are not members belonging to the Scheduled Tribe and as such, they cannot be given any further benefit branding them as members of Scheduled Tribe any further. The benefit given as per Ext.P3 is only a measure to save them from the prosecution proceedings in so far as there was no fraudulent act from their side in getting the certificates which ought not to have been issued, they actually not being members of any Scheduled Tribe. This being the position, their rights and liberties based on such certificates in having obtained employment under the concerned Government/authorities till such declaration was made by the Court cannot be taken away or watered down. In other words, the service rendered under the Government/Employer till W.A.No.1689/14 & OP(CAT) No.71/16 -15- the declaration was made by the Court and further, till the course of action was crystalised as per Ext.P4 order passed by the Government on 4.6.2008, stands validated. In other words, there cannot be any benefit beyond the said date, whether it be with regard to the continuation of service or such other instances. In the said circumstances, we find that the interference made by the learned Single Judge, setting aside Ext.P4, is not correct or sustainable and the scope of the verdict passed by the Division Bench in Ext.P3 has been wrongly interpreted. By virtue of the order passed by the learned single Judge, unlawful gains were extended to persons who do not deserve or are eligible for the same, more so in view of the clear/unambiguous declaration made in Ext.P3, which hence is liable to be set aside. This Court also finds that the order passed by the Government as per Ext.P4 is liable to be sustained. It is ordered accordingly.

14. We make it clear that, by virtue of the declaration made by the Division Bench in Ext.P3 varied by Ext.P4 which has been ordered to given effect to forthwith, as it appears in paragraph 2 (v), the respondents are entitled to get all service W.A.No.1689/14 & OP(CAT) No.71/16 -16- benefits based on their length of service rendered under the Government/Employer till the date of passing Ext.P4, i.e., 4.6.2008, which shall not be denied to them under any circumstance. We also make it clear that, the scope of Ext.P4 order putting an end to the service will remain as a 'termination simplicitor' which cannot be a ground to deny the service benefits flowing from the service already rendered till that date. It is declared accordingly.

15. In the result, Writ Appeal No.1689/2014 stands allowed. As a natural consequence, OP(CAT) No.71/2016 is also allowed and Ext.P3 verdict passed by the Tribunal stands set aside. It is left to the appellants in W.A.No. 1689/2014 and the petitioners in O.P.(CAT) No.71/2016 to compute the benefits legally payable to the concerned respondents, taking the length of service rendered by them till 4.6.2008, the date of Ext.P4 order for the purpose of fixation of pension, gratuity, commuted value of pension, leave surrender and such other service benefits. The due amount shall be disbursed to them accordingly, without any delay. There shall not be any recovery of any amount by W.A.No.1689/14 & OP(CAT) No.71/16 -17- virtue of the declaration already made in Ext.P3. If any excess amount has already been paid, than their actual eligibility reckoning the period after 4.6.2008, it will be open for the Government/Employer to have it adjusted against the actual amount payable to the persons concerned.

Sd/-

P.R.RAMACHANDRA MENON, JUDGE Sd/-

ANIL K.NARENDRAN, JUDGE dsn True copy P.S.to Judge

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