Kerala High Court
Akhila Kerala (Hindu) Chemman Samajam ... vs Union Of India (Uoi) And Anr. on 8 September, 1994
Equivalent citations: AIR1995KER67, AIR 1995 KERALA 67, (1995) ILR(KER) 1 KER 193, (1994) 2 KER LJ 652, (1994) 2 KER LT 732
ORDER K. Sreedharan, J.
1. First petitioner is an organisation by name "Akhila Kerala (Hindu) Chem-mar Samajam", having registration No. 92/ 74. Second petitioner is the General Secretary of the said organisation. He has joined the Original Petition in his individual capacity as well.
2. Material averments made by petitioners in this Original Petition are to the following effect: Members of Chemman community are traditionally Cobblers and are socially, economically and educationally very backward. They were treated to be untouchables like Pulayas, Sambavas, Kuravas etc., who are listed among Scheduled Castes in Kerala. Chamar, Mochi, Semman and Chak-kaliyan are all cobblers having the same social and economic status. All of them suffer from the stigma of untouchability and social disabilities. Before the State reorganisation, Chemman and Chakaliyan were treated to be identical for purpose of grant of concessions. In the schedule to the Scheduled Castes/ Scheduled Tribes Orders (Amendment) Bill, 1967, Chemman community was included in the list of Scheduled Castes in the State of Kerala. Unfortunately, that Bill was not passed. Community by name 'Semman' has been included as item No. 60 in the list of Scheduled Castes in Kerala appended to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act 108 of 1976). Word 'Semman' is of Tamil origin. Even though in Tamil they pronounce the word as 'Semman', it is being written as 'Chemman' in Tamil as well. It is only because of the mistake in the spelling in describing the community, i.e. instead of 'Chemman' it is written as 'Semman', the members of the community represented by the first petitioner are not getting such benefits. As a matter of fact, there is no community in Kerala by name 'Semman'. That being so, the intention in including the word 'Semman' as item No. 60 in the list of Scheduled Castes in Kerala can only be to include Chemman. Though there are only very few among 'Chemman' who are educated, most of them find it difficult to get job in Government service as they are not getting the benefit as members of the Scheduled Castes community. Second petitioner made several applications to the Public Service Commission for selection to the post of Lower Division Clerk. He is entitled to get benefits as a member of the Scheduled Caste community. Since he could not produce certificate describing him as a member of 'Semman' community, his applications and appeals therefrom have been rejected by the Commission. On the basis of an application filed by him for effecting correction in his school records regarding the name of the community, the Director of Scheduled Castes Development Department referred the matter for investigation to the Director, Kerala Institute for Research, Training and Development Studies. After receipt of the report, second petitioner was informed that though his community name is written as 'Chemman', he belongs to 'Semman' community made mention of in the list of Scheduled Castes appended to the Order of 1976.
It is evident therefrom that the certificate was issued not because a community by name 'Semman' exists, but the inclusion of 'Sem-man1 in the list of Scheduled Castes is really meant for the community by name 'Chem-man'. Accordingly, Tahsildar issued a certificate to that effect. But, it is not practicable or possible to get similar community certificates as far as the majority of the members of the community are concerned. The certificate, Exhibit P5, issued to the second petitioner was of no help to him because by the time it was issued, he became overaged. Petitioners therefore made many a number of representations before Government pointing out that the name of the community 'Chemman' is actually included in the list of Scheduled Castes in Kerala as 'Semman' and that the members of the Chemman community must be treated as members of Scheduled Castes. To one such representation, Government is-sued reply, Exhibit P6, to the effect that Chemman is not included in the list of Scheduled Castes and hence the members of the. community cannot be given the benefits treating them as members of Scheduled Castes. Though it is said that steps are being taken for rectifying the mistake in the order of 1976 by substituting the word 'Chemman' instead of 'Semman', it has not so far materialised. On these grounds the petitioners pray for the declaration that the caste shown as 'Semman' in serial No. 60 of the list of Scheduled Castes in Kerala appended to the Constitution (Scheduled Castes/Scheduled Tribes) Amendment Act, 1976 represents the caste by name 'Chemman' and the members of 'Chemman' caste are entitled to get the benefits treating them as members of Scheduled Castes.
3. A detailed counter-affidavit has been filed on behalf of the respondents. Sri M. Abdul Hameed, Section Officer in Scheduled Castes and Scheduled Tribes Development Department, Secretariat has sworn to that affidavit. The gist of the contention raised in the counter-affidavit is that the list appended to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 treats the members of the 'Semman'community only as members of the Scheduled Castes. 'Chemman' community has not been included in the list and so members of the Chemman community should wait until the Scheduled Castes list of Kerala is amended by including that community -- Chemman in the list. It is also urged by him in the counter-affidavit that in so far as there is no community called "Chemman" in the Scheduled Castes list of Kerala, that community is not to be treated as Scheduled Castes. Scheduled Castes status being a legal and constitutional status, it could be bestowed only by the Parliament and not by any other authority. Chemman may be the same as Semman, which is a Scheduled Caste. But, without inclusion of Chamman in the Scheduled Castes' list, Government are unable to extent the benefits of Scheduled Castes to members of Chemman community. An easy way has also been suggested for the members of that community to get the benefit by stating:
"The expeditious way for those who had used their caste as Chemman is to get the caste name corrected as Semman, by which they can easily get Scheduled Caste certificates."
4. The short question that arises for consideration is whether members of the Chemman community are to be treated as members of the Scheduled Caste community and are to get the benefit as per the list of 1976. In the counter-affidavit it is clearly admitted:
"It is the members of Semman Community who had used their Caste name in its Mala-yalam form as 'Chemman'. Semman is the parent caste and Chemman is the local parlance. But Chemman is not there in the legislative list."
In paragraph 4 of the counter-affidavit, it was further averred :
"Chemman may be the same as Semman which is a Scheduled Caste."
5. In the Travancore State Manual, Volume I, by T. K. Velu Pillay in Chapter XII at page 842 'Chakkiliyans' and 'Chemmans' are described as :
"The Chakkiliyans are a class of people whose traditional occupation is working in leather. They are supposed to have immigrated from Telungu Districts. Girls are married after puberty, the bride-groom being sometimes younger than the bride. Widow marriage and divorce are common. The Chem-mans are an indigenous class of leather workers. Both these classes follow the 'Mak-kathayam Law' of inheritance."
Dr. Babu Vijayanath, Chairman of the Commission on the Socio-economic conditions of Scheduled Castes and Scheduled Tribes in his feport Volume I, Part I stated as follows in Chapter VII:--
"Semman is a non-existing caste in the list of Scheduled Caste. But a caste with a very similar name 'Chemman' exists in the State. They are leather workers and included in the former list of Scheduled Castes in Travan-core-Cochin area. Hence the present caste name 'Semman' may be a clerical error. Another example is that of Palluvans. The caste 'Pulluvan' was included in the list of Scheduled Caste of the erstwhile Travancore-Cochin area. They are now excluded and a caste Palluvan is included. This also may be a clerical error."
In Chapter XXIV while summarising the findings, it has been reported:
"The name of the caste Chemman is probably given as Semman by mistake."
While giving the recommendations of the Commission in Chapter XXV of that report, it has been stated:
"The caste Pulluvan and Chemman should be included in the list of SC rectifying the mistake in spelling in the present list."
6. From the report referred to above, it is proved beyond doubt that Semman is a non-existing caste in the State of Kerala. This factual position is not disputed by the learned Government Pleader either. In the list of Scheduled Castes appended to the Act of 1976, this non-existent community 'Semman' has been included. Was it to benefit anyone? Should be Parliament and the President be attributed with the intention to confer the benefit of Scheduled Caste community to a non-existent group of persons? From the report of Dr. Babu Vijayanath it is further borne out that 'Chemmans' of the State are to be treated as 'Semmans' because the word 'Semman' used in the list is only to be treated as a clerical error. The State Government has taken a highly supertechnical stand that the President intended to confer the benefit of the Scheduled Caste community to a non-existent group, because even though the intention of the legislature is discernible from the records, that intention is not to be given effect to unless the Parliament changes the word 'Semman' to 'Chemman'. This stand taken by the Government even after the decision of this Court in relation to 'Pulluvans' is rather surprising. If the State Government had any intention to confer the benefit of the Scheduled Caste community to the members of the 'Chgmman' community, which according to them is same as 'Semman', they should not have raised the cantankerous contentions which are untenable. A Government which proclaims that it exists for the benefit and for the uplift of Scheduled Caste and Scheduled Tribe communities should not have taken such a supertechnical stand in the case of 'Chemmans' especially after the binding decision of this Court, which was approved by the Supreme Court while dismissing -S.L.P. Nos. 7741, 7742 and 7743 of 1992. In Balakrishnan v. Union of India, 1990 (2) Ker LT 901, the question that arose for consideration was whether the caste 'Palluvan' mentioned in the schedule to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 takes in 'Pulluvan'. In that case, 1 took the view that members of 'Pulluvan' community in the State of Kerala are entitled to the benefits as members of Scheduled Castes under the Constitution (Scheduled Castes) Order, 1976. A declaration to that effect was made. The State Government took up the matter in appeal. A Division Bench of this Court dismissed the appeal as per the decision in State of Kerala v. Balakrishnan, 1992 (1) Ker LT 396. Even thereafter, the Government took up the matter to the Supreme Court in Special Leave Petitions Nos. 7741 to 7743 of 1992. They got worsted before the Supreme Court. The community 'Pulluvan' is identically situated like 'Chemman'. In the report, Dr. Babu Vijayanath suggested rectification of the mistake in the spelling in the case of 'Pulluvan' and 'Chemman'. The State Government taking the clue from the decision relating to 'Pulluvan', should have the generosity to extend the same benefits to the members of the 'Chemman' community. The attempt of the Government appears to be to deny the benefit to the members of 'Chemman' community, who are, even according to them, legally entitled to the benefits as Scheduled Castes. But, they are trying to deny that benefit on the untenable ground that the Presidential Order makes mention of 'Semman' and not 'Chemman.'
7. Identical issue came up for consideration before a Constitution Bench of the Supreme Court way back in 1965 in the decision in Basavalingappa v. D. Munichin-nappa, AIR 1965 SC 1269. There the question that arose was whether the caste 'Bhovi' takes within the community 'Boyi' mentioned in the list. It was admitted that there was no community by name 'Bhovi'. Dealing with this issue, Their Lordships observed (para 7):--
"The difficulty in the present case arises from the fact that in the Mysore State as it was before the reorganisation of 1956 there was no caste known as Bhovi at all. The order refers to a scheduled caste known as Bhovi in the Mysore State as it was before 1956 and, therefore, it must be accepted that there was some caste which the President intended to include after consultation with the Rajpra-mukh in the Order, when the Order mentions the caste Bhovi as a scheduled caste. It cannot be accepted that the President included the caste Bhovi In the Order though there was no such caste at all in the Mysore State as it existed before 1956. But when it is not disputed that there was no caste specifically known as Bhovi in the Mysore State before 1956, the only course open to Courts to find out which caste was meant by Bhovi is to take evidence in that behalf. If there was a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi caste. But when the undisputed fact is that there was no caste specifically known as Bhovi in the Mysore State as it existed before 1956 and one finds a caste mentioned as Bhovi in the Order, one has to determine which was the caste which was meant by that word on its inclusion in the Order."
This observation of the Constitution Bench was reiterated by the Supreme Court in Bhaiya Ram v. Anirudh, AIR 1971 SC 2533. The above quoted observation made by the Constitution Bench of the Supreme Court applies on all fours to the facts on hand. The Presidential Order included a community by name 'Semman'. Admittedly it is a nonexistent community. The President cannot be attributed with the intention to include such a non-existent community in the list. That community has now clearly found by the Commission constituted by the State of Kerala to be 'Chemman'. So, members of that community should have been extended the benefit as members of the Scheduled Caste. The Government was struggling hard to deny the benefits to the community and thereby to defeat the very Presidential Order.
In view of what has been stated above, I allow this petition and declare that the caste shown as 'Semman' in Serial No. 60 of the list of Scheduled Castes in Kerala appended to the Constitution (Scheduled Castes/ Scheduled Tribes) Amendment Act, 1976 represents the caste by name 'Chemman' and the members of the 'Chemman' caste are entitled to get the benefits treating them as members of Scheduled Castes.
A copy of this judgment will be sent to the Chief Secretary to Government for being placed before the Cabinet for information.