Kerala High Court
V.K.Rajappan vs State Of Kerala
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 28TH DAY OF MAY 2013/7TH JYAISHTA 1935
WP(C).No. 15543 of 2009 (K)
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PETITIONER(S):
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V.K.RAJAPPAN, AGED67 YEARS,
S/O.MOTTAN KOCHAPPA AND RESIDING AT VYPEL HOUSE
LAKSHMI NIVAS, NEAR PIRAVOM POLICE STATION
PIRAVOM P.O., PIN-686664.
BY ADVS.SRI.K.JAGADEESACHANDRAN NAIR
SRI.J.KRISHNAKUMAR
SMT.DIVYA C BALAN
SRI.P.K.RAKESH KUMAR
SRI.JAISHANKAR V.NAIR
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY THE
SECRETARY TO GOVT. OF KERALA
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. SERUTINY COMMITTEE REPRESENTED BY
CHAIRMAN, SCRUTINY COMMITTEE FOR VERIFICATION
OF COMMUNITY CERTIFICATES, SC/STDD
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
3. PRINCIPAL SECRETARY, SC/STDD, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM
4. THE FOOD CORPORATION OF INDIA, REPRESENTED
BY THE EXT.DIRECTOR (SOUTH), FCI ZONAL OFFICE
CHENNAI-6.
R BY GOVERNMENT PLEADER SMT.LALY VINCENT
R4 BY ADV. SMT.S.KARTHIKA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 15543 of 2009 (K)
APPENDIX
PETITIONERS EXHIBITS
EXT. P1 COPY OF THE JUDGMENT IN O.P.NO.2294 OF 1993 DATED 19.2.97
EXT. P2 COPY OF THE JUDGMENT IN W.A.NO.919/97 DATED 3.7.97
EXT. P3 COPY OF THE JUDGMENT IN WP(C) NO.10871/00 DATED 12.10.06
EXT. P4 COPY OF THE LETTER DATED 21.03.09
EXT. P5 COPY OF THE ORDER OF THE SCRUTINY COMMITTEE DATED
31.01.09
EXT. P6 COPY OF ORDER OF THE GOVERNMENT DATED 31.01.09
EXT. P7 COPY OF THE COVERING LETTER DATED 23.04.09
EXT. P8 COPY OF THE REVIEW PETITION DATED 6.05.09
EXT. P9 COPY OF THE SECOND RESPONDENT, THE CHAIRMAN, SCRUTINY
COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATE AND
PRINCIPAL SECRETARY SCHEDULED CASTE/SCHEDULED TRIBE
DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
DATED 6.3.2007
EXT. P10 COPY OF LETTER OF AREA MANAGER, FOOD CORPORATION OF
INDIA, KOCHI TO THE GENERAL MANAGER, KERALA, FOOD
CORPORATION OF INDIA REGIONAL OFFICE, THIRUVANANTHAPURAM
DATED 21.4.2012
RESPONDENTS EXHIBITS : NIL
/TRUE COPY/
P. A. TO JUDGE
Pn
C.K. ABDUL REHIM, J.
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W.P.(C). No. 15543 of 2009
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Dated this the 28th day of May, 2013
JUDGMENT
Challenge in this writ petition is against Ext.P5 proceedings of the 2nd respondent committee and against the decision taken by the Government as per Ext.P6 on the basis of such proceedings.
2. The petitioner is a retired employee of the 4th respondent. He claims that he belongs to 'Eravallan' community, which is recognised as a Scheduled Tribe. When the son of the petitioner had applied for MBBS course, benefit of his community status was denied. Challenge raised against order of the Government issued in this regard was unsuccessful before this court. The petitioner retired from service on 30.04.2002. Thereafter, on the basis of an order issued by the Government, the 2nd respondent conducted an anthropological study. It was revealed that the Grandfather and Father of the petitioner were born in 'Valan' community, which is not recognised as a Scheduled Tribe. The 2nd respondent committee in Ext.P5 had arrived at a conclusion that the petitioner has W.P.(C). No. 15543 of 2009 -2- no right to claim status of a Scheduled Tribe as he belongs only to 'Valan' (OBC) community. Hence the 2nd respondent decided to cancel all the Scheduled Tribe Community Certificates issued to him and to his family members and to recover amounts which the claimant and his family members have unduly received by virtue of the status of Scheduled Tribe. On the basis of Ext.P5 the Government issued Ext.P6 order declaring that the petitioner and the members of his family does not belong to 'Eravallan' community, which is a Scheduled Tribe, but they belong to 'Valan' community. It is further declared that none of the members of the family shall be eligible for any benefits intended for Scheduled Tribe and if any of the members are receiving any such benefits, the same should be stopped. In Ext.P6 it was further decided to cancel the community status with respect to the members of the family of the petitioner, entered in their academic records. Issuance of any Scheduled Tribe Certificate to the family members is restrained. All the Scheduled Tribe Certificate secured by them was ordered to be treated as W.P.(C). No. 15543 of 2009 -3- cancelled. The decision taken in this regard is assailed on various grounds including violation of principles of natural justice, on the allegation that the petitioner was not afforded with any proper opportunity for objection and personal hearing.
3. The petitioner had produced Ext.P10 letter along with I.A.No. 16721/12. It is an internal communication issued by the Area Manager of the 4th respondent Corporation to the General Manager, copy of which is seen endorsed to the petitioner. It indicates that, earlier the Government have directed the 4th respondent to withdraw pensionary benefits due to the petitioner, pending decision on the caste status of the petitioner. Subsequently, amount of gratuity due with interest was released to him based on a judgment of this court. But benefits like final payment of CPR and encashment of Earned Leave etc. are pending disbursal on the basis of pendency of this writ petition. The letter further shows that, the Government have informed that in the case of the petitioner the penal provisions under Section 17 of the W.P.(C). No. 15543 of 2009 -4- Kerala (Schedule Caste and Schedule Tribe) Regulation of issue of Community Certificate Act, 1996 cannot be invoked in view of Article 20(1) of the Constitution of India, because the alleged offence if any can only be prior to commencement of the said Act. The Government further observed that, there was no deliberate fraud committed by the petitioner. It is revealed from Ext.P10 that, eventhough the Government have cleared the case as mentioned above, benefits are not released because of pendency of this writ petition. On the basis of Ext.P10 the petitioner seeks direction for payment of the benefits due.
4. Prayer made on the basis of Ext.P10 is opposed by learned counsel appearing for the 4th respondent contending that exoneration from any penal action contemplated under Section 17 by itself will not releave the petitioner from action if any proposed under Section 16 & 16(A) of the Act. Learned counsel had pointed out that under 16(2) of the Act recovery of financial benefits is contemplated. It is also contended that under 16(A) deferment of the pensionary benefits is also provided. W.P.(C). No. 15543 of 2009 -5- Learned counsel produced for my perusal copy of the order issued by the Government, about which reference is made in Ext.P10. It does not specify anything with respect to applicability of Section 16 or 16(A), and the question remains as to whether the provisions of the Act can be made applicable in any manner against the petitioner in view of the fact that the employment was secured on the basis of the community certificate issued prior to commencement of the Act, and that the petitioner is no longer in the service of the 4th respondent Corporation.
5. Learned counsel for the petitioner further pointed out that, even Section 16(A) was introduced only with effect from 01.02.2007, whereas the petitioner had retired in the year 2002. It is evident from Ext.P10 as well as the order of the Government dated 22.09.2010 that the Government is of the opinion that penal action against the petitioner is not sustainable. It is further evident that major portion of the retirement benefits has already been disbursed to the petitioner. Under such circumstances, the challenge against the impugned proceedings (Exts. W.P.(C). No. 15543 of 2009 -6- P5 and P6) need not be considered. It is left open to the 4th respondent to take appropriate decision with respect to applicability of any of the provisions of the Act in the matter of payment of emoluments due to the petitioner. Hence the writ petition is disposed of leaving open such question for decision of the 4th respondent in accordance with law.
Sd/-
C.K. ABDUL REHIM, JUDGE /True copy/ P. A. to Judge Pn