Kerala High Court
Madhavi vs Scrutiny Committee on 1 July, 2004
Equivalent citations: 2004(3)KLT967
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, J.M. James
JUDGMENT K.S. Radhakrishnan, J.
1. Whether the State Government, KIRTADS, or the Scrutiny Committee have got the power to include in or exclude from or substitute or declare synonyms to be a scheduled caste or parts thereof or group of such caste, is the question that has come up for consideration.
2. The State Government, KIRTADS and the Scrutiny Committee have taken the view that Peruvannan is a synonym of Perumannan and declared that the caste known by Vannan, Mannan, Perumannan and Peruvannan are one and the same, consequently all those castes including Peruvannan be treated as scheduled castes. The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 refers to the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Andaman and Nicobar Islands) Scheduled Tribe Order, 1959 made by the President under Arts.341 and 342 of the Constitution of India. Part VIII of the First Schedule deals with State of Kerala. Sl.No.37 Mannan is considered as scheduled caste as per the Presidential order. SI. No. 53 is Perumannan and SI. No. 65 is Vannan. Presidential order 1950 treats all those castes as scheduledcastes. The Constitution (Scheduled Caste) Orders (Second Amendment) Act, 2002. Act 61 of 2002 was enacted by the Parliament and the castes Mannan, Perumannan, Vannan and Velan were shown in SI. No. 37 and hence scheduled castes. The community Peruvannan is treated as Other Backward Community in the State of Kerala. List I of First Schedule to the Kerala State and Subordinate Services Rules 1958, part II, deals with scheduled castes in the State of Kerala. SI. No. 37 in the said schedule is Mannan treated as scheduled caste. SI. No. 53 is Perumannan and SI. No. 65 is Vannan. All the three communities are treated as scheduled caste. However, Peruvannan is included in List III as other backward class in the State of Kerala.
3. The State Government has however issued a Circular No. 13033/E2/90/ SC & ST dated 27.11.1991 giving guidelines to deal with applications for change of castes. The circular was issued on the basis of the report of KIRTADS. KIRTADS has declared that there is no separate caste as Peruvannan and Perumannan and they are only Sanskritised versions of Vannan or Mannan and they have started using Peruvannan as an elevation of their caste status. Based on this report and the Circular issued by the State Government, Scrutiny Committee in the instant case held that.both Mannan and Peruvannan are the same community and hence scheduled castes. State Government has all along treated the community Peruvannan as other backward community and Mannan as scheduled caste.
4. The question is whether Peruvannan could be considered by the State Government and other authorities as synonyms of Vannan, Mannan, Perumannan. The Apex Court had occasion to consider similar issues in several cases. In Nityanand Sharma v. State of Bihar ((1996) 3 SCC 576) the Apex Court considered the question whether lohars could be considered as synonym like loharas or lohras. The Court held that lohars is other backward class and is not scheduled tribe and the Court cannot give any declaration that lohars are equivalent to loharas or lohras or that they are entitled to the same status. Reference can also be made, to the decisions of the Apex Court in Bhaiyalal v. Harikishan Singh (AIR 1965 SC1557), B. Basavalingappa v. D. Munichinnappa (AIR 1965 SC 1269), Srish Kumar Choudhury v. State of Tripura (1990 Supp. SCC 220) and Vinay Prakash v. State of Bihar ((1997) 3 SCC 406). The Apex Court in Bhaiyalal 's case (supra) held that the object of Cl.(l) of Art.341 is to avoid all disputes as to whether a caste is scheduled caste or not for the purpose of the Constitution. In 5. Nagarajan v. District Collector, Salem ((1997) 2 SCC 571) the Apex Court held that it is the Presidential Notification issued under Art.341 which is to decide who is deemed to be a member of a scheduled caste for the purpose of the Constitution. If the Presidential notification omit any specific class or tribe or a part thereof, then it would be for the Parliament to make necessary amendments. Therefore to determine whether a particular caste is scheduled caste coming within the meaning of Art.341, one has to look at the terms of the Presidential order. Law is well settled that once the Parliament by law includes in or excludes from any race, caste, tribe, parts of or groups within any caste, race or tribe, the President thereafter shall have no power to vary it by any subsequent notification. The Court has also no power to include in or exclude from or substitute or declare synonyms to be of a scheduled caste or scheduled tribe or group of such caste or tribe.
5. Report of KIRTADS states that Mannan, Vannan, Perumannan and Peruvannan are the same and Peruvannan'is only a caste status. We are of the view the Presidential order takes in only Perumannan and not Peruvannan. Unless the Presidential order is got amended, only Perumannan could be treated as scheduled caste. There is no ambiguity in the Presidential order. Presidential order has excluded Peruvannan and included only Mannan and Vannan as SI. No. 37 in Act 61 of 2002. Peruvannan is not included in the 1950 Presidential order or the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 or in the Constitution (Scheduled Caste) Orders (Second Amendment) Act, 2002. In such circumstances, the reasoning of the Scrutiny Committee that Peruvannan is a synonym of Mannan cannot be sustained. We reject the same and hold that Peruvannan cannot be treated as scheduled caste community unless the Presidential order is amended.
6. This case arose out of an election appeal 1 of 2001. Petitioner herein was the defeated candidate in the election conducted in Ward No. 22 which is a reserved constituency of Kozhikode Corporation and therefore could be represented only by a scheduled caste. Petitioner filed an Election Petition in the Munsiff s Court, Kozhikode contending that third respondent belongs to Peruvannan community which is not a scheduled caste but included in other backward community. Munsiff s Court allowed the Election Petition and election of the third respondent was declared invalid. Third respondent approached the District Court by filing E.A. 1 of 2001. The District Court allowed the appeal holding that the certificate issued by the Tahsildar stating that third respondent belongs to Mannan community is valid. Petitioner took up the matter in revision before this Court by filing C.R.P. No. 1723 of 2002. This Court found no reasons to interfere with the certificate issued by the Tahsildar changing the name of the community of third respondent from Peruvannan to Mannan. However, this Court observed that if the petitioner raises a complaint before the Government or before the Scrutiny Committee under Act 11 of 1996 and if he has a case that third respondent herein belongs to some other caste and not as certified by the Tahsildar, the judgment would not stand in the way of such complaint being enquired into by the appropriate authority.
7. Petitioner herein then approached the Scrutiny Committee and the Scrutiny Committee has issued the impugned order dated 13.8.2003 following a Government Circular, validity of which has already been examined by us in the earlier part of the judgment. We have already found that the reasoning of the Scrutiny Committee based on the Government Circular is not legal. Consequently we are inclined to set aside the said order. The question as to whether third respondent in fact belongs to Mannan community is always a matter to be examined by KIRTADS or the Scrutiny Committee, but the reasoning that both Mannan and Peruvannan are the same and consequently Peruvannan has to be treated as scheduled caste cannot be sustained unless the Presidential order is amended accordingly. The appeal is allowed as above and the order passed by the Scrutiny Committee dated 13.8.2003 would stand set aside.