Kerala High Court
Sreelatha K.J vs State Of Kerala
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 21ST DAY OF JULY 2014/30TH ASHADHA, 1936
OP.No. 12115 of 1997 (P)
-------------------------
PETITIONERS:
--------------------------
1. SREELATHA K.J.,
D/O. K.K.JAYAPRAKASHAN,
KARAPURATH HOUSE, THADUKKASSERY P.O.,
PALAKKAD.
2. PROMOD K.J.,
D/O. K.K.JAYAPRAKASHAN,
KARAPURATH HOUSE, THADUKKASSERY P.O.,
PALAKKAD.
3. SREEJA.K.J.
(MINOR REPRESENTED BY HER FATHER
JAYAPRAKASHAN, RESIDING AT
KARAPURATH HOUSE, THADUKKASSERY P.O.,
PALAKKAD.
BY ADVS.SMT.V.P.SEEMANDINI (SR.)
SRI.M.R.ANISON
RESPONDENTS:
----------------------------
1. STATE OF KERALA, REP.BY SECRETARY TO GOVT.,
SCST DEVELOPMENT DEPARTMENT, GOVT. SECRETARIAT,
TRIVANDRUM.
2. THE TAHSILDAR, PALAKKAD.
3. THE KERALA PUBLIC SERVICE COMMISSION,
REP.BY ITS SECRETARY, K.P.S.C. OFFICE,
PATTOM, TRIVANDRUM.
ADDL. R4: THE PRINCIPALS,
GOVT. VICTORIA COLLEGE, PALAKKAD.
ADDL.R5: THE DISTRICT DEVELOPMENT OFFICER (SC)
CIVIL STATION, PALAKKAD.
(ADDL.R4 & R5 IMPLEADED AS PER ORDER DT. 3.9.1999 IN
C.M.P.No.24940/1997).
ADDL.R6: THE PRINCIPAL, SREE KERALA VARMA COLLEGE,
THRISSUR - II.
(IMPLEADED AS PER ORDER DATED 28.9.2001 IN C.M.P.No.46242/2001)
R1, R2, R4 & R5 BY ADV. GOVERNMENT PLEADER, SRI.A.J.JOSE ADIYODI
R6 BY ADV. SRI.K.PADMANABHAN
THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21-07-
2014, ALONG WITH O.P. NO.27031/2000, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P.No.12115/1997
APPENDIX
PETITIONER'S EXTS:
EXT.P1: COPY OF COMMUNITY CERTIFICATE NO.D.DIS.8790/94(1) A1
DT.8.6.1994 ISSUED BY THE 2ND RESPONDENT TO THE 1ST
PETITIONER.
EXT.P2: COPY OF THE APPLICATION DT. 2.6.1997 SUBMITTED BY THE
1ST PETITIONER TO THE 2ND RESPONDENT.
EXT.P3: COPY FOT HE DECREE OF THE MUNSIFF COURT, PALAKKAD IN
O.S.NO.521/1994 DT. 30.11.1996.
EXT.P4: COPY OF THE DECREE OF THE MUNSIFF COURT, PALAKKAD IN
O.S.NO.702/1994 DT. 30.11.1996.
EXT.P5: COPY OF THE DECREE OF THE MUNSIFF COURT PALAKKAD IN
O.S.NO.360/1995 DT. 30.11.1996.
//TRUE COPY//
PA TO JUDGE
ALEXANDER THOMAS, J.
---------------------------------
O.P.Nos.12115 OF 1997 & 27037 OF 2000
---------------------------------
Dated this the 21st day of July, 2014
J U D G M E N T
~~~~~~~~~~~ O.P.No.12115 OF 1997:
The claim of the petitioners herein, who belong to 'Thandan' community domiciled in Palakkad District of the State of Kerala, is for status as members of Scheduled Caste in terms of the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 made effective from 27.7.1997. The petitioners aver that they belong to 'Thandan' community domiciled in Palakkad District and therefore, they belong to Scheduled Caste in terms of the above said statutory provisions. Their school records unequivocally show their castes/community status as 'Thandan' and that they have been issued community certificates by the competent authorities in the State of Kerala showing their caste as 'Thandan' and based on such community certificates issued by the authorities concerned, the petitioners enjoyed Scheduled Castes benefits, it is averred.
2. The provisions of Article 366(24) of the Constitution O.P.Nos.12115/1997 & 27037/2000 2 of India defines the expression "Scheduled Castes" to mean "such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of the Constitution of India." Article 341(1) of the Constitution of India provides that the President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be. Clause (2) of Article 341 further stipulates that the Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) of Article 341, any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
3. The Constitution (Scheduled Castes) Order, 1950, specified the castes that are recognised as Scheduled Castes for different States in the country. Part XVI thereof related to the O.P.Nos.12115/1997 & 27037/2000 3 erstwhile State of Travancore and Cochin and item 22 of that Part specified 'Thandan', as a Scheduled Caste for the purposes of the entire State. The Presidential Order was modified by the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956, whereunder Part-V thereof is applicable to the State of Kerala, which was the successor to the erstwhile States of Travancore and Cochin, whereby 'Thandan' as a caste that was included at item No.14 for the purposes of the entire State except Malabar District. Thereafter, the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 came into force with effect from 27th July, 1977 and in the First Schedule under Part-VII thereof is applicable to the State of Kerala, in which 'Thandan' as a caste which show at in item No. 61 thereof. Unlike two other castes shown in the said Part, viz., Boyan and Malayan, which were shown as Scheduled Castes for the specific areas of the State of Kerala, the caste/community 'Thandan' had no such geographical or limitation in the State of Kerala as per the said First Schedule appended to the above said amendment Act, 1976. This clearly meant that 'Thandan' was included as Scheduled Caste for the entire State of Kerala. O.P.Nos.12115/1997 & 27037/2000 4
4. Doubts were raised by the revenue authorities and other authorities in the State of Kerala about the eligibility to enjoy the Scheduled Castes status in respect of the 'Thandan' domiciled in Malabar including Palakkad District and the authorities concerned took the stand that notwithstanding the provisions in the aforementioned Amendment Act, 1976, persons like the petitioners, who belong to 'Thandan' community domiciled in Palakkad District of the State of Kerala, cannot be treated as members of Scheduled Castes community and that such persons should be treated as belonging to Other Backward Classes (OBC).
5. The dispute in this regard was agitated upto the Apex Court. In the case between Palghat Jilla Thandan Samudhaya Samrakshana Samithi & Anr. v. State of Kerala (W.P.Nos.12486-87 of 1984, judgment dated 3.12.1993), reported in 1994(1) KLT 118 (SC), the Supreme Court considered this issue as to the entitlement of the persons who belong to 'Thandan' community domiciled in places like Palakkad District outside the erstwhile Travancore area. The Apex Court mainly relied on two Constitution Bench decisions in B.Basavalingappa v. D. Munichinnappa reported in 1965 (1) O.P.Nos.12115/1997 & 27037/2000 5 SCR 316 and Bhaiyalal v. Harikishan Singh and others reported in (1965) 2 SCR 877, wherein it was held that any amendment to the aforesaid Presidential Orders could only be made by legislation enacted by the Parliament as mandated in Article 341(2) of the Constitution of India. It was held by the Apex Court that the courts could not assume jurisdiction and order an enquiry to determine whether the terms of the Presidential Order included a particular community and that the State of Government is only entitled to initiate appropriate proposals for modification in cases where it is satisfied that such modifications are necessary and, if after appropriate enquiry, the authorities were satisfied that a modification is required, then an amendment through legislation should be undertaken as provided in Article 341(2) of the Constitution of India.
6. Accordingly, the Apex Court in Palghat Jilla Thandan Samudhaya Samrakshana Samithi (supra) held that as 'Thandan' community is listed in the Scheduled Castes Order as contemplated by the provisions of the Constitution, it is not open to the State Government or, indeed, to any court including the Apex Court, to embark upon an enquiry to determine whether a section of Ezhavs/Thiyyas, which are called 'Thandan' O.P.Nos.12115/1997 & 27037/2000 6 in the Malabar area of the State, was excluded from the benefits of the above said Scheduled Castes Order. Accordingly, the Apex Court allowed the Writ Petitions and directed the Government of Kerala to grant to all members of the 'Thandan' community, including those belonging to the erstwhile Malabar District and the present Palakkad District, the benefits due to a Scheduled Caste included in the Schedule to the Scheduled Castes Order as amended upto date and issue to them the community certificates, accordingly, and, thus, the impugned order of the State Government was quashed and set aside and necessary reliefs were also granted to the claimants of Scheduled Caste status.
7. It is averred by the petitioners herein that on an earlier occasion when Scheduled Castes certificates were denied to them, the members of the petitioners' family were constrained to institute Original Suits before the Munsiff Court, Palakkad as O.S.Nos.521/1994, 702/1994 and 360/1995 and that all those cases were allowed by judgment dated 30.11.1996 as evidenced by Exts.P3 to P5 decrees of the Munsiff Court concerned. It is further averred that the State of Kerala had filed appeals against Exts.P3 to P5 judgments and decrees as O.P.Nos.12115/1997 & 27037/2000 7 A.S.Nos. 155/1997, 154/1997 etc. and that the said Appeal Suits were dismissed by the District Court, Palakkad by judgment dated 23.11.1999.
8. It is also stated that the petitioners' father's brother's caste status was declared as 'Thandan' by this Court in the judgment dated 23.8.1995 in O.P.No.8235/1994 and 6493/1995 and that Writ Appeal viz., W.A.No.1459/1995 filed by the State of Kerala against those judgments was also dismissed by the Division Bench as per judgment dated 4.8.2000 in that Writ Appeal.
9. It is the case projected in the Original Petition that the petitioner applied for appointment as Lower Primary School Assistant (LPSA) and Upper Primary School Assistant (UPSA) in the Scheduled Castes quota, by submitting necessary applications in response to the selection notification issued by the Kerala Public Service Commission for appointment to those posts in Government schools. That along with the said applications before the Public Service Commission, the 1st petitioner had produced Ext.P1 community certificate showing her caste status as 'Thandan' recognised as Scheduled Castes, but, at the time of interview, the 1st petitioner was called O.P.Nos.12115/1997 & 27037/2000 8 upon to produce a fresh community certificate. Therefore, she had submitted Ext.P2 application for such fresh community certificate, but, that the 2nd respondent failed to consider the said request.
10. In the background of these facts and circumstances that the petitioners have approached this Court by filing the above Original Petition seeking the following prayers:
"i) to issue writ of mandamus or other appropriate writ order or direction directing the respondents to treat the petitioners as Scheduled Caste Thandan and to confer them all the benefit available SC.
ii) to issue a writ of mandamus or other appropriate writ order or direction directing the 3rd respondent to consider the first petitioner for appointment to the post of LPSA/UPSA on the basis of Ext.P1 certificate and not to deny appointment to the first petitioner solely on the ground that she has not produced a fresh community certificate.
iii) to issue a writ of mandamus or other appropriate writ order or direction directing the second respondent to issue fresh community certificate to the petitioners showing their caste status as Thandan SC forthwith.
iv) to declare that the action of the second respondent in not issuing a fresh community certificate to the petitioners will amount to contempt of the Munsiff Court, Palakkad and to pass consequential order against the second O.P.Nos.12115/1997 & 27037/2000 9 respondent in the light of Ext.P3 to P5 judgments.
and
v) to pass such other and further orders as
are deemed just and necessary in the facts and circumstances of the case."
11. Certain interim orders were issued in this Original Petition, whereby the petitioners could enjoy the benefits of Scheduled Castes status in terms of the law laid down by the Apex Court in Palghat Jilla Thandan Samudhaya Samrakshana Samithi (supra). During the pendency of this Original Petition, the Parliament enacted the Constitution (Scheduled Castes) Order (Amendment) Act, 2007, which received the assent of the President of India on 29th August, 2007 and the amended Act was duly published in the Gazette of India on 30th August, 2007. As per this Amendment Act, 2007 (Central Act No.31 of 2007), which came into force on 30.8.2007, the lists of Scheduled Castes concerning the State of Kerala was amended to the following effect.
Part VIII- Kerala, for entry 61, substitute -
"61. Thandan (Excluding Ezhuvas and Thiyyas who are known as Thandan, in the erstwhile Cochin and Malabar areas) and (Carpenters who are known as Thachan, in the erstwhile O.P.Nos.12115/1997 & 27037/2000 10 Cochin and Travancore State)".
12. The impact of the above said Constitution (Scheduled Castes) Order (Amendment) Act, 2007 (Act No.31 of 2007) published in the Gazette of India on 30th August, 2007, was considered by a Division Bench of this Court in the case between Madhavan P. and others v. State of Kerala and others reported in 2010(2) KHC 739. The Division Bench therein held that members of the 'Thandan' community domiciled in the erstwhile Cochin and Malabar areas are eligible and entitled to enjoy the Scheduled Castes benefit prior to the date of commencement of the above said Amendment Act, 2007, as the said Act is only prospective in nature and that after the commencement of the above said Amendment Act, 2007, the members of the 'Thandan' community in the erstwhile Cochin and Malabar areas are not eligible for Scheduled Castes benefits. The Division Bench unequivocally held that in view of the decision of the Apex Court reported Palghat Jilla Thandan Samudhaya Samrakshana Samithi (supra), the members of the 'Thandan' community in the erstwhile Cochin and Malabar areas are entitled to the benefits of the Scheduled Castes prior O.P.Nos.12115/1997 & 27037/2000 11 to the commencement of the above said Amendment Act and that any benefits obtained by them before the commencement of the above said Amendment Act, 2007 cannot be taken away but that after the amendment of the Schedule as per the above said Amendment Act, 2007, such community members are not entitled to claim benefits as Scheduled Tribes. The Bench held that all the benefits including educational benefits granted to them on the basis of their Scheduled Caste status prior to the Amendment Act, 2007 cannot be cancelled or deprived in any manner. But they cannot claim any benefit including employment in future claiming to be members of the Scheduled Caste and from the date of commencement of the Amendment Act, 2007, they cannot be treated as members of the Scheduled Castes. It was specifically directed by the Division Bench that the employment benefits secured by them prior to the Amendment Act, 2007 cannot be in any way terminated or cancelled as the initial appointment was correct in law and that they are entitled to get salary and pension till their date of superannuation. But they cannot claim any future benefit as Scheduled Caste with effect from the date of commencement of the Amendment Act, 2007, as the Schedule has been amended, whereby the O.P.Nos.12115/1997 & 27037/2000 12 community to which the petitioners belong have been excluded from the purview of the status as Scheduled Caste. It is also made clear by the Division Bench that children/offspring of such claimants also will not be entitled to any benefit of the Scheduled Caste community after 29th August, 2007 though their admissions to educational purpose or appointments in employment obtained by them before the amendment of the Schedule are valid in law.
13. A learned Judge of this Court in the case between Raveendranath P. v. State of Kerala and Others reported in 2012(1) KHC 175, also followed the above said principles enunciated in the aforementioned Division Bench judgment in Madhavan P. v. State of Kerala reported in 2010(2) KHC 739.
14. The matter is now no more res integra, as the Apex Court in the case between Unnikrishnan v. Mahanudevan (C.A.No.3468 of 2007 and connected cases, judgment dated 10.1.2014) reported in 2014(2) KLT 524(SC) has also taken the similar view and held that the Scheduled Caste benefits granted to the respondents therein till 30th August, 2007 shall remain undisturbed and that only those advantageous in terms of promotion or otherwise which the respondent therein may have O.P.Nos.12115/1997 & 27037/2000 13 been granted after the said date of commencement of the Amendment Act, 2007 solely on the basis of his being treated as Scheduled Caste candidate may if so advised be withdrawn by the competent authority. It is made clear that the respondent therein shall not be entitled to claim any benefit in future as a Scheduled Caste candidate but no benefit admissible to him as an OBC candidate shall be denied. The Apex Court categorically held therein that the above said Amendment Act, 2007 is prospective.
15. The Apex Court in the aforementioned decision mainly relied on the judgments as in State of Maharashtra v. Milind reported in (2001) 1 SCC 4, Kavitha solunke v. State of Maharashtra reported in (2012) 8 SCC 430 and Sandeep Subhash Parate v. State of Maharashtra reported in (2006) 7 SCC 501 etc. for coming to the above said conclusion.
16. The Apex Court in the aforementioned decision in Unnikrishnan v. Mahanudevan (supra) in paragraph 28 thereof has noted that after the coming into force of the above said Constitution (Scheduled Castes) Order (Amendment) Act, 2007, the Government of Kerala by Order No.93/2010/SC/ST O.P.Nos.12115/1997 & 27037/2000 14 dated 30th August, 2010 has ordered that Ezhavas and Thiyyas who are known as 'Thandan' in the erstwhile Cochin and Malabar areas shall be treated as OBCs in List III of Other Backward Classes (OBC) in the State of Kerala. The Apex Court unequivocally held that the deletion incorporated in the aforementioned Constitution (Scheduled Castes) Order (Amendment) Act, 2007, is only prospective in nature for Ezhavas and Thiyya known as 'Thandan' in the erstwhile Cochin and Malabar areas and that in view of the earlier conclusive declaration of the law made by the Apex Court, the said community is entitled to be treated as Scheduled Caste prior to the coming into force of the Amendment Act, 2007. In view of the order dated 30.8.2010 including them as OBC, the Apex Court also order that in paragraph 34 in Unnikrishnan v. Mahanudevan (supra) that though the respondent therein shall not be entitled to claim any benefit in the future as a scheduled caste candidate, no benefit admissible to him as an OBC candidate shall be denied.
17. It is indisputable that the main matter in issue raised in this writ proceedings are covered in view of the legal principles laid down by the Division Bench in the aforementioned O.P.Nos.12115/1997 & 27037/2000 15 decision in Madhavan P. and others v. State of Kerala and others reported in 2010(2) KHC 739 and by the Apex Court in the aforementioned decision reported in Unnikrishnan v. Mahanudevan 2014(2) KLT 524(SC).
18. Accordingly, it is ordered that all benefits and rights that have been granted to the petitioners as Scheduled Caste prior to the commencement of the Constitution (Scheduled Castes) Order (Amendment) Act, 2007, shall not be deprived of or cancelled in any manner as directed in the above said Division Bench Judgment and the Apex Court judgment referred to above. However, it is made clear that on and with effect from 30.8.2007, the writ petitioners are not entitled in law to be treated as members of Scheduled Caste community in view of the deletion of the 'Thandan' community of the erstwhile Cochin and Travancore area from the purview of the Scheduled Castes Order by virtue of the above said Act, 2007. The orders of the competent authority of the Government of Kerala, dealing with the status of the petitioners' community, may be worked out subject to the condition that any benefit granted or accrued to them as Scheduled Caste prior to 30.8.2007 shall not be deprived or cancelled in any manner. But it is equally made O.P.Nos.12115/1997 & 27037/2000 16 clear that the State of Kerala and their subordinate authorities concerned are fully entitled in law to treat the petitioners as not belonging to Scheduled Castes community on and with effect from 30.8.2007 in view of the above said amendment Act, 2007.
19. With these observations and directions, the Original Petition stands finally disposed of. There shall be no order as to costs.
O.P.No.27037 OF 2000:
20. The nature of the controversy raised in this case is also similar to that raised in O.P.No.12115/1997 dealt with above. The prayers in this Original Petition are as follows:
"a) to issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P3 and P5 since the same are issued in violation of Ext.P1 &P2 judgments;
b) to issue a writ of certiorari or other appropriate writ order or directing to quash Ext.P3 & P5 since the same is issue in violation of Article 21 of the Constitution;
c) to declare that the respondents have no jurisdiction to conduct a fresh enquiry regarding the caste status of the petitioner;
d) to issue a writ of mandamus or other appropriate writ order or direction to the respondents to issue community certificates to the petitioners showing their caste as Thandan (S.C) O.P.Nos.12115/1997 & 27037/2000 17 and
e) to pass such other and further orders as are deemed just and necessary in the facts and circumstances of the case."
21. The 1st petitioner in this Original Petition is the father of the other petitioners herein. Petitioners 2, 3 and 4 herein are the petitioners 1 to 3 in O.P.No.12115/1997. Therefore, it is not really necessary to advert to the factual details in this case as the substantial nature of the subsisting legal controversy is almost the same. The orders and directions granted in O.P.No.12115/1997 shall govern this case also. Accordingly, it is ordered and directed that all benefits and rights accrued to the petitioners herein as members of the Scheduled Case community prior to 30.8.2007, viz., the date of commencement of the Constitution (Scheduled Castes) Order (Amendment) Act, 2007 shall not be disturbed, deprived or cancelled in any manner by the respondent authorities concerned. It is equally made clear that on and with effect from 30.8.2007, the date of coming into force of the above said Amendment Act, 2007, the State of Kerala and all authorities under the Government are entitled in law to treat the petitioners herein as not belonging to Scheduled O.P.Nos.12115/1997 & 27037/2000 18 Castes. These directions are issued in view of the prospective deletion of the 'Thandan' community of the erstwhile Cochin and Malabar areas from the purview of Scheduled Castes status as per the above said Amendment Act, 2007.
With these directions and observations, this Original Petition stands disposed of.
However, there will be no order as to costs.
Sd/-
ALEXANDER THOMAS, JUDGE.
ps/23/72014 //True copy// PA to Judge