Kerala High Court
K.N.Pushpavally vs State Of Kerala
Author: Mary Joseph
Bench: C.T.Ravikumar, Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939
MFA.No. 107 of 2006 ( )
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APPELLANT(S):
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1. K.N.PUSHPAVALLY
KANNADANPARAMBIL HOUSE, ERUVELIPRA, THIRUVALLA.
2. P. SHYLAJADEVI,
KANNADANPARAMBIL HOUSE, ERUVELIPRA, THIRUVALLA.
3. JYOTHI PRAKASH,
KANNADANPARAMBIL HOUSE, ERUVELIPRA, THIRUVALLA.
4. SANILAKUMARI,
KANNADANPARAMBIL HOUSE, ERUVELIPRA, THIRUVALLA.
5. K.N. PUSHPANGADAN,
KANNADANPARAMBIL HOUSE, ERUVELIPRA,, THIRUVALLA.
6. K.N. SATHEESAN,
KANNADANPARAMBIL HOUSE, ERUVELIPRA, THIRUVALLA.
7. K.N. SANTHAMMA, H.NO.701/28,
SRI NIKETH, KADAVANTHRA, KOCHI-20.
8. ABHILASH, S/O. SANTHAMMA,
H.NO.701/28, SRI NIKETH, KADAVANTHRA, KOCHI-20.
9. ASA NITHIN @ ASA RANI,
D/O. SANTHAMMA, H.NO.701/28,, SRI NIKETH, KADAVANTHRA,
KOCHI-20.
10. ASOKA RANI, D/O. SANTHAMMA,
H.NO.701/28, SRI NIKETH,, KADAVANTHRA, KOCHI-20.
11. ANISH KUMAR @ ANIL KUMAR,
S/O. SANTHAMMA, H.N.O.701/28,, SRI NIKETH, KADAVANTHRA,
KOCHI-20.
BY ADV. SRI.K.RAMAKUMAR (SR.)
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY THE
CHIEF SECRETARY, THIRUVANANTHAPURAM.
2. THE COMMISSIONER AND SECRETARY TO
GOVERNMENT, SCHEDULED CASTE & SCHEDULED TRIBES,
DEVELOPMENT (E) DEPARTMENT, THIRUVANANTHAPURAM, (THE
CHAIRMAN, SCRUTINY COMMITTEE FOR VERIFICATION OF THE
SCHEDULED TRIBES (MALAYARAYAN) CLAIM OF THE FAMILY
MEMBERS OF LATE A.K. NARAYANAN)
3. THE DIRECTOR, SCHEDULED CASTES DEVELOPMENT DEPARTMENT,
THIRUVANANTHAPURAM.
4. THE DIRECTOR, SCHEDULED TRIBES DEVELOPMENT DEPARTMENT,
THIRUVANANTHAPURAM.
5. THE DISTRICT COLLECTOR,
PATHANAMTHITTA DISTRICT.
6. THE TAHSILDAR, KANAYANNUR TALUK,
ERNAKULAM DISTRICT.
7. THE TAHSILDAR, THIRUVALLA,
PATHANAMTHITTA DISTRICT.
*8. THE COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE
WILLINGTON ISLAND, COCHIN-09
*(IMPLEADED AS ADDITIONAL 8TH RESPONDENT AS PER ORDER DATED
22.7.2008 IN I.A.NO.1739/2008)
R,R8 BY ADV. SHRI.SUNIL JACOB JOSE, CGC
R1 TO 7 BY GOVERNMENT PLEADER SMT.P.K.SANTHAMMA
R,ADDL.R8 BY ADV. SRI.P.GOPINATH MENON,SC
R,R8 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,
RADDL-R8 BY ADV. SRI.SAIBY JOSE KIDANGOOR
R8 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
BY SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
R.ADDL-R8 BY ADV. SMT.PREETHA S. NAIR, SC
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30.8.2017, THE
COURT ON 9.10.2017 DELIVERED THE FOLLOWING:
C.T.RAVIKUMAR
&
MARY JOSEPH, JJ.
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M.F.A.No.107 OF 2006
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Dated this the 9th day of October, 2017
Ravikumar, J.
JUDGMENT
This appeal is filed under Section 12(3) of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (Act 11 of 1996), (for short 'the Act'). The relationship between the appellants are not pointedly specified in this appeal. Nonetheless, a conjoint reading of following recitals in paragraphs 2 and 3 and the cause title, of the captioned appeal would make it appear that the appellants 1 to 7 as also the others are epigoni of one Kunjan Narayanan:-
"The appellants' father late Kunjan Narayanan approaches (sic.approached) this Hon'ble Court for declaration that he belongs to Hindu Araya Community which was granted. Pursuant to the judgment, the Tahsildar, Thiruvalla declared that the said Kunjan Narayanan is a member of the Mala Araya Community. Thus the appellants are also entitled to the same declaration as the children of the said Kunjan Narayanan.
M.F.A.No.107/2006 2 ............That order appears to have been passed based on a petition from S.Asharani, D/o.K.N.Santhamma, the sister of the appellants that she is a member of the scheduled tribe."
Going by the cause title of this appeal, the aforementioned K.N.Santhamma is the 7th appellant and the aforementioned Asha Rani is the 9th appellant herein. It will also reveal that appellants 8, 10 and 11 are also the children of the said K.N.Santhamma. In other words, appellants 1 to 7 are siblings and they are the children of one Kunjan Narayanan and appellants 8 to 11 are the children of the 7th appellant, going by the narration of facts in the appeal. Though it is stated that the first appellant is filing this appeal representing her minor children who are seeking admission to various educational institutions and professional courses in State, their details including names, age, courses and colleges in which they seek admissions are not specifically stated in the appeal. It is to be noted that the cause title will disclose that the first appellant filed this appeal in her individual capacity and not in any representative capacity. The appellants assail M.F.A.No.107/2006 3 Annexure-B order of the scrutiny committee whereby and whereunder it reached the conclusion that the claimants, late.Sri.A.K.Narayanan, his children and grand children did not belong to Scheduled Tribe (Mala Araya) Community as claimed by them and they belong to Araya Community included in the list of Other Backward Castes. Pursuant to such conclusion and findings, it was ordered to cancel all the Scheduled Tribe Community certificates issued to them. In contrast to what is given in Annexure-B, the appellants gave their fathers'/grandfathers' name in the appeal memorandum as 'Kunjan Narayanan' instead of A.K.Narayanan. But this confusing situation would fade away on a perusal of the affidavit accompanying I.A.No.1073/2006 and the reply affidavit dated 11.11.2006, filed by the first appellant in this appeal. In the former, she gave her father's name as Kunjan Narayanan and in the latter, it is given as 'K.A.Narayanan'. Thus, it can be seen that 'Kunjan Narayanan' and 'K.A.Narayanan' are one and the same person. Virtually, the tenor of the statements in the appeal would also indicate the said position. It M.F.A.No.107/2006 4 was also decided as per Annexure-8 to submit a copy of the said proceedings to the Government for further action. The appellants filed this appeal before initiation of any such action by the Government. With this prelude, we will proceed to consider the appeal on merits.
2. The facts of the case in brief, necessary for disposal of this appeal, are as follows:-
At the time of filing of the captioned appeal, appellants 1 and 5 were working as Sub Postmasters. Admittedly, they obtained employment claiming consanguinity with Scheduled Tribes and on the strength of caste certificates revealing their caste status as Hindu Mala Araya of Scheduled Tribes. With respect to the avocation or scholastic details of the other appellants, there is no mention in the appeal. The pith of their claims and contentions is evident from the already extracted recitals from paragraphs 2 and 3 of the appeal. It is also the case of the appellants that they are permanent residents of Eravelipra Village in Thiruvalla Taluk and that their fore-fathers M.F.A.No.107/2006 5 belonged to Hindu Mala Araya Community and they also belong to Hindu Mala Araya community of Scheduled Tribes. Their further case is that certain members of the said community belonging to the same area instituted O.S.No.487 of 1978 before the Munsiff's Court, Thiruvalla and that one of the materials relied on by the Munsiff's Court for pronouncing its judgment was a certificate issued in favour of their father Kunjan Narayanan wherein his caste status was shown as Hindu Mala Araya Community of Scheduled Tribes. Munsiff's Court gave a declaration therein that the plaintiffs before it belong to Hindu Mala Araya Community included in the list of Scheduled Tribes. Later, according to the appellants, their father/grandfather Kunjan Narayanan, approached this Court by filing an original petition (its number is not mentioned in the appeal) seeking a declaration of his caste status as Hindu Mala Araya Community belonging to Scheduled Tribes. According to them, pursuant to the judgment passed thereon, the Tahsildar, Thiruvalla issued certificate declaring Kunjan Narayanan's caste status as Hindu Mala Araya M.F.A.No.107/2006 6 Community belonging to Scheduled Tribes. The further statement in the appeal that subsequently, based on the judgment in O.P.No.6068/1982, the Tahsildar, Thiruvalla issued caste certificates to the appellants showing them as persons belonging to Hindu Mala Araya Community of Scheduled Tribes, would make it appear that the said original petition was the one filed earlier by Sri.Kunjan Narayanan. Admittedly, the appellants 1 and 5 obtained employment based on the benefit of reservation. The nub of the contention of the appellants is that they being the children or grand children of the aforesaid Kunjan Narayanan, they are also entitled to the same declaration regarding their caste status. The appellants, in a vague manner, explained the situation whereunder an order was passed in March, 1991 by the 2nd respondent carrying a declaration to the effect that the family of Sri.Kunjan Narayanan did not belong to Hindu Mala Araya Community. According to the appellants, it must have been passed based on the direction of this Court in O.P.No.6753 of 1989 filed by Kumari S.Sheeja who is the daughter of K.N.Satheemani, M.F.A.No.107/2006 7 another sister of the appellants. It is further stated by the appellants that the said Sheeja filed O.P.No.9856 of 1990 before this Court and it is pending. According to the appellants, none of the appellants as also the aforesaid Narayanan were heard prior to the passing of the said order denuding them of Scheduled Tribe status. Without even mentioning the number, it is stated in the appeal that they moved an Original Petition, in the circumstances, challenging the order of the Government based on the report of the KIRTADS and that the impugned order was set aside and the said O.P. was disposed of with a direction to reconsider the entire matter after affording them an opportunity to show cause. Annexure-B is the order passed by the scrutiny committee after such reconsideration. Essentially, the main challenge against Annexure-B order is that it would work out manifest injustice even to persons who were not before the scrutiny committee and that the decision thereon was made based on irrelevant and extraneous considerations. It is the further contention that the committee had failed to notice that for years together, the appellants M.F.A.No.107/2006 8 had been enjoying the benefits of reservation and many of them had already retired from service. Raising, inter alia, such grounds, they seek to set aside Annexure-B order dated 18.4.2006, in this appeal.
3. We have heard the learned counsel appearing for the appellants, the learned counsel appearing for the additional 8th respondent and also the learned Special Government Pleader. We have gone through the counter affidavit, reply affidavit, additional counter affidavit as also the relevant documents. The learned Special Government Pleader took us through Annexure-B order of the 2nd respondent as also the report of the KIRTADS to counter the contentions of the appellants. It is submitted that the committee constituted under 'the Act' was competent to consider the issue in view of the provisions of the Act as also based on the direction of this Court and various other decisions upholding its competency and jurisdiction. According to him, consequently, it considered and examined all the relevant documents. It is also submitted that the committee offered personal hearing to the appellants on 18.1.2006, but they did not turn M.F.A.No.107/2006 9 up for hearing. In this context, it is to be noted that though such a specific contention has been raised by the respondents in their counter affidavit and that fact was highlighted, the appellants did not refute the said factual contention in their reply affidavit filed pursuant to the filing of the counter affidavit. In the contextual situation, it is also relevant to note that the first appellant along with five others had earlier filed O.P.No.6361 of 1997 and the 7th appellant along with appellants 8 to 10 and five others had filed O.P.No.8035 of 1997, before this Court. Both the Original Petitions were disposed of by this Court as per separate judgments dated 2.8.2005. Evidently, the Division Bench took note of the judgment passed by another Division Bench on 17.9.2002 in M.F.A No.1318 of 1999 while disposing the said original petitions and held that it should govern the situation. In the light of the said decision, it was held therein that it would be more appropriate if the case is examined by the scrutiny committee constituted under 'the Act' after examining the materials that are placed before them, but untrammelled by any earlier observations. M.F.A.No.107/2006 10 The orders impugned in the said Original Petitions were formally set aside so as to enable the scrutiny committee to make such a consideration. In such circumstances, when opportunity of being heard was offered but not availed off, the appellants cannot be heard to contend that they were deprived of such an opportunity. Annexure- B order also reveals the fact that before the passing of the order, appellant Nos.1 and 7 to 11 as per their representations dated 10.11.2005 requested further time to furnish explanations to the notice issued by the scrutiny committee and accordingly, time was granted. It would also reveal that later, appellant Nos.1 to 7 had submitted explanation, and some of them filed written statements and documents, before the committee. In the circumstances, we have no hesitation to hold that the appellants cannot assail Annexure-B order raising such a contention and therefore, in the Original Petitions referred above, their contentions have to be appreciated and the decision of the scrutiny committee constituted under 'the Act' has to be looked into, based on the factual aspects obtained and the plethora of M.F.A.No.107/2006 11 precedents. In the contextual situation, it is relevant to refer to the decision of the Hon'ble Apex Court in Dharampal Satyapal Limited v. Deputy Commissioner of Central Excise, Gauhati and others reported in 2015 (8) SCC 519. The Hon'ble Apex Court was considering the flexible nature of principles of natural justice. The Apex Court held that there may be situation where it can be held that a fair hearing would make no difference. In other words, a hearing would not change the ultimate conclusion reached by the decision maker. In such situations, fair procedures appear to serve no purpose since the right result could be secured without according such treatment to the individual. It was also held that in such circumstances, there is no necessity to strike down an action and referred the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non- grant of hearing had not caused any prejudice to the person against whom the action is taken. The sum and substance of the decision is that in such circumstances, the validity of the order had to be decided M.F.A.No.107/2006 12 on the touchstone of prejudice. The Apex Court also cautioned that the right to make such a consideration would not be available to the original decision making authority and therefore, it could not dispense with the principles of natural justice on the ground that affording such an opportunity would make no difference. In the case on hand, the appellants cannot have a grievance that they were not heard prior to the issuance of Annexure-B order.
4. Even if they were not offered with an opportunity of being heard, that by itself cannot be a reason to interfere with Annexure-B order in the light of the decision in Dharampal Satyapal's case (supra). In the context of the contentions, certain other factors also assume relevance. In the appeal, it is stated that the appellants have earlier filed MFANos.367 of 1997 and 424 of 2001 relating to the very same issue involved in the captioned appeal and that they are pending consideration before this Court. As a matter of fact, the said MFAs were already disposed of by this Court. MFA No.424 of 2001 was disposed of by the Division Bench as per judgment dated 14.1.2009. M.F.A.No.107/2006 13 The said decision is reported as Anila v. State of Kerala in 2009 (4) KLT 112. A perusal of the records in Anila's case (supra) would reveal that none of the appellants in this appeal are parties to the said appeal. Nonetheless, it would reveal, as contended by the appellant themselves, that the nature of the issue involved in the captioned appeal and the said appeal is one and the same. A scanning of the decision in Anila's case (supra) would reveal that contentions akin to the contentions raised by the appellants herein, were raised in the said appeal by the appellants therein to assail the orders passed by the scrutiny committee against their interest. The Division Bench took note of the fact that an elaborate genealogical study was done in that case and the said study conclusively proved that the parents of the appellants therein belonged to Araya Community and not Mala Araya Community. The findings of the scrutiny committee was upheld. But at the same time, the Division Bench found that the appellants therein got employment and various service benefits on the strength of declaration of caste status of their mother and orders issued by this M.F.A.No.107/2006 14 Court to grant that benefit to their children although subsequently, the very basis of such orders were found wrong based on the decision of the scrutiny committee taken after examining materials including the report of KIRTADS. Further, it was found that in such circumstances, it could not be held that the petitioners had played any fraud and then, applying the principles laid down by this Court in the decision reported in Prakash v. State of Kerala (2002 (2) KLT 580) it was held that the denial of Scheduled Tribe status to the appellants would operate only prospectively from the date of issuance of Annexure-B and benefits accrued to them till the date of Annexure-B (the order impugned therein) should not be disturbed. It was further made clear therein that the employment secured by them or any promotions granted to them should not be cancelled or disturbed, but from the date of Annexure-B order the appellants therein were not entitled to get any benefit available to the members of the scheduled tribe.
5. We will consider the tenability of the contentions raised by the appellants herein to assail Annexure-B order dated 18.4.2006. As M.F.A.No.107/2006 15 noticed hereinbefore, Annexure-B is the order passed by the scrutiny committee in compliance with the directions of this Court in judgment dated 2.8.2005 in O.P.No.6361 of 1997 filed by the first appellant along with five others and in O.P.No.8035 of 1997 filed by the 7th appellant along with appellants 8 to 10 and five others. It is also evident from Annexure-B that while making such a consideration, the scrutiny committee had also considered the report from the KIRTADS prepared after conducting an anthropological study in respect of the aforesaid Narayanan who is the father/grandfather of the appellants. Evidently, the cases of the appellants were also dealt with. The said report No.C-1286/89 dated 13.2.1991 is sought to be challenged by the appellants contending that it is a report of the Vigilance Officer, KIRTADS and the Vigilance Officer is incompetent to make such report. The same along with the materials relied on were produced by the first respondent along with the counter affidavit. It would reveal that there is no substance in the contention and it was in fact genealogical study conducted by the KIRTADS in accordance with M.F.A.No.107/2006 16 law. The same was submitted by the Director of KIRTADS to the Commissioner and Secretary of Government, Scheduled Caste and Scheduled Tribe Development Department for taking action against appellants 1, 5 and 7 and against one K.N.Satheemani, another sister of the appellants. In the decision in Lillykutty v. Scrutiny Committee, SC & ST and others [(2005) 8 SCC 283], the Apex Court held that the report of the scrutiny committee based on materials on record including expert agency report holding a person as belonging to scheduled caste or scheduled tribe could not be subjected to judicial review under Article 136. It was held therein that obtaining a false certificate with a view to obtain undue advantage would amount to commission of fraud. So also, it was held that an action to obtain a right/privilege under the situation in subversion of constitutional purpose amounts to fraud on the Constitution. A report of the expert agency based on enquiry conducted in terms of section 9 of the Act is conclusive proof against scheduled caste or scheduled tribe claim unless the same is found contrary by the scrutiny M.F.A.No.107/2006 17 committee. [See the decision of the learned Single Judge of this Court in Lavya A v. Director of Medical Education Tvm and others (2014 (1) KHC 290)]. The learned counsel for the appellants sought to challenge Annexure-B order by placing reliance on a Division Bench decision of this Court in Vijayan v. State of Kerala (2013 (2) KLT 488). Essentially, the contention is that in the light of the said decision, on a mere finding that a person is not a member of the scheduled caste or scheduled tribe, a community certificate obtained by him could not be cancelled by the scrutiny committee. In the case on hand, true that, as has been done generally, the scrutiny committee ordered to cancel the community certificates issued to the aforesaid Narayanan, his children and grand children and further decided to submit a copy of the proceedings to Government for appropriate action. Admittedly, the appellants herein approached this Court challenging Annexure-B order before any action is taken thereon, by the Government. This Court, as per order in I.A.No.1073 of 2006, passed an order of an interim stay of the impugned Annexure-B order. M.F.A.No.107/2006 18 Subsequently, the said order was extended until further orders. It is still in force.
6. In this appeal, the appellants referred to the judgment earlier passed by the Munsiff's Court, Thiruvalla in O.S.No.487/1978 filed by certain persons from the very same locality from where the appellants hail. It is also stated that the court declared the caste status of the plaintiffs therein as Hindu Mala Araya Community. Thereafter, the appellants mentioned about the dismissal of the appeal, obviously, the First Appeal and then averred further thus:-
"Based on that judgment and other materials presented before this Hon'ble Court, this Hon'ble Court had also declared that persons similarly situate come under the category of Mala Araya Community and entitled to the benefits. The appellant's father late Kunjan Narayanan approaches this Hon'ble Court for declaration that he belongs to the Hindu Mala Araya Community which was granted. Pursuant to the judgment, the Tahsildar, Thiruvalla declared that the said Kunjan Narayanan is a member of the Mala Araya Community. Thus the appellants are also entitled to the same declaration as the children of the said Kunjan Narayanan. It may be stated here that one of the M.F.A.No.107/2006 19 materials relied on by the Hon'ble Munsiff's Court in pronouncing the judgment aforesaid was a certificate produced in the suit issued in favour of the appellant's father Kunjan Narayanan that he was a member of the Hindu Mala Araya Community. In the case of the appellants also based on the judgment of this Hon'ble Court in O.P.6068 of 1982 certificates were issued by the Tahsildar, Thiruvalla that they belong to the Hindu Mala Araya Community. The appellants were not parties to the above civil suit."
In the contextual situation, a decision of the Division Bench in M.F.A.No.1007 of 1999 assumes relevance. As has been done by the appellants herein, the appellants therein also made reference in the appeal about the judgment in O.S.No.487/1978 of Munsiff's Court, Thiruvalla. It is also to be noted that the first appellant therein was working as Postmaster in the postal service like appellants 1 and 5 herein. The appellants therein also claimed that they belonged to Hindu Mala Araya Community and as per the judgment dated 18.6.2007, this Court dismissed the appeal subject to certain observations. This Court took note of the fact that though the appeal M.F.A.No.107/2006 20 preferred against the judgment and decree in O.S.No.487 of 1978 was dismissed, in the second appeal filed therefrom, this Court, after condoning delay, held that Civil Court got no jurisdiction to determine the caste status and it had to be determined by the statutory authority only. In the judgment in MFA.No.1007 of 1999, the observations of this Court in W.P.(C).No.4788/1989 and connected cases to the effect that the Munsiff's Court could not have granted a declaration in respect of unascertained group of persons and the factum of initiation of proceedings for cancelling caste certificates as the petitioners obtained job on the basis of community certificates issued by the Tahsildar that they belong to Hindu Mala Araya Community of Scheduled Tribes, were taken into consideration. Evidently, in M.F.A.No.1007 of 1009, the Division Bench considered the scrutiny committee's order, passed after getting reports from the KIRTADS. Evidently, the said report was gone into by the scrutiny committee before coming into a finding that the appellants therein did not belong to Hindu Mala Araya Community whereas they belong to Araya M.F.A.No.107/2006 21 Community included in the list of other backward communities. Ultimately, after going through the documents and caste status of close relatives of the appellants therein, the challenge against the order of the scrutiny committee was repelled and the said appeal was dismissed. The Division Bench found that in terms of the provisions under section 11 of the Act, Government could take appropriate action and also could cancel certificates issued by Tahsildar and authorities in the light of scrutiny committee's reports. At the same time, upon finding that the appellants therein did not obtain certificates by fraud and the Tahsildar issued certificates based on the judgment and decree of the Munsiff's Court which remained in force for long time, it was held that they could not be said to have committed any offence and government could take action based on the report of the scrutiny committee only with prospective effect. It was held that the children of the appellants therein would not be entitled to get any benefit in future based on earlier community certificates and subject to such observations, the appeal was dismissed. We have already taken note M.F.A.No.107/2006 22 of the fact that in Anila's case (supra) which even according to the appellants, a case where similar issues involved, another Division Bench of this Court virtually took similar view on the fate of the appellants even after upholding the order of the scrutiny committee. It was held that since the appellants therein got employment and other various service benefits on the strength of declaration of caste status of their mother and also based on orders passed by this Court to grant benefits based on such declaration, they could not be said to have committed fraud. Consequently, applying the principles laid down in the decision in Prakash v. State of Kerala (2002 (2) KLT 580), held that denial of scheduled tribe status to the appellants therein would be operative only prospectively from the date of the order challenged therein.
7. In this case, the scrutiny committee had taken into account all materials produced before it as also Annexure-R1(a) report of the KIRTADS. On going through Annexure-B order and Annexure-R1(a), it is evident that the expert agency had conducted a genealogical study M.F.A.No.107/2006 23 for arriving at the conclusion that the aforesaid Narayanan does not belong to Hindu Mala Araya Community of Scheduled Tribes and belongs to Araya Community included in the list of O.B.C. On examination of documents viz., the report of the KIRTADS and documents verified by the said expert agency, the scrutiny committee found that the paternal grandfather and grandmother of Sri.K.A.Narayanan belonged to Araya fishermen community included in the list of O.B.C and going by the National Register of Citizens 1954, the said Narayanan, his parents, his siblings and children belonged to Araya Community by caste. In the school register of aforesaid Narayanan, his caste name was shown as Arayan and that was done as far back in 1103 ME. These aspects revealed from Annexure-R1(a) were considered in detail by the scrutiny committee and evidently, the scrutiny committee had also analysed the evidence adduced before it. It is the culmination of such consideration that resulted in the finding that the aforesaid Narayanan was born in Araya fishermen community and he did not belong to Hindu Mala Araya M.F.A.No.107/2006 24 Community of Scheduled Tribes. As noticed hereinbefore, the specific contention of the appellants is that the said Narayanan, their father, had approached this Court by filing a writ petition (the number of the writ petition was not specifically mentioned) pursuant to the judgment and decree in O.S.No.487/1978 of Munsiff Court, Thiruvalla in respect of certain similarly situated persons and obtained a declaration that he too belonged to Hindu Mala Araya Community of Scheduled Tribes. Going by the averments of the Appellants, they obtained certificates showing their caste status as Hindu Mala Araya Community based on the said declaration in favour of their father. We have already found that the judgment and decree in O.S.No.487/1978 was reversed by this Court and evidently, the very basis of the judgment rendered in favour of the aforesaid Narayanan had lost with the said reversal as also in view of our finding that Annexure-B order invites no interference. In such circumstances, none of the epigoni of the said Narayanan viz., the appellants and his other children and grand children could claim any right to maintain the caste status of M.F.A.No.107/2006 25 Hindu Mala Araya Community belonging to Scheduled Tribes. Even according to the appellants, they were issued with certificates showing scheduled caste status as Hindu Mala Araya based only on the declaration of scheduled caste status given in favour of their father and order of this Court. In the said circumstances, merely because the scrutiny committee had also referred to the general aspects relating to Araya Community and Mala Araya Community and also their distinction, that could not be taken as a reason to interfere with the order of the scrutiny committee.
8. In the light of the discussions hereinbefore, we do not find any reason to hold that the order of the scrutiny committee is perverse or illegal warranting an interference. An order passed by the scrutiny committee based on materials on record including the expert agency's report on the caste status of a person could not be interfered with merely because the said order would work out manifest injustice to them inasmuch as they are enjoying the benefits for considerably long period. Once it is evident that the person/persons concerned did not M.F.A.No.107/2006 26 belong to Hindu Mala Araya Community, a caste included in the list of Scheduled Tribes and belong to Araya Community included in the list of O.B.C, allowing such persons to continue to enjoy such benefits grantable only to persons belonging to a caste included in the list of Scheduled Tribes, would be against the Constitution and also would violate the plethora of precedents on the subject including the decision in Kavita Solunke v. State of Maharashtra and others reported in (2012) 8 SCC 430.
9. In the light of the aforesaid circumstances and also taking note of the fact that without waiting for the orders/action to be passed or taken by the Government on Annexure-B order, the appellants had rushed to this Court and obtained stay order, we are of the considered view that it could not take away the power of the government to pass appropriate orders based on the order of the scrutiny committee.
10. As already noticed, the petitioners obtained certificates carrying declaration of their caste status as Mala Araya Community of scheduled caste based on such a certificate issued in favour of their M.F.A.No.107/2006 27 father/grandfather viz., aforesaid Narayanan subsequent to the judgment of this Court. We have already found that the appellants cannot claim for retention of their caste status as Hindu Mala Araya Community as the very basis of their claim, as mentioned above, had fallen to ground based on the judgment in the second appeal arising from the judgments in O.S.No.487/1978 and the first appeal therefrom as also due to the confirmation of the finding of the scrutiny committee that late Sr.K.A.Narayanan, his children and grand children do not belong to Hindu Mala Araya Community and belong to Araya Community included in the list of OBC. In the aforesaid circumstances, the appellants cannot be accused of obtaining employment/admissions in institutions or professional courses by committing fraud. Therefore, as held by this Court in the judgment in MFA No.1007 of 1999 as also in Anila's case (supra), Annexure B order though does not call for any interference would operate only prospectively. The learned counsel appearing for the appellants attempted to canvass the position that they cannot be deprived of the M.F.A.No.107/2006 28 benefits flowing from the caste status certificates issued to them earlier. However, we do not find it sustainable in the light of the judgments in M.F.A.No.1007 of 1999, the decision in Anila's case (supra) as also the decisions of the Hon'ble Apex Court in State of Maharashtra v. Milind [(2001) 1 SCC 4) and in Kavitha Solunke's case (supra). Applying the aforesaid decisions to the case on hand, we do not find any reason as to why the benefit of protection against ouster from appointments/admissions should not be extended to the appellants with the rider that they would not be entitled to any further benefit by claiming their caste status as Hindu Mala Araya Community. Consequently, the benefits already given to the appellants could not be recovered from them and also they are not liable to be prosecuted for their past acts. In other words, the denial of scheduled tribe status to the appellants would be operative only prospectively. The benefits accrued to them till the date of Anexure B order shall not be disturbed. The employment secured, promotions if any obtained and also admissions to institutions or professional M.F.A.No.107/2006 29 courses obtained shall not be cancelled or disturbed. But at the same time, the appellants shall not be entitled to get benefits available to the members of the scheduled tribe in future. Needless to say that the children of the appellants are also not entitled to take any benefit, in future, on the basis of the earlier community certificates. Government or authorities or employers will be free to pass appropriate orders for which they are entitled and empowered in view of the provisions of the Act, on the basis of Annexure B order. But, that shall be done only subject to the above.
The appeal is dismissed subject to the above observations. No order as to costs.
Sd/-
C.T.RAVIKUMAR, JUDGE Sd/-
MARY JOSEPH, JUDGE spc/ M.F.A.No.107/2006 30