IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1405 of 2008()
1. K.P.PADMANABHAN,
... Petitioner
2. C.KUMARAN, S/O.RAMAN, VAISAKHAM,
3. APPU.P., S/O.VELAYUDHAN, POOLAKAL HOUSE
4. P.K.VALSALA, PALATHARA MUTHU MAHAL
Vs
1. STATE OF KERALA, REP. BY SECRETARY
... Respondent
For Petitioner :SRI.BINDU SREEKUMAR
For Respondent :SRI.G.PRABHAKARAN
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :11/11/2010
O R D E R
J.Chelameswar, C.J.,
Thomas P. Joseph
&
P.R.Ramachandra Menon, JJ.
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W.A.No.1405 of 2008
and
W.P.(C) No.34618 of 2006
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Dated this the 11th day of November, 2010
JUDGMENT
J.Chelameswar, C.J.
W.A.No.1405 of 2008 and W.P.(C) No.34618 of 2006
came to be placed before this Full Bench pursuant to an order of
reference dated 28.01.2010.
2. Three communities, Mannan, Perumannan and
Vannan, in the State of Kerala are recognised by an order of the
President issued pursuant to the power entrusted to the President
under Article 341 of the Constitution of India to be the ‘Scheduled
Caste’ in relation to the State of Kerala. There is another community
known as “Peruvannan” in the State of Kerala. The members of
the said community claim that the name “Peruvannan” is a synonym
of the name “Vannan”, a community which is already recognised as
Scheduled Caste.
WA No. 1405 of 2008
and W.P.(C) No. 34618 of 2006
-:2:-
3. The first appellant in W.A.No.1405 of 2008, one
K.Padmanabhan, produced a certificate as Ext.P2 in the writ petition,
issued by the Head Master of Government School, Mangada,
Pallipuram, Malappuram District dated 14.02.2008 which purports to
certify that the abovementioned Padmanabhan belongs to a caste
known as “Vannan”. However, another certificate dated 24.03.1962
issued by the head of the Higher Secondary School, Tirur showing the
caste of the abovementioned Padmanabhan as “Peruvannan”.
4. The question whether Peruvannan and Vannan are
synonym has been troubling the State of Kerala for quite some time.
The Government of Kerala issued an order, G.O. No.1090 dated
13.09.1958 (Ext.P1) by the Labour and Local Administration
Department (Harijan Welfare B). The relevant portion of it reads as
follows:
“For the purpose of educational concessions the
communities known as Mannan, Pathiyan and Vannan are treated
at present as Scheduled Castes throughout the State except in the
erstwhile Malabar area. The Director of Harijan Welfare has
reported that the Social Educational and Economic Conditions as
well as the traditional occupations of the communities and also the
Varnavar community are identical to those of the Peruvannan
community which is treated as Scheduled Caste throughout the
WA No. 1405 of 2008
and W.P.(C) No. 34618 of 2006
-:3:-State. He has therefore recommended that all the four
communities mentioned above may be bracketed with
Peruvannans. So the Government are pleased to order that the
above mentioned communities are bracketed with Peruvannan.
However, in the meantime Government are pleased to extend to
the four communities mentioned above throughout the State all the
Educational and other concessions granted to Scheduled Castes by
the Harijan Welfare Department.”
In other words, by the said order the State of Kerala wanted to treat the
community Peruvannan also as a Scheduled Caste through out the
State of Kerala, an exercise which is not permissible under the scheme
of the Constitution, having regard to the language of Article 341 which
mandates that the identification of Scheduled Caste to be done by the
President at the first instance by a public notification and any change
subsequent to the said initial identification can be made either by way
of an addition to or exclusion from the list only by the Parliament. The
fact that such an identification made by the President cannot be altered
by any other body or organ of the State except the Parliament is
repeatedly held by the Supreme Court in a number of decisions [see
State of Maharashtra v. Milind (2001) 1 SCC 4 and E.V.Chinnayya
v. State of A.P. (2005) 1 SCC 394].
WA No. 1405 of 2008
and W.P.(C) No. 34618 of 2006
-:4:-
5. However, it is the averment of the appellants that in view
of the abovementioned Government Order (G.O.No.1090) large
number of cases of the people belonging to Peruvannan community
were treated as people belonging to Scheduled Caste eversince the
abovementioned Government Order in the State of Kerala.
6. The State of Kerala made an enactment known as “The
Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue
of Community Certificates Act, 1996(for short Act 11 of 1996)”. Section
3 of the said Act postulates that any person claiming the benefit of any
reservation, protection, concession or exemption granted by law in
favour of persons belonging to Scheduled Caste and Scheduled Tribe
shall prove his claim by producing a certificate issued under the
provisions of the Act indicating the caste status of the claimant. The
other provisions of the Act stipulate the procedure for securing such a
certificate including the nature of the enquiry that is to be conducted
before a certificate is granted etc., (the further details of the said Act
may not be necessary for the present purpose).
7. However, a Division Bench of this Court in a judgment
reported in Madhavi v. Scrutiny Committee [2004(3) KLT 967]
declared as follows:
WA No. 1405 of 2008
and W.P.(C) No. 34618 of 2006
-:5:-
“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.”
8. Consequent upon the said decision, the State of Kerala
issued another order, G.O.(MS) No.37/06/SCSTDD dated 28.07.2006,
in substance declaring that the Peruvannan is not synonym of
Vannan/Mannan/Perumannan and hence no correction of caste name
from Peruvannan to either Vannan/Mannan/ Perumannan is
permissible. The operative portion of the said order reads as follows:
“3. In obedience to the observations of the Hon’ble High
Court and in modification of the existing orders/guidelines on the
subject, Government are pleased to clarify that Peruvannan is not a
synonym of Vannan/Mannan/Perumannan communities shown in
serial number 37 of the Constitution (Scheduled Castes) Orders
(Second Amendment) Act, 2002 (Act 61 of 2002) and that
‘Peruvannan’ cannot be treated as Scheduled Caste and hence no
correction of caste name from Peruvannan (included in the list of
OBC and OEC) to Vannan/Mannan/ Perumannan (Scheduled
Caste) Communities be made on this count.”
WA No. 1405 of 2008
and W.P.(C) No. 34618 of 2006
-:6:-
9. Challenging the abovementioned Government Order
dated 28.07.2006, the abovementioned Padmanabhan and three
others approached this Court by way of a writ petition. By judgment
dated 29.05.2008 the said writ petition was dismissed. Aggrieved by
the same, the petitioners carried the matter by way of W.A.No. 1405
of 2008. When the writ appeal was taken up for hearing by a Division
Bench of this court, by the referral order dated 28.01.2010 thought it fit
that the issue involved in the appeal be examined by a larger Bench,
more particularly, the Division Bench doubted the correctness of the
earlier judgment in Madhavi’s case (supra) for the following reasons:
(1) that the State of Kerala had steadily followed the practice of
recognising the community named Peruvannan as synonym with
Vannan/Mannan/ Perumannan from the date of the Government Order
dated 13.09.1958 (2) a confession made by the learned Government
Pleader who appeared in the matter and (3) that there is a study
conducted by an agency by name “KIRTADS”, which is constituted
under Section 9 of Act 11 of 1996 mentioned above and the study
revealed that the names of Vannan and Mannan are synonyms and
Peruvannan and Perumannan are honorific titles of the ‘Vannan’ and
‘Mannan’ community and therefore all the communities are required to
WA No. 1405 of 2008
and W.P.(C) No. 34618 of 2006
-:7:-
be recognised as Scheduled Castes. In the referral order the Division
Bench also recorded that in view of sub-section (2) of Section 9 of Act
11 of 1996 that the report of an ‘Expert Agency’, which is a defined
expression under Section 2(g) of the Act, is conclusive proof of the
status of a community. Hence the reference.
10. W.P.(C) No.34618 of 2006 came to be tagged on to the
appeal in view of the fact that the question of law raised in the said writ
petition is identical with the question of law involved in the writ appeal.
11. The issue is whether the decision of the Division Bench
reported in Madhavi’s case (supra) requires any reconsideration.
12. The Scheduled Castes and Scheduled Tribes are
defined under Article 366 (24) and (25) as follows:
“366. Definitions.- In this Constitution, unless the context
otherwise requires, the following expressions have the meanings
hereby respectively assigned to them, that is to say–
xxxx xxxx
(24) “Scheduled Castes” means 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 purpose
of this Constitution;
(25) “Scheduled Tribes” means such tribes or tribal
communities or parts of or groups within such tribes or tribal
communities as are deemed under article 342 to be Scheduled
Tribes for the purpose of this Constitution.”
WA No. 1405 of 2008
and W.P.(C) No. 34618 of 2006
-:8:-
13. Articles 341* and 342** of the Constitution of India
stipulate that the President shall identify the Scheduled Castes and
———————————————————————————-
*341. Scheduled Castes.- (1) 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.
(2) Parliament may by law include in or exclude from the list of
Scheduled Castes specified in a notification issued under clause (1)
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.
**342. Scheduled Tribes.- (1) 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 tribes or tribal
communities or parts of or groups within tribes or tribal communities
which shall for the purposes of this Constitution be deemed to be
Scheduled Tribes in relation to that State or Union territory, as the
case may be.
(2) Parliament may by law include in or exclude from the list of
Scheduled Tribes specified in a notification issued under clause (1)
any tribe or tribal community or part of or group within any tribe or
tribal community, but save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent notification.
WA No. 1405 of 2008
and W.P.(C) No. 34618 of 2006
-:9:-
Scheduled Tribes in relation to a State or a Union Territory as the
case may be, in consultation with the Governor in the context of
State. Sub Article (2) of each of the abovementioned Articles
authorises the Parliament by law either to include in or exclude
from the list so prepared of either Scheduled Caste or Scheduled
Tribe under the abovementioned two Articles. Both the sub
Articles expressly declare that “save as aforesaid”, i.e., by law
made by the Parliament, a notification issued under Clause (1)
shall not be varied by any subsequent notification. In other words,
once the identification under sub Article (2) of either Article 341 or
342 is made by the President and notified the same is not
amenable to variation by any subsequent notification. But, for such
a declaration under sub Article (2), the power to issue a
notification as the one contemplated under Articles 341 and 342,
necessarily takes within its purview the power to vary or amend
the said notification by virtue of the operation of Section 21 of the
General Clauses Act, 1897 which is expressly made applicable to
the Constitution by virtue of a declaration under Article 367.
WA No. 1405 of 2008
and W.P.(C) No. 34618 of 2006
-:10:-
14. The principle that the notification once issued under
Article 341 (2) or 342(2) is not amenable to any variation process
by a body other than the Parliament is too well settled by various
decisions of the Supreme Court [see State of Maharashtra v.
Milind (2001) 1 SCC 4]. At paragraph 12 of the said judgment the
Supreme Court held as follows:-
“Plain language and clear terms of these articles show
(1) the President under clause (1) of the said articles may
with respect to any State or Union Territory and where it is a
State, after consultation with the Governor, by public
notification specify the castes, races or tribes or parts of or
groups within the castes, races or tribes which shall for the
purposes of the Constitution be deemed to be Scheduled
Castes/Scheduled Tribes in relation to that State or Union
Territory as the case may be; (2) under clause (2) of the
said articles, a notification issued under clause (1) cannot
be varied by any subsequent notification except by law
made by Parliament. In other words, Parliament alone is
competent by law to include in or exclude a caste/tribe from
the list of Scheduled Castes and Scheduled Tribes specified
in notifications issued under clause (1) of the said articles”.
WA No. 1405 of 2008
and W.P.(C) No. 34618 of 2006
-:11:-
15. In the circumstances, we are of the opinion that the
law declared in Madhavi’s case (supra) does not call for any
further interference in the matter.
16. The reference is answered accordingly. However,
the claim in the present cases is that the name of the community
to which the appellants/petitioners belonged is erroneously
certified in a certificate issued by a competent authority under
appropriate law (Act 11 of 1996) and the parties seeking the
correction of the said entry after adducing appropriate evidence
regarding the fact that the community to which the claimant
belongs are debarred from seeking such relief in view of the
subsequent proceedings. The fact that except the Parliament no
other body is legally authorised to alter (either by addition or
omission) the list prepared under Articles 341 or 342 does not
mean that an enquiry in an individual case in to the complaint that
an authority competent to issue a certificate evidencing the proof
of the fact of the community committed a factual mistake in issuing
such a certificate.
WA No. 1405 of 2008
and W.P.(C) No. 34618 of 2006
-:12:-
We are of the opinion that the cases of the parties to
these proceedings fall under the above category. Therefore, in
our opinion, neither Madhavi v. Scrutiny Committee [2004(3)
KLT 967] nor the Government Order G.O.(MS) No.37/06/SCSTDD
dated 28.07.2006, can bar or do bar such an enquiry. Both the
writ appeal and the writ petition are, accordingly, disposed of.
Sd/-
J.Chelameswar
Chief Justice
Sd/-
Thomas P.Joseph
Judge
Sd/-
P.R.Ramachandra Menon
Judge
ttb/vku.