High Court Kerala High Court

K.P.Padmanabhan vs State Of Kerala on 11 November, 2010

Kerala High Court
K.P.Padmanabhan vs State Of Kerala on 11 November, 2010
       

  

  

 
 
  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.
                    - - - - - - - - - - - - - - - - - - - - - -
                         W.A.No.1405 of 2008
                                      and
                       W.P.(C) No.34618 of 2006
                    - - - - - - - - - - - - - - - - - - - - - -
              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.