IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 195 of 2005(D)
1. P.MADHAVAN, PADINHAREKARA HOUSE,
... Petitioner
2. GEETHAKUMARI P., PADINHAREKARA HOUSE,
3. PANKAJAKSHY.P., PADINHAREKARA HOUSE,
4. RAGHAVAN.P., PADINHAREKARA HOUSE,
5. LEKHA.P., D/O.RAGHAVAN.P.,
Vs
1. STATE OF KERALA, REP. BY ITS
... Respondent
2. THE SCRUTINY COMMITTEE FOR
3. KIRTADS, REP. BY ITS DIRECTOR,
4. THE VIGILANCE CELL OF KIRTADS REP.
For Petitioner :SMT.V.P.SEEMANDINI (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :28/05/2008
O R D E R
J.B.KOSHY & P.N.RAVINDRAN, JJ.
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O.P.NO.14444 OF 2003
&
M.F.A.NO.195 OF 2005 (E)
-----------------------------------
Dated this the 28th day of May, 2008
J U D G M E N T
KOSHY,J.
Both writ petition and appeal are filed by the five
appellants. Appellants 1 to 4 are brothers and sisters and
5th appellant is the daughter of the 4th appellant. According to
them, they belonged to Thandan community, which is
recognised as Scheduled Caste. First appellant contested for
Panchayat election in the year 1988 in a reserved constituency
for Scheduled caste and he was elected as a Panchayat
member. It is also submitted that earlier an enquiry was
conducted and on the basis of which it was held that they are
Thandans. But a Scrutiny Committee constituted under the
Kerala (Scheduled Castes and Scheduled Tribes) Regulation of
Issue of Community Certificates Act, 1996 (Act 11 of 1996)
held that they are not Thandans but Hindu OBC
Ezhavas/Thiyyas and they cannot claim reservation benefits
available to SC Community. Hence they filed this appeal.
O.P.NO.14444 OF 2003
&
M.F.A.NO.195 OF 2005 (E)
2
2. Fifth appellant also filed writ petition,
O.P.No.14444/03, when her admission was not considered in
the M.B.B.S. Course for SC candidates. As per the interim
order of this Court, she got admission and she is studying in
the final semester of M.B.B.S. course. The whole question to
be considered is whether appellants 1 to 5 are entitled to get
Scheduled caste status as Thandans ? Earlier Thandan
community was not included in the Scheduled caste category
in the Malabar area but Thandan community was recognised
as Scheduled caste in Travancore – Cochin area. This position
continued upto 1976. The Scheduled Caste and Scheduled
Tribes Amendment Act, 1976 came into force on 27th July
1976, which specifies ‘Thandan’ community as item No.61.
The nature of amendment is to recognise the particular
community as Schedule caste for the entire State of Kerala. It
is contended by various associations that a Section of
Ezhavas/Thiyyas in certain districts of Malabar area are not
entitled to be considered as Thandans and Scheduled caste
O.P.NO.14444 OF 2003
&
M.F.A.NO.195 OF 2005 (E)
3
community status cannot be given to them even though they
are known as Thandans. State accepted the above view. The
matter was finally settled by the Supreme Court in Palghat
Jilla Thandan Samudhaya Samrakshana Samithi and
another v. State of Kerala (1994 (1) KLT 118 (SC)). The
Supreme Court directed the State Government to grant to all
members of the Thandan community, including those
belonging to the erstwhile Malabar District and the Palghat
District, the benefits due to a Scheduled Caste included in the
Schedule to the Constitution Scheduled Castes Order as
amended upto date and to issue to them community
certificates accordingly. The Supreme Court also
categorically held that it is not open to the State government
or the Supreme Court to embark upon an enquiry to
determine whether a section of Ezhavas/Thiyyas which was
called Thandan in the Malabar area is excluded from the
benefits of the Schedules Castes Order. Paragraphs 15 to 19
of the above judgment are as follows:
O.P.NO.14444 OF 2003
&
M.F.A.NO.195 OF 2005 (E)4
“15. We now proceed upon the basis
that the State Government is right when it
says that there is a section of the
Ezhavas/Thiyyas community which is called
Thandan in the Malabar area of the State.
16. Article 341 empowers the President
to specify not only castes, races or tribes
which shall be deemed to be Scheduled Castes
in relation to a State but also “parts of or
groups within castes, races or tribes” which
shall be deemed to be Scheduled Castes in
relation to a State. By reason of Article 341 a
part or group or section of a caste, race or
tribe, which, as a whole, is not specified as a
Scheduled Caste, may be specified as a
Scheduled Caste. Assuming, therefore, that
there is a section of the Ezhavas/Thiyyas
community (which is not specified as a
Scheduled Caste) which is called Thandan in
some parts of Malabar area, that section is
also entitled to be treated as a Scheduled
Caste, for Thandans throughout the State are
deemed to be a Scheduled Caste by reasonof
the provisions of the Schedules Castes Order
as it now stands. Once Thandans throughout
the State are entitled to be treated as a
Scheduled Caste by reason of the Scheduled
Castes Order as it now stands, it is not open to
the State Government to say otherwise, as it
has purported to do in the 1987 order.
17. We may usefully draw attention to
the judgment of a Bench of three learned
O.P.NO.14444 OF 2003
&
M.F.A.NO.195 OF 2005 (E)
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Judges of this Court in Srish Kumar
Choudhary v. State of Tripura and others,
1990 (Supp) SCC 220). This judgment
considered Constitution Bench judgments in
B.Basavalingappa v. D.Munichinnappa, 1965-1
SCR 316, and Bhaiyalal v. Harikishan Singh
and others ((1965) 2 SCR 877, and certain
other judgments. It held that the two
Constitution Bench judgments indicated that
any amendment to the Presidential Orders
could only be by legislation. The Court could
not assume jurisdiction and order an enquiry
to determine whether the terms of the
Presidetial Order included a particular
community. A State Governmet was entitled
to initiate appropriate proposals for
modification in cases where it was satisfied
that modifications were necessary and, if after
appropriate enquiry, the authorities were
satisfied that a modification was required, an
amendment could be undertaken as provided
by the Constitution.
18. These judgments leave no doubt that
the Scheduled Castes Order has to be applied
as it stands and no enquiry can be held or
evidence let into determine whether or not
some particular community falls within it or
outside it. No action to modify the plain effect
of the Scheduled Castes Order, except as
contemplated by Article 341, is valid.
19. The Thandan community in the
instant case having been listed in the
Scheduled Castes Order as it now stands, it is
not open to the State Government or, indeed,
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&
M.F.A.NO.195 OF 2005 (E)
6
to this Court to embark upon an enquiry to
determine whether a section of
Ezhavas/Thiyyas which was called Thandan in
the Malabar area of the State was excluded
from the benefits of the Scheduled Castes
Order.”
The Supreme court also gave permission to the State
Government to take appropriate direction for modification of
the order. Accordingly, by Constitution (Schedules Castes)
Order (Amendment) Act, 2007 dated 29th August, 2007 item 61
was modified as follows:
“61. thandan (excluding Ezhavas and
Thiyyas who are known as Thandan in the
erstwhile Cochin and Malabar areas) and
(Carpenters who are known as Thandan, in
the erstwhile Cochin and Travancore
State)”;
3. Now we will consider the factual aspects in this case.
A detailed enquiry was conducted by the Scrutiny committee
and documents were produced by both sides. The genealogy
of the grand father and grand mother and their relatives
O.P.NO.14444 OF 2003
&
M.F.A.NO.195 OF 2005 (E)
7
shows that in earlier documents of Annexure A31 dated
15.1.1936, Annexure A32 dated 11.2.1932 and Annexure A85
etc. they were described as Thandans. Exts.P1, P2 and P3
produced in respect of the 4th appellant also shows that in
School admission certificates it was described the caste as
‘Thandan’. Ext.P1 is dated 25.5.1960. Various admission
registers also shows that caste was described as ‘Thandan’
earlier but in document Nos.33 and 34 in respect of the
1st appellant, document Nos.81 and 82 in respect of the
2nd appellant and document Nos.40, 41 and 42 in respect of
the 3rd appellant, they were mentioned as Hindu Thiyyas or
Ezhavas. The explanation of the appellant is that after 1976, till
the Supreme Court decision came, due to Government direction,
the officers were refused to describe them as Thandans and
they were categorised as Ezhavas and Thiyyas as they are
living in Malabar area and they were helpless. Before 1976,
Thandan community of Malabar area was not included in the
category of Scheduled Caste community. But after the
Supreme Court decision, they requested for amendment and
O.P.NO.14444 OF 2003
&
M.F.A.NO.195 OF 2005 (E)
8
further obtaining proper certificate, their caste status was
amended after due enquiry as can be seen from Annexure A1. It
is also submitted that Director of Harijans Welfare Department
has also accepted the above. As far as document Nos.24 and
25 are concerned, they are also certificates to 4th respondent
who got employment not as a Scheduled caste at a time when
Government was not considering the Thandans of Malabar as
Scheduled caste community. It is submitted by the learned
Government pleader that document Nos.99, 101, 111 with
respect to mother of the 5th appellant also shows that they were
essentially Ezhavas. But pre-independent documents
described their predecessors as Thandans and that also
cannot be ignored by the Scrutiny Committee as held by the
Apex Court in Kumari Madhuri Patil and another v. Addl.
Commissioner, Tribal Development and others (AIR
1995 SC 94). The petitioner has produced 15 affidavits of the
local people to show that in locality, they were known as
Thandans and as members of the Thandan community. It is
submitted that Scrutiny committee did not accept those
O.P.NO.14444 OF 2003
&
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9
affidavits after refusing to examine those persons who gave
affidavits on the ground that the advocates who attested the
affidavits were not appearing before the Committee. The
learned counsel for the appellant also points out the decision
in Gayatrilaxmi Bapurao Nagpure v. State of
Maharashtra and others (AIR 1996 SC 1338) that the
committee has to take views of the local people while granting
caste certificate.
4. We have gone through the documents. It can be seen
that the petitioners were referred as Thandans originally.
Thereafter they were referred as Hindu Thiyyas and Hindu
Ezhavas after 1976 in view of the Government stand and after
the Supreme Court decision in 1994, in some of the cases they
were referred as Thandans again. Going through the affidavits
of local people and going through the entire evidence, we are
of the opinion that and they are called Thandans and they were
holding title as Thandans. They belong to Thandan community
in Palghat District which is essentially equal to Ezhava
O.P.NO.14444 OF 2003
&
M.F.A.NO.195 OF 2005 (E)
10
community. It is different from Thandans in Travancore area.
In view of the Palghat Jilla Thandan Samudhaya
Samrakshana Samithi’s case (supra), they are entitled to
the benefits of Scheduled Castes till 2007, till the schedule is
amended. We make it clear that thereafter they cannot claim
the benefit of Scheduled caste as Thandans and as eventhough
they are title holders of ‘Thandans’ they essentially belongs to
Ezhava/Thiyyas (O.B.C). But all persons known as Thandans are
entitled to Scheduled Caste status inview of the inclusion of
‘Thandan’ in the caste status schedule till the above was
amended in 2007. So any benefit obtained by them before the
amendment of the Schedule cannot be taken away but after
the amendment of the Schedule, they are not entitled to claim
any benefits as Scheduled Tribes. The admission of the 5th
appellant (petitioner in O.P.No.14444/03) was obtained before
the amendment of the Schedule, and therefore, her admission
cannot be set aside. But she also cannot claim employment in
future claiming to be a member of the Scheduled Caste and
from the date of amendment, she has to pay fees and she is
O.P.NO.14444 OF 2003
&
M.F.A.NO.195 OF 2005 (E)
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entitled to get free concession as a Scheduled caste only till the
date of amendment of the Schedule (28.8.2007). Second and
third appellants got employment as Scheduled Castes before
amendment of the Schedule and their employment also cannot
be terminated as initial appointment was correct and they are
entitled to get salary and pension till their date of
superannuation and their employment was not obtained by
fraud. But they will not get any future promotion from August
2007 on the basis that they belong to Scheduled Caste
community. Their offsprings also will not be entitled to any
benefit of Scheduled Caste community after 29th August 2007.
But admissions or appointment obtained by them before the
amendment of the Schedule are valid. Both writ petition and
appeal are disposed of accordingly.
J.B.KOSHY, JUDGE
P.N.RAVINDRAN, JUDGE
prp
J.B.KOSHY & P.N.RAVINDRAN, JJ.
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M.F.A.NO. OF 2006 ()
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J U D G M E N T
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26th May, 2008