IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 20205 of 1995(E)
1. Y.A.SUGATHAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.R.VENKETESH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :16/02/2010
O R D E R
S. Siri Jagan, J.
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O.P. No. 20205 of 1995
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Dated this, the 16th day of February, 2010.
J U D G M E N T
The petitioner obtained an employment in the Food Corporation
of India on the strength of a community certificate issued by the 2nd
respondent, certifying that the petitioner belongs to Thandan
community, which is recognized as a scheduled caste in the State of
Kerala. While the petitioner was so continuing as an employee of the
Food Corporation of India, promotion became due to him. He was
directed to produce a fresh community certificate certifying him as
belonging to a scheduled caste. The petitioner applied to the 2nd for
such a certificate. It was not issued to him. Subsequently, the
petitioner was given a certificate showing that he belongs to Hindu-
Ezhava known as Thandan community, which is included in the list of
other backward communities in Kerala. Subsequently, proceedings
were initiated under Act 11 of 1991 to decide the community status of
the petitioner. By Ext. P 24 order, the services of the petitioner in
the Food Corporation of India were terminated on the ground that he
obtained the employment misrepresenting himself as belonging to a
scheduled caste community. It is under the above circumstances, the
petitioner has filed this original petition seeking the following reliefs:
“a) Declare that the petitioner belongs to Thandan community
which is scheduled caste within the State of Kerala within the
meaning of Scheduled Caste order, 1950.
b) Issue a writ in the nature of certiorari quashing Ext. P24.
c) Issue a writ in the nature of mandamus commanding the
respondents 3 and 4 to grant the petitioner benefit of the relief
prayed for above.
d) Issue a writ of mandamus or other appropriate writ,
direction or order, directing the 2nd respondent Tahsildar toforthwith issue a community certificate in favour of the petitioner
showing that he belongs to the Thandan community, a scheduled
caste, or in the alternative be pleased to direct the 2nd respondent
Tahsildar to consider Ext. P4 application and to grant a certificate
as requested for therein, as expeditiously as possible and within
such time as may be fixed by this Honourable Court.”
2. Ext. P24 is the order of the Food Corporation of India,
whereby, the petitioner’s service has been terminated on the ground
that the petitioner obtained employment on the basis of a certificate
certifying him to be a member of the scheduled caste and it was
proved that he does not belong to a scheduled caste. Subsequently,
on the strength of of the orders of stay, the petitioner continued in
service and attained age of superannuation on 31-5-2009.
3. The petitioner now contends that in view of the decision of
the Supreme Court in Palakkad Jilla Thandan Samudhaya
Samrakshna Samithi & another v. State of Kerala, 1994 (1) KLT
118, the petitioner cannot be denied the benefit of the certificate
validly issued to him certifying him as a person belonging to the
Thandan community, which is recognised as a scheduled caste
community. The petitioner also relies on a Division Bench decision of
this Court in M.F.A. No. 195/2005, wherein this Court held that up
to the date of amendment of the Constitution (Scheduled Caste) Order
(Amendment) Act, 2007 dated 29-8-2007 by which the term ‘Thandan’
was modified by the words “excluding Ezhavas and Thiyyas who are
known as Thandan in the erstwhile Cochin and Malabar Areas”,
persons who have obtained community certificates certifying as
belonging to Thandan, which is a scheduled community, is entitled to
keep the benefits obtained by them till 29-8-2007. The petitioner
would submit that the petitioner is entitled to the benefit of that
judgment since the petitioner obtained employment on the strength of
a valid community certificate issued to the petitioner by the
appropriate authority.
4. The learned Government Pleader would contend that
notwithstanding the judgment of the Supreme Court and the Division
Bench, by virtue of Section 16A of the Kerala (Scheduled Castes and
Scheduled Tribes) Regulation of Issue of Community Certificates
(Amendment) Act, 2008, the Government is still entitled to withhold
pensionary benefits due to the petitioner.
5. I have considered the rival contentions in detail.
6. Section 16A reads thus:
“16A. Deferment of pensionary benefits–
Notwithstanding anything contained in any other provisions of this
Act or in any other law for the time being in force or in any
judgment, decree or order of any court, where a person secures
any appointment in the Government or any Government
Undertaking or local authority or any other authority against a
post reserved for Scheduled Caste or Scheduled Tribe, by
producing a fraudulent Community Certificate, and if, on an
enquiry by the Expert Agency it is found that his claim is not
genuine and if the incumbent retires while the enquiry by the
Government or the Scrutiny Committee is pending, the
Government or the Government Undertaking or local authority or
any other authority as the case may be, shall have the power to
defer and withhold the pensionary benefits of the incumbent
pending decision by the Government or the Scrutiny Committee.”
(underlining supplied)
I am of opinion that Section 16A would apply only in cases where a
benefit is obtained by producing a fraudulent community certificate.
The learned Government Pleader would point out that it is applicable
where a claim is found not genuine, Section 16A would apply. I am
not satisfied that the petitioner’s claim is not genuine, at least until
29-8-2007, in view of the Supreme Court decision and the Division
Bench decision referred to above, on the subject.
7. I am not satisfied that the petitioner can be denied the
benefits obtained by him on the basis of a certificate validly issued by
the 2nd respondent, certifying the petitioner as belonging to a
scheduled caste community, especially, in view of the decision in
M.F.A. No. 195/2005. Therefore, Ext. P24 is clearly unsustainable.
Accordingly, the same is quashed. It is declared that the petitioner
would be entitled to the benefit of the employment obtained by him on
the strength of a community certificate validly issued to the
petitioner, which is clearly covered by the decision of the Supreme
Court. However, in respect of any claim of the petitioner or his
children which first arises subsequent to 29-8-2007, shall be decided
only on the basis of a determination of his community status in
accordance with Act 11/1996. The petitioner’s retirement benefits
shall be disbursed to him, as expeditiously as possible, at any rate,
within two months from the date of receipt of a copy of this judgment.
The original petition is disposed of as above.
Sd/- S. Siri Jagan, Judge.
Tds/