Dr. C. Velayudhan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932** **WP(C).No. 707 of 2009(H)** **------------------------------------** **PETITIONER(S):** **------------------------** **1. DR.C. VELAYUDHAN, CHEERAMKUNNATH HOUSE, THENKARA P.O., MANNARKKAD, PALAKKAD DISTRICT.** ## ***ADDL. PETITIONERS 2 TO 4 IMPLEADED** **ADDL. P2: P. SAVITHRI, AGED 54 YEARS, W/O.LATE C. VELAYUDHAN, CHEERAMKUNNATH HOUSE, THENGARA P.O., MANNARKKAD, PALAGHAT DISTRICT.** **ADDL. P3: SHEEJA C.V., AGED 32 YEARS, D/O. LATE C. VELAYUDHAN, CHEERAMKUNNATH HOUSE, THENGARA P.O., MANNARKKAD, PALAGHAT DISTRICT.** **ADDL. P4: SREEHARI C.V., AGED 8 YEARS, S/O.LATE C. VELAYUDHAN, CHEERAMKUNNATH HOUSE, THENGARA P.O., MANNARKKAD, PALAGHAT DISTRICT.** *** ADDL. PETITIONERS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 11/10/2010 IN I.A.12039/2010.** **BY ADV. SMT.S.KARTHIKA, SRI.M.S.UNNIKRISHNAN, SMT.K.P.GEETHA MANI, SRI.M.R.ANISON, SRI.P.S.ABHISHEK, SMT.KAVYA P.PRASAD, SRI.P.N.APPUKUTTAN.** ## **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVT. SC & ST DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES, REP. BY ITS CHAIRMAN, SC/ST DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,** **3. THE DIRECTOR OF KIRTDAS, DIRECTORATE OF KIRTDAS, KOZHIKODE -17.** **WP(C).No. 707 of 2009(H)** **4. THE DIRECTOR OF INDIAN SYSTEMS OF MEDICINES, THIRUVANANTHAPURAM.** **5. THE DIRECTOR GENERAL OF POLICE, OFFICE OF THE DIRECTOR OF GENERAL OF POLICE, THIRUVANANTHAPURAM.** **6. THE SUPERINTENDNENT OF POLICE, PALAKKAD.** **7. THE TAHSILDAR, TALUK OFFICE, MANNARKKAD TALUK.** **R1 TO R7 BY SPL.GOVT. PLEADER MR.SANTHOSH KUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 707 of 2009(H)** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE BIRTH REGISTER OF THE PETITIONER.** **EXT.P2: COPY OF THE SCHOOL ADMISSION REGISTER OF THE PETITIONER.** **EXT.P3: COPY OF THE COMMUNITY CERTIFICATE DATED 15/03/1979.** **EXT.P4: COPY OF THE PROCEEDINGS OF THE DIRECTOR DATED 05/12/1980.** **EXT.P4(a): COPY OF THE LETTER DATED 03/05/1980.** **EXT.P5: COPY OF THE PROCEEDINGS OF THE COMMISSIONER FOR GOVT. EXAMINATION DATED 16/12/1980.** **EXT.P6: COPY OF THE RELEVANT PAGES OF THE RANK LIST.** **EXT.P7: COPY OF THE JUDGMENT DATED 06/06/1986 IN W.A.123/1981.** **EXT.P8: COPY OF THE REPORT OF KIRTADS DATED 12/10/1993.** **EXT.P9: COPY OF THE JUDGMENT DATED 30/03/1994 IN O.P. NO. 4024/1994.** **EXT.P10: COPY OF THE WRITTEN EXPLANATION DATED 06/10/1995.** **EXT.P11: COPY OF THE LIST OF 58 DOCUMENTS PRODUCED BY THE PETITIONER.** **EXT.P12: COPY OF THE GENOLOGICAL CHART WITH REFERENCE TO THE DOCUMENTS. EXT.P13: COPY OF THE JUDGMENT DATED 26/02/1996 IN W.A.338/1996.** **EXT.P14: COPY OF THE JUDGMENT DATED 19/12/2006 IN MFA.757/2002.** **EXT.P15: COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 03/12/2008.** **EXT.P16: COPY OF THE GOVT. ORDER DATED 15/12/2008.** **EXT.P17: COPY OF THE MEDICAL CETIFICATE OF MIMS HOSPITAL KOZHIKODE DATED 14/07/2009.** **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.707/2009-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 11[th] day of October, 2010** ## **J U D G M E N T** This Writ Petition was filed by late Shri Velayudhan challenging the proceedings of the Scrutiny Committee and the order passed by the Government declaring that he does not belong to the Scheduled Caste _Thandan_ Community. Ext.P15 is the proceedings of the Scrutiny Committee and Ext.P16 is the Government Order. Pending the Writ Petition, he died and, accordingly, petitioners 2 to 4 have been impleaded as additional petitioners, who are the widow and the children of the deceased. 2. Apart from the deceased Shri Velayudhan, the Government has also declared that none of his family members are entitled to get the benefit of Scheduled Caste _Thandan_ Community. 3. The proceedings of the Scrutiny Committee are challenged on various grounds. It is pointed out that the basic report relied upon by the Scrutiny Committee is that of the KIRTADS, a true copy of which is produced as Ext.P8. The conclusion arrived at in Ext.P8 is that the late Shri Velayudhan, who was born in 1948, was admitted in the school with his caste name as _Thandan._ He joined the Ayurvedic Medical courses against a quota reserved for OBC. ## W.P.(C). No.707/2009 ## -:2:- His caste status was changed on a application made to the Director of Scheduled Caste Development Department which procedure is governed by GO(MS).No.63/79/DD, dated 16/04/1979. The conclusion arrived at in Ext.P8 is that “genealogical study as well as the documentary evidences from 2 to 25 reveal that C.Velayudhan was born in the _Thiyya_ community”. It was also found that even though late Shri Velayudhan was claiming himself as a Scheduled Caste, his relatives belong to _Thiyya_ community. 4. The proceedings of the KIRTADS culminated in a Government Order dated 28/02/1994, against him which was quashed in O.P.No.4024/1994. Later the Scrutiny Committee proceeded with the matter which was subjected to challenge in O.P.No.373/1996. Other proceedings followed thereafter. Ultimately, the order passed by the Scrutiny Committee was set aside by a Division Bench of this Court as per Ext.P14 Judgment and the matter was remanded back to the Scrutiny Committee constituted under Act 11 of 1996. The learned counsel for the petitioners mainly raised two contentions. It was pointed out that the procedure adopted by the Scrutiny Committee is in violation of the principles of natural justice. The averments with regard to the same are available in paragraph 20 of the writ petition. It is mentioned that late Shri Velayudhan was appearing through a ## W.P.(C). No.707/2009 ## -:3:- counsel and the Director of KIRTADS was cross-examined on 28/11/2008 and it was completed on that day and the matter was adjourned to 03/12/2008 for final hearing. But when the learned counsel appeared before the Scrutiny Committee for final hearing on 03/12/2008, it was informed that the matter was finalised and an order was issued later with the date 03/12/2008 itself. It is further pointed out that even though late Shri Velayudhan had produced 58 documents before the Scrutiny Committee, which according to the late petitioner would have gone a long way to establish the status of the deceased as _Thandan_ even during the preindependent days, none of the documents have been verified or considered by the Scrutiny Committee. 5. The report of the Scrutiny Committee Ext.P15 shows that the cross examination was conducted on 26/11/2008 but the order has not specifically mentioned the date of hearing of the learned counsel appearing for late Shri Velayudhan which evidences the fact that the contention raised by the deceased that no hearing was conducted is justified. True that the Scrutiny Committee found, in the light of the various factors established in the enquiry conducted by the KIRTADS, that late Shri Velayudhan belong to OBC, namely, _Thiyya_ and not Scheduled Caste _Thandan_ . But, it should have been proper if the Scrutiny Committee ## W.P.(C). No.707/2009 ## -:4:- had verified all the documents relied upon by the deceased petitioner. In this context, learned counsel for the petitioner relied upon the Judgment in **Kumari Madhuri Patil** ## **and another v. Addl.Commissioner, Tribal Development and** **others [AIR 1995 SC 94]** . Therein, the Apex Court was of the view that pre-independent documents describing the predecessors as _Thandans_ cannot be ignored by the Scrutiny Committee. The further contention raised is that in the light of the decision of the Apex Court in **Palghat Jilla** ## **Thandan Samudhaya Samrakshana Samithi & another v. State of** **Kerala [1994 (1) KLT 118 (SC)]** and that of a Division Bench in O.P.No.14444/2003 & M.F.A.No.195/2005 reported in **2010** ## **(2) KHC 739 (DB) [Madhavan P. and others v. State of Kerala** **and others]** till the year 2007, when the Presidential Order was amended to include item 61, the _Thandan_ of erstwhile Cochin and Malabar areas will have to be treated as Scheduled Caste. It is therefore contended that the enquiry conducted by the KIRTADS and the report thereon cannot be relied upon. 6. The Apex Court in paragraph (16) of the Judgment in **Palghat Jilla Thandan Samudhaya Samrakshana Samithi's case [1994 (1) KLT 118 (SC)]** held as follows:- ## W.P.(C). No.707/2009 -:5:- “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 Art.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 reason of the provisions of the Scheduled 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 Caste 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.” W.P.(C). No.707/2009 -:6:- 7. The Division Bench in the subsequent case in ## **Madhavan P. and others v. State of Kerala and others [2010** **(2) KHC 739 (DB)]** has also taken the view that in the light of the decision of the Apex Court in **Palghat Jilla Thandan** ## **Samudhaya Samrakshana Samithi's case [1994 (1) KLT 118** **(SC)]** they are entitled to the benefit of Scheduled Caste till the Schedule is amended. The Bench also made it clear that thereafter they cannot claim the benefit of Scheduled Caste _Thandans_ even though they are title holders of _Thandans_ . 8. The Constitution (Scheduled Castes) Order (Amendment) Act, 2007 dated 29[th] August, 2007 introduced item 61 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);” 9. In that view of the matter, the petitioners are entitled to succeed. The learned counsel for the petitioners also made available for perusal copy of Judgment in O.P.No.20205/1995 wherein also similar view was taken relying upon the decision of the Apex Court in W.P.(C). No.707/2009 -:7:- **Palghat Jilla Thandan Samudhaya Samrakshana Samithi's case** **[1994 (1) KLT 118 (SC)]** and that of the Division Bench referred to above. 10. In that view of the matter, the Writ Petition is allowed. It is declared that the deceased Velayudhan was entitled for grant of various benefits treating him as Scheduled Caste till the year 2007 i.e. till 29/08/2007. The service benefits and pensionery benefits due to the deceased Velayudhan will be disbursed to the additional petitioners within a period of four months from the date of receipt of a copy of this Judgment. It is made clear that the interference with the orders is to the above extent and I have not finally pronounced anything on the direction in paragraph (3) of Ext.P16 Government Order to correct the caste status in the records of the family members of the late Shri Velayudhan. It is also made clear that the claim, if any, will be confined only upto the year 2007 and thereafter, the petitioners cannot claim any benefit as members of Scheduled Caste _Thandan_ Community. No costs. **(T.R. Ramachandran Nair, Judge.)** ms