K. Haridasan v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 6TH DAY OF APRIL 2016 / 17TH CHAITHRA, 1938 **MFA.No. 58 of 2006** (AGAINST THE ORDER DATED 2.11.2005 OF THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES, THIRUVANANTHAPURAM) ## **APPELLANT** : K.HARIDASAN RESIDING AT `SYAMA HARSHAM', SWATHI NAGAR, (NORTH END), ENGINEERING COLLEGE P.O., PALAKKAD. BY ADVS.SMT.V.P.SEEMANDINI (SR.) SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL SRI.T.C.SURESH MENON ## **RESPONDENTS** : 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO SCHEDULED CASTE/, SCHEDULED TRIBE DEVELOPMENT DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, PALAKKAD. 3. THE TAHSILDAR, ALATHUR TALUK, PALAKKAD. 4. THE SENIOR DIVISIONAL PERSONAL OFFICER, SOUTHERN RAILWAYS, PALAKKAD. R4 BY ADV. SRI.JAMES KURIAN, SC, RAILWAYS R1 TO R3 BY SR. GOVERNMENT PLEADER SMT.P.K.SANTHAMMA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.NO.58 OF 2006 ## APPENDIX APPELLANT'S EXHIBITS: NIL RESPONDENTS' EXHIBITS: EXT.R1(a): TRUE COPY OF THE ENQUIRY REPORT NO.VIG.35/96 DATED 11.01.2002. EXT.R1(b): TRUE COPY OF THE MINUTES OF THE SCRUTINY COMMITTEE HELD ON 10.08.2005. EXT.R1(c): TRUE COPY OF THE PROCEEDINGS NO.1993/G2/02/SCSTDDDATED 02.11.2005. // TRUE COPY // TKS Sd/P.S. TO JUDGE ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------M.F.A.No.58 of 2006 -------------------------------Dated 6[th] April, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is filed under Section 12(3) of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (for short `the Act'). The appellant assails the proceedings of the Scrutiny Committee for Verification of Community Certificates dated 2.11.2005 declaring that the appellant and his family members do not belong to (Thandan) Community and they actually belong to Ezhava (OBC) Community and therefore, not entitled to get the benefits of Scheduled Caste (Thandan) Community. Consequently, the certificates issued to the appellant and his family members showing their caste status as Scheduled Caste (Thandan) Community were cancelled. Obviously, the proceedings was directed to be forwarded to the Government for immediate consequential action. It is to be noted that the appellant filed this appeal against the proceedings without waiting for the issuance of consequential order pursuant to the said order dated 2.11.2005 of the Scrutiny Committee. The facts of the case necessary for the disposal of this appeal in M.F.A.No.58 of 2006 2 succinct are as follows:- The appellant entered the service of Southern Railway Palakkad Division as a casual worker on daily wage basis. Subsequently, he was conferred with temporary status with effect from 21.5.1980. He was given permanency on 12.9.1985. Later, he was promoted as Clerk on 3.2.1988 upon his passing the departmental test. We may hasten to add here that admittedly, he had gone through the departmental test based on the relaxed standard. Later, he was promoted as Senior Clerk from 1.9.1990 and then as Head Clerk. The said post was subsequently re-designated as Superintendent. While working as Superintendent he retired from service on 31.10.2015. While the appellant was working as Senior Clerk certain complaints were received at the Vigilance Branch of Southern Railway, regarding his caste status. Thereupon the matter was referred to the District Collector, Palakkad and after an enquiry the District Collector, Palakkad informed the Divisional Railway Manager, Southern Railway, Palakkad that the appellant does not belong to Thandan Community (SC). Consequently, show cause notice dated 15.7.1996 was issued to the appellant as to why he should not be reverted to his original post of Gangman from where he was promoted as Office Clerk treating as a person belonging to scheduled caste. The appellant had shown cause and thereafter he filed O.P.No.13523 of 1996 before this Court M.F.A.No.58 of 2006 3 challenging the order of the District Collector. Meanwhile, the authorities passed an order reverting him from the post of Senior Clerk. The appellant challenged the said order of reversion by filing O.A.No.1008 of 1996 before the Central Administrative Tribunal, Ernakulam Bench. The original application was allowed as per order dated 28.2.2002 and the order of reversion was quashed. As per the said order liberty was granted to the Railway Administration to initiate disciplinary action against the appellant. Subsequently, O.P.No.13523 of 1996 was disposed of by this Court as per order dated 15.10.2003 with a direction to the Scrutiny Committee to consider the matter regarding the caste status of the appellant with notice to the appellant herein and pass appropriate orders expeditiously. In view of the said subsequent developments, evidently, the Railway Administration did not initiate any disciplinary proceedings though such a liberty was granted as per order dated 28.2.2002 in O.A.No.1008 of 1996. The impugned order was passed by the Scrutiny Committee in obedience to the directions in the order dated 15.10.2003 in O.P.No.13523 of 1996. As noticed hereinbefore, the Scrutiny Committee rejected the Scheduled Caste (Thandan) Community claim of the appellant and also cancelled the certificate issued to him in that regard. While admitting this appeal as per order dated 6.4.2006 this Court granted the stay of operation and implementation of the order dated 2.11.2005 passed by the M.F.A.No.58 of 2006 4 Scrutiny Committee and also of the consequential order of termination passed by the 4[th] respondent. 2. When this matter is taken up for consideration the learned Senior Counsel appearing for the appellant fairly submitted that in the light of the amendment brought into force as per Act 31 of 2007 on 30.8.2007 the appellant cannot claim the scheduled caste status on the ground of being a member of Thandan Community, any further. But, at the same time, it is contended that in the light of the decision of the Hon'ble Apex Court in **R.Unnikrishnan** v. **V.K.Mahanudevan ((2014) 4 SCC 434)** the amendment brought in as per Act 31 of 2007 can have only prospective effect and therefore, the appellant is entitled to continue to enjoy all benefits which he accrued prior to the amendment. In short, it is contended that in the light of the amendment brought into force as per Act 31 of 2007 the appellant cannot claim the scheduled caste status any further, but he is entitled to retain all benefits which he had accrued prior to the coming into force of the amendment and in such circumstances, in the light of the decision in **Unnikrishnan's** case (supra) he is also entitled to continue in service though he is not entitled to get the benefit of reservation any further. In other words, it is contended that the order of termination passed in consequence of the impugned proceedings of the Scrutiny Committee is liable to be set aside. Evidently, the said contentions M.F.A.No.58 of 2006 5 were resisted by the learned Special Government Pleader Smt.P.K.Santhamma and also Adv.James Kurian, learned Standing Counsel appearing for the 4[th] respondent. The learned counsel appearing for the respondents contended that the appellant is not entitled to continue in service and the termination is an inevitable consequence of the proceedings of the Scrutiny Committee whereby and whereunder they declined the caste status Scheduled Caste (Thandan) Community to the appellant. 3. While considering the rival contentions it is relevant to refer to the decision of the Hon'ble Apex Court in **Palghat Jilla Thandan Samudhaya Samrakshna Samithi** v. **State of Kerala** ( **(1994) 1 SCC 359)** . In that case, the main question that posed for consideration was regarding the validity of the decision of the State of Kerala not to treat the members of Thandan Community belonging to the erstwhile Malabar District, including the present Palakkad District, as members of the Scheduled Castes. It is to be noted that earlier the State Government had issued instructions to the effect that applications for issue of Community Certificates to `Thandans' of all the four districts of Malabar areas and Taluks of Thalappilly, Vadakkancherry and Chavakka (sic. Chavakkad) in Thrissur District should be scrutinized to ascertain whether the applicant belongs to Thandan Community of Scheduled Caste or the Thandan section of Ezhava/Thiyya Community M.F.A.No.58 of 2006 6 and further that while issuing community certificate to the Thandans who were Scheduled Caste, the authorities should note the name of the community in the certificate as “Thandans other than Ezhava/Thiyya”. The said instructions were later withdrawn, to be followed by another order passed in the year 1987 by which the Government once again directed that while issuing caste certificate, the Revenue Authority should hold proper verification to find out whether the person concerned belongs to Thandan caste and not to Ezhava/Thiyya. The Apex Court in the decision in **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case (supra) reviewed the legal position and declared that Thandan Community having been listed in the Scheduled Castes Order as it then stood, could not have been excluded from enjoying the benefits. The Apex Court held thus:- “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 reason of the provisions of the Scheduled Castes Order as it now stands. Once Thandans M.F.A.No.58 of 2006 7 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 othewrwise, as it has purported to do in the 1987 order.” ## 4. In the light of the decision of the Hon'ble Apex Court in ## **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case (supra) persons belong to Ezhava/Thiyya of Malabar area were entitled to enjoy the benefits of Scheduled Caste available under the Presidential Order and consequentially, any enquiry into their status as Scheduled Caste were forbidden by the learned Apex Court as it was legally impermissible. The said position obtained following the decision ## in **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case (supra) dated 3.12.1993 underwent a change pursuant to the amendment of the Presidential Order in terms of the Constitution (Scheduled Caste) Order (Amendment) Act, 2007. The same received the assent of the President of India on 29.8.2007 and was published in the Official Gazette on 30.8.2007. As per the same, the following change was brought into Part VIII-Kerala for Entry 61:- “ **61** . Thandan (excluding Ezhuvas and Thiyyas who are known as Thandan, in the erstwhile Cochin and Malabar areas and carpenters who are known as Thachan, in the erstwhile Cochin and Travancore State).” ## 5. Virtually, in **Unnikrishnan's** case (supra) the impact of the said amendment with reference to the judgment in **Palghat Jilla** M.F.A.No.58 of 2006 8 **Thandan Samudhaya Samrakshna Samithi's** case (supra) was considered by the Hon'ble Apex Court. The Apex Court, after making such a consideration, laid down the law as is discernible from paragraphs 36, 37 and 41. They read thus:- “36. The law declared by this Court in _**Palghat Jilla**_ case entitled all Thandans including those who were Ezhuvas and Thiyyas from Cochin and Malabar region to claim the Scheduled Caste status. That entitlement could be taken away retrospectively only by specific provisions to that effect or by necessary intendment. We see no such specific provision or intendment in the amending legislation to hold that the entitlement was taken away retrospectively so as to affect even those who had already benefited from the reservation for Scheduled Caste candidates. At any rate, a certificate issued to an Ezhuva known as Thandan who was a native of Cochin and Malabar region of the State could not be withdrawn as the Constitution (Scheduled Castes) Order, 1950 did not make a distinction between the two categories of Thandans till the Amendment Act of 2007 for the first time introduced such a difference. 37. That apart, the question of ouster of Ezhuvas and Thiyyas known as Thandan on account of the confusion that prevailed for a considerable length of time till the decision of this Court in _**Palghat Jilla**_ case would be unjustified both in law and on the principles of equity and good conscience. xx xx xx xx 41. In the instant case there is no evidence of lack of bona fides by the respondent. The protection available under the decision of _**Milind**_ case could, therefore, be admissible even to the respondent. It follows that even if on a true and correct construction of the expression “Thandan” appearing in the Constitution (Scheduled Castes) Order, 2007 did not include “Ezhuvas” and “Thiyyas” known as “Thandan” and M.F.A.No.58 of 2006 9 assuming that the two were different at all relevant points of time, the fact that the position was not clear till the Amendment Act of 2007 made a clear distinction between the two, would entitle all those appointed to serve the State up to the date the amending Act came into force, to continue in service.” 6. In the light of the decision in **Unnikrishnan's** case (supra), especially from the aforequoted paragraphs, it is evident that by virtue of the law declared by the Apex Court in **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case (supra) Thandans including those who were Ezhava/Thiyya in the Malabar region were entitled to claim scheduled caste status and that status was virtually taken away only by the amendment that was brought in as per Act 31 of 2007 with effect from 30.8.2007. Taking into account the fact that up to the amendment the entitlement of such persons to claim the scheduled caste status was being governed by the decision of the Hon'ble Apex Court in **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case (supra) and also the fact that the Amendment Act was not specifically given any retrospective effect the Apex Court held that the entitlement to claim scheduled caste status by virtue of **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case (supra) could not be taken away retrospectively in the absence of any specific provision to that effect or by necessary enactments. The Apex Court further found that there is no such specific provision or such M.F.A.No.58 of 2006 10 necessary intendment in the Amendment Act and therefore, such rights which were available to Thandans including Ezhavas/Thiyyas in the Malabar areas could not be taken away retrospectively. In other words, the Apex Court in unambiguous terms held that a certificate issued to Ezhava caste as Thandan who was a native of Cochin-Malabar region of State could not be withdrawn as the Constitution (Scheduled Castes) Order 1950 did not make a distinction between two categories of Thandans till the Amendment Act of 2007 and that first time such a distinction was brought in only as per the Amendment Act. In paragraph 41 the Apex Court held that even if on a true and correct construction of the expression “Thandan” appearing in the Constitution (Scheduled Castes) Order, 2007 did not include “Ezhavas” and “Thiyyas” known as “Thandan” the said position was not clear till Amendment Act, 2007 and therefore, it would entitle all those appointed to serve the State up to the Amendment Act coming into force, to continue in service. In other words, in the light of the decision in **Unnikrishnan's** case (supra) those persons who obtained appointment on the strength of certificates issued prior to the Amendment Act certifying their caste as Thandans belonging to erstwhile Malabar District could not be ousted from service, rather prevented from continuing in service merely because of the coming into force of the Amendment Act. It is in the said circumstances that the M.F.A.No.58 of 2006 11 learned Senior Counsel appearing for the appellant submitted that the appellant who was a Thandan belonged to Ezhava Community could not claim scheduled caste status after the coming into force of the Amendment Act but, at the same time, the benefit which he accrued including the appointment and promotions till the coming into force of the Amendment Act could not be taken away based on the Amendment Act on the basis of the impugned proceedings of the Scrutiny Committee. 7. The question as to the right of the appellant to continue in service will depend on another factor viz., whether for the purpose of entry in service he had committed any fraud. While considering that aspect the position obtained from the counter affidavit filed on behalf of the 4[th] respondent has to be taken note of. It is specifically stated therein that at the time of his entry in service he produced copy of the SSLC Certificate and consequently, he was given a berth in the service recording his caste status as Hindu-Ezhava. In fact, prior to the conferment of permanent status the appellant produced a caste certificate issued by the Tahsildar of Alathur Taluk dated 13.2.1985 certifying that he belongs to Thandan caste which is recognised as a Scheduled Caste Community. Subsequently, the appellant was made permanent with effect from 12.9.1985. It is to be noted that the recital in the counter affidavit filed on behalf of the 4[th] respondent itself would M.F.A.No.58 of 2006 12 reveal that production of caste certificate was absolutely unnecessary for the purpose of conferring a permanent status to a casual employee. A scanning of the counter affidavit would reveal that the benefit of being a member of scheduled caste, was given to the appellant, for the first time when he claimed promotion to the post of Office Clerk. Based on his claim as a Thandan belongs to scheduled caste, on the basis of the certificate issued by Tahsildar in 1985 relaxed standard was applied in the matter of selection to the post of Office Clerk in the case of the appellant and consequently, he was promoted as Clerk with effect from 3.2.1988. Subsequently, he was promoted as Senior Clerk with effect from 1.9.1990. The pleadings in the counter affidavit itself would reveal that the appellant was virtually given relaxation in standard only at the time of selection to the post of Office Clerk and he obtained subsequent promotion based on his seniority in the post of Office Clerk and then in the post of Senior Clerk. The learned counsel appearing for the respondents contended that since the appellant who entered in service virtually declaring his caste status as Hindu-Ezhava obtained promotion on the strength of the certificate issued by the Tahsildar, Alathur Taluk on 13.2.1985 certifying his caste status as Thandan belonging to Scheduled Caste Community, he cannot be permitted to continue to enjoy the said promotion and the consequential promotions. According to them, the appellant had committed fraud for obtaining M.F.A.No.58 of 2006 13 promotion by producing a certificate obtained from Tahsildar, Alathur Taluk on 13.2.1985 that too, after entering the service as a person belonging to Hindu-Ezhava community. The learned Senior counsel appearing for the appellant contended that though the said contention would appear to be attractive at the first blush, a deep probe into the matter would reveal that the appellant had not played any fraud and in fact, he had attempted only to get a benefit which is otherwise due to him. It is contended that the Tahsildar, Alathur Taluk in fact, issued the certificate on 13.2.1985 after conducting due enquiry. It is further contended that the documents which were relied on at that point of time were virtually produced before the Scrutiny Committee as well. The contention of the appellant is that at the time of his admission in School in the admission register his caste status was duly recorded as `Thandan' Community. It is further contended that in the case of his siblings Gangadharan, Balakrishnan and Bhaskaran also, while being admitted in schools in their respective admission registers their caste status was also entered as `Thandan' Community. The contention is that in such circumstances, the appellant bona fidely believed that the entry of his caste status as Hindu-Ezhava in the SSLC Book ignoring the entry made in the admission register was only a mistake and it was in the said circumstances that he approached the Tahsildar to obtain a certificate. Be that as it may, it is evident that subsequent to the M.F.A.No.58 of 2006 14 production of the said certificate dated 13.2.1985 the Railway Authorities virtually accepted the said certificate and acted upon it. Evidently, it is based on that recognition that the standard was relaxed in the matter of selection to the post of Office Clerk in the case of the appellant and he was promoted to the said post by granting such relaxation available to Scheduled Caste Community. Thereafter, he obtained further promotions based on the seniority in the respective posts. The indisputable facts thus obtained in this case would reveal that the Railway Authorities issued an order requiring him to show cause why he should not be reverted to the post of Gangman based on certain complaints obtained by its Vigilance Wing regarding his caste status. We have already narrated what happened to such proceedings initiated by the Railway Administration. Obviously, the authorities who issued an order of reversion subsequent to its setting aside by the Central Administrative Tribunal in O.A.No.1008 of 1996, despite the grant of liberty to initiate disciplinary action, did not initiate disciplinary action, presumably, taking note of the judgment of this Court in O.P.No.13523 of 1996. As noticed hereinbefore, it is the judgment dated 15.10.2003 in the said writ petition that ultimately culminated in the impugned order of the Scrutiny Committee. Though the learned counsel appearing for the respondents contended that the sister of the appellant was in fact, admitted in school with the caste status of M.F.A.No.58 of 2006 15 `Ezhava' the fact that the appellant and three of his siblings were admitted in schools with caste status of `Thandan' Community is not at all in dispute. In fact, the documents produced by the appellant along with argument notes before the Scrutiny Committee as Annexures A to F would reveal that the appellant and the said siblings were admitted in schools with the caste status `Thandan' Community. It is in this context that the decision of the Hon'ble Apex Court in **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case (supra) assumes relevance. The Apex Court virtually declared that Thandans having been listed in the Scheduled Castes Order as a Scheduled Caste could not have been excluded from the list rather, its members could not have been deprived of the benefits of the Scheduled Caste Community by the State Government after embarking upon an enquiry. In such circumstances, it is evident that if a person is certified as a Thandan an enquiry whether he/she belongs to Ezhava/Thiyya of Malabar area was impermissible and by virtue of the Scheduled Castes Order then stood he/she was entitled to get the benefit available to Scheduled Caste till the coming into force of the Amendment Act, 2007. In the light of the said provisions, it cannot be said that the appellant had actually committed fraud on the Railway Authorities for getting promotion to the post of Office Clerk. As noticed hereinbefore, he obtained further promotions as Senior Clerk and then as Head Clerk which was M.F.A.No.58 of 2006 16 subsequently re-designated as Superintendent by virtue of his seniority. When this be the circumstances, the question is whether the appellant is entitled to get the benefit of the dictum laid down in **Unnikrishnan's** case (supra). 8. We have already found that the Apex Court in unambiguous terms held that a person belonging to Thandan Community in the Malabar region was entitled to get the benefit of Scheduled Caste by virtue of the law declared by the Apex Court in **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case (supra) till the coming into force of the Amendment Act. Evidently, in this case, the appellant was granted the benefit available to Thandan belonging to Scheduled Caste Community on the strength of caste certificate issued by a competent authority that is, Tahsildar. The said position is clear from the counter affidavit of the 4[th] respondent. As is obvious from it the appellant was granted relaxation in standard on the strength of the caste certificate issued by the Tahsildar, Alathur Taluk dated 13.2.1985. As noticed hereinbefore, the Hon'ble Apex Court rendered the decision in **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case (supra) on 2.9.1994. Evidently, the appellant was granted the benefit of relaxation in standard on the strength of the certificate dated 13.2.1985 and he was virtually enjoying the benefit available to Scheduled Caste Community and had M.F.A.No.58 of 2006 17 obtained promotions by that time. As per the decision of the Hon'ble Apex Court in **Unnikrishnan's** case (supra), those benefits which a person accrued by virtue of any certificate obtained prior to and up to the date of amendment could not be taken away retrospectively, in the light of the decision in **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case (supra). In this case, it is to be noted that the appellant was issued with a notice requiring him to show cause why he should not be reverted to the post of Gangman virtually in the year 1996, after the decision in **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case (supra). It is also to be noted that the Central Administrative Tribunal, Ernakulam Bench as per order in O.A.No.1008 of 1996 set aside the order of reversion and on the strength of the same the appellant had continued in the same post. He was ousted from service solely based on the impugned proceedings of the Scrutiny Committee. The question whether the appellant is liable to be ousted from service as per the impugned proceedings of the Scrutiny Committee dated 2.11.2005 is to be considered in the light of the decision of the Hon'ble Apex Court in **Unnikrishan's** case (supra) and in the light of the decision of Division Bench of this Court in ## **G.Velayudhan** v. **State of Kerala (1997 (1) KLT 299)** . 9. We have already referred to the relevant paragraphs in **Unnikrishnan's** case (supra) viz., paragraphs 35, 36 and 41. In the M.F.A.No.58 of 2006 18 light of the aforesaid paragraphs certainly, the appellant is entitled to continue in service in view of our specific finding to the effect that he had not committed fraud in the matter of getting appointment and also the subsequent promotions. In the decision in **Velayudhan's** case (supra) a Division Bench of this Court held that going by the decision of the Hon'ble Apex Court in **Kumari Madhuri Patil** v. **Addl. Commissioner ((1994) 6 SCC 241)** the committee which has to consider the caste status of persons should have consisted of three members. In **Velayudhan's** case (supra) the petitioner's caste status was considered and declared by a committee consisting of only two members. In the said circumstances, after an elaborate consideration of the relevant provisions and also the decisions of the Hon'ble Apex Court in **Kumari Madhuri Patil's** case (supra) the Division Bench held that going by the direction contained in the supreme Court judgment there shall be three members in the Committee and that the said Committee was given very important powers and duties to determine the caste status of the persons. The decisions of the Committee having serious consequences with regard to the rights of the persons whose caste status is decided and in such circumstances the Committee shall have the composition as directed by the Hon'ble Apex Court. In other words, in the light of the decision of the Hon'ble Apex Court and the decision in **Velayudhan's** case (supra) the Scrutiny Committee has to M.F.A.No.58 of 2006 19 be constituted with three members. A committee consisting of only two members cannot be said to be a duly constituted committee. In that context, Rules 6 and 7 of the Kerala (Scheduled Castes & Scheduled Tribes) Regulation of Issue of Community Certificates Rules, 2002 also assume relevance. They would go to show that the Committee has to be constituted with only three members which is in tune with the decision of the Apex Court in **Kumari Madhuri Patil's** case (supra). A perusal of the impugned order would reveal that the caste status of the appellant was decided by a committee consisting of two members. In such circumstances, in the light of the decision of the Division Bench in **Velayudhan's** case (supra), in the eye of law, the impugned order cannot be sustained. Normally, in such circumstances, we will be tempted to remand the matter for a fresh consideration by a duly constituted Scrutiny Committee. But, at the same time, in the light of **Unnikrishnan's** case (supra) it would be a futile exercise and it is absolutely unnecessary and unwarranted to remand the case on hand. A careful scrutiny of the decision of the Hon'ble Apex Court in **Unnikrishnan's** case (supra) would reveal that no purpose would be served by remanding the case on hand to the Scrutiny Committee to decide the caste status of the appellant who is a Thandan belonging to Ezhava community of the Malabar region as in the light of the M.F.A.No.58 of 2006 20 Amendment Act, 2007 such persons cannot after the coming into force of the Amendment Act claim the scheduled caste status and they can claim only the OBC status. Since we have already found that in the light of the decision in **Palghat Jilla Thandan Samudhaya Samrakshna Samithi's** case and **Unnikrishnan's** case (supra) the appellant is entitled to get protected his appointment as also the promotions which he had obtained up to that date no fruitful purpose could be served by remanding the matter. It is to be noted that there is no case for the 4[th] respondent that subsequent to the coming into force of the Amendment Act the appellant had obtained any promotion and in fact, he had already retired from service. In the above circumstances, this appeal is allowed in part and we maintain the impugned order to the extent it declared the caste status of the appellant as a person not belonging to Thandan Community of Scheduled Caste and that he belongs to Hindu-Ezhava Community, but, the consequential direction to cancel the caste certificate issued to him, on the strength of which he obtained promotion as Office Clerk, is set aside. At the same time, in the light of the above discussion made in the light of the decision in **Unnikrishnan's** case (supra) it is made clear that the appellant is entitled to get all service benefits pursuant to his retirement from M.F.A.No.58 of 2006 21 service on 31.10.2015. If the appellant is not disbursed with such benefits the 4[th] respondent shall take appropriate steps to disburse such benefits, as expeditiously as possible. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS