K. Sivasankaran and Dhanya T. (Minor) v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 4TH DAY OF OCTOBER 2016/12TH ASWINA, 1938 MFA.No. 99 of 2006 ( ) ------------------------------PROCEEDINGS OF THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATE BEARING NO.7339/G2/03 SCSTDD DATED 17.4.2006. APPELLANT(S): --------------------- 1. K.SIVASANKARAN, THARISIL HOUSE, KARAKURUSSI.P.O, MANNARKKAD TALUK, PALAKKAD DISTRICT. 2. DHANYA.T. (MINOR), THARISIL HOUSE, KARAKURISSI.P.O, MANNARKKAD TALUK, PALAKKAD DISTRICT, REP. BY FATHER AND GUARDIAN SRI. SIVASANKARAN -DO-. BY ADVS.SMT.V.P.SEEMANDINI (SR.) SRI.M.R.ANISON SMT.S.KARTHIKA RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY ITS SECRETARY, SCHEDULED CASTES & SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. 2. THE SCRUITINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES,, REP. BY ITS CHAIRMAN, SCH. CASTES ADN SCH. TRIBES, DEVELOPMENT DEPARTMENT, GOVT. SECRETARIAT,, TRIVANDRUM. 3. THE VIGILANCE CELL OF KIRTADS, - REP. BY ITS VIGILANCE OFFICER, DIRECTORATE OF KIRTADS, KOZHIKODE-17. 4. THE TAHSILDAR, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SPL. GOVT. PLEADER SRI. K.V. PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K. SURENDRA MOHAN & MARY JOSEPH, JJ. - - - - - - - - - - - - - - - - - M.F.A. No. 99 of 2006 - - - - - - - - - - - - - - - - - Dated this the 4[th] day of October, 2016. ## JUDGMENT ## Surendra Mohan, J. The appellants, father and daughter, are in appeal before us against the proceedings of the Scrutiny Committee for Verification of the Community Certificates dated 17.4.2006. The appellants had approached the Tahsildar, Mannarkkad, the fourth respondent herein, seeking the issue of a Caste Certificate for the purpose of the second appellant, who wanted to obtain admission to School in the quota reserved for members of the Scheduled Caste Community. They claimed that they belong to the Thandan Community, which is one of the Scheduled Caste Communities. The fourth respondent did not take any action on their request. Thereupon, they approached this Court by filing O.P. No. 19968 of 2001. As per judgment dated 6.7.2001, this Court directed the fourth respondent to issue the Community MFA.99/2006. 2 Certificate that was sought for. Accordingly, a Community Certificate was issued to the appellants on 8.8.2001. Thereafter the Tahsildar conducted an enquiry and by order dated 5.10.2001 the Community Certificate so issued was cancelled. 2. The appellants challenged the order of the Tahsildar in appeal before the RDO, Ottapalam. The appeal was dismissed by the RDO. The appellants then filed a revision before the Government on 27.3.2003. The Government referred the revision to the Scrutiny Committee. The Scrutiny Committee directed the Vigilance Officer, KIRTADS to conduct an enquiry into the claim of the appellants. Accordingly, an enquiry was conducted and it was found that, the appellants belong to the Community, Ezhava - Thiyya, though they are commonly referred to as Thandan. 3. On the basis of the above report, a show cause notice was issued by the Scrutiny Committee on 12.12.2005 to the appellants. On 2.1.2006 they submitted their written MFA.99/2006. 3 explanation. 104 documents were also produced by them in support of their case. The matter was heard on 18.1.2006. Thereafter by proceedings dated 17.4.2006, the Scrutiny Committee has passed an order finding that the appellants had failed to establish their claim that they belong to Scheduled Caste (Thandan) community. They actually belong to Thiyya (OBC) community. All SC (Thandan) Certificates issued to them have been cancelled. The proceedings are also submitted to the Government for further action. The appellants are aggrieved by the said order. 4. Along with the appeal, Annexures A1 to A8 additional documents have been produced. Subsequently, along with I.A. No. 1043 of 2006, Annexure A9 order issued by the first respondent pursuant to the proceedings of the Scrutiny Committee has also been produced. 5. We have heard Adv. M.R. Anison, who appears for the appellants as well as the Special Government Pleader Sri. K.V. Prakash, who appears for the respondents. We have MFA.99/2006. 4 considered the rival contentions anxiously. 6. According to the counsel for the appellants, they had not been given an effective opportunity to adduce all evidence before the Scrutiny Committee. Therefore, whatever documents they could lay their hands upon were produced at the time of evidence. Annexures A1 to A8 documents had come to their notice only subsequently and are therefore produced in appeal. It is pointed out that Annexures A1 to A8 documents are pre-Constitutional documents on which implicit reliance could be placed. This is for the reason that, before the enactment of the Constitution of India, there was no need for any person to create such documents showing the caste status of their predecessors. They did not stand to gain any benefit by the said exercise. For the above reason, it is contended by the counsel that, the documents could be relied upon to find that the appellants actually belong to the Thandan Community which is one of the Scheduled Caste Communities notified. The counsel also attacks the cursory MFA.99/2006. 5 manner in which the Scrutiny Committee has considered the various documents produced by the appellants. A careful consideration thereof, would certainly have supported a different conclusion, it is contended. It is further pointed out that though a Caste Certificate had been issued to the appellants by the fourth respondent, they had not taken any benefit on the basis of the said document. Therefore, the direction to prosecute them issued by the first respondent in Annexure A9 order is without any justification. 7. According to the Special Government Pleader, Adv. K.V.Prakash, the Scrutiny Committee has considered the issue in the proper perspective. It is pointed out that, only persons who belong to the Thandan community of the Erstwhile Travancore State belong to the community notified as a Scheduled Caste. In the Erstwhile Malabar areas, Thandan is a title that used to be given to the Headman among the Thiyya community. Since it used to be a title, the family members used to append the title to their names. The said MFA.99/2006. 6 circumstance was utilized by the members of the said community after the enactment of the Constitution, to claim the benefit of reservation that was available only to members who belong to Scheduled Caste communities. A lot of confusion had prevailed up to 2007, until the Constitution was amended and the reservation was limited to members belonging to the Thandan Community of Travancore area alone. In view of the above, it is contended that there are absolutely no grounds to interfere with the proceedings of the Scrutiny Committee. 8. In the present case, though a Caste Certificate had been issued to the second appellant by the fourth respondent, the same was cancelled shortly thereafter by the fourth respondent himself who had conducted an enquiry. The matter has been pending before various authorities ever since. Consequently, the appellants have not derived any benefit on the basis of the Certificate that was issued by the fourth respondent on 8.8.2001. As per the Constitution MFA.99/2006. 7 (Scheduled Castes) Order (Amendment) Act, 2007, it has been clarified that the reservation would be available only to Thandan (excluding Ezhava and Thiyya who are known as Thandan in the Erstwhile Cochin and Malabar areas). Therefore, the appellants are not persons who had taken the benefit of the Caste Certificate issued to them, in any manner. 9. Though it is contended by the counsel for the appellants that, Annexures A1 to A8 describe the caste status of their predecessors as Thandan, we are not satisfied that the said documents could be relied upon to ascertain the caste status of the appellants. It is true that they are documents of antiquity tracing their existence to dates before the enactment of the Constitution. However, bearing in mind the social scenario at the relevant time where Thandan was a title given to the headman in the Thiyya community, which was commonly used by the members of the family as a titular prefix to their names, it is not safe to conclude solely on the basis of the documents produced that the appellants belong to MFA.99/2006. 8 Thandan community which is one of the notified Scheduled Caste communities. We have gone through the proceedings of the Scrutiny Committee. We find that the Scrutiny Committee has dealt with the documents produced, elaborately. It has been noticed that the relatives of the appellants are all persons belonging to the Thiyya community. The marriages solemnized in their family are also with Thiyyas. It is after analyzing all the relevant circumstances that the Scrutiny Committee has come to the conclusion that the appellants belong to the Thiyya, which is an OBC community. We do not find any reason to take a different view of the matter or upset the said finding. 10. The counsel for the appellants has placed reliance on the decision of the Apex Court in R. Unnikrishnan v. V.K. Mahanudevan ((2014) 4 SCC 434), particularly paragraph 41 thereof to contend that the confusion that was prevailing with respect to the question as to whether Thandans who were part of the Thiyya community were MFA.99/2006. 9 entitled to be considered as members of a Scheduled Caste, had been authoritatively cleared only by the Constitution (Scheduled Caste) Order (Amendment) Act, 2007. In view of the above, even the persons, who had taken advantage of the confusion that was prevailing, had been exonerated of any liability for the benefits that they had enjoyed. Paragraph 41 of the said judgment, reads as follows: “41. In the instant case there is no evidence of lack of bona fides by the respondent. The protection available under the decision on 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 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 the service.” MFA.99/2006. 10 The above view has been reiterated by the Apex Court in Kocha v. State of Kerala (2016(2) KLT 452(SC)) also. paragraph 11 of the said judgment reads as under: “11. The cumulative reading of the aforesaid two judgments viz. In the case of Palghat Jilla and R.Unnikrishnan, clinches the controversy by tilting the balance in favour of the appellants herein. We may record that the appellants have laboured to demonstrate that they are in fact Thandans on the basis of various documents filed by them and have attentive to argue that the Scrutiny Committee did not arrive at a correct decision. However, it is not even necessary to go into this aspect in the facts of these cases. As pointed out above, the appellant was treated as Thandan and, thus, belonging to Scheduled Caste community on the basis of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act 1976 and she was appointed as High School Assistant (Physical Science) in Government School on 03.02.1989 treating her as Scheduled Caste. Even if we proceed on the basis that she belongs to Ezhavas/Thiyyas, that is irrelevant insofar as the appellant is concerned as these castes were treated as part of Thandan community and were held entitled to be treated as Scheduled Caste. This principle is MFA.99/2006. 11 categorically stated in Palghat Jilla's case. R.Unnikrishnan's case clarified that the position changes only w.e.f. 30.08.2007 with the Amendment Act of 2007 when Thiyyas and Ezhavas are not to be treated as part of Thandan and, thus, Scheduled Caste but those who have already conferred the benefit would be entitled to continue to reap the fruits thereof.” 11. What follows from the above dicta is that even in the case of persons who had taken advantage of the confusion that was prevailing till 2007 and had enjoyed the benefits of reservation, had been permitted by the Apex Court to continue to enjoy the said benefits, without being disturbed. In the present case, as we have already noticed above, the appellants have not derived any benefit on the basis of the Caste Certificate issued to them. Therefore, the direction in Annexure A9 to prosecute them cannot be sustained. The direction in paragraph 3 of Annexure A9 Government Order to prosecute the first appellant is therefore liable to be set aside. Apart from the above limited relief, we MFA.99/2006. 12 do not find that the appellants are entitled to any other reliefs in this appeal. This appeal is accordingly disposed of directing that the direction of the first respondent contained in Annexure A9 Government Order, G.O.(MS) No.29/2006/SCSTDD dated 2.6.2006, ordering the first respondent to be prosecuted shall stand set aside. K. SURENDRA MOHAN JUDGE MARY JOSEPH JUDGE sb