MFA No. 54 of 2004 & WP(C) No. 13341 of 2004, High Court of Kerala, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941** ## **M.F.A.No.54 of 2004** **[AGAINST THE PROCEEDINGS OF THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATE BEARING NO.8370/G2/03/SCSTDD DATED 28/10/2003].** ## **APPELLANT/S:** **SUMANABAI.K., AGED 46 YEARS,** **NEDUVANI HOUSE, P.O.VAKKADAPPURAM, (VIA) KARAKURISSI, PALAKKAD DISTRICT, PIN - 678 595.** ## **BY ADV. SMT.V.P.SEEMANDINI (SR.)** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REP. BY ITS SECRETARY TO GOVT., SCHEDULED CASTE AND SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM.** - **2 THE SCRUTINY COMMITTEE FOR VERIFICATION COMMUNITY CERTIFICATES,** - **REP.BY ITS CHAIRMAN, SCHEDULED CASTE AND SCHEDULE TRIBES DEVELOPMENT DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM.** - **3 THE VIGILANCE CELL OF KIRTADS, REP. BY ITS VIGILANCE OFFICER, DIRECTORATE OF KIRTADS, KOZHIKODE -17.** - **4 THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM.** - **5 THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD.** **BY SPECIAL GOVERNMENT PLEADER SRI.K.V.PRAKASH.** **THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2019, ALONG WITH WP(C).13341/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA.54 of 2004 & - 2 - WP(C).13341 of 2004** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941** **WP(C).No.13341 of 2004** ## **PETITIONER:** **SUMANABAI K., P.D. TEACHER, G.L.P. SCHOOL, ELAMBULASSERY, PALAKKAD.** **BY ADVS. SMT.V.P.SEEMANDINI (SR.) SRI.M.R.ANISON** ## **RESPONDENTS:** - **1 STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, SCHEDULED CASTE AND SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM.** - **2 THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES, REP. BY ITS CHAIRMAN, SCHEDULED CASTE AND SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM.** - **3 THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM.** - **4 THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 5 THE HEADMASTER, G.L.P. SCHOOL, ELAMBULASSRY, PALAKKAD.** **R1-R4 BY SPECIAL GOVERNMENT PLEADER SRI.K.V.PRAKASH.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.04.2019, ALONG WITH MFA.54/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA.54 of 2004 & - 3 - WP(C).13341 of 2004** ## **JUDGMENT** ## **[ MFA.54/2004, WP(C).13341/2004 ]** **Vinod Chandran,J.** **The question raised is as to whether the appellant/petitioner is entitled to be continued in the post of P.D.Teacher to which she was appointed on the basis of the reservation as applicable to the 'Thandan' community. It is an admitted fact that Thandans, who were so called, living in the length and breadth of the State of Kerala, was included under the Constitution (Scheduled Castes) Order, 1950, except those of Malabar. By Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, the Thandans throughout the State of Kerala came to be included in the list of Scheduled Castes.** **2. The appellant had obtained certificates, in the years 1978 and 1985, showing that she belongs to Thandan community. She was appointed as a P.D.Teacher in a Government school in the year 1985. While she was so continuing in the said post, the Vigilance Cell of Kerala Institute for Research, Training and Development Studies [for brevity “KIRTADS”] issued a notice dated 28.01.2003 for the purpose of caste status enquiry. The appellant is** **MFA.54 of 2004 & - 4 - WP(C).13341 of 2004** **said to have produced 15 documents before the Vigilance Cell. The Vigilance Cell, it is asserted by the appellant, only required the appellant to furnish a genealogical proforma, which she did. Still later, she was issued with a show cause notice dated 28.04.2003, enclosing the report of the KIRTADS dated 22.03.2003, by the Scrutiny Committee constituted under the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 [Act 11 of 1996].** **3. Before the Scrutiny Committee also, the appellant produced additional 31 documents. The appellant was heard and even before the Scrutiny Committee's order was served on the appellant, the appellant was issued with a Government order dated 04.03.2004 terminating her from the services finding the caste status of the appellant not enabling her to have reservation as a Scheduled Caste. The Government order was challenged in W.P.(C) No.13341 of 2004. Much later, the Scrutiny Committee's order dated 28.10.2003 was served on the appellant, which is challenged in M.F.A.No.54 of 2004.** **4. The appellant contends that none of the documents were examined by the KIRTADS or the Scrutiny** **MFA.54 of 2004 & - 5 - WP(C).13341 of 2004** **Committee. KIRTADS in its report had merely presumed that the appellant's family was serviced by people belonging to other castes, on which basis it was held that the appellant was not a person belonging to the Scheduled Caste. The appellant also contends that none of the documents produced by her before the Vigilance Cell or before the Scrutiny Committee were properly looked into by either of the authorities. We need not look into the merits of the matter or look at the appreciation of evidence made either by the Vigilance Cell or the Scrutiny Committee, considering the binding precedents on the issue.** **5. As we noticed above, by the Amendment Act of 1976 the Thandan community throughout the State of Kerala came to be included in the list of Scheduled Castes. The State and its officials, however, had been conducting independent enquiries with respect to the claims of belonging to Thandan community, as raised by many individuals. Two persons claiming to be belonging to the Scheduled Caste community of Thandan, were before the High Court seeking for consideration for reservation in admission for the MBBS course. Both of them belong to the Malabar area. The High Court granted an interim order** **MFA.54 of 2004 & - 6 - WP(C).13341 of 2004** **enabling their admission to the respective courses; but, however, directed a public enquiry to be conducted by the State Government to determine whether there was a community called Thandan distinct from Ezhavas in Palakkad District and in areas other than in the erstwhile Chittur Taluk and also in any other place in the erstwhile Malabar district. On 17.05.1979, the Government of Kerala issued an order directing that the applications for issue of Community Certificates to the Thandans of all the four Districts of Malabar area and of the Taluks of Thalappilly, Vadakkancherry and Chavakkad in Trichur District may be enquired into in detail to ascertain whether the applicant belongs to the Thandan Community of the Scheduled Castes or the Thandan Section of the Ezhava/Thiyya Community. It was also directed that while issuing Community Certificates in respect of the areas mentioned above, the authorities should note the name of the community in the certificates as Thandans other than Ezhava or Thiyya. However, by an order dated 15.10.1984, having re-considered the matter, the 1979 order was cancelled. The order of 1984 was also modified by the Government of Kerala on 24.11.1987; again cautioning the authorities issuing the Caste Certificates** **MFA.54 of 2004 & - 7 - WP(C).13341 of 2004** **to draw a distinction between Thandans proper and Thandans of Thiyya/Ezhava community. The latter holds the name as a titular decoration and hence they are not entitled to reservation was the premise on which the State created the distinction.** **6. The Hon'ble Supreme Court considered the issue in** _**Palghat Jilla Thandan Samudhaya Samrakshana Samithi & Anr. v**_ **.** _**State of Kerala**_ **[** _**1994 (1) KLT 118 (SC)**_ **]. The Hon'ble Supreme Court noticed the contention of the State Government in its counter affidavit that pending proposed enquiry into the status of the Thandan community in the Malabar area, the Thandans from all over Kerala will continue to be treated as a Scheduled Caste. The learned Judges found that having regard to the above statement on oath, the State Government ought not to have issued the 1987 order. The further submission of the State Government regarding the competence to make any change in the law on the subject being confined to the Parliament was also noticed. The learned Judges proceeded on the basis that the State Government was right when it states that there is a section of the Ezhavas/Thiyyas community which was called Thandan in the Malabar area of the State. Even if that was** **MFA.54 of 2004 & - 8 - WP(C).13341 of 2004** **the position, it was held that 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. When such a distinction was not made in including Thandans as such in the list of Scheduled Castes as per the Scheduled Castes Order, it was found that it was not open to the State Government to say otherwise as it purported to do in the 1987 order. The Hon'ble Supreme Court held so in paragraph 19:** **“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 or, indeed, 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”.** **7. We also have to notice that one person claiming to be Chairman of the Kerala Scheduled Castes Protection Council, sought impleadment in the matter specifically taking up a contention that the Ezhavas/Thiyyas in Malabar are known as Thandans and they do not belong to Scheduled** **MFA.54 of 2004 & - 9 - WP(C).13341 of 2004** **Castes. Though the prayer for impleadment was not allowed, he was heard as an intervenor; but, however, the view was affirmed that as the list of Scheduled Castes applicable to the State of Kerala existed, the Thandans throughout the State should be granted such Scheduled Caste status. It was also observed that the State could take appropriate steps to confine the applicability of reservation to such Thandans as are actually belonging to the Scheduled Castes based on the enquiry conducted by the State Government.** **8. The State Government then moved the Union** **Government and the Parliament by the Constitution (Scheduled Castes) Order (Amendment) Act, 2007 substituted Entry 67 of the list of Scheduled Castes applicable to the State of Kerala with the following:** **“61. The Thandan (excluding Ezhavas 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”)”.** **Hence, from 2007, the Thiyyas/Ezhavas who claim to be Thandans were specifically excluded from the benefit of reservation by the amendment brought in to the Scheduled Castes Order. The effect of such an amendment was considered by the Hon'ble supreme Court in** _**R.Unnikrishnan**_ **MFA.54 of 2004 & - 10 - WP(C).13341 of 2004** _**v**_ **.** _**V.K.Mahanudevan**_ **[** _**(2014) 4 SCC 434**_ **]. It was categorically held that all the Thandan OBCs wrongly classified as Thandan SCs prior to effective date of 2007 Amendment (i.e. 30.07.2007) and who had obtained appointment on basis of SC caste certificate would be entitled to continue in service. It was also held in paragraph 36 as follows:** **“... At any rate, a certificate issued to an Ezhava 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”.** **9. Keeping the precedents above referred in mind,** **we would refer to the order of the Scrutiny Committee which, in paragraph 2, specifically indicated the cause of action in the caste status enquiry conducted against the appellant's claim. Relying on the report of the KIRTADS, it was so stated in paragraph 2 of the proceedings of the Scrutiny Committee for Verification of Community Certificates dated 28.10.2003:** **“Based on the findings of the report which categorically disproves the Scheduled Caste (Thandan) claim of the claimant and establishes that she** **MFA.54 of 2004 & - 11 - WP(C).13341 of 2004** **actually belongs to Thiyya (OBC) community, the Scrutiny committee issued notice to the claimant to show cause, if any, for not taking action against her for making bogus Scheduled Caste status, claimed for enjoying the benefits intended for Scheduled Caste unduly vide reference 3[rd] cited”.** **This is the specific contention which was taken by the Government earlier also and negatived by the Hon'ble Supreme Court in** _**1994 (1) KLT 118**_ **. The effect of the amendment in 2007 was also considered by the Hon'ble Supreme Court in** _**2014) 4 SCC 434**_ **and categorically found it to be prospective. The certificates issued was also held to be not liable for cancellation. In such circumstances, we have to necessarily set aside the order of the Scrutiny Committee impugned in M.F.A.No.54 of 2004 and it is so done.** **10. As a consequence of the Scrutiny Committee's order having been set aside, the order of the Government impugned as Exhibit P3 in W.P.(C) No.13341 of 2004 also has to be set aside. We do so. The writ petitioner's appointment and her continuance on the basis of an interim order issued by this Court has to be found to be proper. The appellant though was paid salary during the time when** **MFA.54 of 2004 & - 12 - WP(C).13341 of 2004** **she worked, had not been disbursed peqnsionary benefits. In such circumstances, the Government shall take immediate steps to disburse the pensionary benefits, at any rate, within a period of six months from the date of receipt of a certified copy of this judgment.** **11. The learned Special Government Pleader specifically points out that though as per the decisions of the Hon'ble Supreme Court the writ petitioner could claim for her continuance based on the Caste Certificate issued to her, none from her family, including her descendants could so claim, after the amendment brought to the Scheduled Castes Order. We agree with the said proposition advanced by the learned Special Government Pleader and accept the same but with a reservation. The appellant/petitioners claim cannot be scrutinized by the Scrutiny Committee or the KIRTADS, since as on the date of her certificate and appointment on reservation, the Thandans all over the State were included as such in the list of Scheduled Castes. Hence the orders passed against her are set aside on that premise and not looking into the merits of the claim that she actually belonged to the Scheduled Castes. Hence if any of her descendants or family** **MFA.54 of 2004 & - 13 - WP(C).13341 of 2004** **members claim Scheduled Caste status, after 2007, they will have to establish it independently.** **The Miscellaneous First Appeal and the Writ Petition are allowed as indicated above, with the above observation. Parties to bear their respective costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **MFA.54 of 2004 & - 14 - WP(C).13341 of 2004** ## **APPENDIX OF MFA 54/2004** **APPELLANT'S ANNEXURES:** **ANNEXURE A1 TRUE COPY OF THE RELEVANT PAGES OF RANK LIST PUBLISHED BY THE PSC, PALAGHAT DATED 4.2.1985.** **ANNEXURE A2 TRUE COPY OF THE LETTER DATED 2.7.2004 ISSUED BY THE HEADMASTER, GLP SCHOOL, EMBULASSERY.** **ANNEXURE A3 TRUE COPY OF THE APPOINTMENT ORDER OF SMT.VIJAYALEKSHMI.C. DATED 29.6.1985.** **RESPONDENTS' ANNEXURES: ANNEXURE R1(a) ENQUIRY REPORT OF KIRTADS. ANNEXURE R1(b) PROCEEDINGS OF THE SCRUTINY COMMITTEE.** **MFA.54 of 2004 & - 15 - WP(C).13341 of 2004** ## **APPENDIX OF WP(C) 13341/2004** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 5/1985 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE RELEVANT PORTION OF MALAYALA MANORAMA DAILY DATED 01/03/2004. EXHIBIT P3 TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO.18/2004/SCSTDD DATED 04/03/2004 ISSUED BY THE 1ST RESPONDENT.** ## **Vku/-** **[ true copy ]**