P. R. Anil v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941** ## **WP(C).No. 5697 of 2014** ## **PETITIONER/S:** **P.R. ANIL, AGED 54 YEARS, S/O. RATNADAS(LATE), PARUVASSERI HOUSE, PERNGOTTUKURISSI(P.O), PALAKKAD DISTRICT, (ASSISTANT GENERAL MANAGER(GENERAL), FOOD CORPORATION OF INDIA, REGIONAL OFFICE NO.10, EAST END MAIN ROAD, IVTH “T BLOCK”,JAYANAGAR, BANGALORE).** **BY ADVS. SRI.P.V.MOHANAN SRI.ANIL VIJAYAN** ## **RESPONDENT/S:** |**1**|**THE UNION OF INDIA**| |---|---| ||**REP BY THE SECRETARY,**| ||**MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT,**| ||**LOK SABHA SECRETARIAT, NEW DELHI-110001**| |**2**|**THE STATE OF KERALA**| ||**REP BY ITS SECRETARY TO GOVERNMENT,**| ||**SCHEDULED CASTE/SCHEDULED TRIBE, DEVELOPMENT**| ||**(G)DEPARTMENT, THIRUVANANTHAPURAM-695 001.**| |**3**|**THE CHAIRMAN SCRUTINY COMMITTEE,**| ||**FOR VERIFICATION OF COMMUNITY CERTIFICATES,**| ||**(CONSTITUTED UNDER ACT 11 OF 1996)**| ||**SECRETARY TO GOVERNMENT SCHEDULED CASTE DEVELOPMENT**| ||**DEPARTMENT, THIRUVANANTHAPURAM-695 001.**| W.P.(C) No.5697 of 2014 2 **4 THE DIRECTOR, THE KERALA INSTITUTE FOR RESEARCH OF TRAINING AND DEVELOPMENT STUDIES, MEMBER, SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES, THIRUVANANTHAPURAM-695 001. 5 THE GENERAL MANAGER, FOOD CORPORATION OF INDIA, REGIONAL OFFICE, JAYANAGAR, BANGALORE-560 041, KARNATAKA STATE. BY ADVS. SRI. P. VIJAYAKUMAR, ASG OF INDIA R2 TO R4 - SRI. K.V.PRAKASHAN, SPECIAL GOVERNMENT PLEADER R5 - SRI.VARGHESE M.EASO, SC, FOOD CORPORATION OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.5697 of 2014 3 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P22 communication issued by the Scrutiny Committee as per the provisions of Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 [Act 108 of 1976], rejecting the Scheduled Caste Thandan claim of the petitioner and cancel the 'Form of Caste Certificate, No. nil dated 04.05.1978 issued by the Tahsildar, Alathur, Palakkad District, and further deciding to bring the said fact to the notice of the Scheduled Castes/Scheduled Tribes Development Department of the State Government for necessary action under the provisions of Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 [Act 11 of 1996], and for other consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. According to the petitioner, petitioner belongs to 'Thandan' community, a Scheduled Caste community as defined under Act 108 of 1976, and was born at Peringottukurissi, Alathur Taluk, Palakkad District. The Kerala Institute for Research, Training and Development Studies [for brevity, “KIRTADS”] submitted reports on 07.03.1998 to the Scrutiny W.P.(C) No.5697 of 2014 4 Committee under Sec.9(2) of Act 11 of 1996, stating that the petitioner and his siblings do not belong to Thandan, a Scheduled Caste community. The Scrutiny Committee initiated proceedings under the provisions of Act 11 of 1996 by issuing Ext.P7 show cause notice. Petitioner has submitted a detailed reply statement also producing 75 material documents including preconstitutional documents to prove that the petitioner belongs to Thandan community. Challenging Ext.P7 show cause notice dated 30.03.1998 issued by the State Government, petitioner has filed O.P.No.8747/1998, which was disposed of as per Ext.P10 judgment dated 13.10.2006, quashing the impugned proceedings except the report of the KIRTADS, however, leaving open the liberty of the Scrutiny Committee constituted under Act, 1996 to take appropriate action in accordance with law, and petitioner was given the liberty to take up all the contentions before the Committee including the contentions on merits with regard to jurisdiction and validity of the report of the KIRTADS. It was further made clear that, as long as petitioner is continuing in service, he shall be entitled to all service benefits and in case any such benefit has been withheld owing to the pendency of the original petition, the same shall W.P.(C) No.5697 of 2014 5 be disbursed within one month. 3. It is also submitted that, identical proceeding was initiated against the paternal uncle of the petitioner viz., Haridasan, and the Scrutiny Committee ordered that Haridasan does not belong to Thandan community. Consequential proceeding proposing to terminate the service of Haridasan was initiated. However, a Division Bench of this Court as per Ext.P9 judgment in ' _**Haridasan v. State of Kerala**_ ' [2000 (2) KLT 913], set aside the impugned orders and the said judgment has become final. It is further submitted that, a detailed argument note was filed before the Scrutiny Committee raising necessary and appropriate contentions and Exts.P13 to P18 judgments were also produced to canvass the proposition that the right enjoyed prior to 29.08.2007, i.e., the commencement of Amendment Act 31 of 2007 is protected. It is also submitted that, there is no documentary evidence to prove that petitioner belongs to Thiyya community. Instead, documentary evidences are produced to prove that the petitioner, his siblings and his parents belong to Thandan community. However, the Scrutiny Committee, according to the petitioner, has passed Ext.P22 order dated 31.11.2013, holding that petitioner W.P.(C) No.5697 of 2014 6 and his siblings belong to Thiyya community included in Other Backward Classes. The case projected by the petitioner is that, the findings rendered by the Scrutiny Committee in Ext.P22 are against the proposition and dictum laid down by this Court as well as the apex court in its various judgments, and therefore, liable to be quashed. 4. The 5[th] respondent, i.e., the General Manager, Food Corporation of India, wherein the petitioner is employed, has filed a detailed counter affidavit, denying the allegations contained in the writ petition. It is also pointed out that, the date of joining of the petitioner shown in the writ petition is not correct, since the correct date is 02.05.1981 and not 02.08.1981, as is shown in the writ petition. Other contentions are also raised so far as the 5[th] respondent is concerned. **==> picture [396 x 9] intentionally omitted <==** petitioner, learned Special Government Pleader and the learned Standing Counsel appearing for the 5[th] respondent, and perused the pleadings and the documents on record. 6. The sole question to be decided is, whether any manner of interference is warranted to Ext.P22 W.P.(C) No.5697 of 2014 7 order passed by the Scrutiny Committee in accordance with the provisions of Act, 1996. The subject issue was considered by a Full Bench of this Court in ' _**Kerala**_ ## _**Pattikajathi Samrakshana Samithy and Another v. State**_ _**of Kerala and Others**_ ' [1995 (3) ILR 1], and held that, all members of the Thandan community including those belonging to the erstwhile Malabar District and the present Palghat District belong to Scheduled Caste, and they cannot be considered as mere title holders of Ezhava/Thiyya community. The findings rendered by the KIRTADS in its report is that, Thandans in Malabar area are mere title holders conferred by the rulers and that they are not belonging to Scheduled Caste community. It was upholding the said findings, the Scrutiny Committee has entered into findings that in the erstwhile Malabar area there are no Thandans belonging to the Scheduled Caste community and the Thandans in that area are title holders. This question was again considered by the apex court in ' _**Palghat Jilla Thandan**_ ## _**Samudhaya Samrakshana Samithi & Another v. State of**_ _**Keerala**_ ' [1994 (1) KLT 118], taking into account Article 341 of the Constitution of India dealing with powers of the President of India to notify specifying the castes, races or tribes or parts of or groups W.P.(C) No.5697 of 2014 8 within castes, races or tribes for the purpose of the Constitution be deemed to be Scheduled Castes in relation to any State or Union Territory and to include in or exclude from the list of Scheduled Castes specified in a notification, and Constitution (Scheduled Castes) Order, 1950, and held that, once Thandans throughout the State are entitled to be treated as a Scheduled Caste by reason of the Scheduled Castes order, no enquiry could be held or evidence let in, to determine whether or not some particular community falls within or outside it. 7. However, the question was considered by the apex court in ' _**R. Unnikrishnan and another v. V.K. Mahanudevan and others**_ ' [AIR 2014 SC 1201] in the light of amendment made to the Constitution (Scheduled Castes) Order, 1950, as per the amendment Act 2007, on and with effect from 30.08.2007, wherein it is held that there is no evidence of lack of _bona fide_ by the respondent, and it also 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 'Ezhavas' and 'Thiyyas' known as 'Thandan' and assuming that the two were different at all relevant points of time, the fact that the position W.P.(C) No.5697 of 2014 9 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 of the Amending Act came into force. It was further held that, while the benefit granted to the respondent as a Scheduled Caste candidate till 29[th] August, 2007, on which date the amendment of the Scheduled Castes Order came into force, shall remain undisturbed, and any advantage in terms of promotion or otherwise which the respondent may have been granted after the said date solely on the basis of his being treated as a Scheduled Caste candidate may if so advised be withdrawn by the Competent Authority. It was further clarified that the beneficiary shall not be entitled to claim any benefit in the future as a Scheduled Caste candidate but no benefit admissible to him as an OBC candidate shall be denied. As per the Amendment Act, 2007, Entry 67 of the list of Scheduled Castes applicable to the State of Kerala was substituted in the following manner: _“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)”._ W.P.(C) No.5697 of 2014 10 8. The apex court had also occasion to consider the very same issue in ' _**Kocha v. State of Kerala**_ ' [2016 (2) KLT 452 (SC)], and after considering the earlier judgments on the point, held as follows in paragraph 11: _“_ _**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 appellant 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 contained as these castes were treated as part of Thandan Community and were held entitled to be treated as Scheduled Caste. This principle is 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 entitled to continue to reap the fruits thereof.”_ It was finally held that since the appellants have been continued in service because of the interim order passed by the Court, they are treated as validly appointed, giving them the benefit of the members of W.P.(C) No.5697 of 2014 11 the Scheduled Caste category. 9. Later, a Division Bench of this Court had occasion to consider the issue in ' _**Sumanabai K. v. State of Kerala and Others**_ ' [M.F.A. No.54 of 2004 dated 04.04.2019], and after conducting an extensive survey of the earlier judgments of this Court and the apex court, held that the certificates issued showing the caste as 'Thandan' was not liable for cancellation. Therefore, the order of the Scrutiny Committee finding otherwise was set aside. 10. So far as the sequence of events in the matter of appointment of the petitioner is concerned, he was appointed on 02.05.1981 as Stenographer Grade-II in the Food Corporation of India, later promoted as Grade-I Stenographer in 1986 and Assistant Manager (General)on 29.07.1993, however, subject to conditions, and among others, to produce latest community certificate as the petitioner was promoted against roster point reservation set apart for Scheduled Caste category, and accordingly petitioner assumed charge on 02.08.1993. Later, petitioner was posted as Assistant General Manager on 06.10.2005 (ad-hoc) followed by regularization on 28.02.2007 and continued up to 31.05.2019, date of retirement, and also by virtue of W.P.(C) No.5697 of 2014 12 the stay granted by this Court against Ext.P22. 11. I have evaluated the rival submissions made across the Bar. The discussion made above would make it clear that the legal position in respect of the issue is so clear that the benefits enjoyed by the petitioner on the basis of the caste certificate issued showing the caste of the petitioner as 'Thandan' cannot be cancelled, and the petitioner is entitled to enjoy the benefits on the basis of the certificate so issued till the Constitution (Scheduled Castes) Order, 1950 amended as per the Amendment Act 2007. I say so because there is no established evidence before this Court that the caste certificate was secured by the petitioner by any surreptitious manner, and that actually it was secured in accordance with the law stood then. Therefore, I quash Ext.P22, and the continuance of the petitioner on the basis of the interim order granted by this Court is found to be proper, legal and valid on the basis of the caste certificate of the petitioner as Thandan Scheduled Caste. Resultantly, the writ petition will stand allowed to the above extent, and since petitioner has retired from service on 31.05.2019, all steps shall be taken to W.P.(C) No.5697 of 2014 13 quantify the benefits available to the petitioner in accordance with the amendment made to the (Scheduled Castes) Order, 1950 as on 29.08.2007, treating the caste certificate issued to the petitioner valid till the date of retirement, and disburse all benefits accordingly, at the earliest possible time. It is also made clear that none of the descendants of the petitioner could claim any benefits of Thandan Scheduled Caste, on and with effect from 30.08.2007, on which date the Amendment Act 2007 came into force. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/04.06.2019 W.P.(C) No.5697 of 2014 14 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE IST PAGE OF SCHOOL CERTIFICATE OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE CASTE CERTIFICATE OF THE PETITIONER.** **EXHIBIT P3 TRUE COP OF THE ORDER GO(MS)76/79/DD/ DTD 17/5/1979. EXHIBIT P4 TRUE COPY OF THE ORDER GO(MS)72/84/HWD DTD 15/10/1984. EXHIBIT P5 TRUE COPY OF THE ORDER GO(MS)63/87/SCSTDD DTD 25/11/1987. EXHIBIT P6 TRUE COPY OF THE JUDGMENT REPORTED IN 1994(1)KERALA LAW TIMES PAGE 119. EXHIBIT P7 TRUE COPY OF THE NOTICE NO.5274/G2/98/SCSTDD DTD 30/3/98 ALONG WITH REPORT OF KIRTADS NO.VIG.15/97 DTD 7/3/1998 EXHIBIT P8 EXPLANATION ALONG WITH DOCUMENTS DTD 19/5/98. EXHIBIT P9 TRUE EXTRACT COPY OF THE JUDGMENT REPORTED IN 2000(2) KLT PAGE 913(HARIDASAN VS.STATE OF KERALA) EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN OP NO.8747/98 DTD 13/10/2006. EXHIBIT P11 TRUE EXTRACT COPY OF THE SCHEDULED CASTES AND SCHEDULED TRIBES ORDERS(AMENDMENT)ACT, 1976(108 OF 1976)DTD 18/9/1976. EXHIBIT P12 TRUE COPY OF THE CONSTITUTION (SCHEDULED CASTES)ORDER(AMENDMENT)ACT 2007(ACT NO 31 OF 2007)DTD 29/8/2007. EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN OP NO. 14444/2003 DTD 28/5/2008 REPORTED IN 2010(2)KHC PAGE 739. EXHIBIT P14 TRUE COPY OF THE JUDGMENT IN WPC 31533/2006 DTD 22/10/2009.** W.P.(C) No.5697 of 2014 15 |**EXHIBIT P15**|**TRUE COPY OF THE JUDGMENT IN OP 20205/95**| |---|---| ||**DTD 16/2/2010**| |**EXHIBIT P16**|**TRUE COPY OF THE JUDGMENT IN WPC 707/2009**| ||**DTD 11/10/2010.**| |**EXHIBIT P17**|**TRUE COPY OF THE JUDGMENT IN WPC**| ||**NO.12140/2011 DTD 9/11/2011.**| |**EXHIBIT P18**|**TRUE COPY OF THE JUDGMENT IN MFA NO**| ||**373/2003 DTD 2/1/2013.**| |**EXHIBIT P19**|**TRUE COPY OF THE COVERING LETTER F.NO.**| ||**VIG/MISC/17/2010 S.45/14/2006.ESTT.CUS DTD**| ||**29/9/2011 ALONG WITH PROCEEDINGS**| ||**NO.1362/G2/2003/SCSTDD DTD 3/9/2011.**| |**EXHIBIT P20**|**TRUE COPY OF THE ORDER GO(MS) NO.**| ||**139/2011/SCSTDD DTD 27/12/2011.**| |**EXHIBIT P21**|**TRUE COPY OF THE NOTES OF ARGUMENT DTD**| ||**23/4/2010.**| |**EXHIBIT P22**|**TRUE COPY OF THE ORDER NO.**| ||**5274/G2/1998/SCSTDD DTD 30/11/2013.**| |**EXHIBIT P23**|**TRUE COPY OF THE KERALA(SCHEDULED CASTES**| ||**AND SCHEDULED TRIBES)REGULATION OF ISSUE OF**| ||**COMMUNITY CERTIFICATES ACT, 1996(ACT 11 OF**| ||**1996)**| |**EXHIBIT P24**|**TRUE COPY OF THE KERALA(SCHEDULED CASTES**| ||**AND SCHEDULED TRIBES)REGULATION OF ISSUE OF**| ||**COMMUNITY CERTIFICATE (AMENDMENT) ACT**| ||**2008(ACT 32 OF 2008).**| RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-