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Wednesday, January 15, 2014

Caste certificate - Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. - Thandan caste - Ezhuvas and Thiyyas who are also known as Thandan, in the erstwhile Cochin and Malabar areas - By High court order in 1986 obtained caste certificate as Thandan on merits - No fraud played either on court or on the Govt. bodies - reopening the same under guise of orders of another Division Bench in a another case granted in general - bars by resjudicate - High court allowed the writ of candidate and D.B also dismissed the appeal and confirmed the single judge order - in civil appeal the Apex court held that previous judgment operates as resjudicata and also held that since no fraud was played and since he loose the status of SC due to amendment by presidential order on 30-08-2007 - he is not entitled for any promotion and benefits after that date , all were given prior to it can not be disturbed as he has not played any fraud and dismissed the civil appeal = R. Unnikrishnan and Anr. …Appellants Versus V.K. Mahanudevan and Ors. …Respondents= 2014 (JANUARY PART – VOL -1) JUDIS.NIC.IN/ S.C./ file name=41143

Caste certificate - Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. - Thandan caste - Ezhuvas and Thiyyas who are also known as  Thandan,  in  the  erstwhile  Cochin  and Malabar areas - By High court order in 1986 obtained caste certificate as Thandan on merits - No fraud played either on court or on the Govt. bodies - reopening the same under guise of orders of another Division Bench in a another case granted in general - bars by resjudicate - High court allowed the writ of candidate and D.B also dismissed the appeal and confirmed the single judge order - in civil appeal the Apex court held that previous judgment operates as resjudicata and also held that since no fraud was played and since he loose the status of SC due to amendment  by presidential order on 30-08-2007 - he is not entitled for any promotion and benefits after that date , all were given prior to it can not be disturbed as he has not played any fraud  and dismissed the civil appeal =

whether the appellants could have  re-opened  for  examination  the
caste status of the respondent-V.K. Mahanudevan no matter  judgment  of  the
High Court in O.P No.9216 of  1986  had  declared  him  to  be  a  ‘Thandan’
belonging to a Scheduled Caste community.    =
 In O.P No. 9216 of 1986, the respondent (writ petitioners in  OP)  had
claimed to be a Thandan by Caste, hence, a Schedule Caste in  terms  of  the
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.  In  the
SLCC book the respondent was described as a “Thandan Hindu” but  falling  in
the OBC category. He applied for correction of the  SLCC  book  by  deleting
his description as an OBC and for treating him as a member of the  Scheduled
Caste.  Since the correction did not come about quickly,  he  moved  to  the
High Court for a direction  against  the  respondents  to  treat  him  as  a
Scheduled Caste and to make appropriate  entries  in  the  relevant  record.
Kerala  Public  Service  Commission,  Director,   Harijan   Welfare   Board,
Trivandrum were among others arrayed as respondents to  the  writ  petition.-

The judgement of the High Court in  Pattika  Jathi’s  case
(supra), it is  obvious,  from  a   reading  thereof,  does  not  deal  with
situations  where  the  issue  regarding  grant  of  validity  of  a   caste
certificate secured earlier than the said  judgment  had  been  the  subject
matter of judicial proceedings and effectively and finally resolved  in  the
same.  That apart, the respondent was not a party to the proceedings  before
the full bench nor was the certificate issued in his favour under  challenge
in those proceedings.  The full bench did  not  even  incidentally  have  to
examine the validity of the certificate issued  to  the  respondent  or  the
correctness of the order passed by the High Court pursuant to which  it  was
issued.  Such being the position the direction issued by the full  bench  of
the High Court could not possibly have the effect of  setting  at  naught  a
judgment delivered inter-parties which had attained  finality  and  remained
binding on all concerned.
in the Daryao v. State of U.P.  AIR 1961 SC  1457  where
the Court succinctly summed up the law in the following words:

           “It is in the interest of the public at large  that  a  finality
           should attach to the binding decisions pronounced by  Courts  of
           competent jurisdiction, and it is also in  the  public  interest
           that individuals should not be vexed twice over  with  the  same
           kind of litigation.(***)  The  binding  character  of  judgments
           pronounced by courts of  competent  jurisdiction  is  itself  an
           essential part of the rule of law, and the rule of law obviously
           is the basis of the  administration  of  justice  on  which  the
           Constitution lays so much emphasis.”
That even erroneous decisions can  operate  as  res-judicata  is  also
fairly well settled by a long line of decisions rendered by this  Court.  In
Mohanlal Goenka v. Benoy Kishna  Mukherjee   AIR  1953  SC  65,  this  Court
observed:

           “There is ample authority  for  the  proposition  that  even  an
           erroneous decision  on  a  question  of  law  operates  as  ‘res
           judicata’  between  the  parties  to  it.  The  correctness   or
           otherwise of  a  judicial  decision  has  no  bearing  upon  the
           question whether or not it operates as ‘res judicata’.”
in State of West Bengal v. Hemant Kumar  Bhattacharjee   AIR
1966 SC 1061, this Court reiterated the above principles  in  the  following
words :

           “A wrong decision by a court  having  jurisdiction  is  as  much
           binding between the parties as a right one and may be superseded
           only by appeals to higher  tribunals  or  other  procedure  like
           review which the law provides.”

   whether the respondent-V.K.  Mahanudevan  can  claim  protection  against
ouster from service and, if so, what is the effect  of  the  change  in  law
relevant to the caste status of the respondent. =

in Raju Ramsingh Vasave  v.  Mahesh
Deorao Bhivapurkar and Ors., (2008) 9 SCC 54, where this Court held:

           “If a fraud  has  been  committed  on  the  court,  no  benefits
           therefrom can be claimed on the basis of thereof or otherwise.”

in Palghat Jilla Thandan Samudhaya Samrakshna Samithi and Anr. v.  State  of
Kerala and Anr. (1994)  1  SCC  359  
in  which  this  Court  formulated  the
principal question that fell for consideration in the following words:

           “The principal question that arises in these writ petitions  and
           appeals is in regard to the validity  of  the  decision  of  the
           State of Kerala not to treat members of  the  Thandan  community
           belonging to  the  erstwhile  Malabar  District,  including  the
           present Palghat District, of the State of Kerala as  members  of
           the Scheduled Castes.”

What followed from the above is that Thandans regardless whether  they
were Ezhuvas/Thiyyas known as Thandans belonging to the Malabar  area,  were
by reason of the above pronouncement of this  Court  held  entitled  to  the
benefit of being treated as scheduled caste by the Presidential  Order,  any
enquiry into their being Thandans  who  were  scheduled  caste  having  been
forbidden by this Court as legally impermissible. 
The legal position has  since  the  pronouncement  of  this  Court  in
Pattika Jathi’s case (supra) undergone a change on account of the  amendment
of the Presidential Order in terms of The  Constitution  (Scheduled  Castes)
Order Amendment Act, 2007 which received the  assent  of  the  President  on
29th August, 2007 and was published in the official gazette on 30th  August,
2007. The Act, inter alia, made the following change in 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)”.




27.   There is in the light of the above no manner  of  doubt  that  Ezhuvas and Thiyyas who are also known as  Thandan,  in  the  erstwhile  Cochin  and Malabar areas  are no longer scheduled caste for the said State w.e.f.  30th August, 2007 the date when the amendment was notified. 
The  Parliament  has,
it is evident,  removed  the  prevailing  confusion  regarding  Ezhuvas  and
Thiyyas known as Thandan, in the erstwhile Cochin and  Malabar  areas  being
treated as scheduled caste. Ezhuvas and Thiyyas even if called Thandans  and
belonging to the above area will no longer be  entitled  to  be  treated  as
scheduled caste nor will the benefits of reservation be admissible to  them. =


 In the result these appeals  fail  and  are,  hereby,  dismissed.  
We,
however, make it clear that while the  benefit  granted  to  the  respondent
V.K. Mahanudevan as a Scheduled  Caste  candidate  till  30th  August,  2007
shall remain undisturbed, 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 is  axiomatic  that  the
respondent-V.K. Mahanudevan 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. Parties are directed to bear their  own
costs.   

  2014 (JANUARY PART – VOL -1) JUDIS.NIC.IN/ S.C./ file name=41143

                                        REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 3468 OF 2007


R. Unnikrishnan and Anr.                           …Appellants

      Versus

V.K. Mahanudevan and Ors.                    …Respondents


                                    WITH

                        CIVIL APPEAL NO.3469 OF 2007

State of Kerala and Ors.                           …Appellants

      Versus

V.K. Mahanudevan and Ors.                    …Respondents


                                     AND

                        CIVIL APPEAL NO.3470 OF 2007

State of Kerala and Ors.                           …Appellants

      Versus

V.K. Ananthan Unnikrishnan and Anr.          …Respondents

                                     AND

                    CIVIL APPEAL NO.              OF 2014
                (Arising out of S.L.P. (C) No.24775 of 2013)


State of Kerala and Ors.                           …Appellants

      Versus

Prem Kumar and Ors.                                   …Respondents



                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave  granted  in  Petition  for  Special  Leave  to  Appeal  (Civil)
No.24775 of 2013.

2.    Common questions of law  arise  for  consideration  in  these  appeals
which shall stand disposed of by this common order. But before we  formulate
the questions that fall for determination the factual matrix  in  which  the
same  arise  need  to  be  summarised  for  a  proper  appreciation  of  the
controversy.

3.    Respondent-V.K. Mahanudevan in Civil Appeal No.3468  of  2007  applied
to Tehsildar, Alathur in the State of Kerala for grant of a Scheduled  Caste
Certificate on the basis that he  was  a  ‘Thandan’  which  was  a  notified
Scheduled  Caste.  
The  Tehsildar  held  an  enquiry  and  found  that  the
appellant did not belong to the Scheduled Caste community and  reported  the
matter to the Director, Scheduled Caste Development Department, who in  turn
forwarded the case to Director, Kerala Institute for Research, Training  and
Development Studies of Scheduled Castes  and  Scheduled  Tribes,  (‘KIRTADS’
for short) for investigation and report.

4.    Aggrieved by the denial of the certificate the respondent  filed  O.P.
No.9216 of 1986 before the High Court of Kerala which  was  disposed  of  by
the High Court in terms of its  order  dated  25th  February,  1987  with  a
direction to the Tehsildar concerned to issue a caste certificate in  favour
of the said respondent. A certificate was accordingly issued in his  favour.
It is common ground that  the  respondent  was  appointed  as  an  Assistant
Executive Engineer under a special recruitment scheme for SC/ST  candidates.


5.     Long  after  the  certificate  had  been  issued  in  favour  of  the
respondent and his appointment as an Assistant  Executive  Engineer  in  the
State service, a Full Bench of the  Kerala  High  Court  in  Kerala  Pattika
Jathi Samrekshana Samithy v. State AIR 1995 Ker 337 observed  that  a  large
number of applications for change of caste name from Thiyya’  to  ‘Thandan’
had been received pursuant to The  Scheduled  Castes  and  Scheduled  Tribes
Order (Amendment) Act, 1976 and ordered that all such certificates  as  were
corrected on the basis of such applications after 27th July, 1977  ought  to
be scrutinized by a Scrutiny Committee. The High Court observed:

           “...The filing of a large number of applications for  correction
           of the name of caste from Ezhava/Thiyya to Thandan alleging  one
           and the same  reason  immediately  after  inclusion  of  Thandan
           community as Scheduled Caste in the 1976 order can  prima  facie
           be considered only as a concerted attempt on the part of Section
           of  Ezhavas/Thiyyas  to  take  advantage  of  the  benefits   of
           Scheduled Castes as alleged in  the  counter  affidavit  of  the
           first respondent and asserted by the petitioner.  It  cannot  be
           easily believed that if a person was really  a  Thandan  and  as
           such a Scheduled Caste, his  caste  would  have  been  noted  as
           Ezhava or Thiyya in  the  school  records.  It  cannot  also  be
           believed easily that in large number  of  cases  for  no  reason
           whatsoever the same type of mistake was committed allowed to  be
           on record till Thandan community was included  in  the  list  of
           Scheduled Castes. As such taking a serious view  of  the  entire
           problem we would hold that in all cases where certificates  have
           been issued on and  after  27-7-1977  the  date  of  1976  order
           correcting the name of Caste from Ezhava/Thiyya to  Thandan  and
           other cases where certificates have  been  issued  changing  the
           Caste  into  a  Scheduled  Caste   or   Scheduled   Tribe   such
           certificates issued are liable to be  declared  as  of  doubtful
           validly, till they are scrutinised by the scrutiny Committee  to
           be constituted by the first respondent as per the directions  we
           propose to issue in that regard...”

                                            (emphasis supplied)

6.    Pursuant  to  the  above  directions  of  the  High  Court  the  caste
certificate issued in favour of the respondent  also  came  under  scrutiny.
In the course of scrutiny, it  was  found  that  the  reports  submitted  by
KIRTADS and relied upon by the High Court while  allowing  O.P.  No.9216  of
1986 was erroneous and that  the  respondent  actually  belonged  to  Ezhuva
community which fell under the OBC category.
Director, KIRTADS  accordingly
issued notice to the respondent to appear before him for a personal  hearing
in support of the claim that he was a Thandan and hence a  Scheduled  Caste.
Aggrieved by the said proceedings the respondent filed O.P. No.5834 of  1991
before the High Court of Kerala in which he challenged the proposed  enquiry
proceedings relating to his caste status primarily on the  ground  that  the
decision of this  Court  in  Palaghat  Jilla  Thandan  Samudhaya  Samrakshna
Samithi and Anr. v. State of Kerala and Anr.  (1994) 1 SCC 359  had  settled
the controversy relating to Ezhuva/Thiyya being a ‘Thandan’ in the  district
of Palaghat. 
It was also contended that the respondent’s own  case  that  he
was a Thandan Scheduled Caste had been settled by the High  Court  in  terms
of the order passed by the  High  Court  in  O.P.  No.9216  of  1986.  These
contentions found favour with the High Court who  allowed  O.P.  No.5834  of
1991 filed by the respondent by its order  dated  15th  December,  1998  and
quashed the ongoing enquiry proceedings.

7.    Aggrieved by the order passed by the High Court the  State  of  Kerala
filed Writ Appeal No.1300 of 1999 which was allowed by a Division  Bench  of
the High Court by its judgment and order dated 14th June, 1999 and  directed
a fresh enquiry into the caste status of the respondent by KIRTADS.   Review
Petition No.236 of 1999 filed against the said order by the  respondent  was
dismissed by the Division Bench by its order  dated  29th  July,  1999.  The
Division Bench, however, specifically reserved liberty  for  the  respondent
to bring the judgments pronounced in O.P. No.9216 of  1986  and  O.P.No.5470
of 1988 to the notice of the Director, KIRTADS and declined to  express  any
opinion of its own as to the effect of the said judgments. This  is  evident
from the following passage from the order passed by the High Court:

           “At the time of argument our attention  was  drawn  to  Ext.  P7
           judgment dated 25.2.87 in O.P. 9216/86 and also the judgment  of
           a Division of this Court in O.P.  5470/88  for  the  proposition
           that  this  Court  has  already  accepted  the  status  of   the
           petitioner in the above two  cases.   We  are  not  inclined  to
           express any opinion on the two judgment referred to  above.   It
           is for the review petitioner to place the  above  two  judgments
           and  other  materials,  if  any  before  the  Director  for  his
           consideration and report.  The Director of Kirtads  is  directed
           to send his report to the State government within  three  months
           from the date of  receipt  of  copy  of  the  judgment  and  the
           Government may consider the entire matter  on  merits  and  pass
           appropriate orders accordingly, Review petition is  disposed  of
           as above.”




8.    A fresh enquiry accordingly  commenced  in  which  Vigilance  Officer, KIRTADS, reported that the genealogical and documentary  evidence  available
on record proved beyond doubt that the respondent and all  his  consanguinal and affinal relatives belonged to the ‘Ezhuva’ and not ‘Thandan’  community.
 The Scrutiny Committee acting upon the  said  report  issued  a  show-cause
notice to the respondent to show cause as to why the certificate  issued  in his favour should not be cancelled.

9.    Aggrieved by the notice  issued  to  him  the  respondent  once  again
approached the High Court in O.P. No.2912 of 2000 which was disposed  of  by
the High Court by its order dated 4th July, 2001 with a direction  that  the
KIRTADS report shall be placed before the State Government  for  appropriate
orders.
The State Government accordingly considered the  matter  and  passed
an order dated 18th January, 2003 by which it concurred with the report  and
the view taken by KIRTADS and declared as follow:

           “(i) It is  declared  that  Shri.  V.K.  Mahanudevan,  S/o  Shri
           Kunjukuttan, Kunnissery  House,  Kottaparambil,  Vadakkancherry,
           Alathur, Palakkad District  who  is  now  working  as  Executive
           Engineer,  Minor  Irrigation  Division,  Irrigation  Department,
           Palakkad does not belong to Thandan Community which  is  a  Sch.
           Caste, but belongs to Ezhava Community included in the  list  of
           Other Backward Classes (OBC).

           (ii) None of the members of his family shall be eligible for any
           of the benefits exclusively intended for  members  of  the  Sch.
           Castes. If any of  the  members  of  the  family  of  Shri  V.K.
           Mahanudevan have availed  of  any  of  the  benefits  meant  for
           members of the Sch. Castes, all such benefits availed  of  shall
           be recovered.

           (iii) If the caste entry in respect of the members of the family
           of Shri V.K. Mahanudevan as recorded in their  academic  records
           is Thandan (SC), it shall be corrected as Ezhava.

           (iv) Sch. Caste Certificates shall not be issued to any  of  the
           members of the family of Shri V.K.  Mahanudevan  hereafter.  All
           the Sch. Caste Certificates secured by Shri V.K. Mahanudevan and
           his family members will stand cancelled.

           (v) On completion of the actions as per this order the  services
           of Shri V.K. Mahanudevan, Executive Engineer,  Minor  Irrigation
           Division  in  the  Irrigation  Department  shall  be  terminated
           forthwith  and  a  member  of  Sch.  Caste  community  shall  be
           appointed against the post in which Shri  V.K.  Mahanudevan  was
           appointed in the Irrigation Department if his appointment was on
           consideration as member of Sch. Caste.”



10.   Aggrieved by the order passed by the Government,  the  respondent  and
his brother who is respondent in Civil Appeal  No.3470  of  2007  challenged
the order passed by the Government before the High Court in O.P. No.5596  of
2003 and Writ Petition (C) No.20434 of 2004 respectively which were  allowed
by a Single Judge of the High  Court  in  terms  of  its  order  dated  11th
November, 2005, primarily on the ground that the issue of caste  certificate
to the respondent had already been concluded by the  judgment  of  the  High
Court dated 25th February, 1987 in O.P. No.9216 of 1986 and  that  the  said
question could not be re-opened so long as the said  judgment  of  the  High
Court was effective.

11.   The State of Kerala then preferred Writ Appeal No.134  of  2006  which
was dismissed by a Division Bench of the High Court in terms  of  its  order
dated 25th January, 2006 concurring with the view taken by the Single  Judge
that the issue regarding the caste status of the respondent stood  concluded
by a judicial order passed inter parties and could not,  therefore,  be  re-
opened. Writ Appeal No.410 of 2006 filed by the  aggrieved  members  of  the
Irrigation Department and Writ Appeal No.193 of 2006 filed by the  State  in
relation to respondent were dismissed by the  Division  Bench  on  the  same
terms by order dated 28th and  27th  January,  2006  respectively.  So  also
Review Petition No.263 of 2006 filed by the State against the  order  passed
by the Division Bench was dismissed with the observation that  the  judgment
in O.P. No.9216 of 1986 had effectively settled the question  regarding  the
caste status of the respondent. Civil Appeals No.3469 and 3470 of 2007  have
been filed by the State against the said judgment of the  High  Court  while
Civil Appeal  No.3468  of  2007  has  been  filed  by  the  members  of  the
Irrigation Department of the Government of  Kerala.   Civil  Appeal  arising
out of Petition for special leave to appeal (Civil)  No.24775  of  2013  has
been filed by State against the Order dated 5th September, 2012.

12.   Two distinct questions fall for determination in  these  appeals.  The
first is
whether the appellants could have  re-opened  for  examination  the
caste status of the respondent-V.K. Mahanudevan no matter  judgment  of  the
High Court in O.P No.9216 of  1986  had  declared  him  to  be  a  ‘Thandan’
belonging to a Scheduled Caste community.  
The  High  Court  has  as  seen
above taken the view that its judgment and  Order  in  O.P.No.9216  of  1986
effectively settled the question regarding the caste  status  of  respondent
which could not be reopened as the  said  judgment  had  attained  finality.
The second and the only other question that would  arise  for  determination
is
whether the respondent-V.K.  Mahanudevan  can  claim  protection  against
ouster from service and, if so, what is the effect  of  the  change  in  law
relevant to the caste status of the respondent. 
We propose to deal with  the
two questions ad seriatim.

13.   In O.P No. 9216 of 1986, the respondent (writ petitioners in  OP)  had
claimed to be a Thandan by Caste, hence, a Schedule Caste in  terms  of  the
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.  In  the
SLCC book the respondent was described as a “Thandan Hindu” but  falling  in
the OBC category. He applied for correction of the  SLCC  book  by  deleting
his description as an OBC and for treating him as a member of the  Scheduled
Caste.  Since the correction did not come about quickly,  he  moved  to  the
High Court for a direction  against  the  respondents  to  treat  him  as  a
Scheduled Caste and to make appropriate  entries  in  the  relevant  record.
Kerala  Public  Service  Commission,  Director,   Harijan   Welfare   Board,
Trivandrum were among others arrayed as respondents to  the  writ  petition.
When the matter appeared before  a  Single  Bench  of  the  High  Court  for
hearing, it was  reported  that  Director,  Kerala  Institute  for  Research
Training and Development Studies of Scheduled Castes and  Scheduled  Tribes,
Kozhikode (KIRTADS) had conducted an anthropological study  and  recorded  a
finding that the respondent–writ petitioner before the High  Court  belonged
to Thandan Community and that he was entitled to be treated as  a  Scheduled
Caste.
Government advocate representing  the  respondents  appears  to  have
submitted before the Court that the findings recorded  by  the  KIRTADS  had
been communicated to the Director of Harijan Welfare,  Trivandrum–respondent
no.3 in the writ petition and accepted by him. It was on  these  submissions
made before the High Court that the Single Bench of the  High  Court  passed
an Order dated 25th February, 1987, the operative portion  whereof  read  as
under :-

           “I record the submission of the Government Pleader that the  3rd
           respondent has accepted the findings of the 4th respondent  that
           the petitioner is a Thandan and hence entitled to  the  benefits
           as a scheduled caste.  The 6th  respondent  may  implement  this
           finding and issue certificate to the petition in the  prescribed
           form certifying that the petitioner is a Thandan,  a  member  of
           the scheduled caste.  This shall be done within a period of  ten
           days from today.  Based thereon the  5th  respondent  will  also
           make  the  necessary  changes  in  the  S.S.L.C.  book  of   the
           petitioner treating him as a  scheduled  caste  and  not  as  an
           D.B.C. This also will be done by the  5th  respondent  within  a
           period of one month from today.”



14.   A caste certificate was in the above circumstances  issued  in  favour
of the respondent pursuant to the order  passed  by  the  High  Court  which
order has attained finality for the  same  has  not  been  challenged  leave
alone modified or set aside in any proceedings till date.  The  question  in
the above context is whether a fresh enquiry into the Caste  Status  of  the
respondent could be instituted by  the  Government.  The  enquiry,  as  seen
earlier, was initiated in the light of the certain observations made by  the
full bench of the Kerala High Court  in  Kerala  Pattika  Jathi  Samrekshana
Samithy v. State  AIR 1995 Ker 337 whereby the High  Court  had  entertained
suspicion about the validity of certificates that were corrected after  27th
July, 1997. That pronouncement came nearly eight years after the High  Court
had disposed of O.P. No.9216 of 1986 and a resultant certificate  issued  in
favour of the respondent.  It was in the above backdrop  rightly  argued  by
Mr. Giri appearing for the respondent that the judgement  and  order  passed
by the High Court in O.P No.9216 of 1986 having attained finality  no  fresh
or further enquiry into the question settled  thereby  could  be  initiated,
the observations of the full  bench  of  the  High  Court  to  the  contrary
notwithstanding.  The judgement of the High Court in  Pattika  Jathi’s  case
(supra), it is  obvious,  from  a   reading  thereof,  does  not  deal  with
situations  where  the  issue  regarding  grant  of  validity  of  a   caste
certificate secured earlier than the said  judgment  had  been  the  subject
matter of judicial proceedings and effectively and finally resolved  in  the
same.  That apart, the respondent was not a party to the proceedings  before
the full bench nor was the certificate issued in his favour under  challenge
in those proceedings.  The full bench did  not  even  incidentally  have  to
examine the validity of the certificate issued  to  the  respondent  or  the
correctness of the order passed by the High Court pursuant to which  it  was
issued.  Such being the position the direction issued by the full  bench  of
the High Court could not possibly have the effect of  setting  at  naught  a
judgment delivered inter-parties which had attained  finality  and  remained
binding on all concerned.

15.   It is trite that law favours finality to  binding  judicial  decisions
pronounced by Courts that are competent to deal  with  the  subject  matter.
Public interest is against individuals being vexed twice over with the  same
kind of litigation.  The binding character of judgments  pronounced  by  the
Courts of competent jurisdiction has always been  treated  as  an  essential
part of the rule of law which is the basis of the administration of  justice
in this country. We may gainfully refer  to  the  decision  of  Constitution
Bench of this Court
  in the Daryao v. State of U.P.  AIR 1961 SC  1457  where
the Court succinctly summed up the law in the following words:

           “It is in the interest of the public at large  that  a  finality
           should attach to the binding decisions pronounced by  Courts  of
           competent jurisdiction, and it is also in  the  public  interest
           that individuals should not be vexed twice over  with  the  same
           kind of litigation.(***)  The  binding  character  of  judgments
           pronounced by courts of  competent  jurisdiction  is  itself  an
           essential part of the rule of law, and the rule of law obviously
           is the basis of the  administration  of  justice  on  which  the
           Constitution lays so much emphasis.”




16.   That even erroneous decisions can  operate  as  res-judicata  is  also
fairly well settled by a long line of decisions rendered by this  Court.  In
Mohanlal Goenka v. Benoy Kishna  Mukherjee   AIR  1953  SC  65,  this  Court
observed:

           “There is ample authority  for  the  proposition  that  even  an
           erroneous decision  on  a  question  of  law  operates  as  ‘res
           judicata’  between  the  parties  to  it.  The  correctness   or
           otherwise of  a  judicial  decision  has  no  bearing  upon  the
           question whether or not it operates as ‘res judicata’.”




17.   Similarly in State of West Bengal v. Hemant Kumar  Bhattacharjee   AIR
1966 SC 1061, this Court reiterated the above principles  in  the  following
words :

           “A wrong decision by a court  having  jurisdiction  is  as  much
           binding between the parties as a right one and may be superseded
           only by appeals to higher  tribunals  or  other  procedure  like
           review which the law provides.”




18.   The recent decision of this Court in
 Kalinga  Mining  Corporation  v. Union of India (2013) 5 SCC 252
is  a  timely  reminder  of  the  very  same
principle. The following passage in this regard is apposite:

           “In our opinion, if the parties are allowed to reagitate  issues
           which have been decided by a court of competent jurisdiction  on
           a subsequent change in  the  law  then  all  earlier  litigation
           relevant thereto would always remain in a state of flux. In such
           circumstances, every  time  either  a  statute  or  a  provision
           thereof is declared ultra vires, it would  have  the  result  of
           reopening of the decided matters within the period of limitation
           following the date of such decision.”




19.   In Mathura Prasad v. Dossibai (1970) 1 SCC 613, 
this Court  held  that
for the application of the rule of res-judicata, the Court is not  concerned
with the correctness or otherwise of the earlier judgement.  The  matter  in
issue if one purely  of  fact  decided  in  the  earlier  proceedings  by  a
competent Court must in any subsequent litigation between the  same  parties
be recorded as finally decided and cannot be re-opened. That  is  true  even
in regard to mixed questions of law  and  fact  determined  in  the  earlier
proceeding between the same parties which cannot be revised or  reopened  in
a subsequent proceeding between the same parties.  Having said that we  must
add that the only exception to the doctrine of res-judicata is “fraud”  that
vitiates the decision and renders it a nullity. This Court has in more  than
one decision held that fraud  renders  any  judgment,  decree  or  orders  a
nullity and non-est  in  the  eyes  of  law.
 In  A.V.  Papayya  Sastry  v.
Government of A.P., (2007) 4 SCC 221, fraud was defined  by  this  Court  in
the following words:

           “Fraud may be defined as an act of deliberate deception with the
           design of securing some unfair or undeserved benefit  by  taking
           undue advantage of another. In fraud one gains at the  loss  and
           cost of another. Even most solemn proceedings stand vitiated  if
           they  are  actuated  by  fraud.  Fraud  is  thus  an   extrinsic
           collateral act which vitiates all judicial acts, whether in  rem
           or in personam. The principle of “finality of litigation” cannot
           be stretched to the extent  of  an  absurdity  that  it  can  be
           utilised as an engine of oppression by dishonest and  fraudulent
           litigants.”




20.   To the same effect is the decision in Raju Ramsingh Vasave  v.  Mahesh
Deorao Bhivapurkar and Ors., (2008) 9 SCC 54, where this Court held:

           “If a fraud  has  been  committed  on  the  court,  no  benefits
           therefrom can be claimed on the basis of thereof or otherwise.”




21.   In the case at hand we see no element of fraud in the Order passed  by
the High Court in O.P.No.9216 of 1986.  The  order  it  is  evident  from  a
plain reading of the same relies more upon the submissions  made  before  it
by  the  Government  Counsel  than  those  urged  on  behalf  of  the  writ-
petitioners (respondents herein). That there was an enquiry by KIRTADS  into
the caste status of the writ petitioners (respondents  herein)  which  found
his claim of being a Thandan justified hence  entitled to a scheduled  caste
certificate has not been disputed.  That the report of KIRTADS was  accepted
by the Director of Harijan Welfare, Trivandrum is  also  not  denied.   That
apart, the State Government at no stage either before  or  after  the  Order
passed by the Single Judge of the  High  Court  questioned  the  conclusions
recorded therein till  the  full  bench  in  Pattika  Jathi’s  case  (supra)
expressed doubts about  the  corrections  being  made  in  the  records  and
certificates for the grant of scheduled caste status.  That being the  case,
the High Court could not  be  said  to  have  been  misled  or  fraudulently
misguided  into  passing  an  order,  leave  alone,  misled  by  the   writ-
petitioners (respondent herein). It is only because the full  bench  of  the
Kerala High Court held that anthropological study conducted by  KIRTADS  may
not provide a sound basis for  holding  Thandan’s  like  the  respondent  as
those belonging to the scheduled caste category  that  the  issue  regarding
the correctness of the  certificate  and  a  fresh  investigation  into  the
matter surfaced for consideration.  Even if one  were  to  assume  that  the
conclusion drawn by KIRTADS was not for any reason completely  accurate  and
reliable, the same would not have in the absence of any  other  material  to
show that such conclusion and enquiry was a complete farce based  on  wholly
irrelevant  or   inadmissible   material   and   motivated   by   extraneous
considerations by itself provided a basis for unsettling what stood  settled
by the order  passed  by  the  High  Court.  Suffice  it  to  say  that  the
contention urged on behalf of the appellants that the order  passed  by  the
High Court in O.P. No. 9216 of 1986 was a nullity on  the  ground  of  fraud
has not impressed us in the facts and circumstances of the case. The  upshot
of the above discussion, therefore, is that the order  passed  by  the  High
Court in O.P.No.9216 of 1986 which had attained finality did  not  permit  a
fresh enquiry into the caste status of  writ-petitioner.   Inasmuch  as  the
High Court quashed the said proceedings and the order passed  by  the  State
Government pursuant thereto, it committed no error to warrant  interference.


22.   That brings us to the second question which can be  answered  only  in
the  perspective  in  which  the  same   arises   for   consideration.   The
Constitution  (Scheduled  Castes)  Order,  1950  specified    the     castes
that are  recognised  as  Scheduled  Castes  for  different  states  in  the
Country.  Part XVI related to the  then  State  of  Travancore  and  Cochin.
Item 22 of that part specified the “Thandan” as a scheduled  caste  for  the
purposes of the entire State.  The Presidential Order was  modified  by  The
Scheduled Castes & Scheduled Tribes Lists  (Modification)  Order  1956.   In
the list comprising Part V applicable to the State of Kerala (the  successor
to the State of Trivandrum, Kochi), ‘Thandan’ as a caste  appeared  at  Item
14 for the purposes of the entire State except Malabar District.  Then  came
the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976  with
effect from  27th  July,  1997.   In  the  first  Schedule  under  part  VII
applicable to the State of Kerala ‘Thandan’ as a caste  was  shown  at  Item
61. Unlike two other castes shown in the said part namely Boyan and  Malayan
which were shown as scheduled caste for  specific  areas  of  the  State  of
Kerala, Thandan had no  such  geographical  or  regional  limitation.   This
implied that ‘Thandan’ was included as a  Scheduled  Caste  for  the  entire
State of Kerala.

23.    Consequent  upon  the  promulgation  of  the  Scheduled  Castes   and
Scheduled Tribes Orders (Amendment) Act, 1976, the Kerala  State  Government
started receiving  complaints  alleging  that  a  section  of  Ezhuva/Thiyya
community of Malabar areas and certain taluk of Malabar districts  who  were
also called ‘Thandan’ were taking  undeserved  advantage  of  the  Scheduled
Caste reservations. The complaints suggested that these  two  categories  of
Thandan were quite different and distinct  from  each  other  and  that  the
benefit admissible to Thandans generally belonging to  the  Scheduled  Caste
community should not be allowed to  be  taken  by  those  belonging  to  the
Ezhuva/Thiyya community as they  are  not  scheduled  castes.   Acting  upon
these reports and complaints, the State Government appears  to  have  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 Thalapilly,  Vadakkancherry  and  Chavakka  in  Trichur  District,
should be scrutinised to ascertain whether  the  applicant  belongs  to  the
Thandan  community  of  the  scheduled  caste  or  the  Thandan  section  of
Ezhuva/Thiyya community and 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  Ezhuva/Thiyya”.
These instructions were 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 Ezhuva/Thiyya.  The matter eventually  reached  this  Court
in Palghat Jilla Thandan Samudhaya Samrakshna Samithi and Anr. v.  State  of
Kerala and Anr. (1994)  1  SCC  359  
in  which  this  Court  formulated  the
principal question that fell for consideration in the following words:

           “The principal question that arises in these writ petitions  and
           appeals is in regard to the validity  of  the  decision  of  the
           State of Kerala not to treat members of  the  Thandan  community
           belonging to  the  erstwhile  Malabar  District,  including  the
           present Palghat District, of the State of Kerala as  members  of
           the Scheduled Castes.”




24.   This Court reviewed the  legal  position  and  declared  that  Thandan
community having been listed in the Scheduled Caste order as it then  stood,
it was not open to the State Government or even  to  this  court  to  embark
upon an enquiry to determine whether a section of  Ezhuva/Thiyya  which  was
called Thandan in the Malabar area  of  the  State  was  excluded  from  the
benefits of the Scheduled Caste order.  This Court observed:

           “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  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 otherwise, as it has purported to do  in
           the 1987 order.”


                                                         (emphasis supplied)





25.   What followed from the above is that Thandans regardless whether  they
were Ezhuvas/Thiyyas known as Thandans belonging to the Malabar  area,  were
by reason of the above pronouncement of this  Court  held  entitled  to  the
benefit of being treated as scheduled caste by the Presidential  Order,  any
enquiry into their being Thandans  who  were  scheduled  caste  having  been
forbidden by this Court as legally impermissible.
The distinction which  the
State Government sought to make between  Ezhuva/Thiyyas  known  as  Thandans
like the respondent on one hand and  Thandans  who  fell  in  the  scheduled
caste category, on the other, thus stood abolished by reason  of  the  above
pronouncement.  No  such  argument  could  be   countenanced   against   the
respondent especially when it is not the case of  the  appellants  that  the
respondent is not an Ezhuva from Malabar area of the State of Kerala.

26.   The legal position has  since  the  pronouncement  of  this  Court  in
Pattika Jathi’s case (supra) undergone a change on account of the  amendment
of the Presidential Order in terms of The  Constitution  (Scheduled  Castes)
Order Amendment Act, 2007 which received the  assent  of  the  President  on
29th August, 2007 and was published in the official gazette on 30th  August,
2007. The Act, inter alia, made the following change in 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)”.




27.   There is in the light of the above no manner  of  doubt  that  Ezhuvas and Thiyyas who are also known as  Thandan,  in  the  erstwhile  Cochin  and Malabar areas  are no longer scheduled caste for the said State w.e.f.  30th August, 2007 the date when the amendment was notified. 
The  Parliament  has,
it is evident,  removed  the  prevailing  confusion  regarding  Ezhuvas  and
Thiyyas known as Thandan, in the erstwhile Cochin and  Malabar  areas  being
treated as scheduled caste. Ezhuvas and Thiyyas even if called Thandans  and
belonging to the above area will no longer be  entitled  to  be  treated  as
scheduled caste nor will the benefits of reservation be admissible to  them.


28.   Taking note of the amending legislation, Government of Kerala  has  by
Order No.93/2010/SC/ST dated 30th August, 2010  directed  that  Ezhuvas  and
Thiyyas who are known as Thandan, in the erstwhile Cochin and Malabar  shall
be treated as OBCs in List III. This part  was  not  disputed  even  by  Mr.
Giri,  counsel  appearing  for  the  respondent  who  fairly  conceded  that
consequent upon the Amendment Act of 2007 (supra) Ezhuvas and Thiyyas  known
as Thandan, in the erstwhile Cochin and Malabar  areas  stand  deleted  from
the Scheduled Castes  List  and  are  now  treated  as  OBCs  by  the  State
Government.   What  is  significant  is  that  the   deletion   is   clearly
prospective in nature for Ezhuvas and Thiyyas known as Thandan in the  above
region were in the light of the decision of this Court  in  Pattika  Jathi’s
case (supra) entitled to be treated as scheduled caste and  the  distinction
sought to be made between ‘Thandans’ who were Ezhuvas and Thiyyas and  those
who were scheduled caste was held to be impermissible and  non  est  in  the
eye of law. The law declared by this Court in Pattika Jathi’s  case  (supra)
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 Ezhuvas 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.

29.   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  Pattika  Jathi’s  case
(supra) would be unjustified both in law and on  the  principles  of  equity
and good conscience.  In State of Maharashtra v.  Milind  (2001)  1  SCC  4,
this Court was dealing with a somewhat similar situation. That  was  a  case
where a student had secured admission to the MBBS degree course by  claiming
himself to be a Scheduled Tribe candidate. The student claimed  that  Halba-
Koshti were the same as Halba,  mentioned  in  the  Constitution  (Scheduled
Tribes) Order. This Court held that neither the  Government  nor  the  Court
could add to the List of castes mentioned  in  the  Order  and  that  Halba-
Koshtis could not by any process of reasoning or interpretation  treated  to
be Halbas. Having said that, the question that fell  for  consideration  was
whether the benefit of the reservation could be withdrawn and the  candidate
deprived of the labour that he had put in obtaining a medical  degree.  This
Court while protecting any  such  loss  of  qualification  acquired  by  him
observed:

           “In these circumstances, this  judgment  shall  not  affect  the
           degree obtained by him and his practising as a  doctor.  But  we
           make it clear that he cannot claim to belong  to  the  Scheduled
           Tribe covered by the Scheduled Tribes Order. In other words,  he
           cannot take advantage of the Scheduled Tribes Order any  further
           or for any other constitutional purpose. (***) we make it  clear
           that the admissions and appointments  that  have  become  final,
           shall remain unaffected by this judgment”.




30.   Kavita Solunke v. State of Maharashtra, (2012) 8 SCC 430, was  also  a
similar case where the question was whether the appellant who was a  ‘Halba-
Koshti’ could  be  treated  as  ‘Halba’  for  purposes  of  reservation  and
employment as a Scheduled Tribe candidate. This Court traced the history  of
the long drawn confusion whether a ‘Halba’ was the  same  as  ‘Halba-Koshti’
and concluded that while ‘Halba’ and ‘Halba-Koshti’ could not be treated  to
be one and the same, the principle  stated  in  Milind’s  case  (supra)  was
attracted to protect even appointments that were granted by treating ‘Halba-
Koshti’ as Halba Scheduled Tribe although such extension of  the  expression
‘Halba’ appearing in the Presidential Constitution (Scheduled Castes)  Order
1950 was not permissible. This Court observed:

            “If “Halba-Koshti” has been treated as “Halba” even before  the
           appellant joined service as a teacher and if the only reason for
           her ouster is the law declared by this  Court  in  Milind  case,
           there is no reason why the protection against the  ouster  given
           by this Court to appointees whose applications had become  final
           should not be extended to the appellant also.  The  Constitution
           Bench had in Milind case noticed the  background  in  which  the
           confusion had  prevailed  for  many  years  and  the  fact  that
           appointments and admissions were made for a long  time  treating
           “Koshti” as a Scheduled Tribe and directed that such  admissions
           and appointments wherever the same had  attained  finality  will
           not be affected by the decision taken by this Court”.




31.   In Sandeep Subhash Parate v. State of Maharashtra and  Others,  (2006)
7 SCC 501, also dealing with a similar confusion between ‘Halba’ and ‘Halba-
Koshti’ and applying the principle underlying in Milind’s case (supra)  this
Court held that ouster of candidates who have  obtained  undeserved  benefit
will be justified only where the Court finds the claim to be bona fide.   In
State of Maharashtra v. Sanjay K. Nimje, (2007) 14 SCC 481 this  Court  held
that the grant of relief would depend upon the bona fides of the person  who
has obtained the appointment and upon the facts and  circumstances  of  each
case.

32.   In the instant case there is no evidence of lack of bona fide  by  the
respondent. The protection available under the  decision  of  Milind’s  case
(supra) 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 upto  the  date
of  the Amending Act came into force to continue in service.

33.   In Civil Appeal arising out of SLP (C) No.24775 of 2013 filed  against
an order dated 5th September, 2012 passed by the Division Bench of the  High
Court of Kerala, the High Court has found  the  cancellation  of  the  Caste
Certificate issued in favour of the respondent in that appeal to be  legally
bad inasmuch as the Scrutiny Committee had  not  applied  its  mind  to  the
material which was relied upon by the respondent in that case.   No  enquiry
into the validity of the certificate was found to have  been  conducted  nor
was the order passed by the Scrutiny Committee supported by  reasons.  There
is, in our opinion, no legal flaw in that reasoning muchless any  perversity
that may call for our interference.  The order  passed  by  the  High  Court
takes a fair view of the matter and does not suffer from any  illegality  or
irregularity of any kind.

34.   In the result these appeals  fail  and  are,  hereby,  dismissed.  We,
however, make it clear that while the  benefit  granted  to  the  respondent
V.K. Mahanudevan as a Scheduled  Caste  candidate  till  30th  August,  2007
shall remain undisturbed, 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 is  axiomatic  that  the
respondent-V.K. Mahanudevan 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. Parties are directed to bear their  own
costs.



                                                  ……………………………………….……….…..…J.
                                                               (T.S. THAKUR)







                                                 …………………………..…………………..…..…J.
New Delhi                                           (VIKRAMAJIT SEN)
January 10, 2014

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