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Thandan Community and were held entitled to be treated as Scheduled Caste= 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 Ezhuvas/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 Palaghat 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 Ezhuvas 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. 12. In the another appeal also, we find that appellant was treated as belonging to Thandan Community and given benefit much prior to 2007. 13. For the reasons stated above, these appeals succeed and are accordingly allowed. Since the appellants have been continued in service because of the interim order passed by this Court, they are treated as validly appointed giving them the benefit of members of Scheduled Caste category. The impugned judgment is accordingly set aside thereby allowing the writ petitions filed by the appellants and quashing the orders of respondent Nos. 2 and 3. The appellants shall also be entitled to the cost of these proceedings.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO. 6126-6127 OF 2013


|T. KOCHA                                   |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|STATE OF KERALA & ORS.                     |.....RESPONDENT(S)           |


                                   W I T H


                       CIVIL APPEAL NO. 11377 OF 2011


                               J U D G M E N T


A.K. SIKRI, J.

                  In  these   appeals,   the   legal   issue   which   needs
determination is identical.  The  background  facts  under  which  the  said
issue  arises  are  also  somewhat  similar.    Therefore,   without   being
repetitive, it would serve our purpose to take note of the  facts  appearing
in Civil Appeal Nos. 6126-6127 of 2013 in  order  to  spell  out  the  issue
involved and decision thereupon shall govern both the appeals.

2.    The appellant in Civil Appeal Nos. 6126-6127 of 2013 is T.  Kocha  who
claims to be the member of the  Thandan  Community,  which  is  a  Scheduled
Caste in the State of Kerala.  She applied  for  the  post  of  High  School
Assistant (Physical Science) in a Government School under reserved  category
claiming  herself  to  be  the  Scheduled  Caste  as  belonging  to  Thandan
Community.  She  was  given  appointment  to  the  said  post,  after  being
successful in the selection process, w.e.f. 03.02.1989.

3.    There was some dispute about Thandans  as  members  of  the  Scheduled
Caste which travelled up to this Court  and  was  decided  in  the  case  of
Palghat Jilla Thandan Samudhaya Samrakshna Samithi and another v.  State  of
Kerala and another[1].  We shall  be  referring  to  the  said  judgment  at
length and the decision taken therein  by  this  Court  at  the  appropriate
stage.  We may mention at  this  juncture  that  on  the  basis  of  another
judgment rendered by Full Bench of High Court of Kerala in O.P. No.  6758/87
(decided on 14.03.1995), the Vigilance Cell of  KIRTADS  (respondent  No.  3
herein) had examined the cases of those persons who had changed their  caste
name after the promulgation of the Scheduled  Castes  and  Scheduled  Tribes
Orders (Amendment) Act 1976.  In respect of the  appellant,  the  respondent
No. 3 came to the conclusion that she did not belong  to  Thandan  Community
but was a member of  Ezhava/Thiyya  Community  and,  therefore,  was  not  a
person belonging to Scheduled Caste Community.  Based on  that  report,  the
Scrutiny Committee, for verification of Community Certificates of  Scheduled
Castes  and  Scheduled  Tribes  Department  in  the  Government  of   Kerala
(respondent No. 2 herein), issued a show cause notice  dated  03.06.2003  to
the appellant as to why she should not be  treated  as  non-Scheduled  Caste
person.  The appellant submitted her written  explanation  dated  06.09.2003
along with as many as 46 documents in support of her plea that  she  was  of
Thandan Caste and,  therefore,  rightly  given  the  Government  appointment
under the quota meant for Scheduled Caste persons.  It was  followed  by  an
affidavit  dated  02.12.2003  of  the  appellant   wherein   she   requested
respondent No. 2 to furnish the name and addresses  of  those  persons  from
whom respondent No. 3 had allegedly collected evidence.  A request was  also
made to afford an  opportunity  to  cross  examine  those  witnesses.   This
request was not allowed.
4.    After considering the written explanation and the documents  submitted
by the appellant, respondent No. 2 concluded that  she  did  not  belong  to
Thandan Community and, therefore, was not a Scheduled Caste  person.   Order
dated 13.04.2004 was passed  to  this  effect  which  was  served  upon  the
appellant on 28.06.2004. The appellant challenged  the  aforesaid  order  of
the respondents by filing the writ petition in the  High  Court  of  Kerala.
The said writ petition was  admitted  and  interim  stay  vide  order  dated
13.04.2004 was granted in favour of the appellant.  However, when  the  said
writ petition was finally heard  in  the  year  2012,  vide  judgment  dated
05.09.2012, the High Court dismissed the same. The appellant  preferred  the
Review Petition No. 1224/2012 seeking review of the said judgment which  was
also dismissed on 07.02.2013.  Main judgment as well as the order passed  in
the review petition are  challenged  by  the  appellant  via  special  leave
petition in which leave was granted and that  is  how  the  instant  appeals
have come up for final hearing wherein issue regarding  the  status  of  the
appellant as to whether she belongs to Thandan Community or  not  falls  for
consideration.
5.    Before we discuss various documents filed by the appellant in  support
of her claim, it would  be  advisable  to  traverse  through  the  judgments
referred to above as well as some other  judgments  and  also  the  relevant
statutory  orders/enactments  in  this  behalf.   A  scanning  through   the
aforesaid material would clear much of the haze which  surrounds  the  issue
in question.  We would like to start our discussion  with  the  judgment  of
this Court in Palghat Jilla's case which traces out the  history  about  the
inclusion of Thandans as Scheduled Caste in the State of Kerala.  A  perusal
of the judgment reveals that Thandan Community in the  erstwhile  Travancore
and Cochin State alone was included in  the  Scheduled  Caste  list  by  the
Constitution (Scheduled Castes) Order 1950.  Scheduled Caste list of  Kerala
State was amended, as per  Scheduled  Castes  and  Scheduled  Tribes  Orders
(Amendment) Act 1976 (Act 108/76) by including  Thandans  throughout  Kerala
State  in  the  Scheduled  Caste  list.   After  inclusion  of  the  Thandan
Community throughout the State  in  the  Scheduled  Caste  list,  the  State
Government  issued  instructions    to   the   caste   certificate   issuing
authorities not to issue Scheduled Caste  certificates  to  the  members  of
Thandan Community stating that Thandan Community  of  Malabar  is  synonymed
Ezhava/Thiyya Community.  The purport of the  aforesaid  considerations  was
to clarify that Ezhava/Thiyya Community in  Malabar  was  not  the  same  as
Thandan Community and those belonging to Ezhava/Thiyya Community  could  not
claim the status of Scheduled Caste category by equating  themselves  to  be
the members of Thandan Community.   Certain  writ  petitions  were  directly
filed in the High Court questioning the  validity  of  the  aforesaid  order
dated 24.11.1987.  Some of the persons had filed the writ petitions  in  the
High Court of Kerala which were decided by the High Court  one  way  or  the
other and those decisions were  also  challenged  before  this  Court.   All
these writ petitions and appeals were decided together.

6.    The principal question in the said  writ  petitions  and  appeals  was
with regard to the validity of the decisions of the State of Kerala  not  to
treat members of  Thandan  Community  belonging  to  the  erstwhile  Malabar
District, including the present Palakkad District of the  State  of  Kerala,
as the members of the Scheduled Castes.  This Court noted that  Article  366
(24) of the Constitution of India defines the expression “Scheduled  Castes”
to mean “such castes, races or tribes or parts  of  or  groups  within  such
castes, races or tribes as are deemed under  Article  341  to  be  Scheduled
Castes  for  the  purposes  of  this  Constitution.”   Under  Article   341,
President is empowered to specify the castes, races or tribes  or  parts  of
or groups within castes, races or tribes which shall  for  the  purposes  of
this Constitution be deemed to be  Scheduled  Castes  in  relation  to  that
State  or  Union  Territory,  as  the  case  may  be.   Parliament  is  also
empowered, by the said Article, to make law to include in  or  exclude  from
the list of Scheduled Castes specified  in  a  notification  issued  by  the
President under the said provision.  The  President,  in  consultation  with
the  Governors  and  Rajpramukhs  of  the  various  States  had  issued  The
Constitution (Scheduled Castes) Order, 1950 specifying various castes to  be
Scheduled Castes in respect of different States.  Part XVI  thereof  related
to the then State  of  Travancore-Cochin.   At  item  22  of  Part  XVI  was
specified the caste Thandan for the  purposes  of  the  entire  State.   The
Constitution Scheduled  Castes  (Modification)  Order,  1956,  modified  the
Scheduled Castes Order.  In the list in Part V, applicable to the  State  of
Kerala (the successor to the State of Travancore-Cochin), at  item  14,  was
specified the caste Thandan for the purposes of the entirety  of  the  State
except  Malabar  District.   The  Scheduled  Castes  and  Scheduled   Tribes
(Amendment) Act, 1976 came into force on 27.07.1977.  In the First  Schedule
thereof, under Part VII  relative  to  the  State  of  Kerala,  Thandan  was
specified at item 61.  In Part VII only in respect of  two  castes,  namely,
Boyan and Malayan, were specific areas of the State  of  Kerala  designated.
In other words, all other castes listed in Part VII, including Thandan  were
Scheduled Castes for  the  purposes  of  the  entirety  of  the  State.   On
17.05.1979, the Government of Kerala issued an order which noted  that  upon
the coming into force on 27.07.1977, of the Scheduled Castes  and  Scheduled
Tribes (Amendment) Act, 1976, the Thandan community throughout the State  of
Kerala came to be included in the list  of  Scheduled  Castes.   As  certain
complaints  were  received  to  the  effect  that  there  was   section   of
Ezhavas/Thiyyas of Malabar area and of certain Taluks  of  Trichur  District
who were called Thandans but have  nothing  in  common  with  the  Scheduled
Caste Thandans.  After going through these  complaints,  the  Government  of
Kerala issued the Order dated 15.10.1984 stating that after  reconsideration
of the matter in all respects, the 1979 Order was  cancelled  and  “Thandans
throughout Kerala would be  treated  as  members  of  Scheduled  Castes  and
Scheduled Tribes Orders (Amendment)  Act,  1976  and  Community  Certificate
issued accordingly”.  This was modified by another  order  dated  24.11.1987
which further added that  while  issuing  caste  certificates,  the  Revenue
authorities  should  clarify  after  proper  verification  that  the  person
concerned belongs to Thandan caste and not Ezhava/Thiyya.   As  pointed  out
above, this order was under challenge before this Court.

7.    The Court proceeded on the basis that the State Government  was  right
in saying that there is  a  section  of  Ezhava/Thiyya  community  which  is
called Thandan in the Malabar District.   Notwithstanding  the  above,  this
Court ruled that so long as Thandan was mentioned as Scheduled Caste in  the
notification, Ezhava/Thiyya community which is also called  Thandan  in  the
Malabar District would get the benefit  thereof  and  would  be  treated  as
Scheduled Caste persons.  The discussion in  this  behalf  is  contained  in
Paras 16, 17 and 18 of the judgment, which reads as under:
“16.  Article 341 empowers the President to specify not only  castes,  races
or tribes which shall be deemed to be Scheduled  Castes  in  relation  to  a
State but also “parts of or groups within castes,  races  or  tribes”  which
shall be deemed to be Scheduled Castes in relation to a State. By reason  of
Article 341 a part or group or section of a caste, race or tribe, which,  as
a whole, is not specified as a  Scheduled  Caste,  may  be  specified  as  a
Scheduled Caste. Assuming,  therefore,  that  there  is  a  section  of  the
Ezhavas/Thiyyas community (which is not  specified  as  a  Scheduled  Caste)
which is called Thandan in some parts of Malabar area, that section is  also
entitled to be treated as a Scheduled Caste,  for  Thandans  throughout  the
State are deemed to be a Scheduled Caste by reason of the provisions of  the
Scheduled Castes Order as it now stands. Once Thandans 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.

17.  We may usefully draw attention to the judgment  of  a  Bench  of  three
learned Judges of this Court in Srish Kumar Choudhury v.  State  of  Tripura
(1990 Supp. SCC  220).  This  judgment  considered  the  Constitution  Bench
judgments in B. Basavalingappa v. D. Munichinnappa ((1965) 1  SCR  316)  and
Bhaiyalal  v.  Harikishan  Singh  ((1965)  2  SCR  877)  and  certain  other
judgments. It held that the two Constitution Bench judgments indicated  that
any amendment to the Presidential Orders could only be by  legislation.  The
Court could not assume  jurisdiction  and  order  an  enquiry  to  determine
whether  the  terms  of  the  Presidential  Order  included   a   particular
community.  A  State  Government  was  entitled  to   initiate   appropriate
proposals  for  modification  in  cases  where   it   was   satisfied   that
modifications  were  necessary  and,  if  after  appropriate  enquiry,   the
authorities were satisfied that a modification was  required,  an  amendment
could be undertaken as provided by the Constitution.

18. These judgments leave no doubt that the Scheduled Castes  Order  has  to
be applied as it stands and no enquiry can be held or  evidence  let  in  to
determine whether or not  some  particular  community  falls  within  it  or
outside it. No action to modify the plain effect  of  the  Scheduled  Castes
Order, except as contemplated by Article 341, is valid.”

8.    The effect of  the  aforesaid  judgment,  or  the  ratio  thereof,  is
pointed out succinctly a recent judgment of this Court  in  R.  Unnikrishnan
and another v. V.K. Mahanudevan and others[2] in the following words:

“32.  What followed from the above is that Thandans, regardless  of  whether
they were Ezhuvas/Thiyyas known as Thandans belonging to the  Malabar  area,
were by reason of the above pronouncement of  this  Court  in  Palghat  case
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  the  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.”


9.    It so happened that after the judgment in Palghat Jilla's case,  there
was an amendment of the Presidential Order  in  terms  of  the  Constitution
(Scheduled Castes) Order (Amendment) Act, 2007 which received the assent  of
the President on 29.08.2007.  By this Act, following changes  were  made  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).”

10.         It, thus, becomes clear that after the  said  judgment,  Ezhuvas
and Thiyyas who are also known  as  Thandan  in  the  erstwhile  Cochin  and
Malabar are no longer Scheduled Castes in the  State  of  Kerala.   However,
this amendment is prospective and, therefore, the aforesaid change  position
become effective only from 30.08.2007,  the  date  when  the  amendment  was
notified.  In R. Unnikrishnan's judgment, this  Court  made  it  clear  that
having regard to the ratio of Palghat  Jilla's  case,  Ezhuvas  and  Thiyyas
known as Thandans were entitled to  be  treated  as  Scheduled  Castes  till
29.08.2007 and such an entitlement could not be taken away  retrospectively.
  The  Court  was,  thus,  categorical  in  holding  that  those  who   were
Ezhuvas/Thiyyas known as Thandans in Cochin  and  Malabar  region  and  were
given the benefit of Scheduled Caste status prior to  30.08.2007  could  not
be deprived of such benefit already bestowed on  them.   We  would  like  to
reproduce the following discussions from this judgment:


“36.  The law declared by this Court in  Palghat  Jilla  case  entitled  all
Thandans including those who  were  Ezhuvas  and  Thiyyas  from  Cochin  and
Malabar region to claim the Scheduled Caste status. That  entitlement  could
be taken away retrospectively only by specific provisions to that effect  or
by necessary intendment. We see no such specific provision or intendment  in
the amending legislation  to  hold  that  the  entitlement  was  taken  away
retrospectively so as to affect even those who had  already  benefited  from
the reservation for Scheduled Caste candidates. At any rate,  a  certificate
issued to an Ezhuva known as Thandan who was a native of Cochin and  Malabar
region of the State could not be withdrawn as  the  Constitution  (Scheduled
Castes) Order, 1950 did not make a distinction between  the  two  categories
of Thandans till the Amendment Act of 2007 for  the  first  time  introduced
such a difference.

37.  That apart, the question of ouster of  Ezhuvas  and  Thiyyas  known  as
Thandan on account of  the  confusion  that  prevailed  for  a  considerable
length of time till the decision of this Court in Palghat Jilla  case  would
be unjustified both in  law  and  on  the  principles  of  equity  and  good
conscience.

                         xxx         xxx        xxx

40.  In Sandeep Subhash Parate v. State of Maharashtra ((2006) 7  SCC  501),
also dealing with a similar confusion  between  “Halba”  and  “Halba-Koshti”
and applying the principle underlying in Milind case ((2001) 1 SCC 4),  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.


41.  In the instant case there is no evidence of lack of bona fides  by  the
respondent. The protection available  under  the  decision  of  Milind  case
could, therefore, be admissible even to  the  respondent.  It  follows  that
even if on a true and  correct  construction  of  the  expression  “Thandan”
appearing in  the  Constitution  (Scheduled  Castes)  Order,  2007  did  not
include “Ezhuvas” and “Thiyyas” known as “Thandan”  and  assuming  that  the
two were different at all  relevant  points  of  time,  the  fact  that  the
position was not  clear  till  the  Amendment  Act  of  2007  made  a  clear
distinction between the two, would entitle all those appointed to serve  the
State up to the date the amending  Act  came  into  force,  to  continue  in
service.”

11.   The cumulative reading of the aforesaid  two  judgments  viz.  in  the
case of Palaghat 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 Ezhuvas/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   Palaghat   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 Ezhuvas  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.
12.  In the another appeal also, we  find  that  appellant  was  treated  as
belonging to Thandan Community and given benefit much prior to 2007.
13.   For  the  reasons  stated  above,  these  appeals  succeed   and   are
accordingly allowed.  Since the appellants have been  continued  in  service
because of the interim order passed by  this  Court,  they  are  treated  as
validly appointed giving them the benefit  of  members  of  Scheduled  Caste
category.  The impugned judgment is accordingly set aside  thereby  allowing
the writ petitions filed by  the  appellants  and  quashing  the  orders  of
respondent Nos. 2 and 3.  The appellants shall also be entitled to the  cost
of these proceedings.

                             .............................................J.
                                                                (A.K. SIKRI)


                             .............................................J.
                                                             (R. K. AGRAWAL)

NEW DELHI;
APRIL 13, 2016.

-----------------------
[1]   (1994) 1 SCC 359
[2]   (2014) 4 SCC 434

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