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.”
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
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’.”
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.”
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.”
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.”
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
