REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6126-6127 OF 2013
|T. KOCHA |.....APPELLANT(S) |
|VERSUS | |
|STATE OF KERALA & ORS. |.....RESPONDENT(S) |
W I T H
CIVIL APPEAL NO. 11377 OF 2011
J U D G M E N T
A.K. SIKRI, J.
In these appeals, the legal issue which needs
determination is identical. The background facts under which the said
issue arises are also somewhat similar. Therefore, without being
repetitive, it would serve our purpose to take note of the facts appearing
in Civil Appeal Nos. 6126-6127 of 2013 in order to spell out the issue
involved and decision thereupon shall govern both the appeals.
2. The appellant in Civil Appeal Nos. 6126-6127 of 2013 is T. Kocha who
claims to be the member of the Thandan Community, which is a Scheduled
Caste in the State of Kerala. She applied for the post of High School
Assistant (Physical Science) in a Government School under reserved category
claiming herself to be the Scheduled Caste as belonging to Thandan
Community. She was given appointment to the said post, after being
successful in the selection process, w.e.f. 03.02.1989.
3. There was some dispute about Thandans as members of the Scheduled
Caste which travelled up to this Court and was decided in the case of
Palghat Jilla Thandan Samudhaya Samrakshna Samithi and another v. State of
Kerala and another[1]. We shall be referring to the said judgment at
length and the decision taken therein by this Court at the appropriate
stage. We may mention at this juncture that on the basis of another
judgment rendered by Full Bench of High Court of Kerala in O.P. No. 6758/87
(decided on 14.03.1995), the Vigilance Cell of KIRTADS (respondent No. 3
herein) had examined the cases of those persons who had changed their caste
name after the promulgation of the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act 1976. In respect of the appellant, the respondent
No. 3 came to the conclusion that she did not belong to Thandan Community
but was a member of Ezhava/Thiyya Community and, therefore, was not a
person belonging to Scheduled Caste Community. Based on that report, the
Scrutiny Committee, for verification of Community Certificates of Scheduled
Castes and Scheduled Tribes Department in the Government of Kerala
(respondent No. 2 herein), issued a show cause notice dated 03.06.2003 to
the appellant as to why she should not be treated as non-Scheduled Caste
person. The appellant submitted her written explanation dated 06.09.2003
along with as many as 46 documents in support of her plea that she was of
Thandan Caste and, therefore, rightly given the Government appointment
under the quota meant for Scheduled Caste persons. It was followed by an
affidavit dated 02.12.2003 of the appellant wherein she requested
respondent No. 2 to furnish the name and addresses of those persons from
whom respondent No. 3 had allegedly collected evidence. A request was also
made to afford an opportunity to cross examine those witnesses. This
request was not allowed.
4. After considering the written explanation and the documents submitted
by the appellant, respondent No. 2 concluded that she did not belong to
Thandan Community and, therefore, was not a Scheduled Caste person. Order
dated 13.04.2004 was passed to this effect which was served upon the
appellant on 28.06.2004. The appellant challenged the aforesaid order of
the respondents by filing the writ petition in the High Court of Kerala.
The said writ petition was admitted and interim stay vide order dated
13.04.2004 was granted in favour of the appellant. However, when the said
writ petition was finally heard in the year 2012, vide judgment dated
05.09.2012, the High Court dismissed the same. The appellant preferred the
Review Petition No. 1224/2012 seeking review of the said judgment which was
also dismissed on 07.02.2013. Main judgment as well as the order passed in
the review petition are challenged by the appellant via special leave
petition in which leave was granted and that is how the instant appeals
have come up for final hearing wherein issue regarding the status of the
appellant as to whether she belongs to Thandan Community or not falls for
consideration.
5. Before we discuss various documents filed by the appellant in support
of her claim, it would be advisable to traverse through the judgments
referred to above as well as some other judgments and also the relevant
statutory orders/enactments in this behalf. A scanning through the
aforesaid material would clear much of the haze which surrounds the issue
in question. We would like to start our discussion with the judgment of
this Court in Palghat Jilla's case which traces out the history about the
inclusion of Thandans as Scheduled Caste in the State of Kerala. A perusal
of the judgment reveals that Thandan Community in the erstwhile Travancore
and Cochin State alone was included in the Scheduled Caste list by the
Constitution (Scheduled Castes) Order 1950. Scheduled Caste list of Kerala
State was amended, as per Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act 1976 (Act 108/76) by including Thandans throughout Kerala
State in the Scheduled Caste list. After inclusion of the Thandan
Community throughout the State in the Scheduled Caste list, the State
Government issued instructions to the caste certificate issuing
authorities not to issue Scheduled Caste certificates to the members of
Thandan Community stating that Thandan Community of Malabar is synonymed
Ezhava/Thiyya Community. The purport of the aforesaid considerations was
to clarify that Ezhava/Thiyya Community in Malabar was not the same as
Thandan Community and those belonging to Ezhava/Thiyya Community could not
claim the status of Scheduled Caste category by equating themselves to be
the members of Thandan Community. Certain writ petitions were directly
filed in the High Court questioning the validity of the aforesaid order
dated 24.11.1987. Some of the persons had filed the writ petitions in the
High Court of Kerala which were decided by the High Court one way or the
other and those decisions were also challenged before this Court. All
these writ petitions and appeals were decided together.
6. The principal question in the said writ petitions and appeals was
with regard to the validity of the decisions of the State of Kerala not to
treat members of Thandan Community belonging to the erstwhile Malabar
District, including the present Palakkad District of the State of Kerala,
as the members of the Scheduled Castes. This Court noted that Article 366
(24) of the Constitution of India defines the expression “Scheduled Castes”
to mean “such castes, races or tribes or parts of or groups within such
castes, races or tribes as are deemed under Article 341 to be Scheduled
Castes for the purposes of this Constitution.” Under Article 341,
President is empowered to specify the castes, races or tribes or parts of
or groups within castes, races or tribes which shall for the purposes of
this Constitution be deemed to be Scheduled Castes in relation to that
State or Union Territory, as the case may be. Parliament is also
empowered, by the said Article, to make law to include in or exclude from
the list of Scheduled Castes specified in a notification issued by the
President under the said provision. The President, in consultation with
the Governors and Rajpramukhs of the various States had issued The
Constitution (Scheduled Castes) Order, 1950 specifying various castes to be
Scheduled Castes in respect of different States. Part XVI thereof related
to the then State of Travancore-Cochin. At item 22 of Part XVI was
specified the caste Thandan for the purposes of the entire State. The
Constitution Scheduled Castes (Modification) Order, 1956, modified the
Scheduled Castes Order. In the list in Part V, applicable to the State of
Kerala (the successor to the State of Travancore-Cochin), at item 14, was
specified the caste Thandan for the purposes of the entirety of the State
except Malabar District. The Scheduled Castes and Scheduled Tribes
(Amendment) Act, 1976 came into force on 27.07.1977. In the First Schedule
thereof, under Part VII relative to the State of Kerala, Thandan was
specified at item 61. In Part VII only in respect of two castes, namely,
Boyan and Malayan, were specific areas of the State of Kerala designated.
In other words, all other castes listed in Part VII, including Thandan were
Scheduled Castes for the purposes of the entirety of the State. On
17.05.1979, the Government of Kerala issued an order which noted that upon
the coming into force on 27.07.1977, of the Scheduled Castes and Scheduled
Tribes (Amendment) Act, 1976, the Thandan community throughout the State of
Kerala came to be included in the list of Scheduled Castes. As certain
complaints were received to the effect that there was section of
Ezhavas/Thiyyas of Malabar area and of certain Taluks of Trichur District
who were called Thandans but have nothing in common with the Scheduled
Caste Thandans. After going through these complaints, the Government of
Kerala issued the Order dated 15.10.1984 stating that after reconsideration
of the matter in all respects, the 1979 Order was cancelled and “Thandans
throughout Kerala would be treated as members of Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1976 and Community Certificate
issued accordingly”. This was modified by another order dated 24.11.1987
which further added that while issuing caste certificates, the Revenue
authorities should clarify after proper verification that the person
concerned belongs to Thandan caste and not Ezhava/Thiyya. As pointed out
above, this order was under challenge before this Court.
7. The Court proceeded on the basis that the State Government was right
in saying that there is a section of Ezhava/Thiyya community which is
called Thandan in the Malabar District. Notwithstanding the above, this
Court ruled that so long as Thandan was mentioned as Scheduled Caste in the
notification, Ezhava/Thiyya community which is also called Thandan in the
Malabar District would get the benefit thereof and would be treated as
Scheduled Caste persons. The discussion in this behalf is contained in
Paras 16, 17 and 18 of the judgment, which reads as under:
“16. Article 341 empowers the President to specify not only castes, races
or tribes which shall be deemed to be Scheduled Castes in relation to a
State but also “parts of or groups within castes, races or tribes” which
shall be deemed to be Scheduled Castes in relation to a State. By reason of
Article 341 a part or group or section of a caste, race or tribe, which, as
a whole, is not specified as a Scheduled Caste, may be specified as a
Scheduled Caste. Assuming, therefore, that there is a section of the
Ezhavas/Thiyyas community (which is not specified as a Scheduled Caste)
which is called Thandan in some parts of Malabar area, that section is also
entitled to be treated as a Scheduled Caste, for Thandans throughout the
State are deemed to be a Scheduled Caste by reason of the provisions of the
Scheduled Castes Order as it now stands. Once Thandans throughout the State
are entitled to be treated as a Scheduled Caste by reason of the Scheduled
Castes Order as it now stands, it is not open to the State Government to
say otherwise, as it has purported to do in the 1987 order.
17. We may usefully draw attention to the judgment of a Bench of three
learned Judges of this Court in Srish Kumar Choudhury v. State of Tripura
(1990 Supp. SCC 220). This judgment considered the Constitution Bench
judgments in B. Basavalingappa v. D. Munichinnappa ((1965) 1 SCR 316) and
Bhaiyalal v. Harikishan Singh ((1965) 2 SCR 877) and certain other
judgments. It held that the two Constitution Bench judgments indicated that
any amendment to the Presidential Orders could only be by legislation. The
Court could not assume jurisdiction and order an enquiry to determine
whether the terms of the Presidential Order included a particular
community. A State Government was entitled to initiate appropriate
proposals for modification in cases where it was satisfied that
modifications were necessary and, if after appropriate enquiry, the
authorities were satisfied that a modification was required, an amendment
could be undertaken as provided by the Constitution.
18. These judgments leave no doubt that the Scheduled Castes Order has to
be applied as it stands and no enquiry can be held or evidence let in to
determine whether or not some particular community falls within it or
outside it. No action to modify the plain effect of the Scheduled Castes
Order, except as contemplated by Article 341, is valid.”
8. The effect of the aforesaid judgment, or the ratio thereof, is
pointed out succinctly a recent judgment of this Court in R. Unnikrishnan
and another v. V.K. Mahanudevan and others[2] in the following words:
“32. What followed from the above is that Thandans, regardless of whether
they were Ezhuvas/Thiyyas known as Thandans belonging to the Malabar area,
were by reason of the above pronouncement of this Court in Palghat case
held entitled to the benefit of being treated as Scheduled Caste by the
Presidential Order, any enquiry into their being Thandans who were
Scheduled Caste having been forbidden by this Court as legally
impermissible. The distinction which the State Government sought to make
between Ezhuva/Thiyyas known as Thandans like the respondent on the one
hand and Thandans who fell in the Scheduled Caste category, on the other,
thus stood abolished by reason of the above pronouncement. No such argument
could be countenanced against the respondent especially when it is not the
case of the appellants that the respondent is not an Ezhuva from Malabar
area of the State of Kerala.”
9. It so happened that after the judgment in Palghat Jilla's case, there
was an amendment of the Presidential Order in terms of the Constitution
(Scheduled Castes) Order (Amendment) Act, 2007 which received the assent of
the President on 29.08.2007. By this Act, following changes were made in
Part VIII – Kerala for Entry 61:
“61. Thandan (excluding Ezhuvas and Thiyyas who are known as Thandan, in
the erstwhile Cochin and Malabar areas and carpenters who are known as
Thachan, in the erstwhile Cochin and Travancore State).”
10. It, thus, becomes clear that after the said judgment, Ezhuvas
and Thiyyas who are also known as Thandan in the erstwhile Cochin and
Malabar are no longer Scheduled Castes in the State of Kerala. However,
this amendment is prospective and, therefore, the aforesaid change position
become effective only from 30.08.2007, the date when the amendment was
notified. In R. Unnikrishnan's judgment, this Court made it clear that
having regard to the ratio of Palghat Jilla's case, Ezhuvas and Thiyyas
known as Thandans were entitled to be treated as Scheduled Castes till
29.08.2007 and such an entitlement could not be taken away retrospectively.
The Court was, thus, categorical in holding that those who were
Ezhuvas/Thiyyas known as Thandans in Cochin and Malabar region and were
given the benefit of Scheduled Caste status prior to 30.08.2007 could not
be deprived of such benefit already bestowed on them. We would like to
reproduce the following discussions from this judgment:
“36. The law declared by this Court in Palghat Jilla case entitled all
Thandans including those who were Ezhuvas and Thiyyas from Cochin and
Malabar region to claim the Scheduled Caste status. That entitlement could
be taken away retrospectively only by specific provisions to that effect or
by necessary intendment. We see no such specific provision or intendment in
the amending legislation to hold that the entitlement was taken away
retrospectively so as to affect even those who had already benefited from
the reservation for Scheduled Caste candidates. At any rate, a certificate
issued to an Ezhuva known as Thandan who was a native of Cochin and Malabar
region of the State could not be withdrawn as the Constitution (Scheduled
Castes) Order, 1950 did not make a distinction between the two categories
of Thandans till the Amendment Act of 2007 for the first time introduced
such a difference.
37. That apart, the question of ouster of Ezhuvas and Thiyyas known as
Thandan on account of the confusion that prevailed for a considerable
length of time till the decision of this Court in Palghat Jilla case would
be unjustified both in law and on the principles of equity and good
conscience.
xxx xxx xxx
40. In Sandeep Subhash Parate v. State of Maharashtra ((2006) 7 SCC 501),
also dealing with a similar confusion between “Halba” and “Halba-Koshti”
and applying the principle underlying in Milind case ((2001) 1 SCC 4), this
Court held that ouster of candidates who have obtained undeserved benefit
will be justified only where the court finds the claim to be bona fide. In
State of Maharashtra v. Sanjay K. Nimje ((2007) 14 SCC 481), this Court
held that the grant of relief would depend upon the bona fides of the
person who has obtained the appointment and upon the facts and
circumstances of each case.
41. In the instant case there is no evidence of lack of bona fides by the
respondent. The protection available under the decision of Milind case
could, therefore, be admissible even to the respondent. It follows that
even if on a true and correct construction of the expression “Thandan”
appearing in the Constitution (Scheduled Castes) Order, 2007 did not
include “Ezhuvas” and “Thiyyas” known as “Thandan” and assuming that the
two were different at all relevant points of time, the fact that the
position was not clear till the Amendment Act of 2007 made a clear
distinction between the two, would entitle all those appointed to serve the
State up to the date the amending Act came into force, to continue in
service.”
11. The cumulative reading of the aforesaid two judgments viz. in the
case of Palaghat Jilla and R. Unnikrishnan, clinches the controversy by
tilting the balance in favour of the appellant herein. We may record that
the appellants have laboured to demonstrate that they are in fact Thandans
on the basis of various documents filed by them and have attentive to argue
that the Scrutiny Committee did not arrive at a correct decision. However,
it is not even necessary to go into this aspect in the facts of these
cases. As pointed out above, the appellant was treated as Thandan and,
thus, belonging to Scheduled caste community on the basis of the Scheduled
Castes and Scheduled Tribes Orders (Amendment) Act 1976 and she was
appointed as High School Assistant (Physical Science) in Government School
on 03.02.1989 treating her as Scheduled Caste. Even if we proceed on the
basis that she belongs to Ezhuvas/Thiyyas, that is irrelevant insofar as
the appellant is contained as these castes were treated as part of Thandan
Community and were held entitled to be treated as Scheduled Caste. This
principle is categorically stated in Palaghat Jilla's case. R.
Unnikrishnan's case clarified that the position changes only w.e.f.
30.08.2007 with the Amendment Act of 2007 when Thiyyas and Ezhuvas are not
to be treated as part of Thandan and, thus, Scheduled Caste but those who
have already conferred the benefit would entitled to continue to reap the
fruits thereof.
12. In the another appeal also, we find that appellant was treated as
belonging to Thandan Community and given benefit much prior to 2007.
13. For the reasons stated above, these appeals succeed and are
accordingly allowed. Since the appellants have been continued in service
because of the interim order passed by this Court, they are treated as
validly appointed giving them the benefit of members of Scheduled Caste
category. The impugned judgment is accordingly set aside thereby allowing
the writ petitions filed by the appellants and quashing the orders of
respondent Nos. 2 and 3. The appellants shall also be entitled to the cost
of these proceedings.
.............................................J.
(A.K. SIKRI)
.............................................J.
(R. K. AGRAWAL)
NEW DELHI;
APRIL 13, 2016.
-----------------------
[1] (1994) 1 SCC 359
[2] (2014) 4 SCC 434
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6126-6127 OF 2013
|T. KOCHA |.....APPELLANT(S) |
|VERSUS | |
|STATE OF KERALA & ORS. |.....RESPONDENT(S) |
W I T H
CIVIL APPEAL NO. 11377 OF 2011
J U D G M E N T
A.K. SIKRI, J.
In these appeals, the legal issue which needs
determination is identical. The background facts under which the said
issue arises are also somewhat similar. Therefore, without being
repetitive, it would serve our purpose to take note of the facts appearing
in Civil Appeal Nos. 6126-6127 of 2013 in order to spell out the issue
involved and decision thereupon shall govern both the appeals.
2. The appellant in Civil Appeal Nos. 6126-6127 of 2013 is T. Kocha who
claims to be the member of the Thandan Community, which is a Scheduled
Caste in the State of Kerala. She applied for the post of High School
Assistant (Physical Science) in a Government School under reserved category
claiming herself to be the Scheduled Caste as belonging to Thandan
Community. She was given appointment to the said post, after being
successful in the selection process, w.e.f. 03.02.1989.
3. There was some dispute about Thandans as members of the Scheduled
Caste which travelled up to this Court and was decided in the case of
Palghat Jilla Thandan Samudhaya Samrakshna Samithi and another v. State of
Kerala and another[1]. We shall be referring to the said judgment at
length and the decision taken therein by this Court at the appropriate
stage. We may mention at this juncture that on the basis of another
judgment rendered by Full Bench of High Court of Kerala in O.P. No. 6758/87
(decided on 14.03.1995), the Vigilance Cell of KIRTADS (respondent No. 3
herein) had examined the cases of those persons who had changed their caste
name after the promulgation of the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act 1976. In respect of the appellant, the respondent
No. 3 came to the conclusion that she did not belong to Thandan Community
but was a member of Ezhava/Thiyya Community and, therefore, was not a
person belonging to Scheduled Caste Community. Based on that report, the
Scrutiny Committee, for verification of Community Certificates of Scheduled
Castes and Scheduled Tribes Department in the Government of Kerala
(respondent No. 2 herein), issued a show cause notice dated 03.06.2003 to
the appellant as to why she should not be treated as non-Scheduled Caste
person. The appellant submitted her written explanation dated 06.09.2003
along with as many as 46 documents in support of her plea that she was of
Thandan Caste and, therefore, rightly given the Government appointment
under the quota meant for Scheduled Caste persons. It was followed by an
affidavit dated 02.12.2003 of the appellant wherein she requested
respondent No. 2 to furnish the name and addresses of those persons from
whom respondent No. 3 had allegedly collected evidence. A request was also
made to afford an opportunity to cross examine those witnesses. This
request was not allowed.
4. After considering the written explanation and the documents submitted
by the appellant, respondent No. 2 concluded that she did not belong to
Thandan Community and, therefore, was not a Scheduled Caste person. Order
dated 13.04.2004 was passed to this effect which was served upon the
appellant on 28.06.2004. The appellant challenged the aforesaid order of
the respondents by filing the writ petition in the High Court of Kerala.
The said writ petition was admitted and interim stay vide order dated
13.04.2004 was granted in favour of the appellant. However, when the said
writ petition was finally heard in the year 2012, vide judgment dated
05.09.2012, the High Court dismissed the same. The appellant preferred the
Review Petition No. 1224/2012 seeking review of the said judgment which was
also dismissed on 07.02.2013. Main judgment as well as the order passed in
the review petition are challenged by the appellant via special leave
petition in which leave was granted and that is how the instant appeals
have come up for final hearing wherein issue regarding the status of the
appellant as to whether she belongs to Thandan Community or not falls for
consideration.
5. Before we discuss various documents filed by the appellant in support
of her claim, it would be advisable to traverse through the judgments
referred to above as well as some other judgments and also the relevant
statutory orders/enactments in this behalf. A scanning through the
aforesaid material would clear much of the haze which surrounds the issue
in question. We would like to start our discussion with the judgment of
this Court in Palghat Jilla's case which traces out the history about the
inclusion of Thandans as Scheduled Caste in the State of Kerala. A perusal
of the judgment reveals that Thandan Community in the erstwhile Travancore
and Cochin State alone was included in the Scheduled Caste list by the
Constitution (Scheduled Castes) Order 1950. Scheduled Caste list of Kerala
State was amended, as per Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act 1976 (Act 108/76) by including Thandans throughout Kerala
State in the Scheduled Caste list. After inclusion of the Thandan
Community throughout the State in the Scheduled Caste list, the State
Government issued instructions to the caste certificate issuing
authorities not to issue Scheduled Caste certificates to the members of
Thandan Community stating that Thandan Community of Malabar is synonymed
Ezhava/Thiyya Community. The purport of the aforesaid considerations was
to clarify that Ezhava/Thiyya Community in Malabar was not the same as
Thandan Community and those belonging to Ezhava/Thiyya Community could not
claim the status of Scheduled Caste category by equating themselves to be
the members of Thandan Community. Certain writ petitions were directly
filed in the High Court questioning the validity of the aforesaid order
dated 24.11.1987. Some of the persons had filed the writ petitions in the
High Court of Kerala which were decided by the High Court one way or the
other and those decisions were also challenged before this Court. All
these writ petitions and appeals were decided together.
6. The principal question in the said writ petitions and appeals was
with regard to the validity of the decisions of the State of Kerala not to
treat members of Thandan Community belonging to the erstwhile Malabar
District, including the present Palakkad District of the State of Kerala,
as the members of the Scheduled Castes. This Court noted that Article 366
(24) of the Constitution of India defines the expression “Scheduled Castes”
to mean “such castes, races or tribes or parts of or groups within such
castes, races or tribes as are deemed under Article 341 to be Scheduled
Castes for the purposes of this Constitution.” Under Article 341,
President is empowered to specify the castes, races or tribes or parts of
or groups within castes, races or tribes which shall for the purposes of
this Constitution be deemed to be Scheduled Castes in relation to that
State or Union Territory, as the case may be. Parliament is also
empowered, by the said Article, to make law to include in or exclude from
the list of Scheduled Castes specified in a notification issued by the
President under the said provision. The President, in consultation with
the Governors and Rajpramukhs of the various States had issued The
Constitution (Scheduled Castes) Order, 1950 specifying various castes to be
Scheduled Castes in respect of different States. Part XVI thereof related
to the then State of Travancore-Cochin. At item 22 of Part XVI was
specified the caste Thandan for the purposes of the entire State. The
Constitution Scheduled Castes (Modification) Order, 1956, modified the
Scheduled Castes Order. In the list in Part V, applicable to the State of
Kerala (the successor to the State of Travancore-Cochin), at item 14, was
specified the caste Thandan for the purposes of the entirety of the State
except Malabar District. The Scheduled Castes and Scheduled Tribes
(Amendment) Act, 1976 came into force on 27.07.1977. In the First Schedule
thereof, under Part VII relative to the State of Kerala, Thandan was
specified at item 61. In Part VII only in respect of two castes, namely,
Boyan and Malayan, were specific areas of the State of Kerala designated.
In other words, all other castes listed in Part VII, including Thandan were
Scheduled Castes for the purposes of the entirety of the State. On
17.05.1979, the Government of Kerala issued an order which noted that upon
the coming into force on 27.07.1977, of the Scheduled Castes and Scheduled
Tribes (Amendment) Act, 1976, the Thandan community throughout the State of
Kerala came to be included in the list of Scheduled Castes. As certain
complaints were received to the effect that there was section of
Ezhavas/Thiyyas of Malabar area and of certain Taluks of Trichur District
who were called Thandans but have nothing in common with the Scheduled
Caste Thandans. After going through these complaints, the Government of
Kerala issued the Order dated 15.10.1984 stating that after reconsideration
of the matter in all respects, the 1979 Order was cancelled and “Thandans
throughout Kerala would be treated as members of Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1976 and Community Certificate
issued accordingly”. This was modified by another order dated 24.11.1987
which further added that while issuing caste certificates, the Revenue
authorities should clarify after proper verification that the person
concerned belongs to Thandan caste and not Ezhava/Thiyya. As pointed out
above, this order was under challenge before this Court.
7. The Court proceeded on the basis that the State Government was right
in saying that there is a section of Ezhava/Thiyya community which is
called Thandan in the Malabar District. Notwithstanding the above, this
Court ruled that so long as Thandan was mentioned as Scheduled Caste in the
notification, Ezhava/Thiyya community which is also called Thandan in the
Malabar District would get the benefit thereof and would be treated as
Scheduled Caste persons. The discussion in this behalf is contained in
Paras 16, 17 and 18 of the judgment, which reads as under:
“16. Article 341 empowers the President to specify not only castes, races
or tribes which shall be deemed to be Scheduled Castes in relation to a
State but also “parts of or groups within castes, races or tribes” which
shall be deemed to be Scheduled Castes in relation to a State. By reason of
Article 341 a part or group or section of a caste, race or tribe, which, as
a whole, is not specified as a Scheduled Caste, may be specified as a
Scheduled Caste. Assuming, therefore, that there is a section of the
Ezhavas/Thiyyas community (which is not specified as a Scheduled Caste)
which is called Thandan in some parts of Malabar area, that section is also
entitled to be treated as a Scheduled Caste, for Thandans throughout the
State are deemed to be a Scheduled Caste by reason of the provisions of the
Scheduled Castes Order as it now stands. Once Thandans throughout the State
are entitled to be treated as a Scheduled Caste by reason of the Scheduled
Castes Order as it now stands, it is not open to the State Government to
say otherwise, as it has purported to do in the 1987 order.
17. We may usefully draw attention to the judgment of a Bench of three
learned Judges of this Court in Srish Kumar Choudhury v. State of Tripura
(1990 Supp. SCC 220). This judgment considered the Constitution Bench
judgments in B. Basavalingappa v. D. Munichinnappa ((1965) 1 SCR 316) and
Bhaiyalal v. Harikishan Singh ((1965) 2 SCR 877) and certain other
judgments. It held that the two Constitution Bench judgments indicated that
any amendment to the Presidential Orders could only be by legislation. The
Court could not assume jurisdiction and order an enquiry to determine
whether the terms of the Presidential Order included a particular
community. A State Government was entitled to initiate appropriate
proposals for modification in cases where it was satisfied that
modifications were necessary and, if after appropriate enquiry, the
authorities were satisfied that a modification was required, an amendment
could be undertaken as provided by the Constitution.
18. These judgments leave no doubt that the Scheduled Castes Order has to
be applied as it stands and no enquiry can be held or evidence let in to
determine whether or not some particular community falls within it or
outside it. No action to modify the plain effect of the Scheduled Castes
Order, except as contemplated by Article 341, is valid.”
8. The effect of the aforesaid judgment, or the ratio thereof, is
pointed out succinctly a recent judgment of this Court in R. Unnikrishnan
and another v. V.K. Mahanudevan and others[2] in the following words:
“32. What followed from the above is that Thandans, regardless of whether
they were Ezhuvas/Thiyyas known as Thandans belonging to the Malabar area,
were by reason of the above pronouncement of this Court in Palghat case
held entitled to the benefit of being treated as Scheduled Caste by the
Presidential Order, any enquiry into their being Thandans who were
Scheduled Caste having been forbidden by this Court as legally
impermissible. The distinction which the State Government sought to make
between Ezhuva/Thiyyas known as Thandans like the respondent on the one
hand and Thandans who fell in the Scheduled Caste category, on the other,
thus stood abolished by reason of the above pronouncement. No such argument
could be countenanced against the respondent especially when it is not the
case of the appellants that the respondent is not an Ezhuva from Malabar
area of the State of Kerala.”
9. It so happened that after the judgment in Palghat Jilla's case, there
was an amendment of the Presidential Order in terms of the Constitution
(Scheduled Castes) Order (Amendment) Act, 2007 which received the assent of
the President on 29.08.2007. By this Act, following changes were made in
Part VIII – Kerala for Entry 61:
“61. Thandan (excluding Ezhuvas and Thiyyas who are known as Thandan, in
the erstwhile Cochin and Malabar areas and carpenters who are known as
Thachan, in the erstwhile Cochin and Travancore State).”
10. It, thus, becomes clear that after the said judgment, Ezhuvas
and Thiyyas who are also known as Thandan in the erstwhile Cochin and
Malabar are no longer Scheduled Castes in the State of Kerala. However,
this amendment is prospective and, therefore, the aforesaid change position
become effective only from 30.08.2007, the date when the amendment was
notified. In R. Unnikrishnan's judgment, this Court made it clear that
having regard to the ratio of Palghat Jilla's case, Ezhuvas and Thiyyas
known as Thandans were entitled to be treated as Scheduled Castes till
29.08.2007 and such an entitlement could not be taken away retrospectively.
The Court was, thus, categorical in holding that those who were
Ezhuvas/Thiyyas known as Thandans in Cochin and Malabar region and were
given the benefit of Scheduled Caste status prior to 30.08.2007 could not
be deprived of such benefit already bestowed on them. We would like to
reproduce the following discussions from this judgment:
“36. The law declared by this Court in Palghat Jilla case entitled all
Thandans including those who were Ezhuvas and Thiyyas from Cochin and
Malabar region to claim the Scheduled Caste status. That entitlement could
be taken away retrospectively only by specific provisions to that effect or
by necessary intendment. We see no such specific provision or intendment in
the amending legislation to hold that the entitlement was taken away
retrospectively so as to affect even those who had already benefited from
the reservation for Scheduled Caste candidates. At any rate, a certificate
issued to an Ezhuva known as Thandan who was a native of Cochin and Malabar
region of the State could not be withdrawn as the Constitution (Scheduled
Castes) Order, 1950 did not make a distinction between the two categories
of Thandans till the Amendment Act of 2007 for the first time introduced
such a difference.
37. That apart, the question of ouster of Ezhuvas and Thiyyas known as
Thandan on account of the confusion that prevailed for a considerable
length of time till the decision of this Court in Palghat Jilla case would
be unjustified both in law and on the principles of equity and good
conscience.
xxx xxx xxx
40. In Sandeep Subhash Parate v. State of Maharashtra ((2006) 7 SCC 501),
also dealing with a similar confusion between “Halba” and “Halba-Koshti”
and applying the principle underlying in Milind case ((2001) 1 SCC 4), this
Court held that ouster of candidates who have obtained undeserved benefit
will be justified only where the court finds the claim to be bona fide. In
State of Maharashtra v. Sanjay K. Nimje ((2007) 14 SCC 481), this Court
held that the grant of relief would depend upon the bona fides of the
person who has obtained the appointment and upon the facts and
circumstances of each case.
41. In the instant case there is no evidence of lack of bona fides by the
respondent. The protection available under the decision of Milind case
could, therefore, be admissible even to the respondent. It follows that
even if on a true and correct construction of the expression “Thandan”
appearing in the Constitution (Scheduled Castes) Order, 2007 did not
include “Ezhuvas” and “Thiyyas” known as “Thandan” and assuming that the
two were different at all relevant points of time, the fact that the
position was not clear till the Amendment Act of 2007 made a clear
distinction between the two, would entitle all those appointed to serve the
State up to the date the amending Act came into force, to continue in
service.”
11. The cumulative reading of the aforesaid two judgments viz. in the
case of Palaghat Jilla and R. Unnikrishnan, clinches the controversy by
tilting the balance in favour of the appellant herein. We may record that
the appellants have laboured to demonstrate that they are in fact Thandans
on the basis of various documents filed by them and have attentive to argue
that the Scrutiny Committee did not arrive at a correct decision. However,
it is not even necessary to go into this aspect in the facts of these
cases. As pointed out above, the appellant was treated as Thandan and,
thus, belonging to Scheduled caste community on the basis of the Scheduled
Castes and Scheduled Tribes Orders (Amendment) Act 1976 and she was
appointed as High School Assistant (Physical Science) in Government School
on 03.02.1989 treating her as Scheduled Caste. Even if we proceed on the
basis that she belongs to Ezhuvas/Thiyyas, that is irrelevant insofar as
the appellant is contained as these castes were treated as part of Thandan
Community and were held entitled to be treated as Scheduled Caste. This
principle is categorically stated in Palaghat Jilla's case. R.
Unnikrishnan's case clarified that the position changes only w.e.f.
30.08.2007 with the Amendment Act of 2007 when Thiyyas and Ezhuvas are not
to be treated as part of Thandan and, thus, Scheduled Caste but those who
have already conferred the benefit would entitled to continue to reap the
fruits thereof.
12. In the another appeal also, we find that appellant was treated as
belonging to Thandan Community and given benefit much prior to 2007.
13. For the reasons stated above, these appeals succeed and are
accordingly allowed. Since the appellants have been continued in service
because of the interim order passed by this Court, they are treated as
validly appointed giving them the benefit of members of Scheduled Caste
category. The impugned judgment is accordingly set aside thereby allowing
the writ petitions filed by the appellants and quashing the orders of
respondent Nos. 2 and 3. The appellants shall also be entitled to the cost
of these proceedings.
.............................................J.
(A.K. SIKRI)
.............................................J.
(R. K. AGRAWAL)
NEW DELHI;
APRIL 13, 2016.
-----------------------
[1] (1994) 1 SCC 359
[2] (2014) 4 SCC 434
