1. The caste status of the petitioner is in dispute; more so with reference to the employment obtained by projecting the petitioner as a member of Scheduled Caste being a ‘Thandan’ in Palakkad District. The sequence of events is as follows:
2. The petitioner, after completing his studies, applied for the post of Driver/Head Constable in the CISF under the quota earmarked for Scheduled Caste. The petitioner’s case was that, he being a member of ‘Thandan’ Community in Palakkad district, was liable to be treated as a member of the Scheduled Caste and it was accordingly, he obtained Ex.P1 certificate dated 02.05.1985 from the concerned village Officer showing his caste status as ‘Thandan’. Pursuant to the selection process, the petitioner was appointed as Driver/Head Constable by the 4th respondent.
3. Later in the course of verification, a report was obtained to the 4th respondent from the District Collector concerned, pointing out that the petitioner was actually a ‘Thiyya’, which is an ‘OBC’ (Other Backward Community) and not a member of Scheduled Caste community. In the said circumstance, the 4th respondent issued a show-cause notice to the petitioner on 13.12.2002, as to why the appointment given to him as Driver/Head Constable should not be cancelled. The petitioner approached this court by filing OP. 475 of 2003, contending that the District Collector was having absolutely no jurisdiction, power or competence to certify the caste status of the petitioner, which infact stood vested with Scrutiny Committee by virtue of the Kerala (Scheduled Caste/Scheduled Tribe) Regulation of Issue of Community Certificates Act, 1996 (Act 11 of 1996). The said O.P was disposed of as per the judgment dated 08.01.2003 observing that termination of service of the petitioner shall be effected only after conducting an enquiry by CISF. As the desired result was not achieved, the petitioner challenged the said decision by filing W.A.No.67 of 2003, wherein Ext.P5 judgment was rendered, directing the Scrutiny Committee Constituted under Act 11 of 1996 to consider the issue and then to follow the consequential steps including termination of service of the petitioner.
4. Pursuant to the above verdict, the third respondent issued a show-cause notice to the petitioner to appear on 25.07.2005 and the petitioner appeared before the said authority. it is the case of the petitioner that, instead of conducting a proper enquiry, the petitioner was required to fill up a genealogical proforma, wherein the relevant columns had just to be filled up and it was done accordingly. Thereafter Ext.P6 report dated 22.11.2005 was presented by the third respondent-Vigilance Cell of the KIRTADS, holding that the petitioner was only a ‘Thiyya’ and the titled ‘Thandan’ given to him was only by virtue of the fact that ’Ezhava/Thiyya’ in the area was used to be ‘called as Thandan’, which otherwise do not confer on him any benefit of the Scheduled Caste community. The said report was considered by the second respondent-Scrutiny Committee, who sent a show-cause notice to the petitioner, also enclosing a copy of the report. The petitioner submitted Ext.P7 reply, along with as many as 54 documents to substantiate his case that he was actually a ‘Thandan’ and was entitled to have the benefit of Scheduled Caste status.
5. The first hearing of the Scrutiny Committee was held on 21.08.2006, when the petitioner wanted to cross examine the officers of the Vigilance Cell of the KIRTADS and also the persons from whom evidence was collected by the authorities concerned. The petitioner also produced Exts.P8 and P9 certificates issued by the concerned local authority and the Dy. Speaker who was residing in the locality and who knew the petitioner as a ‘Thandan’. Projecting the grievance of the petitioner as to the course pursued by the Scrutiny Committee, W.P.(C) 29652/06 was filed, challenging the very constitution of the Committee and also as to the infringement of the principles of natural justice in connection with the enquiry stated as pursued by the Scrutiny Committee.
6. By virtue of the interim order passed by this Court as borne by Ext.R4(h) (produced along with the counter affidavit of the 4th respondent in this writ petition), the petitioner was permitted to cross examine the persons concerned. After finalisation of the matter, the Scrutiny Committee passed Ext.P11 order dated 24.02.2011 which in turn was forwarded to the 4th respondent. Another interim order was passed by this Court as borne by Ext.R4(i) in W.P.(C) No.29652 of 2006 recording the submission made on behalf of the 4th respondent that even after obtaining the report, no step to terminate the service of the petitioner would be pursued without serving a notice to him. This was followed by Ext.P13 show-cause notice issued by the 5th respondent and also Ext.P14 Government Order dated 15.03.2011 based on the report of the second respondent providing for further course of action including termination of service of the petitioner. Prosecution steps and such other proceedings so as to cause the relevant records to be corrected were also dealt with therein. This made the petitioner to approach this Court by filing the present writ petition challenging Exts.P6, P11 and P14.
7. The respondents 4 and 5 have filed a counter affidavit seeking to sustain the action taken by the said respondents as the employer of the petitioner, pointing out that the vacancy notified was clearly earmarked for Scheduled Caste community and that the petitioner wrongly projected him as a member of Scheduled Caste and applied for the post, based on Ext.P1 certificate, a copy of which has been produced as Ext.R4(a). It was accordingly, that the petitioner was appointed against the vacancy earmarked for Schedule Caste community and it was only later, the correct position came to the notice of the said respondents. In the course of further proceedings, steps like issuance of show cause notice and other proceedings mentioned hereinbefore were followed.
8. The case of the 4th and 5th respondents is that the petitioner has pursued a conscious act in fraudulently obtaining Ext.P1 certificate showing him as a ‘Thandan’ and declaring himself as a member of the Scheduled Caste, as given in Ext.R4(b) proforma, in turn getting the appointment. It is contended that, by virtue of the law declared by the Apex Court and also the fact that ‘Thandan’ in some area in Palakkad district stands excluded from the purview of Scheduled Caste community, by virtue of the amendment in 2007, the petitioner is liable to be proceeded against, in tune with Ext.P14; more so, since the employment sought for and obtained was by wrongly projecting him as a member of Scheduled Caste.
9. No counter affidavit has been filed from the part of the State/Respondents 1 to 3. Heard the learned Counsel for the petitioner, learned Standing Counsel for the respondents 4 and 5 and also the learned Special Government Pleader appearing for the State, at length.
10. The learned Counsel for the petitioner submits that the enquiry conducted and the finding arrived at by the Scrutiny Committee is per se wrong and illegal. The challenge is raised on several counts, asserting that the relevant documents have been ignore by the Scrutiny Committee, while irrelevant aspects stand weighed more. It is contended that, non-reference of the documents produced by the petitioner is fatal, in view of the law declared by the Supreme Court in Gayatrilaxmi Bapurao Nagpure vs. State of Maharashtra and Others (JT 1996(3) SC 405 (para 17). The learned Counsel submits that the Scrutiny Committee happens to be carried away by the entries in the school register of the petitioner, wherein it has been shown as ‘Thiyya’ and that the same is only a mistake. It is pointed out that the dispute actually arose only in 1976, when the community by name ‘Thandan’ happened to be included in the list of Scheduled Castes community. Inspite of including ‘Thandan’ community in the list of Scheduled Castes community, the benefit was being denied in respect of ‘Thandan’ in some areas of Palakkad district, which was the subject matter of challenge in several cases, finally leading to the judgment of the Apex Court reported in Palghat Jilla Thandan Samudhaya Samrakshana Samithi and another vs. State of Kerala (1994 (1) KLT 118). In the said decision, it was specifically observed in paragraphs 16 and 17 that all the ‘Thandans’ in Kerala, by virtue of inclusion in the list, were liable to be treated as members of Scheduled Caste and if at all any distinction was to be made, it was for the State to take appropriate steps by virtue of the course stipulated under Article 341 of the Constitution. The issue in this regard is also covered by the decisions of two Constitution Benches of the Supreme Court, which have been relied upon in the above decision reported in 1994 (1) KLT 118 (cited supra), holding that the Court could not assume jurisdiction and order an enquiry to determine whether the terms of the Presidential Order included a particular community. The law is now crystal clear that, once a Presidential Order is issued, it is no more open to the Court or even for the President to include or exclude any entry from the list; which power is vested exclusively on the Parliament. Similar provision is there with regard to the Scheduled Tribes, as well, as discernible from Article 342. The above decision has been relied on by a Full Bench of this Court in Kerala Pattikajathi Samrakshana Samithi vs. State of Kerala. (ILR 1995 (3) Ker.1).
11. It is the further contention of the petitioner that, even if the finding of the Scrutiny Committee is upheld on any count, the petitioner is still entitled to have the benefit of the Division Bench decision of this Court in Madhavan P. vs. State of Kerala (2010 (2) KHC 739 (DB) (paragraph 4), wherein it has been categorically held that the list was amended only in the year 2007, till which time, all the Thandans in Kerala were liable to be treated as members of Scheduled Caste; more so, in view of the law declared by the Apex Court in 1994 (1) KLT 118 (cited supra), pointing out the necessity to bring about an amendment, if at all any variation was intended or sought for. The Division Bench extended the benefit to the persons who had already obtained employment or admissions in professional colleges or such other institutions, based on the caste status showing them as ‘Thandan’, however making it clear that they will not be entitled to get any further benefit, by virtue of being a member of the community shown as ‘Thandan’ and that they will be treated as persons under OBC category. The above decision was followed by two different Single Benches of this Court and similar benefit to the limited extent was extended, as evident from the judgments dated 16.02.2010 and 11.10.2010 in O.P.No.20205 of 1995 and W.P.(C) No.707 of 2007 respectively.
12. The learned Spl. Government Pleader appearing for the State submits that the correct factual position was not properly taken note of by the Apex Court when the decision was passed in 1994 (1) KLT 118 (cited supra), as discernible from the observations made in Heikham Surchandra Singh and others vs. Representative of “LOIS” Kakching, Manipur (1997) 2 SCC 523 (paragraph 11). Reliance is sought to be placed on the observation made by the Supreme Court in the decision in Valsamma Paul vs. Cochin University (1996 (1) KLT 169) as well. It is further submitted that the petitioner is not entitled to have the benefit of the Division Bench decision in 2010 (2) KHC 739 (DB) (cited supra), for the fact that the petitioner was never known as ‘Thandan’ at any point of time and that even the Certificate that was produced showing his caste status as ‘Thandan’, is only by virtue of Ext.P1 issued in the year ‘1985’. The learned Special Government Pleader also submits that the dictum laid down by the Supreme Court in 1994 (1) KLT 118 is not applicable to the individual case, in view of the law declared by the Division Bench of this Court in W.A. No.287 of 1994 and also by the Single Bench of this Court in OP.1847 of 1994. With reference to the materials on record, the learned Special Government Pleader submits that the enquiry has been conducted by the Scrutiny Committee adhering to the relevant provisions of law and analyzing all the relevant materials, and it was after a detailed discussion, with reference to the contents of each document, that a finding was rendered holding that the petitioner did not belong to Scheduled Caste and that he was only an Ezhava/Thiyya (Other Backward Community). Particular reference is also made to the caste status of the petitioner as declared/entered in the S.S.L.C. Book (Ext.R4(d)). Submission as above is sought to be supported by the Standing Counsel for the respondents 4 and 5 as well, with reference to the contents of counter affidavit and various documents produced in this regard.
13. After hearing the matter at length and also on going through the materials produced before this Court, particularly, the report of the Scrutiny Committee, this Court finds that there is a meticulous analysis of the facts and figures as to the caste status of the petitioner and that the findings arrived at by the Vigilance Cell of the KIRTADS in Ext.P6, followed by Ext.P11 order passed by the Scrutiny Committee are well justified and supported by reasons. This Court does not find any reason to interfere with the inference in this regard and the point is answered against the petitioner.
14. Coming to the limited relief as to the benefit of the judgment in Madhavan P. vs. State of Kerala [2010 (2) KHC 739 (DB)], reference is made more to the decision rendered by the Supreme Court in 1994 (1) KLT 118. As mentioned herein before, there is a specific observation therein that, by virtue of the Presidential notification, all ‘Thandans’ in Kerala stood included as members of Scheduled Caste and if at all any exclusion was to be made with reference to any particular area as in the instant case, it could only be by causing amendment of the list. It was accordingly, that the list was caused to be amended in the year 2007. Taking note of the sequence of events, the Division Bench observed in 2010 (2) KHC 739 (DB) (cited supra) that the persons known as ‘Thandans’ in a particular area were excluded from the list of Scheduled Castes only by virtue of such amendment and hence they were entitled to have the benefit already accrued by virtue of their being known as ‘Thandans’ till the amendment was made in the year 2007. In the said circumstance, the benefit was extended to the petitioner therein to the above limited extent and this in turn was followed by the other Benches of this Court as well.
15. Coming to the instant case, there is strong objection from the part of the Special Government Pleader as well as the Standing Counsel for the respondents 4 and 5 that the petitioner is not entitled to have the benefit of the above Division Bench judgment. This is for the reason that the petitioner applied for the post and obtained the job earmarked for the Scheduled Caste, merely on the basis of Ext.P1 certificate issued in the year 1985, which was procured by the petitioner knowingly that he was not a member of the Scheduled Caste, but a person belonging to ‘Thiyya’ (Other Backward Community).
16. The above submission has to be examined with reference to other documents produced from the part of the petitioner, particularly Exts.P1 to P4, which are the extracts of the relevant birth registers and school admission registers of the petitioner and his mother. The point to be looked into is, whether there was any chance for the petitioner or his family to be known as ‘Thandan’ at any point of time. Ext.P2 is the Birth Register of the petitioner, wherein it is shown against Col.No.7, that he is a member of ‘Hindu-Thandan’. So also, in the case of mother of the petitioner, it is stated in Ext.P3 Birth Register of 1943 that she is a member ‘Hindu-Thandan’. (Col.No.7). Ext.P4 is the school register of the petitioner’s mother showing the date of admission as ’09.08.1949’ and the date of birth of the mother of the petitioner as ’05.06.1943’. It is stated against Col.8 that she was a member of ‘Hindu-Thandan’.
17. The learned Standing Counsel for the respondents 4 and 5 submits that these documents are not liable to be relied on, because of the glaring inconsistencies and discrepancies. The learned Standing Counsel Points out that, in Ext.P2 Birth Register of the petitioner, the date of birth of the petitioner is shown just as ‘6’ against Col/.3 and the registration is shown at Col.No.4 as 12.01.1963, which is an substantial variation with the particulars of the petitioner as revealed from his SSLC book, a copy of which has been produced as Ext.R4(d), where the date of birth is sown as 30.07.1963. Similar discrepancies are point out with reference to Ext.P3 Birth Register of the mother of petitioner and the entries in Ext.P4 extract of School Admission Register, as to the actual date of birth. This Court finds that there is some discrepancy with regard to the actual date of birth of the petitioner as well as his mother, as given in the Birth Register and the entries in the School Register. Eventhough there is difference/variation with regard to the actual date of birth, this Court finds that with regard to the caste status of the petitioner, there is no such difference, when the community of the petitioner and that the mother has been given as ‘Hindu-Thandan’ in Ext.P2, P3 and P4. Though the community status of the petitioner has been given as ‘Thiyya’ (OBC) in Ext.R4(d) SSLC book, there is no case for the respondents 1 to 3 that Exts.P2 and P3, which are of the years 1963 and 1943 respectively, are false or fabricated in any manner. It is pointed out by the learned counsel for the petitioner that these documents were also produced before the third respondent, but not properly appreciated.
18. As observed hereinbefore, this Court is examining the issue with reference to the question as to whether the petitioner is entitled to have the benefit of the Division Bench judgment (ie., Madhavan P. vs. State of Kerala [2010 (2) KHC 739 (DB)]; i.e., whether there was any chance for the petitioner to be known as ‘Thandan’. Going by the contends of Exts.P2, P3 and Ext.P4, the caste status of the petitioner and his mother, has been clearly given as ‘Hindu-Thandan’. That apart, the third respondent has stated in Ext.P6 (at page 43), under the head-Evaluation of the documents submitted by the claimant in the following words: “Thandan is used as a synonym of Thiyya Community”. When the third respondent concedes that Thandan is used as synonym of ‘Thiyya’ community, this Court finds no irregularity in having issued Ext.P1 certificate showing the petitioner as ‘Thandan’, since the said certificate cannot confer any status on the petitioner as a member of Schedule Caste community in view of the finding arrived at by the Scrutiny Committee, which has been upheld by this Court in the previous paragraph. The limited question to be considered is whether the benefit of the Division Bench judgment should be denied to the petitioner.
19. The learned counsel for the petitioner with reference to the decision rendered by the Apex Court in Kumari Madhuri Patil and another vs. Addl. Commissioner, Tribal Development and others (Air 1995 SC 94) submits that Exts.P3 andP4 are documents pertaining to the pre-independence/pre-Constitution period and as such, more sanctity should have been given as to the probative value of the said documents. This Court finds considerable force in the said submission; more so, when it has been held by a Division Bench of this Court in the decision reported in 2000 (2) KLT 913 (Haridasan vs. State of Kerala) that the caste/community status is primarily to be considered with reference to the community to be considered with reference to the community in which the party was born. In Exts.P2 and P3 extracts of Birth Registers, the community status of the petitioner and his mother is given as ‘Hindu-Thandan’. It was so given in Ext.P4 school register of the mother of the petitioner as well, that she belonged to the community ‘Hindu-Thandan’. The factual position that ‘Thandan’ is a synonym of ‘Thiyya’ in the area stands accepted by the third respondent in Ext.P6 as well.
In the above circumstance, this Court finds that the petitioner is entitled to have the benefit of the verdict passed by the Division Bench of this Court inMadhavan P. vs. State of Kerala [2010 (2) KHC 739 (DB)]. The writ petition is allowed to the said limited extent, enabling the petitioner to continue in service till retirement on attaining the age of superannuation, though Exts.P6, P11 and P14 declaring the actual caste status of the petitioner are sustained. It is made clear that neither the petitioner nor anybody in the family of the petitioner will be entitled to be treated as members of Schedule Caste after the amendment of the list in the year 2007.