Sandeep Subhash Parate vs State Of Maharashtra
(2006) 7 SCC 501
Supreme Court of India
Sandeep Subhash Parate vs State Of Maharashtra & Ors on 24
August, 2006
Author: S Sinha
Bench:
S.B. Sinha, Dalveer Bhandari
CASE NO.:
Appeal (civil) 3633 of 2006
PETITIONER:
Sandeep Subhash Parate
RESPONDENT:
State of Maharashtra & Ors.
DATE OF JUDGMENT: 24/08/2006
BENCH:
S.B. Sinha & Dalveer
Bhandari
JUDGMENT:
J U D G M E N T (Arising out of SLP (C) No. 9735/2005) S.B. Sinha,
J.
Leave granted.
The appellant claims himself to be a member of 'Halba' community.
'Halba' is a Scheduled Tribe. He obtained admission in the courses of Bachelor
of Engineering (Instrumentation Engineering) in Pune University, (Respondent
No.4), claiming himself to be belonging to 'Halba' a Scheduled Tribe community.
According to the appellant, the question as to whether 'Koshti-Halbas' are
members of Scheduled Tribe or not had been authoritatively decided for the
first time in State of Maharashtra vs. Milind & Ors. [(2001) 1 SCC 4] and in
that view of the matter, he had represented himself to be a member of Scheduled
Tribe. Drawing our attention to the fact that even in Milind (supra), this
Court directed that those, who have completed their courses from the
universities, should be allowed to obtain degrees and get the benefit thereof
as general candidates, the appellant was also entitled to a similar relief.
Indisputably, the Caste Scrutiny Committee constituted in terms of
the decision of this Court inKumari Madhuri Patil
& Anr. vs. Additional Commissioner, Tribal Development & Ors. [(1994) 6 SCC 241]
invalidated the caste certificate granted in favour of the appellant. In the writ
petition filed by him thereagainst, an interim order was passed in his favour,
in terms whereof he obtained admission in the course of Bachelor of Engineering
(Instrumentation Engineering) in the Government Engineering College, Pune,
which is affiliated to the respondent No.4-University. The High Court allowed
the writ petition and remitted the matter back to the Scrutiny Committee. His
claim was rejected by the Scrutiny Committee by an order dated 30th September,
2002. In a writ petition filed by him before the Nagpur Bench of the Bombay
High Court questioning the said order of 30th September, 2002, no interim
relief was granted, but, the appellant continued with his studies. The said
writ petition was dismissed for default, but, it was restored. He completed his
studies in the year 2004. He appeared at the examination. An application was
filed by him for a direction to respondent No.4-University to supply him the
degree along with the marksheet. However, in the meantime, the writ petition
itself was dismissed on merits. Thus, no order was also passed on the said
application. The review application filed by the appellant herein has been
dismissed by the High Court by reason of the impugned order.
The learned counsel appearing on behalf of the appellant merely
urged that this Court may issue a direction to the University to grant him the
degree as he has completed his courses of studies in the meantime.
Mr. Ravindra Kumar Adsure, learned counsel appearing on behalf of
the State and Mr. Makrand D. Adkar, learned counsel appearing for respondent
No.4-University, however, submitted that the appellant has not made out any
case for obtaining any relief from the High Court having failed to show his
bona fide.
It now stands admitted that the appellant did not belong to
'Halba' community. He was a Koshti. On verification of his caste certificate
the Vigilance Cell found that his school records clearly showed that the
appellant belonged to the Koshti community.
The question as regards invalidation of caste certificate came up
consideration before this Court in Kumari Madhuri (supra), wherein this Court
directed the Central Government and the State Governments to constitute Caste
Scrutiny Committees to go into such issues as and when they arise for
consideration. Indisputably, a finding of fact has been arrived at by the Caste
Scrutiny Committee against the appellant negativing his claim that he is a
member of Scheduled Tribes. However, the fact remains that he got himself
admitted in view of an interim order passed by the High Court. Indisputably,
the question as to whether 'Koshti-Halbas' are members of Scheduled Tribe or
not was authoritatively answered only in Milind (supra), which was decided on
28th November, 2000, wherein it was observed :
"Respondent 1 joined the medical course for the year 1985-86.
Almost 15 years have passed by now. We are told he has already completed the course
and may be he is practising as a doctor. In this view and at this length of
time it is for nobody's benefit to annul his admission. Huge amount is spent on
each candidate for completion of medical course. No doubt, one Scheduled Tribe
candidate was deprived of joining medical course by the admission given to
Respondent 1. If any action is taken against Respondent 1, it may lead to
depriving the service of a doctor to the society on whom public money has
already been spent. 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."
Yet again in R. Vishwanatha Pillai etc. vs. State of Kerala &
Ors. etc. [(2004) 2 SCC 105], a Three Judge Bench of this Court had the
occasion to deal with a similar issue. Following Milind (supra), this Court
held:
"In this case we find that the appellant had joined Regional
Engineering College in the year 1992. He completed the course of his studies in
the year 1996 under the interim orders of (sic the High) Court which were
subject to the final orders to be passed in the writ petition. No purpose would
be served in withholding the declaration of the result on the basis of the
examination already taken by him or depriving him of the degree in case he
passes the examination. In terms of the orders passed by the Constitution Bench
of this Court in State of Maharashtra v. Milind we direct that his
result be declared and he be allowed to take his degree with the condition that
he will not be treated as a Scheduled Caste candidate in future either in
obtaining service or for any other benefits flowing from the caste certificate
obtained by him. His caste certificate has been ordered to be cancelled.
Henceforth, he will be treated as a person belonging to the general category
for all purposes."
A different opinion, however, was struck in Bank of India &
Anr. vs. Avinash D. Mandivikar & Ors. [(2005) 7 SCC 690], wherein a Two Judge Bench
of this Court distinguished Milind (supra) and R. Vishwanatha Pillai (supra)
stating that protection given therein cannot be extended to an employee of a
Bank and, thus, the factors which weighed with this Court cannot be applied to
the respondent therein. The Court observed that in any event, if Respondent
No.1 had played fraud, he should not be allowed to get the benefits thereof.
The same learned Judge in Ram Saran (supra) held that leniency should not be
shown to a person who admittedly committed forgery.
The issue again came of up consideration in LIC of India vs. Sushil [(2006) 2 SCC 471],
wherein this Court remitted the matter back to the High Court observing that :
"Before us it was urged on behalf of Respondent 1 that in the
State of Maharashtra at the relevant time there were resolutions/government
orders which made the respondent believe that there was no fraudulent intention
in claiming to be Halba. Mr. Lalit, learned counsel for the respondent
submitted that none of these aspects (including various GRs) have been
considered. The High Court in the present case proceeded on the basis as if
mere filing of an undertaking in the line suggested by the writ petitioner was
sufficient to bring the case under the umbrella of the decision in Milind case.
That is clearly not so.
As the High Court has not considered the matter in its proper
perspective, except relying on Milind case we think it appropriate to remit the
matter to the High Court for a fresh consideration on merits of the case on the
grounds, if any, without being influenced by any observation in this
order."
Some peculiar characteristics exist in this case:
1) The appellant competed his substantial tenure as a student
under the interim orders passed by the High Court.
2) No opportunity of hearing was given to him by the Scrutiny
Committee at the first instance and his first writ petition was allowed.
3) Although, in the second writ petition, he could not obtain any
interim order, yet he was allowed to continue his studies without any demur by
the State and University authorities.
4) He filed an application after completion of his studies that
respondent No.4-University should be directed to issue to him the degree of
Bachelor of Engineering. No order was passed thereupon.
5) A review application was filed on the basis that the Bench did
not take into consideration the decision of this Court in Milind (supra).
A person indisputably is not entitled to a relief only because an
interim order was passed in his favour, but the premise on which such an
interim order was passed would assume some significance in the instant case in
so far as a presumption may be drawn that prima facie the appellant was not
considered guilty of commission of fraud and the possibility that the question
in regard to his status as a member of Scheduled Tribe as the issue as to
whether 'Koshti-Halbas' were members of Scheduled Tribe had not been finally
determined, was in the mind of the court. {See for example, Employees State
Insurance Corporation vs. Distilleries & Chemical Mazdoor Union & Ors. [2006 (7) SCALE 171].}
The appellant took his admission in the year 1998, i.e., prior to the decision
of this Court in Milind (supra). It is true that he had obtained his admission
in a professional institution not purely on the basis of his merits but on the
basis that he belonged to a reserved category. It is also true that thereby he
might have deprived a genuine student of reserved category from obtaining
admission, but, in a case of this nature, what is necessary to bear in mind is
the bona fide or otherwise of the appellant. He might not have semblance of
right as was observed by the High Court but as the learned counsel for the
appellant states that he might have been under a bona fide belief that
Koshti-Halbas were members of a Scheduled Tribe.
It is not in dispute that the Bombay High Court held so. However,
as it appears from the decision of this Court in LIC (supra) that the State
might have also issued some Government orders making such declaration.
Indisputably, the conduct of a party assumes significance in moulding the
relief. This court, while exercising its discretionary jurisdiction and to do
complete justice between the parties in terms of Article 142 of the Constitution
of India, must consider all relevant aspects of the matter, including the
decisions of this Court. The doctrine of proportionality emerging from the
recent trend of decisions in preference to the doctrine of Wednesbury
unreasonableness is also a factor which weighs with us. {See Teri Oat Estates
(P) Ltd. vs. U.T., Chandigarh & Ors. [(2004) 2 SCC 130] and A. Sudhakar vs. Post
Master General, Hyderabad & Anr. [2006 (3) SCALE 524].} We do not find any lack of bona fide on
the part of the appellant. He, it will bear repetition to state, got admission
in the professional course as far back in the year 1998. For about last three
years, he had not been able to receive his degree of Engineering, although, he
pursued his studies after he had passed class 12th examination. Just like
Medical Education, the State also incurs a heavy expenditure in imparting other
professional education like Engineering. We, in the peculiar facts and
circumstances of this case, are not inclined to go into the question as regards
purported commission of fraud by the appellant, particularly, when the
University admitted him without any demur whatsoever. We are doing so having
regard to the doctrine of proportionality. The appellant has suffered a lot. He
might not be entirely responsible therefor. He might have been under a bona
fide belief that he comes within the purview of notified category. We,
therefore, albeit with much reluctance accept the fervent and impassionate plan
made by the learned counsel appearing for the appellant that he be allowed to
obtain the degree. The same shall, however, be subject to payment of Rs.1 lakh
in favour of the State of Maharashtra so as to recompense the State to some
extent the amount spent on him for imparting education as a reserved category
candidate. Such payment must be made within three months from this date. On
filing satisfactory proof of the deposit of such an amount, the respondent No.4
shall immediately issue the degree in his favour. The appellant shall not claim
any benefit flowing from the caste certificate obtained by him, which shall
stand cancelled. In future, for all purposes he will be treated to be a person
belonging to the general category.
The appeal is allowed to the extent mentioned hereinbefore and on
the aforementioned terms. No costs.
Kerala Pattika Jathi Samrekshana ... vs
State Of Kerala And Ors. on 14 March, 1995
Equivalent citations: AIR 1995 Ker 337
Author: Shanmugam
Bench: M P Pillay, T Ramakrishnan, P
Shanmugam
JUDGMENT Shanmugam, J.
1. The petitioners have
preferred the Original Petition praying for a writ of certiorari, a writ of
mandamus and a declaration containing four prayers. The petitioners did not
press the prayers in respect of mandamus but have restricted their prayers to
(a) issue a writ of
certiorari to quash Exts. P1 to P4 and
(b) issue a declaration
that the change of caste in school records by substituting the name of
Scheduled Caste in the place of the name of caste or community coming under the
category of Other Backward Classes in school records is illegal and null and
void ab initio.
2. When the matter came
up before the Bench consisting of K..S. Paripoornan, J. (as he then was) and
K.P. Balanarayana Marar, J.
on 12-4-1991, the
Division Bench ordered that this matter requires indepth consideration and that
the impact and the result of this litigation has far reaching consequences
regarding the future of the Scheduled Castes and Scheduled Tribes in the State,
and in view of the public importance that is inherent in the very resolution of
the controversy posed before this Court and the substantial questions of law
that arise for consideration, the case was referred to the Full Bench.
3. I he two main
questions that arise for consideration before the Full Bench are;
(1)
What is the community status of
"Thandans"?
(2)
Whether the procedure prescribed for corrections of entries in the school
records under Exts. P2 to P4 is valid and if it is not valid, the consequences
of the corrections/ changes already made?
The
issue relating to the first question is fully covered by the Supreme Court
decisions which will be referred to later. Mr. K.V. Kumaran, learned counsel
for the petitioners made a detailed submission.
4. Briefly stated the
facts of the case are follows. The petitioners represent the Scheduled Caste
Community. In view of the special benefits provided for the Scheduled Castes by
the Government there has been an attempt on the part of the other backward
classes to masquerade themselves as Scheduled Castes and infiltrate into it
with a view to grab the constitutional concessions meant for Scheduled Castes
and consequently the genuine Scheduled Castes are deprived of the benefits.
According to him, by taking advantage of the procedure prescribed for
correcting the entries in the S.S. L.C. book and other school records under
Exts. P2 to P4 and on the strength of the reports and recommendations of Dr.
P.R.G. Mathur who was then the Director of the Kerala Institute for Research,
Training and Development Studies of Scheduled Castes and Scheduled Tribes, Calicut
(KIRTADS) hundreds and thousands of persons belonging to Ezhava/ Thiyya Caste
corrected their caste into that of Thandan Castes. According to him, Exts. P2
to P4 were designed to help the change of communities in the guise of
correction of entries. According to the learned counsel the orders in Exts. P3
and P4 are ultra vires of Rule 3, Chapter VI of the Kerala Education Rules,
1959 (hereinafter referred to as the Rules). He further contends that the
action of respondents I to 7 in facilitation, the change of caste are done in
violation of Articles 15, 16 and 46 of the Constitution of India.
5. The learned counsel
for the petitioners relying on various authors and anthropological reports,
submitted that Thandan caste never existed anywhere in former Cochin State or
Malabar District of the former Madras Province. According to him, in the social
hierarchy the Ezhava/Thiyya caste and the Scheduled Castes of Kerala including
Thandan caste stand poles apart. They are entirely different in tradition,
occupation, custom, behaviour, practice etc. Learned counsel submitted that the
headman among Ezhavas/Thiyyas used to be called Thandans but they are only
title holders and they cannot claim Scheduled Caste status. By relying upon
various facts and findings extensively extracted from the report submitted in
1992 by the Enquiry Committee constituted to submit a report on the real Caste
Status of Thandans of erstwhile Malabar area, learned counsel submitted that
there is no Thandans community as distinct from Ezhava/Thiyya in the erstwhile
Malabar District and in the Chittur Taluk or erstwhile Cochin, State. The
learned counsel further submits that there is no provision or power to change
the caste once it is entered in the school records and correct the same to a
different caste and the changes that were effected were only to suit the
conveniences of the individuals and to deprive the benefits of genuine
Scheduled Caste community. In as much as these changes that were effected are
illegal, they must be declared so by this Court.
6. Counsel for the
petitioners further stated that the 8th and 9th respondents and other impleaded
persons in their representative capacity have acquired eligibility to secure
seats in educational institutions and jobs in Government service in the quota
reserved for Scheduled Castes by correcting the entries in school records and
therefore, these changes effected should be declared null and void.
7. The petitioners had
filed C.M.P. No. 21017 of 1987 under Rule 152 of the Kerala High Court Rules
seeking to implead the 8th respondent in his own and also in the representative
capacity and the same was ordered by this Court.
8. On behalf of the 1st
respondent-State of Kerala, the Deputy Secretary to Government filed
counter-affidavit. The learned Govt. Pleader while reiterating the contention
raised in the counter-affidavit conceded for the prayer to declare the changes
effected in reference to castes as illegal, null and void. The Government
Pleader also submitted that the Government will reconsider all the community
certificates if so directed by this Court. Learned Government Pleader drew our
attention to a letter addressed by the Director of Scheduled Caste Development
dated 21-12-1985 (Ext. R1 (M). The said letter proceeds to state that a large
number of petitions were received in the office of the Director of Scheduled
Caste Development for change of community from Thiyya to Thandan, especially
from northen parts of Trichur District and Taluka of Alathur, Palghat and
Ottappalam of Palghat District. According to that letter, the present spate of
petitions arose after the declaration that Thandans are Scheduled Caste. There
were a large number of similar petitions during 1978-79 when the Government
issued orders stating that Thandans other than Ezhavas and Thiyyas as Scheduled
Castes. At that time many people who claimed themselves as Thiyyas or Ezhavas
in records like school register, S.S.L.C. Book etc. wanted their community to
be changed as Thandan other than Ezhavas or Thiyyas. They have no objection in
issuing community certificates to real Thandans but the change of caste is
really torpedoeing the real purpose and intention of Government orders. The
tendency to change community from Thiyya to Thandan is to circumvent the law
and snatch away the concessions which are presently enjoyed by the real
Thandans. According to the officer, an examinaion of the petitioners received
there reveals that in more than 90% of the petitions for change of community
from Thiyya/Ezhava to Thandan, the contention of the petitioner therein is that
they were admitted in the school as Thiyyas by mistake. On the same lines the
counter filed on behalf of the 1st respondent states that the 1st respondent
has experienced that hundreds and thousands of pseudoclaimants are enjoying the
benefits earmarked for the real scheduled castes and scheduled tribes and in
order to prevent this method of changes on the ground - of correction,
stringent provisions are made in Exts. P2 to P4. According to the Government
Pleader in majority of cases reported during the period 1979 to 1987 the
non-Scheduled Caste persons who had declared their caste name as Thiyya for the
purpose of academic records, managed to get the caste name corrected as
Thandan, on the basis of the so called anthropological reports of Dr. P.R.G.
Mathur, former Director of KIRTADS. For those incorrect reports Dr. P.R.G,
Mathur was removed from the Department, disciplinary action was initiated and
ultimately a penalty of withholding 1 / 3rd of pension was ordered. While
conceding that there were large scale infiltration of non-Scheduled Caste
people into Scheduled Caste Thandan the counter in para 15 states as follows:
"It is roughly
estimated that more than 18522 scheduled caste Thandan certificates have been
issued in North Cochin and South Malabar areas during 1980 to 1988. As many of
the files of revenue offices have been destroyed full details are not available
.....A list of persons who had got Scheduled Caste Thandan certificate after
showing their caste name as Thiyya/Thandan (OBC) in SSLC Book is produced as
Ext. R1(R). Another list of applicants belonging Ezhava/Thiyya community who
have been denied S.C. Thandan status, and applied for change of caste name of
SSLC Book is produced herewith as Ext. R.1(S)".
According to the
Government, the changes sought from Thiyya to Thandan is only to enjoy the
special benefits available to Scheduled Castes.
9. The learned
Government Pleader also very emphatically stated that Scheduled Caste Thandans
are different from title holder Thandans of Ezhava and Thiyya Community. In
conclusion the 1st respondent in para 15 states as follows;
"The 1st respondent
has no objection in declaring that the change of caste from
Thiyya/Ezhava/Thandan (OBC) to Thandan (S.C.) is illegal and null and void ab initio
as has been prayed for by the petitioners".
10. The learned
Government Pleader opposed the plea made on behalf of the petitioners that
Exts. P2 to P4 are ultra vires of the Kerala Education Rules. Learned
Government Pleader submitted that the procedure as prescribed under Exts. P2 to
P4 is intended to help genuine cases but it will not authorise the change of
community or status.
11. In particular
reference to Ext. P1 the counter in para. 19 states that the Government have no
objection in quashing Ext. PI as it is illegal and without jurisdiction. While
dealing with the prayer in reference to Ext. P1 the Government Pleader relies
on the reports of the detailed investigation and averments made in paras 5, 6,
and 8 of the counter. In all these paras the contention of the Government and
the learned Government Pleader is that the 8th respondent belongs to
Ezhava/Thiyya caste. He further argues that 8th respondent's father, his mother
and his father's four sisters and 8th respondents brothers all belong to Ezhava/Thiyya
community and they are recorded in their certificates as Ezhava. In para 6 of
the counter it is stated as follows:
"All the
consanguineal and lineal relatives of the 8th respondent are well placed
persons and better of financially. Almost all of them identify themselves as
Thiyyas. But a few like Sri. Haridasan (8th respondent) infiltrated into the
Scheduled Caste THANDAN folk. The anthropological investigation conducted as to
the three ascending and descending generations reveal that Sri. Appu (father of
8th respondent) actually belongs to the Thiyya community which is locally known
as Thandans. The genealogical chart is produced as Ext. R.1(G)".
In reference to the
order passed by the Joint Commissioner in Ext. PI the counter states that the proceedings
are null and void as it is repungnant to Rule 3 Chapter VI of K.E.R. Government
have not authorised the Joint Commissioner for Government Examinations to make
such an order and the said order was issued with ugly haste and in quite an
irresponsible manner. The real intention of the 8th respondent in getting his
caste name corrected in the SSLC Book from Thiyya to Thandan was to apply for
the post and if the 8th respondent had applied as Thiyya, he would not have
been selected in the general recruitment as he had passed the upper age limit.
The first respondent therefore, states that they have no objection to Ext. P1
being quashed as prayed for.
12. Smt. V. P.
Seemanthini, learned counsel for respondents 9 and 12 submitted that 12th
respondent is a society which* protects the interests of Thandans throughout
Kerala. The contention of the learned counsel is that Exts. P2 to P4 are intra
vires of the rules and are valid. According to her, the Government has got
jurisdiction and power under Article 162 of
the Constitution of India to issue executive instructions in reference to
education matters including correction of school records and SSLC book. She
submits that the provision for correction of any erroneous entries is a basic
fundamental requirement and any omission or commission on the part of certain
authorities cannot be a ground to invalidate the rules. She further submitted
that Rule 3 which enables the authorities to correct name, religion and date of
birth should include caste also. Religion must be given the widest meaning as
to include the caste also. Assuming the word "caste" is a deliberate
omission in the Rule, the procedure prescribed under Exts. P2 to P4 must be
deemed to be supplemental to the general power of the Government to allow
corrections in the school records in reference to caste also. Learned counsel
further pointed out that the Government has not taken up the stand that it is
beyond their power to issue such orders.
13. Smt. V.P.
Seemanthini further states that she is not pleading for Ezhava/Thiyya
communities or the title holder Thandans of the said communities. According to
her, she represents the Thandan Caste which is notified as Scheduled Caste as
per the present notification and that they are entitled to the Thandan caste
certificates. The title Thandan conferred on the headman of the Ezhava/ Thiyya
is entirely different from the community or case of Thandan which is notified
as a Scheduled Caste. Thandan is a distinct caste from Ezhava. Learned counsel
strenuously pleaded by referring to the reports and various authors that there
cannot be any doubt whatsoever about the existence of a distinct community
called Thandan in the erstwhile Maiabar district. According to her, the
petitioners as well as the Government have misconstrued their status and have a
wrong notion to the effect that Thandan caste never existed anywhere in former
Cochin State or Travancore State. The Enquiry Committee report referred to by
the petitioner is one sided, unreliable and was prepared without giving
opportunity to her clients. The Census report of 1891 clearly shows that
Thandan is a separate caste which existed in Palghat District. She has also
referred to Exts. R12(f), R. 12(g), R12(h), RI2(i), R12(j), R12(k) and R12(l)
to show that Thandan as a separate caste existed in Maiabar Districts. By
producing copies of entries from birth and death registers of the years 1903,
1930, 1956 and 1959 and the voters' list of the year 1952 and documents of 1941
and 1943 emphasised that Thandans, a separate and distinct caste, were found in
Maiabar District. She has pleaded that the Thandan community in Palakkad
District was discriminated and looked down suspiciously when they claimed
community certificates. The members of the Thandan community were forced to
approach the High Court repeatedly to get the community certificates and they
were compelled to seek judicial remedy in view of the hostile attitude towards
their community. When this Court in O.P. No. 2421 of 1982 directed that an
enquiry may be conducted by the Government of Kerala to find out whether there
is a community called Thandan distinct from Ezhavas in Palakkad District in
areas other than in the erstwhile Chittur and also in any oilier place in the
erstwhile Maiabar District, the Government appointed Dr. Ramachandra Raj,
Pofessor, Department of Sociology, University of Kerala as the officer to
enquire into the status of Thandans. The findings of the said officer was not
made known. The Palghat Jilla Thandan Samudaya Samrakshana Samithi and others
challenged the action taken by the Government in W.Ps. (Civil) Nos. 12486 and
12487 before the Supreme Court and the Supreme Court ordered stay of all
further proceedings. Even though subsequently the stay order was modified
allowing the Commission appointed by the Government to proceed with the work
and submit its reports, the State Government was prohibited form taking any
action on the report until the matter is finally decided by the Supreme Court.
The Government revived the appointment of the Enquiry Officer and substituted
the enquiry Officer with a committee. This, according to the learned counsel,
is only to get over the previous findings of Dr. Ramachandra Raj. Ultimately
the Supreme Court allowed the writ petitions and in the decision reported in
Palghat J.T. S.S. Samithi v. State of Kerala (1994) 1 Ker LT 118, held that the
Thandan community having been listed in the Scheduled Castes Order as it now
stands, it is not open to the State Government or, indeed, to the Court to
embark upon an enquiry to determine whether a section of Ezhavas/Thiyyas which
was called Thandan in the Maiabar area of the State was excluded from the
benefits of the Scheduled Castes Order. Strongly placing reliance on the judgment
of the Supreme Court she pleads that it is not open to the Government to treat
Thandans differently, whether they are in Maiabar area or anywhere else.
Learned counsel has made her stand clear by contending that it is not their
stand that Thandan is a section of Ezhava/Thiyya community. According to her
they are different and distinct from Ezhava/Thiyya community and Thandan is a
separate caste.
14. Learned counsel
further submits that in the light of the Supreme Court decision reported in
(1994) 1 Ker LT 118 the matter is fully covered and it is not open to the
petitioners to plead that there are no Thandan Caste people in Malabar area.
The Supreme Court has directed the State Government to grant to all the members
of Thandan community including those belonging to the erstwhile Malabar
district and the present Palakkad District the benefits due to the Scheduled
Castes. Therefore, it is not open to the petitioners to embark upon an enquiry
whether there is Thandan community in a particular area and whether they are
similar to Ezhava/Thiyya and whether they are entitled to get community
certificate or not. In reference to the allegations made against the 8th and
9th respondents, she submitted that the corrections were made after due enquiry
arid the same was made after strictly following the provisions contained in the
relevant Government orders.
15. Learned counsel
objected to the invoking of Rule 152 of the Kerala High Court Rules by the
petitioners to implead the 8th respondent in a representative capacity.
According to her there are innumerable persons who will be affected if the
declaration as prayed for is granted and such a general prayer affecting the
rights and interests of innumerable persons should not be allowed. Since the
addresses of these persons are known to the petitioners, they should have been
impleaded in their individual capacity.
16. Mrs. Seemanthini
while supporting corrections of caste entries in the school records from
Ezhava/Thiyya to Scheduled Caste, submits that mistakes have to be corrected
whenever it occurs. The fact that in school records, the community of some
persons were wrongly shown as Thiyyan, it will not in any way deny the right to
be treated as S.C. Thandan if they really belong to the caste. It should not be
looked as a change of caste but only as a correction of an error or mistake.
The same cannot be characterised as changing the caste. Learned counsel submits
that corrections validly made under relevant law during the relevant time
cannot be subsequently declared as illegal. All these corrections were made
only by following the procedure as prescribed. The learned counsel strongly
defended the reports submitted by. Dr. P.R.G. Mathur, who according to her is a
well known social Scientist and a renowned anthropologist of international
repute. She has referred to the qualifications of Dr. P.R.G. Mathur and
according to her, the findings of Dr. Mathur is based on scientific analysis.
By relying on the findings of Edgar Thurston and L.K.. Anantha Krsihna Iyer she
submitted that Thandan is a distinct caste living in the Malabar area.
According to her, the petitioners have no locus standi to challenge the
corrections made and prayed for the dismissal of Original Petition.
17. Mr. S.
Venkitasubramonia Iyer, learned counsel appearing for respondent No. 8
submitted that the Government cannot give up their own orders passed under Ext.
P1. According to the learned counsel there was no change of caste from Thiyya
to Thandan in order to enable the respondent to take the benefits of Scheduled
Caste. The 8th respondent originally belonged Thandan caste and he continues to
be a Thand an. There is was a mistake in the entry in the school records which
was corrected later. According to him, 8th respondent was appointed based on
merit and no Scheduled Caste candidate was deprived by virtue of his
appointments. Learned counsel submitted that Kerala Education Rules has nothing
to do with the sovereign executive power of the State. He also submitted that a
person is not born in a particular caste and the same can be changed. Learned
counsel by referring to Ext. R8(a) submits that even at the time of his
admission in the school on 21-6-1946 his caste was shown as Thandan. According
to him, father of 8th respondent, grand father and other ancestors have all
been members of Thandan community. The last page of document No. 68 of 1941 of
the Parali Sub Registrar's Office dated 19-12-1940 supports the said fact.
Based on the report of the Assistant Collector stating that 8th respondent
belongs to Scheduled Caste, O.P. No. 6215 of 1981 was ordered recording to the
said finding. He further submits that in O.P. No. 4506 of 1979, 8th
respondent's brother's son was declared to be member of the Thandan community.
He further submits that uncle of 8th respondent Sri K.V. Narayanan successfully
contested the 1960 general elections from the reserved constituency as Thandan.
The election petition was dismissed holding that he belongs to Thandan
community. He once again contested in 1965 from the reserved constituency.
There was a mistake in his S.S.L.C. certificate, which was corrected as early
as on 1-1-1979 (Ext. R8(e) after conducting necessary enquiries. The two
community certificates dated 31-1-1978 and 27-2-1978 marked as Exts. R8(f) and
R8(g) show that he belongs to Thandan community. According to the leaned
counsel there was no change in the community status of the 8th respondent.
18. In support of the
contentions of respondent No. 8 the learned counsel referred to the following
decisions : C.M. Arumugam v.
S. Rajgopal, 1976 (1) SCC 863 : AIR 1976 SC 939. In that case the
Supreme Court held as follows;
"When the Court
speaks of a caste, it does not mean to refer in this context to the four primary
castes, but to the multiplicity of castes and sub-castes which disfigure the
Indian social scene. A caste is a voluntary association of persons for certain
purposes. It is a well defined yet fluctuating group of persons governed by
their own rules and regulations for certain internal purposes. Castes are
formed based not only on community of religion, but also on community of
functions. A change in the occupation sometimes creates a new caste. A common
occupation sometimes combines members of different castes into distinct body
which becomes a new caste. Migration to another place makes sometimes a new
caste. A caste is more a social combination than a religious group."
The Supreme Court
further held that on re conversion to Hinduism, a person can once again become
a member of the caste in which he was born and to which he belonged before
conversion to another religion, if the members of the caste accept him as a
member. In the decision reported in Guntur Medical College v. Y. Mohan
Rao (1976) 3 SCC 411 : (AIR 1976 SC 1904) the Supreme Court
held that a person born of Scheduled Caste parents after their conversion to
Christianity can on conversion or reconversion to Hinduism be considered a
member of the Scheduled Castes. The next decision referred is of the Supreme
Court in Indra Sawhney v.
Union of India 1992 Supp (3) SCC 210 at page 525 paras, 452 and
453, (AIR 1993 SC 477), wherein it was held by Sawant, J. as follows:
"In view of the
above meanings ascribed to the terms, it can hardly be argued that caste is not
a class. A caste has all the attributes of a class and can from a separate
class. If, therefore, a caste is also a backward class within the meaning
of Article 16(4), there is
nothing in the said article or in any other provisions of the Constitution, to
prevent the conferment of the special benefits under that article on the said
caste. Hence it can hardly be argued that caste in no circumstances may form
the basis of or be a relevant consideration for identification of backward
class of citizens."
4 The last decision
cited by the learned counsel is in Khazan Singh v. Union of India,
AIR 1980 Delhi 60. In the said decision it has been held that on adoption the
adopted ipso facto acquires the caste of adoptive parents. On adoption as in
the case of a birth, the adoptee acquires the caste of the adoptive parents. In
the said decision in view of the fact that the adoptive father belongs to
Scheduled Caste, the grant of Scheduled Caste certificate to the adoptee
accepting adoption as basis was held to be valid.
19. The learned counsel
concluded his submission stating that the S.S.L.C. certificate is not a
certificate to determine the caste. Respondent No. 8 has overwhelming evidence
to prove from the original and ancient documents that he belongs to Thandan
community. Learned counsel further submits that the issue relating to the
community certificate of respondent No. 8 had already been concluded long time
back and it is not open to the petitioners to seek for setting aside the order
passed in the year 1978, after so many years. The Original Petition is liable
to be dismissed on the ground of laches.
20. In reply to the
submissions made on behalf of the respondents, the learned counsel for the
petitioners Mr. Kumaran submits that corrections in S.S.L.C. Book is one of the
methods for making false claims and based on this, persons belonging to O.B.C.
group were able to get community certificates as one belonging to Scheduled
Castes. In the reply affidavit filed by the petitioners it is stated that
instances like the case of the 8th respondent are numerous and the Scheduled
Castes in general suffer due to these false claims. Learned counsel further
submits that the 4th respondent is maintaining permanent records in his office
regarding change of castes and therefore, there will not be any difficulty in
giving notices to those candidates and enquire whether their claims are genuine
or not.
21. Learned counsel for
the petitioners submitted that in spite of the procedural stringency
contemplated by Exts. P2 to P4, thousands of persons have infiltrated into the
folk of Scheduled Castes by changing the caste in their S.S.L.C. book, as
admitted by the Government. The procedure laid down in Paras 3, 4 and 5 of Ext.
P2 order defeats the very purpose enunciated in paras 1 and 2 of Ext. P2, in as
much as it provides for change of caste, whereas the rule does not provide a
change of caste. The learned counsel by referring to the document cited by the
counsel for the 8th respondent states that they are not reliable. All these
documents are fabricated and ought not to be relied upon. According to the
counsel the material particulars relating to the documents are either absent or
misleading like for e.g. in Ext. R 8(a) in column 16 it is shown as VIIIth
Class, whereas it was only Forms during the relevant period. Similarly in Ext.
R8(e) there was no declaration as required but the endorsement reads that the
caste was corrected as per the orders of the Joint Commissioner dated
26-12-1978. Exts. R8(f) and R8(g) are not in the prescribed forms. Learned
counsel further submits that action has been taken vide G.O.Ms. No. 6/91 SC ST
DT dated 11-2-1991 on finding that Dr. P. R. G. Mathur has committed grave
dereliction of duties and callous indifference while making inconsistent and
conflicting statements on a substantive matter like caste status of Thandans of
erstwhile North Cochin and South Malabar. He wilfully helped to snatch away the
benefits intended for the downtrodden communities. The said charges have been
found to be proved by the Public Service Commission. However, the Government
after taking some lenient view ordered that 1/3rd portion of admissible pension
be withheld as a punishment for the charges. In view of the categorical
finding, the Government ought to have taken further action to set at naught the
reports issued by the said Officer and the consequential orders passed in
favour of the candidates. The learned counsel, therefore, seeks for a
declaration and also to quash Exts. P1 to P4.
22. We have gone through
the rival contentions, the relevant records and the documents carefully, The
Travancore and Cochin States were unified in 1949 and on coming into force of
the Constitution the Travancore-Co chin (Part B) State was formed. Under the
Presidential Order made in the year 1950, under Article 341 of the
Constitution, Thandan Caste in the Travancore-Cochin State was included as one
of the Scheduled Castes or Tribes at serial No. 22. The Order of the President,
in so far as the then State of Madras is concerned, did not include Thandan
Caste as one of the Scheduled Castes in that State. Consequent on the
re-organisation of the States by the States Re-organisation Act, 1956 (Central Act 37 of
1956), the Travancore-Cochin State and the Malabar District were integrated to
form Kerala. After the re-organisation of States, the President promulgated the
Scheduled Castes and Scheduled Tribes list (Modification) Order dated 29th
October, 1956. In this Order, the Travancore-Cochin and Madras lists of 1950
were adopted for Kerala State. That means, the Thandan Community was treated as
a Scheduled Caste of Kerala only in the erstwhile parts of Travancore-Cochin,
excluding Malabar with effect from 1-11-1956. This position continued upto
1976. The Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976 (Act
108/1976) which came into force on 27-7-1977 specifies Thandan as item 61. The
effect of the amendment is to regard the members of the Thandan Caste as a
Scheduled Caste for the entire State of Kerala. It is the contention of the
petitioners which was conceded by the 1st respondent-State Government that
taking advantage of the inclusion of Thandans as a scheduled caste from the
year 1976, a section of the Ezhavas/Thiyyas of Malabar area and certain Taluks
of Trichur District are claiming to be Thandas and they are not entitled to be
treated as Scheduled Caste Thandans for the purpose of benefits under Articles
15 and 16 of the Constitution of India. The said question was squarely
considered by the Supreme Court in the decision reported in (1994) 1 Ker LT 118
and the Supreme Court directed the State Government to grant to all members of
the Thandan community including those belonging to the erstwhile Malabar
District and the present Palghat District, the benefits due to a Scheduled
Caste included in the Schedule to the Consitution Scheduled Castes Order as
amended upto date and to issue to them community certificates accordingly. The
Supreme Court has also categorically held that it is not open to the State
Government or to the Supreme Court to embark upon an enquiry to determine
whether a sections of Ezhavas/Thiyyas which was called Thandan in the Malabar
area of the State was excluded from the benefits of the Scheduled Castes Order.
It is also the admitted case of respondent No. 12 viz. the Kerala Thandan
Service Society that they are the real Thandans and they do not belong to a
section of Ezhava/Thiyya community. Therefore, in so far as the status of
Thandans is concerned, the contention of the petitioners as well as the
Government that all Thandans in Malabar area are title holders of Ezhava/
Thiyya community and they are not the genuine Thandans, cannot be countenanced.
The Supreme Court in Srish Kumar
Choudhury v. State of Tripura, AIR 1990 SC 991 held Presidential
notification regarding entries in the Order is final and it is not open to the
Court to make by addition or substraction. A Constitution Bench of Supreme Court
in B. Basavalingappa v. D. Munichimappa,
AIR 1865 SC 1269 held that it is not open to anybody to make any modification
of the Presidential Order. On the same lines the Supreme Court in Abhoy Pada Saha v. Sudhir Kumar,
AIR 1967 SC 115 and Kishorilal Hons
v. Raja Ram Singh, AIR 1972 SC 598 held that there is no scope for
interpreting the Presidential Order in a different way. A Division Bench of
Madras High Court in Karibeeran K. L. President, North Arcot Kurumans Kula
Sangam etc. v. State of Tamil Nadu, 1994 Writ LR 433 following the Supreme
Court decisions held that there cannot be any addition to or substraction from
the Presidential Order excepting by a Parliamentary enactment passed
under Article 342(2) of
the Constitution of India. In the light of the Supreme Court decisions referred
to above, the inclusion of a particular community in the Presidential Order
cannot be enquired into. The Supreme Court itself in (1994) 1 Ker LT 118 has
laid down that the State Government is 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 medication was required, an amendment could be undertaken as
provided by the Constitution. However, 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. Therefore, the contention of the petitioners that the Thandas in
Malabar area are only a section of the Ezhara/Thiyya community and are not the
real Scheduled Caste, canno? stand a moment's scrutiny and the first question
is answered accordingly against the petitioners.
23. Coming to the second
question whether Exts. P2 to P4 viz. the procedure prescribed for correcting
the entries in school records are valid, Chapter VI of the Kerala Education
Rules, 1958 deals with the admission, transfer and removal of pupils. Rule 2
deals with admission register wherein it is provided that the admission
register shall be in Form No. 4 and that pupil's name, date of birth, religion,
community and other particulars shall be entered in the admission register and
attested by the Head-master. Rule 3 which is the relevant provision is
extracted below :
"3. Alteration of
Date of Birth etc. -- (1) The name of a pupil, his religion and his date of
birth once entered in the Admission Register shall not be altered except with
the sanction of the authority specified by Government in this behalf by
notification in the gazette. Applications for such alterations and corrections
should be submitted by the parent or guardian, if the pupil is still on the
rolls of any school, and by the pupil himself if he is not on the roils of any
school. All such applications shall be forwarded through the Headmaster with
satisfactory evidence. Court fee stamps to the value of One Rupee shall be
affixed on such application.
(1A) A time limit of
fifteen years from the date of leaving the school or the date of appearing for
the S.S.L.C. Examination for the last time whichever is earlier is fixed for
entertaining requests for correction of date of birth in school records by the
Commissioner of Government Examinations.
Note : The Government
shall consider requests for condonation of delay in making application for
correction of date of birth in school records, in deserving cases, on merits,
provided that the applicant is within 50 years of age as per the original entry
in the school records.
(2) If the authority
referred to in Sub-rule (1) is satisfied after necessary enquiries that the
change applied for could be granted, he will issue an order to make the
alteration. The alteration shall then be made in the Admission Register and the
other connected records of the schools previously attended by the pupil as well
as in the school in which he was studying at the time.
(3) An appeal shall lie
to Government against the orders of the authority referred to in Sub-rule (1)
within one month of the receipt of the order appealed against :
Provided that the
appellate authority may entertain the appeal after the expiry of the said
period, if he is satisfied that the appellant had sufficient cause for not
submitting the appeal in time.
(4) If any change of
name is sanctioned after the issue of a public Examination Certificate, the
candidate concerned shall notify the change in name in the Gazette and the
notification shall be attached to his certificate."
24. The main contention
of the petitioners is that while the said rule provides for alteration of name,
religion and date or birth, it does not provide for alteration of a caste.
However, Ext. P2 while noting in the preamble portion that only minor
corrections can be allowed and that substitution of caste cannot be allowed,
provided the procedure for changing caste in paras 2, 3 and 4. Ext. P3 order
while referring to Rule 3, required for an official gazette notification in the
case of changes in castes etc. Similarly Ext. P4 while modifying the previous
orders directed that no changes in the original entry shall be made and the
notification shall be attached to S.S.L.C./Extract of admission register of the
individual concerned. The corrections in the admission register and the school
records forms part of the basic document for making entries in the S.S.L.C. The
Government of Kerala has authorised the District Educational Officers competent
to sanction the alterations in the name and religion of pupils and the
Commissioner for Government Examinations with regard to the date of birth of
pupils by gazette notification dated 9-6-1959 and G.O. (P) 2-75-G. Edn. dated
1-1-1975. In column 8 of the application for admission (Form 3) the pupil is
required to specify the religion and under column 10 the pupil is required to
mention his community. Under the column "Religion" it is invariably
the religion with the community is given. However, it is not obligatory to give
the name of the caste. But in cases where caste is entered along with the
religion and in cases of any error in that entry, the only way the said error
can be corrected is as per the procedure prescribed under the rules and the
orders issued by the Government. Even though the rules do not specifically
mention about the caste for the purpose of alteration and correction when the
name, date of birth and religion can be corrected and altered on the ground
either a wrong entry or subsequent changes, it stands to reason that any entry
relating to caste in the admission register should also be permitted to be
changed in case of an error or mistake.
25. Assuming that Rule 3
does not provide for alteration or correction it would not mean that the
Government has no jurisdiction to provide for alteration or correction in
reference to castes. The right of the State Government to frame Rules in the
absence of any statutory provisions has been recognised beyond doubt. It has
been held in Bishamber Dayal
Chandra Mohan v. State of U.P., AIR 1982 SC 33 that if there is no
enactment covering a particular aspect, the Government can carry on the
administration by issuing administrative directions or instructions until the
Legislature makes a law in that behalf, as otherwise the administration would
come to a standstill. It was further clarified by the Supreme Court in the
decision reported in State of Sikkim
v. Dorjee Tshering Bhutia, AIR 1991 SC 1933 wherein the Supreme
Court held that the executive power of the State under Article 162 of the
Constitution of India extends to the matters with respect to which the
Legislature of the State has power to make laws. The Government business is
conducted under Article 166(3) of
the Constitution of India in accordance with the Rules of Business made by the
Governor. Under the said Rules the Government business is divided amongst the
ministers and specific functions are allocated to different ministries. Each
ministry can, therefore, issue orders or notifications in respect of the
functions which have been allocated to it under the Rules of Business. In the
light of the above decisions, the Government orders prescribing the procedure
followed under Exts. P2, P3 and P4 are sustainable. They cannot be held to have
been framed beyond the scope of Rule 3. What is left out in Rule 3 was supplemented
by these Government orders for which the Government has ample authority and
jurisdiction. These instructions are also reasonable in as much as the
Government should have the power to rectify the corrections or to make
alterations, if necessary, under the circumstances of the case. Ample safeguard
is provided for making enquiry by a completent authority to satisfy itself as
to the claims of corrections and alterations. In this view of the matter, we
hold that Exts. P2, P3 and P4 are valid.
26. While sustaining the
validity of the procedure prescribed for alterations and changes, it has to be
understood that the power to correct or alter the entries made in the school
records should not be exercised so as to effect change in the caste of the
candidates. As a matter of fact, it is conceded by the respondents that only in
cases of genuine errors and mistakes the provisions should be invoked and in
the case of corrections and alterations there should not be any scope for
change of caste. If there is any misuse of power taking advantage of the
provisions, the same has to be declared as illegal. It is a matter of concern
as evidenced by the counter affidavit of the first respondent, in paragraph 12,
that in majority of cases reported during the period from 1979 to early 1987,
the non-Scheduled Caste persons who had declared their caste name as Thiyya for
the purpose of academic records, managed to get the caste name corrected as
Thandan on the basis of the so called anthropological reports of Dr. P. R. G.
Mathur former Director of KIRTADS. The Government has also produced a list of
persons who had got Scheduled Caste Thandan Certificates after showing their
caste name as Thiyya/Thandan (O.B.C.) in the S.S.L.C. book under Ext. R1(R) and
another list, Ext. R1 (S), of persons who have applied for change of caste. The
first respondent has stated in paragraph 15 of the counter affidavit that it
has no objection in declaring that the change of the caste from
Thiyya/Ezhava/Thandan (O. B. C.) to Thandan (S.C.) is illegal and null and void
ab initio as has been prayed for by the petitioners. The Director of Scheduled
Caste Development in his communication addressed to the Secretary to Government
dated 21-11-1985 (Ext. R1 (M)) has brought to the notice of the Government that
there is a tendecy to change the community from Thiyya to Thandan in order to
circumvent the law. It has also been pointed out in the said letter that on
examination of the petitions received reveals that in more than 90% of the
petitions for change of community from Thiyya/Ezhava to Thandan, the contention
of the petitioners is that they were admitted in the school as Thiyyas by
mistake.
27. 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 afidavit 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. We make it clear that
first respondent is free to lay down any cut off date for scrutiny taking note
of the entire aspects of the problem since it is upto it to expose in correct
nature of the correction already effected with reference to reliable facts and
circumstances. In the facts and circumstances of the case, we are of the view
that we will not be justified in granting a declaration as prayed for by the
petitioners declaring all the certificates en masse illegal and void ab initio.
We would accordingly confine the relief to the limited declaration made above.
28. In that view of the
matter, now we have to consider the prayer (d) in the original petition, viz.,
to declare the changes of caste as illegal. The Supreme Court in the decision
reported in Kumari Madhuri
Patil v. Addl. Commissioner, Tribal Development, (1994) 6 SCC 241 ;
(1994 AIR SCW 4116) has issued directions in reference to caste certificates.
In the said decision, the Supreme Court was dealing with cancellation of the
social certificate issued by the Executive Magistrate. In paragraph 9, the
Supreme Court was pleased to point out as follows (Para at, p. 4124 of AIR SCW)
:--
"The Union of India
and the State Governments have prescribed the procedure and have entrusted duty
and responsibility to Revenue Officers of gazatted cadre to issue social
statuts certificate, after due verification. It is common knowledge that
endeavour of States to fulfil constitutional mandate of upliftment of Scheduled
Castes and Scheduled Tribes by providing for reservation of seats in
educational institutions and for reservation of posts and appointments, are
sought to be denied to them by unscrupulous persons who come forward to obtain
the benefit of such reservations posing themselves as persons entitled to such
status while in fact disentitled to such status".
The Supreme Court
further proceeded to hold as follows (Para 9, at p. 4175 of AIR SCW) :--
"The entries in the
school register preceding the Constitution do furnish great probative value to
the declaration of the status of a caste. Hierarchical caste stratification of
Hindu social order has its reflection in all entries in the public
records".
It was further held that
(Para 10, at p.4126 of AIR SCW) :
"The caste of the
person, as stated earlier, is determined on the basis of the caste of their
parents, basically for the reasons that the caste is acquired by birth".
While setting aside the
order passed by the High Court and confirming the report and findings of the
scrutiny committee and the Additional Commissioner, the Supreme Court has laid
down an elaborate procedure for the issue of a social certificate and of its
verification in paragraph 13 (of SCC) : (para 12 of AIR SCW) which is as
follows :
"13. The admission
wrongly gained or appointment wrongly obtained on the basis of false social
status certificate necessarily has the effect of depriving the genuine
Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the
Consitution of the benefits conferred on them by the Constitution. The genuine
candidates are also denied admission to educational institutions or
appointments to office or posts under a State for want of social status
certificate. The ineligible or spurcious persons who falsely gained entry
resort to dilatory tactics and create hurdles in completion of the inquiries by
the Scrutiny Committee. It is true that the applications for admission to
educational institutions are generally made by a parent, since on that date
many a time the student may be a minor. It is the parent or the guardian who
may play fraud claiming false status certificate. It is, therefore, necessary
that the certificates issued are scrutinised at the earlier and with utmost expedition
and promptitute. For that purpose, it is necessary to streamline the procedure
for issuance of social statuts certificates, their scrutiny and their approval,
which may be the following :
1. The application for
grant of social status certificate shall be made to the Revenue Sub-Divisional
Officer and Deputy Collector or Deputy Commissioner and the certificate shall
be issued by such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian
or the candidate, as the case may be, shall file an affidavit duly sworn and
attested by a competent gazetted officer or non-gazetted officer with
particulars of castes and sub-castes, tribe, tribal community, parts or groups
of tribes or tribal communities, the place from which he originally hails from
and other particulars as may be prescribed by the Directorate concerned.
3. Application for
verification of the caste certificate by the Scrutiny Committee shall be filed
at least six months in advance before seeking admission into educatinal
institution or an appointment to a post.
4. All the State
Governments shall constitute a Committee of three officers, namly, (1) an
Additional or Joint Secretary or any officer higher in rank of the Director of
the department concerned, (II) the Director, Social Welfare/Tribal
Welfare/Backward Class Welfare, as the case may be, and (III) in the case of
Scheduled Castes another officer who has intimate knowledge in the verification
and issuance of the social status certificates. In the case of the Scheduled
Tribes, the Research Officer who has intimate knowledge in identifying the
tribes, tribal communities, parts of groups of tribes or tribal communities.
5. Each Directorate
should constitute a givilance cell consisting of Senior Deputy Superintendent
of Police in over-all charge and such number of Police Inspectors to
investigate into the social status claims. The Inspector would go to the local
place of residence and original place from which the candidate hails and
usually resides or in case of migration to the town or city, the place from
which he originally hailed from. The vigilance officer should personally verify
and collect all the facts of the social status claimed by the candidate or the
parent or guardian, as the case may be. He should also examine the school
records, birth registration, if any. He should also examine the parent,
guardian or the candidate in relation to their caste etc. or such other persons
who have knowledge of the social status of the candidate and then submit a
report to the Directorate together with all particulars as envisaged in the pro
forma, in particular, of the Scheduled Tribes relating to their peculiar
anthropological and eithnological traits, deity, rituals, customs, mode of
marriage, death ceremonies, method of burial of dead bodies etc. by the castes
or tribes or tribal communities concerned etc.
6. The Dirctor
concerned, on receipt of the report from the vigilance officer if he found the
claim for social status to be "not genuine" or "doubtful"
or spurious or falsely or wrongly claimed, the Director concerned should issue
show-cause notice supplying a copy of the report of the vigilance officer to
the candidate by a registered post with acknowledgement due or through the head
of the educational institution concerned in which the candidate is studying or
employed. The notice should indicate that the representation or reply, if any,
would be made with in two weeks from the date of the receipt of the notice and
in no case on request not more than 30 days from the date of the receipt of the
notice. In case, the candidate seeks for an opportunity of hearing and claims
an inquiry to be made in that behalf, the Director on receipt of such
representation/reply shall convene the committee and the Joint/Additional
Secretary as Chairperson who shall give reasonable opportunity to the
candidate/ parent/guardian to adduce all evidence in support of their claim. A
public notice by beat of drum or any other convenient mode may be published in
the village or locality and if any person or association opposes such a claim,
an opportunity to adduce evidence may be given to him/it. After giving such
opportunity either in person or through counsel, the Committee may make such
inquiry as it deems expedient and consider the claims vis-a-vis the objections
raised by the candidate or opponent and pass an approprate order with brief
reasons in support thereof.
7. In case the report is
in favour of the candidate and found to be genuine and true, no further action
need be taken except where the report or the particulars given are procured or
found to be false or fraudulently obtained and in the latter event the same
procedure as is envisaged in para 6 be followed.
8. Notice contemplated
in para 6 should be issued to the parents/guardian also in case candidate is
minor to appear before the Committee with all evidence in his or their support
of the claim for the social status certificates.
9. The inquiry should be
completed as expeditiously as possible preferably by day-to-day proceedings
within such period not exceeding two months. If after inquiry, the Caste
Scrutiny Committee finds the claim to be false or spurious, they should pass an
order cancelling the certificate issued and confiscate the same. It should
communicate within one month from the date of the conclusion of the proceedings
the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay
in finalising the proceedings, and in the meanwhile the last date for admission
into an educational institution or appointment to an officer post, is getting
expired, the candidate be admitted by the Principal or such other authority
competent in that behalf or appointed on the basis of the social status
certificate already issued or an affidavity duly sworn by the parent/ guardian/candidate
before the competent officer or non-official and such admission or appointment
should be only provisional, subject to the result of the inquiry by the
Scrutiny Committee.
11. The order passed by
the Committeed shall be final and conclusive only subject to the proceedings
under Article 226 of
the Constitution.
12. No suit or other
proceedings before any other authority should lie.
13. The High Court would
dispose of these cases as expeditiously as possible within a period of three
months. In case, as per its procedure, the writ petition/miscellaneous
petition/matter is disposed of by a single Judge, then no further appeal would
lie against that order to the Division Bench but subject to special leave
under Article 136.
14. In case, the
certificate obtained or social status claimed is found to be false, the
parent/guardian/the candidate should be prosecuted for making false claim. If
the prosecution ends in a conviction and sentence of the accused, it could be
regarded as an offence involving moral turpitude, disqualification for elective
posts or offices under the State or the Union or elections to any local body,
legislature or Parliament.
15. As soon as the
finding is recorded by the Scrutiny Committee holding that the certificate
obtained was false, on its cancellation and confiscation simultaneously, it
should be communicated to the educational institution concerned or the
appointing authority by registered post with acknowledgement due with a request
to cancel the admission or the appointment. The Principal etc. of the
educational institution responsible for making the admission or the appointing
authority, should cancel the admission/appointment without any further notice
to the candidate and debar the candidate from further study or continue in
office in a post."
The Supreme Court
ultimately held that the procedure set out above could be fair and just and
shorten the undue delay and also prevent avoidable expenditure for the State on
the education of the candidate admitted/appointed on false social status or
further continuance therein, every State concerned should endeavour to give
effect to it and see that the constitutional objectives intended for the
benefit and advancement of the genuine Scheduled Castes/Scheduled Tribes or
backward classes, as the case may be are not defeated by unscrupulous persons.
While it is mandatory for the State Government to constitute a committee as per
the directions of the Supreme Court and follow the procedure as laid down, the
same committee shall go into the claims of the caste status of those persons
who had corrected their caste names from the school records and got a community
certificate on that basis. It is admitted that the Government is maintaining a
register containing the names of those persons who got the community
certificates by claiming changes or corrections in the earlier certificates.
All these changes which have been effected have to be reopened for the purpose
of verification by the committee referred to above. Accordingly, prayer (d) in
the original petition is allowed to the extent that the change of caste in
school records by substituting the name of Scheduled Caste in the place of the
name of Caste or Community coming under the category of other backward classes
in school records are to be verified by the Committee and should be confirmed
whether those caste status is genuine or not and issue an order to that effect
in respect of a particular candidate to the concerned institution or authority
for necessary action. The whole exercise of this verification should be
completed within a period of one year from the date of this order.
29. Learned counsel
appearing for the respondents made a plea that consequent on the changes of
caste status many of the persons would have been undergoing the study or may be
in services. Pending investigation and verification, if their course of study
or services are disturbed, they will be put to serious hardship. We find force
in the said contenton. Therefore, we make it clear that during the pendency of
investigation or verification, the status quo will be maintained.
30. In reference to the
prayer to quash Ext. P1 wherein the 8th respondent, Shri P. A. Haridasan by an
order dated 26-12-1978 has got sanction for correction of caste as Thandan in
all the school records, we have considered the arguments made on behalf of the
8th respondent and also the contention of the Government and the petitioners.
While the Government in the counter affidavit conceding that they have no
objection to quash Ext. P1 order, stated the order is illegal and without
jurisdiction. In paragraphs 5. 6. 7 and 8 the Government has given an elaborate
account to establish as to how the 8th respondent does not belong to Thandan
caste. Whereas Ext. R8 (a), the admission register shows that he belongs to
Thandan caste and the date of admission is 21-6-1946. Further 8th respondent's
father, grand father and other ancestors have all been members of the Thandan
community. The first page of document No. 68 of 1941 is produced as Ext. R8(b)
to substantiate the said contention. Learned counsel appearing for R8 claims
that the 8th respondent has always been a Thandan by birth and he continues to
be so. His ancestors belonged to the same community and they never changed
their caste. The uncle of the 8th respondent has successfully contested in the
1960 general elections in the reserved constituency as Thandan. The defeated
candidate filed an election petition on the ground that the uncle of the 8th
respondent was a Thandan and hence he was not eligible to contest from the seat
reserved for Scheduled Caste. That petition was dismissed holding that the
uncle of the 8th respondent belonged to Thandan community and that community
belongs to the Scheduled Castes. When a mistake in the SSLC. book has crept and
his caste was wrongly shown as Thiyya, he moved the authority for correction
and the same was corrected by Ext. P1. These contesting claims and disputed facts
as to the caste status of Rule 8 cannot be decided under Article 226, By the very
nature of the claim it has to be enquired into by taking into the various
documents, reports, evidence and other relevant materials.
31. The decisions
reported in C. M. Arumugam S. Rajgopal, (1976) 1 SCC 863 : (AIR 1976 SC
939); Gumur Medical
College v. Y. Mohan Rao, (1976) 3 SCC 411 : (AIR 1976 SC 1904) andKhazan Singh v. Union of India,
AIR 1980 Delhi 60, relied upon by the counsel for respondent No. 8, in our
view, arc not relevant to the facts and circumstances of the case. The
Constitution Bench of the Supreme Court in their decision in Indra Sawhney v. Union of India,
1992 Supp (3) SCC 210 : (AIR 1993 SC 477) including the portion referred to by
the counsel for R 8 has conclusively decided the status of a castes. Justice
Jeevan Reddy giving the leading judgment in paragraph 778-B referred to the
decision reported in K. C. Vasanth
Kumar v. State of Karnataka. 1985 Supp SCC 714 : (AIR 1985 SC (495)
for the purpose of the definition of caste. In the said decision, Justice
Venkataramiah defined the caste in the following manner :
"A caste is an
association of families which practices the custom of endogamy i.e. which
permits marriages amongst the members belonging to such families only. Caste
rules prohibit its members from marrying outside their caste..... A caste is
based on various factors, sometimes it may be a class, a race or a racial unit.
A caste has nothing to do with wealth. The caste of a person is governed by his
birth in a family. Certain ideas of ceremonial purity are peculiar to each
caste..... Even the choice of occupation of members of caste was predetermined
in many cases, and the members of a particular castes were prohibited from
engaging themselves in other types of callings, professions or occupations.
Certain occupations were considered to be degrading or impure".
Justice Jeevan Reddy in
paragraph 779 held as follows :
"The above matrials
makes it amply clear that a caste is nothing but a social class -- a socially
homogeneous class. It is also an occupational grouping, with this difference
that its membership is hereditary. One is born into it. Its membership is
involunatory".
While summarising the
answers to the various questions in paragraph 859, Justice Jeevan Reddy
expressed their view in sub para (3) as follows :
"A caste can be and
quite often is a social class in India. If it is backward socially, it would be
a backward class for the purpose of Article 16(4). Among
non-Hindus, there are several occupational groups, sects and denominations,
which for historical reasons, are socially backward. They too represent
backward social collectivities for the purposes of Article 16(4)".
In the same paragraph,
it is further held as follows :
"Since caste
represents an existing, identifiable social group/class encompassing an
overwhelming minority of the country's population, one can well begin with it
and then go to other groups, sections and classes".
Caste of a person is
determined by his birth and further that the caste is considered as a class for
the purpose of reservation under Article 16(4) of the
Constitution of India. There is absolutely no scope for a change in the status
of the cast. A person cannot be allowed to change his caste. It cannot be the
choice or an option of an individual to belong to a particular caste. A caste
is classified as backward class for the purpose of reservation. Therefore, a
person cannot be allowed to change the caste. If so permitted it would be
defeating the very purpose for which the classification is made. The adoption,
marriage and conversion of faith of individual from one caste to another as
permitted by the Law of Adoption or marriage have no relevance for the purpose
of claiming the benefit of reservation under Article 16(4) of the
Constitution of India. The decision relied upon by the learned counsel for the
8th respondent reported in AIR 1980 Delhi 60 is not a good law in the light of
various decisions on the point in issue. The other decisions referred by the
learned counsel dealing with re-conversion and thereafter claiming the benefits
of his original caste have no relevance to the facts and circumstances of our
case. On the contrary a Division Bench in D. Neelima v. Dean P. G. Studies A.P.
Agri. University, Hyderabad, AIR 1993 Andh Pra 229 held that a Hindu
caste girl marrying a ST. boy will not be entitled to the benefit of
reservation merely because of marriage. In K. Shantha Kumar v. State of
Mysore, 1971 (1) Mys LJ 21 it was held that by adoption the adoptee
cannot destroy or nullify the advantage of the environmental conditions of his
upbringing for 16 years by his natural parents and claim the benefits of reservation.
Another decision of Delhi High Court in Mrs. Urmila Ginda v. Union of India,
AIR 1975 Delhi 115 held that a change of religion for the purpose of claiming
reservation is invalid. We have also in Valsamma Paul v. Cochin University,
W.A. No. 187 and 416 of 1992 dated 18-1-1995 has held as follows :
"Therefore, in our
view, it is not open to the appellant to contend that by marriage a person can
become a member of that community. It is clear, based on the principles laid
down by the Supreme Court, that a person cannot become a member of the
community by choice. Latin Catholic community is treated as a class based on
their backwardness and also on the ground that they are not adequately
represented compared to that of forward groups including that of Syrian
Christians. It will be defeating the very purpose of reservation if one is
permitted to be included into a backward class".
32. Besides, the 8th
respondent in his rejoinder has stated as follows : "A caste is decided by
birth and not by claims made by individual or any mistake committed by anybody
in entering the caste name in the S.S.L.C. Certificate". He again in
paragraph 10 says that "Caste cannot be changed at all. Religion of a
person can be changed by way of conversion. There is no way to change one Hindu
caste to another Hindu caste. The caste is decided by birth and is
hereditary". In the light of these categorical averments, it is not open
to the 8th respondent to take a different stand. The contention of the 8th
respondent is that he was born as Thandan and continues to live as Thandan. He
has not changed his caste. He had only corrected the wrong entry made in the
S.S.L.C. book. He has also admitted that he got relaxation in age by virtue of
caste status.
33. In view of the
serious divergent claims and documents adduced and contradicted by the
petitioners, 8th respondent and 1st respondent, we find it proper and necessary
that the caste status of the 8th respondent has also to be referred to the
committee for investigation and verification to find out as to the genuineness
of his claim. It has also been pointed out on behalf of the 8th respondent that
by virtue of the Government orders made in G.O. (MS) No. 107/76/G. Edn. dated
12-6-1976, if a mistake is caused by the clerical error it can be got corrected
with the sanction of the Joint Commissioner for Government Examinations as per
the delegation of powers. However a reading of Ext. P 1 makes it appear as
though it is a community certificate. Before the issue of G.O.63/79/ PD. dated
16-4-1979 minor corrections in the spelling and pronunciation of the names
alone were permitted and substitution of communities were not envisaged.
Assuming Rule 3 of K.E.R. enables the correction, no proper enquiry appears to
have been conducted, excepting the marking of the Thasildar's certificate. The
Government has conceded that Ext. P 1 order was issued in ugly haste and
without jurisdiction and therefore Ext. P 1 order cannot be sustained. Though
the order was of the year 1978, respondent No. 8's appointment based on the
said correction was subject matter of controversy and hence it did not become
concluded. We are therefore of the view that the caste status of the 8th
respondent has also to be referred for investigation and verification by the
committee along with the other caste certificate which were based on corrected
certificates. In view of the directions made above, no further orders are
necessary in reference to Ext. P 1.
34. We summarise our
conclusions as follows :
1. The question relating
to status of Thandans is covered by the Supreme Court judgment (1994 (1) KLT
118) that all members of Thandan community throughout Kerala State are to be
treated as a Scheduled Caste.
2. It is not open to
this Court to go into the question and decide whether Thandan community is in
existence in a particular area or not.
3. The procedure
prescribed for alteration and correction of caste under Exts. P 2 -- P4 are valid.
4. The committee is to
investigate and verify the caste status certificates of those persons who had
obtained them based on the corrected entries of school records as per the
procedure set out by the Supreme Court in their decision Kumari Maduri Patel v. Addl.
Commissioner (1994 AIR SCW 4116) (Vide para 28 of the judgment).
5. The finding of the
committee should be communicated to the educational institutions concerned or
the appointing authority for suitable action if necessary.
35. With the result,
Original Petition is ordered with a direction set out above. In the
circumstances of the case, there is no order as to costs.
