IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 707 of 2009(H) 1. DR.C.VELAYUDHAN, CHEERAMKUNNATH HOUSE, Petitioner Vs 1. STATE OF KERALA, REP. BY THE Respondent 2. THE SCRUTINY COMMITTEE FOR VERIFICATION 3. THE DIRECTOR OF KIRTDAS, 4. THE DIRECTOR OF INDIA SYSTEMS OF 5. THE DIRECTOR GENERAL OF POLICE, 6. THE SUPERINTENDNENT OF POLICE, 7. THE TAHSILDAR, TALUK OFFICE, For Petitioner :SMT.S.KARTHIKA For Respondent : No Appearance The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :11/10/2010 O R D E R T.R. RAMACHANDRAN NAIR, J. [CASE NUMBER]-H Dated this the 11th day of October, 2010 J U D G M E N T
This Writ Petition was filed by late Shri [ENTITY] challenging the proceedings of the Scrutiny Committee and the order passed by the Government declaring that he does not belong to the Scheduled Caste [ENTITY] Community. Ext.P15 is the proceedings of the Scrutiny Committee and Ext.P16 is the Government Order. Pending the Writ Petition, he died and, accordingly, petitioners 2 to 4 have been impleaded as additional petitioners, who are the widow and the children of the deceased.
2. Apart from the deceased Shri [ENTITY], the Government has also declared that none of his family members are entitled to get the benefit of Scheduled Caste [ENTITY] Community.
3. The proceedings of the Scrutiny Committee are challenged on various grounds. It is pointed out that the basic report relied upon by the Scrutiny Committee is that of the KIRTADS, a true copy of which is produced as Ext.P8. The conclusion arrived at in Ext.P8 is that the late Shri [ENTITY], who was born in 1948, was admitted in the school with his caste name as [ENTITY]. He joined the Ayurvedic Medical courses against a quota reserved for OBC. His caste status was changed on a application made to the Director of Scheduled Caste Development Department which procedure is governed by [CASE NUMBER]/DD, dated 16/04/1979. The conclusion arrived at in Ext.P8 is that "genealogical study as well as the documentary evidences from 2 to 25 reveal that [ENTITY] was born in the Thiyya community". It was also found that even though late Shri [ENTITY] was claiming himself as a Scheduled Caste, his relatives belong to Thiyya community.
4. The proceedings of the KIRTADS culminated in a Government Order dated 28/02/1994, against him which was quashed in [CASE NUMBER]. Later the Scrutiny Committee proceeded with the matter which was subjected to challenge in [CASE NUMBER]. Other proceedings followed thereafter. Ultimately, the order passed by the Scrutiny Committee was set aside by a Division Bench of this Court as per Ext.P14 Judgment and the matter was remanded back to the Scrutiny Committee constituted under [ACT]. The learned counsel for the petitioners mainly raised two contentions. It was pointed out that the procedure adopted by the Scrutiny Committee is in violation of the principles of natural justice. The averments with regard to the same are available in paragraph 20 of the writ petition. It is mentioned that late Shri [ENTITY] was appearing through a counsel and the Director of KIRTADS was cross-examined on 28/11/2008 and it was completed on that day and the matter was adjourned to 03/12/2008 for final hearing. But when the learned counsel appeared before the Scrutiny Committee for final hearing on 03/12/2008, it was informed that the matter was finalised and an order was issued later with the date 03/12/2008 itself. It is further pointed out that even though late Shri [ENTITY] had produced 58 documents before the Scrutiny Committee, which according to the late petitioner would have gone a long way to establish the status of the deceased as [ENTITY] even during the pre- independent days, none of the documents have been verified or considered by the Scrutiny Committee.
5. The report of the Scrutiny Committee Ext.P15 shows that the cross examination was conducted on 26/11/2008 but the order has not specifically mentioned the date of hearing of the learned counsel appearing for late Shri [ENTITY] which evidences the fact that the contention raised by the deceased that no hearing was conducted is justified. True that the Scrutiny Committee found, in the light of the various factors established in the enquiry conducted by the KIRTADS, that late Shri [ENTITY] belong to OBC, namely, Thiyya and not Scheduled Caste [ENTITY]. But, it should have been proper if the Scrutiny Committee had verified all the documents relied upon by the deceased petitioner. In this context, learned counsel for the petitioner relied upon the Judgment in [PRECEDENT]. Therein, the Apex Court was of the view that pre-independent documents describing the predecessors as [ENTITY]s cannot be ignored by the Scrutiny Committee. The further contention raised is that in the light of the decision of the Apex Court in [ENTITY] & another v. State of Kerala [PRECEDENT]] and that of a Division Bench in [CASE NUMBER] & [CASE NUMBER] reported in [PRECEDENT] [[PRECEDENT]] till the year 2007, when the Presidential Order was amended to include [SECTION], the [ENTITY] of erstwhile Cochin and Malabar areas will have to be treated as Scheduled Caste. It is therefore contended that the enquiry conducted by the KIRTADS and the report thereon cannot be relied upon.
6. The Apex Court in paragraph (16) of the Judgment in [ENTITY] case [PRECEDENT]] held as follows:-
"16. [SECTION] empowers the President to specify not only castes, races or tribes which shall be deemed to be Scheduled Castes in relation to a State but also "parts of or groups within castes, races or tribes" which shall be deemed to be Scheduled Castes in relation to a State. By reason of [SECTION] a part or group or section of a caste, race or tribe, which, as a whole, is not specified as a Scheduled Caste, may be specified as a Scheduled Caste. Assuming, therefore, that there is a section of the [ENTITY]/Thiyyas community (which is not specified as a Scheduled Caste) which is called [ENTITY] in some parts of Malabar area, that section is also entitled to be treated as a Scheduled Caste, for [ENTITY]s throughout the State are deemed to be a Scheduled Caste by reason of the provisions of the Scheduled Castes Order as it now stands. Once [ENTITY]s throughout the State are entitled to be treated as a Scheduled Caste by reason of the Scheduled Caste Order as it now stands, it is not open to the State Government to say otherwise, as it has purported to do in the 1987 order."
7. The Division Bench in the subsequent case in [PRECEDENT]] has also taken the view that in the light of the decision of the Apex Court in [ENTITY] case [PRECEDENT]] they are entitled to the benefit of Scheduled Caste till the Schedule is amended. The Bench also made it clear that thereafter they cannot claim the benefit of Scheduled Caste [ENTITY]s even though they are title holders of [ENTITY]s.
8. The [ACT] dated 29th August, 2007 introduced [SECTION] as follows:-
"61. [ENTITY] (excluding [ENTITY] and Thiyyas who are known as [ENTITY] in the erstwhile Cochin and Malabar areas) and (Carpenters who are known as [ENTITY], in the erstwhile Cochin and Travancore State);"
9. In that view of the matter, the petitioners are entitled to succeed. The learned counsel for the petitioners also made available for perusal copy of Judgment in [CASE NUMBER] wherein also similar view was taken relying upon the decision of the Apex Court in [ENTITY] case [PRECEDENT]] and that of the Division Bench referred to above.
10. In that view of the matter, the Writ Petition is allowed. It is declared that the deceased [ENTITY] was entitled for grant of various benefits treating him as Scheduled Caste till the year 2007 i.e. till 29/08/2007. The service benefits and pensionery benefits due to the deceased [ENTITY] will be disbursed to the additional petitioners within a period of four months from the date of receipt of a copy of this Judgment. It is made clear that the interference with the orders is to the above extent and I have not finally pronounced anything on the direction in paragraph (3) of Ext.P16 Government Order to correct the caste status in the records of the family members of the late Shri [ENTITY]. It is also made clear that the claim, if any, will be confined only upto the year 2007 and thereafter, the petitioners cannot claim any benefit as members of Scheduled Caste [ENTITY] Community. No costs.
([ENTITY], Judge.) ms