IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 OP.No. 11624 of 2003(H) ---------------------------------- PETITIONERS: --------------------- 1. M.K. SOBHANA, AGED 52, ADDITIONAL SALES TAX OFFICER-II, TIRUR, MALAPPURAM DISTRICT. 2. M.K. VIMALA KUMARI, AGED 46, JUNIOR SUPERINTENDENT, INDUSTRIAL TRAINING INSTITUTE, THOTTADA, KANNUR DISTRICT. 3. M.K. SHEELA, AGED 40, JUNIOR CLERK, THE PERALASSERRY SERVICE CO-OPERATIVE BANK LTD., MUNDALUR P.O., KANNUR. BY MR.M.K.DAMODARAN, SENIOR ADVOCATE, ADV. MR.P.K.VIJAYAMOHANAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, SCHEDULED CASTES AND SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE VIGILANCE OFFICER, KERALA INSTITUTE OF RESEARCH, TRAINING AND DEVELOPMENT STUDIES OF S.C AND S.T (KIRTADS), KOZHIKODE. 3. THE COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM. O.P. NO. 11624/2003-H: 4. THE DIRECTOR, EMPLOYMENT & TRAINING, THIRUVANANTHAPURAM. 5. THE BOARD OF DIRECTORS OF THE PERALASSERRY SERVICE CO-OPERATIVE BANK LTD., REPRESENTED BY ITS PRESIDENT, MUNDALUR P.O., KANNUR. R1 TO R4 BY SPL.GOVT. PLEADER MR. S. SANTHOSH KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2007, ALONG WITH O.P NOS. 11639 OF 2003 AND 20644 OF 2003 THE COURT 20/10/2009 DELIVERED THE FOLLOWING: O.P. NO. 11624/2003-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DTD. 20/09/2001 IN O.P. NO. 4974/93 AND CONNECTED CASES. EXT.P.2: COPY OF THE G.O.(MS).NO.3/03/SCSTDD DTD. 10/01/2003 OF THE R.2. EXT.P.3: COPY OF THE G.O.(MS).NO.22/03/SCSTDD DTD. 19/02/2003 OF THE R.2. EXT.P.4: EXTRACT FROM THE ANTHROPOLOGICAL SURVEY OF INDIA, THE SCHEDULED CASTES PEOPLE OF INDIA. EXT.P.5: EXTRACT FROM THE ANTHROPOLOGICAL SURVEY OF INDIA- PEOPLE OF INDIA – COMMUNITIES SEGMENTS, SYNONYMS, SURNAMES AND TILES. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = O.P.11624/2003-H, O.P.11639/2003-I & WP(C).20644/2003-G = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of October, 2009. JUDGMENT 1.Petitioners 1 and 2 in O.P.11624/2003 are State Government servants and the third respondent therein works with a co-operative bank. The first petitioner in O.P.11639/2003 is a State Government servant and the second petitioner therein is a teacher in an aided school. The petitioner in WP(C).20644/2003 and the other persons referred to above are the children of Kunhambu and Kausu. 2.Nine persons, who did not include the petitioners, filed O.P.6023/1995 before this OP.11624/2003 & con.cases -: 2 :- Court challenging the decision contained in the document marked Ext.P43 in that case. By judgment dated 17-11-2000, this Court set aside the declaration in that Ext.P43 document to the effect that the nine tharawads mentioned therein do not belong to Moger community, a scheduled caste, as well as the consequential directions in sub paragraphs (3) and (4) of Paragraph 5 of that Ext.P43 document. The State of Kerala was directed to conduct a proper and detailed enquiry into the matter, giving an opportunity of hearing to the petitioners in that case and to pass appropriate orders as to whether those nine tharawads belong to Moger community or not. 3.Thereafter, a bunch of writ petitions, O.P.8172/1992 and connected matters, filed by the petitioners herein was ordered by this Court on 20-9-2001 with the same observations and directions as are contained in the judgment in O.P.6023/1995, noticing that the common question raised in O.P. 8172/1992 and connected matters OP.11624/2003 & con.cases -: 3 :- has been elaborately dealt with and decided in O.P.6023/1995. It was also further directed that the petitioners therein shall be given an opportunity of being heard and to produce sufficient evidence to establish their claims. The order of status quo passed in respect of the caste status of the petitioners and their family members was ordered to be in force until a decision is taken by the Government as directed. 4.Ext.P43 in O.P.6023/1995 was G.O.(Rt.) 47/91/SCSTDD dated 3-12-1991 issued by the Government of Kerala through its Commissioner and Secretary in the Scheduled Caste and Scheduled Tribe Development (E) Department. A perusal of that Government Order will show that what was set aside as per the judgment in O.P.6023/1995 includes the directions in paragraph 5(3) of that Government Order that the nine tharawads referred to in paragraph 2 thereof shall not be given any certificate that they belong to Moger community and that steps have to be taken in accordance OP.11624/2003 & con.cases -: 4 :- with law to annul the certificates given to them to the effect that they belong to a scheduled caste and further that, any benefits being enjoined by them and extended to them shall also be immediately stopped and action taken in terms of G.O.(P)10/89/SCSTDD dated 13-1-1989. 5.The writ petitions in hand are filed challenging G.O.(MS)No.3/03/SCSTDD dated 10-1-2003 and G.O. (MS).22/03/SCSTDD dated 19-2-2003. Those two Government Orders are issued based on enquiry report No.V13/01 dated 8-10-2001 forwarded by the Vigilance Officer of the Vigilance Cell in the Directorate of KIRTADS, Kozhikode to the Chairman, Scrutiny Committee for Verification of SC/ST Claims & Secretary to Government, Scheduled Castes & Scheduled Tribes Development (G) Department in the Government. That report is also challenged in WP(C).20644/2003. 6.The fundamental contentions of the writ petitioners are that the report that has been OP.11624/2003 & con.cases -: 5 :- treated as the foundation for the impugned Government Orders has been issued relying on an earlier report which no more survives the judgments of this Court in O.P.6023/1995 and O.P.8172/1992 and still further, that the report dated 8-10-2001 is made without giving the petitioners, appropriate opportunity of being heard and that the said report was not even put to them before the impugned Government orders were issued, adversely affecting, among other things, their service. The report dated 8-10-2001 (Ext.P9 in WP(C)20644/2003) is specifically criticized as having been prepared without conducting any enquiry as to the genealogical or anthropological history of the petitioners; that no independent enquiry was conducted by the State as directed by this Court, as per the judgments in O.P.6023/1995 and O.P.8172/1992; that the said report is virtually a reproduction of the earlier report dated 27-10-1989 which was the foundation of the Government decisions that were set aside by this Court in O.P.6023/1995 and O.P.8172/1992; OP.11624/2003 & con.cases -: 6 :- that the impugned enquiry report is unsustainable on facts; it was never put to the petitioners before the decisions against them were issued by the Government; principles of natural justice and fair play have been grossly violated and that the provisions of the Kerala (Scheduled Castes & Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996, hereinafter referred to as the “Act”, have, indisputably, not been followed; no Scrutiny Committee as provided under that Act was constituted, nor any enquiry under the provisions of that Act held; and that therefore, the impugned orders are liable to be set aside. 7.A counter affidavit is filed by the respondents in O.P.11639/2003 and adopted in the other matters. Keeping aside the controversies on the materials and evidence regarding the exclusion/inclusion of petitioners among Mogers, it needs to be noticed that the specific contentions of the respondents are that; on the OP.11624/2003 & con.cases -: 7 :- basis of a comprehensive study of KIRTADS and consequential report No.C.402/89 dated 27-9-1989, it was found that members of nine tharawads mentioned in the counter affidavit belong to Mukayan (OBC community); on the basis of that report, G.O.(MS).47/91/SCSTDD dated 3-12-1991 was issued declaring that the members of those nine tharawads do not belong to Moger community which is a scheduled caste; that the said order was a general order; when the petitioner in WP(C) 20644/2003 was admitted to Kozhikode Regional Engineering College against SC quota, KIRTADS conducted a detailed genealogical enquiry regarding that person and filed enquiry report No.C.469/89 dated 27-10-1989 [Ext.R2(a)]; in deference to the judgment dated 20-9-2001 in O.P.8172/1992, notice was issued to the parties and copies of Ext.R2(a) report dated 27-10-1989 were also sent to them calling upon them to show cause and that there is no illegality in doing so since by judgment dated 20-9-2001, this Court had not set aside that report or the Government OP.11624/2003 & con.cases -: 8 :- Order; Ext.R2(a) enquiry report is binding on the petitioners as this Court had not quashed the same while issuing the judgments in O.P.6023/1995 and 8192/1992; a detailed genealogical enquiry was conducted by the Vigilance Officer into the real caste status of the members of the nine tharawads in question with prior notice to the representatives of the tharawads following the judgment dated 17-11-2000 in O.P.6023/1995 and Ext.R2(b) report No.V.13/2001 dated 8-10-2001 (referred to earlier in this judgment) was prepared. The impugned Government Orders were issued on the basis of Ext.R2(b) report and there is no legal infirmity in the impugned orders. Certain aspects regarding the Moger community and the Mukayan community, their life style, avocation, culture, rituals etc. are also stated in the counter affidavit. 8.The aforesaid pleadings of the respondents, by themselves, demonstrate abundantly that the impugned decisions in so far as the petitioners OP.11624/2003 & con.cases -: 9 :- in these matters are concerned, were rendered without hearing them and they stand to be saddled with the findings generated on the basis of the matters remitted by this Court in O.P.6023/1995. Hence, it has to be held that the impugned orders in so far as they are against the petitioners have to necessarily go. The aforesaid situation necessarily calls for a re-hearing of the matter by the competent among the respondents, including in the light of the provisions contained in the Kerala (Scheduled Castes & Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996. That being so, it would be inappropriate for this Court to express anything on the merits of the claim of the petitioners or the contentions to the contrary. In the result, these writ petitions are allowed quashing the impugned orders and directing the official respondents to take up the matters afresh and reconsider them in the light of what is stated above and issue orders afresh in OP.11624/2003 & con.cases -: 10 :- accordance with law and after hearing the necessary parties. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/161009 OP.11624/2003 & con.cases -: 11 :- THOTTATHIL B. RADHAKRISHNAN,J. = = = = = = = = = = = = = = = = = O.P.11624/2003H, O.P.11639/2003I & WP(C).20644/2003-G = = = = = = = = = = = = = = = = = JUDGMENT Dated: 20th October,2009.