IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 MFA.No. 204 of 2006(A) ---------------------- APPELLANT(S): -------------- S.SHANMUGHAN, S/O.SUBRAMANIA PANDARAM AYYAMPATHY P.O., THATHAMANGALAM, PALAKKAD DISTRICT, WORKING AS WATCHMAN, GOVERNMENT TECHNICAL HIGH SCHOOL, PALAKKAD. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, SC/ST DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATE (REPRESENTED BY ITS CHAIRMAN), THIRUVANANTHAPURAM. 3. THE DIRECTOR, TECHNICAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.V.TK.MOHANAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- M.F.A. No. 204 of 2006 --------------------------------------------- Dated, this the 3rd day of November, 2009 J U D G M E N T P.R. Raman, J. This is an appeal filed against the proceedings of the Scrutiny Committee for verification of community certificate dated 28.09.2006 passed under 11 of the Act, 1996, holding that the appellant belonged to Pandaram (Veera Saiva-OBC) and not a Scheduled Tribe Malai Pandaram as per presidential order issued under Article 341 of the Constitution of India. 2. According to the appellant he belongs to Malai Pandaram community including in Entry 1921 of the Scheduled Tribe community in the State of Kerala. He was appointed as a Watch man in the Government Technical High School, Palakkad on 16.03.1990. One Murugan was also an applicant and aspirant for the post. On finding that the appellant was selected, the rival candidate complained to the appropriate Forum alleging that the appellant obtained the secured employment by false claim that he belongs to Scheduled Tribe community. Original report was submitted by KIRTADS prior to Act 11 of 1996. That was according to the appellant behind his back and MFA No. 204 of 2006 2 therefore he challenge the said report and findings by filing OP 7371/1993. By the time the matter came up for final hearing after the 11 of the Act 1996 came into force. Hence this Court directed the Scrutiny Committee/the appellate authority to consider the contentions raised by the petitioner. The Status quo which was ordered to be maintained throughout the Writ Petition was allowed to compensation till such dispose. The Scrutiny Committee, after considering the matter afresh passed an order on 05.04.1999 holding that the appellant do not belong to the Malai Pandaram community, but belongs to Pandaram (Veera Saiva – OBC). The appellant again challenged the said order by filing an appeal as MFA 917/1999. This time, it was found that the order passed by the Scrutiny Committee was not duly considered in accordance with provisions contained in Act 11 of 1996. On that ground, the order was set aside for a consideration by the properly Scrutiny Committee. It was subsequently that the impugned order was passed. 3. Learned counsel appearing for the appellant contends that the finding of the Scrutiny Committee that the appellant belongs to Pandaram (Veera saiva – OBC) is wrong and illegal in so far as no such community finds a place in the presidential order. According to him, ‘Pandaram’ is only an abbreviation of the ‘Malai Pandaram’ community and as such the appellant belongs to the Scheduled Tribe community. MFA No. 204 of 2006 3 The Special Government Pleader appearing on behalf of the said on the other hand would contend that the Scrutiny Committee consider the report of the expert committee which in turn is entered a finding based on materials collected. It is after considering Expert committee’s report that the Scrutiny Committee found that the appellant belongs to Pandaram (Veera saiva – OBC). According to him, Pandaram (Veera saiva – OBC) is OBC recognized by the Government by notification referred to in the counter affidavit in paragraph 18. In answer to this, the learned counsel for the appellant would contend that the decision taken by the Scrutiny Committee much earlier to the said notification. 4. We have considered the rival submissions. It is true that Pandaram (Veera saiva _oBC) is not seen specifically included in the presidential order of Scheduled Tribe community in the State of Kerala or on the OBC list thereunder, and admittedly what is included in the presidential order is Malai Pandaram under entry 21 of Scheduled Tribe in Kerala. Therefore, the question is as to whether the petitioner belongs to Malai Pandaram community and therefore could claim as Scheduled Tribe and the benefit there to. In this connection, we may refer to the report of the Expert Agency (KIRTADS) in page 8 of Ext.R1(a) produced along with the counter affidavit, wherein it was found that the genealogical analysis as well as the documentary evidence reveal that MFA No. 204 of 2006 4 Shanmughan’s father (Shanmughan is the appellant’s name) mother, wife, children and all his relatives belong to Pandaram community and therefore Shanmughan was born in the Pandaram community. The finding so arrived is supported by the various documents referred to as document No. 1 to 21 referred to in the foregoing paragraph in the same order. It is not necessary to reiterate those discussions. We find that the conclusion is reached after analysing the evidence available in the case. 5. Turning to the next question as to what is the status of the Pandaram community for which studies we conducted and the ethnographic account of Pandaram community was given in the subsequent paragraph of the same order. It was found that the Pandarams are an early immigrant community of Kerala and found all over the urban and rural areas of Kerala. In the District of Palakkad they are found in good numbers in the urban as well as rural areas including the Municipal areas of Chittur Taluk. The houses of Pandarams are found in clusters and are known as ‘Pandarathara’. Some of the villages in Palakkad District namely, Paruthipully, Elavanchery, Melarcode, Thenari, Elappully, Ayyampathy, Cheramangalam, Pattancherry, Vilayannur, Pallatheri, Pudupariyaram, Kanjiramkunnu, Vengodi, Kandachira, Erattakulam, Muthukunny, Erimayur etc. have more than 50 Pandaram families. They are also found in other places. Their MFA No. 204 of 2006 5 population in the Palakkad District is estimated to be around 15,000. Their mother tongue is Telugu. They also speak Tamil and Malayalam. It is stated that the sanskritised name of 'Pandarams' are 'Veerasaivas' and locally they are known as 'Andipandarams'. The settlement of the Pandaram community had a Central Caste Council in which their Supreme Head known as ‘Guruswami’, whose headquarters is based at Salem, Tamilnadu. The settlements were further divided into eight regions known as ‘Desoms’ and each settlement had a headman called ‘Bandayama’ or ‘Pattakkaran’. It was found that the striking characteristic of the Pandaram community is their clan organization. Some of the clans 48 in number have been identified at page 10 of the report. Their traditions and customs prevalent has also taken note of in the course of discussion. They are staunch saivitios. They worship 'Sivalingam' in their houses and lead a celebrate life. They wear a 'lingam' and hence they are also known as ‘Lingadharis’. They are traditionally religious mendicants. They usually go from one house to another especially on Monday evenings with their ‘Annakavadi’ blowing the conche. They also maintain territorial identity for practicing religious mendicancy. 6. After giving detailed discussion of the Pandarams, their customs etc., the report then turned to consider the contrast difference between this Pandaram community with that of Malai Pandaram MFA No. 204 of 2006 6 community. The discussions are contained in page 13 of the report. Malai Pandaram community possesses a totally different geographic and ethnic identity. 'Malai Pandaram's are a notified Scheduled Tribe of Kerala. They inhabit the mountains high forests of Pathanapuram taluk of Quilon District and Kozhanchery taluk of Pathanamthitta District. Their habitat extends upto Periyar lake to the north and in the South to the Tenmala forests. Their main stay for life is hunting and collection of minor forest profuces. Their contract with outside world is limited to trade contract with non tribals and forest labourers. The settlement camp of Malai Pandaram is known as ‘Kudi’. They also live in temporary camps which are social aggregates of one to five families usually close kinsmen. They erect leaf shelters for stay. The articles kept in a camp is limited to an axe, bill hook, few earthen pots, aluminium bowls etc. They know the technique of fire making by flint and steel method and call the device ‘theethatti’. Their subsistence is primarily derived from the gathered wild vegetable food, hunting of small games and fishing. Separate leaf shelters are erected for confinement and for secluding women in menstruation. Matrilateral and Patrilateral cross-cousin marriages are preferred in contrast to the Pandaram community. 7. Thus the ethnic accounts relating to the Pandaram community and Scheduled Tribe Malai Pandaram community reveal that MFA No. 204 of 2006 7 they are entirely different communities. Appellant is a member of the Pandaram community. It is not recognized as the Scheduled Tribe community of Kerala. This is the specific finding arrived by the Expert agency. This conclusion as we have already referred to is based on an analysis of the various aspects concerning the custom from which place they originally belong to, what are their marriage customs etc. etc…. Thus there cannot be any doubt that the findings so arrived at by the agency on meticulous scrutiny of the materials available on record unless shown to be in any way perverse or illegal is not a matter for interference. The Scrutiny Committee as an appellate authority after considering the entire report, also agreed with the said finding and came to the irresistible conclusion that the appellant who belongs to Pandaram community is different from Malai Pandaram including in the Schedule Tribe of Kerala. True that the appellant who is Pandaram (Veerasaiva) was however included as OBC by notification issued later by the Government of Kerala. The fact that it was not notified earlier, will not show that it is non existence rather it only shows that it was recognized as OBC and they were given the benefit of OBC by notification issued separately. As far as, the point for consideration is to see whether the appellant is Scheduled Tribe namely Malai Pandaram, and the answer is 'no'. The facts that the community is not mentioned in the presidential order will MFA No. 204 of 2006 8 not show its non existence and is proved to be it as a different community on detailed evidence collected as already discussed above. 8. It was contended however by the learned counsel appearing for the appellant that his contention is not specifically adverted to by the Appellate body/Scrutiny Committee and therefore we examined the whole question as to whether there exist a community by name Pandaram and is already referred to KIRTADS report as in the above paragraph. The finding of Scrutiny Committee in accepting the finding of the Expert Agency is therefore perfectly justified. In the above circumstances, we find no merit in the appeal. 9. Counsel for the appellant submitted that the appellant retired on 30.04.2007 and ever since he appointed a watch man and he worked and earned his livelihood. Referring to the Single Bench decision of this Court in Sreekumari Vs. State of Kerala [2006 (1) KLT 144] where it was held that false community certificate obtained prior to the Act 11 of 1996, the person cannot be prosecuted under the Act since the Act came into force later in point of time and therefore it is contended that even though Government has to pass consequential orders in the factual situation, he had worked and earned the salary and in the light of the decision of this Court in Madhavi Vs. Scrutiny Committee [2004 (3) MFA No. 204 of 2006 9 KLT 967] the prosecution is also not legally permissible. So the appellant contends that this is a fit case where no action against him be taken. The Government is yet to take a decision in the matter and we cannot pre empt an order at this stage. If any of the submissions according to the appellant is not considered while passing the consequential orders certainly that is a matter which the appellant can challenge in separate proceedings. We have no doubt in our mind that this aspect will be considered by the Government while passing consequential orders. Subject to the above, the appeal is dismissed. No cost. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc