IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 MFA.No. 12 of 2004(E) --------------------- Against the proceedings of the Scrutiny Committee for verification of Community Certificate, Trivandrum, bearing NO.5046/G2/2002/SCSTDD dated 13.8.2003 which was served on the appellant on 13.9.2003 and also against G.O. (MS) No.64/2003/SCSTDD dated 25.9.2003 .................... APPELLANT -------------- SHEEJA V.R., W/O. RAJAN, VADAKKUMPADAM, ELAVAMPADAM P.O., PALAKKAD. BY ADV. SMT.V.P.SEEMANTHINI, SENIOR ADVOCATE SRI.M.R.ANISON RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVT., SCHEDULED CASTE AND SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES, REP. BY ITS CHAIRMAN, SCHEDULED CASTE AND SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, GOVT. SECRETARIAT,THIRUVANANTHAPURAM. 3. THE VIGILANCE CELL OF KIRTADS, REP. BY ITS VIGILANCE OFFICER, DIRECTORATE OF KIRTADS, KOZHIKODE-17. 4. THE UNIVERSITY OF CALICUT, REP. BY ITS REGISTRAR, CALICUT UNIVERSITY P.O. ADV. SRI.S.GOPAKUMARAN NAIR, SC, CALICUT UTY FOR R4 SPL. GOVERNMENT PLEADER, SRI.SANTHOSH FOR R1 TO 3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ------------------------------- M.F.A.No.12 OF 2004 -------------------------------- Dated this the 11th day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant has preferred this Miscellaneous First Appeal, under Section 12(3) of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996, (hereinafter referred to as “the Act”), challenging the proceedings dated 13.8.2003 of the Scrutiny Committee for verification of community certificates. 2. The brief facts of the case are the following: The appellant submits, she belongs to 'Thandan' community. 'Thandan' is recognised as a Scheduled Caste in the erstwhile Tranvancore-Cochin State from 1950 onwards. From 1976 onwards, it is recognised as a Scheduled Caste throughout the State. The appellant, who is a native of Palakkad district, therefore, became a member of the Scheduled Caste from 1976. In her S.S.L.C. book, her caste is M.F.A.No.12/2004 2 shown as 'Thandan'. After completion of her Degree course, she wanted to join B.Ed (English) course. So, on 12.10.1998, she moved the Tahsildar, Alathur, for a community certificate. But, her application was not considered by the said officer. Pursuant to the direction of this Court, in O.P.No.10652/1999, the Tahsildar considered her application and rejected it by order dated 5.5.1999. The reason given by the Tahsildar to reject her application was that 'Thandans' of Malabar area are not members of the Scheduled Caste, it is submitted. The appellant challenged the said order of the Tahsildar before the Revenue Divisional Officer by filing an appeal. During the pendency of that appeal, she got a call letter for joining B.Ed (English) course from N.S.S. College of Training, Ottappalam. As per the direction of this Court, in O.P.No.17466/1999, the Tahsildar, Alathur, issued a provisional community certificate to her, showing her caste as 'Thandan', on 24.9.1999. On the strength of that certificate, the appellant got admission to the said course in the SC quota in the above said College. During the pendency of the above Original Petition, the Revenue Divisional Officer dismissed her appeal by order dated 23.7.1999. The appellant M.F.A.No.12/2004 3 invoked the statutory remedy available to her under the Act and filed a revision before the Government on 2.8.1999. O.P.No.17466/1999 filed by the appellant was disposed of by this Court, by judgment dated 2.11.1999, directing the Government to dispose of her revision. Though, a specific direction was issued by this Court in the above judgment to maintain statusquo, the University did not permit her to write the examination. So, she was constrained to move this Court by filing O.P.No.13607/2000. On the basis of the interim order passed by this Court, she took the examination. But, her result was withheld by the University. The said Original Petition was finally disposed of by this Court on 14.11.2002, directing the University to publish the appellant's results. There was also a direction to dispose of the revision filed by the appellant, within three months. The relevant portion of the said judgment reads as follows: “2. In the aforesaid circumstances, I direct that the results of the petitioner will be published. Orders as directed by Ext.P9 are to be passed within a period of three months from today. If it is ultimately found that the petitioner is not eligible to be recognised as a M.F.A.No.12/2004 4 member of Scheduled Caste such declaration will not enure to her advantage in any manner. The certificates need be issued to the petitioner only after disposal of Ext.P9.” 3. The Government, for the purpose of disposal of the revision, referred the matter to the KIRTADS for its opinion. The Vigilance Officer of KIRTADS conducted an enquiry into the caste status of the petitioner, in violation of the principles of natural justice. The materials were collected behind her back and finally the the Vigilance Cell of the KIRTADS, the 3rd respondent herein, submitted a report against her on 31.10.2002. The Scrutiny Committee served a copy of the said report along with a show cause notice dated 27.10.2002 to the appellant, calling upon her to state her objections, if any, regarding the findings of the 3rd respondent in its report. The KIRTADS relied on 33 documents to find that the appellant belongs to 'Ezhava' community and not 'Thandan' community. Out of them, most of the documents were concerning persons related to her by marriage. The appellant submitted a written explanation to the show cause notice and produced 39 M.F.A.No.12/2004 5 documents to prove that she belongs to 'Thandan' community. Thereafter, the matter was posted for hearing. Since the appellant was pregnant at the relevant time, she could not attend the personal hearing. But referring to the documents and materials produced by her and the report of the KIRTADS, the Scrutiny Committee passed the impugned order dated 13.8.2003, holding that she belongs to 'Ezhava' community and not 'Thandan' community. Based on the said report, the Government passed consequential order as per G.O.(MS) 64/03/SCSTDD dated 25.4.2003, dismissing the revision filed by her against the appellate order of the R.D.O. This appeal is filed, as mentioned earlier, challenging the proceedings of the Scrutiny Committee dated 13.8.2003. If the said proceedings fall to ground, then the decision of the Government, being a dependent order, will also become unenforceable. 4. The respondents have filed a detailed counter affidavit, supporting the order impugned in the appeal and along with that they have produced Ext.R1(a), the report submitted by the 3rd respondent. M.F.A.No.12/2004 6 5. We heard Mr.M.R.Anison, learned counsel for the appellant and Mr.P.Santhosh Kumar, learned Special Government Pleader for the respondents. 6. The learned counsel for the appellant submitted that out of the 33 documents relied on by the 3rd respondent, which are listed as item numbers 2 to 34 in the appendix to Annexure R1(a) report, only 12 documents are relating to the blood relations of the appellant. They are Document Nos. 11 to 16 and 20 to 25 mentioned in the appendix to Annexure R1(a). Others are concerning persons related by marriage only. The learned counsel also pointed out that out of those documents, Document Nos.11, 16 and 21 alone would show that the incumbents mentioned therein, who are the blood relations of the appellant, belong to 'Ezhava' community. In the case of others, it is only shown as OBC or left blank concerning the community status in the relevant documents. On the contrary, the learned counsel for the appellant pointed out that the appellant has produced 39 documents to support her claim. Out of them, Document Nos.19 M.F.A.No.12/2004 7 to 26 relate to persons connected by marriage and 32 to 40 relate to her husband's family. All other documents relate to her blood relations. Specific reference was made to Document No.7, which is a judgment in favour of one of her blood relatives. The learned counsel pointed out that the Scrutiny Committee has not given any valid reason for rejecting the wealth of materials produced by the appellant to show that she belongs to 'Thandan' community. Document No.31 produced by her is the extract from her School Admission Register, wherein her caste is shown as 'Thandan'. Document No.29 is the relevant page of her S.S.L.C. Book, which also shows that her caste is 'Thandan'. The learned counsel also raised a technical contention, relying on the definition of Expert Agency, contained in 2(g) of the Act that the Director of KIRTADS is also part of the Expert Agency. He is also a member of the Scrutiny Committee and therefore, the member of the original forum sat in the appellate forum also. The same vitiated the proceedings of the Scrutiny Committee, it is submitted. The learned counsel for the appellant also submitted that the 3rd respondent relied on certain facts obtained behind the back of the appellant at the time of field enquiry. The same M.F.A.No.12/2004 8 can only be treated as hearsay and could be relied on, if only the persons from whom the informations are collected are made available for the cross-examination of the appellant. 7. The learned Special Government Pleader, in answer, submitted that most of the documents relied on by the appellant came into existence after 1976. Document Nos.29 & 31 pertaining to the appellant are also of recent origin. Some of the members of the 'Thiyya' community in Malabar area, especially, in Palakkad, were conferred with the honorific title of 'Thandan'. They were persons having higher status among the 'Thiyyas'. Their descendants also used that designation. The appellant and her family belonged to the said section of 'Thiyyas' and they are not members of the 'Thandan' community, covered by the presidential notification. The documents produced from both sides would show that there were several marital relations between 'Thandans' and 'Thiyyas'/'Ezhavas'. The members of 'Thandan' community are untouchables and they are mainly engaged in climbing coconut palms and plucking of coconuts. Such massive mixed marriages between 'Thiyyas'/'Ezhavas' and M.F.A.No.12/2004 9 'Thandans' are normally improbable. The KIRTADS as well as the Scrutiny Committee entered their findings based on the materials on record and there is no reason to interfere with them or reverse them in this appeal, it is submitted by the learned Special Government Pleader. 8. We considered the rival submissions and also the documents produced by both sides. First we will deal with the complaint of the appellant that information collected from persons who were not examined as witnesses was used against him. We notice that though the KIRTADS included such information collected also in their report, their conclusions were supported by other documentary evidence also. The Scrutiny Committee only relied on the documents produced by both sides to arrive at their findings. In other words, the final decision taken against the appellant was not based on any oral statements of any persons interviewed by the Filed Officers of the KIRTADS. Therefore, the said grievance raised by the appellant cannot be accepted. The technical contention raised by the appellant relying on the definition of Expert Agency is plainly untenable. There are no pleadings to support this contention. Even assuming the Director belongs to the Anthropology wing or is an Anthropologist or Sociologist, there is nothing on record to show that he was in any way associated with the preparation of the report by the Vigilance Cell of the KIRTADS. M.F.A.No.12/2004 10 9. We notice that the documents produced as Annexures A1, A3, A4, A6, A9 and A11 pertain to the blood relations of the appellant. They came into existence before 1976 also. Those documents would show that the appellant's father and his blood relations on maternal and paternal sides were described as 'Thandans'. Document Nos. 11, 16 and 21 in the appendix to Annexure R1(a), pertaining to the appellant's blood relations, show that the persons mentioned therein belong to 'Ezhava' community. Other documents produced by the KIRTADS would show that several of the persons related by marriage with the appellant belong to 'Ezhava'/'Thiyya' community. We also notice that in Annexure A8 dated 23.11.1978, which is the 1st page of the order of the Land Tribunal, Thrissur, in O.A.No.2080/1976, the appellant's mother's mother Chella is arrayed as a landlord. It means, there was a cultivating tenant under her. The remote possibility of a 'Thandan', who is a member of the Scheduled Caste, becoming very affluent and a landlord cannot be ruled out. But, normally, we notice that the members of the 'Thandan' community were agricultural workers, engaged in coconut plucking and they were either cultivating tenants or M.F.A.No.12/2004 11 'kudikidappukarans' and not landlords. It is true, in many documents, which came into existence before 1976, the appellant's relatives were described as 'Thandans'. But, their marital relations with 'Thiyyas'/'Ezhavas' is a strong circumstance, which shows that those 'Thandans' belong to 'Thiyya'/'Ezhava' community. Such large scale mixed marriages in a community is never heard or reported. In those days, mixed marriages were isolated aberrations and the normal rule was to marry from the same community. Having regard to the number of marriages between 'Thandan' and 'Ezhava'/'Thiyya', we think it is a very strong circumstance, which indicate that 'Thandans' were part of the Thiyya/Ezhava community. The volume of the material produced by either side is not the determinative factor. The reliability of the material is mainly relevant. Even the limited documents produced by the KIRTADS of the blood relations of the appellant, which show that they are 'Ezhavas', is a strong circumstance against the appellant. Normally, no genuine 'Thandan' will describe himself as 'Ezhava'. There is every reason for an 'Ezhava' to claim that M.F.A.No.12/2004 12 he belongs to 'Thandan' community', because it is greatly advantageous to him in the field of education and in the employment market, especially, in the public sector and public services. So, going by the materials produced by both sides, we are inclined to uphold the view taken by the Scrutiny Committee that the appellant does not belong to 'Thandan' community. We agree with the conclusion of the Committee that she belongs to Ezhava/Thiyya community. But, we notice that she obtained the caste certificate as per the interim orders of this Court. Therefore, she is not liable to be prosecuted under Section 16 of the Act. Subject to that observation, this Miscellaneous First Appeal is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps