IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 O.P.No.3750 of 1997(U) ---------------------------------------------------- PETITIONERS:- ------------------- 1. SCHEDULED CASTE & SCHEDULED TRIBES ACTION COMMITTEE, KOTTAKKAL P.O. - 676 503, MALAPPURAM DISTRICT, REPRESENTED BY ITS CONVENER, K.K.SANKARAN VAIDYAR. 2. C.M.BALAN VAIDYAR, MEMBER, SCHEDULED CASTES AND SCHEDULED TRIBES ACTION COMMITTEE, KOTTAKKAL P.O. - 676 503, MALAPPURAM DISTRICT. BY ADV. SRI.P.K.ABOOBACKER (EDATHALA) SRI.P.CHANDRASEKHAR RESPONDENTS:- --------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, SCHEDULED CASTES AND SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, KERALA INSTITUTE FOR RESEARCH TRAINING AND DEVELOPMENT, STUDIES FOR SCHEDULED CASTES & SCHEDULED TRIBES, CHEVAYUR, CALICUT - 673 017. 3. UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF WELFARE, GOVERNMENT OF INDIA, NEW DELHI. R1 & R2 BY SPECIAL GOVERNMENT PLEADER SRI.P.SANTHOSH KUMAR. R3 BY ASST.S.G. SRI.P.PARAMESWARAN NAIR. BY ADV. SRI.JOHN VARGHESE, ASSISTANT S.G. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No.3750 OF 1997-U APPENDIX PETITIONER'S EXHIBITS:- ------------------------------------- EXT.P1 - PHOTO COPY OF THE ANTHOROPOLOGICAL REPORT OF THE KIRTADS. EXT.P2 - PHOTO COPY OF THE CIRCULAR NO.13033/E2/90 DT.27.11.1991. EXT.P3 - PHOTO COPY OF THE PETITION REF.NO.SC/ST.K.S.2/92-93 DT.7.12.92 TO THE HON'BLE MINISTER, HARIJAN WELFARE DEPARTMENT BY THE PETITIONER. EXT.P4 - PHOTO COPY OF THE NEWS REPORTED IN MALAYALA MANORAMA DAILY DATED 21.1.97. EXT.P5 - PHOTO COPY OF THE JUDGMENT IN O.P.NO.13031/93-B DATED 27.9.93 IN THE HIGH COURT OF KERALA. EXT.P6 - PHOTO COPY OF THE PETITION DATED 28.7.95 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA. EXT.P7 - PHOTO COPY OF THE LETTER DATED 28.12.95 TO THE HON'BLE CHIEF MINISTER OF KERALA BY THE PETITIONER. EXT.P7(a) - PHOTO COPY OF THE LETTER DATED 10.8.95 OF THE HON'BLE CHIEF MINISTER TO THE PETITIONER. EXT.P8 - PHOTO COPY OF THE PETITION DATED 14.8.96 SUBMITTED BY THE 1ST PETITIONER BEFORE THE CHIEF MINISTER OF KERALA. RESPONDENT'S EXHIBITS:- --------------------------------------- NIL (true copy) H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------------------ O.P.No.3750 of 1997-U ------------------------------------------------------- Dated, this the 3rd day of January, 2008 JUDGMENT K.M.Joseph, J. This original petition has been referred to the Division Bench by the learned Single Judge. The learned Single Judge noted that there is conflict in the judgments referred in M.F.A.No.636 of 2003 reported in Madhavi Vs. Scrutiny Committee (2004 (3) KLT 967) and the Division Bench decision of this Court in State of Kerala V. Balakrishnan (1992 (1) KLT 396) and hence this reference. (2). The petitioners are the Scheduled Caste and Scheduled Tribes Action Committee and one of the members of the committee. They have approached this Court in the original petition seeking a declaration that Peruvannan, Purumannan, Vannan and Mannan are one and the same caste. They further seek for a declaration that Peruvannan is entitled to be treated as Vannan in the State of Kerala and also for a writ of mandamus or other appropriate writ directing the respondent to issue necessary orders treating Peruvannan in Kerala as Vannan. (3). Briefly put, the case of the petitioners is as follows: Mannan, Vannan, Perumannan and Peruvannan in Kerala belong to the very same community. While Mannan, Perumannan and Vannan are included in the Scheduled Caste in Kerala, Peruvannan has been included in the Other O.P.No.3750/97 -2- Backward Communities. As per the report of the KIRTADS, Mannan, Vannan, Perumannan and Peruvannan belong to one and the same community. Petitioners referred to Ext.P1 report to contend that they belong to one and the same community. Ext.P1 report has been accepted by the Government of Kerala and it has issued Ext.P2 Circular. The said report of the KIRTADS as evidenced by Ext.P1 would show that there is no separate caste as Peruvannan and Perumannan. These names are only reformed form of castes Vannan/Mannan. Petitioners referred to Gundart's Malayalam dictionary to contend that 'Mannan' has been described as 'Vannan'. They contended that they are entitled for reservation under Articles 16 (4) and 15 (4). Denial of equal treatment is total violation of Articles 14, 15 and 16 of the Constitution. They refer the earlier original petition and Ext.P5 judgment wherein this Court directed consideration of their representation. (4). The question that arises for our consideration and decision is whether there is any conflict between the judgments of this Court as aforesaid. In B. Basavalingappa Vs. D.Munichinnappa ( AIR 1965 SC 1269) the question which arose was whether Voddar caste of Mysore State was the same as 'Bhovi' caste mentioned in the Constitution (Scheduled Castes) Order 1950. It was found that there was no such caste as Bhovi in the Mysore State as it existed prior to 1956. It is in the context of the said factual situation the Court proceeded to hold as follows: O.P.No.3750/97 -3- “ It may be accepted that it is not open to make any modification in the Order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also a part of caste A and, therefore, must be deemed to be included in caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in the Order. Ordinarily, therefore, it would not be open to give evidence that the Voddar Caste was the same as the Bhovi caste specified in the Order for Voddar caste is not mentioned in brackets after the Bhovi caste in the Order. But difficulty arises in the case of Mysore State as it was before the reorganisation of 1956 from the fact that there was no caste known as Bhovi at all. The order refers to a scheduled caste known as Bhovi in the Mysore State as it was before 1956 and, therefore, it must be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the Order, when the Order mentions the caste Bhovi as a scheduled caste. It cannot be accepted that the President included the caste Bhovi in the Order though there was no such caste at all in the Mysore State as it existed before 1956. When it is not disputed that there was no caste specifically known as Bhovi in the Mysore State before 1956, the only course open to Courts to find out which caste was meant by Bhovi is to take evidence in that behalf.” (5). In State of Kerala V. Balakrishnan (1992 (1) KLT 396) O.P.No.3750/97 -4- the Division Bench of this Court had to consider the question as to whether the caste Palluvan mentioned in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act 1976 is the same as Pulluvan. Therein the Division Bench referred to the decision of the Apex Court reported in B. Basavalingappa Vs. D. Munichinnappa ( AIR 1965 SC 1269) and proceeded to hold that there is no caste as Palluvan in the State of Kerala. They also took note of the fact that in the 1950 order the community included was Pulluvan. Following the decision of the Apex Court, the Division Bench took the view that the actual Scheduled Caste in question is Pulluvan and not Palluvan and it was only a spelling mistake. The entire premise of the judgment was that there is no caste as Palluvan in the State of Kerala and also when a Presidential Order is brought out in the year 1950 it included Pulluvan, what was intended to be included was the caste Pulluvan. The same is the position in Akhila Kerala (Hindu) Chemman Samajam V. Union of India (1994 (2) KLT 732). There the Court had to consider the question as to whether there was a caste by the name 'SEMMAN'. It is found that it was admittedly a non-existing community and the Court held as follows: “ The Presidential Order included a community by name “Semman”. Admittedly it is a non-existent community. The President cannot be attributed with the intention to include such a non-existent community in the list. That community has now clearly found by the Commission constituted by the State of Kerala to be 'Chemman'. So, O.P.No.3750/97 -5- members of that community should have been extended the benefit as members of the Scheduled Caste.” (6). Herein also the Court followed the decision of the Apex Court in B. Basavalingappa Vs. D. Munichinnappa ( AIR 1965 SC 1269) and held that the caste shown as 'SEMMAN' represents the caste by name 'Chemman' and the members of the 'Chemman' caste are entitled to the benefits treating them as members of Scheduled Caste. “ (7). As far as Madhavi Vs. Scrutiny Committee (2004 (3) KLT 967) is concerned the question which fell for consideration of the Division Bench was whether the State Government, KIRTADS or the Scrutiny Committee have got power to include in or exclude from or substitute or declare synonyms to be a scheduled caste or parts thereof or group of such caste. Sl.No.37 of the Presidential order treats Mannan as Scheduled Caste. Sl.No.53 is Perumannan and Sl.No.65 is vannan. All these castes were treated as Scheduled Caste. The Constitution (Scheduled Caste) Orders (Second Amendment) Act 2002 also treats Mannan, Perumannan, Vannan and Velan under serial number 37 as Scheduled Castes. The community Peruvannan is however treated as OBC in the State of Kerala. The Division Bench proceeded to hold as follows: “ The question is whether Peruvannan could be considered by the State Government and other authorities as synonyms of Vannan, Mannan, Perumannan. The Apex Court had occasion to consider similar issues in several O.P.No.3750/97 -6- cases. In Nityanand Sharma Vs. State of Bihar (1996) 3 SCC 576 ) the Apex Court considered the question whether lohars could be considered as synonym like loharas or lohras. The Court held that lohars is other backward class and is not scheduled tribe and the Court cannot give any declaration that lohars are equivalent to loharas or lohras or that they are entitled to the same status. Reference can also be made to the decisions of the Apex Court in Bhaiyalal Vs. Harikishan Singh (AIR 1965 SC 1557), B. Basavalingappa Vs. D. Munichinnappa (AIR 1965 SC 1269), Srish Kumar Choudhaury Vs. State of Tripura (1990 Supp.SCC 220) and Vinay Prakash Vs. State of Bihar ( 1997) 3 SCC 406). The Apex Court in Bhalivalal's case (supra) held that the object of Cl.(1) of Art.341 is to avoid all disputes as to whether a caste is scheduled caste or not for the purpose of the Constitution. In S.Nagarajan Vs. District Collector, Salem (1997) 2 SCC 571) the Apex Court held that it is the Presidential Notification issued under Art.341 which is to decide who is deemed to be a member of a scheduled caste for the purpose of the Constitution. If the Presidential notification omit any specific class or tribe or a part thereof, then it would be for the Parliament to make necessary amendments. Therefore to determine whether a particular caste is scheduled caste coming within the meaning of Art.341, one has to look at the terms of the Presidential order. Law is well settled that once the Parliament by law includes in or excludes from any race, caste, tribe, parts of or groups within any caste, race or tribe, the President thereafter shall have no power to vary it by any subsequent notification. The Court has also no power to include in or exclude from or substitute or declare O.P.No.3750/97 -7- synonyms to be of a scheduled caste or scheduled tribe or group of such caste or tribe”. (8). The question which arose before the Division Bench was not whether there was a caste as Peruvannan or Vannan in the State of Kerala. There is no case for the petitioners that in fact there is no caste as Mannan, Vannan or Perumannan in the State. What the petitioners seek is to declare that Peruvannan is the same as Perumannan, Mannan and Vannan. Therefore, actually there is no conflict in the judgments of this Court in State of Kerala V. Balakrishnan (1992 (1) KLT 396) and Akhila Kerala (Hindu) Chemman Samajam V. Union of India (1994 (2) KLT 732) with the decision in Madhavi Vs. Scrutiny Committee (2004 (3) KLT 967) as the factual matrix which arose in the decisions in State of Kerala V. Balakrishnan (1992 (1) KLT 396) and Akhila Kerala (Hindu) Chemman Samajam V. Union of India (1994 (2) KLT 732) was not available in Madhavi Vs. Scrutiny Committee (2004 (3) KLT 967). The cases reported in State of Kerala V. Balakrishnan (1992 (1) KLT 396) and Akhila Kerala (Hindu) Chemman Samajam V. Union of India (1994(2) KLT 732) followed the principle of the decision in B.Basavalingappa Vs. D. Munichinnappa (AIR 1965 SC 1269). The dictum in the said cases must be confined to the special facts of that case. In a situation where a particular caste mentioned in a Presidential order was found to be non-existent, the Court has found that it is a case of spelling mistake and the Court found that the appropriate caste which is present in the State will be O.P.No.3750/97 -8- entitled to the benefit of Scheduled Caste as intended under the Presidential Order. (9). It may not be open to this Court to tinker with the Presidential order and even the circumstances which were available in the case of B. Basavalingappa Vs. D. Munichinnappa (AIR 1965 SC 1269) State of Kerala V. Balakrishnan (1992 (1) KLT 396) and Akhila Kerala (Hindu) Chemman Samajam V. Union of India (1994 (2) KLT 732) are not present in this case. In State of Maharashtra Vs. Milind (2001 (1) SCC 4) which is a decision rendered by the Constitution Bench, the Apex Court held as follows: “......States have no power to amend Presidential Orders. Consequently, a party in power or the Government of the day in a State is relieved from the pressure or burden of tinkering with the Presidential Orders either to gain popularity or secure votes........Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste, a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342 particularly so when in clause (2) of the said article, it is expressly stated that the said Orders cannot be amended or varied except by law made by Parliament. The power to include or exclude, amend or alter Presidential Order is expressly and exclusively conferred on and vested with Parliament and that too by making a law in that regard.” O.P.No.3750/97 -9- (10). This has been referred to by the Apex Court in A.S.Nagendra Vs. State of Karnataka (2005 (10) SCC 301). Later, we also notice that this principle has been followed in a still later decision in Shree Surat Valsad Jilla K.M.G. Parishad Vs. Union of India (2007 (5) SCC 360) wherein the Apex Court held as follows: ”It is, therefore, not for the court to render its opinion as to whether the President was correct in confining inclusion of the caste Mochi within a particular area.” (11). It is therefore clear that the declaration which the petitioners seek in this writ petition cannot be granted to them. This is not a case where the petitioners have a case that Mannan, Vannan and Perumannan are not available in the State. They only seek a declaration that Peruvannan is same as Mannan, Vannan and Perumannan. The request of the petitioners would essentially involve re-writing of the Presidential Order which is clearly impermissible having regard to the catena of decisions which we have already referred to. (12). Sri.Santhosh Kumar, learned Special Government Pleader for Scheduled Caste and Scheduled Tribes would contend that, in fact acting upon Ext.P1 report, the State Government had taken the matter with the Government of India seeking issuance of Presidential Order including Peruvannan also as a Scheduled Caste. However, Government of India sought clarification from the State Government. Upon receipt of the O.P.No.3750/97 -10- said communication from the Government of India, the State Government sought further report from KIRTHADS. The learned counsel would submit that, the KIRTHADS would be in a position to complete the enquiry within three months. He would further submit that, upon receipt of the report from KIRTHADS, appropriate action will be taken by the State of Kerala on the basis of the report furnished by KIRTHADS. We record this submission of the learned Special Government Pleader. No further relief could be granted to the petitioners. Accordingly, the original petition is dismissed subject to recording the submissions of the learned Special Government Pleader. (13). In view of the order passed in the original petition C.M.P.No.6850/97 is dismissed. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE MS