IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 MFA.No. 1377 of 2002(C) ------------------------------------ (AGAINST THE PROCEEDINGS OF THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES BEARING NO.3445/G-2/97/SCSTDD DTD. 21/11/2002) ............... APPELLANT(S): ------------------------- 1. A.N.RAMACHANDRAN S/O. A.K.NARAYNAN, AYANKULANGARA HOUSE, NADUVATHUPARA P.O., PERINGOTTUKURRISSI. 2. A.N./CHANDRAMATHY, PUZHPAK, MULLUKKARA, MANUTHY .P.O., TRICHUR. 3. A.N.SAROJINI, PADINJAKARA HOUSE, CHERUTHURUTHY, TRICHUR. 4. A.R.SAJEESH, S/O. N.RAMACHANDRAN, AYAKULANGARA HOUSE, NADUVATHUPARA P.O., PERINGOTTUKURISSI. 5. A.R.SHEENA, D/O..A.N.RAMACHANDRAN, AYAKULANGARA HOUSE, NADUVATHUPARA P.O., PERINGOTTUKURISSI. BY SMT.V.P.SEEMANDINI, SENIOR ADVOCATE, BY ADV. SMT.GAYATHRI VIJAYAN, MR.M.R.ANISON RESPONDENT(S): --------------------------- 1. THE SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES, GOVERNMENT SECRETARIAT, TRIVANDRUM, REPRESENTED BY ITS CHAIRMAN Kss ..2/- ...2...... M.F.A.NO.1377/2002 2. THE VIGILANCE CELL, DIRECTORATE OF KIRTADS, KOZHIKODE-17, REPRESENTED BY ITS VIGILANCE OFFICER 3. KIRTADS, DIRECTORATE OF KIRTADS, KOZHIKODE-17, REPRESENTED BY ITS DIRECTOR 4. THE UNION BANK OF INDIA, REPRESENTED BY ITS GENERAL MANAGER (PERSONAL) CENTRAL OFFICE, UNION BANK BHAVAN-239, BITHAL BHAVAN MARG, NARIMAN POINT, MUMBAI 400 021. 5. THE STATE BANK OF TRAVANCORE, REPRESENTED BY ITS ASSISTANT GENERAL MANAGER, REGIONAL OFFICE, PALAKKAD. 6. THE UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, THENHIPPALAM, MALAPPURAM. 7. THE TAHSILDAR, PALAKKAD. 8. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, SC/ST DEVELOPMENT DEPARTMENT, TRIVANDRUM. R1 TO R3, 7 & 8 BY SPL.GOVERNMENT PLEADER MR.P.SANTHOSHKUMAR R4 BY ADV.MR.A.S.P.KURUP, SC R5 BY ADV.MR.K.K.JOHN R6 BY ADV.MR.S.GOPAKUMARAN NAIR, SC, CALICUT UTY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.8237/2002 IN M.F.A.NO.1377/2002 DISMISSED 28/01/2009 SD/- K.BALAKRISHNAN NAIR, JUDGE SD/-K.SURENDRA MOHAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ M.F.A. NO: 1377 OF 2002 ----------------------------------------------------------------------------------- Dated this the 28th January, 2009. JUDGMENT BALAKRISHNAN NAIR, J. The appellants challenge the proceedings of the Scrutiny Committee for verification of community certificate (No: 3445/G- 2/97/SCSTDD) dated 21.11.2002. By the said order, the Scrutiny Committee constituted under the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (hereinafter referred to as the 'Act') has held that the appellants do not belong to Thandan Scheduled Caste Community, but belong to Thiyya community. The above decision of the Scrutiny Committee rendered under Section 11 of the Act, is challenged by filing this Miscellaneous First Appeal under Section 12(3) of the Act. 2. The brief facts of the case are the following:- Appellants 2 and 3 are the sisters of the first appellant and appellants 4 and 5 are the children of the first appellant. Appellants claim that they belong to Thandan community, which is declared as a scheduled caste, as per the Presidential Notification issued in 1976. Several M.F.A.No: 1377/2002 2 documents which came into existence long before 1976, would show that the appellants and their predecessors were members of Thandan community, it is submitted. They also rely on a few judgments of this Court, upholding the claim of their close relatives that they belong to Thandan Scheduled Caste Community. 3. Appellants 2 and 3 got employment in the State Bank of Travancore and Union Bank of India respectively on 26.10.1978 and 22.9.1980, in the quota reserved for scheduled caste. They produced caste certificates issued by the competent authority, while seeking appointment under the said Banks. While so, based on some petitions filed by persons having vested interest against appellants 2 and 3, the Vigilance Officer of KIRTADS, Kozhikode issued notices to them to appear before him on 9.8.1996 and 15.10.1996 for an enquiry into the caste status of them. They appeared on the said dates and submitted all documents in support of their claim that they are members of the scheduled caste Thandan Community. Later, they were served with a copy of the report dated 16.12.1996, prepared by the second respondent KIRTADS, along with a show cause notice issued by the first respondent/Scrutiny Committee. The appellants submitted a detailed written explanation on 2.5.1997 along with 44 documents to support their scheduled caste status. They were personally M.F.A.No: 1377/2002 3 heard by the first respondent on 30.6.1999. They appeared through counsel and made their submissions. Later, again they were served with a notice in October 2002, calling upon them to appear before the Scrutiny Committee for personal hearing on 26.10.2002. On that date also they appeared and reiterated their contentions. 4. In the meantime, the first appellant who is the brother of appellants 2 and 3 approached the Tahsildar, Palghat for issuing community certificates for his two children, the 4th and 5th appellants. The Tahsildar rejected his request, by order dated 13.8.1998. He filed an appeal against that order before the Revenue Divisional Officer. The Revenue Divisional Officer rejected his appeal by proceedings dated 7.9.1998. The first appellant preferred a revision before the Government. In the meantime, appellants 4 and 5 had to approach this Court to get community certificates, to get admission for higher studies. A Division Bench of this Court directed the State Government to dispose of the revision filed on behalf of appellants 4 and 5 within a time frame. 5. In the meantime, the vigilance cell of the KIRTADS had already initiated proceedings against appellants 1, 4 and 5, to determine their caste status. The Vigilance Officer of the KIRTADS submitted a report against them on 28.9.2001. They were served M.F.A.No: 1377/2002 4 with a copy of the said report by the Scrutiny Committee. The first appellant appeared before the Committee on 28.9.2002. Again, he appeared along with his counsel before the Scrutiny Committee on 19.10.2002. Finally, the matter was heard on 26.10.2002. Over- ruling the objections of the appellants, the Scrutiny Committee passed a common combined order by proceedings dated 21.11.2002, holding that the appellants do not belong to scheduled caste Thandan Community, but are members of Thiyya community, which is an OBC in Kerala. Aggrieved by the said order, the present appeal is filed by them. During the pendency of the appeal, based on the impugned order of the Scrutiny Committee, consequential adverse orders have been passed against them by the Government, a copy of which is produced in this appeal along with C.M.P.8237/2002. 6. The appellants attack the reports of the KIRTADS as also the impugned order of the Scrutiny Committee on various grounds. They submit that the KIRTADS prepared the reports based on enquiries made behind their back. Though, the appellants requested before the Scrutiny Committee to give a chance to cross- examine the witnesses, who have given statements against them, the said claim was rejected. Secondly, it is submitted that A.N. Sivanandan, who is the brother of appellants 1 to 3, got a decision M.F.A.No: 1377/2002 5 in his favour, declaring his caste as Thandan in O.P.4506/1979. Similarly their father's brother's daughter Padmini also got a decision in her favour declaring that she belongs to Thandan community in O.P.5010/1987. Thirdly, it is contended that several documents, including those of pre-independent period, describe the predecessors of the appellants as belonging to Thandan community. While those documents were drafted, no one had an inkling that Thandan community is going to be declared as a Scheduled Caste Community in 1976. Such documents have great probative value. Therefore, such documents and other documents produced before the Scrutiny Committee should have been relied on by the said authority. Instead, all those relevant documents were rejected on flimsy grounds. It is also submitted that there was also omission to consider some of the relevant documents produced by the appellants. So the impugned order is vitiated, it is submitted. 7. The official respondents have filed a detailed counter affidavit and have produced the two reports of the vigilance cell of the KIRTADS against the appellants. They also produced various documents, which were relied on by the Scrutiny Committee to reject the scheduled caste claim of the appellants. The learned Special Govt. Pleader, appearing for the official respondents, M.F.A.No: 1377/2002 6 submitted that going by Section 10 of the Act the burden of proof to show that they belong to the Scheduled Caste Thandan Community rests heavily on the appellants. But, they have failed to produce any reliable material to support their claim. He also pointed out that Section 9(2) of the Act makes the reports of the expert agency (KIRTADS) conclusive proof for or against the scheduled caste or scheduled tribe claim, as the case may be, of the persons concerned. The Scrutiny Committee being a statutory authority is bound by the said statutory provision. So, even if evidence is let in before the Scrutiny Committee in support of their claim of Scheduled Caste status, in view of sub-section (2) of Section 9, such evidence cannot be looked into by the Scrutiny Committee. The learned Special Govt. Pleader also brought to our notice the various documents relating to the appellants and their close relatives, including school admission registers, which would show that they are in fact members of Thiyya community and to corner the benefits available to the members of scheduled caste, recently they have started calling themselves as Thandans and got caste certificates for the said purpose. In this case, based on the relevant evidence on record, the decision has been rendered by the Scrutiny Committee. Therefore, the learned Govt. Pleader prayed for dismissal of the appeal. M.F.A.No: 1377/2002 7 8. We considered the rival submissions made at the Bar. We also went through the two reports of the KIRTADS and the impugned order of the Scrutiny Committee. We have perused the materials placed by both sides before the said Committee. We will first deal with the contention raised by the learned Special Government Pleader relying on Section 9(2) of the Act. Section 9(2) reads as follows:- “The report of the Expert Agency shall be conclusive proof for or against the Scheduled Caste or the Scheduled Tribe claim, as the case may be, of the persons reported upon.” Section 4 of the Indian Evidence Act defines what is conclusive proof in the following manner:- “When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.” In many enactments, we find provisions dealing with conclusive proof. In certain enactments it is said that some fact will be conclusive evidence of some other fact. The distinction between these two expressions has been settled by the Apex Court in Smt. Somawanti and others v. The State of Punjab and others (AIR 1963 SC 151) . Majority of the Judges in that case held that there is no substantial distinction between the above said two M.F.A.No: 1377/2002 8 expressions. When fact (a) is said to be conclusive evidence of fact (b), then fact (b) can be proved either by proving the existence of fact (a) or by some other evidence. Once fact (a) is proved, it will be impermissible to adduce any evidence to disprove fact (b). In the said decision it was held as follows:- “ 19. The object of adducing evidence is to prove a fact. The Evidence Act deals with the question as to what kind of evidence is permissible to be adduced for that purpose and states in S.3 when a fact is said to be proved. That section reads thus: 'Evidence means and includes--- (1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court such documents are called documentary evidence. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists.' Since evidence means and includes all statements which the Court permits or requires to be made, when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact it implies that that fact can be proved either by that evidence or by some other evidence which the court permits or requires to be advanced. Where such other evidence is adduced it would be open to the Court to consider whether, upon that evidence, the fact exists or not. Where on the other hand, evidence which is made conclusive is adduced, the Court has no option but to hold that the fact exists. If that were not so it would be meaningless to call a particular piece of evidence as conclusive evidence. Once the law says that certain evidence is conclusive it shuts out any other evidence which M.F.A.No: 1377/2002 9 would detract from the conclusiveness of that evidence. In substance, therefore, there is no difference between conclusive evidence and conclusive proof. Statutes may use the expression 'conclusive proof' where the object is to make a fact non-justiciable. But the legislature may use some other expression such as 'conclusive evidence' for achieving the same result. There is thus no difference between the effect of the expression 'conclusive evidence' from that of 'conclusive proof', the aim of both being to give finality to the establishment of the existence of a fact from the proof of another.” Thus, if the report of the KIRTADS held that a person does not belong to scheduled caste, then that issue is no longer justiciable. 9. But, the finality given under a statute to the decision of a statutory authority is available, if only the decision is taken in accordance with law. If the decision is taken in violation of the provisions of the statute or without following the due procedure, then such a decision can be impugned even before ordinary civil courts, notwithstanding the finality clause. Therefore, we feel that if the appellants are able to show some fundamental flaw in the procedure followed by the Scrutiny Committee in arriving at its conclusion, the provisions of Section 9(2) will not stand in the way of examining the validity of the impugned order. So, the non- justiciability of the finding of the KIRTADS pointed out by the learned Special Government Pleader will depend upon the irregularities or illegalities pointed out by the appellants against M.F.A.No: 1377/2002 10 the report. In other words, it is not a matter which can be decided at the threshold. It is a contention to be decided along with the merits of the grounds put forward by the appellants. 10. Now, we will examine the documents produced by both sides concerning the appellants. First, we will refer to the documents produced by the first appellant. It is common case that Kunjiraman and Chellu are the grand parents of appellants 1 to 3. Kunjiraman had 9 children. A.K.Narayanan, who is one among them is the father of appellants 1 to 3. Document No: 151 of 1114 (Annexure A1 produced by the first appellant before the Scrutiny Committee) describes A.K.Narayanan as the son of Thandan Kunjiraman. Annexure A2 is a mortgage deed executed by A.K.Narayanan, son of Thandan Kunjiraman. Annexure A3 which is a document of 1932 describes Chami, father of Kunjiraman as Thandan Chami. Annexure A4 describes Kunjiraman the paternal grand father of first appellant as Thandan. Annexure A5 also describes Kunjiraman as Thandan. In Annexure A6, produced by the very same appellant, Kunjirman, who is the paternal grand father, is described as Thandan. In Annexure A7 also, again Kunjiraman is described as Thandan. 11. Now, we will refer to the documents produced by appellants 2 and 3. Document No: D9 of 1913 produced by them M.F.A.No: 1377/2002 11 before the Scrutiny Committee describes Kunjirman's father Chami as Thandan. The School admission registers of A.K.Girija and Subadra, who are the daughters of the brother of A.K.Narayanan, would show that they belonged to Thandan community. Annexure A33 is the certified copy of the admission register of Krishna Das, son of A.K.Gopalan, who is the brother of A.K.Narayanan, the father of appellants 1 to 3. The same would show that Krishna Das belongs to Thandan community. Annexuure A35 is the extract of the school admission register of the first appellant. The same shows his caste as Thandan. Annexure A37 is the extract of the admission register of Chandramathy, second appellant, which would show that her caste is Thandan. Annexure A42 is the relevant page of the S.S.L.C book of the third appellant, which would show that her caste is Thandan. Annexure A43 is the relevant page of the S.S.L.C book of Indira Devi. N, who is one of the sisters of appellants 1 to 3. As per that document her caste is Thandan. Annexure A50 is the School admission register relating to Chellamma, who is the daughter of Chami, the brother of A.K.Narayanan. Annexure A51 is the School admission register of Bharghavi, the sister of the above Chellamma. Those documents would show that both of them belonged to Thandan community. Annexure A52 is the school admission register of A.K.Sukumari, M.F.A.No: 1377/2002 12 D/o. Kuttikrishnan, who is the brother of A.K.Narayanan. It shows that she belongs to Thandan community. Document Nos: A28 & A31 to 37, produced by Chandramathi and Sarojini, would show that their mother's relatives also were mentioned as Thandan in those documents. Annexure A28 is a registered partition deed and Annexures A31 to A37 are the extracts of school admission registers. The above documents which came into existence before 1976, conclusively prove that the caste of the appellants is Thandan, it is claimed by the appellants. 12. Per contra the learned Special Govt. Pleader made the following submissions:- He submitted that the appellants and all their blood relations belong to Thiyya community. The marital relations between admitted Thiyyas and the kith and kin of the appellants will fortify that fact. Some persons of the Thiyya community were called Thandans as an honorific title and some of the descendants of such persons also were described as Thandans in common parlance. They are all Thiyyas with a higher status in the society, especially among the Thiyyas, it is submitted. The learned Special Government Pleader relied on the following documents to show that the appellants and their blood relations are Thiyyas/Ezhavas. He first referred to the documents mentioned in Ext.R8(a) report of the KIRTADS dated 16.12.1996 M.F.A.No: 1377/2002 13 against appellants 2 and 3. 13. Document No:4 which is the extract from the admission register of Govt. L.P. School, Peringottukurissi would show that Shaji A.K belongs to Thiyya community. He is the son of A.G. Krishna Das, who is the son of A.K. Gopalan, the brother of A.K. Narayanan, the father of appellants 1 to 3. Document No:5 would show that Lalitha A.K belongs to Hindu Thiyya community. She is the daughter's daughter of A.K. Gopalan, the brother of the said A.K. Narayanan. Document No:6 which is an extract of the admission register of Govt. L.P. School, Kottayi dated 13.5.1927 would show that A.K. Govindan belongs to Ezhava community. A.K. Govindan is the brother of the said A.K. Narayanan. Document No:7 relates to A.K. Kumaran. It is an extract from the admission register of Govt. High School, Kottayi dated 14.6.1937, which would show that the said person belongs to Ezhava Community. A.K. Kumaran is the brother of the aforesaid A.K. Narayanan. Document No: 8 relates of Subadra A.K, who is the daughter of A.K. Kumaran, the brother of A.K. Narayanan. It is the admission register of Govt. High School, Peringottukurissi dated 7.6.1957. In that document her caste is shown as Ezhava. Document No:9 would show that Sulekha A.K. Is a member of Thiyya community. She is the sister of Subadra A.K, mentioned in document No: 8. M.F.A.No: 1377/2002 14 Document No: 10 shows that Sujatha A.K belongs to Hindu Ezhava community. She is another sister of Subadra A.K mentioned in document No: 8. Document No: 11 relates to none other than the mother of appellants 1 to 3 Smt. M. Mookami. She was admitted in Little Flower Girls High School on 12.10.1922. In that document her caste is shown as Ezhava. Document No: 12 relates to Sivanandan A.N. He was admitted in Govt. L.P. School, Peringottukurissi on 3.6.1968. This document, which is the extract of the admission register of that school, shows that he belongs to Thiyya community. Sivanandan A.N is the brother of appellants 1 to 3. Document No: 13 is an extract from the SSLC book of the second appellant. The same would show that her caste shown in that document is Thiyya. Document Nos: 14 to 16 relate to Pushpangathan K.N (husband of second appellant) and his sisters. Those documents would show that they are members of Ezhava community. Document Nos: 17 and 18 relate to Ranjith K.P and Rajini K.P, who are the children of the second appellant Chandramathi. Those documents are the school admission registers of those children wherein their caste is shown as Ezhava. Document Nos: 26 and 27 which are the extracts of School admission register would show that Shalima P.A, who was born on 10.3.1988, belongs to other backward community. She is the M.F.A.No: 1377/2002 15 daughter of Sarojini, the third appellant. Since the children's admissions in the educational institutions were made after 1976, if they belong to scheduled caste community, the said claim would have been raised, it is pointed out. Document No: 28 would show that Padmini A.K belongs to Thiyya community. She is the daughter of A.K. Kumaran, the brother of A.K. Narayanan, who is the father of appellants 1 to 3. Document Nos: 29 and 30 also relate to A.K Padmini, which would show that she belongs to Thiyya community. The above documents, as mentioned earlier, were those produced in Annexure R8(a) report. 14. The documents hereafter referred to are those mentioned in Annexure R8(b) report dated 28.9.2001 of the KIRTADS against appellants 4 and 5. Document No: 19 is the third page of the SSLC book of Ramachandran A.N, the first appellant. The same would show that he belongs to Thiyya community. Document No: 20 relates to Chandramathi A.N, the second appellant. The said document is an extract from her SSLC book. The same would show that she belongs to Thiyya community. 15. We notice that the Scrutiny Committee considered the above documents and arrived at a finding that the appellants belong to Thiyya community and not Thandan community. Since the appellants pointed out various flaws in the consideration of M.F.A.No: 1377/2002 16 materials by the Scrutiny Committee, we will independently evaluate the probative value of the documents produced by both sides. It is not in dispute that some of the blood relations of the appellants including their predecessors were described as Thandan in the registered deeds and school admission registers concerning them. The Thandan community which was notified as a Scheduled Caste community in Travancore-Cochin Area is a very backward community. The members of that community are mainly engaged in plucking coconuts. It is their traditional avocation. They are treated as untouchables also. The Central Government issued a Presidential Order in 1976, as per which the Thandans of Malabar area also were treated as members of that Scheduled Caste. So, if the appellants belonged to a separate and independent community called Thandan community, then they are also entitled to be treated as members of the scheduled caste, by virtue of the decision of the Apex Court in Palghat Jilla Thandan Samudhaya Samrakshana Samithi and another v. State of Kerala {1994(1) KLT 118}. But, in this case, we notice that members of the same family related by blood are described as Thandan, Thiyya, Ezhava etc. contemporaneously. If they belong to Thandan community, there is no question of them being described as Thiyya and Ezhava also. So, in this context the contention of the respondents that some M.F.A.No: 1377/2002 17 persons among the Thiyya community were described using the honorific title 'Thandan' and members of their