IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 OP.No. 20205 of 1995(E) ------------------------------------ PETITIONER(S): ------------------------ P.A. SUGATHAN, WORKING AS ASSISTANT GRADE II (B), FOOD CORPORATION OF INDIA, DISTRICT OFFICE, MULANKUNNATHUKAVU, THRISSUR RESIDING AT MAAHINI, MULANKUNNATHUKAVU, THRISSUR - 680 581. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV. MR.P.R.VENKETESH, MR.JOJI VARGHESE, MR.D.NARENDRANATH. RESPONDENT(S): --------------------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TAHSILDAR, THALAPALLY TALUK, WADAKKANCHERRY, THRISSUR DISTRICT. 3. THE DISTRICT MANAGER, FOOD CORPORATION OF INDIA, DISTRICT OFFICE, MULANKUNNATHUKAVU, THRISSUR. 4. THE SENIOR REGIONAL MANAGER, FOOD CORPORATION OF INDIA, REGIONAL OFFICE, KESAVADASAPURAM, THRISSUR. *ADDL.R5 IMPLEADED: R5. THE VIGILANCE OFFICER, VIGILANCE CELL, DIRECTORATE OF KIRTARDS, KOZHIKODE - 17. (*ADDL.R5 IS IMPLEADED AS PER ORDER DTD. 13/01/2003 IN CMPNO..900/03) R1, R2 & R5 BY SPL.GOVERNMENT PLEADER MR. P.SANTHOSHKUMAR R3 & R4 BY ADV.MR.TPM.IBRAHIM KHAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP.NO.20205/1995 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEVANT PAGE OF THE SSLC BOOK OF THE PETITIONER. P2: COPY OF CERTIFICATE NO.K.DIS.21742/77 (A4) DTD. 2/03/1978 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P3: COPY OF JUDGMENT DTD. 23/09/1982 IN OP.NO.1453OF 1982B ISSUED BY THIS HON'BLE COURT. P4: COPY OF THE PETITION DTD. 12/12/1995 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P5: COPY OF THE CERTIFICATE NO.A4.18958/95 DTD. 17/01/1996 ISSUED BY THE 2ND RESPONDENT TO PETITIONER. P6: COPY OF THE ORDER OF SUPREME COURT OF INDIA IN SLP(CIVIL) NO. 14604/2000 DTD. 27/09/2000. P7: COPY OF THE CERTIFICATE NO.165/74-75 DTD. 28/06/1975 FROM GOVT. COLLEGE, THRISSUR. P8: COPY OF THE OFFICE ORDER NO.2679/93/ESTT.I DTD. 27/12/1993 ISSUED BY FCI PROMOTING THE PETITIONER. P9: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE FCI ON 18/05/1995. P10: COPY OF THE MEMO ISSUED BY FCI TO PETITIONER DTD. 31/10/1998. P11: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER BEFORE FCI ON 1/02/1998. P12: EXTRACT OF THE SALE DEED NO.165 OF 1004 ME EXECUTED BETWEEN T\APPU AND KRISHNAN VAIDYAR. P13: COPY OF THE KANAM DEED NO.342 DTD. 19TH MEENOM 1115 ME EXECUTED BY RAO BAHADUR KUNHIRAMAN NAIR IN FAVOUR OF PETITIONER 'S FATHER'S FATHER KRISHNAN. P14: COPY OF THE RELEVANT PORTION OF PARTITION DEED NO.636 OF 1954. P15: COPY OF THE RELEVANT PORTION OF DOCUMENT NO.137 OF 1954 OF SRO PAZHAYANNUR EXECUTED BETWEEN UNNERI IN FAVOUR OF PETITIONER'S FATHER. P16: COPY OF THE AGREEMENT DTD. 15/12/1951 BETWEEN MANICKAN AND PETITIONER'S FATHER. Kss ..2/- ...2.... O.P.NO.20205/1995 E P17: EXTRACT OF THE SALE DEED NO.282 OF 17TH MEDOM 1095 M.E. EXECUTED BY KADANKULANGARA KARTHIYAYINI AMMA AND OTHERS IN FAVOUR OF PETITIONER'S MOTHER'S FATHER. P18: COPY OF THE RECEIPT NO.206 OF 16TH KARKITAKAM 1103 ME. P19: COPY OF THE ORDER IN ELECTION PETITION NO.3 OF 1960 DTD.5/12/1960. P20: COPY OF THE JUDGMENT OF THE MUNSIFF'S COURT, WADAKKANCHERRY DTD. 23/05/1967 IN ELECTION PETITION NO.9 OF 1963. P21: EXTRACT OF THE ADMISSION REGISTER OF PETITIONER'S YOUNGER BROTHER P.A. ASOKAN DTD. 23/05/1969. P22: EXTRACT OF THE ADMISSION REGISTER OF ANOTHER BROTHER OF PETITIONER RAVI DTD. 10/06/1960. P23: COPY OF THE COMMUNITY CERTIFICATE ISSUED IN FAVOUR OF PETITIONER'S ELDER BROTHER. P24: COPY OF THE TERMINATION ORDER ISSUED TO THE PETITIONER FROM FCI DTD. 6/02/2001. P25: COPY OF THE NOTICE DTD. 21/11/2002 FROM VIGILANCE OFFICER. P26: COPY OF THE REPLY BY THE PETITIONER DTD. 29/11/2002. P27: COPY OF THE NOTICE DTD. 31/12/2002. RESPONDENT'S EXHIBITS: R1(A): COPY OF APPLN. DTD. 15/09/1995 FROM K.K.MANI, DISTRICT SECRETARY, FCI/SC/ST EMPLOYEES WELFARE ASSOCIATION. R1(B): COPY OF LR.NO.27/96 DTD. 12/11/96 FROM VIGILANCE OFFICER, KIRTADS, KOZHIKODE. /TRUE COPY/ P.S.TO JUDGE Kss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 20205 of 1995 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 16th day of February, 2010. J U D G M E N T The petitioner obtained an employment in the Food Corporation of India on the strength of a community certificate issued by the 2nd respondent, certifying that the petitioner belongs to Thandan community, which is recognized as a scheduled caste in the State of Kerala. While the petitioner was so continuing as an employee of the Food Corporation of India, promotion became due to him. He was directed to produce a fresh community certificate certifying him as belonging to a scheduled caste. The petitioner applied to the 2nd for such a certificate. It was not issued to him. Subsequently, the petitioner was given a certificate showing that he belongs to Hindu- Ezhava known as Thandan community, which is included in the list of other backward communities in Kerala. Subsequently, proceedings were initiated under Act 11 of 1991 to decide the community status of the petitioner. By Ext. P 24 order, the services of the petitioner in the Food Corporation of India were terminated on the ground that he obtained the employment misrepresenting himself as belonging to a scheduled caste community. It is under the above circumstances, the petitioner has filed this original petition seeking the following reliefs: “a) Declare that the petitioner belongs to Thandan community which is scheduled caste within the State of Kerala within the meaning of Scheduled Caste order, 1950. b) Issue a writ in the nature of certiorari quashing Ext. P24. c) Issue a writ in the nature of mandamus commanding the respondents 3 and 4 to grant the petitioner benefit of the relief prayed for above. d) Issue a writ of mandamus or other appropriate writ, direction or order, directing the 2nd respondent Tahsildar to forthwith issue a community certificate in favour of the petitioner showing that he belongs to the Thandan community, a scheduled caste, or in the alternative be pleased to direct the 2nd respondent Tahsildar to consider Ext. P4 application and to grant a certificate as requested for therein, as expeditiously as possible and within such time as may be fixed by this Honourable Court.” 2. Ext. P24 is the order of the Food Corporation of India, whereby, the petitioner's service has been terminated on the ground that the petitioner obtained employment on the basis of a certificate certifying him to be a member of the scheduled caste and it was proved that he does not belong to a scheduled caste. Subsequently, on the strength of of the orders of stay, the petitioner continued in service and attained age of superannuation on 31-5-2009. 3. The petitioner now contends that in view of the decision of the Supreme Court in Palakkad Jilla Thandan Samudhaya Samrakshna Samithi & another v. State of Kerala, 1994 (1) KLT 118, the petitioner cannot be denied the benefit of the certificate validly issued to him certifying him as a person belonging to the Thandan community, which is recognised as a scheduled caste community. The petitioner also relies on a Division Bench decision of this Court in M.F.A. No. 195/2005, wherein this Court held that up to the date of amendment of the Constitution (Scheduled Caste) Order (Amendment) Act, 2007 dated 29-8-2007 by which the term 'Thandan' was modified by the words “excluding Ezhavas and Thiyyas who are known as Thandan in the erstwhile Cochin and Malabar Areas”, persons who have obtained community certificates certifying as belonging to Thandan, which is a scheduled community, is entitled to keep the benefits obtained by them till 29-8-2007. The petitioner would submit that the petitioner is entitled to the benefit of that judgment since the petitioner obtained employment on the strength of a valid community certificate issued to the petitioner by the appropriate authority. 4. The learned Government Pleader would contend that notwithstanding the judgment of the Supreme Court and the Division Bench, by virtue of Section 16A of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates (Amendment) Act, 2008, the Government is still entitled to withhold pensionary benefits due to the petitioner. 5. I have considered the rival contentions in detail. 6. Section 16A reads thus: “16A. Deferment of pensionary benefits— Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force or in any judgment, decree or order of any court, where a person secures any appointment in the Government or any Government Undertaking or local authority or any other authority against a post reserved for Scheduled Caste or Scheduled Tribe, by producing a fraudulent Community Certificate, and if, on an enquiry by the Expert Agency it is found that his claim is not genuine and if the incumbent retires while the enquiry by the Government or the Scrutiny Committee is pending, the Government or the Government Undertaking or local authority or any other authority as the case may be, shall have the power to defer and withhold the pensionary benefits of the incumbent pending decision by the Government or the Scrutiny Committee.” (underlining supplied) I am of opinion that Section 16A would apply only in cases where a benefit is obtained by producing a fraudulent community certificate. The learned Government Pleader would point out that it is applicable where a claim is found not genuine, Section 16A would apply. I am not satisfied that the petitioner's claim is not genuine, at least until 29-8-2007, in view of the Supreme Court decision and the Division Bench decision referred to above, on the subject. 7. I am not satisfied that the petitioner can be denied the benefits obtained by him on the basis of a certificate validly issued by the 2nd respondent, certifying the petitioner as belonging to a scheduled caste community, especially, in view of the decision in M.F.A. No. 195/2005. Therefore, Ext. P24 is clearly unsustainable. Accordingly, the same is quashed. It is declared that the petitioner would be entitled to the benefit of the employment obtained by him on the strength of a community certificate validly issued to the petitioner, which is clearly covered by the decision of the Supreme Court. However, in respect of any claim of the petitioner or his children which first arises subsequent to 29-8-2007, shall be decided only on the basis of a determination of his community status in accordance with Act 11/1996. The petitioner's retirement benefits shall be disbursed to him, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/