T. KOCHA versus STATE OF KERALA & ORS.
[2016] 3 S.C.R. 368, Supreme Court of India, 2016
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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[2016] 3 S.C.R. 368 
T. KOCHA 
v. 
STATE OF KERALA & ORS. 
(Civil Appeal Nos. 6126-6127 of2013) 
APRIL 13, 2016 
[A.K. SIKRI AND R.K. AGRAWAL, JJ.] 
Social status: Thandan community - Appellant applied for 
the post of High School Assistant in a Government School under 
reserved category claiming herself to be Scheduled Ca.,fe as 
belonging to Thandan Community - She was appointed to the said 
post on 3.2.1989 - However, subsequentZv Vigilance Cell held that 
she did not belong to Thandan Community but was a member of 
Ezhava!Thiyya Community and therefore was not a person belonging 
to Scheduled Caste Community - In the instant appeals, the issue in 
dispute is regarding the status of appellant as to whether she belongs 
to Thandmi Community or not - Held: Ajier judgment of Pa/ghat 
Ji/la :1·. Ezhuvas and Thiyyas who are also known as Thandan in the 
erstwhile Cochin and Malabar are no longer Scheduled Castes in 
the State of Kera/a - However, this amendment is prospective and, 
therefore, the said changed position become effective only from 
30.8.2007, the da.te when the amendment was notified - The 
appellant was treated as Thandan and, thus, belonging to Scheduled 
Caste Community on the basis of Scheduled Castes and Scheduled 
Tribes Orders (Amendment) Act, 1976 and she was appointed as 
High School Assistant on 3.2.1989 treating her as Scheduled Casie 
- The posilion changed only w.ef 30.8.2007 with the Amendment 
Act of 2007 when Thiyyas and
Ezhuvas were not lo be treated as 
part of Thandan and, thus, Scheduled Caste but those who were 
already conferred the benefit were entitled to continue lo reap the 
fruit thereof - Scheduled Castes and Scheduled Tribes Orders 
(A111end111f!1Jt) Act, 1976 - Conslilution of lndia, 1950 -Articles 341, 
366(24) - Constitution Scheduled Castes (Modification) Order, 
1956 - Constitution (Scheduled Castes) Order, 1950. 
Allowing the appeals, the Court 
HELD: The appellant was treated as Thandan and, thus, 
H 
belonging to Scheduled Caste Community on the basis of 
368
T. KOCHA v. STATE OF KERALA & ORS. 
Scheduled Castes and Scheduled Tribes Orders .(Amendment) 
Act, 1976 and she was appointed as High School Assistant 
(Physical Science) in Government _School on 3.2.1989 treating · 
her as Scheduled Caste: ·The -position changes only w.e.f. 
30.8.2007 with the Amendment Act of 2007 when Thiyyas and 
Ezhuvas are not to be treated as part of Thandan and, thus, 
Scheduled Caste but those who have already conferred the benefit 
would be entitled to continue to reap the fruit thereof. Since the 
appellants have been continued in service because of the interim 
order passed by this Court, they are treated as validly appointed 
giving them the benefit of members of Scheduled Caste category. 
(Paras 11, 13) (377-E,G; 378-A] -. 
Pa/ghat Jilla Thandan Samudhaya Samrakshna Samithi 
and another v. State of Kerala and another (1994) 1 
SCC 359: 1993. (3) Suppl. SCR 872; Unnikrishnan and 
another v. V.K Mahanudevan and others (2014) 4 SCC 
434:2014 (1) SCR 350 - relied on. 
Case Law Reference 
1993 (3) Suppl. SCR 872 
relied on 
Para3 
2014 (1) SCR 350 
relied on 
Paras 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6126-
6127 of20I3 
WITH 
C.A.No.11377of2011 
From the Judgment and Order dated 05.09.2012 of the High Court 
of Kerala at Ernaku lam in M. F. A. No. 118 of 2004 and order dated· 
07.02.2013 in R. P. No. I 224 of 2012. 
Ms. V. P. Seemanthini. Sr. Adv., Nishe Rajen Shonk.er, Ms. Anu 
K. Joy. Advs. for the Appellant. 
R. P. Bhatt, Sr. Adv,
.logy Scaria, M. T. George, Ms. P. Chaturvedi, 
Ms. Liz Mathew, Ramesh Babu M. R., A. V. Rangam, Buddy A. 
Ranganadhan, D. V. Raghu Vamsy, Alok K. Jain, Aditya Gaggar, 0. P. 
Gaggar, Advs. for the Respondents. 
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The Judgment of the Court was delivered by 
A.K. SIKRI, J. 1. In these appeals, the legal issue which needs 
determination is identical. The background facts under which the said 
issue arises are also somewhat similar. Therefore, without being 
repetitive, it would serve our purpose to take note of the facts appearing 
in Civil Appeal Nos. 6126-6127 of2013 in order to spell out the issue 
involved and decision thereupon shall govern both the appeals. 
2. The appellant in Civil Appeal Nos. 6126-6127 of2013 is T. 
Kocha who claims to be the member of the Thandan Community, which 
is a Scheduled Caste in the State ofKerala. She applied for the post of 
High School Assistant (Physical Science) in a Government School under 
reserved category claiming herself to be the Scheduled Caste as belonging 
to Thandan .Community. She was given appointment to the said post, 
after being successful in the selection process, w.e.f. 03 .02.1989. 
3. There was some dispute about Thandans as members of the 
Scheduled Caste which travelled up to this Court and was decided in the 
case of Pa/ghat Ji/la Tlumdm1 Sanuullwya Samrakslma Samit/1i 
mid another v. State of Kera/a and anotfler
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• We shall be referring to 
the said judgment at length and the decision taken therein by this Court 
at the appropriate stage. We may mention at this juncture that on the 
basis of another judgment rendered by Full Bench of High Court of 
Kerala
in 0.P. No. 6758/87 (decided on 14.03.1995), the Vigilance Cell 
of KIRT;\DS (respondent No. 3 herein) had examined the cases of 
those persons who had changed their caste name after the promulgation 
of the Scheduled Castes and Scheduled Tribes Orders (Amendment) 
Act 1976. In respect of the appellant, the respondent No. 3 came to the 
conclusion that she did not belong to Thandan Community but was a 
memberofEzhava/Thiyya Community and, therefore, was not a person 
belOnging to Scheduled Caste Community. Based on that report, the 
Scrutiny Committee, for verification of Community Certificates of 
Scheduled Castes and Scheduled Tribes Department in the Government 
of Kerala (respondent No. 2 herein), issued a show cause notice dated 
03 .06.2003 to the appellant as to why she should not be treated as non-
Scheduled Caste person. The appellant submitted her written explanation 
dated 06.09.2003 along with as many as 46 documents in suppm1 of her 
plea that she was of Thandan Caste and, therefore, rightly given the 
Government appointment under the quota meant for Scheduled Caste 
1 (1994) 1sec359
T. KOCHA v. STATE OF KERALA & ORS. [A.K. SIKRI, J.] 
persons. It was followed by an affidavit dated 02.12.2003 of the appellant 
wherein she requested respondent No. 2 to furnish the name and 
addresses of those persons from whom respondent No. 3 had allegedly 
collected evidence. A request was also made to afford an opportunity to 
cross examine those witnesses. This request was not allowed. 
4. After considering the written explanation and the documents 
submitted by the appellant, respondent No. 2 concluded that she did not 
belong to Thandan Community and, therefore, was not a Scheduled Caste 
person. Order dated 13.04.2004 was passed to this effect which was 
served upon the appellant on 28.06.2004. The appellant challenged the 
aforesaid order of the respondents by filing the writ petition in the High 
Court of Kerala. The said writ petition was admitted and interim stay 
vide order dated 13.04.2004 was granted in favour of the appellant. 
However. when the said writ petition was finally heard in the year 2012, 
vi de judgment dated 05.09.2012, the High Court dismissed the same. 
The appellant preferred the Review Petition No. 1224/2012 seeking 
review of the said judgment which was also dismissed on 07.02.2013. 
Main judgment as well as the order passed in the review petition are 
challenged by the appellant via special leave petition in which leave was 
granted and that is how the instant appeals have come up for final hearing 
wherein issue regarding the status of
the appellant as to whether she 
belongs to Thandan Community or not falls for consideration. 
5. Before we discuss various documents filed by the appellant in 
support of her claim, it would be advisable to traverse through the 
judgments referred to above as well as some other judgments and also 
the relevant statutory orders/enactments in this behalf. A scanning through 
the aforesaid material would clear much of the haze which surrounds 
the issue in question. We would like to start our discussion with the 
judgment of this Court in Palghat Jilla's case which traces out the history 
about the inclusion ofThandans as Scheduled Caste in the State ofKerala. 
A perusal of the judgment reveals that Thandan Community in the 
erstwhile Travancore and Cochin State alone was included in the 
Scheduled Caste list by the Constitution (Scheduled Castes) Order 1950. 
Scheduled Caste list of Kerala State was amended, as per Scheduled 
Castes and Scheduled Tribes Orders (Amendment) Act 1976 (Act 108/ 
76) by including Thandans throughout Kerala State in the Scheduled 
Caste list. After inclusion of the Thandan Community throughout the 
State in the Scheduled Caste list, the State Government issued instructions 
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to the caste certificate issuing authorities not to issue Scheduled Caste 
certificates to the members ofThandan Community stating that Thandan 
Community of Malabar is synonymed Ezhava/Thiyya Community. The 
purport of the aforesaid considerations was to clarify that Ezhava/Thiyya 
Community in Malabar was not the same as Thandan Community and 
those belonging to Ezhava/Thiyya Community could not claim the status 
of Scheduled Caste category by equating themselves to be the members 
ofThandan Community. Certain writ petitions were directly filed in the 
High Court questioning the validity of the aforesaid order dated 
24.11.1987. Some of the persons had filed the writ petitions in the High 
Co mi of Kera la which were decided by the High Court one way or the 
other and those decisions were also challenged before this Court. All 
these writ petitions and appeals were decided together. 
6. The principal question in the said writ petitions and appeals 
was with regard to the validity of the decisions of the State ofKerala not 
to treat members of Thandan Community belonging to the erstwhile 
Malabar District, including the present Palakkad District of the State of 
Kerala, as the members of the Scheduled Castes. This Court noted that 
Article 366 (24) nf the Constitution of India defines the expression 
"Scheduled Castes" to mean "such castes, races or tribes or parts of or 
'groups within such castes, races
or tribes as are deemed under Atiicle 
341 to be Scheduled Castes for the purposes of this Constitution." Under 
Article 341, President is empowered to specify the castes, races or tribes 
or parts of or groups within castes, races or tribes which shall for the 
purposes of this Constitution be deemed to be Scheduled Castes in relation 
to that State or Union Territory, as the case may be. Parliament is also 
empowered, by the said Article, to make law to include in or exclude 
from the list of Scheduled Castes specified in a notification issued by the 
President under the said provision. The President, in consultation with 
the Governors and Rajpramukhs of the various States had issued The 
Constitution (Scheduled Castes) Order, 1950 specifying various castes 
to be Scheduled Castes in respect of different States. Part XVI thereof 
related to the then State ofTravancore-Cochin. At item 22 of Part XVI 
was specified the caste Thandan for the purposes of the entire State. 
The Constitution Scheduled Castes (Modification) Order, 1956, modified 
the Scheduled Castes Order. In the list in Part V, applicable to the State 
of Kerala (the successor to the State ofTravancore-Coch in), at item 14, 
was specified the caste Thandan for the purposes of the entirety of the 
State except Malabar District. The Scheduled Castes and Scheduled
T. KOCHA v. STATE OF KERALA & ORS. [A.K. SIKRI, J.] 
Tribes (Amendment) Act, 1976 came into force on 27.07.1977. In the 
First Schedule thereof, under Part VII·relative to the State of Kerala, 
Thandan was specified at item 61. In Part VII only in respect of two 
castes, namely, Boyan and Malayan, were specific areas of the State of 
Kerala designated. In other words, all other castes listed in Part VII, 
including Thandan were Scheduled Castes for the purposes of the entirety 
of the State. On 17 .OS .1979, the Government of Kerala issued an order 
which noted that upon the coming into force on 27.07.1977, of the 
Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, the 
Thandan community throughout the State of Kera la came to be included 
in the list of Scheduled Castes. As certain complaints were received to 
the effect that there was section of Ezhavas/Thiyyas of Malabar area 
and of certain Taluks ofTrichur District who were called Thandans but 
have nothing in common with the Scheduled Caste Thandans. After 
going through these complaints, the Government of Kerala issued the 
Order dated l S. l 0.1984 stating that after reconsideration of the matter 
in all respects, the 1979 Order was cancelled and "Thandans throughout 
Kerala would be treated as members of Scheduled Castes and Scheduled 
Tribes Orders (Amendrnent)Act, 1976 and Community Certificate issued 
accordingly". This was modified by another order dated 24.11.1987 
which further added that while
issuing caste certificates, the Revenue 
authorities shou Id clarify after proper verification that the person 
concerned belongs to Thandan caste ai1d not Ezhava/Thiyya. As pointed 
out above, this order was under challenge before this Court. 
7. The Com1 proceeded on the basis thatthe State Government 
was right in saying that there is a section of Ezhava/Thiyya community 
which is called Thandan in the Malabar District. Notwithstanding the 
above, this Court ruled that so long as Thandan was mentioned as 
Scheduled Caste in the notification, Ezhava/Thiyya community which is 
also called Thandan in the Malabar District would get the benefit thereof 
and would be treated as Scheduled Caste persons. The discussion in 
this behalf is contained in Paras 16, I 7 and 18 of the judgment, which 
reads as under: 
"16. Article 341 empowers the President to specify not 
only castes, races or tribes which shall be deemed to be 
Scheduled Castes in relation to a State but also "parts of or 
groups Within castes, races or tribes" which shall be deemed 
to be Scheduled Castes in relation to a State. By reason of 
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Article 341 a part or group or section of a caste, race or 
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tribe, which, as a whole, is not specified as a Scheduled 
Caste, may be specified as a Scheduled Caste. Assuming, 
therefore, that there is a section of.the Ezhavas/Th iyyas 
community (which is not specified as a Scheduled Caste) 
which is called Thandan in some paiis of Malabar area, 
that section is also entitled to be treated as a Scheduled 
Caste, for Thandans throughout the State are deemed to 
be a Scheduled Caste by reason of the provisions of the 
Scheduled Castes Order as it now stands. Once Thandans 
throughout the State are entitled to be treated as a Scheduled 
Caste by reason of the Scheduled Castes Order as it now 
stands, it is not open to the State Government to say 
otherwise, as it has purpo1ied to do in the 1987 order. 
17. We may usefully draw attention to the judgment of a 
Bench of three learned Judges of this Court in Srish Kumar 
Choudhury v. State ofTripura ( 1990 Supp. SCC 220). This 
judgment considered the Constitution Bench judgments in 
B. Basavalingappa v. D. Munichinnappa ((1965) I SCR 
316) and Bhaiyalal v. Harikishan Singh (( 1965) 2 SCR 877) 
and ce1iain other judgments. It held that the two Constitution 
Bench judgments indicated that any amendment to the 
Presidential Orders could only be by legislation. The Comi 
could not assume jurisdiction and order an enquiry to 
determine whether the terms of the Presidential Order 
included a paiiicular community. A State
Government was 
entitled to initiate appropriate proposals for modification in 
cases where it was satisfied that modifications were 
necessary and, if after appropriate enquiry, the authorities 
were satisfied that a modification was required, an 
amendment could be undertaken as provided by the 
Constitution. 
18. These judgments leave no doubt that the Scheduled 
Castes Order has to be applied as it stands and no enquiry 
can be held or evidence let in to determine whether or not 
some particular community falls within it or outside it. No 
action to modify the plain effect of the Scheduled Castes 
Order, except as contemplated by Article 341, is valid." 
8. The effect of the aforesaid judgment, or the ratio thereof, is
T. KOCHA v, STATE OF KERALA & ORS. (A.K. SIKRI, J.J 
pointed out succinctly a recent judgment of this Comt in R. U1111ikrislman 
and another v. V.K. Malumudewm {//If/ others2 in the following words: 
"32. What followed from the above is that Thandans, 
regardless of whether they were Ezhuvas/Thiyyas known 
as Thandans belonging to the Malabar area, were by reason 
of the above pronouncement of this Court in Palghat case 
held entitled to the benefit of being treated as Scheduled 
Caste by the Presidential Order,any enqui1y into their being 
Thandans who were Scheduled ·caste having been forbidden 
by this Cou1t as legally impermissible. The distinction which 
the State Government sought to make between Ezhuva/ 
Thiyyas known as Thandans like the respondent on the one 
hand and Thandans who fell in the Scheduled Caste category, 
on the other, thus stood abolished by reason of the above 
pronouncement. No such argument could be countenanced 
against the respondent especially when it is not the case of 
the appellants that the respondent is not an Ezhuva from 
Malabar area of the State of Kerala." 
9. It so happened that after the judgment in Pa/ghat Ji/la's case, 
there was an amendment of the Presidential Order in terms of the 
Constitution (Scheduled Castes) Order (Amendment) Act, 2007 which 
received the assent of the President on 29.08.2007. By this Act, following 
changes were made in Part VIII - Kera la for Ent1y 61: 
"61. Thandan (excluding Ezhuvas and Thiyyas who are
known as Thandan, in the erstwhile Cochin and Malabar 
areas and carpenters who are known as Thachan, in the . 
erstwhile Cochin and Travancore State)." 
10. It, thus, becomes clear that after the said judgment, Ezhuvas 
and Thiyyas who are also known as Thandan in the erstwhile Cochin 
and Malabar are no longer Scheduled Castes in the State of Kerala. 
However, this amendment is prospective and, therefore, the aforesaid 
change position become effective only from 30.08.2007, the date when 
the amendment was notified. In R. U1111ikris/11u111 's judgment, this Court 
made it clear that having regard to the ratio of Pa/ghat Ji/la's case, 
Ezhuvas and Thiyyas known as Thandans were entitled to be treated as 
Scheduled Castes till 29.08.2007 and such an entitlement could not be 
taken away retrospectively. The Court was, thus, categorical in holding 
2 (2014J 4 sec 434 
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that those who were Ezhuvas/Thiyyas known as Thandans in Cochin 
and Malabar region and were given the benefit of Scheduled Caste status 
prior to 30.08.2007 could not be deprived of such benefit already bestowed 
on them. We would like to reproduce the following discussions from this 
judgment: 
"36. The law declared by this Comt in Palghat Jilla case 
entitled all Thandans including those who were Ezhuvas 
and Thiyyas from Cochin and Malabar region to claim the 
Scheduled Caste status. That entitlement could be taken 
away retrospectively only by specific provisions to that effect 
or by necessary intendment. We see no such specific 
provision or intendment in the amending legislation to hold 
that the entitlement was taken away retrospectively so as 
to affect even those who had already benefited froll) the 
reservation for Scheduled Caste candidates. At any rate. a 
certificate issued to an Ezhuva known as Thandan who 
was a native of Cochin and Malabar region of the State 
could not be withdrawn as the Constitution (Scheduled 
Castes) Order, 1950 did not make a distinction between the 
two categories ofThandans till theAmendment Act of2007 
for the first time introduced such a difference. 
37. That apart, the question of ouster of Ezhuvas and 
Thiyyas known as Thandan on account of the confusion 
_, that prevailed fora considerable length of time till the decision 
of this Court in Palghat Jilla case
would be unjustified both 
in law and on the principles of equity and good conscience. 
xxx 
xxx 
xxx 
40. In Sandeep Subhash Parate v. State of Maharashtra 
((2006) 7 sec 501 ), also dealing with a similar confusion 
between "Halba" and "Halba-Koshti" and applying the 
principle underlying in Mil ind case ((200 l) l SCC 4), this 
Court held that ouster of candidates who have obtained 
undeserved benefit will be justified only where the court 
finds the claim to be bona fide. In State of Maharashtra v. 
Sanjay K. Nimje ((2007) 14 SCC 481 ). this Comt held that 
the grant ofreliefwould depend upon the bona tides of the 
person who has obtained the appointment and upon the facts 
and circumstances of each case.
T. KOCHA v. STATE OF KERALA & ORS. [A.K. SIKRI, J.] 
41. In the instant case there is no evidence of lack of bona 
fides by the respondent. The protection available under the 
decision ofMilind case could, therefore, be admissible even 
to the respondent. It follows that even if on a true and 
correct construction of the expression "Thandan" appearing 
in the Constitution (Scheduled Castes) Order, 2007 did not 
include "Ezhuvas" and "Thiyyas" known as "Thandan" and 
assuming that the two were different at all relevant points 
of time, the fact that the position was not clear till the 
Amendment Act of2007 made a clear distinction between 
the two, would entitle all those appointed to serve the State 
up to the date the amending Act came into force, to continue 
in service." 
11. The cumulative reading of the aforesaid two judgments viz. in 
the case of Pa/aglwt Ji/la and ·R. U1t11ikris/11u111, clinches the 
controversy by tilting the balance in favour of the appellant herein. We 
may record that the appellants have laboured to demonstrate that they 
are in fact Thandans on the basis of various documents ·med by them 
and have attentive to argue that the Scrutiny Committee did not arrive at 
a correct decision. However, it is not even necessary to go into this 
aspect in the facts of these cases. As pointed out above, the appellant 
was treated as Thandan and, thus, belonging to Scheduled caste 
community on the basis of the Scheduled Castes and Scheduled Tribes 
Orders
(Amendment) Act 1976 and she was appointed as High School 
Assistant (Physical Science) in Government School on 03.02.1989 treating 
her as Scheduled Caste. Even if we proceed on the basis that she 
belongs to Ezhuvas/Thiyyas, that is irrelevant insofar as the appellant is 
contained as these castes were treated as part ofThandan Community 
and were held entitled to be treated as Scheduled Caste. This principle 
is categorically stated in Pa/aglutt Jil/a's case. R. U1mikris/111m1's 
case clarified that the position changes only w.e.f. 30.08.2007 with the 
Amendment Act of2007 when.Thiyyas and Ezhuvas are not to be treated 
as part ofThandan and, thus, Scheduled Caste but those who have already 
conferred the benefit would entitled to continue to reap the fruits thereof. 
12. In the another appeal also, we find that appellant was treated 
as belonging to Thandan Community and given benefit much prior to 
2007. 
13. For the reasons stated above, these appeals succeed and are 
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accordingly allowed. Since the appellants have been continued in service 
because of the interim order passed by this Court, they are treated as 
validly appointed giving them the benefit of members of Scheduled Caste 
category. The impugned judgment is accordingly set aside thereby 
allowing the writ petitions filed by the appellants and quashing the orders 
of respondent Nos. 2 and 3. The appellants shall also be entitled to the 
cost of these proceedings. 
DevikaGujral 
Appeals allowed.