MADHAVAN P Vs. STATE OF KERALA

JUDGEMENT

(1.) Both writ petition and appeal are filed by the five appellants. Appellants 1 to 4 are brothers and sisters and 5th appellant is the daughter of the 4th appellant. According to them, they belonged to Thandan community, which is recognised as Scheduled Caste. First appellant contested for Panchayat election in the year 1988 in a reserved constituency for Scheduled caste and he was elected as a Panchayat member. It is also submitted that earlier an enquiry was conducted and on the basis of which it was held that they are Thandans. But a Scrutiny Committee constituted under the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (Act 11 of 1996) held that they are not Thandans but Hindu OBC Ezhavas / Thiyyas and they cannot claim reservation benefits available to SC Community. Hence they filed this appeal.

(2.) Fifth appellant also filed writ petition, OP No. 14444/03, when her admission was not considered in the M.B.B.S. Course for SC candidates. As per the interim order of this Court, she got admission and she is studying in the final semester of M.B.B.S. Course. The whole question to be considered is whether appellants 1 to 5 are entitled to get Scheduled Caste status as Thandans Earlier Thandan community was not included in the Scheduled Caste category in the Malabar area but Thandan community was recognised as Scheduled Caste in Travancore - Cochin area. This position continued up to 1976. The Scheduled Caste and Scheduled Tribes Amendment Act, 1976 came into force on 27th July, 1976, which specifies 'Thandan' community as item No. 61. The nature of amendment is to recognise the particular community as Scheduled Caste for the entire State of Kerala. It is contended by various associations that a Section of Ezhavas / Thiyyas in certain districts of Malabar area are not entitled to be considered as Thandans and Scheduled Caste community status cannot be given to them even though they are known as Thandans. State accepted the above view. The matter was finally settled by the Supreme Court in Palghat Jilla Thandan Samudhaya Samrakshana Samithi and Another v. State of Kerala, 1994 KHC 42 : 1994 (1) KLT 118 (SC) : 1994 (1) SCC 359 . The Supreme Court directed the State Government to grant to all members of the Thandan community, including those belonging to the erstwhile Malabar District and the Palghat District, the benefits due to a Scheduled Caste included in the Schedule to the Constitution Scheduled Castes Order as amended up to date and to issue to them community certificates accordingly. The Supreme Court also categorically held that it is not open to the State Government or the Supreme Court to embark upon an enquiry to determine whether a section of Ezhavas / Thiyyas which was called Thandan in the Malabar area is excluded from the benefits of the Schedules Castes Order. Paragraphs 15 to 19 of the above judgment are as follows:

(3.) Now we will consider the factual aspects in this case. A detailed enquiry was conducted by the Scrutiny Committee and documents were produced by both sides. The genealogy of the grand father and grand mother and their relatives shows that in earlier documents of Annexure A31 dated 15/01/1936, Annexure A32 dated 11/02/1932 and Annexure A85 etc. they were described as Thandans. Exts. P1, P2 and P3 produced in respect of the 4th appellant also shows that in School admission certificates it was described the caste as 'Thandan'. Ext. P1 is dated 25/05/1960. Various admission registers also shows that caste was described as 'Thandan' earlier but in document Nos. 33 and 34 in respect of the 1st appellant, document Nos. 81 and 82 in respect of the 2nd appellant and document Nos. 40, 41 and 42 in respect of the 3rd appellant, they were mentioned as Hindu Thiyyas or Ezhavas. The explanation of the appellant is that after 1976, till the Supreme Court decision came, due to Government direction, the officers were refused to describe them as Thandans and they were categorised as Ezhavas and Thiyyas as they are living in Malabar area and they were helpless. Before 1976, Thandan community of Malabar area was not included in the category of Scheduled Caste community. But after the Supreme Court decision, they requested for amendment and further obtaining proper certificate, their caste status was amended after due enquiry as can be seen from Annexure A1. It is also submitted that Director of Harijans Welfare Department has also accepted the above. As far as document Nos. 24 and 25 are concerned, they are also certificates to 4th respondent who got employment not as a Scheduled caste at a time when Government was not considering the Thandans of Malabar as Scheduled caste community. It is submitted by the learned Government pleader that document Nos. 99, 101, 111 with respect to mother of the 5th appellant also shows that they were essentially Ezhavas. But pre - independent documents described their predecessors as Thandans and that also cannot be ignored by the Scrutiny Committee as held by the Apex Court in Kumari Madhuri Patil and Another v. Addl. Commissioner, Tribal Development and Others, 1995 KHC 1357 : AIR 1995 SC 94 : 1994 (6) SCC 241 : 1994 SCC (L&S) 1349 : 1994 (28) ATC 259 : 1994 (5) SLR 206 . The petitioner has produced 15 affidavits of the local people to show that in locality, they were known as Thandans and as members of the Thandan community. It is submitted that Scrutiny committee did not accept those affidavits after refusing to examine those persons who gave affidavits on the ground that the advocates who attested the affidavits were not appearing before the Committee. The learned counsel for the appellant also points out the decision in Gayatrilaxmi Bapurao Nagpure v. State of Maharashtra and Others, 1996 KHC 806 : AIR 1996 SC 1338 : 1996 (3) SCC 685, that the committee has to take views of the local people while granting caste certificate.