TaxTMI 
TaxTMI 
2014 (1) TMI 1953
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....te of Kerala for grant of a Scheduled Caste Certificate on the basis that he was a 'Thandan' which was a notified Scheduled Caste. The Tehsildar held an enquiry and found that the Appellant did not belong to the Scheduled Caste community and reported the matter to the Director, Scheduled Caste Development Department, who in turn forwarded the case to Director, Kerala Institute for Research, Training and Development Studies of Scheduled Castes and Scheduled Tribes, ('KIRTADS' for short) for investigation and report. 4. Aggrieved by the denial of the certificate the Respondent filed O.P. No. 9216 of 1986 before the High Court of Kerala which was disposed of by the High Court in terms of its order dated 25th February, 1987 with a direction to the Tehsildar concerned to issue a caste certificate in favour of the said Respondent. A certificate was accordingly issued in his favour. It is common ground that the Respondent was appointed as an Assistant Executive Engineer under a special recruitment scheme for SC/ST candidates. 5. Long after the certificate had been issued in favour of the Respondent and his appointment as an Assistant Executive Engineer in the State servi....
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....gly issued notice to the Respondent to appear before him for a personal hearing in support of the claim that he was a Thandan and hence a Scheduled Caste. Aggrieved by the said proceedings the Respondent filed O.P. No. 5834 of 1991 before the High Court of Kerala in which he challenged the proposed enquiry proceedings relating to his caste status primarily on the ground that the decision of this Court in Palaghat Jilla Thandan Samudhaya Samrakshna Samithi and Anr. v. State of Kerala and Anr. (1994) 1 SCC 359 had settled the controversy relating to Ezhuva/Thiyya being a 'Thandan' in the district of Palaghat. It was also contended that the Respondent's own case that he was a Thandan Scheduled Caste had been settled by the High Court in terms of the order passed by the High Court in O.P. No. 9216 of 1986. These contentions found favour with the High Court who allowed O.P. No. 5834 of 1991 filed by the Respondent by its order dated 15th December, 1998 and quashed the ongoing enquiry proceedings. 7. Aggrieved by the order passed by the High Court the State of Kerala filed Writ Appeal No. 1300 of 1999 which was allowed by a Division Bench of the High Court by its judgment an....
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....clared as follow: (i) It is declared that Shri. V.K. Mahanudevan, S/o Shri Kunjukuttan, Kunnissery House, Kottaparambil, Vadakkancherry, Alathur, Palakkad District who is now working as Executive Engineer, Minor Irrigation Division, Irrigation Department, Palakkad does not belong to Thandan Community which is a Sch. Caste, but belongs to Ezhava Community included in the list of Other Backward Classes (OBC). (ii) None of the members of his family shall be eligible for any of the benefits exclusively intended for members of the Sch. Castes. If any of the members of the family of Shri V.K. Mahanudevan have availed of any of the benefits meant for members of the Sch. Castes, all such benefits availed of shall be recovered. (iii) If the caste entry in respect of the members of the family of Shri V.K. Mahanudevan as recorded in their academic records is Thandan (SC), it shall be corrected as Ezhava. (iv) Sch. Caste Certificates shall not be issued to any of the members of the family of Shri V.K. Mahanudevan hereafter. All the Sch. Caste Certificates secured by Shri V.K. Mahanudevan and his family members will stand cancelled. (v) On completion of the actions as per this order t....
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....r determination in these appeals. The first is whether the Appellants could have reopened for examination the caste status of the Respondent- V.K. Mahanudevan no matter judgment of the High Court in O.P. No. 9216 of 1986 had declared him to be a 'Thandan' belonging to a Scheduled Caste community. The High Court has as seen above taken the view that its judgment and Order in O.P. No. 9216 of 1986 effectively settled the question regarding the caste status of Respondent which could not be reopened as the said judgment had attained finality. The second and the only other question that would arise for determination is whether the Respondent- V.K. Mahanudevan can claim protection against ouster from service and, if so, what is the effect of the change in law relevant to the caste status of the Respondent. We propose to deal with the two questions ad seriatim. 13. In O.P. No. 9216 of 1986, the Respondent (writ Petitioners in OP) had claimed to be a Thandan by Caste, hence, a Schedule Caste in terms of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. In the SLCC book the Respondent was described as a "Thandan Hindu" but falling in the OBC category. He appli....
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.... enquiry into the Caste Status of the Respondent could be instituted by the Government. The enquiry, as seen earlier, was initiated in the light of the certain observations made by the full bench of the Kerala High Court in Kerala Pattika Jathi Samrekshana Samithy v. State AIR 1995 Ker 337 whereby the High Court had entertained suspicion about the validity of certificates that were corrected after 27th July, 1997. That pronouncement came nearly eight years after the High Court had disposed of O.P. No. 9216 of 1986 and a resultant certificate issued in favour of the Respondent. It was in the above backdrop rightly argued by Mr. Giri appearing for the Respondent that the judgment and order passed by the High Court in O.P No. 9216 of 1986 having attained finality no fresh or further enquiry into the question settled thereby could be initiated, the observations of the full bench of the High Court to the contrary notwithstanding. The judgment of the High Court in Pattika Jathi's case (supra), it is obvious, from a reading thereof, does not deal with situations where the issue regarding grant of validity of a caste certificate secured earlier than the said judgment had been the subje....
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....#39;. 17. Similarly in State of West Bengal v. Hemant Kumar Bhattacharjee AIR 1966 SC 1061, this Court reiterated the above principles in the following words: A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. 18. The recent decision of this Court in Kalinga Mining Corporation v. Union of India (2013) 5 SCC 252 is a timely reminder of the very same principle. The following passage in this regard is apposite: In our opinion, if the parties are allowed to reagitate issues which have been decided by a court of competent jurisdiction on a subsequent change in the law then all earlier litigation relevant thereto would always remain in a state of flux. In such circumstances, every time either a statute or a provision thereof is declared ultra vires, it would have the result of reopening of the decided matters within the period of limitation following the date of such decision. 19. In Mathura Prasad v. Dossibai (1970) 1 SCC 613, this Court held that for the application of the rule of res-judicata, the Court is not concer....
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.... State Government at no stage either before or after the Order passed by the Single Judge of the High Court questioned the conclusions recorded therein till the full bench in Pattika Jathi's case (supra) expressed doubts about the corrections being made in the records and certificates for the grant of scheduled caste status. That being the case, the High Court could not be said to have been misled or fraudulently misguided into passing an order, leave alone, misled by the writ-Petitioners (Respondent herein). It is only because the full bench of the Kerala High Court held that anthropological study conducted by KIRTADS may not provide a sound basis for holding Thandan's like the Respondent as those belonging to the scheduled caste category that the issue regarding the correctness of the certificate and a fresh investigation into the matter surfaced for consideration. Even if one were to assume that the conclusion drawn by KIRTADS was not for any reason completely accurate and reliable, the same would not have in the absence of any other material to show that such conclusion and enquiry was a complete farce based on wholly irrelevant or inadmissible material and motivated by....
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.... taking undeserved advantage of the Scheduled Caste reservations. The complaints suggested that these two categories of Thandan were quite different and distinct from each other and that the benefit admissible to Thandans generally belonging to the Scheduled Caste community should not be allowed to be taken by those belonging to the Ezhuva/Thiyya community as they are not scheduled castes. Acting upon these reports and complaints, the State Government appears to have issued instructions to the effect that applications for issue of community certificates to 'Thandans' of all the four districts of Malabar areas and Taluks of Thalapilly, Vadakkancherry and Chavakka in Trichur District, should be scrutinised to ascertain whether the applicant belongs to the Thandan community of the scheduled caste or the Thandan section of Ezhuva/Thiyya community and that while issuing community certificate to the 'Thandans' who were scheduled caste, the authorities should note the name of the community in the certificate as "Thandans other than Ezhuva/Thiyya". These instructions were withdrawn to be followed by another order passed in the year 1987 by which the Government once again di....
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....yyas known as Thandans belonging to the Malabar area, were by reason of the above pronouncement of this Court held entitled to the benefit of being treated as scheduled caste by the Presidential Order, any enquiry into their being Thandans who were scheduled caste having been forbidden by this Court as legally impermissible. The distinction which the State Government sought to make between Ezhuva/Thiyyas known as Thandans like the Respondent on 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. 26. The legal position has since the pronouncement of this Court in Pattika Jathi's case (supra) undergone a change on account of the amendment of the Presidential Order in terms of The Constitution (Scheduled Castes) Order Amendment Act, 2007 which received the assent of the President on 29th August, 2007 and was published in the official gazette on 30th August, 2007. The Act, inter alia, made the following cha....
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....ively so as to affect even those who had already benefited from the reservation for scheduled caste candidates. At any rate, a certificate issued to an Ezhuvas 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 of Thandans till the Amendment Act of 2007 for the first time introduced such a difference. 29. That apart the question of ouster of Ezhuvas and Thiyyas known as Thandan on account of the confusion that prevailed for a considerable length of time till the decision of this Court in Pattika Jathi's case (supra) would be unjustified both in law and on the principles of equity and good conscience. In State of Maharashtra v. Milind (2001) 1 SCC 4, this Court was dealing with a somewhat similar situation. That was a case where a student had secured admission to the MBBS degree course by claiming himself to be a Scheduled Tribe candidate. The student claimed that Halba-Koshti were the same as Halba, mentioned in the Constitution (Scheduled Tribes) Order. This Court held that neither the Government nor the Court could add to t....
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....and appointments wherever the same had attained finality will not be affected by the decision taken by this Court. 31. In Sandeep Subhash Parate v. State of Maharashtra and Ors.(2006) 7 SCC 501, also dealing with a similar confusion between 'Halba' and 'Halba-Koshti' and applying the principle underlying in Milind's case (supra) 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 Court held that the grant of relief would depend upon the bona fides of the person who has obtained the appointment and upon the facts and circumstances of each case. 32. In the instant case there is no evidence of lack of bona fide by the Respondent. The protection available under the decision of Milind's case (supra) 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 assumin....