Supreme Court of India
R. UNNIKRISHNAN AND ANR.versusV.K. MAHANUDEVAN AND ORS.
- Citation
- 2014 INSC 19
- Decided
- 10 January 2014
- Disposal
- Dismissed
- Bench
- T S THAKUR
Holding
The 1987 High Court order is final and bars any fresh enquiry into the respondent’s caste status; the 2007 amendment is prospective, so benefits up to 30 August 2007 remain, but the respondent cannot claim future Scheduled Caste benefits, though OBC benefits are not denied.
Summary
The respondent, V.K. Mahanudevan, obtained a Scheduled Caste (SC) certificate in 1987 after the Kerala High Court accepted a KIRTADS report that he belonged to the Thandan community, a notified SC. Subsequent scrutiny, prompted by a Full Bench observation in Pattika Jathi case, led the State Government to re‑examine his caste status and declare him an Ezhuva (OBC), cancelling the SC certificate and ordering his removal from service. The respondent challenged these actions, arguing that the 1987 High Court order had attained finality and that the later amendment removing Ezhuvas/Thiyyas (known as Thandan) from the SC list was prospective, preserving his earlier benefits. The Supreme Court held that the 1987 order was final and barred any fresh enquiry, and that the 2007 amendment was prospective, so benefits accrued up to 30 August 2007 remain undisturbed, while future SC benefits are denied and OBC benefits may be availed. Consequently, the appeals were dismissed, confirming the respondent’s entitlement to retain past SC benefits but not to claim future ones.
Issues considered
- Whether the caste status of the respondent could be reopened despite the Kerala High Court order of 25 February 1987 that had declared him a Thandan (Scheduled Caste) and had attained finality.
- Whether the respondent is entitled to protection against ouster from service and what is the effect of the 2007 amendment to the Constitution (Scheduled Castes) Order that removed Ezhuvas/Thiyyas (known as Thandan) from the Scheduled Caste list.
Legislation cited
Subjects
res judicatafinality of judgmentcaste certificateScheduled CasteOther Backward Classesservice protectionprospective amendmentreservation
Judgment
[2014] 1· S.C.R. 350
A R. UNNIKRISHNAN AND ANR.
v.
V.K. MAHANUDEVAN AND ORS.
(Civil Appeal No. 3468 of 2007)
JANUARY 10, 2014
B
[T.S. THAKUR AND VIKRAMAJIT SEN, JJ.)
Social status certificate:
c Scheduled caste certificate - Claim of respondent that
he belonged to 'Thandan' caste, a Scheduled Caste, allowed
by High Court by order dated 25.2.1987 on the report of
KIRTADS and statement made by State counsel -
Subsequently, on the basis of observations made by Full
0 Bench of High Court in Pattika Jathi's case, caste certificate
of respondent scrutinized and Government declaring him not
to belong to 'Thandan' caste, but to 'Ezhava' community, an
OBC - High Court holding the judgment dated 25.2.1987 as
binding between parties - Held: order dated 25. 2. 1987 passed
E by High Court which had attained finality did not permit a fresh
enquiry into the caste status of writ-petitioner- Inasmuch as
High Court quashed the said proceedings and the order
passed by State Government pursuant thereto, it committed
no error to warrant interferen·;e - However, in view of
Presidential Order in terms of the Constitution (Scheduled
F Castes) Order Amendment Act, 2007 which was published in
the official gazette on 30.8. 2007 and Order dated 30.8.2010
issued by State Government that 'Ezhuvas' and 'Thiyyas' to
be treated as OBCs, and the decision being prospective in
nature, benefit granted to respondent till 30. 8. 2007 shall
G remain undisturbed - Respondent shall not be entitled to
claim any benefit in future as a scheduled caste candidate
but no benefit admissible to him as an OBC candidate shall
be denied.
H 350
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 351
Judgements: A
Finality of judgment- Order dated 25.2.1987 passed by
High Court allowing the claim of respondent (Petitioner before
High Court) to belong to 'Thandan' caste, a Scheduled caste
- Subsequently, on the basis of observations of a Full Bench
8
of High Court in Pattika Jathi's case, caste certificate of
respondent scrutinized and Government passed order
declaring him not tobelong to 'Thandan' Scheduled caste, but
to 'Ezhava' caste, an OBC - Held: Law favours finality to
binding judicial decisions pronounced by courts that are
competent to deal with the subject matter - Public interest is C
against individuals being vexed twice over with the same kind
of litigation - The only exception to the doctrine of res-judicata
is "fraud" that vitiates the decision and renders any judgment,
decree or orders a nullity and non-est in the eyes of law -
Judgement and order dated 25.2.1987 passed by High Court D
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 - Res judicata.
E
Respondent no. 1 applied for and, pursuant to order
dated 25.2.1987 passed by High Court in O.P. No. 9216
of 1986, was issued a caste certificate showing that he
was a 'Thandan', which was a notified Scheduled Caste.
He was appointed as an Assistant Executive Engineer F
under a special recruitment scheme for ST/SC
candidates. Subsequently, a Full Bench of the High Court
in Pattika Jathi's case held that a large number of
applications for change of caste name from 'Thiyya' to
'Thandan' had been received pursuant to the Scheduled G
Castes and Scheduled Tribes Order (Amendment) Act,
1976 and ordered that all such certificates as were
corrected on the basis of such applications after
27.7.1977 ought to be scrutinized by a Scrutiny
Committee. Consequently, the caste certificate issued in
H -
352 SUPREME COURT REPORTS [2014] 1 S.C.R.
A favour of the respondent also came under scrutiny and
it was found that the respondent actually belonged to
Ezhuva community which fell under the OBC category.
Ultimately, State Government concurred with the report
and declared respondent no. 1 as not belonging to
B Thandan Community, a Scheduled Caste, but belonging
to 'Ezhava' Community included in the list of Other
Backward Classes. Respondent no. 1 and his brother
(respondent in C.A. No. 3470 of 2007) challenged the
order passed by the Government before the High Court
c in O.P. No.5596 of 2003 and Writ Petition (C) No.20434 of
2004 respectively which were allowed by a Single Judge
of the High Court primarily on the ground that the issue
of caste certificate to the respondent had already been
concluded by the High Court by its judgment dated
25.2.1987 in O.P. No.9216 of 1986, and that the said
0
question could not be re-opened so long as it was
effective. The writ appeal and the review petition were
dismissed by the Division Bench of the High Court.
In the instant appeals, the questions for
E consideration before the Court were: (1) "whether the
appellants could have re-opened for examination the
caste status of respondent no. 1 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
F community"; and (2) "whether respondent no. 1 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".
Dismissing the appeals, the Court
G
HELD: 1.1. In O.P No. 9216 of 1986, the respondent
(petitioner in OP) had claimed to be a Thandan by Caste
and, as such, a Schedule Caste in terms of the Scheduled
Castes and Scheduled Tribes Orders (Amendment) Act,
H
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 353
1976. Before the single judge of the High Court, it was A
reported that Director, Kerala Institute for Research
Training and Development Studies of Scheduled Castes
and Scheduled Tribes (KIRTADS) had conducted an
anthropological study and recorded a finding that the
respondent belonged to Thandan Community and that he 8
was entitled to be treated as a Scheduled Caste. The
Government advocate representing the authorities also
submitted before the High Court that the findings
recorded by the KIRTADS h.ad been communicated to the
Director of Harijan Welfare, Trivandrum (respondent no.3 c
in the petition) and accepted ·by him. Accordingly, the
High Court passed the Order dated 25.2.1987. A caste
certificate was, in the circumstances, issued in favour of
the respondent. [para 13-14] [366-C, E-H; 367-D]
D·
1.2. The subsequent enquiry was initiated in the light
of observations made by the Full Bench of the High Court
in Pattika Jathi's case whereby the High Court had
entertained suspicion about the validity of certificates that
were corrected after 27.7.1997. That pronouncement came
nearly eight years after the High Court had disposed of E
O.P. No.9216 of 1986 and a resultant certificate issued in
favour of the respondent. [para 14] [367-F]
Pattika Jathi Samrekshana Samithy v. State AIR 1995
Ker 337 - referred to. F
1.3. The judgement and order dated 25.2.1987 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 G
notwithstanding. [para 14] [367-F-H]
1.4. The judgement of the High Court in Pattika Jathi's
case does not deal with situations where the issue
regarding grant of validity of a caste certificate secured H
354 SUPREME COURT REPORTS [2014] 1 S.C.R.
A earlier than the said judgment had been the subject
matter of judicial proceedings and effectively and finally
resolved in the same. That apart, the respondent was not
a party to the proceedings before the Full Bench nor was
the certificate issued in his favour under challenge in
8 those proceedings. The Full Bench did not even
incidentally have to examine the validity of the certificate
issued to the respondent or the correctness of the order
passed by the High Court pursuant to which it was
issued. Such being the position the direction issued by
C the Full Bench of the High Court could not possibly have
the effect of setting at naught a judgment delivered inter-
parties which had attained finality and remained binding
on all concerned. [para 14] [367-H; 368-A-C]
1.5. It is trite that law favours finality to binding judicial
D decisions pronounced by courts that are competent to
deal with the subject matter. Public interest is against
individuals being vexed twice over with the same kind of
litigation. The binding character of judgments
pronounced by the courts of competent jurisdiction has
E always been treated as an essential part of the rule of law
which is the basis of the administration of justice in this
country. [para 15] [368-D-E]
Daryao v. State of U.P. 1962 SCR 574 =AIR 1961 SC
F 1457 - relied on
1.6. That even erroneous decisions can operate as
res-judicata is also fairly well settled by a long line of
decisions rendered by this Court.The only exception to
the doctrine of res-judicata is "fraud" that vitiates the
G decision and renders it a nullity, as fraud renders any
judgment, decree or orders a nullity and non-est in the
eyes of law. [para 16 and 19] [368-H; 370-B-C]
Mohan/al Goenka v. Benoy Kishna Mukherjee
H 1953 SCR 377 =AIR 1953 SC 65 A. V. Papayya Sastry v.
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 355
Government of A.P. 2007 (3) SCR 603 =(2007) 4 SCC 221; A
Raju Ramsingh Vasave v. Mahesh Oeorao Bhivapurkar and
Ors. 2008 (12) SCR 992 = (2008) 9 SCC 54- relied on.
State of West Bengal v. Hemant Kumar Bhattacharjee
1963 Suppl. SCR 542 = AIR 1966 SC 1061; Kalinga Mining B
Corporation v. Union of India 2013 (1) SCR 814 = (2013) 5
SCC 252; Mathura Prasad v. Dossibai 1970 (3) SCR 830 =
(1970) 1 sec 613 - referred to.
1.7. In the case at hand, there is no element of fraud
in the order dated 25.2.1987 passed by the High Court in C
O.P.No.9216 of 1986. The order relies more upon the
submissions made before it by the Government Counsel
than those urged on behalf of the writ-petitioners
(respondents). That there was an enquiry by KIRTADS
into the caste status of the writ petitioners (respondents) D
which found his claim of being a Thandan justified and,
as such, entitled to a scheduled caste certificate, has not
been disputed. That the report of KIRTADS was accepted
by the Director of Harijan Welfare, is also not denied. That
apart, the State Government at no stage either before or E
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 expressed doubts about
the corrections being made in the records and certificates
for the grant of scheduled caste status. That being the F
case, the High Court could not be said to have been
misled or fraudulently misguided into passing an order,
leave alone, misled by tlie writ-petitioner (respondent).
[para 21] [370-H; 371-A-D]
1.8. Therefore, the order dated 25.2.21987 passed by G
the High Court in O.P.No.9216 of 1986 which had attained
finality did not permit a fresh enquiry into the caste status
of writ-petitioner. Inasmuch as the High Court quashed
the subsequent proceedings and the order passed by the
H
356 SUPREME COURT Rf PORTS [2014] 1 S.C.R.
A State Government pursuant thereto, it committed no error
to warrant interference. [para 21] [371-G-H; 372-A]
2.1. On account of the amendment of the Presidential
Order in terms of the Constitution (Scheduled Castes)
Order Amendment Act, 2007 which was published in the
8
official gazette on 30.8. 2007, there is no manner of doubt
that Ezhuvas and Thiyyas who are also known as
Thandan, in the erstwhile Cochin and Malabar areas, are
no longer scheduled caste w.e.f. 30.8.2007. Parliament
has removed the prevailing confusion regarding Ezhuvas
C and Thiyyas known as Thandan, in the erstwhile Cochin
and Malabar areas being treated as scheduled caste.
Ezhuvas and Thiyyas even if called Thandans and
belonging to the above area will no longer be entitled to
be treated as scheduled caste nor will the benefits of
D reservation be admissible to them. [para 26-27] [375-B
and E-F]
2.2. Taking note of the amending legislation,
Government of Kerala has by Order No.93/2010/SC/ST
E dated 30.8.2010 directed that Ezhuvas and Thiyyas who
are known as Thandan, in the erstwhile Cochin and
Malabar shall be treated as OBCs in List Ill. This part was
not disputed on behalf of the respondent. What is
significant is that the deletion is clearly prospective in
F nature. The law declared by this Court in Pa/ghat Ji/la
Thandan Samudhaya Samrakshna Samithi's 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
G effect or by necessary intendment. There is 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 from the reservation for scheduled caste
H candidates. At any rate, a certificate issued to an Ezhuvas
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 357
known as Thandan who was a native of Cochin and A
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. [para 28] [375-G-H; 376-A-F] B
Pa/ghat Ji/la Thandan Samudhaya Samrakshna Samithi
and Anr. v. State of Kera/a and Anr. 1993 (3) Suppl. SCR
872 =(1994) 1 sec 359 - relied on.
2.3. That apart, the question of ouster of Ezhuvas C
and Thiyyas known as Thandan on account of the
confusion that prevailed for a considerable length of time
till the decision in Pattika Jathi's case would be
unjustified both in law and on the principles of equity and
good conscience. [para 29] [376-F-G] D
State of Maharashtra v. Mi/ind 2000 (5) Suppl. SCR 65 =
(2001) 1 sec 4 - relied on.
Kavita Solunke v. State of Maharashtra, 2012
(7) SCR 251 = (2012) 8 SCC 430; Sandeep Subhash Parate E
v. State of Maharashtra and Others 2006 (5) Suppl.
SCR 282 = (2006) 7 SCC 501; State of Maharashtra v.
Sanjay K. Nimje 2007 (1 ) SCR 960 =
(2007) 14 SCC 481-
.referred to.
F
2.4. 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 could, therefore, be
admissible even to the respondent. It follows that even if
on a true and correct construction of the expression G
'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 of 2007 H
358 SUPREME COURT REPORTS [2014] 1 S.C.R.
A mad.e a clear distinction between the two, would entitle
all those appointed to serve the State upto the date of the
Amending Act came into force to continue in service.
[para 32] [378-F-G]
2.5. In Civil Appeal No. 259 of 2014 filed against an
8
order dated 5.9.2012 passed by the Division Bench of the
High Court of Kerala, the High Court has found the
cancellation of the Caste Certificate issued in favour of
the respondent in that appeal to be legally bad inasmuch
as the Scrutiny Committee had not applied its mind to the
C material which was relied upon by the respondent in that
case. No enquiry into the validity of the certificate was
found to have been conducted nor was the order pas~ed
by the Scrutiny Committee supported by reasons. There
is no legal flaw in that reasoning muchless any perversity
D tha_t may call for interference. The order passed by the
High Court takes a fair view of the matter and does not
suffer from any illegality or irregularity of any kind. [para
33] [378-H; 379-A-C]
E 2.6. It is, however, made clear that while the benefit
granted to respondent no. 1 as a Scheduled Caste
candidate till 30.8.2007 shall remain undisturbed, any
advantage in terms of promotion or otherwise which the
respondent may have been granted after the said date
F solely on the basis of his being treated as a Scheduled
Caste candidate may if so advised be withdrawn by the
competent authority. Respondent no. 1 shall not be
entitled to claim any benefit in future as a scheduled
caste candidate but no benefit admissible to him as an
G OBC candidate shall be denied. [para 34] [379-D-F]
Case Law Reference:
AIR 1995 Ker 337 referred to para 14
1962 SCR 574 relied on para 15
H
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 359
1953 SCR 377 referred to para 16 A
1963 Suppl. SCR 542 referred to para 17
2013 (1) SCR 814 referred to para 18
1970 (3) SCR 830 referred to para 19
B
2007 (3) SCR 603 relied on para 19
2008 (12) SCR 992 relied on para 20
199~ (3) Suppl. SCR 872 referred to para 23
c
2000 (5) Suppl. SCR 65 relied on para 29
2012 (7) SCR 251 referred to para 30
2006 (5) Suppl. SCR 282 referred to para 31
2007 (1) SCR 960 referred to para 31 D
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3468 of 2007.
From the Judgment and Order dated 28.02.2006 of the
E
High Court of Kerala at Ernakulam in W.A. No. 410 of 2006.
WITH
C.A. Nos. 3469, 3470 of 2007 & 259 of 2014.
F
-- V. Giri, Huzefa Ahmadi, Malini Poduval, Babita Sant, R.
Sathish, Liz Mathew, M.F. Philip, M.T. George, Kavitha K.T.,
Rajasekhar Rao, Nishe Rajen Shenker (for T.T.K. Deepak &
Co.), P.B. Suresh, Vipin Nair, Udayaditya Banerjee (for Temple
Law Firm) for the appearing parties.
G
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted in Petition for Special
Leave to Appeal (Civil) No.24775 of 2013.
H
360 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 2. Common questions of law arise for consideration in
these appeals which shall stand disposed of by this common
order. But before we formulate the questions that fall for
determination the factual matrix in which the same arise need
to be summarised for a proper appreciation of the controversy.
B
3. Respondent-V.K. Mahanudevan in Civil Appeal No.3468
of 2007 applied to Tehsildar, Alathur in the State 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
C 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)
D 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
E 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
F 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 service, a Full Bench of the Kerala High
Court in Kera/a Pattika Jathi Samrekshana Samithy v. State
G AIR 1995 Ker 337 observed that a large number of
applications for change of caste name from 'Thiyya' to
'Thandan' had been received pursuant to The Scheduled
Castes and Scheduled Tribes Order (Amendment) Act, 1976
and ordered that all such certificates as were corrected on the
H
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 361
[T.S. THAKUR, J.]
basis of such applications after 27th July, 1977 ought to be A
scrutinized by a Scrutiny Committee. The High Court observed:
"... The filing of a large number of applications for correction
of the name of caste from Ezhava/Thiyya to Thandan
alleging one and the same reason immediately after
8
inclusion of Thandan community as Scheduled Caste in the
1976 order can prima facie be considered only as a
concerted attempt on the part of Section of Ezhavas/
Thiyyas to take advantage of the benefits of Scheduled
Castes as alleged in the counter affidavit of the first C
respondent and asserted by the petitioner. It cannot be
easily believed that if a person was really a Thandan and
as such a Scheduled Caste, his caste would have been
noted as Ezhava or Thiyya in the school records. It cannot
also be believed easily that in large number of cases for
no reason whatsoever the same type of mistake was D
committed allowed to be on record till Thandan community
was included in the list of Scheduled Castes. As such
taking a serious view of the entire problem we would hold
that in all cases where certificates have been issued on
and after 27-7-1977 the date of 1976 order correcting the E
name of Caste from Ezhava/Thivva to Thandan and other
cases where certificates· have been issued changing the
Caste into a Scheduled Caste or Scheduled Tribe such
certificates issued are liable to be declared as of doubtful
validly. till they are scrutinised by the scrutiny Committee F
to be constituted by the first respondent as per the
directions we propose to issue in that regard ... "
(emphasis supplied)
6. Pursuant to the above directions of the High Court the G
caste certificate issued in favour of the respondent also came
under scrutiny. In the course of scrutiny, it was found that the
reports submitted by KIRTADS and relied upon by the High
Court while allowing O.P. No.9216of1986 was erroneous and
that the respondent actually belonged to Ezhuva community H
362 SUPREME COURT REPORTS [2014] 1 S.C.R.
A which fell under the OBC category. Director, KIRTADS
accordingly 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
B 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
Pa/aghat Ji/la Thandan Samudhaya Samrakshna Samithi
and Anr. v. State of Kera/a and Anr. (1994) 1 SCC 359 had
c 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
D 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
E State of Kerala filed Writ Appeal No.1300 of 1999 which was
allowed by a Division Bench of the High Court by its judgment
and order dated 14th June, 1999 and directed a fresh enquiry
into the caste status of the respondent by KIRTADS. Review
Petition No.236 of 1999 filed against the said order by the
F respondent was dismissed by the Division Bench by its order
dated 29th July, 1999. The Division Bench, however,
specifically reserved liberty for the respondent to bring the
judgments pronounced in O.P. No.9216 of 1986 and
O.P.No.5470 of 1988 to the notice of the Director, KIRTADS
G and declined to express any opinion of its own as to the effect
of the said judgments. This is evident from the following
passage from the order passed by the High Court:
"At the time of argument our attention was drawn to Ext.
Pl judgment dated 25.2.87 in O.P. 9216186 and also the
H judgment of a Division of this Court in O.P. 5470188 for
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 363
[T.S. THAKUR, J.]
the proposition that this Court has already accepted the A
status of the petitioner in the above two cases. We are
not inclined to express any opinion on the two judgment
referred to above. It is for the review petitioner to place
the above two judgments and other materials, if any
before the Director for his consideration and report. The B
Director of Kirtads is directed to send his report to the
State government within three months from the date of
receipt of copy of the judgment and the Government may
consider the entire matter on merits and pass appropriate
orders accordingly, Review petition is disposed of as c
above."
8. A fresh enquiry accordingly commenced in which
Vigilance Officer, KIRTADS, reported that the genealogical and
documentary evidence available on record proved beyond
doubt that the respondent and all his consanguinal and affinal D
relatives belonged to the 'Ezhuva' and not 'Thandan'
community. The Scrutiny Committee acting upon the said report
issued a show-cause notice to the respondent to show cause
as to why the certificate issued in his favour should not be
cancelled. E
9. Aggrieved by the notice issueq to him the respondent
once again approached the High Court in O.P. No.2912 of
2000 which was disposed of by the High Court by its order
dated 4th July, 2001 with a direction that the KIRTADS report F
shall be placed before the State Government for appropriate
orders. The State Government accordingly considered the
matter and passed an order dated 18th January, 2003 by which
it concurred with the report and t~e view taken by KIRTADS
and declared as follow:
G
"(i) It is declared that Shri. V.K. Mahanudevan, S/o Shri
KunTukuttan, Kunnissery House, Kottaparambil,
Vadakkancherry, Alathur, Palakkad District who is now
working as Executive Engineer, Minor Irrigation Division,
Irrigation Department, Palakkad does not belong to H
364 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 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
8
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.
c (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.
D (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.
E (v) On completion of the actions as per this order the
services of Shri V.K. Mahanudevan, Executive Engineer,
Minor Irrigation Division in the Irrigation Department shall
be terminated forthwith and a member of Sch. Caste
community shall be appointed against the post in which
F Shri V.K. Mahanudevan was appointed in the Irrigation
Department if his appointment was on consideration as
member of Sch. Caste."
10. Aggrieved by the order passed by the Government, the
G respondent and his brother who is respondent in Civil Appeal
No.3470 of 2007 challenged the order passed by the
Government before the High Court in O.P. No.5596 of 2003
and Writ Petition (C) No.20434 of 2004 respectively which were
allowed by a Single Judge of the High Court in terms of its
H order dated 11th November, 2005, primarily on the ground that
R UNNIKRISHNAN v. V.K. MAHANUDEVAN 365
[T.S. THAKUR, J.]
the issue of caste certificate to the respondent had already A
been concluded by the judgment of the High Court dated 25th
February, 1987 in O.P. No.9216 of 1986 and that the said
question could not be re-opened so long as the said judgment
of the High Court was effective.
B
11. The State of Kerala then preferred Writ Appeal No.134
of 2006 which was dismissed by a Division Bench of the High
Court in terms of its order dated 25th January, 2006 concurring
with the view taken by the Single Judge that the issue regarding
the caste status of the respondent stood concluded by a judicial C
order passed inter parties and could not, therefore, be re-
opened. Writ Appeal No.410 of 2006 filed by the aggrieved
members of the Irrigation Department and Writ Appeal No.193
of 2006 filed by the State in relation to respondent were
dismissed by the Division Bench on the same terms by order
dated 28th and 27th January, 2006 respectively. So also D
Review Petition No.263 of 2006 filed by the State against the
order passed by the Division Bench was dismissed with the
observation that the judgment in O.P. No.9216 of 1986 had
effectively settled the question regarding the caste status of the
respondent. Civil Appeals No.3469 and 3470 of 2007 have E
been filed by the State against the said judgment of the High
Court while Civil Appeal No.3468 of 2007 has been filed by
the members of the Irrigation Department of the Government
of Kerala. Civil Appeal arising out of Petition for special leave
to appeal (Civil) No.24775 of 2013 has been filed by State F
against the Order dated 5th September, 2012.
12. Two distinct questions fall for determination in these
appeals. The first is whether the appellants could have re-
opened for examination the caste status of the respondent-V.K. G
Mahanudevan no matter judgment of the High Court in O.P
No.9216of1986 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.9216of1986 effectively settled the question regarding H
366 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 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
B 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
C 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 applied for correction of the
SLCC book by deleting his description as an OBC and for
treating him as a member of the Scheduled Caste. Since the
D correction did not come about quickly, he moved to the High
Court for a direction against the respondents to treat him as a
Scheduled Caste and to make appropriate entries in the
relevant record. Kerala Public Service Commission, Director,
Harijan Welfare Board, Trivandrum were among others arrayed
E as respondents to the writ petition. When the matter appeared
before a Single Bench of the High Court for hearing, it was
reported that Director, Kerala Institute for Research Training and
Development Studies of Scheduled Castes and Scheduled
Tribes, Kozhikode (KIRTADS) had conducted an
F anthropological study and recorded a finding that the
respondent-writ petitioner before the High Court belonged to
Thandan Community and that he was entitled to be treated as
a Scheduled Caste. Government advocate representing the
respondents appears to have submitted before the Court that
G the findings recorded by the KIRTADS had been communicated
to the Director of Harijan Welfare, Trivandrum-respondent no.3
in the writ petition and accepted by him. It was on these
submissions made before the High Court that the Single Bench
of the High Court passed an Order dated 25th February, 1987,
H the operative portion whereof read as under :-
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 367
[T.S. THAKUR, J.]
"/ record the submission of the Government Pleader that A
the 3rd respondent has accepted the findings of the 4th
respondent that the petitioner is a Thandan and hence
entitled to the benefits as a scheduled caste. The 6th
respondent may implement this finding and issue
certificate to the petition in the prescribed form certifying B
that the petitioner is a Thandan, a member of the
scheduled caste. This shall be done within a period of
ten days from today. Based thereon the 5th respondent
will also make the necessary changes in the S.S. L. C.
book of the petitioner treating him as a scheduled caste c
and not as an D.B.C. This also will be done by the 5th
respondent within a period of one month from today."
14. A caste certificate was in the above circumstances
issued in favour of the respondent pursuant to the order passed
by the High Court which order has attained finality for the same D
has not been challenged leave alone modified or set aside in
any proceedings till date. The question in the above context is
whether a fresh 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 E
made by the full bench of the Kerala High Court in Kera/a.
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 F
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 judgement and order passed by the High
Court in O.P No.9216of1986 having attained finality no fresh G
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 judgement 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 H
368 SUPREME COURT REPORTS [2014] 1 S.C.R.
A grant of validity of a caste certificate secured earlier than the
said judgment had been the subject matter of judicial
proceedings and effectively and finally resolved in the same.
That apart, the respondent was not a party to the proceedings
before the full bench nor was the certificate issued in his favour
B under challenge in those proceedings. The full bench did not
even incidentally have to examine the validity of the certificate
issued to the respondent or the correctness of the order passed
by the High Court pursuant to which it was issued. Such being
the position the direction issued by the full bench of the High
c Court could not possibly have the effect of setting at naught a
judgment delivered inter-parties which had attained finality and
remained binding on all concerned.
15. It is trite that law favours finality to binding judicial
decisions pronounced by Courts that are competent to deal
D with the subject matter. Public interest is against individuals
being vexed twice over with the same kind of litigation. The
binding character of judgments pronounced by the Courts of
competent jurisdiction has always been treated as an essential
part of the rule of law which is the basis of the administration
E of justice in this country. We may gainfully refer to the decision
of Constitution Bench of this Court in the Daryao v. State of
U.P. AIR 1961 SC 1457 where the Court succinctly summed
up the law in the following words:
F "It is in the interest of the public at large that a finality
should attach to the binding decisions pronounced by
Courts of competent jurisdiction, and it is a/so in the
public interest that individuals should not be vexed twice
over with the same kind of litigation.(***) The binding
character of judgments pronounced by courts of
G
competent jurisdiction is itself an essential part of the rule
of law, fJnd the rule of law obviously is the basis of the
administration of justice on which the Constitution lays
so much emphasis."
H 16. That even erroneous decisions can operate as res-
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 369
[T.S. THAKUR, J.]
judicata is a/so fairly well settled by a long line of decisions A
rendered by this Court. In Mohan/al Goenka v. Benoy Kishna
Mukherjee AIR 1953 SC 65, this Court observed:
"There is ample authority for the proposition that even an
erroneous decision on a question of law operates as 'res
8
judicata' between the parties to it. The correctness or
otherwise of a judicial decision has no bearing upon the
question whether or not it operates as 'res judicata'."
17. Similarly in State of West Bengal v. Hemant Kumar
Bhattacharjee AIR 1966 SC 1061, this Court reiterated the C
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 0
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: E
"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 F
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." G
19. In Mathura Prasad v. Dossibai (1970) 1SCC613, this
Court held that for the application of the rule of res-judicata, the
Court is not concerned with the correctness or otherwise of the
earlier judgement. The matter in issue if one purely of fact
decided in the earlier proceedings by a competent Court must H
370 SUPREME COURT REPORTS [2014] 1 S.C.R.
A in any subsequent litigation between the same parties be
recorded as finally decided and cannot be re-opened. That is
true even in regard to mixed questions of law and fact
determined in the earlier proceeding between the same parties
which cannot be revised or reopened in a subsequent
B proceeding between the same parties. Having said that we
must add that the only exception to the doctrine of res-judicata
is "fraud" that vitiates the decision and renders it a nullity. This
Court has in more than one decision held that fraud renders
any judgment, decree or orders a nullity and non-est in the
c eyes of law. In A. V. Papayya Sastry v. Government of A.P.,
(2007) 4 SCC 221, fraud was defined by this Court in the
following words:
"Fraud may be defined as an act of deliberate deception
with the design of securing some unfair or undeserved
D benefit by taking undue advantage of another. In fraud
one gains at the loss and cost of another. Even most
solemn proceedings stand vitiated if they are actuated
by fraud. Fraud is thus an extrinsic collateral act which
vitiates all judicial acts, whether in rem or in personam.
E The principle of "finality of litigation" cannot be stretched
to the extent of an absurdity that it can be utilised as an
engine of oppression by dishonest and fraudulent
litigants."
F 20. To the same effect is the decision in Raju Ramsingh
Vasave v. Mahesh Deorao Bhivapurkar and Ors., (2008) 9
SCC 54, where this Court held:
"If a fraud has been committed on the court, no benefits
therefrom can be claimed on the basis of thereof or
G otherwise."
21. In the case at hand we see no element of fraud in the
Order passed by the High Court in O.P.No.9216 of 1986. The
order it is evident from a plain reading of the same relies more
H upon the submissions made before it by the Government
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 371
[T.S. THAKUR, J.]
Counsel than those urged on behalf of the writ-petitioners A
(respondents herein). That there was an enquiry by KIRTADS
into the caste status of the writ petitioners (respondents herein)
which found his claim of being a Thandan justified hence
entitled to a scheduled caste certificate has not been disputed.
That the report of KIRTADS was accepted by the Director of B
Harijan Welfare, Trivandrum is also not denied. That apart, the
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 c
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
0
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 E
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 extraneous considerations by itself F
provided a basis for unsettling what stood settled by the order
passed by the High Court. Suffice it to say that the contention
urged on behalf of the appellants that the order passed by the
High Court in O.P. No. 9216of1986 was a nullity on the ground
of fraud has not impressed us in the facts and circumstances G
of the case. The upshot of the above discussion, therefore, is
that the order passed by the High Court in O.P.No.9216of1986
which had attained finality did not permit a fresh enquiry into
the caste status of writ-petitioner. Inasmuch as the High Court
quashed the said proceedings and the order passed by the H
372 SUPREME COURT REPORTS [2014} 1 S.C.R.
A State Government pursuant thereto, it committed no error to
warrant interference.
22. That brings us to the second question which can be
answered only in the perspective in which the same arises for
consideration. The Constitution (Scheduled Castes) Order,
8
1950 specified the castes that are recognised as Scheduled
Castes for different states in the Country. Part XVI related to
the then State of Travancore and Cochin. Item 22 of that part
specified the "Thandan" as a scheduled caste for the purposes
of the entire State. The Presidential Order was modified by The
C Scheduled Castes & Scheduled Tribes Lists (Modification)
Order 1956. In the list comprising Part V applicable to the State
of Kerala (the successor to the State of Trivandrum, Kochi),
'Thandan' as a caste appeared at Item 14 for the purposes of
the entire State except Malabar District. Then came the
D Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 1976 with effect from 27th July, 1997. In the first Schedule
under part VII applicable to the State of Kerala 'Thandan' as a
caste was shown at Item 61. Unlike two other castes shown in
the said part namely Boyan and Malayan which were shown as
E scheduled caste for specific areas of the State of Kerala,
Thandan had no such geographical or regional limitation. This
implied that 'Thandan' was included as a Scheduled Caste for
the entire State of Kerala.
F 23. Consequent upon the promulgation of the Scheduled
Castes and Scheduled Tribes Orders (Amendment) Act, 1976,
the Kerala State Government started receiving complaints
alleging that a section of Ezhuva/Thiyya community of Malabar
areas and certain taluk of Malabar districts who were also called
G 'Thandan' were 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/
H
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 373
[T.S. THAKUR, J.]
Thiyya community as they are not scheduled castes. Acting A
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 B
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 c
in the certificate as 'Thandans other than Ezhuvarrhiyya". These
instructions were withdrawn to be followed by another order
passed in the year 1987 by which the Government once again
directed that while issuing caste certificate, the Revenue
Authority should hold proper verification to find out whether the
0
person concerned belongs to Thandan caste and not to
Ezhuvarrhiyya. The matter eventually reached this Court in
Pa/ghat Ji/la Thandan Samudhaya Samrakshna Samithi and
Anr. v. State of Kera/a and Anr. (1994) 1 SCC 359 in which
this Court formulated the principal question that fell for E
consideration in the following words:
"The principal question that arises in these writ petitions
and appeals is in regard to the validity of the decision of
the State of Kera/a not to treat members of the Thandan
community belonging to the erstwhile Malabar District, F
including the present Pa/ghat District, of the State of
Kera/a as members of the Scheduled Castes."
24. This Court reviewed the legal position and declared
that Thandan community having been listed in the Scheduled G
Caste order as it then stood, it was not open to the State
Government or even to this court to embark upon an enquiry to
determine whether a section of Ezhuvarrhiyya which was called
Thandan in the Malabar area of the State was excluded from
the benefits of the Scheduled Caste order. This Court
observed: H -
374 SUPREME COURT REPORTS [2014] 1 S.C.R.
A "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.
B By reason of Article 341 a part or group or section of a
caste, race or 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!Thiyyas community (which is not specified as
c a Scheduled Caste) which is called Thandan in some
parts of Malabar area, that section is a/so 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
D 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 purported to do
E in the 1987 order."
(emphasis supplied)
25. What followed from the above is that Thandans
regardless whether they were Ezhuvas/Thiyyas known as
F 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
G 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
H could be countenanced against the respondent especially when
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 375
[TS. THAKUR, J.]
it is not the case of the appellants that the respondent is not A
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
B
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 change
in Part VIII - Kerala for entry 61 :-
c
"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)".
D
27. There is in the light of the above no manner of doubt
that Ezhuvas and Thiyyas who are also known as Thandan, in
the erstwhile Cochin and Malabar areas are no longer
scheduled caste for the said State w.e.f. 30th August, 2007 the
date when the amendment was notified. The Parliament has,
E
it is evident, removed the prevailing confusion regarding
Ezhuvas and Thiyyas known as Thandan, in the erstwhile
Cochin and Malabar areas being treated as scheduled caste.
Ezhuvas and Thiyyas even if called Thandans and belonging
to the above area will no longer be entitled to be treated as
scheduled caste nor will the benefits of reservation be F
admissible to them.
28. Taking note of the amending legislation, Government
of Kera la has by Order No.93/201 O/SC/ST dated 30th August,
2010 directed that Ezhuvas and Thiyyas who are known as G
Thandan, in the erstwhile Cochin and Malabar shall be treated
as OBCs in List Ill. This part was not disputed even by Mr. Giri,
counsel appearing for the respondent who fairly conceded that
consequent upon the Amendment Act of 2007 (supra) Ezhuvas
and Thiyyas known as Thandan, in the erstwhile Cochin and H
376 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Malabar areas stand deleted from the Scheduled Castes List
and are now treated as OBCs by the State Government. ·What
is significant is that the deletion is clearly prospective in nature
for Ezhuvas and Thiyyas known as Thandan in the above region
were in the light of the decision of this Court in Pattika Jathi's
B case (supra) entitled to be treated as scheduled caste and the
distinction sought to be made between 'Thandans' who were
Ezhuvas and Thiyyas and those who were scheduled caste was
held to be impermissible and non est in the eye of law. The
law declared by this Court in Patfika Jathi's case (supra)
C 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
D entitlement was taken away retrospectively 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
E 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.
F 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
G conscience. In State of Maharashtra v. Mi/ind (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
H the same as Halba, mentioned in the Constitution (Scheduled
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 377
[T.S. THAKUR, J.]
Tribes) Order. This Court held that neither the Government nor A
the Court could add to the List of castes mentioned in the Order
and that Halba-Koshtis could not by any process of reasoning
or interpretation treated to be Halbas. Having said that, the
question that fell for consideration was whether the benefit of
the reservation could be withdrawn and the candidate deprived 8
of the labour that he had put in obtaining a medical degree. This
Court while protecting any such loss of qualification acquired
by him observed:
"In these circumstances, this judgment shall not affect the
degree obtained by him aad his practising as a doctor. C
But we make it clear that he cannot claim to belong to
the Scheduled Tribe covered by the Scheduled Tribes
Order. In other words, he cannot take advantage of the
Scheduled Tribes Order any further or for any other
constitutional purpose. (***) we make it clear that the D
admissions and appointments that have become final,
shall remain unaffected by this judgment".
30. Kavita Solunke v. State of Maharashtra, (2012) 8
sec 430, was also a similar case where the question was E
whether the appellant who was a 'Halba-Koshti' could be
treated as 'Halba' for purposes of reservation and employment
as a Scheduled Tribe candidate. This Court traced the history
of the long drawn confusion whether a 'Halba' was the same
as 'Halba-Koshti' and concluded that while 'Halba' and 'Halba-
F
Koshti' could not be treated to be one and the same, the
principle stated in Milind's case (supra) was attracted to protect
even appointments that were granted by treating 'Halba-Koshti'
as Halba Scheduled Tribe although such extension of the
expression 'Halba' appearing in the Presidential Constitution G
(Scheduled Castes) Order 1950 was not permissible. This
Court observed:
"If ·"Halba-Koshti" has been treated as "Halba" even
before the appellant joined service as a teacher and if
the only reason for her ouster is the law declared by this H
378 SUPREME COURT REPORTS [2014) 1 S.C.R.
A Court in Mi/ind case, there is no reason why the protection
against the ouster given by this Court to appointees
whose applications had become final should not be
extended to the appellant also. The Constitution Bench
had in Mi/ind case noticed the background in which the
8 confusion had prevailed for many years and the fact that
appointments and admissions were made for a long time
treating "Koshti" as a Scheduled Tribe and directed that
such admissions and appointments wherever the same
had attained finality will not be affected by the decision
taken by this Courf'.
c
31. In Sandeep Subhash Parate v. State of Maharashtra
and Others, (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
0 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 tides of the person who has obtained the appointment
E 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
F 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
G Act of 2007 made a clear distinction between the two would
entitle all those appointed to serve the State upto the date of
the Amending Act came into force to continue in service.
33. In Civil Appeal arising out of SLP (C} No.24775 of
H 2013 filed against an order dated 5th September, 2012 passed
R. UNNIKRISHNAN v. V.K. MAHANUDEVAN 379
[~.S. THAKUR, J.]
by the Division Bench of the High Court of Kerala, the High A
Court has found the cancellation of the Caste Certificate issued
in favour of the respondent in that appeal to be legally bad
inasmuch as the Scrutiny Committee had not applied its mind
. to the material which was relied upon by the respondent in that
case. No enquiry into the validity of the certificate was found to B
have been conducted nor was the order passed by the Scrutiny
Committee supported by reasons. There is, in our opinion, no
legal flaw in that reasoning muchless any perversity that may
call for our interference. The order passed by the High Court
takes a fair view of the matter and does not suffer from any c
illegality or irregularity of any kind.
34. In the result these appeals fail and are, hereby,
dismissed. We, however, make it clear that while the benefit
granted to the respondent V.K. Mahanudevan as a Scheduled
Caste candidate till 30th August, 2007 shall remain undisturbed, D
any advantage in terms of promotion or otherwise which the
respondent may have been granted after the said date solely
on the basis of his being treated as a Scheduled Caste
candidate may if so advised be withdrawn by the Competent
Authority. It is axiomatic that the respondent-V.K. Mahanudevan E
shall not be entitled to claim any benefit in the future as a
scheduled caste candidate but no benefit admissible to him as
an OBC candidate shall be denied. Parties are directed to
bear their own costs.
R.P. Appeals dismissed.
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