Supreme Court of India
T. KOCHAversusSTATE OF KERALA & ORS.
- Citation
- 2016 INSC 316
- Decided
- 13 April 2016
- Disposal
- Appeal(s) allowed
- Bench
- A K SIKRI
Holding
The appellant, having been appointed as a member of the Thandan community under the SC reservation before the prospective amendment of 30 August 2007, remains a validly appointed Scheduled Caste employee and the amendment cannot retrospectively remove that status.
Summary
T. Kocha, claiming membership of the Thandan community (a Scheduled Caste in Kerala), was appointed as a High School Assistant on 3 February 1989 under the SC reservation. Later a vigilance inquiry concluded she belonged to the Ezhava/Thiyya community and therefore was not a Scheduled Caste, leading to a show‑cause notice and an order cancelling her appointment. Kocha challenged the order; the High Court dismissed her petition and a review was also rejected, prompting a Special Leave Petition before this Court. The central issue was whether the 2007 amendment that excluded Ezhuvas and Thiyyas (who are also called Thandan) from the Scheduled Caste list applied retrospectively to appointments made before its commencement. Relying on the Palghat Jilla judgment and the later decision in R. Uthaman’s case, the Court held that the amendment was prospective and could not divest persons appointed before 30 August 2007 of the benefits they had lawfully received. Consequently, the appellant’s appointment was deemed valid and she remained entitled to the Scheduled Caste status and associated benefits. The appeals were allowed, the impugned orders set aside and costs awarded to the appellant.
Issues considered
- Whether the appellant belongs to the Scheduled Caste (Thandan) community for purposes of reservation.
- Whether the 2007 amendment excluding Ezhuvas and Thiyyas from the Scheduled Caste list applies retrospectively to appointments made before its effective date.
- Whether the Scrutiny Committee's determination that the appellant was not a Scheduled Caste can be set aside.
Legislation cited
Subjects
Scheduled CasteReservationThandan communityProspective amendmentAppointmentCaste certificateKeralaAffirmative action
Judgment
[2016] 3 S.C.R. 368
A T. KOCHA
v.
STATE OF KERALA & ORS.
(Civil Appeal Nos. 6126-6127 of2013)
B 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
c 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
D 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
E
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
F - 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,
G
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. 369
Scheduled Castes and Scheduled Tribes Orders .(Amendment) A
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,
B
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] -. c
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. D
Case Law Reference
1993 (3) Suppl. SCR 872 relied on Para3
2014 (1) SCR 350 relied on Paras E
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6126-
6127 of20I3
WITH
C.A.No.11377of2011 F
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. I224 of 2012.
Ms. V. P. Seemanthini. Sr. Adv., Nishe Rajen Shonk.er, Ms. Anu
G
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.
H
370 SUPREME COURT REPORTS [2016) 3 S.C.R.
A 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
B 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
c 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
D 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 We shall be referring to
1
•
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
E 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
F 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
G 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
H (1994) 1sec359
T. KOCHA v. STATE OF KERALA & ORS. [A.K. SIKRI, J.] 371
persons. It was followed by an affidavit dated 02.12.2003 of the appellant A
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 B
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
c
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. D
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.
E
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 F
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. G
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 H
372 SUPREME COURT REPORTS [2016] 3 S.C.R.
A 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
B
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
c 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
D 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
E 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
F 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
G 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
H State except Malabar District. The Scheduled Castes and Scheduled
T. KOCHA v. STATE OF KERALA & ORS. [A.K. SIKRI, J.] 373
Tribes (Amendment) Act, 1976 came into force on 27.07.1977. In the A
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
B
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 c
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
D
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 E
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:
G
"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
Article 341 a part or group or section of a caste, race or H
374 SUPREME COURT REPORTS [2016] 3 S.C.R.
A 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
B
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
c 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
D 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
E 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
F 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
G 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."
H 8. The effect of the aforesaid judgment, or the ratio thereof, is
T. KOCHA v, STATE OF KERALA & ORS. (A.K. SIKRI, J.J 375
pointed out succinctly a recent judgment of this Comt in R. U1111ikrislman A
and another v. V.K. Malumudewm {//If/ others 2 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 B
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
c
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 D
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 E
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)." F
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
G
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 H
376 SUPREME COURT REPORTS [2016) 3 S.C.R.
A 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:
B "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
c 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
D 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.
E 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.
F 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
G 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
H and circumstances of each case.
T. KOCHA v. STATE OF KERALA & ORS. [A.K. SIKRI, J.] 377
41. In the instant case there is no evidence of lack of bona A
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
B
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 c
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 D
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 E
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 F
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. G
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 H
378 SUPREME COURT REPORTS [2016] 3 S.C.R.
A 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
B
cost of these proceedings.
DevikaGujral Appeals allowed.
L
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Scheduled Caste"Sign in to search