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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6126-6127 OF 2013

T. KOCHA .....APPELLANT(S)

VERSUS

STATE OF KERALA & ORS. .....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 11377 OF 2011

J U D G M E N T

A.K. SIKRI, J.

In  these  appeals,  the  legal  issue  which  needs  determination  is  

identical.  The background facts under which the said issue arises are also  

somewhat similar.  Therefore, without being repetitive, it would serve our  

purpose to take note of the facts appearing in Civil Appeal Nos. 6126-6127  

of 2013 in order to spell  out the issue involved and decision thereupon  

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shall govern both the appeals.   

2. The appellant in Civil  Appeal Nos. 6126-6127 of 2013 is T. Kocha who  

claims to be the member of the Thandan Community, which is a Scheduled  

Caste in the State of Kerala.  She applied for  the post  of  High School  

Assistant  (Physical  Science)  in  a  Government  School  under  reserved  

category  claiming  herself  to  be  the  Scheduled  Caste  as  belonging  to  

Thandan Community.  She was given appointment to the said post, after  

being successful in the selection process, w.e.f. 03.02.1989.  

3. There was some dispute about Thandans as members of the Scheduled  

Caste which travelled up to this Court  and was decided in the case of  

Palghat Jilla Thandan Samudhaya Samrakshna Samithi and another   

v.  State  of  Kerala  and  another1.   We  shall  be  referring  to  the  said  

judgment  at  length and the decision taken therein by this  Court  at  the  

appropriate stage.  We may mention at this juncture that on the basis of  

another judgment rendered by Full Bench of High Court of Kerala in O.P.  

No.  6758/87  (decided  on  14.03.1995),  the  Vigilance  Cell  of  KIRTADS  

(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  1 (1994) 1 SCC 359

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of the appellant, the respondent No. 3 came to the conclusion 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.   Based  on  that  report,  the  Scrutiny  Committee,  for  

verification of Community Certificates of Scheduled Castes and Scheduled  

Tribes Department in the Government of Kerala (respondent No. 2 herein),  

issued a show cause notice dated 03.06.2003 to the appellant as to why  

she should not be treated as non-Scheduled Caste person.  The appellant  

submitted her written explanation dated 06.09.2003 along with as many as  

46 documents in support of her plea that she was of Thandan Caste and,  

therefore,  rightly  given  the  Government  appointment  under  the  quota  

meant for Scheduled Caste persons.  It was followed by an affidavit dated  

02.12.2003 of the appellant wherein she requested respondent No. 2 to  

furnish the name and addresses of those persons from whom respondent  

No. 3 had allegedly collected evidence.  A request was also made to afford  

an opportunity to cross examine those witnesses.  This request was not  

allowed.   

4. After considering the written explanation and the documents submitted by  

the  appellant,  respondent  No.  2  concluded that  she  did  not  belong  to  

Thandan Community and, therefore, was not a Scheduled Caste person.  

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Order dated 13.04.2004 was passed to this effect which was served upon  

the appellant on 28.06.2004. The appellant challenged the aforesaid order  

of the respondents by filing the writ petition in the High Court of Kerala.  

The  said  writ  petition  was  admitted  and  interim  stay  vide  order  dated  

13.04.2004 was granted in favour of the appellant.  However, when the  

said writ petition was finally heard in the year 2012, vide judgment dated  

05.09.2012, the High Court dismissed the same. The appellant preferred  

the Review Petition No. 1224/2012 seeking review of the said judgment  

which was also dismissed on 07.02.2013.  Main judgment as well as the  

order passed in the review petition are challenged by the appellant via  

special  leave petition  in  which leave  was granted and  that  is  how the  

instant appeals have come up for final hearing wherein issue regarding the  

status of the appellant as to whether she belongs to Thandan Community  

or not falls for consideration.

5. Before we discuss various documents filed by the appellant in support of  

her claim, it would be advisable to traverse through the judgments referred  

to above as well as some other judgments and also the relevant statutory  

orders/enactments  in  this  behalf.   A  scanning  through  the  aforesaid  

material  would  clear  much  of  the  haze  which  surrounds  the  issue  in  

question.  We would like to start our discussion with the judgment of this  

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Court  in  Palghat  Jilla's  case  which  traces  out  the  history  about  the  

inclusion  of  Thandans  as  Scheduled  Caste  in  the  State  of  Kerala.   A  

perusal of the judgment reveals that Thandan Community in the erstwhile  

Travancore and Cochin State alone was included in the Scheduled Caste  

list by the Constitution (Scheduled Castes) Order 1950.  Scheduled Caste  

list  of  Kerala  State  was  amended,  as  per  Scheduled  Castes  and  

Scheduled Tribes Orders (Amendment) Act 1976 (Act 108/76) by including  

Thandans  throughout  Kerala  State  in  the  Scheduled  Caste  list.   After  

inclusion  of  the  Thandan  Community  throughout  the  State  in  the  

Scheduled Caste list,  the State Government  issued instructions  to  the  

caste  certificate  issuing  authorities  not  to  issue  Scheduled  Caste  

certificates to the members of Thandan Community stating that Thandan  

Community  of  Malabar  is  synonymed Ezhava/Thiyya  Community.   The  

purport of the aforesaid considerations was to clarify that Ezhava/Thiyya  

Community  in  Malabar  was not  the same as Thandan Community  and  

those belonging to Ezhava/Thiyya Community could not claim the status of  

Scheduled Caste category by equating themselves to be the members of  

Thandan 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 Court of Kerala  

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which were decided by the High Court one way or the other and those  

decisions were also challenged before this Court.  All these writ petitions  

and appeals were decided together.

6. The principal  question  in  the  said  writ  petitions  and  appeals  was  with  

regard to the validity of the decisions of the State of Kerala not to treat  

members  of  Thandan  Community  belonging  to  the  erstwhile  Malabar  

District, including the present Palakkad District of the State of Kerala, as  

the members of the Scheduled Castes.  This Court noted that Article 366  

(24) of 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  Article 341 to be Scheduled  

Castes for the purposes of this Constitution.”  Under Article 341, President  

is empowered to specify the castes, races or tribes or parts of or groups  

within  castes,  races  or  tribes  which  shall  for  the  purposes  of  this  

Constitution be deemed to be Scheduled Castes in relation to that State or  

Union Territory, as the case may be.  Parliament is also empowered, by  

the  said  Article,  to  make  law to  include  in  or  exclude  from the  list  of  

Scheduled Castes specified in a notification issued by the President under  

the said provision.  The President, in consultation with the Governors and  

Rajpramukhs  of  the  various  States  had  issued  The  Constitution  

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(Scheduled  Castes)  Order,  1950  specifying  various  castes  to  be  

Scheduled Castes in respect of different States.  Part XVI thereof related  

to  the  then  State  of  Travancore-Cochin.   At  item 22  of  Part  XVI  was  

specified the caste Thandan for  the purposes of  the entire State.   The  

Constitution Scheduled Castes (Modification)  Order,  1956,  modified the  

Scheduled Castes Order.  In the list in Part V, applicable to the State of  

Kerala (the successor to the State of Travancore-Cochin), at item 14, was  

specified the caste Thandan for the purposes of the entirety of the State  

except  Malabar  District.   The Scheduled Castes and Scheduled Tribes  

(Amendment)  Act,  1976  came  into  force  on  27.07.1977.   In  the  First  

Schedule thereof, under Part VII relative to the State of Kerala, Thandan  

was specified at item 61.  In Part VII only in respect of two castes, namely,  

Boyan and Malayan, were specific areas of the State of Kerala designated.  

In other words, all other castes listed in Part VII, including Thandan were  

Scheduled  Castes  for  the  purposes  of  the  entirety  of  the  State.   On  

17.05.1979, 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 Kerala came to be included in the list of Scheduled  

Castes.  As certain complaints were received to the effect that there was  

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section  of  Ezhavas/Thiyyas  of  Malabar  area  and  of  certain  Taluks  of  

Trichur 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 15.10.1984  

stating that after reconsideration of the matter in all  respects, the 1979  

Order was cancelled and “Thandans throughout Kerala would be treated  

as  members  of  Scheduled  Castes  and  Scheduled  Tribes  Orders  

(Amendment)  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 should clarify  

after  proper  verification that  the person concerned belongs to Thandan  

caste and not Ezhava/Thiyya.  As pointed out above, this order was under  

challenge before this Court.

7. The Court proceeded on the basis that the 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  

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Paras 16, 17 and 18 of the judgment, which reads as under:

“16.  Article 341 empowers the President to specify not only  castes,  races  or  tribes  which  shall  be  deemed  to  be  Scheduled Castes in relation to a State but also “parts of or  groups within castes, races or tribes” which shall be deemed  to be Scheduled Castes in relation to a State. By reason of  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 a Scheduled Caste)  which is called Thandan in some parts of Malabar area, that  section is also entitled to be treated as a Scheduled Caste,  for  Thandans  throughout  the  State  are  deemed  to  be  a  Scheduled  Caste  by  reason  of  the  provisions  of  the  Scheduled Castes Order as it now stands. Once Thandans  throughout  the  State  are  entitled  to  be  treated  as  a  Scheduled Caste by reason of the Scheduled Castes Order  as it now stands, it is not open to the State Government to  say otherwise, as it has purported 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 of Tripura  (1990 Supp. SCC 220). This  judgment considered the Constitution Bench judgments in B.  Basavalingappa v.  D. Munichinnappa  ((1965)  1  SCR 316)  and  Bhaiyalal v.  Harikishan Singh  ((1965) 2 SCR 877) and  certain  other  judgments.  It  held  that  the  two  Constitution  Bench  judgments  indicated  that  any  amendment  to  the  Presidential Orders could only be by legislation. The Court  could  not  assume  jurisdiction  and  order  an  enquiry  to  determine  whether  the  terms  of  the  Presidential  Order  included a particular  community.  A State Government  was  entitled to initiate appropriate proposals for  modification in  cases  where  it  was  satisfied  that  modifications  were  necessary and,  if  after  appropriate enquiry,  the authorities  were  satisfied  that  a  modification  was  required,  an  amendment  could  be  undertaken  as  provided  by  the  Constitution.

18. These  judgments  leave  no  doubt  that  the  Scheduled  Castes Order has to be applied as it stands and no enquiry  

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can be held or evidence let in to determine whether or not  some particular  community  falls  within  it  or  outside  it.  No  action  to  modify  the plain  effect  of  the Scheduled  Castes  Order, except as contemplated by Article 341, is valid.”

8. The effect of the aforesaid judgment, or the ratio thereof, is pointed out  

succinctly  a  recent  judgment  of  this  Court  in  R.  Unnikrishnan  and  

another v. V.K. Mahanudevan and others2 in the following words:

“32.   What  followed  from  the  above  is  that  Thandans,  regardless of whether they were Ezhuvas/Thiyyas known as  Thandans belonging to the Malabar area, were by reason of  the above pronouncement of this Court in Palghat case held  entitled to the benefit of being treated as Scheduled Caste  by  the  Presidential  Order,  any  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 the one hand and Thandans who fell in the  Scheduled  Caste  category,  on  the  other,  thus  stood  abolished by reason of the above pronouncement. No such  argument  could  be  countenanced  against  the  respondent  especially when it is not the case of the appellants that the  respondent is not an Ezhuva from Malabar area of the State  of Kerala.”

9. It so happened that after the judgment in Palghat Jilla's case, there was  

an  amendment  of  the  Presidential  Order  in  terms  of  the  Constitution  

(Scheduled  Castes)  Order  (Amendment)  Act,  2007  which  received  the  

assent of  the President on 29.08.2007.  By this Act,  following changes  

2 (2014) 4 SCC 434

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were made in Part VIII – Kerala for Entry 61:

“61.   Thandan  (excluding  Ezhuvas  and  Thiyyas  who  are  known  as  Thandan,  in  the  erstwhile  Cochin  and  Malabar  areas and carpenters  who are known as Thachan,  in  the  erstwhile Cochin and Travancore State).”

10. It, thus, becomes clear that after the said judgment, Ezhuvas and Thiyyas  

who are also known as Thandan in the erstwhile Cochin and Malabar are  

no  longer  Scheduled  Castes  in  the  State  of  Kerala.   However,  this  

amendment is prospective and, therefore, the aforesaid change position  

become effective only from 30.08.2007, the date when the amendment  

was notified.  In R. Unnikrishnan's judgment, this Court made it clear that  

having regard to the ratio of  Palghat Jilla'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 that those who  

were Ezhuvas/Thiyyas known as Thandans in Cochin and Malabar region  

and were given the benefit of Scheduled Caste status prior to 30.08.2007  

could not  be deprived of  such benefit  already bestowed on them.  We  

would like to reproduce the following discussions from this judgment:

“36.  The law declared by this Court  in  Palghat Jilla case  

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entitled all Thandans including those who were Ezhuvas and  Thiyyas  from  Cochin  and  Malabar  region  to  claim  the  Scheduled  Caste  status.  That  entitlement  could  be  taken  away retrospectively only by specific provisions to that effect  or  by  necessary  intendment.  We  see  no  such  specific  provision or intendment in the amending legislation to hold  that the entitlement was taken away retrospectively so as to  affect  even  those  who  had  already  benefited  from  the  reservation for Scheduled Caste candidates. At any rate, a  certificate issued to an Ezhuva known as Thandan who was  a native of Cochin and Malabar region of the State could not  be withdrawn as the Constitution (Scheduled Castes) Order,  1950 did not make a distinction between the two categories  of Thandans till the Amendment Act of 2007 for the first time  introduced such a difference.

37.   That  apart,  the  question  of  ouster  of  Ezhuvas  and  Thiyyas known as Thandan on account of the confusion that  prevailed for a considerable length of time till the decision of  this Court in  Palghat Jilla case would be unjustified both in  law and on the principles of equity and good conscience.

xxx xxx xxx

40.   In  Sandeep Subhash Parate v.  State of  Maharashtra  ((2006) 7 SCC 501), also dealing with a similar  confusion  between  “Halba”  and  “Halba-Koshti”  and  applying  the  principle  underlying in  Milind  case ((2001)  1  SCC 4), this  Court  held  that  ouster  of  candidates  who  have  obtained  undeserved benefit will be justified only where the court finds  the claim to be bona fide. In State of Maharashtra v. Sanjay  K. Nimje ((2007) 14 SCC 481), this 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.

41.  In the instant case there is no evidence of lack of bona  fides by the respondent. The protection available under the  decision of Milind case could, therefore, be admissible even  to the respondent. It follows that even if on a true and correct  construction of  the expression “Thandan” appearing in the  Constitution (Scheduled Castes) Order, 2007 did not include  

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“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 made a clear distinction between the two, would entitle  all  those appointed to  serve the State  up to  the date the  amending Act came into force, to continue in service.”

 11. The cumulative reading of the aforesaid two judgments viz. in the case of  

Palaghat Jilla  and  R. Unnikrishnan, clinches the controversy by tilting  

the balance in  favour  of  the appellant  herein.  We may record that  the  

appellants have laboured to demonstrate that they are in fact Thandans on  

the basis of various documents filed by them and have attentive to argue  

that the Scrutiny Committee did not arrive at a correct decision.  However,  

it is not even necessary to go into this aspect in the facts of these cases.  

As pointed out above, the appellant was treated as Thandan and, thus,  

belonging to Scheduled caste community on the basis of the Scheduled  

Castes and Scheduled Tribes Orders (Amendment) Act 1976 and she was  

appointed  as  High  School  Assistant  (Physical  Science)  in  Government  

School  on  03.02.1989  treating  her  as  Scheduled  Caste.   Even  if  we  

proceed  on  the  basis  that  she  belongs  to  Ezhuvas/Thiyyas,  that  is  

irrelevant  insofar  as  the  appellant  is  contained  as  these  castes  were  

treated as part of Thandan Community and were held entitled to be treated  

as Scheduled Caste.   This principle is categorically stated in  Palaghat  

Jilla's  case.  R. Unnikrishnan's case clarified that the position changes  

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only w.e.f. 30.08.2007 with the Amendment Act of 2007 when Thiyyas and  

Ezhuvas are not to be treated as part of Thandan and, thus, Scheduled  

Caste but those who have already conferred the benefit would entitled to  

continue to reap the fruits thereof.

12.  In the another appeal also, we find that appellant was treated as belonging  

to Thandan Community and given benefit much prior to 2007.

13.  For the reasons stated above, these appeals succeed and are accordingly  

allowed.  Since the appellants have been continued in service because of  

the  interim  order  passed  by  this  Court,  they  are  treated  as  validly  

appointed  giving  them  the  benefit  of  members  of  Scheduled  Caste  

category.   The  impugned  judgment  is  accordingly  set  aside  thereby  

allowing the writ petitions filed by the appellants and quashing the orders  

of respondent Nos. 2 and 3.  The appellants shall also be entitled to the  

cost of these proceedings.   

.............................................J. (A.K. SIKRI)

.............................................J. (R. K. AGRAWAL)

NEW DELHI; APRIL 13, 2016.

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