Thiyyas and Ezhuvas, Entitled to Be Treated as Scheduled Castes

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T. KOCHA (THE APPELLANT) 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 SchoolAssistant (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. 3.2.1989.
There was some dispute about Thandans as members of the Scheduled Caste which travelled up to Supreme Court and was decided in the case of Palghat Jilla Thandan Samudhaya Samrakshna Smithi and another v. State of Kerala and another [1994 (1) SCC 359].We shall be referring to the said judgement at length and the decision taken therein by Supreme Court at the appropriate stage. We may mention at this juncture that on the basis of another judgement rendered by Full Bench of High Court of Kerala in O.P. No. 6758/87 (decided on 14.3.1995), theVigilance Cell of KIRTADS (respondent No. 3 herein) had examined the cases of those persons who had changed their caste 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 conclusion that she did not belong to Thandan Community but was a member of Ezhuva/Thiyya Community and, therefore, was not a person belonging to Scheduled Caste Community. Based on that report, the Scrutiny Committee, for verification of Community Certificate of Scheduled Castes and Scheduled Tribes Department in the Government of Kerala (respondent No. 2 herein), issued a show cause notice dated 3.6.2003 to the appellant as to why she should not be treated as non- Scheduled Caste person. The appellant submitted her written explanation dated 6.9.2003 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 2.12.2003 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.
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. Order dated 13.4.2004 was passed to this effect which was served upon the appellant on 28.6.2004. 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 13.4.2004 was granted in favour of the appellant. However, when the said writ petition was finally heard in the year 2012, vide judgement dated 5.9.2012, the High Court dismissed the same. The appellant preferred the Review Petition No. 1224/2012 seeking review of the said judgement which was also dismissed on 7.2.2013.
Against the judgement of the High Court special leave petition was filed. The Supreme Court accepted the appeal, the impugned judgement was set aside. The writ petitions filed by the appellants were accepted. The orders passed by respondent no. 2 and 3 were quashed.
The operative part of the judgement read as under :
It, thus, becomes clear that after the said judgement, 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 pr ospective and, therefore, the aforesaid change position become effective only from 30.8.2007, the date when the amendment was notified. In R. Unnikrishnan’s judgement [JT 2014 (1) SC 450], this Court made it clear that having regard to the ratio of Palghat Jilla’s case [JT 1993 (6) SC 622]. Ezhuvas and Thiyyas known as Thandans were entitled to be treated as Scheduled Castes till 29.8.2007 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 30.8.2007 could not be deprived of such benefit already bestowed on them.
The cumulative reading of the aforesaid two judgements 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 labored 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 Schedule Castes and Schedule Tribes Orders (Amendment) Act 1976 and she was appointed as High School Assistant (Physical Science) in Government School on 3.2.1989 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 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, Scheduled Caste but those who have already conferred the benefit would entitled to continue to reap the fruits thereof.
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 categor y. The impugned judgement is accordingly filed by the appellants and quashing the orders of respondent Nos. 2 and 3. The appellant shall also be entitled to the cost of these proceedings.
Reference : Supreme Court. T. Kocha v. State of Kerala & Ors., civil appeal no. 6126-6127 of 2013.